RESTRICTED  
  
WT/DSB/M/398  
 
13 September  2017 
(17-4831) Page: 1/18 
Dispute Settlement Body  
19 June  2017    
 
 MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 19  JUNE 2017 
Chairman: Mr. Junichi I hara (Japan ) 
Prior to the adoption of Agenda , the representative of the European  Union  recalled that at the 
22 May 2017 DSB meeting two proposals regarding the AB matters were on the Agenda in relation 
to items  10 and 11. The proposals concerned the launching of the procedures for the appointment 
of two new Appellate Body members to fill the two vacancies that would arise in 2017. At that 
meeting, the EU had request ed to reverse the order of discussion of the two proposals due to the 
fact that the EU's proposal under item  11 of the Agenda was more far -reaching that the proposal 
under item 10 submitted by several Latin American countries. The EU noted that at that mee ting 
most Members who had spoken made statements in relation to both proposals. The EU further 
noted that, under the present DSB Agenda, a similar situation existed whereby two proposals 
dealing with the same matter had been tabled under Agenda items  8 and  9. The EU considered 
that the proposal under Agenda item 9 was mo st far-reaching. In agreement with the countries 
that had put forward a proposal under Agenda item  8, the  EU requested to reverse the order of 
discussion of the proposals under items  8 and 9 . In the  EU's view, this was in line with the rules of 
procedure for meetings of the DSB.  
 
The Chairman  said that the proposed Agenda would be amended , as requested by the 
European  Union . 
 
The Agenda was adopted  as amended.  
Table of Contents  
1   SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  
THE DSB ................................ ................................ ................................ ...........................  2 
A.  United  States – Anti-dumping measures on certain hot -rolled steel pro ducts from 
Japan: Status report by the United  States  ................................ ................................ ..............  2 
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the 
United  States  ................................ ................................ ................................ .....................  3 
C.  European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European  Union ................................ ................................ ....... 3 
D.  European  Union – Anti-dumping me asures on biodiesel from Argentina: Status report 
by the European  Union  ................................ ................................ ................................ ........  4 
2   IMPLEMENTATION OF TH E RECOMMENDATIONS OF  THE DSB  ................................ ..... 4 
A.  China – Anti-dumping measures on imports of cellulose pulp from Canada  ............................  5 
B.  United  States – Certain methodologies and their application to anti -dumping 
proceedings involving China  ................................ ................................ ................................ . 5 WT/DSB/M/398  
 
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  3   UNITED  STATES – CONTINUED DUMPING AN D SUBSIDY OFFSET ACT  
OF 2000: IMPLEMENTATION  OF THE RECOMMENDATIO NS ADOPTED BY THE  DSB ...........  6 
A.  Statement by the European  Union  ................................ ................................ ....................  6 
4   RUSSIA – TARIFF TREATMENT OF CERTAIN AGRICULTURAL  AND 
MANUFACTURING PRODUC TS: IMPLEMENTATION O F THE RECOMMENDATION S 
ADOPTED BY THE DSB  ................................ ................................ ................................ ...... 6 
A.  Statement by the European  Union  ................................ ................................ ....................  6 
5   UNITED  STATES – COUNTERVAILING MEASU RES ON CERTAIN PIPE AND TUBE 
PRODUCTS FROM TURKEY  ................................ ................................ ................................  8 
A.  Request for the establishment of a panel by Turkey  ................................ ............................  8 
6   COLOMBIA – MEASURES RELATING TO  THE IMPORTATION OF T EXTILES, 
APPAREL AND FOOTWEAR  ................................ ................................ ................................  8 
A.  Recourse to Article  21.5 of the DSU by Panama: Request for the establishment 
of a panel  ................................ ................................ ................................ ..........................  8 
7   PROPOSED NOMINATIONS  FOR TH E INDICATIVE LIST OF  GOVERNMENTAL 
AND NON -GOVERNMENTAL PANELIS TS ................................ ................................ ..........  10 
8   APPOINTMENT OF APPEL LATE BODY MEMBERS: P ROPOSAL BY THE 
EUROPEAN  UNION  ................................ ................................ ................................ .........  10 
9   PROPOSAL REGARDING T HE APPELLATE BODY SE LECTION PROCESS  .......................  11 
 
 
1  SURVEILLANCE OF IMPL EMENTATION OF RECOMM ENDATIONS ADOPTED BY  THE DSB 
A.  United  States – Anti-dumping measures on certain hot -rolled steel pro ducts from Japan: Status 
report by the United  States (WT/DS184/15/Add.173)  
 
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the United  States 
(WT/DS160/24/Add.148)  
 
C.  European  Communities – Measures affecting the approval and  marketing of biotech products: 
Status report by the European  Union (WT/DS291/37/Add.111)  
 
D.  European  Union – Anti-dumping measures on biodiesel from Argentina: Status report by the 
European  Union (WT/DS473/17)  
 
 
1.1.  The Chairman  noted that there were four s ub-items under this Agenda item concerning 
status reports submitted by delegations pursuant to Article  21.6 of the DSU. He recalled that 
Article  21.6 required that: "Unless the DSB decides otherwise, the issue of implementation of the 
recommendations or ru lings shall be placed on the Agenda of the DSB meeting after six  months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda until the issue is resolved". Under this Agenda item, the Chairman invited del egations to 
provide up -to-date information about compliance efforts and to focus on new developments, 
suggestions and ideas on progress towards the resolution of disputes. He also reminded 
delegations that, as was provided for in Rule  27 of the Rules of Pr ocedure 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' position s already on record". He then turned to the first status report 
under this Agenda item.  
A.  United  States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United  States (WT/DS184/15/Add.173)  
1.2.  The Chairman  drew at tention to document WT/DS184/15/Add.173, which contained the 
status report by the United  States on progress in the implementation of the DSB's WT/DSB/M/398  
 
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  recommendations in the case concerning US anti -dumping measures on certain hot -rolled steel 
products from Japan.  
1.3.  The representative of the United  States  said that the United States had provided a status 
report in this dispute on 8  June 2017, in accordance with Article  21.6 of the DSU. The 
United  States had addressed the DSB's recommendations and rulings with respect to the 
calculation of anti -dumping margins in the hot -rolled steel anti -dumping duty investigation at 
issue. With respect to the recommendations and rulings of the DSB that had yet to be addressed, 
the US  Administration would work with the US  Congress with  respect to appropriate statutory 
measures that would resolve this matter.  
1.4.  The representative of Japan  said that his country thanked the United States for its statement 
and its status report. Japan, once again, called on the United States to fully implemen t the DSB's 
recommendations and rulings so as to resolve this matter.  
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
B.  United  States – Section 110(5) of the US Copyright Act: Status report by the 
United States (WT/DS160/24/Add.148)  
1.6.  The Chairman  drew attention to document WT/DS160/24/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 Section  110(5) of the US Copyright Act.  
1.7.  The representative of the United  States  said that the United States had provided a status 
report in this dispute on 8  June 2017, in accordance with Article  21.6 of the DSU. The 
US Administration would continue to confer with the EU, and w ork closely with the US  Congress, in 
order to reach a mutually satisfactory resolution of this matter.  
1.8.  The representative of the European  Union  said that his delegation thanked the United  States 
for its status report and its statement. The EU referred to i ts previous statements made on this 
matter and said that it wished to resolve this dispute as soon as possible.  
1.9.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
C.  European  Communities – Measures affecti ng the approval and marketing of biotech 
products: Status report by the European  Union (WT/DS291/37/Add.111)  
1.10.   The Chairman  drew attention to document WT/DS291/37/Add.111, which contained the 
status report by the European  Union on progress in the implementat ion of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of 
biotech products.  
1.11.   The representative of the European  Union  said that, as his delegation had stated at the 
22 May 2017 DSB meeting, the draft authorisat ion decision for one type of genetically modified 
maize1 (for food and feed use) and the draft proposals for the authorisation of three types 
of maize2 (for cultivation) had been submitted for a vote at the Appeal Committee on 
27 March  2017, with a "no opi nion" result. Furthermore, on 16  May 2017, the draft authorisation 
decisions for one type of genetically modified maize3, and one type of genetically modified cotton4 
(for food and feed use), had been submitted for a vote at the Appeal Committee, with a "n o 
opinion" result. It was now for the Commission to decide on these authorisations. On 
12 June 2017, the draft authorisation decision for one type of  genetically modified soybean (for 
food and feed use) had been submitted for a vote at the Member States co mmittee, with a "no 
opinion" result. These measures would be submitted for discussion and possible opinion to the 
                                                
