WORLD TRADE  
ORGANIZATION  RESTRICTED 
WT/DSB/M/316 
20 July 2012  
 
(12-3984) 
Dispute Settlement Body 
24 May 2012  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard 
on 24 May 2012 
 
Chairman:  Mr. Shahid Bashir (Pakistan) 
 
 Prior to the adoption of the Agenda, the Chairm an informed delegations that on 22 May 2012 
Antigua and Barbuda had requested by letter th at item 5 of the proposed Agenda, entitled:  
"United States – Measures Affecting the Cross Bo rder Supply of Gambling and Betting Services:  
Statement by Antigua and Barbuda regarding the implementation of the recommendations and rulings 
adopted by the DSB" be removed from the proposed Ag enda.  Therefore, he said that, in light of the 
request by Antigua and Barbuda, item 5 was withdrawn from the proposed Agenda.   
 
 The Agenda was adopted as amended. 
 
 
Subjects discussed: Page 
 
1.  Appointment of Appella te Body members .............................................................................. 2  
2.  Surveillance of implementation of recommendations adopted by the DSB ......................... 5  
(a)  United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States  ............................................................................................................ ............ 5 
(b)  United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by the Unite d States ................................................................................... 9 
(c)  United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States  ............................................................................................................ ............ 9 
(d)  European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union  ...................................................................... 10  
(e)  United States – Anti-dumping administrative reviews and other measures related to 
imports of certain orange juice from Brazil:  Status report by the United States  .................... 11  
(f)  United States – Definitive anti-dumping and countervailing duties on certain products 
from China:  Status report by the United States  ....................................................................... 11  
(g)  Thailand – Customs and fiscal measures on cigarettes from the Philippines:  Status 
report by Thailand  ........................................................................................................... ......... 12 
(h)  United States – Anti-dumping measures on certain shrimp from Viet Nam:  Status 
report by the United States  .................................................................................................. ..... 14 
3.  United States – Measures affecting the pr oduction and sale of clove cigarettes ............... 15  
(a)  Implementation of the recommendations of the DSB ............................................................... 15  
4.  United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB .......................................... 16  
(a)  Statements by the European Union and Japan .......................................................................... 16  WT/DSB/M/316 
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5.  India – Measures concerning the importatio n of certain agricultural products ............... 17  
(a)  Request for the establishment of a panel by the United States ................................................. 17  
6.  Proposed nominations for the indicative list of governmental and 
non-governmental panelists  .................................................................................................. 18 
7.  China – Measures affecting trading rights and distribution services for certain 
publications and audiovisual entertainment......................................................................... 18  
(a)  Statement by the United States  ............................................................................................... . 18 
 
 1. Appointment of Appellate Body members 
1. The Chairman said that, as announced by fax sent to all delegations on 9 May 2012, under 
this Agenda item, he intended to propose that th e DSB take certain decisions in relation to the 
appointment of Appellate Body members.  However, fi rst, he wished to briefly review the process that 
had led to this point.  He recalled that at its m eeting on 22 February 2012, the DSB had agreed to the 
Chair's proposal on this matter, which consisted of the following elements:  (i) to agree to launch as 
from 22 February 2012 the selection process for appoint ment of a new member of the Appellate Body 
for the position held by Mr. Shotaro Oshima;  (ii) to agree that the new member be appointed for a 
four year term beginning 1 June 20 12 or as soon thereafter as possible;  (iii) to agree to set a deadline 
of 30 March 2012 for Members' nomina tions of candidates for Mr. Oshima's position;  (iv) to agree to 
establish a Selection Committee based on the pro cedures set forth in document WT/DSB/1, which 
would consist of the Director-General and the 2012 Chairpersons of the General Council, Goods 
Council, Services Council, TRIPS Council and the DS B, and would be chaired by the 2012 Chair of 
the DSB;  (v) to request the Selection Committee to  conduct interviews with candidates in April 2012, 
to hear Members' views in the first half of May 2012, and to make its recommendation to the DSB by 
11 May 2012, if possible, so that the DSB coul d take a decision at its regular meeting on 
24 May 2012;  and (vi) to ask the DSB Chair to ca rry out consultations on the possible reappointment 
of Ms Yuejiao Zhang, who was eligible for rea ppointment for a second four-year term beginning on 
1 June 2012, and who had e xpressed her interest and willingness to be reappointed.   
2. The Chairman recalled that, by the agreed deadline of 30 March 2012 for Members' 
nominations, five candidates had been nominated by  four Members, namely Japan, Kenya, Korea and 
Thailand.  Subsequently, Kenya had informed Member s of its decision to withdraw its candidate.  As 
a result, there were four candidates:  two submitte d by Japan, one by Korea and one by Thailand.  
Curricula Vitae of the candidates had been circulated as Job documents to all Members.  
Subsequently, on 25 and 26 April 2012, the Sel ection Committee had conducte d interviews with the 
four candidates.  Then, on 7 and 8 May 2012, the Selection Committee had met individually with 27 
delegations to hear their views on the candidates.   The Selection Committee had also received the 
views of another three delegations in writing.  To arrive at its final recommendation, the Selection 
Committee had carried out its work in accordance with th e applicable DSU provisions and guidelines 
and rules set out in document WT/DSB/1.  The Se lection Committee's task had been very challenging 
given the outstanding calibre and impressive qualifica tions of the candidates.  On behalf of the 
Selection Committee and the entire WTO Member ship, he thanked the candidates who had 
participated in the process and to their respec tive Governments for having nominated them.   
3. The Chairman then turned to th e proposed decisions for action by  the DSB.  First, as had been 
communicated by fax to all delegations on 9 May 2012, he said that the Selection Committee had 
recommended that Mr. Seung Wha Chang of Korea be  appointed as a member of the Appellate Body 
for four years beginning on 1 June 2012.  He, therefore, proposed that the DSB take a decision to accept the Selection Committee's recommendation. 
4. The DSB so agreed.   WT/DSB/M/316 
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  5. Second, based on the Chair's consultations with delegations and as had been announced at the 
April 2012 DSB meeting, the Chairman proposed that  the DSB agree to reappoint Ms Yuejiao Zhang 
for a second four-year term beginning on 1 June 2012. 
6. The DSB so agreed. 
7. The Chairman said that, before giving the floor  to delegations, on beha lf of the Selection 
Committee and the entire WTO Memb ership, he once again thanked all the candidates and their 
respective Governments and congratulated Mr. Chang on his appointment and Ms Zhang on her 
reappointment.  He also thanked the members of  the Selection Committee for their hard work.  
8. The representative of Korea said that his country thanked Members for the appointment of 
Mr. Seung Wha Chang as an Appellate Body member.  In particular, Korea wished to extend its 
gratitude to the Chairman and to the other member s of the Selection Committee for their hard work 
and recommendation.  Korea also thanked the Secr etariat for its assistance and Members for their 
support and encouragement during the selection pro cess.  Korea also commended Japan and Thailand 
for having put forward highly capable and top-notch i ndividuals as candidates fo r the Appellate Body.  
Since the inception of the WTO in 1995, the WTO di spute settlement system had played a significant 
role in providing security and predictability to th e multilateral trading system.  In particular, the 
Appellate Body had been and would continue to be at  the centre of this critically important mission as 
the impartial and effective guardian of the multilate ral trading system.  Korea, like other Members, 
was fully committed to further strengthening the di spute settlement mechanism and the rules-based 
multilateral trading system.  Korea was certain that Mr. Chang recognized and appreciated all this.  
9. As Members were aware, Mr. Chang had a long and distinguished career in law and 
international trade.  He had served as a judge, an in ternational arbitrator and a WTO panelist.  Korea 
hoped and trusted that his proven expertise, impressive knowledge and balanced perspective would 
contribute significantly to the work of the Appella te Body as it proceeded to deal, in a timely and 
effective manner, with the increasingly complex dis putes and various challenges in a rapidly changing 
global trading environment.  Korea was confident th at Mr. Chang would do his best to meet Members' 
expectations and live up to the faith that had been bestowed upon him.  Korea welcomed the 
reappointment of Ms Yuejiao Zhang as a member of  the Appellate Body, and believed that she would 
continue to make significant contributions to the A ppellate Body's work.  In conclusion, Korea wished 
to take this opportunity to honour Mr.  Shotaro Oshima  for the past four years of excellent service.  In 
this regard, Korea was very pleased to join othe r Members in thanking him for his invaluable 
contributions to the Appellate Body's work and wished him well in his future endeavours. 
10. The representative of China said that her c ountry thanked the Chairman and the other 
members of the Selection Committee for their e fforts devoted to the selection process.  China 
welcomed and congratulated Ms Zhang Yuejiao and Mr. Seung Wha Chang for their respective reappointment and appointment as Appellate Body members.  Chin a also thanked Japan, Korea and 
Thailand for having nominated highly capable candi dates.  China recognized that the selection 
process had been difficult due to the competition among the highly qualified candidates and believed 
that any of the nominated candidates would have been able to do excellent work.  Ms Zhang had 
served as an Appellate Body member for four years and was, at present, the only women in the Appellate Body.  Her dedicated professional service a nd valuable contribution to the Appellate Body 
were recognized by Members.  China believed that her experience acquired during the first four-year 
term would enable her to perform well in he r second four-year term.  China said that 
Mr. Seung Wha Chang had rich expertise and expe rience in WTO law and international economic 
law.  China believed that he would make a great contribution to the Appellate Body and to the WTO 
dispute settlement system.  China hoped and was conf ident that the newly appointed and reappointed 
Appellate Body members would abide by the principles and rules established under the DSU and the Working Procedures for Appellate Review, and that  they would perform their duties faithfully, WT/DSB/M/316 
Page 4  
 
