RESTRICTED  
  
WT/DSB/M/360  
 
27 May 2015  
(15-2740)  Page: 1/18  
Dispute Settlement Body 
22 April 2015    
 
 MINUTES OF MEETING 
HELD IN THE CENTRE WILLIAM RAPPARD 
ON 22 APRIL 2015 
Chairman: Mr. Harald Neple (Norway) 
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 ................................................................................................................. .. 6 
D.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by  the European  Union ..................................................................... 7  
E.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status 
report by the Un ited States ................................................................................................ 8  
F.  European Communities – Measures prohibiting the importation and marketing of seal 
products: Status report by  the European  Union ..................................................................... 8  
2   UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 
2000: IMPLEMENTATION OF THE RECOMME NDATIONS ADOPTED BY THE DSB ................ 9  
A.  Statements by the Eu ropean Union and Japan .................................................................. 9  
3   CHINA – CERTAIN MEASURES AFFECT ING ELECTRONIC PAYMENT SERVICES ........... 10  
A.  Statement by th e United States .................................................................................... 10 
4   THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPI NES ................................................................................................................. 1 1 
A.  Statement by the Philippines ........................................................................................ 11 
5   INDONESIA – IMPORTATION OF HO RTICULTURAL PRODUCTS, ANIMALS AND 
ANIMAL PRODUCTS ........................................................................................................ 12  
A.  Request for the establishmen t of a panel by  New Zealand ................................................. 12 
6   INDONESIA – IMPORTATION OF HO RTICULTURAL PRODUCTS, ANIMALS AND 
ANIMAL PRODUCTS ........................................................................................................ 12  
A.  Request for the establishment of  a panel by the United States ........................................... 12 
7   CHINA – MEASURES RELATED TO DEMONSTRATION BASES AND COMMON 
SERVICE PLATFORMS PROGRAMMES .............................................................................. 13  
A.  Request for the establishment of  a panel by the United States ........................................... 13 WT/DSB/M/360 
 
- 2 - 
 
 8   UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN SHRIMP FROM 
VIET NAM ...................................................................................................................... . 15 
A.  Report of the Appellate Bo dy and Report of the Panel ....................................................... 15 
9   PROPOSED NOMINATIONS FOR THE INDICATIVE LIST OF GOVERNMENTAL 
AND NON-GOVERNMENTA L PANELISTS .......................................................................... 18  
10   STATEMENT BY THE CHAIRMAN REGARDING SOME MATTERS RELATED TO 
THE APPELLATE BODY .................................................................................................... 18  
  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.148) 
 B.  United States – Anti-dumping measures on cert ain hot-rolled steel products from Japan: Status 
report by the United States (WT/DS184/15/Add.148) 
 C.  United States – Section 110(5) of the US Copyright Act: Status report by the United States 
(WT/DS160/24/Add.123) 
 D.  European Communities – Measures affecting the approval and marketing of biotech products: Status report by the European Union (WT/DS291/37/Add.86) 
 
E.  United States – Anti-dumping measures on cert ain shrimp from Viet Nam: Status report by the 
United States (WT/DS404/11/Add.34) 
 
F.  European Communities – Measures prohibiting the importation and marketing of seal products: 
Status report by the European Union (WT/DS400/16/Add.1 – WT/DS401/17/Add.1) 
 
 1.1.  The Chairman noted that there were six sub- items under this Agenda item concerning status 
reports submitted by delegations pursuant to Articl e 21.6 of the DSU. He recalled that Article 21.6 
required that: "Unless the DSB decides otherw ise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months following the date of establishment of the reasonab le period of time and shall remain on the DSB's 
Agenda until the issue is resolved". He invited delegations to provide up-to-date information about 
compliance efforts and to focus on new developments, suggestions and ideas on progress towards the resolution of disputes. He also wished to remind delegations that, as provided for in Rule 27 of 
the Rules of Procedure for DSB meetings, "Representatives should make every effort to avoid the 
repetition of a full debate at each meeting on any issue that has already been fully debated in the past and on which there appears to have been no change in Members' positions already on record". With these introductory remarks, he turn ed to the first status report under this Agenda 
item. 
A.  United States – Section 211 Omnibus Appr opriations Act of 1998: Status report by 
the United States (WT/DS176/11/Add.148) 
1.2.  The Chairman drew attention to docu ment WT/DS176/11/Add.148, 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 9 April 2015, in accordance with Article 21.6 of the DSU. Several bills introduced in 
the current US Congress would repeal Section 211. Other previously introduced legislation would modify Section 211. The US Administration would co ntinue to work on solutions to implement the 
DSB's recommendations and rulings and resolve this matter with the EU. WT/DSB/M/360 
 
- 3 - 
 
 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 noted that the 148th US status report 
contained the same information each month stating that: "the relevant legislation has been 
introduced in the current 114th session of the United States Congress" and that "the United States will continue to work on a solution that would resolve this matter". At the 23 February 2015 DSB 
meeting, the United States had made reference to four bills aimed at resolving this dispute and 
possibly even repealing Section 211. These bills were: H.R. 274, H.R. 403, H.R. 635 and H.R. 735. These four bills had been submitted to the US Hous e of Representatives during the first session of 
the 114th Congress in January and February 2015, and they did contain positive measures to 
settle this dispute. However, there was no real possibility that any of these bills would become law 
or influence whether Section 211 would remain in force. Furthermore, Cuba noted that, on 17 March 2015, Bill S–757, aimed at modifying Section 211, had been submitted to the 
US Senate. The purpose of that bill was to modify certain terms of the legislation so as to comply 
with the DSB's recommendations regarding the inconsistency of Section 211 with the national-treatment principle. So, minimal efforts were made by the US legislators to maintain 
Section 211 rather than to repeal it. In Cuba's view, following President Barack Obama's appeal to 
Congress to eliminate the blockade against Cuba , the United States must work towards the 
definitive repeal of Section 211. In that regard, Cu ba wished to highlight that, in his address to the 
Seventh Summit of the Americas in Panama on 11 April 201, President Raul Castro Ruz stated the 
following: "We have publicly expressed to President Obama, who was also born under the blockade 
policy, our appreciation for his brave decision to engage the US Congress in a debate to put an end to that policy. Up to this day, Cuba has bo rne the full force of the economic, commercial and 
financial blockade, which has brought damage and sh ortages to our people and stands as the main 
obstacle to our economic development. It is a violation of international law, and its extraterritorial scope affects the interests of all States. One thing is to establish diplomatic relations, but the 
blockade is a different thing. I therefore ask you all to continue, as indeed we must, to support the 
fight against the blockade". Once again, Cuba called for the immediate repeal of Section 211 and an end to the adverse effects caused by the economic, commercial and financial blockade policy against Cuba. Cuba hoped that the United States would recognize the serious implications of this 
prolonged non-compliance with the DSB's decision  and the negative precedent that this was 
setting. Such non-compliance undermined the fairness of the WTO dispute settlement system. 
1.6.  The representative of the Plurinational State of Bolivia said that his country noted the positive 
developments in bilateral relations between the United States and Cuba. However, the 
United States' 13 years of failure to comply with the DSB's recommendations and rulings in this dispute undermined the credibility of the multilateral trading system and adversely affected the 
economic interests of a developing-country Member. Bolivia was concerned about the systemic 
effects of non-compliance in this dispute. In that regard, Bolivia reiterated its call on the United States to comply with the DSB's recommendations and to remove the restrictions imposed under Section 211. Bolivia supported the statement made by Cuba at the present meeting. 
1.7.  The representative of the Bolivarian Repub lic of Venezuela said that her country supported 
the statement made by Cuba at the present meeting. Venezuela, once again, expressed concern 
that the US status report did not contain any info rmation on progress in the implementation of the 
DSB's recommendations and rulings in this dispute.  Non-compliance in this dispute affected the 
interests of a developing-country Member and was inconsistent with the principle of prompt compliance with the DSB's recommendations and rulings. Furthermore, this non-compliance 
undermined the credibility of the WTO and the multilateral trading system as well as its ability to 
resolve disputes. It also set a negative precedent. Venezuela regretted that the WTO dispute settlement system was negatively affected by th e continued lack of compliance by one Member. 
Venezuela supported Cuba and strongly cond emned the US conduct. Venezuela urged the 
United States to repeal Section 211 in order to resolve this dispute. 
1.8.  The representative of Zimbabwe said that his country welcomed the US status report. 
Zimbabwe, once again, regretted to note that the United States had not provided any substantive 
information on progress in this dispute. As Zimbabwe and other delegations had continuously 
stated in the past 13 years, this lack of progress was inconsistent with the principle of effective and prompt implementation of the DSB's rulings and recommendations and affected the interests 
of a developing-country Member. Zimbabwe was al so concerned that this disregard for the DSB's WT/DSB/M/360 
 