1 Maize Bt11 × 59122 × MIR604 × 1507 × GA21.  
2 Bt11, 1507 and MON810 (renewal).  
3 DAS-40278 -9. 
4 GHB119.  WT/DSB/M/398  
 
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  Appeal Committee in July  2017. The EU said that it continued to be committed to acting in line 
with its WTO obligations. More generally, and a s it had stated previously on many occasions, the 
EU recalled that the EU approval system was not covered by the DSB's recommendations and 
rulings.  
1.12.   The representative of the United  States  said that the United States thanked the EU for its 
status report and  its statement. EU measures affecting biotech products continued to result in 
lengthy, unpredictable, and unexplained delays in approvals. These delays and the resulting 
uncertainty in biotech approvals in the EU undermined the commercial interests of both  US and EU 
farmers. The failure to approve biotech corn products was a source of particular concern to the 
United  States. A number of corn products had received the approval of the EU's scientific 
authority, yet had remained stalled for months now at the l evel of the EU Appeals Committee or 
the EU  Commission. The United States urged the EU to take action on these biotech approvals 
without further delay.  
1.13.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  
D.  European  Union – Anti-dumping measures on biodiesel from Argentina: Status report 
by the European  Union (WT/DS473/17)  
1.14.   The Chairman  drew attention to document WT/DS473/17, which contained the status report 
by the European  Union on progress in the implementa tion of the DSB's recommendations in the 
case concerning anti -dumping measures on biodiesel from Argentina.  
1.15.   The representative of the European  Union  said that the EU intended to comply with the 
DSB's recommendations and rulings by the agreed RPT which expi red on 10  August  2017. The 
European Commission had launched a review investigation. The investigation was ongoing and 
interested parties had the possibility to provide comments. The interested parties included the 
companies from Argentina that were affecte d by the measure.  
1.16.   The representative of Argentina  said that his country welcomed the status report submitted 
by the EU. Argentina was an interested party to the EU review, initiated on 20  December  2016 
pursuant to the "WTO Enabling Regulation", on the anti -dumping measures imposed on Argentine 
biodiesel. Argentina was closely monitoring developments in these proceedings. Argentina hoped 
that the European Commission would circulate its findings on both (i) the cost of production of 
biodiesel when constructin g the normal value and on (ii) production capacity and capacity 
utilization in the context of the injury determination, as soon as possible. Argentina said that it 
also hoped that the findings would be in line with the Panel and Appellate Body's findings i n this 
dispute. Argentina believed that a review, consistent with the DSB's recommendations and rulings, 
should result in full market access for biodiesel from Argentina.  
1.17.   The DSB took note  of the statements and agreed  to revert to this matter at its next r egular 
meeting.  
2  IMPLEMENTATION OF TH E RECOMMENDATIONS OF  THE DSB  
A.  China – Anti-dumping measures on imports of cellulose pulp from Canada  
 
B.  United  States – Certain methodologies and their application to anti -dumping proceedings 
involving China  
 
 
2.1.  The Chairman  recalled that, in accordance with the DSU provisions, the DSB was required to 
keep under surveillance the implementation of the DSB's recommendations and rulings in order to 
ensure effective resolution of disputes to the benefit of all Members. In this respect, Article  21.3 of 
the DSU provided that the Member concerned had to inform 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 rulin gs of the DSB. The Chairman proposed that sub -items  2A and  2B 
be considered separately.  WT/DSB/M/398  
 
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  A.  China – Anti-dumping measures on imports of cellulose pulp from Canada  
2.2.  The Chairman  recalled that at its meeting on 22  May 2017, the DSB had adopted the Panel 
Repor t in the dispute on: "China – Anti-Dumping Measures on Imports of Cellulose Pulp from 
Canada". He invited the representative of China to inform the DSB of its intentions in respect of 
implementation of the DSB's recommendations and rulings.  
2.3.  The representat ive of China  recalled that on 22  May 2017, the DSB had adopted the Panel 
Report in the dispute: "China – Anti-Dumping Measures on Imports of Cellulose Pulp from Canada" 
(DS483). According to Article  21.3 of the DSU, China informed the DSB of its intentions  to 
implement the DSB's recommendations and rulings in a manner that respected its WTO 
obligations. China said that it would need a reasonable period of time in order to do so. Pursuant 
to Article  21.3(b) of the DSU, China had already reached an agreement with Canada regarding this 
matter, which had been notified to the DSB on 1  June 2017. China and Canada had agreed that 
the reasonable period of time for China to implement the DSB's recommendations and rulings in 
this dispute would be 11  months, beginning on 22  May 2017. Accordingly, the reasonable period of 
time would expire on 22  April 2018.  
2.4.  The representative of Canada  said that his country thanked China for its statement and 
welcomed China's commitment to implementing the DSB's recommendations and rulin gs in this 
dispute. Canada extended its appreciation to China for its engagement in the negotiations on the 
reasonable period of time and hoped that China would implement the DSB's recommendations and 
rulings in an expeditious manner so that this dispute c ould be promptly resolved.  
2.5.  The DSB took note  of the statements, and of the information provided by China regarding its 
intentions in respect of implementation of the DSB's recommendations.  
B.  United  States – Certain methodologies and their application to anti-dumping 
proceedings involving China  
2.6.  The Chairman  recalled that at its meeting on 22  May 2017, the DSB had adopted the 
Appellate Body Report and the Panel Report, as modified by the Appellate Body Report, pertaining 
to the dispute on: "United  States – Certain Methodologies and their Application to Anti -Dumping 
Proceedings Involving China". He invited the representative of the United  States to inform the DSB 
of its intentions in respect of implementation of the DSB's recommendations.  
2.7.  The representative o f the United  States  said that on 22  May 2017, the DSB had adopted the 
Panel and Appellate Body Reports in the dispute "United  States – Certain Methodologies and their 
Application to Anti -Dumping Proceedings Involving China" (DS471). At the present meeting,  as 
was provided in the first sentence of Article  21.3 of the DSU, the United States stated that it 
intended to implement the DSB's recommendations and rulings in this dispute in a manner that 
respected US WTO obligations . The United  States said that it wo uld need a reasonable period of 
time for implementation. In accordance with Article  21.3(b) of the DSU, the United States would 
discuss this matter with China with a view to reaching agreement on the period of time.  
2.8.  The representative of China  said that hi s country thanked the United States for its statement 
made at the present meeting regarding its intentions to implement the DSB's recommendations 
and rulings to bring its measures into compliance with its WTO obligations. China hoped that the 
United  States  would implement the DSB's recommendations and rulings as soon as possible. China 
noted that the United States would need a reasonable period of time for implementation, and said 
that it was ready to discuss the length of the reasonable period of time with  the United  States at 
the earliest convenience to both parties.  
2.9.  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.  WT/DSB/M/398  
 