independently and impartially.  China attached ut most importance to the smooth functioning of the 
Appellate Body and would continue to work collabo ratively with the Appellate Body.  Finally, China 
thanked the outgoing Appellate Body member, Mr. Shotaro Oshima, for his remarkable and 
persevering services and contributions over the past  years, and wished him well in the future. 
11. The representative of the European Union said that the EU welcomed the Selection 
Committee's recommendation to nominate Mr. Chang as an Appellate Body Member.  The EU wished 
him all the best in his work and was confident th at his experience in WTO matters as well as in 
international arbitration and as a judge would enab le him to meet the challenges inherent in the 
Appellate Body's work.  The EU also thanked th e delegations of Japan and Thailand for having 
nominated candidates of such high stature in term s of knowledge and experien ce.  Those nominations 
bore witness to the commitment that these delegations  had towards a high-quality Appellate Body and 
the multilateral trading system.  Such high calibre  had afforded Members a great choice for this 
important office.  The EU also welcomed Ms Zh ang's reappointment and wished her well during her 
second term.  The EU thanked Mr. Oshima for his service over the past four years and wished him 
well in his future endeavours. 
12. The representative of Singapore said that her country thanked the Selection Committee and 
the Secretariat for their hard work during the selection process.  Singapore was a supporter of the 
multilateral trading system and believed in the im portance and centrality of the dispute settlement 
mechanism to that system.  The WTO dispute settle ment mechanism had been used to resolve many 
disputes, possibly more disputes than any other inte rnational dispute settlement mechanism.  The two-
tier dispute settlement process, with an appellate m echanism, was unique in international law and the 
Appellate Body played a fundamental stabilizing role.  With the increase in the number and 
complexity of disputes, it was imperative to have  well-qualified and talented women and men to serve 
on the Appellate Body.  It was important that th e Appellate Body was sound, objective, and acted on 
the basis of legal principles, given its role as th e credible arbiter between Members in disputes.  
Singapore had participated in the selection process:  it had interviewed all four candidates and had 
made its views known to the Selection Committee.  Singapore was impressed with the calibre of the 
candidates that had been put forward by Members this time around.  The candidates not only had the 
necessary technical knowledge and qualifications, but  some had the important insights of the 
fundamentals underlying the WTO system and experi ence to supplement the Appellate Body's already 
talented pool.  Singapore hoped that this high stan dard of candidates would be maintained in the 
future selection processes.  Singapore congratulated  Mr. Chang on his appointment as an Appellate 
Body member and was confident that his vast e xperience and sound technical knowledge would make 
him an asset to the Appellate Body and the WTO.  Singapore congratulated Ms Zhang on her reappointment for a second four-year term and thanked Mr. Oshima for his contributions. 
13. The representative of Thailand said that her c ountry thanked the Chairman, the Selection 
Committee and Members concerned for their particip ation in the Appellate Body selection process.  
Thailand also thanked Korea and Japan for having nominated candidates for the selection process.  
All four candidates were so highly qualified that making a decision to select only one was difficult.  Thailand had nominated its candidate because it strongl y believed that the WTO, and in particular its 
dispute settlement mechanism, should be driven by all Members.  Members should take turns to carry 
the torch for advancing the cause of strengthening th e system.  In that regard, Thailand congratulated 
Mr. Seung Wha Chang for his appointment and Ms Zhang Yuejiao for her reappointment to the 
Appellate Body.  
14. The DSB took note of the statements.   WT/DSB/M/316 
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  2. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appr opriations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.114) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.114) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.89) 
 
(d) European Communities – Measures affecting the approval and marketing of  biotech products:  
Status report by the European Union (WT/DS291/37/Add.52) 
 (e) United States – Anti-dumping administrative revi ews and other measures related to imports of 
certain orange juice from Brazil:  Status report by the United States (WT/DS382/10/Add.5) 
 
(f) United States – Definitive anti-dumping a nd countervailing duties on certain products from 
China:  Status report by the United States (WT/DS379/12/Add.4) 
 (g) Thailand – Customs and fiscal measures on ciga rettes from the Philippines:  Status report by 
Thailand (WT/DS371/15/Add.1) 
 
