RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/255 
22 October 2008 
 (08-5122) 
Dispute Settlement Body 
29 August 2008  
 
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 29 August 2008  
 
Chairman:  Mr. Mario Matus (Chile) 
  
 Prior to the adoption of the Agenda
, the item concerning the adoption of the Panel Report in 
the case on:  "European Communities – Regime fo r the Importation, Sale and Distribution of 
Bananas:  Second Recourse to Article 21.5 of  the DSU by Ecuador" (WT/DS27/RW2/ECU) was 
removed from the proposed Agenda, following the d ecision of the European Communities to appeal 
the Report.  Also the item related to the adopti on of the Panel Report in the case on:  "European 
Communities – Regime for the Importation, Sale and Distribution of Bananas:  Recourse to 
Article 21.5 of the DSU by the United States" (WT/DS27/RW/USA and Corr.1) was removed from the proposed Agenda, following the decision of th e European Communities to appeal the Report. 
  
Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations 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...................................................................................5  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........5  
(d) European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Communities..............................................................6  
2. Implementation of the reco mmendations of the DSB............................................................7  
(a) United States – Measures relating to shrimp from Thailand.......................................................7  
(b) United States – Customs bond directive for merchandise subject to anti-
dumping/countervailing duties.................................................................................................. ..8 
3. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ............................................9  
(a) Statements by the European Communities and Japan ................................................................9  WT/DSB/M/255 
Page 2  
 
  4.
 European Communities and its member States – Tariff treatment of certain 
information technology products...........................................................................................12  
(a) Request for the establishment of a panel by the United States, Japan and the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu .....................................................12  
5. Japan – Countervailing duties on dynami c random access memories from Korea..........15  
(a) Statement by Japan ............................................................................................................. ......15  
6. Statement by Ecuador concerning the European Communities' regime for the 
importation, sale and distribution of bananas......................................................................16  
  
1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.69) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.69) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.44) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.7 – WT/DS292/31/Add.7 – 
WT/DS293/31/Add.7) 
 1. The Chairman
 recalled that Article 21.6 of the DSU required that "unless the DSB decides 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establishment of the reasonable 
period of time pursuant to paragraph 3 and shall remain on the DSB's Agenda until the issue is 
resolved".  He proposed that the four sub-items to which he had just referred be considered separately. 
(a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.69) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.69, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US Section 211 Omni bus Appropriations Act of 1998. 
3. The representative of the United States  said that his country had provided a status report in 
this dispute on 18 August 2008, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, a number of legislative proposals that would implement the DSB's recommendations and 
rulings in this dispute had been introduced in th e current US Congress, in both the US Senate and the 
US House of Representatives.  The US administ ration continued to work with the Congress to 
implement the DSB's recommendations and rulings. 
4. The representative of th e European Communities  said that, as Members had noticed, the US 
status report, once again, failed to report any progress on implementation.  At the previous DSB 
meeting, the EC had heard from the US representa tive that the United States was second to none in 
providing strong intellectual property protection within its territory.  This was certainly a bold general 
statement, but it was simply at odds with the US  performance in this dispute as well as in the 
Section 110 dispute to which the EC would revert at the later stage.  In fact, it had now been more  WT/DSB/M/255 
 Page 3 
 