- 4 - 
 
 recommendations and rulings was seriously undermining the overall integrity of the dispute 
settlement system. Zimbabwe joined previous speakers in supporting Cuba and urging the United States to comply with the DSB's recommendations and rulings. 
1.9.  The representative of Nicaragua said that his country supported the statement made by Cuba 
and, once again, expressed its concern about th e prolonged situation of non-compliance in this 
dispute. Nicaragua noted that the US status report did not contain any new information on progress in this dispute, which had been ongoing for 13 years. The US failure to comply with the 
DSB's recommendations and rulings affected the economic interests of a country with a small 
economy and undermined the dispute settlement system, a fundamental pillar of the WTO. 
Nicaragua joined other Members in urging the United States to adopt the necessary measures to comply with the DSB's recommendations and rulings. 
1.10.  The representative of El Salvador said that her country thanked the United States for its 
status report. El Salvador was concerned about the lack of compliance with the DSB's 
recommendations and rulings in this dispute, which affected the interests of a country with a small 
and vulnerable economy. El Salvador urged the United States to comply with the DSB's 
recommendations and rulings. 
1.11.  The representative of Ecuador said that her country supported the statement made by 
Cuba. Ecuador noted, once again, that Article 21 of the DSU referred specifically to the 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 and promptly comply with the DSB's recommendations and rulings by repealing 
Section 211. 
1.12.  The representative of Mexico said that since the circumstances in this dispute had not 
changed and non-compliance continued, his country wished to refer to its previous statements 
made under this Agenda item. 
1.13.  The representative of Jamaica said that her country thanked Cuba, the United States and 
the EU for their statements, updates and the US status report under this Agenda item. Jamaica 
noted that the circumstances of this dispute had not changed and that no progress had been 
reported since the previous DSB meeting. As in past DSB meetings, Jamaica wished to join the previous speakers in expressing its concern abou t the continued US failure to implement the DSB's 
recommendations adopted on 2 February 2002 in this dispute. The protracted US failure to take 
the necessary steps to comply with its obligations under the DSU provisions was incompatible with 
the requirement for prompt and effective implemen tation of the DSB's decisions. This was of 
particular concern in cases such as this where the failure to meet an obligation had a negative 
impact on the economic interest of a developing-country Member. Jamaica reiterated its deep 
concern about the systemic implications of any disregard for DSB decisions. Contrary to what may have been reported by some Members, such disr egard could undermine the overall integrity of the 
dispute settlement system, which remained a key p illar of the WTO. Jamaica believed that, after 
13 years since the adoption of the DSB's recommend ations in this dispute, it was more than 
reasonable for Members to expect that this matte r would be resolved and removed from the DSB's 
Agenda. 
1.14.  The representative of Uruguay said that his country thanked the United States for its status 
report and Cuba for its statement and update. Uruguay regretted that there was no new 
information on progress in this dispute, which had lasted for 13 years. While there was some hope, 
the situation remained the same. 
1.15.  The representative of Viet Nam said that her country thanked the United States for its 
status report and the EU for its statement. Viet Nam noted that the US status report did not 
contain any new information. Viet Nam supported the statements made by Cuba and the previous 
speakers expressing concern about the lack of progress in this dispute. Viet Nam urged the United States to step up its efforts and comp ly with the DSB's recommendations and rulings. 
1.16.  The representative of Peru said that her country thanked the United States for its status 
report. Peru noted that, as in any other dispute, the parties to this dispute, needed to take all 
necessary measures, within a reasonable period of time, to implement the DSB's recommendations WT/DSB/M/360 
 
- 5 - 
 
 and rulings. Peru joined the previous speakers  who had expressed concern about the lack of 
progress in the implementation of the DSB's recommendations and rulings in this dispute, in particular since the interests of a developing-country Member were affected. 
1.17.  The representative of Trinidad and Tobago said that her country thanked the United States 
for its status report and Cuba for its update. Trin idad and Tobago, once again noted that there had 
been no positive movement towards prompt compliance with the DSB's recommendations and rulings in this dispute. Non-compliance with th e DSB's recommendations and rulings affected the 
root of an effective WTO dispute settlement system. As a result, such non-action created a 
negative impact, in particular on the economic development of Cuba and other countries with small and vulnerable economies. In that regard, Tr inidad and Tobago supported the call for prompt 
compliance with the DSB's rulings and recommendations under Article 21.1 of the DSU. 
1.18.  The representative of India said that his country thanked the United States for its status 
report. India also noted Cuba's statement regarding the steps that needed to be taken to comply 
with the DSB's recommendations and rulings. Indi a was concerned about the lack of progress in 
the implementation of the DSB's recommendations in this dispute even after more than a decade 
of surveillance by the DSB. At the 26 March 2013 DS B meeting, the then Chairman of the DSB had 
noted with concern the habit of submission of status reports that generally provided very limited 
information about specific efforts undertaken to achieve compliance. India joined the previous 
speakers in renewing its systemic concerns about the continuation of non-compliance as this undermined the confidence the Members reposed in a predictable, rules-based multilateral system, 
especially in the context of a developing-country Member seeking compliance. India noted that, as 
Members recognized, continued non-compliance by Members eroded the confidence and the 
credibility of the WTO dispute settlement system. India urged the United States to report compliance to the DSB without further delay. 
1.19.  The representative of China said that his country thanked the United States for its status 
report and the statement made at the present me eting. The prolonged situation of non-compliance 
in this dispute was highly inconsistent with the principle of prompt compliance required under the 
DSU provisions, in particular since the interests of a developing-country Member were affected. 
China urged the United States to implement the DSB's rulings and recommendations without any further delay. 
1.20.  The representative of the Dominican Republic said that his country thanked the 
United States for its status report on the step s taken to comply with the DSB's recommendations 
and rulings in this dispute regarding the inco nsistency of Section 211 with Article 21 of the 
TRIPS Agreement. In that regard, the Dominican Re public urged the United States to step up its 
internal procedures in order to comply with the DSB's recommendations and rulings. This 
prolonged situation of non-compliance undermined the credibility of the DSB. 
1.21.  The representative of Argentina said that his country thanked the United States for its 
status report. Argentina, once again, regretted that the US status report did not contain any new 
information on progress in this dispute. As Argentina had stated repeatedly in the past, this lack of progress was inconsistent with the principle of prompt and effective compliance with the DSB's 
recommendations and rulings, in particular since the interests of a developing-country Member 
were concerned. Argentina, therefore, supported Cuba and the EU, and urged the United States to 
adopt the necessary measures to finally resolve this matter. 
1.22.  The representative of the Russian Federation  said that his country regretted that it had to, 
once again, express its concern about the lack of progress in this long-standing dispute. The lack 
of compliance in this dispute attracted the attention of many Members as an example of non-compliance with, and disregard for, the DSB's recommendations and rulings. Russia believed 
that due and timely implementation of the DSB's recommendations and rulings by all Members 
was essential for maintaining mutual trust and credibility of the WTO system. As it had previously stated, Russia urged the parties to this dispute to address the outstanding issues and to resolve this dispute as soon as possible. 
1.23.  The representative of Brazil said that his country thanked the United States for its status 
report in this dispute. Brazil regretted that the US status report did not contain any information on 
concrete progress achieved in this dispute. Brazil shared the concerns expressed by the EU, Cuba WT/DSB/M/360 
 