(h) United States – Anti-dumping measures on certain shrimp from Viet Nam:  Status report by 
the United States (WT/DS404/11) 
 15. The Chairman recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establis hment of the reasonable 
period of time and shall remain on the DSB's Agenda  until the issue was resolved.  He proposed that 
the eight sub-items under Agenda item 1 be considered separately.  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.114) 
16. The Chairman drew attention to document  WT/DS176/11/Add.114, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US Section 211 Om nibus Appropriations Act of 1998. 
17. The representative of the United States said that  his country had provided a status report in 
this dispute on 11 May 2012, in accordance with Arti cle 21.6 of the DSU.  Legislative proposals had 
been introduced in the current 112th Congress to im plement the recommendations and rulings of the 
DSB.  The US Administration would continue to work on solutions to implement the DSB's recommendations and rulings.  
18. The representative of the European Union said that the EU thanked the United States for its 
most recent status report and hoped that the US authorities would very soon take steps towards 
implementing the DSB's ruling and resolve this matter. 
19. The representative of Cuba said that the most recent US status report pertaining to the 
Section 211 dispute contained the same information as  the previous status reports submitted by the 
United States since 2002.  The US assertion that it had been working for more than ten years on the 
implementation of the DSB's recommendations in th is dispute without achieving any result was not WT/DSB/M/316 
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sustainable.  In Cuba's view, the US status re ports undermined the principles of transparency and 
accountability of DSB meetings.  The status reports  no longer referred to the sessions of the US 
Congress in which the supposed legislative proposals for compliance with the DSB's rulings would be 
examined.  Cuba, once again, called upon the Unite d States to submit updated status reports based on 
facts, in accordance with Article 21.6 of the DSU.   It was also important that the United States 
determine the steps necessary to co mply with the DSB's rulings.  S ection 211 had been found to be 
inconsistent with the TRIPS Ag reement, national treatment, the most-favoured-nation treatment and 
the Paris Convention.  Every month, the DSB witnessed the US negligent and unjustifiable non-compliant behaviour.  In early May 2012, the US  Trade Representative Office had published a new 
edition of its annual report on intellectual property ri ghts.  This only confirmed that there were no 
limits to the US authorities' demagogy, discriminat ion and double standards.  The report included a 
Priority Watch List containing 40 countries that supposedly violated intellectual property rights.  Cuba wondered why such unethical behaviour and double standards could be possible.  If the Office 
of the US Trade Representative wanted to conduct an objective analysis of the matter, it should start 
by acknowledging that it had not taken any steps to comply with the DSB's decisions in this dispute.  
The United States should present a programme of specif ic actions, with a set time-table for remedying 
its inaction and deceptive behaviour, which blatantly vi olated the intellectual property rights of other 
countries.  Cuba considered that it was unacceptable for any country to unilaterally assume the role of 
international judge, in particular since that country  frequently violated international commitments on 
intellectual property rights.   
20. In Cuba's view, the United States made a mockery of the DSB's rulings in the Section 211 
dispute.  Section 211 prevented Cuban right holde rs and successors-in-interest from enjoying the 
recognition and exercise of their trademark and trade name rights in the United States.  Section 211 had been used, in what amounted to a blatant ac t of piracy, as a pretext to enable the Bacardi 
Company to use the Havana Club trademark in the United States:  the only place in the world where 
this occurred.  In 2011, US courts had issued tw o rulings that had denied the Cubaexport Company, 
the legitimate right holder since 1976, permission  to renew its registration of the Havana Club 
trademark.  In January 2012, the company had turn ed to the US highest judicial authority, the 
Supreme Court, to request that it review the ca se.  On 14 May 2012, that request had also been 
refused.  Such action definitively denied a Cuban comp any its right to retain ownership of a trademark 
that it had held legitimately in the United States fo r more than 30 years, without the US government 
showing any regard for its international commitmen ts or international public opinion, or indeed 
respect for the most basic intellectual property rights.   Moreover, it was shameful that while all this 
was happening, the United States acknowledged, thr ough the Department of the Treasury, Office of 
Foreign Assets Control's response to Cubaexport's re quest before the Supreme Court, that the refusal 
to issue a specific licence for the renewal of the regi stration was a decision that had been taken by the 
executive branch of the Government on the basis of its foreign policy.  It was, therefore, clear that in 
this case a political problem was at the root of the US failure to comply with its obligations.  For that 
reason, every month the United States tried to decei ve Members with an empty and repetitive status 
report indicating that "something" was being done  in Congress.  The reason behind this was the 
absurd and unlawful economic, financial and co mmercial blockade against Cuba, which was 
condemned year after year by an overwhelming ma jority in the UN General Assembly, and which the 
United States placed before its DSB obliga tions and respect for other Members.   
21. Cuba considered that it was unacceptable that th is type of violation should continue to go 
unpunished in the WTO.  The United States was fu lly responsible for what had happened.  Cuba 
called upon the United States to grant, immediately, the licence that would enable the Cuban company Cubaexport to renew the Havana Club trademar k, and to repeal Section 211 immediately, 
unconditionally and without further dela y.  Cuba had always respected, without any discrimination, its 
obligations under international lega l instruments relating to intellectual property, thus ensuring that 
more than 5,000 US trademarks and patents benefitted from their registration in Cuba.  If the 
United States did not take action, it alone would be responsible for the theft of the Havana Club 
trademark from its lawful owner, Cubaexport, and fo r any negative consequences  that this might have  WT/DSB/M/316 
 Page 7 
 
 
  for the reciprocal protection of intellectual pr operty.  Cuba would c ontinue to call upon the 
United States to fully repeal Section 211 and condemn ed the harm inflicted on Cuba.  In Cuba's view, 
Section 211 undermined the ideal of a world governed by the rule of law. 
22. The representative of Argentina thanked the Un ited States for its status report and statement 
made at the present meeting.  However, Argentina re gretted that the status report and statement were 
similar if not identical to the previous reports a nd statements by the United States over the past ten 
years.  This situation of non-compliance had a ne gative impact on the credibility of the multilateral 
trading system, in particular since it affected the weakest Members.  Argentina supported the concerns 
expressed by Cuba and noted that, in the past 24 months, 75 per cent of the cases under this Agenda 
item concerned US non-compliance.  Therefore, Arge ntina requested that the United States implement 
the DSB's rulings and recommendations without furthe r delay.  At the present meeting, Argentina 
wished to express its concern regarding the repeated  and continued failure to comply with the DSB's 
recommendations and urged non-complying Members to  bring their measures into compliance with 
the DSB's recommendations.  Argentina recalled that Article 21 of the DSU referred specifically to 
the need for prompt compliance with the DSB's r ecommendations and rulings, in particular where the 
interests of developing-country Members were affected .  In that regard, Argentina drew attention to 
the fact that when Members with relatively greater  economic weight failed to comply with the DSB's 
rulings, to the detriment of the interests of de veloping-country Members, they undermined the 
stability of the multilateral trading system and jeop ardized its viability.  Likewise, the failure to 
comply with the DSB's decisions undermined the cr edibility of the system to effectively rectify 
situations where measures were found to be inconsistent with WTO ru les, in particular when unfair 
situations were prolonged to the detriment of developing countries. 
23. The representative of Zimbabwe said that his count ry thanked the United States for its status 
report.  However, Zimbabwe noted that, despite th e regular reports, the United States fell far short of 
complying with the DSB's rulings and the recommendations pertaining to this dispute.  Once again, Zimbabwe urged the United  States to repeal Section 211, whic h was incompatible with the TRIPS 
Agreement and violated the legitimate  rights of Cuban trademark holders. 
24. The representative of the Bolivarian Republic of  Venezuela said that her country supported 
Cuba's statement made at the present meeting.  Ve nezuela wished to point out that ten years had 
passed since the DSB had ruled on the inconsistenc y of Section 211 with Article 42 of the TRIPS 
Agreement, the principles of national treatment and most-favoured-nation treatment and the Paris 
Convention.  Each month, the US status report,  including its most recent report of 11 May 2012, 
contained the same information as the previous re ports.  The only changes made were the date and 
symbol.  The report stated that "the US Administration will continue to work on a solution that would resolve this matter".  In Venezuela's view, this am ounted to "action without results".  Venezuela noted 
that Section 211 remained in force despite having been found to be inconsistent with the TRIPS 
Agreement.  This undermined the dispute settlement system, which was considered to be one of the 
main achievements of the Uruguay Round.  Venezu ela was disappointed that the United States failed 
to implement the Appellate Body's ruling.  As  it had already done on numerous occasions, Venezuela 
urged the United States to end its policy of econo mic, commercial and financial blockade against 
Cuba and to bear in mind its obligation to comply with the DSB's recommendations. 
25. The representative of Uruguay said that his country shared the systemic concerns expressed 
by previous speakers.  Uruguay noted that it had been ten years of non-compliance by the 
complaining party, which had not had recourse to any of the remedies provided in the DSU provisions 
in order to seek effective compliance with th e DSB's recommendations.  Once again, Uruguay called 
on the parties to this dispute to assume their r esponsibilities under the multilateral trading system and 
to end this dispute.  Uruguay noted that each mont h, the same statements and arguments were being 
repeated over and over again.  After 17 years of le gal wrangling in the United States, a few days ago 
Pernod-Ricard had announced its inten tion to give up the battle for its legitimate rights to the Havana WT/DSB/M/316 
Page 8  
 