 
  than six years since the United States had been f ound in breach of the TRIPS Agreement.  The EC 
asked if Members would have to wait another six ye ars for compliance in this dispute.  The EC hoped 
that the bipartisan bills introduced to rep eal Section 211 would finally progress and put the 
United States into compliance with its TRIPS obligations. 
5. The representative of Cuba  said that her country deplored the fact that for so many years the 
United States had taken no action towards the adopt ion of appropriate statutory measures that could 
resolve this dispute.  That very Member, which at the 1 August 2008 DSB meeting had stated that it 
was committed to full implementation of the TRIP S Agreement, had given no indications in more 
than six years of any serious commitment to comply  with the DSB's rulings and recommendations.  It 
would not be desirable for this case to remain like other cases on the DSB's Agenda where the 
respondent had formally repealed legislation r unning counter to the WTO Agreement, but trade-
distorting effects continued to prove detrimental to Members.  The coherent and comprehensive 
dispute settlement system, which strengthe ned multilateralism and prohibited unilateral 
determinations, was being seriously undermined wh en Members disregarded their obligations.  Cuba, 
along with other Members, had continuously voiced th eir concerns about the systemic implications of 
such cases. 
6. All legal disputes had political connotations, as this case had demonstrated.  The rights of 
Cuban owners had been directly affected on US te rritory.  Section 211 affected the registration of 
Cuban distinctive trademarks which, as everyone was aware, were very important.  Members were 
currently witnessing the enactment of a spate of  legal regimes on intelle ctual property and the 
enforcement of intellectual property rights.  Agreem ents were being promoted  at bilateral, regional 
and multilateral level in a move to afford more extensive protection for such rights.  The Anti-
Counterfeiting Trade Agreement, which had recent ly been the object of such extensive media 
attention and was being secretly  negotiated among a small group of countries, bore witness to the 
above.  However, the viability and credibility of  legal instruments such as the aforementioned 
Agreement, which would impose high standards of protection, was doubtful and unclear, because one 
of the parties thereto was a country that almost a decade ago had enacted legislation that ran counter 
to the TRIPS Agreement, and remained in force in spite of the recommendations made by the WTO 
Appellate Body in 2002.  Whilst the commitments undertaken were not being respected, new ones – 
broader in scope and with a high de gree of legal technicality – were being promoted.  Cuba could not 
but recall that the implementation in the Section 21 1 dispute was very closely linked to the Bacardi 
company, which marketed rum under the Cuban trade name known as HAVANA CLUB.  This was 
an act of counterfeiting which was promoted in bo th, fact and law, on US territory.  As some 
Members had stated at the previous DSB meeting,  failure to implement the DSB's recommendations 
also affected the respondent and its own interests.  Cuba, yet again, requested the immediate repeal of 
Section 211. 
7. The representative of China  said that his country believed that full implementation of the 
adopted DSB's rulings and recommendations, namely th e withdrawal of illegal measures, was of most 
importance for the smooth functioning of the Organiza tion.  China noted that the measure taken by the 
United States nullified not only the interests of the EC under the TRIPS Agreement, but also the interests of other WTO Members.  Although every Member had the right to have recourse to the 
dispute settlement mechanism, it was definitely a heavy burden for developing countries to do so, 
especially for those developing countries which lack ed human and financial resources.  Therefore, it 
was quite understandable that Cuba expected to be nefit from the full and faithful implementation of 
the DSB's ruling in this dispute, and was closely m onitoring the status of this pending dispute.  Once 
again, China wished to join the EC and Cuba in urging the United States to take proper measures to 
enforce the intellectual property rights pursuant to  the TRIPS Agreement, and to implement the 
decision of the DSB in this dispute as soon as possible. WT/DSB/M/255 
Page 4  
 