- 6 - 
 
 and other delegations regarding the lack of compliance in this dispute. Brazil urged the 
United States, in light of the new political developments with Cuba, to adopt meaningful measures towards compliance. Such compliance would certainly strengthen the multilateral rules. 
1.24.  The representative of Angola said that his country thanked the United States for its status 
report regarding Section 211. Angola also welcomed the recent progress in relations between Cuba 
and the United States. Angola noted with concern that this dispute had remained on the DSB's Agenda for 13 years without progress and continued to adversely affect Cuba, a small and 
vulnerable country. Angola had repeatedly expressed its concerns in past DSB meetings. Since the 
situation in this dispute had not improved, Angola believed that it was its right to continue to reiterate the need to find a fair solution to this dispute so as to safeguard the credibility of the dispute settlement system, a key pillar of the multilateral trading system. Angola supported Cuba 
and, once again, encouraged the parties to this dispute to find a mutual solution to this dispute as 
soon as possible. Angola urged the United States to show its determination to resolve this matter. 
1.25.  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 Un ited States (WT/DS184/15/Add.148) 
1.26.  The Chairman drew attention to document WT/DS184/15/Add.148, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
1.27.  The representative of the United States said that his country had provided a status report in 
this dispute on 9 April 2015, in accordance with Article 21.6 of the DSU. The United States had 
addressed the DSB's recommendations and rulings with respect to the calculation of anti-dumping 
margins in the hot-rolled steel anti-dumping duty investigation at issue. With respect to the DSB's 
recommendations and rulings that had yet to be addressed, the US Administration would work with the US Congress with respect to appropriate statutory measures that would resolve this 
matter. 
1.28.  The representative of Japan said that his country thanked the United States for its 
statement and its status report submitted on 9 April 2015. Japan, once again, requested that this 
issue be resolved as soon as possible. 
1.29.  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.123) 
1.30.  The Chairman drew attention to document WT/DS160/24/Add.123, which contained the 
status report by the United States on progress in the implementation of the DSB's 
recommendations in the case concerning Section 110(5) of the US Copyright Act. 
1.31.  The representative of the United States said that his country had provided a status report in 
this dispute on 9 April 2015, in accordance with Article 21.6 of the DSU. The US Administration 
would continue to confer with the European Union, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter. 
1.32.  The representative of the European Union said 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 made under this Agenda item regarding its wish to resolve this dispute as soon as 
possible. 
1.33.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. WT/DSB/M/360 
 
- 7 - 
 
 D.  European Communities – Measures affect ing the approval and marketing of biotech 
products: Status report by the Eu ropean Union (WT/DS291/37/Add.86) 
1.34.  The Chairman drew attention to document WT/DS291/37/Add.86, which contains the status 
report by the European Union on progress in the implementation of the DSB's recommendations in 
the case concerning measures affecting the approval and marketing of biotech products. 
1.35.  The representative of the European Union said that, in recent meetings, the EU had already 
reported on authorization decisions and other actions towards approval decisions taken up to 
February 2015. Four draft decisions for the rene wal of the authorization of GM food and feed 
products had been voted in the Standing Committee on 16 March 2015 and in the Appeal Committee on 31 March 2015
1. The Committees had rendered no opinion. It was now for the 
European Commission to take a decision on these authorisations. Two draft authorization decisions 
for non-food and non-feed uses had been voted in the Regulatory Committee on 16 March 20152 
and in the Appeal Committee on 31 March 2015. The Committees had rendered no opinion. It was now for the European Commission to take a decision on these authorisations. The products just 
referred to were identified in the written versio n of the EU statement. The other applications 
continued to be assessed by EFSA and processed by the European Commission. As stated many times before, the EU recalled that the EU's approval system was not covered by the DSB's 
recommendations and rulings. 
1.36.  The representative of the United States said that his country thanked the EU for its status 
report and its statement made at the present meet ing. The EU measures affecting the approval of 
biotech products were seriously disrupting trade in  agricultural products between the United States 
and the EU. As the United States had explained at recent DSB meetings, the EU had failed to 
approve a single new biotech product since November 2013. Nineteen product applications currently pending before the EU College of Commiss ioners were awaiting final, political approval. 
Each one of these products had received a positi ve safety evaluation from the EU's scientific 
authority. Further, the United States was aware of  reports indicating that the EU was considering a 
member State "opt-out" of the EU's biotech approvals such that a member State could ban 
importation of a product. The United States was concerned about the relationship of such a 
proposal to the EU's obligations under the SPS Agreement.
3 The United States recalled that every 
biotech product approved at the EU level had been subject to a full, positive safety assessment by the EU's own scientific authority. In that light, the United States had difficulty understanding how 
an EU member State ban on a biotech product approved by the EU could, as required by the 
SPS Agreement, be based on scientific principles and a risk assessment appropriate to the circumstances and maintained with sufficient scientific evidence. The United States was further 
concerned with this proposal's ultimate effects on trade in biotech products. The United States 
urged the EU to end the unwarranted delays in biotech approvals and to ensure that any revisions to its measures affecting the approval of biotech products would not result in breaches of WTO 
rules. 
1.37.  The representative of the European Union said that, in response to US comments, the EU 
wished to inform the DSB that Directive 2015/41 2 of the EP and of the Council regarding the 
possibility for the member States to restrict or prohibit the cultivation of GMOs in their territory 
had been published in the Official Journal of the European Union  on 13 March 2015 and that it had 
entered into force on 2 April 2015. As the EU ha d previously stated, the aim of the Commission 
proposal as discussed in the legislative process was to facilitate decision-making on GMOs for 
cultivation in the EU. The new law would allow an individual member State to request the applicant 
to remove part of or all its territory from the geographical scope of the application (Option 1). When a member State had not made a request under Option 1, or when the applicant had not 
adjusted the scope of the application, after auth orization, the relevant member State could adopt 
a national measure to restrict or ban the cultivation of the concerned GMOs, or of a group of GMOs defined by crops or traits, on its territory (Optio n 2, so-called "opt out" measure). The reasons for 
opting out must be other than health risk or en vironmental risk as assessed by the European Food 
and Safety Authority. Member States must respect the international commitments, notably the 
WTO commitments when justifying their reasons for an opt-out. Thus, the proposal would not 
                                               
1 MON531 cotton, MON1445 cotton, MON531xMON1445 cotton, MON15985 cotton. 
2 Carnations IFD-25958-3 and IFD-26407-2 (cut flowers). 
3 Agreement on the Application of Sa nitary and Phytosanitary Measures. WT/DSB/M/360 
 