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  3  UNITED  STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT O F 2000: 
IMPLEMENTATION OF TH E RECOMMENDATIONS AD OPTED BY THE  DSB 
A.  Statement by the European  Union  
3.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European  Union and invited the representative of the European  Union to speak.  
3.2.  The representative of the European  Union  said that his delegation, once again, requested the 
United  States to stop transferring anti -dumping and countervailing duties to the US industry. Every 
disbursement that still took place was clearly an act of non -compliance with 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 on implementa tion in this 
dispute. The EU said that it would continue to include this matter on the DSB Agenda for as long 
as the United States had not implemented the DSB's recommendations and rulings.  
3.3.  The representative of Canada  said that his country thanked the EU for having put this item 
on the DSB Agenda. Canada shared the EU's view that the Byrd Amendment was still subject to 
the DSB's surveillance until such time as the United States ceased to implement it.  
3.4.  The representative of Brazil  said that his country than ked the EU for keeping this item on the 
DSB Agenda. As a party to the Byrd Amendment disputes, Brazil wished to refer to its previous 
statements made on this matter. In particular, Brazil wished to refer to its statements regarding 
the continuation of ille gal disbursements, which should cease immediately. Brazil renewed its calls 
on the United States to fully comply with the DSB's recommendations and rulings in this dispute. 
Until then, the United  States was under an obligation to submit status reports, pur suant to 
Article  21.6 of the DSU.  
3.5.  The representative of the United  States  said that, as the United States had noted at previous 
DSB meetings, the Deficit Reduction Act – which included a provision repealing the Continued 
Dumping and Subsidy Offset Act of 2 000 – had been enacted into law in February  2006. 
Accordingly, the United  States had taken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes. The United  States recalled, furthermore, that the 
EU had acknowledged tha t the Deficit Reduction Act did not permit the distribution of duties 
collected on goods entered after 1  October  2007, over nine  years ago. With respect to the EU's 
request for status reports in this matter, as the United  States had already explained at pr evious 
DSB meetings, there was no obligation under the DSU to provide further status reports once a 
Member had announced that it had implemented the DSB's recommendations and rulings, 
regardless of whether the complaining party disagreed about compliance. As the United States had 
noted previously, the EU had demonstrated repeatedly that it shared this understanding, at least 
when it had been the responding party in a dispute. Once again, at the present meeting the EU 
had provided no status report for one or  more disputes in which there was a disagreement 
between the parties on the EU's compliance. If the EU considered that it had no obligation to 
provide status reports once it has announced that it had implemented the DSB's recommendations 
and rulings in a d ispute, then surely the same applied to other Members under any reasonable 
reading of the DSU.  
3.6.  The DSB took note  of the statements.  
4  RUSSIA – TARIFF TREATMENT OF CERTAIN AGRICULTURAL  AND MANUFACTURING 
PRODUCTS: IMPLEMENTA TION OF THE RECOMMEN DATIONS ADOPTED BY THE DSB  
A.  Statement by the European  Union  
4.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Union and invited the representative of the European Union to speak.  
4.2.  The representative of the European  Union  said that his delegation referred to its statement 
on this made under "Other Business" at the 22  May 2017 DSB meeting and to the text of 
Article  21.6 of the DSU. The EU had requested to include this matter on the Agenda of the present 
meeting for rea sons of transparency. The EU took note of the written communication circulated by WT/DSB/M/398  
 
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  the Russian  Federation regarding this matter and said that it appreciated Russia's communication 
in this regard.  
4.3.  The representative of the Russian  Federation  said that his co untry wished to refer to its 
statement made at the DSB meeting on 22  May 2017 and to its communication dated 8  June 2017 
contained in document WT/DS485/11. As Russia had already stated, it had fully implemented the 
DSB's recommendations and rulings in this  dispute prior to the expiry of the reasonable period of 
time. The Common Customs Tariff of the Eurasian Economic Union and the duties subject to this 
dispute had been amended by virtue of the following Decisions of the Board of the Eurasian 
Economic Union : No.  13, adopted on 31  January  2017, for measures  1-5; No.  85, adopted on 
2 June 2015, for measures  6-8; No.  40, adopted on 16  May 2016, for measure  9; and No.  54, 
adopted on 21  August  2015, for measures  10 and  11. Russia had provided the EU with copies o f all 
of the relevant decisions and actions concerning implementation in this dispute. Russia said that it 
was ready to provide copies of its implementing documents to any interested Member, upon 
request.  
4.4.  The representative of Japan  said that the parties t o this dispute had notified the DSB of their 
agreement, regarding the reasonable period of time (RPT), on 10  November  2016. Assuming that 
this notification date was the date of establishment of the RPT, which could have been earlier, it 
appeared that the A rticle 21.6 six -month time -period had expired on 10  May 2017. Thus the DSB 
meeting after six  months following the date of establishment of the RPT had been the regular DSB 
meeting in May. That meeting had been held on 22  May 2017, as scheduled. The deadlin e for 
inscription of Agenda items was 11  May 2017. It appeared that Russia was required to, and had 
had the opportunity to inscribe the issue of its implementation on the Agenda of the 22  May 2017 
regular DSB meeting and should have provided its first stat us report prior that meeting. However, 
it had not done so. Japan said that the DSB had the authority, under Article  2.1 of the DSU, to 
maintain surveillance over the implementation of its recommendations and rulings in its 
administration of the DSU. Articl e 21.6 of the DSU embodied and specified the operation of that 
authority. Japan noted that the parties to a dispute played an important part in allowing the DSB 
to carry out that function. Accordingly, the obligations under Article  21.6 of the DSU had to b e 
taken seriously and had to be discharged faithfully by all WTO Members concerned so as to ensure 
the effective functioning of the DSB.  
4.5.  The representative of the European  Union  said that his delegation thanked Russia for its 
written communication and its explanation. The EU would closely monitor this situation and looked 
forward to working with Russia in order to resolve this dispute.  
4.6.  The representative of the Russian  Federation  said that his country thanked Japan for its 
statement. He said that, in accord ance with Article  21.6 of the DSU, as a common rule, the issue 
of implementation of the DSB's recommendations and rulings had to be placed on the Agenda of 
the DSB meeting after six  months following the date of establishment of the reasonable period of 
time and had to remain on the DSB Agenda until the issue was resolved. Thus, there was no doubt 
that a responding party was obliged to inform Members on the steps it had taken to implement the 
DSB's recommendations and rulings in a particular dispute. However , as the DSB practice 
demonstrated, when the DSB's recommendations and rulings had been implemented within the 
six months referred to in Article  21.6 of the DSU, Members had resorted to various options. Such 
options included making statements on implementa tion under "Other Business" or circulating a 
communication without making any oral statement at all. In both such cases, status reports were 
not submitted. Following the established practice, based on the letter and the spirit of the DSU, 
Russia had made a  statement on its full implementation in this dispute at the DSB meeting held on 
22 May 2017. For more clarity, and in addition to its oral statement, Russia had circulated a 
communication, contained in document WT/DS485/11, regarding the steps it had take n to fully 
implement of the DSB's recommendations and rulings in this dispute. In Russia's view, its 
statement and communication fully addressed the procedural concerns that any Member, including 
the EU and Japan, could have on this matter.  
4.7.  The representat ive of Japan  said that his country thanked Russia for its response to Japan's 
concerns. Japan noted that Russia had referred to its statement made under "Other Business" at 
the 22  May 2017 DSB meeting and its notification of compliance to the DSB. The last  sentence of 
Article  21.6 of the DSU provided that "[a]t least 10  days prior to each such DSB meeting, the 
Member concerned shall provide the DSB with a status report in writing". The deadline for filing a 
status report for the 22  May 2017 DSB meeting had been 11  May 2017. Japan noted that the WT/DSB/M/398  
 
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  notification of compliance to which Russia had referred was dated 8  June 2017. Thus, even 
assuming that this notification could constitute a status report, in Japan's view, Russia had missed 
the deadline for filing it s status report.  
4.8.  The DSB took note  of the statements.  
5  UNITED  STATES – COUNTERVAILING MEASU RES ON CERTAIN PIPE AND TUBE 
PRODUCTS FROM TURKEY  
A.  Request for the establishment of a panel by Turkey (WT/DS523/2)  
5.1.  The Chairman  recalled that the DSB had considere d this matter at its meeting on 
22 May 2017 and had agreed to revert to it. He then drew attention to the communication from 
Turkey contained in document WT/DS523/2 and invited the representative of Turkey to speak.  
5.2.  The representative of Turkey  recalled th at, at the 22  May 2017 DSB meeting, the 
United  States had objected to Turkey's first request for the establishment of a panel, contained in 
document WT/DS523/2. At that meeting, Turkey had also briefly discussed the reasons why it had 
brought this matter b efore the DSB. Therefore, Turkey would not wish to reiterate these points at 
the present meeting. Turkey regretted that a second  request was necessary in order to move 
forward with the proceedings. Turkey considered that it was in both parties' interests, in order to 
reach a prompt resolution of this dispute, to proceed efficiently with the establishment and 
composition of a panel. Turkey therefore requested, for the second time, that the DSB establish a 
panel, with standard terms of reference, to examine t he matter set forth in its panel request.  
5.3.  The representative of the United  States  said that, as had been explained at the 22  May 2017 
DSB meeting, the United States was disappointed that Turkey had sought the establishment of a 
panel in this matter. For ex ample, t he United States failed to understand Turkey's interest in 
pursuing a challenge to a determination that had been vacated in the course of domestic litigation. 
Despite this, Turkey had not chosen to narrow its panel request. Furthermore, Turkey appe ared to 
have listed certain items in its panel request, including alleged "practices" , that would not be 
measures and therefore would not form part of the matter referred by the DSB to the panel for 
examination. The United  States said that it regretted tha t Turkey would seek to use WTO 
resources in this manner, particularly at a time when the WTO dispute settlement system faced a 
number of challenges. Accordingly, the United  States did not consider that Turkey's complaint was 
warranted. If Turkey nonetheles s determined  to pursue this matter further, the United  States 
would vigorously defend US  measures and interests before the panel.  
5.4.  The DSB took note  of the statements and agreed  to establish a panel in accordance with the 
provisions of Article  6 of the DSU with standard terms of reference.  
5.5.  The representatives of Brazil , Canada , China , the European  Union , Japan , Kazakhstan , Korea , 
the Russian  Federation  and Saudi  Arabia  reserved their third -party rights to participate in the 
Panel's proceedings.  
6  COLOMBIA – MEASURES RELATING TO T HE IMPORTATION OF TE XTILES, APPAREL 
AND FOOTWEAR  
A.  Recourse to Article  21.5 of the DSU by Panama: Request for the establishment of a 
panel (WT/DS461/22)  
6.1.  The Chairman  recalled that the DSB had considered this matter at its meeting on 
22 May 2017 and had agreed to revert to it. He drew attention to the communication from Panama 
contained in document WT/DS461/22 and invited the representative of Panama to speak.  
6.2.  The representative of Panama  recalled that, on 9  March  2017, his country had requested 
consultations with Colombia under Article  21.5 and Article  4 of the DSU, Article  19 of the Customs 
Valuation Agreement and Article  XXII of the GATT  1994 with respect to certain implementing 
measures resulting from the implementation of the DSB's recommendations and rulings in 
"Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear" (DS461). 
The consultations had taken place in Geneva on 28  March  2017. Unfortunately, they had failed to WT/DSB/M/398  
 