Club trademark in the United States.  Therefore, Uruguay believed that the time had come for the parties in this dispute to make every effort to r each a mutually agreed solution and to refrain from 
further undermining the credibility of the WTO and the DSB, which was the backbone of the system. 
26. The representative of Ecuador said that his c ountry supported the statement made by Cuba.  
Ecuador noted that Article 21 of the DSU referred to prompt compliance with the DSB's rulings and 
recommendations, in particular where the interests of a developing-country Member were affected.  
Ecuador hoped that the United States would step up its efforts in order to implement immediately the 
DBS's rulings and recommendations  by repealing Section 211. 
27. The representative of Nicaragua said that one of the objectives of the WTO was to promote 
trade liberalization for the benefit of all, in par ticular developing and least-developed countries.  It 
was, therefore, inconceivable that this case, whic h had been on the DSB's Agenda for more than ten 
years, remained unresolved, thereby affecting Cuba 's economic and commercial interests.  Nicaragua 
thanked the United States for its status report and re gretted that the content of the report had remained 
unchanged for years, a fact which reflected the US lack of will to find a solution to this matter.  
Nicaragua believed that the inability to settle this di spute undermined the efficiency and credibility of 
the DSB and the multilateral trading system, and coul d set a precedent with adverse impact on other 
Members, in particular developing countries.  Ni caragua found it inexplicable that a developed-
country Member demanded others to comply with th eir obligations whilst failing to comply with its 
own obligations.  Nicaragua supported Cuba's stat ement and urged the United States to meet its 
obligations by bringing the measures at issue in to compliance with the DSB's recommendations and 
by finding a mutually satisfactory solution to this dispute. 
28. The representative of the Dominican Republic said that her country thanked the United States 
for its status report on compliance with the DS B's rulings and recommendations concerning the 
inconsistency of Section 211 with the WTO rules, as set out in Article 42 of the TRIPS Agreement.  
The Dominican Republic, once again, urged the United States to step up its internal procedures so as 
to comply with the DSB's rulings.  The Dominican Re public noted that the fact that a long period of 
time had passed without implementation in this dispute undermined the credibility of the WTO's 
decisions. 
29. The representative of Chile said that his country thanked the United States for its status report 
pertaining to this dispute.  However, Chile was c oncerned about the fact that many years had elapsed 
since the adoption of the Reports in this dis pute.  The US failure to implement the DSB's 
recommendations affected the credibility of the WTO' s dispute settlement system and the interests of 
a developing-country Member.  Chile was concerne d about the US non-compliance with regards to 
intellectual property rights contained in the TRIPS Ag reement.  Chile urged the United States to find a 
quick solution and to bring its measure into compliance with the WTO rules.  
30. The representative of the Plurinational State of Bolivia said that her country had, once again, 
heard the same status report submitted by the United States, in which the United States did not report 
on any progress.  Thus, Bolivia reiterated its concern about the lack of solution to this dispute and the 
US failure to comply with the DSB's rulings.  Such non-compliance affected the integrity and 
credibility of the multilateral trading system, harmed  developing countries and the WTO.  Once again, 
Bolivia urged the United States to implement the DSB's rulings and recommendations and make an 
effort to repeal Section 211.  Finally, she said that  Bolivia wished to be asso ciated with the concerns 
expressed by Cuba at the present meeting.   
31. The representative of China said that her country  thanked the United States for its status 
report and statement made at the present meeting, but noted that there was lack of substantive 
progress in the implementation of the DSB's r ecommendations.  The prolonged situation of non-
compliance was highly incompatible with the prom pt and effective implementation required under the 
DSU provisions, in particular when the interests of a developing-country Member were affected.   WT/DSB/M/316 
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  Thus, China urged the United States to implemen t the DSB's rulings and recommendations without 
further delay. 
32. The representative of Brazil said that her count ry thanked the United States for its status 
report but noted that, once again, the United States reported lack of progress on this issue.  Brazil 
remained concerned about this situation of non- compliance and urged the United States to bring its 
measures into conformity with WTO rules. 
33. The representative of Paraguay said that his country wished to be associated with the 
statement made by Cuba concerning the continued de lay in the implementation of the DSB's rulings.  
Paraguay not only had trade concerns, but like ot her Members, it also had systemic concerns 
regarding this matter.  Paraguay hoped that the s ituation of non-compliance would be addressed in the 
context of the DSU negotiations.     
34. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.114) 
35. The Chairman drew attention to document  WT/DS184/15/Add.114, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
36. The representative of the United States said that  his country had provided a status report in 
this dispute on 11 May 2012, in accordance with Article 21.6 of the DSU.  As of November 2002, the 
US authorities had addressed the DSB's recommendations  and rulings with resp ect to the calculation 
of anti-dumping margins in the hot-rolled steel anti-dumping duty investigation at issue in this 
dispute.  With respect to the recommendations an d rulings of the DSB that had not already been 
addressed by the US authorities, the US Administ ration would work with the US Congress with 
respect to appropriate statutory measures that would resolve this matter.  
37. The representative of Japan said that his country  thanked the United States for, and took note 
of, its statement and status report.  Japan, once again, called on the United States to fully implement 
the DSB's recommendations in this long-s tanding dispute without further delay.  
38. 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.89) 
39. The Chairman drew attention to document WT/D S160/24/Add.89, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
40. The representative of the United States said that  his country had provided a status report in 
this dispute on 11 May 2012, in accordance with Ar ticle 21.6 of the DSU.  The US Administration 
would continue to confer with the European Uni on, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter. WT/DSB/M/316 
Page 10  
 