  8. The representative of Brazil
 said that his country thanked the United States for its status 
report and wished to state, once ag ain, that full implementation of the DSB's recommendations in this 
dispute was necessary.   
9. The representative of Thailand  said that his country thanked the United States for its status 
report.  Like previous speakers, Thailand was con cerned about the systemic implications of this 
dispute.  Non-implementation of the DSB's rulings  and recommendations undermined the rules-based 
multilateral trading system.  Thailand, therefore, ca lled on the United States to take the necessary and 
urgent steps to comply with its obligations under the TRIPS Agreement. 
10. The representative of India  said that her country wished to renew its systemic concerns about 
the situation of non-compliance in this dispute.  Despite the adoption of the Panel and the Appellate 
Body Reports by the DSB several years ago, Members were still waiting for implementation and 
compliance by the United States.  India, once again,  urged the United States to promptly take the 
requisite steps to bring the condemned measur es into compliance with the US obligations. 
11. The representative of the Bolivarian Republic of Venezuela  said that her delegation thanked 
the United States for its status report as well as Cuba  for its statement made at the present meeting.  
Her country yet again expressed systemic concern about the persistent failure to comply in this case.  
It must be emphasized that the attitude of the United States in this dispute undermined one of the foundations of the WTO;  i.e. the dispute settleme nt system, which had been established to solve 
disputes among Members.  Her country hoped that the current US Congress would realize that it was in the interest of not only other Members, but also in  the interest of the United States to put an end to 
this situation, which undermined the authority of  the TRIPS Agreement and the DSB.  Her country, 
therefore, urged the United States to comply  with the DSB's decisions and rulings. 
12. The representative of Uruguay
 said his country shared the systemic concerns expressed by 
previous delegations.  Uruguay considered it extr emely important to ensure that Members complied 
promptly with the DSB's recommendations.  This was an essential factor in preserving the smooth 
operation and the credibility of the dispute settleme nt system as well as the legal certainty and the 
effective balance of rights and obligations provided under the multilateral trading system.  Therefore, 
Uruguay again urged the United States to do its utmost to comply with the DSB's recommendations. 
13. The representative of Nicaragua  said that her delegation wished to thank the United States for 
its status report.  Nicaragua also thanked Cuba for its statement, which like on previous occasions 
provided an update regarding the US efforts towa rds implementation of the DSB's recommendations 
and rulings.  However, Nicaragua regretted that fro m this report one could not see any progress in this 
dispute.  Nicaragua reiterated its systemic concerns  about this situation and urged the United States to 
take urgent measures in order to implement ef fectively the DSB's recommendations and rulings.  
Nicaragua agreed with the statements made by other delegations that it would be in the interest of the 
United States to implement the DSB's recommendations as this would improve the US image as a WTO Member who respected the dispute settlement mechanism. 
14. The representative of the United States
 said that, in response to certain systemic concerns and 
comments about the US compliance record, as his dele gation had stated in the past, the facts simply 
did not support Members' assertions.  The record was clear:  the United States had come into compliance, fully and promptly, in  the vast majority of its dis putes.  As for the remaining few 
instances where the US efforts to do so had not  yet been entirely successful, the United States 
continued to work actively towards compliance.  As at the previous DSB meeting, the United States 
regretted that the EC had returned to criticizing the US commitment to intellectual property rights and 
to the TRIPS Agreement.  Not only were the EC 's comments regrettable, its criticisms were 
completely unfounded.  The EC had noted the US statement that the United States was second to no  WT/DSB/M/255 
 Page 5 
 
 
  one in providing strong intellectual property protec tion within its own territory. The United States 
would note that the EC had not seriously contested that statement at the present meeting.  
15. The representative of Cuba  said that her delegation wished to note that under Item 1 of the 
Agenda of the present meeting, which monitored the implementation processes in a number of pending disputes, three matters concerned the United St ates.  She wished to draw  Members' attention 
to this fact and said that the US authorities should properly assess its compliance with the DSB's 
recommendations and rulings in various disputes.  Cuba urged the United States to make efforts to 
ensure that those pending matters be resolved as soon as possible. 
16. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.69) 
17. The Chairman  drew attention to document WT/DS184/ 15/Add.69, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
18. The representative of the United States  said that his country had provided a status report in 
this dispute on 18 August 2008, in accordance with Article 21.6 of the DSU.  As of 23 November 2002, the US authorities had addresse d 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 in this dispute.  Details  were provided in document WT/DS184/15/Add.3.  The 
US administration would continue to work with the US Congress with respect to the 
recommendations and rulings of the DSB that had not already been addressed by the US authorities 
by 23 November 2002. 
19. The representative of Japan
 said that his country thanked the United States for its statement 
and its latest status report.  Since the United Stat es had taken certain measures to implement part of 
the DSB's recommendations in November 2002, as repor ted by the United States, there had been little 
tangible progress in this long-standing dispute regarding the remaining part of the DSB's 
recommendations and rulings.  A full and prompt implementation of the DSB recommendations and 
rulings was "essential to the effective functioning  of the WTO and the maintenance of a proper 
balance of the rights and obligations of Members".1  Japan called on the United States to redouble its 
efforts to this end. 
20. 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.44) 
21. The Chairman  drew attention to document WT/DS160/ 24/Add.44, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
22. The representative of the United States  said that his country had provided a status report in 
this dispute on 18 August 2008, in accordance with Article 21.6 of the DSU.  The US administration 
would work closely with the US Congress and would con tinue to confer with the EC in order to reach 
                                                      