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  resolve this dispute. Consequently, at the DSB meeting on 22  May 2017, Panama had requested 
the establishment of a panel under Article  21.5 of the DSU. Since, at that meeting, Colombia had 
objected to the establishment of a panel, Panama reiterated its request that a panel be established 
pursuant to Article  6 of the DSU. Panama said that the panel to be established at the present 
meeting represented an important step in Panama's efforts to ensure that Colombia complied with 
its obligations under the WTO Agreements. Panama had challenged Colom bia's measures 
concerning textile and footwear imports in two WTO proceedings and two panels and the Appellate 
Body had confirmed that Colombia was in breach of its WTO obligations. Nonetheless, Colombia 
had still failed to implement the DSB's recommendati ons and rulings and had continued to impose 
restrictions on trade in these products from Panama. For more than ten years, Panama had been 
requesting Colombia to regulate its imports of textiles and footwear without violating its 
obligations under the WTO A greements. It was therefore critically important for Panama, especially 
at this stage in the proceedings, that this case was concluded expeditiously and in an orderly 
manner.  
6.3.  The representative of Colombia  said that, at the 22  May 2017 DSB meeting, his cou ntry had 
informed Members that it had been engaged in consultations with Panama to discuss mutual 
concerns regarding this dispute. Colombia had sought to address Panama's concerns. Without 
prejudice to these efforts, Colombia welcomed Panama's decision to settle this dispute in line with 
the most recent decisions adopted by the DSB.5 In doing so Panama had recognized the need to 
evaluate the compliance measures that had been adopted by Colombia in the light of Article  21.5 
of the DSU, before proceeding with  the examination of the request for suspension of concessions 
under Article  22.2 of the DSU. Colombia recalled that it had implemented the DSB's 
recommendations and rulings promptly and effectively, before the expiry of the reasonable period 
of time. It ha d done this by issuing Decree  1744 which had brought the compound tariff into 
conformity with the covered Agreements and which had adjusted the tariff levels applicable to 
imports of apparel and footwear in such a way as to not exceed Colombia's bound tari ff-rate. As to 
Decree  1745, the subject matter of Panama's new complaint, Colombia reiterated that it was a 
customs measure with the necessary and legitimate policy objective of exercising customs control 
over imports of apparel and footwear. The Decree ac cordingly sought to ensure that trade 
operations were governed strictly by the principles underlying legal and fair trade, and was 
consistent with WTO rules. Colombia recalled that the customs measure in question contained 
none of the provisions concerning  the compound tariff that had been the subject of the DSB's 
recommendations and rulings in DS461. The customs measure had not yet been evaluated by a 
panel, which meant that it should not be part of the Article  21.5 review. This was the reason for 
Colombia 's opposition to the establishment of a panel at the 22  May 2017 DSB meeting. Without 
prejudice to the foregoing, Colombia reiterated its willingness to reach an agreement with Panama 
that would bring these disputes to a final close and said that it firmly  believed that this could be 
achieved.  
6.4.  The representative of the United  States  said that, as the United States had expressed 
previously, it was important to align the three  proceedings in this dispute. In doing so, the 
question of whether the measure at is sue was currently in compliance with Colombia's WTO 
obligations could and should be taken into account in determining the level of nullification and 
impairment in the Article  22.6 proceeding. Specifically, any level of suspension of concessions 
determined in that proceeding had to be equivalent to the current level of nullification and 
impairment, in accordance with Articles  22.4 and  22.7 of the DSU. Therefore, the arbitrator in the 
Article  22.6 arbitration should examine the issue of compliance, together w ith the Article  21.5 
panel comprised of the same three individuals. The arbitrator should determine a level of 
nullification or impairment based on the current situation, to the extent the situation, and the 
nullification, might  have changed since the end of the reasonable period of time. Ensuring 
equivalence between the level of suspension of concessions and the current level of nullification 
and impairment was necessary to ensure that the dispute settlement system operated efficiently. 
Otherwise, the syst em could actually provoke further litigation if countermeasures authorized and 
imposed were in excess of the current level of nullification that flowed from the findings of the 
compliance panel.  
6.5.  The representative of Mexico  said that his country would not comment on the substance of 
this dispute. In response to the statements made by the United  States, Mexico wished to comment 
on the determination of nullification and impairment in light of the Article  22.6 Arbitrator's findings 
                                                
5 Award of the Arbitrator, "US - Tuna II " (Mexico), paras. 3.20, 3.42 -3.46. WT/DSB/M/398  
 
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  in DS381. The Arbitrator in the DS381 dispute had determined that the compliance period 
extended to the end of the reasonable period of time, which then determined the measure to be 
analysed in order to assess the level of nullification and impairment. Mexico said that Members 
would be able to read the Arbitrator's decision in the DS381 dispute to gain a better understanding 
of the matter, which was not as it had been reflected in the US statement.  
6.6.  The representative of the European  Union  recalled that his delegation had participated as a 
third party in the panel and appeal proceedings in this dispute. Therefore, pursuant to Articles  10.1 
to 10.3 of the DSU, the EU reserved its right to participate as a third party in the proceedings with 
regard to any disagreement as to the existence or consistency with a covered agreement of 
measures taken to comply with the DSB's recommendations and rulings. In this regard, the EU 
had also reserved its third -party rights in the compliance proceedings requested by Colombia. With 
regard to the panel re quest at issue, the EU considered that this situation fell under Article  9.1 of 
the DSU and hence both compliance proceedings could be merged. In this regard, and taking into 
account the second  sentence of Article  9.1 of the DSU, the EU considered that the  matter should 
be referred to the compliance Panel that had been requested by Colombia and that had already 
been established, given that this appeared to be feasible.  
6.7.  The representative of Japan  wished to refer to Japan's statement made at the 22  May 2017 
DSB meeting with respect to the issue raised by the United  States.  
6.8.  The representative of Brazil  reiterated his country's concerns regarding the systemic and 
procedural implications of having recourse to Article  22.2 (and  22.6) of the DSU before concluding 
the proceedings set out in Article  21.5 of the DSU. The DSB was now faced with a situation where 
there were two  compliance panels referring to what was essentially the same subject matter. This 
had increased the complexity of the issue. Brazil encouraged t he parties to find a mutually agreed 
solution in order to better harmonize these proceedings.  
6.9.  The DSB took note  of the statements and agreed , pursuant to Article  21.5 of the DSU, to 
refer to the original Panel, if possible, the matter raised by Panama in d ocument WT/DS461/22. 
The Panel would have standard terms of reference.  
6.10.   The representatives of Australia , China , Ecuador , the European  Union , Guatemala , 
Honduras , India, Indonesia , Japan , Kazakhstan , Korea , the Russian  Federation , Singapore , 
Chinese  Taipei  and the United  States  reserved their third -party rights to participate in the Panel's 
proceedings.  
7  PROPOSED NOMINATIONS  FOR THE INDICATIVE L IST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PANELIS TS (WT/DSB/W/599)  
7.1.  The Chairman  drew attention to document WT/DSB/W/5 99 which contained additional names 
proposed by Argentina and the European  Union (Finland) for inclusion on the Indicative List of 
Governmental and Non -Governmental Panelists, in accordance with Article  8.4 of the DSU. The 
Chairman proposed that the DSB ap prove the names contained in document WT/DSB/W/599.  
7.2.  The DSB so agreed . 
8  APPOINTMENT OF APPEL LATE BODY MEMBERS: P ROPOSAL BY THE EUROP EAN UNION 
(WT/DSB/W/597/REV.1)  
8.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European  Union. He then drew attention to the communication contained in document 
WT/DSB/W/597/Rev.1 and invited the representative of the European  Union to speak.  
8.2.  The representative of the European Union  wished to refer to the statements made by the EU 
on the issue of Appellate Body appointments at previous DSB meetings. The EU's proposal followed 
the models of similar DSB decisions in the past. The proposal incorporated the proposal made by 
Argentina, Brazil, Colombia, Chile, Guatemala, Mexico and Peru,  and in addition, it provided for the 
launching of the selection process for the replacement of Professor Van den Bossche. The proposal 
provided for the selection process to be conducted and concluded as soon as possible. The EU fully 
supported the selecti on of new Appellate Body members without delay. The EU encouraged all WT/DSB/M/398  
 