- 8 - 
 
 affect the core features of the authorization system for GMOs' cultivation. In particular, the risk 
assessment done by EFSA would remain unchanged. 
1.38.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
E.  United States – Anti-dumping measures on certain shrimp from Viet Nam: Status 
report by the United States (WT/DS404/11/Add.34) 
1.39.  The Chairman drew attention to document WT/DS404/11/Add.34, 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. 
1.40.  The representative of the United States said that his country had provided a status report in 
this dispute on 9 April 2015, in accordance with Article 21.6 of the DSU. As the United States had 
noted at past DSB meetings, in February 2012, the US Department of Commerce had modified its procedures in a manner that addressed certain findings in this dispute. The United States would 
continue to consult with interested parties as it worked to address the other recommendations and 
rulings of the DSB. 
1.41.  The representative of Viet Nam said that her country thanked the United States for its 
statement and its status report on this dispute. Viet Nam was, once again, pleased to address the 
implementation of DS404. As Members were aware,  the DSB would consider the adoption of the 
Panel and Appellate Body Reports in the DS429 disp ute under Item 8 of the Agenda of the present 
meeting. In that regard, Viet Nam would address the DS429 dispute separately. However, those 
actions which the Panel in the DS404 dispute had found to be WTO-inconsistent should be 
addressed in the context of US implementation of the DS429 dispute. Specifically, the WTO-inconsistent margins of dumping found in each of the reviews at issue in DS404 must be 
revised based on a WTO-consistent methodology in order for the United States to take the 
WTO-consistent remedial action required in the DS429 dispute. Specifically, this includes conducting a redetermination of the sunset review on frozen warmwater shrimp from Viet Nam 
and re-examining individual company requests for revocations based on the sustained absence of 
dumping. Viet Nam believed that the United States  was prepared to fully implement in the DS404 
dispute in that context and looked forward to be ing able to address the DSB after the reasonable 
period of time had elapsed for implementation of DS429 and announce that DS404 had been fully 
implemented. 
1.42.  The representative of Cuba said that her country supported the statement made by 
Viet Nam. Cuba urged the United States to comp ly with the DSB's recommendations and rulings. 
1.43.  The representative of the Bolivarian Repub lic of Venezuela said that her country supported 
the statement made by Viet Nam. Venezuela emphasized the need for prompt and effective 
compliance with the DSB's recommendations and rulings and urged the United States to take the 
necessary measures to resolve this matter. 
1.44.  The representative of the United States said that the Reports in the DS429 dispute were 
subject to a different Agenda item and, like Viet Nam, the United States would discuss this matter 
when that item would be considered. 
1.45.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
F.  European Communities – Measures prohib iting the importation and marketing of seal 
products: Status report by the Eu ropean Union (WT/DS400/16/Add.1 – 
WT/DS401/17/Add.1) 
1.46.  The Chairman drew attention to document WT/DS400/16/Add.1 – WT/DS401/17/Add.1, 
which contained the status report by the European Union on progress in the implementation of the 
DSB's recommendations in the case concerning the EU measures prohibiting the importation and marketing of seal products. WT/DSB/M/360 
 
- 9 - 
 
 1.47.  The representative of the European Union said that the EU continued to work on the 
implementation of the DSB's recommendations and rulings in this dispute and was making its best 
efforts to complete the implementation before the expiry of the agreed reasonable period of time 
on 18 October 2015. As already reported at the previous DSB meeting, the European Commission 
had submitted a proposal to the EU legislators, the Council and the Parliament, for amending those 
aspects of EC Regulation No. 1007/2009 on trade in seal products that had been found to be discriminatory. In particular, the Commission proposed to remove the exception for maritime 
resource management hunts and provide for certain modifications to the exception of indigenous 
communities. The proposal continued to be discuss ed by the legislators. Once the amendment to 
the Regulation on trade in seal products was adopted, subsequent changes would be made to Commission regulation No. 737/2010. As already reported at the previous DSB meeting, the 
European Union was confident that the very constructive cooperation with Canada on the access of 
Canadian Inuit products to the EU market would soon result in the setting up of the necessary attestation system for Canadian Inuit to start usin g the IC exception. The EU wished to recognize 
the presence at the present meeting of Ms Patricia  Holmes who was a panelist in this dispute. The 
EU thanked her and all others that had helped resolve this complex and sensitive dispute. On a more general note, the EU wished to underline th e importance of those individuals who agree to 
serve as panelists particularly during a period of high workload as was currently being 
experienced. 
1.48.  The representative of Canada said that her country thanked the EU for its second status 
report in this dispute. As the EU had noted, the parties continued to engage to operationalize the 
indigenous exemption, with the objective of ensuring practical market access for Canadian 
aboriginal seal products. Under the existing regula tions, Canadian officials had recently submitted 
a formal application for the Nunavut Territorial Government, one of Canada's northern territories, 
to become a recognised body. Canada hoped that Nunavut would achieve this status in a timely 
manner. Other applications could follow. Canada reiterated its belief that its seal harvests were humane, sustainable and well-regulated activities that provided an important source of food and 
income for coastal and Inuit communities. Canada expected that any amendments to the EU Seal 
Regime would be implemented consistently with the DSB's recommendations and rulings and in a manner that did not adversely affect Inuit and other indigenous communities. 
1.49.  The representative of Norway said that hi s country thanked the EU for its status report on 
the implementation of the DSB's recommendations and rulings in this dispute. Norway followed 
with interest the discussions in the European Par liament on the proposal for an amendment of the 
Basic Seal Regulation. In that regard, Norway reiterated its view that Norway's seal hunt was 
well-regulated, was conducted in a humane manner and contributed to the sustainable 
management of its living marine resources. Norway was disappointed that these factors were not taken into consideration in the proposed amendment. Norway would continue to monitor the 
legislative process, and expected that the EU would fully implement the DSB's recommendations 
and rulings within the agreed reasonable period of time. Like the EU, Norway also welcomed the presence, at the present meeting, of on e of the panelists in this dispute. 
1.50.  The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 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 Unio n said that, once again, the EU requested the 
United States to stop transferring anti-dumping and countervailing duties to the US industry. Every 
disbursement still made was clearly an act of  non-compliance 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. WT/DSB/M/360 
 
- 10 - 
 
 2.3.  The representative of Japan said that si nce the distributions under the CDSOA continued, 
Japan once again urged the United States to stop the illegal distributions in order to resolve this 
long-standing dispute. As it had stated at previous DSB meetings, Japan was of the view that the United States was under an 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, as one of the parties to these disputes, 
thanked the EU and Japan for keeping this item on  the DSB's Agenda. Brazil was of the view that 
the United States was under an obligation to discontinue disbursements made pursuant to the 
Byrd Amendment. The fact that the current disbursements may be related to investigations initiated before the repeal of the Act in February  2006 did not mean that they were excluded from 
the US compliance obligations. Since the DS B had confirmed the illegal nature of the 
disbursements under the Byrd Amendment more than 10 years ago, any disbursement to 
petitioners must be discontinued. Only then would compliance be achieved in this dispute. 
2.5.  The representative of India said that his country shared the concerns of the EU and Japan. 
The WTO-inconsistent disbursements continued unabated to the US domestic industry. The latest 
data available4 in the Annual Report of the US Customs and Border Protection for 2014 fiscal year 
indicated that about US$70 million were disbursed to the US domestic industry. In India's view, 
this item should remain on the DSB's Agenda until such time that full compliance was achieved in 
this dispute. 
2.6.  The representative of Canada said that her country thanked the EU and Japan for keeping 
this item on the DSB's Agenda. Canada agreed with the EU and Japan that the Byrd Amendment 
continued to be subject to the DSB's surveillance unt il the United States ceased to administer it. 
2.7.  The representative of the United States said that, as his country had noted at previous DSB 
meetings, the Deficit Reduction Act, which included a provision repealing the Continued Dumping 
and Subsidy Offset Act of 2000, was enacted into law in February 2006. Accordingly, the 
United States had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes. Furthermore, the United States recalled that the EU, Japan, and other 
Members had acknowledged that the Deficit Reduction Act did not permit the distribution of duties 
collected on goods entered after 1 October 2007 , more than seven-and-a-half years ago. The 
United States therefore did not understand the pu rpose for which the EU and Japan had inscribed 
this item on the Agenda of the present meeting.  With respect to the comments regarding further 
status reports in this matter, as it had already explained at previous DSB meetings, the 
United States failed to see what purpose would be served by further submission of status reports which would repeat, again, that the United States had taken all actions necessary to implement 
the DSB's recommendations and rulings in these disputes. Indeed, as these very WTO Members 
had demonstrated repeatedly when they were a responding party in a dispute, there was no obligation under the DSU to provide further status reports once a Member announced that it had 
implemented those DSB recommendations and rulings, regardless of whether the complaining 
party disagreed about compliance. 
2.8.  The DSB took note of the statements. 
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 regarding China's ongoing failure to bring its measures into conformity with its WTO 
obligations more than one and a half years after th e expiration of the reasonable period of time. 
Since the United States had begun raising this matter in the DSB, and despite repeated 
interactions between the United States and China, the situation remained unchanged. China continued to maintain a ban on foreign suppliers of electronic payment services ("EPS") by 
                                               