41. The representative of the European Union said that the EU noted and thanked the 
United States for its status report.  As it had stated  many times in the past, the EU wished to resolve 
this case as soon as possible. 
42. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.52) 
43. The Chairman drew attention to document WT/D S291/37/Add.52, which contained the status 
report by the European Union on progress in the implementation of the DSB's recommendations in 
the case concerning its measures affecting the approval and marketing of biotech products. 
44. The representative of the European Union said th at the EU, once again, wished to express its 
hope that it would continue on the constructive pa th of dialogue with the United States.  Three 
technical meetings had taken place since 2011.  The meetings had offered a good opportunity to 
discuss directly issues of concern to both sides an d to follow up closely on developments in the 
biotech field.  In 2012, the European Commission had already authorized three more GMOs1 and had 
renewed the authorization of a fourth one.2  Two of those decisions3 had been adopted only six 
months after the relevant EFSA opinions had been published.  Furthermore, on 15 February 2012, 
EFSA had issued its opinion on the safety of a GM soybean for food and feed uses.4  A decision for 
authorization of this soybean had been submitted for a vote to the 2 May 2012 Standing Committee.  
No qualified majority had been reached and, th erefore, the Commission had decided to convey an 
appeal committee in June 2012.  Regarding the concerns expressed by the United States on the 
backlog of approvals, the EU, once again, recalled that its approval system was not covered by the 
DSB's recommendations and rulings.  The EU unde rlined that the GMO regulatory regime was 
working normally as evidenced by the approval decisions just mentioned.  The functioning of the GMO regime should not be rigidly assessed purely quan titatively and in the abstract, in terms of the 
number of authorizations per year, since this was dependent on various  product and case-specific 
elements, and in particular on the quality of applica tions and on the time needed by applicants to 
answer requests from EFSA on additional scientific information. 
45. The representative of the United States said that  his country thanked the EU for its status 
report and for its statement made at the present meeti ng.  As it had explained at past meetings of the 
DSB, the United States said that it continued to have substantial concerns regarding EU measures 
affecting the approval of biotech products.  The EU  measures, including delays in approvals, had 
resulted in restrictions on the importation of US agricultural products.  The affected commodities 
included corn and corn products from the curre nt US growing season.  At the April 2012 DSB 
meeting, the United States had recalled the DSB fi ndings that EU member State bans on the corn 
variety Mon810 were inconsistent with the EU's obligations under the SPS Agreement.5  T h e  
United States in particular had noted its concern that in March 2012, France had renewed its member 
State ban affecting this corn variety.  On 21 Ma y 2012, the EU's scientific authority had published a 
scientific opinion on the renewed ban adopted by France.  The opinion found that France had provided no scientific evidence in support of the ban.  This finding was not surprising.  For over 15 years, Mon810 corn had been grown safely in many countries around the world.  The United States 
                                                      
1 A5547-127 soybean, 356043 soybean, MON87701 soybean. 
2 40-3-2 soybean. 
3 Authorization decision for 356043 and MON87701 soybeans. 
4 MON87701×MON 89788. 
5 Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech 
Products, WT/DS291/R, adopted 21 November 2006, paras. 8.24, 8.28.  WT/DSB/M/316 
 Page 11 
 
 
  urged the EU to act in accordance with the EU's own scientific findings and to lift the EU member 
State bans on biotech products approved at the EU level.  
46. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(e) United States – Anti-dumping administrative review s and other measures related to imports of 
certain orange juice from Brazil:  Status report by the United States (WT/DS382/10/Add.5) 
47. The Chairman drew attention to document WT /DS382/10/Add.5, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping administrative reviews and other measures related to imports of certain orange juice from Brazil. 
48. The representative of the United States said that  his country had provided a status report in 
this dispute on 11 May 2012.  As previously note d, on 14 February 2012, the US Department of 
Commerce had published a modification to its pr ocedures in order to implement the DSB's 
recommendations and rulings regarding the use of "zeroing" in all anti-dumping reviews, including 
those concerning the products of Brazil covered in this dispute.  On 20 April 2012, as a result of a 
determination by the US International Trade Commission, the US Department of Commerce had 
issued a notice revoking the anti-dumping duty order on the products covered in this dispute.  The revocation of the order was effective as of 9 Marc h 2011.  As a result of the revocation, imports of 
orange juice from Brazil entered on or after 9 Marc h 2011 were not subject to anti-dumping duties.  
All anti-dumping duty cash deposits on entries on or afte r that date would be re funded.  Brazil and the 
United States had entered into an agreement designed to facilitate a final resolution of this dispute.  
The agreement had been circulated to Members in document WT/DS382/11.  The United States 
looked forward to further discussions with Brazil, as provided in the agreement, on any outstanding 
issues involving this matter.  
49. The representative of Brazil said that her count ry thanked the United States for its status 
report.  As had been mentioned, the United States had published a final rule modifying its 
methodology regarding the calculation of dumping margins and assessment rates in anti-dumping 
review, according to which "zeroing" would no  longer be used in these calculations after 
16 April 2012.  Brazil welcomed this important  change and intended to follow closely the 
implementation of the final rule in the coming months.  Brazil also noted that past reviews with unliquidated entries were not covered by the fi nal rule.  Brazil intended to consult with the 
United States with a view to finding a solution to this dispute.  
50. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(f) United States – Definitive anti-dumping and countervailing duties on certain products from 
China:  Status report by the United States (WT/DS379/12/Add.4) 
51. The Chairman drew attention to document WT /DS379/12/Add.4, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US definitive anti-dumping and count ervailing duties on certain products from China. 
52. The representative of the United States said that  his country had provided a status report in 
this dispute on 11 May 2012, in accordance with Article 21.6 of the DSU.  On 6 April 2012, the US 
Department of Commerce ("Commerce") had issued to  interested parties a preliminary determination 
with respect to certain issues in the countervailin g duty investigation of certain new pneumatic off-
the-road tires.  On 9 April 2012, Commerce had issued to interested parties a preliminary WT/DSB/M/316 
Page 12  
 
determination with respect to certain issues in the countervailing duty investigation of laminated 
woven sacks.  On 18 May 2012, Commerce had i ssued to interested parties a preliminary 
determination with respect to the issues of the determination of public bodies and the use of facts 
available in the countervailing duty investigations of circular welded pipe, light-walled rectangular 
pipe and tube, certain new pneumatic off-the-road tires, and laminated woven sacks.  Commerce had 
provided an opportunity for interested parties to provide comments on those preliminary 
determinations and to provide rebuttal comments on any comments that had been submitted by other 
interested parties.  On 14 May 2012, the United St ates and China had notified the DSB that they had 
reached an agreement on procedures under Articles 21 and 22 of the DSU.  This document had been 
circulated to Members in WT/DS379/14.  The Unite d States would continue to work on solutions to 
implement fully the DSB's recommendations and rulings. 
53. The representative of China said that her country  thanked the United States for its status 
report and statement made at the present meeting.  As had been mentioned by the United States, China 
and the United States had arrived at a sequenc ing agreement on 11 May 2012, which had been 
circulated to Members in document WT/DS379/14 on 16 May 2012.  Fourteen months had lapsed 
since the adoption of the Appellate Body Report and the Panel Report in this dispute.  Although China 
had shown great flexibility by agreeing to exte nd the original reasonable period of time by two 
months, which had expired on 25 April 2012, the United States had failed to implement the DSB's 
rulings and recommendations.  According to the US  status report, the implementation process was 
quite delayed and only several preliminary determina tions had been issued in the investigations.  It 
seemed the United States could not bring the impl ementation process to a conclusion within several 
months.  By contrast, it only took the United Stat es a very short time to enact a new law which 
allowed the United States to apply countervailing du ties to non-market economies.  The bill had been 
referred to the House Committee on Ways and Mean s on 29 February 2012 and had been signed by 
the US President on 13 March 2012.  China also had strong concerns about the new law, but it would 
not elaborate them at the present meeting.  This simple time comparison highlighted the serious delay 
in the implementation process in this dispute.  Considering that China was a developing-country 
Member and Chinese companies concerned had been  suffering from the WTO-inconsistent measures 
taken by the United States, the delayed implementati on in this dispute was very inappropriate.  It 
would also give a bad example, cast shadow on the WTO dispute settlement system, and weaken 
Members' confidence.  China was very disappointed  that the United States had not implemented the 
DSB's rulings and recommendations and urged the United States to expedite its work and fully 
implement the DSB's rulings and recommendations w ithout any further delay.  China reserved its 
right to take further action at the WT O in accordance with the DSU provisions. 
54. The representative of the United States said that  he would like to respond to China's 
comments regarding alleged delays in full implementati on in this dispute.  The issues in this dispute 
were complex and involved several novel matters.  Chinese respondents, including the Government of 
China, also appeared to recognize the complexity of  the issues, as they had requested and received, on 
numerous occasions, additional time to provide complete responses to questionnaires from the Department of Commerce.  As China had indicated earlier, the United States and China had agreed to 
extend the reasonable period of time for implementa tion, and this was due in significant part to 
China's request for more time to r espond to Commerce's questionnaires.   
55. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(g) Thailand – Customs and fiscal measures on cigare ttes from the Philippines:  Status report by 
Thailand (WT/DS371/15/Add.1) 
56. The Chairman drew attention to document WT /DS371/15/Add.1, which contained the status 
report by Thailand on progress in the implementati on of the DSB's recommendations in the case 
concerning Thailand's customs and fiscal m easures on cigarettes from the Philippines.  WT/DSB/M/316 
 Page 13 
 