1 Article 3.3 of the DSU. WT/DSB/M/255 
Page 6  
 
  a mutually satisfactory resolution of this matter.  In  this regard, the United States shared the EC's oft-
stated goal of discussing how a mutually satisfactor y solution to this dispute could be achieved. 
23. The representative of th e European Communities
 noted that, at the present meeting, the DSB 
had before it the 44th update on the TRIPS continued non-compliance.  At the last meeting, the EC had expressed its regret and frustration that the Un ited States had made no progress in bringing this 
long-running dispute to a solution.  The United States  had reacted by stating that it appreciated "more 
constructive" statements from the EC side.  In fact , the EC would be pleased to do so, if it had any 
indication from the United States that it was taking any concrete steps to bring itself into compliance.  
The United States had not given any such indication.  Consequently all that was left to do for the EC was to again express its regret and frustration in th is matter.  The EC would have to do so until the 
situation changed and the United States displayed a more constructive attitude in this dispute.   
24. The representative of China
 said that his country urged the United States to implement the 
DSB's rulings as soon as possible, and to bring its copyright law into consistency with the TRIPS Agreement so as to enforce the in tellectual property rights properly. 
25. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.7 – WT/DS292/31/Add.7 – WT/DS293/31/Add.7) 
26. The Chairman
 drew attention to document WT/DS291/37/Add.7 – WT/DS292/31/Add.7 – 
WT/DS293/31/Add.7, which contained the status repo rt by the EC on progress in the implementation 
of the DSB's recommendations in the case concerning  the EC's measures affecting the approval and 
marketing of biotech products. 
27. The representative of the European Communities  said that that the EC was happy to report, 
once more, that good faith cooperation between the comp lainants and the EC continued.  The EC kept 
a regular dialogue with the three complainants and held regular technical me etings which were aimed 
at addressing all relevant biotech-related issues of thei r concern.  The last such technical meeting with 
the United States had been held on 18 and 19 June, but informal contacts with the United States as well as the other complainants had taken place since th en.  As a sign of satisfaction with this process, 
Argentina and Canada had agreed to further extend the reasonable period of time until 1 and 
31 December 2008, respectively.  Progress in the processing of pending applications continued.  
Sixteen authorizations had been granted since th e establishment of the WTO panel, seven in 2007 
only.  One draft authorization decision on oilseed rape T-45 would be transmitted to the Council after 
the summer and two more draft authorization decisions (LL25 cotton and A2704-12 soybean) would be adopted by the Commission in the autumn.  Following the clarification by EFSA on concerns 
related to the relevant antibiotic  marker gene, expected by mid- December, the Commission might be 
in the position to authorize four more GM events (one GM potato and three maize hybrids) before the 
end of the year or in early 2009.  In terms of  progress on national measures covered by the panel 
report, the EC had already reported at the previous DSB meeting on the decision adopted by Austria, which had lifted its bans on im ports and processing of GM maize MON810 and T-25.  The EC 
believed that given the inevitably sensitive nature of  biotech issues, dialogue was the appropriate way 
forward and remained open to continue discussions  with the three complainants.  The seventh 
technical meeting between the EC and the United St ates had already been tentatively scheduled for 
October 2008.  
28. The representative of the United States
 said that his country thanked the EC for its written 
status report and for its statement made at the present meeting.  At the prior DSB meeting, the  WT/DSB/M/255 
 Page 7 
 