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  Members to support its proposal, so that both selection processes could be launched at the present 
meeting.  
8.3.  The representative of the United  States  said that, given the ongoing transitio n in the US 
political leadership and the recent confirmation of a new US Trade Representative, the 
United  States was not in a position to support the proposed decision to launch a process to fill a 
position on the Appellate Body that would only become vaca nt in December  2017. Nevertheless, 
the United States said that it was willing to join a consensus for the DSB to take the decision 
proposed by Mexico, Argentina, Brazil, Chile, Colombia, Guatemala, and Peru. That decision was 
focused on a process to fill a  position that would become vacant in less than one  month's time.  
8.4.  The representative of the European  Union  said that his delegation regretted the fact that, 
once again, the DSB was not in a position to move forward with the Appellate Body selection 
process . The EU noted that Professor Van den Bossche's term would end on 11  December  2017. 
Given this the EU believed that the selection process to fill this post should also be launched 
without delay. The EU again expressed its disappointment that it had not bee n possible to move 
forward again at the present meeting.  
8.5.  The representative of Israel  said that his country was taking the floor to express its serious 
concern with the lack of progress regarding the Appellate Body selection process. Not long ago the 
DSB h ad dealt with a process that had hindered the ability of the Appellate Body to function 
properly. Once again, Members found themselves with the possibility of having an incomplete 
membership of the Appellate Body for an extended period of time. This would be extremely 
undesirable. Israel was concerned that this situation could eventually have an impact on the 
credibility of the Appellate Body. At present there were two proposals on the table and both were 
motivated by the prospect of finding a solution. The re were a couple of differences between them. 
The main one, in Israel's view, was the time -frame. Israel believed that Members should look 
beyond these differences and agree to move forward by starting the selection process as soon as 
possible.  
8.6.  The DSB took note  of the statements.  
9  PROPOSAL REGARDING T HE APPELLATE BODY SE LECTION PROCESS 
(WT/DSB/W/596/REV.1)  
9.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
Argentina, Brazil, Colombia, Chile, Guatemala, Mexico and Per u. He drew attention to the 
communication contained in document WT/DSB/W/596/Rev.1 and he invited the respective 
delegations to speak.  
9.2.  The representative of Mexico , speaking on behalf of Argentina, Brazil, Colombia, Chile, 
Guatemala, Mexico and Peru, recal led that, at the 22  May 2017 DSB meeting, the above -
mentioned countries had proposed that a decision be taken to start the selection process for the 
vacancy that would arise after 30  June 2017. However, no consensus had been reached either on 
this proposal  or on the proposal contained in document WT/DSB/W/597. Mexico was concerned 
about the current situation. Article  17.1 of the DSU stipulated that the Appellate Body had to be 
composed of seven members. As of 1  July 2017, there would only be six members on the 
Appellate Body. Although there had been a time when there were only five members on the 
Appellate Body, the risk that a similar situation would be repeated  – and becoming accustomed to 
it – should be of concern to all Members. At the 22  May 2017 DSB me eting, many delegations had 
expressed a preference for initiating two selection processes, which would be ideal under the 
present circumstances. However, it had also been stated that, in any case, at least one selection 
process should be initiated as soon as possible. In light of the above, Argentina, Brazil, Colombia, 
Chile, Guatemala, Mexico and Peru had now submitted a revised proposal (WT/DSB/W/596/Rev.1). 
That proposal was based on past decisions by the DSB that comprised the following four elements: 
(i) to launch a selection process to replace Mr. Ricardo Ramírez Hernández, whose second term of 
office would expire on 30  June 2017;  (ii) to establish a Selection Committee;  (iii) to set a deadline 
of 10  July 2017 for submitting nominations of candidates; and (iv)  to request that the Selection 
Committee issue its recommendation by 22  November  2017 at the latest.  WT/DSB/M/398  
 
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  9.3.  The representative of the European  Union  said that, as his delegation had previously stated, 
the EU fully supported the launching of the selection processes for new Appellate Body members 
as quickly as possible. In fact, the EU proposal entirely incorporated the proposal made by 
Argentina, Brazil, Colombia, Chile, Guatemala, Mexico and Peru. The EU said that it regretted that 
it had not been possible  to reach consensus on the proposal that it had put forward. In light of 
past practice, there was no reason why one selection process should be singled out at this point. 
The EU encouraged the Chairman to continue his consultations with Members on this iss ue, so that 
both processes could be launched as quickly as possible. The EU regretted that unfortunately the 
processes would not be launched at the present meeting.  
9.4.  The representative of Pakistan , speaking in relation to both Agenda items  8 and 9, said tha t 
his country was not a frequent user of the dispute settlement system but attached significant value 
to it as an important pillar of the WTO system. This system of binding dispute settlement made the 
WTO unique compared to other multilateral Organizations . The dispute settlement system was 
presently facing a great challenge. It would not be able to carry on its work efficiently due to the 
vacancy in the Appellate Body, arising from the expiration of the term of one Appellate Body 
member at the end of June  2017. This was to be considered in the context of the Appellate Body's 
very heavy workload. Since the DSB meeting held on 25  January  2017, the DSB  Chairman had 
submitted two  approaches for consultations with Members for a new selection process to fill the 
two upcoming vacancies on the Appellate Body: one  single process to fill both vacancies or 
two independent processes for each vacancy. However, as of the present meeting, it was 
disappointing to note that no consensus had been reached on these matters. The  term of office of 
one Appellate Body member would expire at the end of June  2017, but the selection process to fill 
this vacancy had not started yet. Pakistan thanked the Membership for its continued effort on this 
issue, and particularly thanked the EU a s well as Argentina, Brazil, Colombia, Chile, Guatemala, 
Mexico and Peru for putting forward their respective proposals on the Appellate Body selection 
process. Pakistan urged Members to show flexibility on these proposals so as to launch the 
selection pro cess without further delay. This would allow the Appellate Body to continue its work 
with minimal disruption. Pakistan said that Members should come up with a formulation for clear 
time-lines to fill the vacancy whenever it arose. It stressed the importanc e of the work of the 
Appellate Body and the heavy workload the Appellate Body was currently facing. As the DSU made 
clear, vacancies had to be filled as they arose. Therefore, a delay in initiating the selection process 
to fill the vacancy of an Appellate Body member would be detrimental to the work, as well as to 
the legitimacy, of the DSB.  
9.5.  The representative of Turkey , speaking in relation to both Agenda items  8 and 9, said that his 
country was disappointed that the DSB was still not in a position to init iate the Appellate Body 
selection process. Although every Member had spoken about the importance of the WTO dispute 
settlement system and a well -functioning Appellate Body, Turkey regretted that Members were not 
in a position to reach consensus, even after  a couple of months of discussion. Turkey said that it 
did not have a preference for either of the proposals, because both could work. It urged Members 
who had concerns with any of these proposals to act responsibly and to continue to consult with 
the Chai rman and other Members in order to start the selection process as soon as possible.  
9.6.  The representative of Ecuador , speaking in relation to both Agenda items  8 and 9, said that 
the situation faced by Members in the DSB should be resolved as soon as possible  so as to 
preserve the credibility of the WTO. Ecuador believed that the way forward would be to adopt a 
decision, as soon as possible, to launch the selection process for the vacancy which would arise 
after 30  June 2017, to replace Mr. Ricardo Ramírez -Hernández. Subsequently, a selection process 
should be launched to fill the vacancy that would arise on 12  December  2017, to replace Mr. Peter 
Van den Bossche. The revised proposal set out in document WT/DSB/W/596/Rev.1, contained only 
two changes to the prev iously proposed timelines. The revised proposal in document 
WT/DSB/W/597/Rev.1, submitted by the EU, contained only one change in paragraph  4. Ecuador 
was concerned that time was passing but Members were not complying with the requirement 
stipulated in Art icle 17.1 of the DSU that the Appellate Body had to be composed of seven 
members. Ecuador was flexible as to whether there should be one single process for the two  AB 
positions or two separate processes. It was important for the DSB to take a decision one way or 
the other. Members should make their positions known in order to understand the situation and to 
reach a consensus through dialogue. Ecuador recognized the enormous amount of work that had 
been done by the DSB and believed that a lack of action rega rding this matter would aggravate 
the situation. Ecuador believed that many Members had similar positions concerning this situation. 
Therefore, Ecuador appealed to Members to move away from inflexible positions in order to get WT/DSB/M/398  
 