4 http://www.cbp.gov/ sites/default/files/ documents/FY2014%20Annual%20Report%20wHolds.pdf WT/DSB/M/360 
 
- 11 - 
 
 imposing a licensing requirement on them, while at the same time providing no procedures for 
foreign suppliers to obtain that license. Seve ral months had now passed since China's State 
Council had announced that China would open the EPS market to qualified suppliers, but no action had yet been taken. China had yet to adopt any procedures under which foreign enterprises could 
apply for licenses, and, as a result, foreign suppliers remained barred from operating in China. 
China Union Pay, therefore, continued to operate as the only EPS supplier in China's domestic market. To comply with its WTO obligations, China must adopt the regulations necessary for 
allowing foreign EPS suppliers to operate in China. The United States, therefore, called on China to 
follow through on the announcement by the State Council and to issue the necessary regulations 
immediately, so that China may come into compliance with its WTO obligations. 
3.3.  The representative of China said that his country regretted that the United States had, once 
again, brought this matter before the DSB. China referred to its statements made under this 
Agenda item at previous DSB meetings. China had taken all necessary actions and had fully implemented the DSB's recommendations and rulings in this dispute. China had also further 
explained that the actions sought by the United States were beyond the scope of China's 
compliance obligations. China hoped that the United States would reconsider the systemic implications of its position. 
3.4.  The DSB took note of the statements. 
4  THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES 
A.  Statement by the Philippines 
4.1.  The Chairman said that this item was on th e Agenda of the present meeting at the request of 
the Philippines. He then invited the repr esentative of the Philippines to speak. 
4.2.  The representative of the Philippines said th at Thailand had repeatedly informed the DSB that 
it had done all it was required to do to secure full compliance with the DSB's recommendations and 
rulings in this dispute. Nonetheless, a series of outstanding compliance issues remained. The Philippines, once again, wished to highlight two of these issues because their systemic impact on 
the DSB's rulings, and the Customs Valuation Agreement was of particular importance. First, the 
Philippines remained deeply concerned about the Thai Attorney General's decision to prosecute an importer of Philippine cigarettes for alleged und er-declaration of customs value. The WTO panel 
had ruled that Thailand enjoyed no legitimate grounds to reject the customs values that Thailand 
now sought to criminalize. In addition, Thai Cust om's Board of Appeal (or "BoA") had explicitly 
accepted those customs values in a ruling heralded by Thailand itself as a measure taken to comply. Thailand's criminal prosecution directly undermined the implementation obligation placed 
on it by the DSB's recommendations and rulings. In  systemic terms, there could be no doubt that 
the disciplines of the Customs Valuation Agreemen t applied, whenever a WTO Member engaged in 
the customs valuation of goods, including in th e enforcement of domestic customs provisions. 
Despite this clear WTO inconsistency, in its statement made at the previous DSB meeting, Thailand 
had said that it "will take steps to ensure" the WTO-consistency of the criminal prosecution. While 
it appreciated the sentiment behind this statemen t, the Philippines was yet to receive information 
about the basis for the apparent finding of under-declaration since the decision to prosecute the 
importer had been taken over a year ago. The Philippines wanted to understand precisely what 
steps Thailand would take to ensure the WTO consistency of the criminal prosecution. The Philippines requested Thailand to deliver on this assurance expeditiously. 
4.3.  Second, the Philippines was also concerned about a separate Thai BoA ruling rejecting the 
transaction value for 210 entries from Indonesia that were covered by the DSB's rulings and recommendations in the original proceedings in this dispute. Thailand had submitted the BoA 
ruling as a declared measure taken to comply. However, as the Philippines had previously noted, 
the ruling was riddled with WTO-inconsistencies, and set out a methodology that put Thailand on the wrong course regarding customs valuation of related party transactions. In addition, as explained at the previous DSB meeting, the posi tion that Thai Customs had recently taken in 
pending domestic appeal proceedings concerning the BoA ruling was disturbing. Thai Customs had 
explicitly advised the Thai court that it did not need to follow the WTO ruling because it supposedly bound only the Philippines, as the party that had brought the dispute, and not Thailand. The WT/DSB/M/360 
 
- 12 - 
 
 Philippines reiterated its appeal to Thailand to rise to its role as a responsible and important WTO 
Member and to prove that its commitment to full compliance was real. If that was not possible, the Philippines would reserve its right to re turn to dispute settlement procedures. 
4.4.  The representative of Thailand said that her country noted the Philippines' statement made at 
the present meeting. As stated previously in it s status reports and at previous DSB meetings, 
Thailand had taken all actions necessary to implement the DSB's recommendations and rulings in this dispute. This was without prejudice to an y other rights of the Philippines under the DSU 
provisions. With respect to the ongoing criminal matters, the outcome of the pending 
investigations should not be prejudged. Thailand would take necessary steps to ensure that all actions that may be taken would be consistent with its rights and obligations under the WTO law. Thailand reiterated that it had been, and remain ed, available to discuss the specific concerns of 
the Philippines bilaterally, including those not addressed by the DSB's recommendations and 
rulings. 
4.5.  The DSB took note of the statements. 
5  INDONESIA – IMPORTATION OF HORTICULTURAL PRODUCTS, ANIMALS AND ANIMAL 
PRODUCTS 
A.  Request for the establishment of a panel by New Zealand (WT/DS477/9) 
6  INDONESIA – IMPORTATION OF HORTICULTURAL PRODUCTS, ANIMALS AND ANIMAL 
PRODUCTS 
A.  Request for the establishment of a panel by the United States (WT/DS478/9) 6.1.  The Chairman proposed that items 5 and 6 be  considered together since they pertain to the 
same matter. He then drew attention to the communication from New Zealand contained in 
document WT/DS477/9, and invited the representative of New Zealand to speak. 
6.2.  The representative of New Zealand said that this dispute related to prohibitions and 
restrictions imposed on the import of horticultu ral products, animals, and animal products into 
Indonesia, including through Indonesia's trade-re strictive non-automatic import licensing regime, 
and measures which accorded less favourable treatment to imported products than to like products 
of national origin. Consultations had been held between New Zealand and Indonesia in June 2014, 
and had followed consultations in earlier but closely related disputes that had taken place in September 2013. Unfortunately, those consultations could not resolve the dispute, and New Zealand still had significant concerns about a number of restrictions and prohibitions that had 
resulted in major declines of New Zealand's exports to Indonesia across a range of agricultural 
products, including both horticultural and animal  products. New Zealand believed that Indonesia's 
measures undermined core WTO principles and were inconsistent with key obligations under the 
WTO Agreements, including in particular Article XI.1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture. This, along with the real commercial impact that Indonesia's various trade restrictions had on New Zealand's exports, had made it necessary for New Zealand to 
proceed to request the establishment of a panel to  examine this dispute. New Zealand, therefore, 
requested that the DSB establish a panel pursuant to  Article 6 of the DSU, with standard terms of 
reference as set out in Article 7.1 of the DSU,  in order to examine the matters described in 
New Zealand's panel request. As the United Stat es was also requesting the establishment of a 
panel related to the same matter, New Zealand furt her requested the DSB, pursuant to Article 9.1 
of the DSU, to establish a single panel to examine both complaints. 
6.3.  The Chairman drew attention to the comm unication from the United States contained in 
document WT/DS478/9, and invited the representative of the United States to speak. 
6.4.  The representative of the United States said that his country understood that Indonesia used 
its import licensing measures to prohibit or restrict the importation of horticultural products, 
animals and animal products. The products subject to Indonesia's measures were many and 
varied, including fruits such as apples, grapes and oranges; vegetables such as potatoes, onions and shallots; dried fruits and vegetables; flowers;  juices; cattle; beef; poultry, including chicken 
parts, and other animal products. Indonesia's import restrictions included strict application WT/DSB/M/360 
 