 
  United States had noted its growing concern with wh at appeared to be a systemic dysfunction in the 
EC's approval system for biotech products.  As the United States had explained, the EC had fifty (50) 
biotech product applications backed up in its appr oval system, and only one product had reached final 
decision in calendar year 2008.  The commercial im pact of this dispute was significant and kept 
increasing as the delays continued and the backlog of applications continued to  grow.  Unfortunately, 
in the period since the previous DSB meeting, the EC had made no progress in addressing the ongoing 
delays in its decision-making on biotech products.  It was becoming increasingly apparent that the EC 
did not feel any sense of urgency in addressing th ese delays.  Accordingly, the United States again 
urged the EC to take prompt steps to resolve this  dispute so that no further proceedings would be 
required under the DSU.  
29. The representative of Canada  said that his country thanked the EC for its status report.  
Canada hoped and expected that further progress woul d be made by the EC on this matter, and would 
continue to watch this progress carefully. 
30. The representative of th e European Communities  said that the GMO regulatory regime was 
working normally.  Its functioning should not be rigidly assessed in terms of a number of 
authorizations per year since this was dependent on  various elements and, in particular, on the time 
needed by applicants to answer requests from EFSA on additional scientific information.  That being 
said, the EC estimated that the current yearly rate of authorization was roughly the same as in 2007.  
The details of that were set out in the EC's earlier statement. 
31. The representative of the United States  said that his country understood that the EC had just 
asserted that the EC's authorization process was "ope rating normally".  He said that this was exactly 
the US concern. 
32. The representative of th e European Communities  said that her delegation wished to note that 
the authorization process was set out in the EC's legisl ation, and the legislation as such had never been 
attacked by the United States in this dispute. 
33. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
2. Implementation of the recommendations of the DSB 
(a) United States – Measures relating to shrimp from Thailand 
 (b) United States – Customs Bond Direc tive for merchandise subject to anti-
dumping/countervailing duties 
 
34. The Chairman
 recalled that in accordance with the DSU provisions, the DSB was required to 
keep under surveillance the implementation of reco mmendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Members.  In this respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  He propo sed that the two sub-items to which he had just 
referred be considered separately. 
(a) United States – Measures relating to shrimp from Thailand 
35. The Chairman  recalled that at its meeting on 1 August 2008, the DSB had adopted the 
Appellate Body Report in the case on:  "United St ates – Measures Relating to Shrimp from Thailand" 
and the Panel Report on the same mater, as modified  by the Appellate Body Report.  He then invited WT/DSB/M/255 
Page 8  
 