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  out of the impasse faced by t he DSB. This would enable the DSB to approve the process put 
forward by several Latin American countries to carry out a single selection process to replace 
Mr. Ricardo Ramírez -Hernández.  
9.7.  The representative of El Salvador  said her country thanked the delega tions of Argentina, 
Brazil, Chile, Guatemala, Mexico and Peru for their revised proposal. El Salvador considered that 
this selection process should start as quickly as possible to replace Mr.  Ricardo Ramírez -
Hernández, whose term of office would end on 30  June 2017. El Salvador was flexible and believed 
that it was very important to get out of the current deadlock. El  Salvador would continue to 
monitor this matter very closely.  
9.8.  The representative of Korea , speaking in relation to both Agenda items  8 and 9,  said that his 
country expressed serious concern about the current situation where the DSB had failed to launch 
the Appellate Body selection process. Taking into account the recent developments regarding the 
Appellate Body's workload, Korea stressed that it  was desirable to avoid any vacancy in the 
Appellate Body. Thus, Members had to place priority on resolving the deadlock regarding the 
launch of the selection process, with a sense of urgency. Korea noted that under Article  17.2 of the 
DSU vacancies on the  Appellate Body shall be filled as soon as they arose without providing 
detailed rules on the selection process. Specifically, there was no rule in the DSU on whether or 
not the selection process for two  separate vacancies in the same year should be launch ed and 
carried out at the same time. Nevertheless, Korea highlighted that all Members had an obligation 
to fill those vacancies. Korea said that it did not intend to take sides with any Member as to 
whether to launch the selection process for the two  vacan cies simultaneously or not. In Korea's 
view, in order to ensure the proper functioning of the Appellate Body, vacancies should be filled in 
a timely manner. In this regard, Members bore the responsibility to assure the selection process 
could proceed, with out delay, in a fair and balanced manner. If any Member disagreed with 
launching of the selection process at the present meeting, Korea would ask that such Member 
provide a detailed explanation on its rationale regarding this matter. In conclusion, Korea u rged all 
Members to recognize the seriousness of the current situation, to be flexible how the selection 
process should be launched, and to make every effort to launch the selection process as soon as 
possible.  
9.9.  The representative of Egypt  speaking in relat ion to both Agenda items  8 and 9 , said that his 
country was concerned about the current deadlock regarding the appointment of members to fill 
the upcoming vacancies on the Appellate Body. Egypt believed that the Appellate Body 
represented the crown jewel o f the WTO and distinguished the WTO from other international 
organizations. This contributed to its relevance for the international trade regime. Consequently, 
Egypt said that it had taken note of the proposals and considered them to be positive. Egypt 
regretted the lack of consensus on this matter and believed that it was important that Members 
were flexible in order to reach a desirable and necessary consensus so that the Appellate Body 
could function well.  
9.10.   The representative of Canada , speaking in relati on to both Agenda items  8 and 9, said that 
his country thanked the proponents of both proposals. Canada reiterated the statements made at 
previous DSB meetings on this issue. Canada agreed with other Members that the Membership 
needed to launch a selection  process as soon as possible. Canada noted that Mr. Van den 
Bossche's term would expire in less than six  months. Canada also noted that the United States has 
indicated that its Administration was still in transition. Canada would be pleased to participate in a 
special DSB meeting before the regular meeting in July if a solution were to be found. Hopefully, 
that period should provide enough time for Members to  define their respective positions.  
9.11.   The representative of Panama  said that, like previous speakers, his country was concerned 
about the delay in the launching of the Appellate Body selection process and the insistence on 
combining two processes, which, in Panama's view, would only cause problems. In light of the 
heavy workload of the dispute settlement s ystem, the selection process had to be initiated as soon 
as possible. Panama noted that if by September or November  2017, the DSB had not dealt with 
these matters, next year there could be as many as three processes to deal with at the same time. 
This woul d have serious consequences for the system, as had been pointed out by other Members. 
Panama noted that Mr. Ramírez was the only Spanish speaking member of the Appellate Body. 
Once he was no longer a member of the Appellate Body, this would have a negative  impact on the 
work carried out in Spanish. The DSB had to deal with this situation as soon as possible. In light of 
the current situation that the process to replace Mr. Ramírez could not be launched at the present WT/DSB/M/398  
 
- 14 - 
 
  meeting, the DSB had to meet its respons ibility and to eliminate any disruptions to the system. 
Panama said that, if Mr. Ramirez was available, the DSB could consider extending his term of 
office until his successor was found. However, Panama noted that such an extension might prove 
to be contro versial. If Mr. Ramirez was available, the DSB could take a decision to extend his term 
of office. The present situation affected all Members and therefore all Members had to take 
responsibility to minimize the effect of any disruptions to this system.  
9.12.   The representative of Australia , speaking in relation to both Agenda items  8 and 9, said that 
her country thanked those delegations that had put forward revised proposals. Australia recalled 
its interventions at recent DSB meetings on this issue and restated its deep disappointment at the 
failure of the DSB to reach consensus on a selection process or processes to fill upcoming 
vacancies on the Appellate Body  – one of which was now imminent. As a result of this failure, the 
DSB had also failed to meet its obli gations under Article  17.2 of the DSU to appoint new Appellate 
Body members to fill vacancies as they arose. The DSB also risked undermining the credibility and 
good functioning of the dispute settlement system, in which all Members had a shared 
responsibi lity and interest. Members were all aware of the current pressures faced by the dispute 
settlement system, and the challenges that lay ahead, particularly at the Appellate Body level. In 
that light, Australia repeated the call it had made at the 22  May 2017 DSB meeting for all 
Members to demonstrate pragmatism, flexibility and good faith in order to reach agreement as 
soon as possible on a process, or processes, to ensure the appointment of members to the 
Appellate Body was not further delayed.  
9.13.   The represen tative of China , speaking in relation to both Agenda items  8 and 9, said that 
his country welcomed the proposals submitted by the respective Members regarding the Appellate 
Body selection process. China referred to its previous statements on this matter an d reiterated its 
systemic concern regarding the delay of the Appellate Body selection process. China recalled that, 
in this speech made on 8  June 2017, the Chairperson of the Appellate  Body, Mr.  Ujal Singh  Bhatia, 
said that he expected the Appellate Body d ecisions to be increasingly delayed as numerous 
complicated cases were appealed at the same time. If new Appellate Body members could not be 
selected as vacancies arose, there was no doubt that the current delay would be even more 
severe. To ensure the smo oth operation of the Appellate Body and the whole WTO dispute 
settlement system, China called upon Members to be more flexible and constructive, and to initiate 
the appointment process without further delay.  
9.14.   The representative of Japan , speaking in relatio n to both Agenda items  8 and 9, said that 
his country thanked proponents for their respective proposals. Like at the 22  May 2017 DSB 
meeting, Japan wished to express its agreement with the general thrust of the proposals that the 
DSB should act expeditious ly and launch the selection process or processes without delay. Japan 
said that it was ready to join consensus with others to support either proposal. Thus it was 
unfortunate, indeed regrettable, that the DSB was not in a position to launch the selection p rocess 
or processes at the present meeting. This was so especially because Mr. Ramírez -Hernández's  
term would expire very soon. This meant that, as from 1  July 2017, the Appellate Body would only 
have six  members. Pursuant to Article  17.1 of the DSU the Ap pellate Body "shall be composed of 
seven persons". Japan noted that, according to Rule  15 of the Working Procedures for Appellate 
Review, Mr. Ramírez -Hernández  could "complete the disposition of any appeal to which [he] was 
assigned while a Member" and he had to be "deemed" to be a member of the Appellate Body "for 
that purpose only". As the language and the title of this rule suggested, this was a transitional 
provision which was limited in scope and application, addressing only the exceptional 
circumstanc es where the change in members of the division hearing appeal could not serve the 
timely and orderly conduct and work of appellate reviews, as Japan understood it. Japan also 
noted that the expiry of Mr. Van den Bossche's term was only months away. Given t he time and 
resources needed to select his replacement, it had now become a pressing need to launch a 
selection process to replace him as soon as possible. Appointing a member of the Appellate Body 
was one of the important functions entrusted to the DSB un der the DSU. Japan urged all Members 
concerned to exercise flexibility and to act in a constructive manner so that the DSB could perform 
its important function, as contemplated in the DSU, without further delay.  
9.15.   The representative of Honduras , speaking in relation to both Agenda items  8 and 9, said 
that her country wished to express its deep concern for the current situation in the DSB. She noted 
that Mr. Ricardo Ramírez -Hernández's mandate would expire in 11 days and the DSB had not even 
started a selectio n process to replace him. Pursuant to Article  17.2 of the DSU, vacancies had to WT/DSB/M/398  
 