 
  57. The representative of Thailand said that her country had provided a status report in this 
dispute on 11 May 2012, in accordance with Article  21.6 of the DSU.  Thailand and the Philippines 
had notified the DSB that, on 23 September 2011, they had mutually agreed on a reasonable period of 
time for Thailand to comply with the DSB's recomme ndations and rulings, pursuant to Article 21.3(b) 
of the DSU.  With respect to the DSB's recommenda tions and rulings regardi ng paragraphs 8.3(b) and 
(c) of the Panel Report, the reasonable period of time to comply was 15 months, expiring on 
10 October 2012.  With respect to the DSB's recommendations and rulings  regarding all other 
measures, the reasonable period of time to comp ly was ten months, expiring on 15 May 2012.  
Thailand was pleased to provide an update on pr ogress in addition to its status report, dated 
14 May 2012, that it had brought most of the me asures at issue into compliance with the DSB's 
rulings and recommendations.   
58. Regarding the Panel's rulings and recomme ndations concerning the establishment of 
maximum retail selling prices ("MRSPs"), which had b een used as the base for determining the VAT 
payable on the sale of cigarettes in Thailand, on 15 May 2012, the Excise Depa rtment had issued two 
regulations eliminating the use of MRSPs as the tax base for VAT payable on resales of both the 
domestically produced and imported cigarettes.  Regarding the Panel's findings under the Customs 
Valuation Agreement, on 8 May 2012, the Cu stoms Department had issued Regulation 
No. 711B.E. 2555, revising and expanding the rules and procedures governing how the Customs Department determined customs value using the transaction value and the deductive value methods 
pursuant to the Customs Valuation Agreement.   
59. Regarding the Panel's findings that Thailand ha d failed to properly publish the rules regarding 
the release of guarantees, on 8 May 2012, the Thai  Customs Department had issued Regulation 
No. 72/B.E. 2555, which provided the procedures and requirements pertaining to requests for a refund 
of guarantees on the final assessment of duties and the processing of refunds.  Regarding the Panel's 
findings with respect to delays in the appeal process for customs valuation determinations, the 
Customs Department had adopted Regulation No. 73/ B.E. 2555, effective as of 14 May 2012, which 
provided the procedures pertaining to appeals of customs valuation determinations, including the 
procedures for submissions of a ppeals and related documents.   
60. Regarding the Panel's and the Appellate B ody's findings concerning the administrative 
requirements for VAT reporting for resales of im ported and domestic cigare ttes, on 29 March 2012, 
the Cabinet had passed a resolution approving th e draft Royal Decree submitted by the Revenue 
Department.  Currently, the draft Decree was under the consideration of the Council of State.  The 
draft Decree would ensure that the same VAT repor ting requirements would apply to resales of both 
imported and domestic cigarettes.  Thailand expected that the Decree would be in effect by the end of the agreed reasonable period of time for implem entation on these items, which would expire on 
15 October 2012.  Regarding the Panel's and the Appellate Body's findings requiring Thailand to 
maintain an independent review process for a pr ompt review of decisions to require customs 
guarantees on clearance of goods pending determination of the customs value, Thailand had originally 
considered that a new review process for this pur pose could be implemented by regulatory means.  
The Executive Committee of the Cust oms Department was currently c onsidering the draft regulation 
to establish the independent review process proposed by the Customs Department to ensure that the 
process conformed fully with Thai domestic law.  Thailand expected this internal review to be 
completed at the end of May 2012 and that the dr aft regulation establishing a new independent review 
process would come into effect thereafter.   
61. Regarding the customs valuation of the speci fic entries of merchandise listed in the 
Philippines' request for the establishment of a panel and the entries involved in the Philippines' claim 
under Article X:3 of the GATT 1994, the Customs Depa rtment had consulted w ith importers and had 
given them opportunities to provide explanations both in writing and or ally.  However, in its latest 
meeting on 4 May 2012, the Board of Appeals had found that the information submitted by the Sub-WT/DSB/M/316 
Page 14  
 
Committee handling these appeals was not sufficient fo r the Board to complete the appeals.  The 
Board had requested the Sub-Committee to provide ce rtain additional information.  Thailand expected 
that these appeals would be finalized once the outstanding information wa s received.  Thailand 
expected that these appeals would be  resolved at the very latest by  the expiration of the reasonable 
period of time for the VAT reporting requirements on 15 October 2012.  Thailand had engaged in 
bilateral discussions with the Philippines prior to  this meeting and had re ported the above-mentioned 
progress on implementation.  
62. The representative of the Philippines said that hi s country thanked Thailand for its status 
report and the additional information provided at th e present meeting.  The Philippines recalled that 
the parties to this dispute had taken the some what unusual step of agreeing on two different 
reasonable periods of time for Thailand to bring its WTO-inconsistent measures into conformity with 
the DSB's recommendations and rulings.  The first reasonable period of time, ending on 15 May 2012, 
for all measures other than those concerning the VAT exemption on resales of domestic cigarettes, and a second reasonable period of time, ending on 15  October 2012, for measures relating to the VAT 
exemption.  The first reasonable period of time had now expired, and Thailand's statement at the 
present meeting addressed steps it had taken with resp ect to the WTO-inconsistent measures that were 
to be brought into conformity by 15 May 2012.  Wh ile it appreciated Thailand's statement made at the 
present meeting, the Philippines was concerned that  the steps Thailand had reported may not suffice 
to bring into conformity those WTO-inconsistent measures subject to the 15 May 2012 deadline.  The Philippines would assess the situation in light of Thai land's statement made at the present meeting and 
would address any continuing concerns in on-going b ilateral discussions with Thailand.  Nonetheless, 
the Philippines reserved its rights rega rding any further steps it may take.  
63. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(h) United States – Anti-dumping measures on certain shrimp from Viet Nam:  Status report by 
the United States (WT/DS404/11) 
64. The Chairman drew attention to document WT /DS404/11, which contained the status report 
by the United States on progress in the implementa tion of the DSB's recommendations in the case 
concerning the US anti-dumping measures on certain shrimp from Viet Nam. 
65. The representative of the United States said that  his country had provided a status report in 
this dispute on 11 May 2012, in accordance with Ar ticle 21.6 of the DSU.  On 31 October 2011, the 
United States and Viet Nam had jointly notified the DSB of their agreement that the reasonable period 
of time for the United States to implement the r ecommendations and rulings of the DSB would end on 
2 July 2012.  The notification had been circulated  in document WT/DS404/10.  On 14 February 2012, 
the US Department of Commerce had published in the Federal Register, 77 FR 8101, a modification 
to its procedures in order to implement the DSB' s recommendations and rulings regarding the use of 
"zeroing" in anti-dumping reviews.  This modificatio n addressed certain findings in this dispute.  The 
United States would continue to consult with in terested parties as it worked to address the 
recommendations and rulings of the DSB.  
66. The representative of Viet Nam said that his co untry thanked the United States for its status 
report and statement made at the present meeting.  This was the first time for Viet Nam to assert its 
legitimate rights through the WTO dispute settlement  mechanism.  After the adoption of the Panel 
Report pertaining to this dispute, the United St ates Department of Commerce had announced, on 
14 February 2012, its modification of the methodolog y to calculate the weighted average dumping 
margin to address the application of zeroing met hodology in the anti-dumping review procedure (i.e, 
"Anti-Dumping Proceedings:  Calculation of the Weighted Average Dumping Margin and 
Assessment Rate in Certain Anti-Dumping Duty  Proceedings; Final Modification").  While 
welcoming this progress, Viet Nam was concerned th at this Final Modification was only applied to  WT/DSB/M/316 
 Page 15 
 