- 13 - 
 
 windows and validity periods for import permits, re strictions on the type, quantity, and country of 
origin of products that may be imported, requirements that importers actually import a certain percentage of the volume of products allowe d under their permits and prohibitions on the 
importation of secondary cuts of beef and on  chicken parts. The WTO Agreement, however, 
generally obligated Members not to impose restrictions on the importation of goods from other 
Members. Accordingly, the United States was conc erned that Indonesia's measures appeared to be 
in breach of core WTO obligations involving trade in goods. For several years, the United States 
had attempted to resolve its concerns through dialogue with Indonesia. Indonesia had repeatedly 
revised or replaced its import licensing measures, without eliminating their restrictive effect, leading the United States to request consultation s regarding Indonesia's import licensing regime 
three separate times. Those efforts had failed to resolve the dispute. Accordingly, and together 
with New Zealand, the United States was now proceeding to request the DSB to establish a panel. 
As set out in the US request for the establishment of a panel, Indonesia's measures served to restrict imports from the United States and other Members, in apparent breach of various 
provisions of the GATT 1994 and the Agreement on Agriculture. Indonesia's measures had 
significantly impacted trade in horticultural prod ucts and animals and animal products and raised 
serious concerns about Indonesia's compliance with its WTO obligations. The United States, 
therefore, respectfully requested that the DSB es tablish a panel to examine the matter referred to 
in the US panel request. The United States further requested, pursuant to Article 9.1 of the DSU, that a single panel be established to examine the complaints of the United States and New Zealand. 
6.5.  The representative of Indonesia said that her country regretted that New Zealand and the 
United States had brought up this matter at the present meeting and had chosen to move forward 
with their panel requests. Indonesia had consulted on this issue and had further attempted to 
revise its regulation based on the consultation. Indonesia was of the view that it had been 
progressing well. Indonesia was fully aware of the US and New Zealand's concerns over its policies on importation of horticultural products, animals and animal products and it had moved towards 
the right direction. Indonesia believed that the current policies were consistent with WTO rules. 
Indonesia and New Zealand, as well as the United States, had conducted several consultations in 2013 and 2014. Indonesia had responded to questions raised by New Zealand and the United States, and had also provided clarifications on the policies concerning horticultural 
products, animals and animal products. Indonesia,  therefore, believed that there was merit in 
giving the consultations a further opportunity to seek possible solutions. In Indonesia's view, requesting the establishment of a panel did not serve the purpose of the monitoring function of the 
WTO to discuss all issues exhaustively before proceeding to dispute settlement provisions. Thus, 
Indonesia was not in a position to agree to the es tablishment of a panel at the present meeting as 
it believed that further progress could still be achieved. 
6.6.  The DSB took note of the statements and agreed to revert to these matters. 
7  CHINA – MEASURES RELATED TO DEMONSTRATION BASES AND COMMON SERVICE 
PLATFORMS PROGRAMMES 
A.  Request for the establishment of a panel by the United States (WT/DS489/6) 
7.1.  The Chairman drew attention to the comm unication from the United States contained in 
document WT/DS489/6, and invited the representative of the United States to speak. 
7.2.  The representative of the United States said that his country was concerned that China 
appeared to be providing export subsidies through a program establishing the Foreign Trade 
Transformation and Upgrading Demonstration Base s and the Common Service Platforms. In that 
program, China first identified enterprises across seven industries based on, inter alia , export 
performance. China grouped them into clusters it called Demonstrations Bases. China then 
appeared to provide export-contingent subsidies to these enterprises in the Demonstration Bases through free or discounted services or through grants. China delivered the free or discounted 
services to the enterprises in the Demonstration Bases through designated suppliers that were 
collectively referred to as Common Service Platforms. The United States said that the 
SCM Agreement prohibits subsidies contingent upon export performance. Accordingly, the 
United States was concerned that China's measures appeared to be in breach of an important WTO 
obligation. The United States had held consultations with China on two separate occasions on this 
matter. However, those efforts had not resolved th e dispute. As set out in the US request for the WT/DSB/M/360 
 
- 14 - 
 
 establishment of a panel, because the Demonstr ation Base/Common Service Platform program and 
export subsidies under that program were subsidies contingent upon export performance provided to enterprises located in China, the measures appear ed to be inconsistent with Article 3.1(a) of the 
SCM Agreement, and China appeared to have ac ted inconsistently with Article 3.2 of the 
SCM Agreement. Claims related to prohibited export subsidies were subject to special or additional 
dispute settlement rules and procedures under Arti cle 4 of the SCM Agreement. Accordingly, the 
United States respectfully requested that the DSB establish a panel immediately, pursuant to 
Article 4.4 of the SCM Agreement, to examine the matter referred to in the US panel request. 
7.3.  The representative of China said that his co untry wished to express its strong disappointment 
with the US decision to request the establishm ent of a panel to examine this dispute. The 
United States had filed a request for consultations on this matter with China on 11 February 2015, 
one week before China's Spring Festival national holiday, listing 182 documents as the measures 
at issue. Those measures at issue not only incl uded 16 documents promulgated by China's central 
government but also included numerous documents issued by various levels of sub-central 
government of China. Despite the stringent time  pressure and the enormous workload, China had 
made tremendous efforts to eventually make itself available for a round of substantive consultations with the United States in early April 2015. China had participated in those 
consultations with the United States in good faith, with the intention of finding a mutually 
satisfactory solution as preferred by the DSU. Ch ina had been sincere and unequivocal in clarifying 
a number of important questions concerning the measures at issue and had provided abundant 
information as requested by the United States. Notably, China had reiterated its steadfast stance 
on respecting and abiding by the WTO subsidy discipline, and had signalled its willingness to 
continue its work to gather information and resolve any WTO-inconsistency concerns of the United States, if substantiated. The United States  had showed the similar intention to resolve the 
concerns through dialogue and consultations. Against that backdrop, it was to China's surprise, 
and indeed, dissatisfaction that the United St ates had chosen to file a request for the 
establishment of a panel just 7 days after the ro und of amicable consultations. Under the DSU, 
Members reaffirmed their resolve to strengthen an d improve the effectiveness of the consultation 
procedures. In addition, finding a mutually agreed solution was recognized as the preferred approach to dispute settlement. China had done its part by according sympathetic consideration to, and affording, adequate opportunities for consultations. China regretted the US failure to act in 
a similar spirit. It was particularly problematic at a time when the WTO dispute settlement system 
was facing serious constraints in resources. Such a decision, if it became a widely adopted practice, would effectively diminish the value of consultations by discouraging Members to engage 
in constructive and good-faith consultations. In sum, China regretted that the United States had 
decided to move this dispute into the panel proceeding stage. China stood ready to safeguard its rights under the DSU and the covered agreements. 
7.4.  The representative of the European Union sa id that the EU had a strong interest in this 
dispute, which raised important systemic issues . The EU shared the concerns expressed by the 
United States on the use of subsidies by the Chinese authorities and was currently evaluating the merits of this highly complex case. 
7.5.  The representative of the United Stat es said that the SCM Agreement prohibited 
export-contingent subsidies and provided for an  expedited dispute settlement process. The US 
panel request at the present meeting reflected the urgency of this matter and the importance that 
the United States attached to enforcing its trading rights. The United States, however, had made 
great efforts to consult twice with China relating to this program. The United States remained open to further discussions with China on this matter. 
7.6.  The DSB took note of the statements and agreed to establish a panel in accordance with the 
provisions of Article 4.4 of the SCM Agreement an d Article 6 of the DSU, with standard terms of 
reference. 
7.7.  The representatives of Australia, Brazil, Cana da, the European Union, India, Japan, Korea and 
the Russian Federation reserved their third-party ri ghts to participate in the Panel's proceedings. WT/DSB/M/360 
 