- 15 - 
 
  be filled as they arose. For this reason Honduras called on all Members to show flexibility and a 
willingness to find a rapid solution so as to strengthen the multilateral trad ing system.  
9.16.   The representative of Paraguay  said that his country would like to express its concern with 
the ongoing delays in the selection process for members of the Appellate Body. In this case the 
situation was even more delicate given the current workl oad of the Appellate Body. For this 
reason, Paraguay urged the DSB to agree to launch the first selection process as soon as possible 
so as to be able to fill the vacancy left by Mr. Ricardo Ramírez -Hernández at the end of June.  
9.17.   The representative of Hong Kong, China , speaking in relation to both Agenda items  8 and 9, 
said that her delegation would like to thank the EU and several Latin American Members for their 
revised proposals. Both proposals were acceptable to Hong  Kong, China, and her delegation stood  
ready to join a consensus to support either of them. Hong Kong, China was disappointed with the 
current deadlock where Members were unable to reach consensus on the launching of the selection 
process for Appellate Body members. It urged Members to exercis e flexibility and come up with a 
solution as soon as possible.  
9.18.   The representative of India, speaking in relation to both Agenda items 8 and 9, said that his 
country would like to express its concern regarding the delay in the initiation of the Appellate Bo dy 
selection process. While India thanked both proponents for their proposals, it found it strange that 
a normal process would require proposals from Members. India noted that the EU's proposal was 
to fill the two vacancies with a timeline of October  2017.  India noted that the other proponents 
had called for filling the single vacancy with a timeline of November  2017. For India, either of 
these two processes was fine considering that the filling of vacancies in the Appellate Body should 
be undertaken as a m atter of routine. While India noted the position of both the EU and the United 
States on the appointment process, it was still not clear of the underlying rationale and 
justification of both positions for not joining consensus on either one of the processe s. While it was 
India's understanding that the EU was not in favour of going ahead with the appointment of a 
single vacancy, the United States had stated that, given the ongoing transition in its leadership, it 
was not in a position to support the proposed  decision to launch a process to fill a position on the 
Appellate Body that would only become vacant in December. India said it was trying to understand 
this impasse. It asked why the single vacancy that would arise on 30  June 2017 could not be filled 
imme diately and what the rationale for not joining consensus on such a decision was. On the other 
hand, with regard to initiating the process to fill both vacancies that arose in 2017, India asked 
what the rationale was for stalling the process, especially whe n past practice in the WTO had 
probably witnessed such processes. India had sought to know what the past practice has been in 
this regard. Noting that the impasse was ongoing, India sought a factual account from the 
Secretariat, at the next DSB meeting, re garding previous Appellate Body member appointment 
processes where there had been single or simultaneous processes. Understanding past practice 
could be a useful guide to Members to understand the context of the present impasse better and 
come to a consens us decision in this regard. What was of concern to India was that the impasse in 
initiating the formal appointment process – a purely procedural matter  – had been an issue for the 
DSB for about six months. It seemed likely that a few months further delay i n filling the vacancies 
could lead to a situation of filling both vacancies simultaneously as a fait accompli. India urged 
those Members who had expressed reservations on either of the processes to reconsider their 
positions so that the DSB could formally initiate the selection process as soon as possible.  
9.19.   The representative of Singapore , speaking in relation to both Agenda items  8 and 9, said 
that his country would like to thank the EU and the group of Latin American countries for their 
revised proposals. Singapore expressed its serious systemic concerns and regrets on the lengthy 
delay in the launch of the Appellate Body selection process. Singapore urged Members to show 
flexibility with the proposals and to be pragmatic in coming to a consensus to launch the selection 
process or processes as soon as possible.  
9.20.   The representative of Chinese  Taipei , speaking in relation to both Agenda items  8 and 9,  
said that her delegation shared the concern expressed by other Members on the delay of the 
selection process (o r processes). In particular, Chinese Taipei was concerned that a vacancy on 
the Appellate Body would negatively affect the stable and efficient operation of the entire system. 
As it had mentioned at the 22  May 2017 DSB meeting, Chinese Taipei was ready to support either 
proposal, and looked forward to participating in any discussion or special meeting to facilitate a 
timely solution.  WT/DSB/M/398  
 
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  9.21.   The representative of Viet Nam said that, as mentioned by her country at the 22  May 2017 
DSB meeting, and as had been stated by many Members at the present meeting, Viet Nam was 
concerned that the process for selecting members for the Appellate Body had not been decided 
upon yet, without clear reason. In order to avoid the workload challenges caused by vacancies on 
the Appellate  Body, as had occurred in the past, Viet Nam supported any proposal to accelerate 
the launch of the selection process. In case that the DSB could not initiate two processes at the 
same time, Viet Nam urged Members to consider the situation and to start the  selection process to 
replace Mr. Ricardo Ramírez -Hernández, whose term of office would be expiring in only 11  days, as 
soon as possible  – as had been proposed by Argentina, Brazil, Colombia, Chile, Guatemala, Mexico 
and Peru. Viet  Nam said that it hoped t hat the DSB would soon find an appropriate and 
constructive solution to resolve this problem.  
9.22.   The representative of Switzerland  said that his country appreciated the Chairman's efforts 
towards resolving this matter and thanked the proponents for their revi sed proposals. Like many 
others, Switzerland regretted that it had not yet been possible to reach consensus and move 
ahead with what should have been a standard procedure to fill vacancies on the Appellate Body. 
Switzerland shared the serious concerns expr essed by other delegations about the detrimental 
consequences of the situation on the integrity of the multilateral trading system and, on the proper 
functioning of the WTO dispute settlement mechanism. Switzerland hoped that Members' positions 
would conve rge and enable both processes to be launched and be taken forward as soon as 
possible.  
9.23.   The representative of the Russian  Federation  said that her country would like to refer to its 
statement made at the 22  May 2017 DSB meeting. Russia highlighted its serio us concerns over the 
current situation that would lead to unfilled vacancies on the Appellate Body at a time when it was 
facing unprecedented workload challenges that were only expected to grow. Russia urged all 
Members to resolve their differences to ensu re the proper functioning of the Appellate Body and to 
ensure compliance with the very clear and explicit provisions of Article  17.2 of the DSU on this 
matter.  
9.24.   The representative of New Zealand  said that her country thanked the Chairman for his 
ongoing eff orts to find consensus on this important matter. New  Zealand thanked the EU, and 
separately Argentina, Brazil, Colombia, Chile, Guatemala, Mexico and Peru, for their revised 
proposals to launch the Appellate Body selection process. New Zealand stated its a greement with 
the proponents, and the broader set of delegations that had intervened in this discussion over 
recent months, that the DSB urgently needed to start the selection process so that it could appoint 
new Appellate Body members and ensure that the,  now inevitable, vacancy was kept as short as 
possible. While New  Zealand saw systemic advantages, from an efficiency and expediency 
perspective, for dealing with both processes at the same time, as had been set out in the EU's 
proposal, New  Zealand remain ed pragmatic and could also join consensus on the proposal from 
the Latin -American proponents to move forward on the first vacancy. New Zealand would have, in 
fact, liked to further consider the dates in the proposals. While this was now somewhat academic,  
in current circumstances, it did show the urgency with which this was viewed. New  Zealand was 
deeply disappointed that Mr. Ramírez -Hernández's term would expire at the end of June  2017, and 
the DSB would not have even managed to launch a process to replac e him, let alone to consider 
the candidates, or to begin the key task of actually agreeing on a candidate. Again, New  Zealand 
urged all Members to reach a consensus on the Appellate Body selection process and to be 
pragmatic and constructive in this proces s so that candidates could be appointed as soon as 
possible. The DSB needed to give the Appellate Body the necessary resources to do its work, 
otherwise the delays the DSB created in agreeing a process would flow very directly into even 
lengthier delays in  appeal hearings and reports. Like other Members, New Zealand said that it 
remained ready to engage in any process or special meetings that were considered necessary to 
facilitate a solution.  
9.25.   The representative of Costa  Rica said that his country wished to  join those Members who 
had expressed their concerns about the delays in the Appellate Body selection process or 
processes. The Appellate Body was the jewel in the dispute settlement crown and all Members had 
to ensure that it functioned properly. Costa Ri ca said that it believed that it was important to show 
pragmatism and responsibility and to comply with Article  17.2 of the DSU, which stipulated that 
vacancies had to be filled as they arose. Therefore Costa Rica considered that the DSB should start 
the selection processes or at least one process for the post currently held by Mr. Ricardo Ramírez -WT/DSB/M/398  
 