 
  administrative reviews of which preliminary results ha d been issued more than 60 days after the date 
of this Modification (16 April 2012) and, therefore,  it would not be applied to the reviews in this 
dispute.  In addition, it was Viet Nam's understa nding that under US domestic laws, a proceeding 
must be initiated under Section 129 of the Urugu ay Round Agreements Act in order to make 
necessary changes in anti-dumping determinations to conform with WTO findings of inconsistency.  
To date no such proceedings had been initiated by the United States w ith respect to this dispute thus 
making US implementation in this dispute problematic.  Nevertheless, Viet Nam expected the United States to fully comply with the reasonable period of time as agreed upon by the parties.  Viet Nam reiterated its rights to pursue any legal proceeding under the WTO in order to protect the 
legitimate benefits of Vietnamese enterprises and fa rmers who had been affected by the US measures 
that were WTO-inconsistent. 
67. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
3. United States – Measures affecting the production and sale of clove cigarettes 
(a) Implementation of the recommendations of the DSB 
68. The Chairman recalled that in accordance with the DSU provisions, the DSB was required to 
keep under surveillance the implementation of reco mmendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Members.  In that respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  He recalle d that at its meeting on 24 April 2012, the DSB 
had adopted the Appellate Body Report and the Pa nel Report, as modified by the Appellate Body 
Report, pertaining to the dispute on:  "United St ates – Measures Affecting the Production and Sale of 
Clove Cigarettes".  He invited the United States to inform the DSB of its intentions in respect of 
implementation of the DSB's recommendations. 
69. The representative of the United States said that, at the meeting held on 24 April 2012, the 
DSB had adopted its recommendations and rulings in the dispute:  "United States – Measures 
Affecting the Production and Sale of Clove Cigare ttes" (WT/DS406/R and WT/DS406/AB/R).  At the 
present meeting, as provided for in the first sentence of Article 21.3 of the DSU, the United States 
wished to state that it intended to implement th e recommendations and rulings of the DSB in a manner 
that protected public health and respected th e obligations of the United States under the WTO 
Agreement.  In that regard, the United States woul d emphasize the DSB finding that the US measure 
reflected the overwhelming view of the scientific community that banning clove and other flavoured 
cigarettes benefitted the public health  by reducing the likelihood that yo uth would enter into a lifetime 
of cigarette addiction.  Accordingly, the DSB had found that a ban on clove cigarettes met the 
requirements of Article 2.2 of the TBT Agreement and was thus no more trade restrictive than necessary to fulfil a legitimate public health object ive.  The United States would need a reasonable 
period of time in which to implement in this dispute.  
70. The representative of Indonesia said that her country thanked the United States for its 
statement.  Indonesia looked forward to hearing and receiving more information on significant 
progress, in spite of any domestic obstacles of the United States, in the implementation of the Appellate Body's findings of 4 April 2012, which had been adopted on 24 April 2012.  Indonesia 
believed that the United States would implement the recommendation and comply with the WTO 
rules and regulations.  Indonesia stood ready and lo oked forward to cooperate bilaterally with the 
United States. WT/DSB/M/316 
Page 16  
 
71. The DSB took note of the statements, and of the information provided by the United States 
regarding its intentions in respect of implementation of the DSB's recommendations. 
4. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Union and Japan 
72. The Chairman said that this item was on the Age nda of the present meeting at the request of 
the European Union and Japan.  He then i nvited the respective representatives to speak. 
73. The representative of the European Union sai d that, as announced at the 24 April 2012 DSB 
meeting, the EU had modified the level of retaliati on against the US to US$3,241,000, effective from 
1 May 2012.  The regulation imposing the sanctions had been published in the EU's Official Journal 
on 12 April 2012 and had been notified to the WTO in document WT/DS217/61, circulated on 
10 May 2012.  As it had done many times before, the EU requested the United States to stop 
transferring anti-dumping and countervailing duties to th e US industry.  Every disbursement that still 
took place was clearly an act of non-compliance with the DSB's recommendations and rulings.  Once again, the EU renewed its call on the United States to  abide by its clear obligation under Article 21.6 
of the DSU to submit status reports pertaining to this dispute. 
74. The representative of Japan said that the CDSOA remained operational as the distribution 
process continued.6  Japan urged the United States to stop th e illegal distributions and repeal the 
CDSOA, not just in form but in substance, so as to  resolve this dispute.  According to Article 21.6 of 
the DSU, the United States was under obligation to provide the DSB with a status report pertaining to this dispute. 
75. The representative of Brazil said that her country  thanked the EU and Japan for keeping this 
item on the DSB's Agenda.  As it had expressed in previous meetings, Brazil was of the view that the 
United States was under obligation to submit status re ports in this dispute until such time as no more 
disbursements were made pursuant to the Byrd Amen dment.  Only then woul d the issue be "resolved" 
within the meaning of the DSU and the United States  would be released from its obligation to provide 
status reports pertaining to this dispute. 
76. The representative of India said that his count ry thanked Japan and the EU for regularly 
bringing this issue before the DSB.  India shared  their concerns and endorsed their views.  As had 
been mentioned by previous speakers, the CD SOA remained fully operational, allowing for 
disbursements by the US Administration to its domestic  industry.  This affected the rights of Members 
and undermined the credibility of the dispute settleme nt mechanism.  India agreed with previous 
speakers that this item should continue to remain  under surveillance of the DSB until full compliance 
was achieved. 
77. The representative of Canada said that his country  wished to refer to its  previous statements 
made under this Agenda item. He said that Ca nada's position on this ma tter had not changed. 
78. The representative of Thailand said that her count ry thanked Japan and the EU for continuing 
to bring this item before the DSB.  Thailand ur ged the United States to cease the disbursements and 
fully implement the DSB's rulings and reco mmendations pertaining to this matter. 
79. The representative of the United States said that, as his country had explained at previous 
DSB meetings, the President had signed the Deficit Reduction Act into law on 8 February 2006.  That 
                                                      