  the United States to inform the DSB of its inten tions in respect of implementation of the DSB's 
recommendations. 
36. The representative of the United States
 said that his country intended to implement the DSB's 
recommendations and rulings in a manner that respect ed the US WTO obligations, and it had begun to 
evaluate options for doing so.  The United States would need a reasonable period of time in which to 
implement.  The United States stood ready to consul t with Thailand regardi ng a reasonable period of 
time to implement, in accordance with Article 21.3(b) of the DSU. 
37. The representative of Thailand  said that her country thanked the United States for its 
statement on its intentions regarding the implemen tation of the recommendations and rulings of the 
DSB in this matter.  As for the request regardi ng a period of time, Thailand noted that the two 
measures found to be inconsistent with US ob ligations under the Anti-Dumping Agreement and the 
GATT 1994, i.e. the Enhanced Continuous Bond Requi rement and zeroing, continued to have an 
enormous ongoing impact on Thailand's shrimp indu stry.  Thailand, therefore, looked forward to 
meeting the United States in the near  future and within the time-frame required by Article 21.3(b) of 
the DSU to discuss a reasonable period of time fo r prompt implementation.  Thailand hoped for a 
timely and satisfactory resolution of this matte r without the necessity of arbitration under 
Article 21.3(c) of the DSU, and looked forward to  working with the United States to that end.   
38. 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. 
(b) United States – Customs bond directive for merchandise subject to anti-
dumping/countervailing duties 
39. The Chairman  recalled that also at its meeting on 1 August 2008, the DSB had adopted the 
Appellate Body Report in the case on:  "Unite d States – Customs Bond Directive for Merchandise 
Subject to Anti-Dumping/Countervailing Duties" and the Panel Report on the same matter, as modified by the Appellate Body Report.  He then invited the United States to inform the DSB of its 
intentions in respect of implementation of the DSB's recommendations. 
40. The representative of the United States
 said that his country intended to implement the DSB's 
recommendations and rulings in a manner that respect ed the US WTO obligations, and it had begun to 
evaluate options for doing so.  The United States would need a reasonable period of time in which to 
implement.  The United States stood ready to consul t with India regarding a reasonable period of time 
to implement, in accordance with Article 21.3(b) of the DSU. 
41. The representative of India  said that her country noted with satisfaction the US statement that 
the United States intended to comply with the DS B's recommendations and rulings on the Enhanced 
Bond Requirement (EBR) imposed under the Customs Bond Directive, which had been found incompatible with the WTO Agreement.  India wi shed to thank the United States for the statement 
made in this regard.  However, India was disappoint ed with the US request for a reasonable period of 
time to implement the DSB's rulings and recommendations.  The "stacking" effect of the EBR 
continued to have enormous impact on the Indian  shrimp industry and the overall burden on Indian 
exports currently ranged from several million US do llars.  This was an extremely heavy cost on the 
Indian shrimp industry.  Indian exports had already suffered grave damage and any further delay in 
compliance by the United States would compound th e losses further.  As Members were aware, 
prompt compliance was essential to ensure the effect ive resolution of the dispute.  Having said that, 
India stood ready to discuss with the United States  the question of the reasonable period of time, 
namely, the shortest possible time-period for ach ieving compliance and, accordingly, hoped for a 
timely and satisfactory resolution of this matte r without the necessity of arbitration under 
Article 21.3(c) of the DSU to this effect.    WT/DSB/M/255 
 Page 9 
 
 
  42. 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. 
3. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Communities and Japan 
43. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the EC and Japan.  He then invited the respective representatives to speak. 
44. The representative of Japan  said that in early June 2008 the US Customs and Border 
Protection had published preliminary CDSO A distribution amount available for FY20082, thus 
publicly initiating processes for a new round of distributions of collected anti-dumping and 
countervailing duties under the CDSOA.  This latest  action demonstrated that the CDSOA continued 
to transfer financial resources from the foreign prod ucers/exporters to their US domestic competitors.3  
Thus, the CDSOA remained operational with its "essen tial feature" and "the decisive basis" for the 
Appellate Body's conclusion4 still intact.  Under those circumst ances, Japan failed to understand why 
the United States posited that no further actions were  necessary on the part of the United States to 
implement the DSB's recommendations and that there was no basis for Japan to state that the CDSOA 
continued to cause negative trade impacts on Japan and other WTO Members.  Under those 
circumstances, Japan decided to continue, as fro m 1 September 2008, its suspension of concessions 
and related obligations under the GATT 1994 on impor ts of certain products originating in the 
United States for another year to induce full complia nce by the United States.  Due to the decrease in 
the amount of distribution attributable to Japan for FY 2007 and correspondingly in the level of the 
suspension authorized for Japan, th e products subject to additional duties which would be reduced to 
10.6 per cent would be limited to "[ b]all bearings" and "[t]apered ro ller bearings, including cone and 
tapered roller assemblies".  Details would be provided  in the notification to the DSB that Japan would 
file later in the day.  Japan, once again, urged the United States to immediately terminate the illegal distributions and to repeal the CDSOA not just in form , but in substance, so as to resolve this dispute 
once and for all.  According to Article 21.6 of the DSU, the United States was under obligation to 
provide the DSB with a status report in this dispute "until the issue is resolved ".  Japan reserved all its 
rights under the DSU in this dispute. 
45. The representative of th e European Communities
 said that the repeal of the Byrd Amendment 
in 2005 would not be effective before several  years as anti-dumping and countervailing duties on 
imports made prior to 1 October 2007 were progressively collected and would still be distributed in 
accordance with the transition clause in the repea ling Act.  In fact, the United States was now 
preparing the eighth distribution and had already published the provisional amount available for distribution on 30 April 2008, more than US$244 million.  The EC would, therefore, like to ask again the United States if and what steps it intended to  take to stop the transfer of anti-dumping and 
countervailing duties to its industry a nd to finally put an end to the condemned measure.  The EC also 
renewed its call on the United States to abide by its  clear obligation under Article 21.6 of the DSU 
and to submit implementation reports in this dispute. 
46. The representative of India
 said that her country thanked the EC and Japan for maintaining 
this issue on the DSB's Agenda and joined those de legations in urging the United States to eliminate 
the trade-distortive effects of the disbursements under the Byrd Amendment.  The United States was 
                                                      