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  Hernández whose term of office would expire very soon. The DSB would have to come to a rapid 
agreement in order to avoid any disturbances to the dispute settlemen t system.  
9.26.   The representative of Indonesia , speaking in relation to both Agenda items  8 and 9, said 
that her country took note of the revised proposals. However, Indonesia expressed its 
disappointment that the selection process had not yet been launched con sidering that this matter 
had been discussed during several DSB meetings. In this respect, considering the importance of 
the Appellate Body's ability to conduct its work, Indonesia encouraged Members to show flexibility 
in order to reach consensus so that the selection process could be launched without further delay.  
9.27.   The representative of Norway , speaking in relation to both Agenda items  8 and 9, said that 
her country would like to thank the proponents for their revised proposals. The well -functioning of 
the Appellate Body was Norway's primary interest when considering these proposals. Ensuring that 
all vacancies were filled as they arose was an important part of Norway's considerations. As it had 
already mentioned at the 22  May 2017 DSB meeting, Norway woul d be in a position to support 
either of the two  proposals (as well as the revised ones). Norway said that it had a preference for 
the EU's proposal as it seemed to provide for a more efficient process that could facilitate the 
selection of new Appellate Bo dy members for both of the vacancies within an agreed time -frame. 
Norway noted with regret that one  Member was not in a position to agree to the EU's proposal. 
The proposal from the Latin American proponents only provided for the initiation of the process to 
replace one  seat – the seat that would become vacant in July  2017. That proposal seemed to have 
been accepted by all but one  Member, and it sought to resolve the most pressing matter out of the 
two proposals. Although Norway agreed with the EU that the second  process should be launched 
without delay – and that it was indeed time to launch this second process – it failed to understand 
why the DSB could not agree to launch the process for selecting a new Appellate Body member for 
the seat that would become  vacant in June  2017 – at the present meeting. Norway urged all 
Members to show the utmost flexibility in order to ensure that the DSB surpassed this deadlock for 
the benefit of the system.  
9.28.   The representative of Guatemala  said that his country would like t o thank Mexico for the 
statement made on behalf of the Latin -American proponents. Guatemala wished to take the 
opportunity to join those who had aired concern regarding the lack of consensus to initiate the 
Appellate Body selection process or processes. Gu atemala said that normally form should follow 
substance, however, Members had now been discussing when and how the DSB would adopt a 
decision to initiate one or two selection processes for more than six months. The initiation of the 
selection process was j ust a formality which responded to the legal obligation of filling the 
vacancies of the Appellate Body as they arose so as to have a body made up of seven members. 
At the present meeting, once again, the DSB was in a situation where it could not launched a  
selection process to replace Mr. Ricardo Ramírez -Hernández, whose term of office expired at the 
end of June. In other words, in just 11 days. It was obvious that Members would not be able to fill 
this vacancy now. The WTO would, therefore, most likely, ha ve an Appellate Body made up of 
six members for an extended period of time. Furthermore, as time passed, the question of 
whether or not to launch one or two selection processes would become irrelevant. The expiry of 
the term of office of Mr. Peter Van den Bossche was coming soon. Therefore, if the DSB wanted to 
fill that vacancy as it arose, it was necessary to initiate the selection process in the coming days. 
Otherwise the WTO would be, once again, in the regrettable situation of having an Appellate Body 
made up of five members. The lack of agreement on such simple issues, such as a formality to 
initiate a selection process, had serious consequences for the dispute settlement mechanism and 
the multilateral trading system. Guatemala urged Members to reflect  and act pragmatically to 
resolve this issue as soon as possible.  
9.29.   The representative of Chile said that his country thanked Mexico for its statement made on 
behalf of Argentina, Brazil, Colombia, Chile, Guatemala, Mexico and Peru. In Chile's view, Members 
had to meet their responsibilities with regard to the selection of new Appellate Body members. In 
the very near future, the Appellate Body would have only six members. The fact that the selection 
process had not yet been launched had systemic implications.  It was up to all Members to solve 
this systemic problem. Chile therefore regretted that the DSB could still not launch one or two 
selection processes at the present meeting. The DSB required the commitment of the whole 
Membership to preserve the credibili ty of the WTO. The DSB was one of the fundamental pillars in 
the regular functioning of the WTO. If Members could not guarantee the sustainability and the 
continuity of the work of the Appellate Body, responsibility belonged with them. The situation that 
the DSB currently faced created a very unfortunate precedent for the future work of the WTO. For WT/DSB/M/398  
 
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  these reasons, Chile appealed to all Members to meet their responsibilities and to specify and 
clarify their respective positions so that the DSB could find a s olution and to initiate the selection 
process as soon as possible.  
9.30.   The representative of Mexico , speaking on behalf of Argentina, Brazil, Colombia, Chile, 
Guatemala, Mexico and Peru, reiterated the disappointment of the respective countries about the 
lack of consensus, especially in view of its impact on the dispute settlement system and on the 
Appellate Body in particular. Under these circumstances, Mexico reiterated the willingness of the 
respective countries to work with the DSB Chair and to intensify co nsultations to resolve this 
situation.  
9.31.   The representative of Mexico  said that, in addition to the previous statement, his country 
wished to note that around 26  delegations had taken the floor regarding the AB appointments. 
There had been calls for a flexib le, responsible and pragmatic response to a situation which was 
becoming a matter of urgency and alternatives had been put forward that could be explored. 
Mexico reiterated its readiness to work under the leadership of the DSB Chairman.  
9.32.   The Chairman  thanke d Members for their statements. He noted that although the sense of 
urgency was shared by most Members, it was highly regrettable that the DSB was not yet in a 
position to agree to start the process or processes on the appointment of the Appellate Body 
members. As he had stated at the 22  May 2017 DSB meeting, he had held consultations with 
several delegations with strong stakes and interests in the matter. He had presented some 
concrete ideas in an effort to move this matter forward as soon as possible. Unf ortunately, none of 
those ideas had gained consensus among the Members consulted. He further noted that the first 
vacancy would arise on 1  July 2017. In this regard, he wished to recall that Article  17.2 of the DSU 
stated that vacancies had to be filled as  they arose. He emphasized that, in view of the time 
necessary to go through the selection process properly, it was also high time to start the selection 
process to fill the second vacancy. He urged, once again, all delegations to show more flexibility 
and to get necessary instructions from capitals in order to make a decision to launch the process 
or processes as soon as possible. Finally, he sought Members' understanding, support and 
cooperation regarding these matters.  
9.33.   The DSB took note  of the statements . 
__________