6 See US Customs and B order Prot ection' s website at :  
http://www.cbp.gov/xp/cgov/trade/pr iority_trade/add_cvd/cont_dump/   WT/DSB/M/316 
 Page 17 
 
 
  law included a provision repealing the Continued Du mping and Subsidies Offset Act of 2000.  Thus, 
the United States had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes.  The United States reca lled, furthermore, that Members had acknowledged 
during previous DSB meetings that the 2006 Defic it Reduction Act did not permit the distribution of 
duties collected on goods entered after 1 October 2007.  With respect to comments regarding further 
status reports in this matter, as it had explained at  previous DSB meetings, the United States failed to 
see what purpose would be served by further submissi on of status reports repeating the progress the 
United States had made in the implementation of the DSB's recommendations and rulings.  Finally, 
with regard to the recent action of the EU that the EU had referred to at the present meeting, the 
United States continued to review this action.  As  the United States had observed previously, the DSB 
had only authorized the suspension of concessions or  other obligations as provided in the Award of 
the Arbitrator.  
80. The DSB took note of the statements. 
5. India – Measures concerning the importation of certain agricultural products 
(a) Request for the establishment of a panel by the United States (WT/DS430/3) 
81. The Chairman drew attention to the communication from the United States contained in 
document WT/DS430/3, and invited the representative of the United States to speak. 
82. The representative of the United States said th at his country, and other WTO Members, had 
raised concerns about India's avian influenza measu res for several years.  These measures prohibited 
the importation of various agricultural products in to India from those countries reporting outbreaks of 
Low Pathogenic Notifiable Avian Influenza ("LPAI").  Such restrictions on imports had no basis in 
science and consistent with the scientific evid ence, the guidelines of the World Organization for 
Animal Health (OIE) did not provide for bans on sh ipment of these products when a country reported 
LPAI.  In the US request for consultations, the Unite d States had raised its concerns that India's avian 
influenza measures appeared inc onsistent with India's obligati ons under the SPS Agreement and the 
GATT 1994.  While the United States appreciated Indi a's engagement in the consultations held on 16-
17 April 2012, unfortunately those consultations ha d failed to resolve the dispute.  As had been 
described in more detail in its panel request, the United States remained concerned that India's 
measures were inconsistent with a number of India's WTO obligations.  For example, it appeared that India's measures were not based on international guide lines, lacked scientific justification, were not 
based on a risk assessment, and applied requirement s that were not applied to India's own domestic 
production.  Therefore, the United States requested  that the DSB establish a panel to examine the 
matter set out in the US panel request, with standard terms of reference. 
83. The representative of India said that his country re gretted that the United States had chosen to 
request the establishment of a panel at the pr esent meeting instead of continuing with the 
consultations on this dispute.  The United St ates had cited a notification No. 1663(E), dated 
19 July 2011, issued by the Department of Animal Husbandry, Dairying and Fisheries of India in its 
request for the establishment of a panel alleging th at the provisions of the said notification were 
inconsistent with certain provisions of the SPS Agr eement.  India had had a constructive exchange of 
views with the United States during the consultations held on 16 and 17 April 2012 in Geneva.  India 
had demonstrated its sincerity in the consulta tions by bringing in a delegation which included 
technical experts.  During the consultations, India had responded to a number of questions raised by 
the United States and had also provided clar ifications on its domestic regime.   
84. During the consultations, India had clarified th at the restrictions on imports for certain 
agricultural products were contingent upon Member s' reporting Notifiable Avian Influenza (NAI).  
India had specifically clarified that the import rest rictions on certain agricultural products were not WT/DSB/M/316 
Page 18  
 
applicable to the United States since it had notified freedom from NAI to the OIE.  In fact, India had 
provided evidence of permission for imports of certa in products listed in the US panel request during 
the consultations.  At the conclu sion of the consultations, India ha d also showed its willingness to 
further pursue consultations including at the techni cal experts level in order to find appropriate 
solutions.  India's relevant measures identified by  the United States had the legitimate objective of 
protecting human, animal health and food safety and these were consiste nt with India's WTO 
obligations.  During the consultati ons, India had explained to the United States the scientific reasons 
for the challenged measures.  Thus, India considered  it unfortunate that the United States had chosen 
to request the establishment of a panel.  India believe d that it was premature to establish a panel at this 
stage and, therefore, it was not in a position to  accept the US request at the present meeting. 
85. The representative of the United States said that, in its statement, India had asserted that its 
measures did not currently prohibit imports from th e United States because the United States had not 
had an outbreak of LPAI in the last few months.  In that regard, the United States would note that 
neither the measures nor any other document stated this, and that the United States was not aware of 
any current US shipments.  But regardless of that issue, India did not dispute that its measures 
imposed nationwide import prohibitions on a Member as soon as it reported an outbreak of LPAI.  
Further, India had made clear that its measures rema ined in force and that India intended to maintain 
them.  The restrictions imposed by India's measure s continued to create a substantial impediment to 
trade, and the United States was requesting that  a WTO panel be established to examine the 
consistency of those measures with India' s obligations under the WTO Agreement.  
86. The DSB took note of the statements and agreed to revert to this matter. 
6. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/480) 
87. The Chairman drew attention to document WT/DSB/W/480, which contained additional 
names proposed for inclusion on the indicative list of governmental and non-g overnmental panelists, 
in accordance with Article 8.4 of the DSU.  He proposed that the DSB approve the names contained 
in document WT/DSB/W/480. 
88. The DSB so agreed. 
7. China – Measures affecting trading rights and distribution services for certain 
publications and audiovisual entertainment 
(a) Statement by the United States 
89. The representative of the United States, speaking under "Other Business", said that his 
country would like to call Members' attention to  a communication from the United States and China 
regarding a Memorandum of Understa nding (MOU) relating to films for th eatrical release in China.  
The communication had been circulated as document WT/DS363/19.  The MOU constituted 
important progress toward a resolution of the dispute on:  "China - Measures Affecting Trading Rights and Distribution Services for Certain Publi cations and Audiovisual Entertainment Products" 
(DS363).  The United States was, however, surprised  and disappointed that China had not submitted a 
status report in connection with this dispute for the present DSB meeting.  While, as indicated above, 
China had made significant progress in its implementation in this dispute, the United States had repeatedly made clear that China had not complete d the implementation process.  And, indeed, China 
had not claimed that it had taken all actions necessar y to comply in this dispute.  Accordingly, the 
United States had engaged in discussions with China regarding its future submission of status reports, 
as provided for in Article 21.6 of the DSU.  WT/DSB/M/316 
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  90. The representative of China said that her country took note of the views expressed by the 
United States at the present meeting but did not agr ee that China still needed to submit status reports 
in this dispute.  Regarding the implementation of the DSB's recommendations and rulings in this 
dispute, as reported by the United States, China a nd the United States had arrived at a Memorandum 
of Understanding on films for theatrical release, whic h had been circulated to all Members.  For every 
other measure subject to the DSB's recommendations a nd rulings in this disput e, China had taken all 
necessary steps to fully comply with its obliga tions.  Thus, China had fully complied with its 
obligations under Article 21.6 of the DSU and this was also consistent with the current practice of 
Members.  China believed that it did not have any ob ligation to provide further status reports in this 
dispute.  However, if the United States had any fu rther questions or doubts, China would be happy to 
have bilateral discussions on this matter. 
91. The representative of the United States said th at, in response to China's comments, his 
country would note that the recently concluded M OU did not represent a final resolution of the film-
related issues in this case.  The MOU did represent important progress, however, and the United States expected to continue  working with China on  these issues.  In add ition, with respect to 
products other than films, China's implementation was not yet complete.   
92. The DSB took note of the statements. 
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