- 15 - 
 
 8  UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN SHRIMP FROM VIET NAM 
A.  Report of the Appellate Body (W T/DS429/AB/R) and Report of the Panel 
(WT/DS429/R and WT/DS429/R/Add.1) 
8.1.  The Chairman drew attention to the comm unication from the Appellate Body contained in 
document WT/DS429/7 transmitting the Appellate Body Report on: "United States – Anti-Dumping 
Measures on Certain Shrimp from Viet Nam", which had been circulated on 7 April 2015 in document WT/DS429/AB/R, in accordance with Article 17.5 of the DSU. He reminded delegations 
that the Appellate Body Report and the Panel Report pertaining to this dispute had been circulated 
as unrestricted documents. As Members were awar e, Article 17.14 of the DSU required that: "An 
Appellate Body report shall be adopted by the DS B and unconditionally accepted by the parties to 
the dispute unless the DSB decides by consensus no t to adopt the Appellate Body report within 
30 days following its circulation to Members. This adoption procedure is without prejudice to the 
right of Members to express their views on an Appellate Body report". 
8.2.  The representative of Viet Nam said that her country was pleased to have the opportunity to 
address the DSB at the present meeting under this  Agenda item.  Viet Nam thanked the members 
of the Panel, the Appellate Body division, and thei r respective Secretariats for devoting the time 
and effort devoted to this dispute. Viet Nam hope d that, in the context of implementation of the 
DS429 dispute, the United States would also impl ement those portions of the Panel's decision 
resulting from the DS404 dispute, which had not been implemented and which bore on proper implementation of the DS429 dispute, namely the issues of WTO-inconsistent zeroing in the reviews examined in the DS404 dispute and the WT O-inconsistent application of the country-wide 
rate in those reviews. At the outset, Viet Nam wished to comment on the Appellate Body Report 
and its implications for implementation of the DS429 dispute. The Appellate Body had not found Section 129(c)(1) of the Uruguay Round Agreements Act to be WTO-inconsistent because of the 
US representations that it had mechanisms other than Section 129 to address prior unliquidated 
entries in the context of the implementation of adverse WTO decisions. These mechanisms allowed 
it to apply implementation to unliquidated entries which had entered the United States prior to the 
date of implementation
5, entries which could not by law be  covered by implementation under 
Section 129. In order to avoid devoting additional resources of the WTO dispute settlement system to this matter, Viet Nam was requesting the United States to undertake implementation using one of these alternative mechanisms. The use of one of these alternative mechanisms would ensure 
that Viet Nam did not have to pursue this matter in a compliance panel under Article 21.5 of the 
DSU, in the event that the United States, as part  of implementation, either sunset or revoke the 
anti-dumping duties in whole or in part. Viet Nam was seeking nothing other than that the 
United States back up its representations to the Panel and the Appellate Body with actions that 
were consistent with those representations. 
8.3.  Viet Nam noted that one of the important as pects of the Panel's findings and conclusions was 
that the US application of a so-called "country-wide" rate in excess of the ceiling on the "all others" 
rate was WTO-inconsistent. Since the beginning of the Panel's proceeding, the United States had expanded its discriminatory treatment of state-owned enterprises to the point that, in the most recent review of the shrimp anti-dumping duty order, the Department of Commerce had refused to 
even include state-owned enterprises in the pool of possible mandatory respondents in the review. 
While the Panel had found a country-wide rate in excess of the all-others rate to be 
WTO-inconsistent, Viet Nam hoped that, in implementing this finding, the United States would also 
seek to avoid further unnecessary dispute settlem ent proceedings by applying the same rules to 
state-owned enterprises, except as narrowly authorized in Viet Nam's Accession Protocol, as are applied to private enterprises and would refrain from discriminatory treatment, which was nowhere 
authorized in the Anti-Dumping Agreement or Accession Protocol. Viet Nam noted that 
implementation required both elimination of th e country-wide rate in the reviews underlying the 
sunset review and a change in the practices outlined in Import Administration Policy Bulletin No. 05.1 and followed in individual investigations. 
8.4.  Since the sunset review subject to the DS429 dispute was completed, the United States had 
taken various actions, which it may attempt to use to again find a likelihood of the continuation or recurrence of dumping if the shrimp case was sunset. First, it had withdrawn the regulation 
                                               
5 See, e.g. "United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam", AB-2015-1, 
Report of the Appellate Body, WTO/DS429/AB/R (7 April 2015) at paragraphs 2.26 and 4.13. WT/DSB/M/360 
 
- 16 - 
 
 governing the application of the weighted averag e-to-transaction comparison exception under the 
US law counterpart to Article 2.4.2 of the Anti-Dumping Agreement6 and again made zeroing the 
norm in US investigations and reviews.7 Second, it had reopened the sunset review at issue in the 
DS429 dispute based on allegations of tranship ment of Chinese shri mp through Cambodia 
(claiming this also applied to Vietnamese shrimp, an assertion with which the court did not 
agree).8 Third, it had retroactively applied adverse facts available to a respondent in the 
2008-2009 review when the US Department of Commerce was overturned by the US Court of 
International trade and, on remand, required to undertake a review to determine whether 
revocation was appropriate. By the time the respondent who had requested the review to determine whether revocation was appropriate finall y prevailed in court, it had changed ownership 
and did not have the necessary records to cooper ate. It had therefore withdrawn its request. 
Rather than simply drop the matter and report to the court that the request for revocation had 
been withdrawn, the US Department of Commerce had decided to proceed with the review and apply adverse facts available.
9 There was no reason for this action other than to try to use these 
fabricated margins as a basis for denying revocation in a sunset review. As regards the 
"reasonable period of time" for implementation, Viet Nam believed that a period no longer than that provided for making redeterminations under US law was appropriate in the instant case. That 
period was 180 days. Finally, Viet Nam wished to address the comment by the United States that 
it had offered Viet Nam a settlement to the DS429 dispute. That was true. However, that settlement did not address the country-wide rate, it did not address the margins found using zeroing, and it did not address the requests by individual companies for revocation. It had 
addressed only the adjustments to the cash deposits  of estimated anti-dumping duties for a period 
of less than one year. Given the Panel's findings and conclusions, this offer could not have even been seriously considered. Viet Nam hoped that the United States was serious about 
implementation and that it would seek to avoid li tigation rather than make decisions which would 
lead to continued litigation in the DS429 dispute. 
8.5.  The representative of the United States said that his country thanked the Panel, the Appellate 
Body, and the Secretariat staff assisting them for their work in this proceeding. While the 
United States did not agree with every finding in  the Panel Report, both the Panel and Appellate 
Body Reports showed a very welcome and careful engagement with the parties' arguments, contributing to the quality of the Reports. The United States said that it would like at the present 
meeting to make a few comments on both the Panel and the Appellate Body Reports. Starting with 
the Panel Report, the United States appreciated th e Panel's thorough review of the facts and the 
legal claims in this dispute. In particular, the United States welcomed the finding by the Panel 
(affirmed by the Appellate Body) that Viet Nam had failed to establish that Section 129 of the 
Uruguay Round Agreements Act was inconsistent with the Anti-Dumping Agreement.
10 This was 
now the third time that a WTO adjudicator had determined that Section 129 did not breach US 
WTO obligations. The United States also welcomed the Panel's rejection of Viet Nam's "as such" 
claim with respect to the US Department of Commerce's application of the so-called "zeroing" methodology. The Panel had correctly found that Viet Nam's claim lacked merit because no such measure currently existed following US implementation in other WTO disputes. The Panel had also 
correctly rejected Viet Nam's claims that Comme rce used a prescribed methodology to calculate 
the anti-dumping duty rate for the non-market  economy-government entity or that Commerce 
systematically based that rate on facts available.  In that regard, the Panel had disagreed with the 
finding of the Panel in the DS404 dispute and had rejected Viet Nam's claim that the anti-dumping 
duty rate applied to the Viet Nam-government entity in the fourth, fifth and sixth administrative reviews was based on facts available. The United States welcomed the Panel's careful and 
objective examination of this issue, which Viet Nam had not appealed. 
8.6.  In fact, Viet Nam had appealed only one issue in this dispute, the Panel's rejection of its 
claim on Section 129. Viet Nam had alleged that the Panel had breached Article 11 of the DSU in evaluating Viet Nam's arguments. The Appellate Bo dy followed the applicable standard of review 
                                               
6 "Withdrawal of the Regulatory Provisions Governing Targeted Dumping in Antidumping Investigations", 
73 Fed. Reg. 74930 (10 December 2008). 
7 See, "Xanthan Gum from China", 78 Fed. Reg. 33351 (4 June 2013). 
8 "Certain Frozen Warmwater Shrimp from the Socialist Republic of Viet Nam:  Notice of Reopening of 
the First Five-Year Sunset Review", 79 Fed. Reg. 15310 (19 March 2014). 
9 "Certain Frozen Warmwater Shrimp from the Socialis t Republic of Viet Nam: Preliminary Results of 
Re-conducted Administrative Review of Grobest & I-Me i Industrial (Viet Nam) Co., Ltd. and Intent not to 
Revoke"; 2008-2009, 78 Fed. Reg. 56352 (18 September 2013). 
10 Agreement on Implementation of Article VI of the GATT 1994. WT/DSB/M/360 
 
- 17 - 
 
 for a claim under Article 11 and had appropriately found that Viet Nam had failed to establish that 
the Panel had breached its duty to conduct an objective assessment with respect to Viet Nam's challenge to Section 129. In that context, the Appe llate Body had stated that "[w]hile [a Member] 
may not agree with the Panel's assessment of the relevancy of … evidence, this, in itself, does not 
mean that the Panel committed legal error amounting to a violation under Article 11 of the DSU".
11 
Further, the Appellate Body had highlighted that "it is incumbent on a participant raising a claim under Article 11 on appeal to explain why the a lleged error meets the standard of review under 
that provision".
12 The United States agreed with these statements and believed they were a useful 
reminder to Members regarding the proper scope of a claim of error under Article 11, as well as reflecting the limited scope of appellate review under Article 17.6 of the DSU. The United States hoped that Members would keep these statements in mind when considering how to approach 
potential appeals in other disputes, in particular in light of the significant workload issues facing 
the dispute settlement system. 
8.7.  The United States said it would like to also highlight that, not only had the Appellate Body 
reached the appropriate substantive outcome with respect to Viet Nam's Article 11 challenge, it 
had also handled the appeal in an efficient manner. The Report did not opine on issues that were not germane to the appeal and the oral hearing ha d been focused on the specific issues appealed 
by the parties. This approach had allowed the Appellate Body to issue a concise, high-quality 
report within the 90-day time frame established under Article 17.5 of the DSU. The United States appreciated the Appellate Body's efforts in this  regard. Following this approach in future 
proceedings would promote the efficient resolution of disputes and help to mitigate workload 
problems currently facing the WTO dispute settlement system. 
8.8.  The representative of Korea said that his country welcomed the findings of the Panel and the 
Appellate Body in this dispute that application of the simple zeroing methodology by the 
United States in administrative reviews was inco nsistent with Article 9.3 of the Anti-Dumping 
Agreement and Article VI:2 of the GATT 1994. On ce again, these findings confirmed that the 
zeroing methodology is WTO-inconsistent, as found repeatedly by a growing number of previous 
WTO panels, as well as the Appellate Body. Undeniably, the use of zeroing artificially inflated 
dumping margins, contrary to the fundamental principle of "fair comparison". It was regrettable, however, that the Panel had declined to rule that the simple zeroing methodology used in administrative reviews "as such" was inconsistent with Article 9.3 of the Anti-Dumping Agreement 
and GATT Article VI:2, on account of the USDOC's modification of its calculation methodology. In 
addition, it was worrisome that, because the Appellate Body had been unable to find Section 129(c)(1) of the Uruguay Round Agreements Act to be WTO-inconsistent, unliquidated 
entries which had entered the United States prio r to the date of implementation of the DSB's 
decision in this dispute would continue to be subj ect to the zeroing methodol ogy. Unavoidably, this 
would have negative implications for the effective compliance of WTO rulings. Korea emphasized 
that providing effective remedy to WTO-inconsistent situations was crucial in order to enhance the 
credibility of the WTO dispute settlement system. 
8.9.  The representative of Cuba said that her country welcomed the Reports of the Panel and the 
Appellate Body. Cuba had heard and had listened care fully to the views expressed by both parties. 
Cuba, once again, urged the United States to implement the DSB's recommendations and rulings 
in this dispute in order not to prolong the situation of non-compliance, as stated by Viet Nam. 
8.10.  The representative of the Bolivarian Repub lic of Venezuela said that her country supported 
the statement made by Cuba on this matter. 
8.11.  The DSB took note of the statements, and adopted the Appellate Body Report contained in 
document WT/DS429/AB/R and the Panel Report contained in document WT/DS429/R and Add.1, 
as upheld by the Appellate Body Report. 
                                               
11 Appellate Body Report, paragraph 4.21. 
12 Appellate Body Report, paragraph 4.23 (citing "Chi na – Rare Earths" (AB), paragraph 5.178 (quoting 
the EC - Fasteners (China) (AB), paragraph 442)). WT/DSB/M/360 
 
- 18 - 
 
 9  PROPOSED NOMINATIONS FOR THE INDICA TIVE LIST OF GOVERNMENTAL AND NON-
GOVERNMENTAL PANELISTS (WT/DSB/W/545) 
9.1.  The Chairman drew attention to document WT/DSB/W/545, which contained new names 
proposed by Cuba for inclusion on the Indicative List of Governmental and Non-Governmental 
Panelists, in accordance with Article 8.4 of the DSU. He proposed that the DSB approve the names 
contained in document WT/DSB/W/545. 
9.2.  The DSB so agreed. 
10  STATEMENT BY THE CHAIRMAN REGARDING SOME MATTERS RELATED TO THE 
APPELLATE BODY 
10.1.  The Chairman, speaking under "Other Business", said that he wished to make a short 
statement concerning the issue of possible reappo intments of two Appellate Body members. In 
that regard, he drew attention to the fact that th e first four-year terms of office of Messrs. Ujal 
Singh Bhatia and Thomas Graham would expire on  10 December 2015. Both of them were eligible 
for reappointment to a second and final term of of fice, pursuant to Article 17.2 of the DSU. The 
Chairman said that he had recently been in formed that Messrs. Bhatia and Graham were 
interested and willing to serve for a second four -year term, respectively. In light of this, he 
intended to consult informally with Members on these matters. At the same time his door was 
open and he invited any delegation with views on this matter to contact him directly, should they 
wish to do so. He would report back to delegations on the results of his consultations as appropriate. 
10.2.  The DSB took note of the statement. 
__________