2  See US Customs and Border Protection's website at: 
http://www.cbp.gov/linkhandler/cgov/trade/priority_trade/a dd_cvd/cont_dump/prelim_repor t08.ctt/prelim_report08.pdf  
3 Appellate Body Report:  "US – Offset Act" (Byrd Amendment), paras. 255 and 259. 
4 Ibid. para. 259. WT/DSB/M/255 
Page 10  
 
  still distributing disbursements under the CDSOA to  the US domestic industry as a result of this 
WTO-inconsistent measure at the expense of fore ign producers and exporters and of WTO Member's 
rights.  India urged the United States to immediatel y terminate the illegal distributions and to repeal 
the CDSOA not just in form, but in substance, so as to resolve this dispute once and for all. 
47. The representative of Thailand
 said that his country thanked the EC and Japan for bringing 
this matter before the DSB.  Thailand continued to  be disappointed at the United States' maintenance 
of these WTO-inconsistent disbursements.  Tha iland thus urged the United States to cease the 
disbursements, repeal the Byrd Amendment with immediate practical effect, and resume providing 
status reports until such actions had been ta ken and this matter had been fully resolved. 
48. The representative of Canada  said that his country agreed with the EC and Japan that the Byrd 
Amendment remained subject to the surveillan ce of the DSB until the Un ited States ceased to 
administer it.  Canada was concerned by the efforts of certain parties in the United States to try to reinstate the Byrd Amendment.  In 2003, the DSB had ruled against the Byrd Amendment.  A WTO 
Panel had found that the Byrd Amendment was inc onsistent with WTO oblig ations, and that Panel 
ruling had been upheld by the Appellate Body.  Canada was confident that the United States was 
cognizant of the negative effects the re-instatement  of this measure would have, both in terms of 
inviting trade retaliation and calling into question th e value of a mutually-ben eficial WTO rules-based 
system. 
49. The representative of Brazil
 said that his country thanked Japan and the EC for keeping this 
topic on the DSB's agenda.  Brazil wished to reite rate its concerns about the disbursements by the 
United States to its domestic industry under the Byrd  Amendment.  This situation affected the rights 
of WTO Members and was not in conformity with the DSB's recommendations and rulings.  
50. The representative of Australia  said that her country wished to register its concern at the 
efforts by some within the US system to reinstat e the Byrd Amendment, as referred to by Canada at 
the present meeting and by other delegations at the pr evious DSB meeting.  Australia would consider 
such a development of serious concern and would ur ge the United States to ensure that the Byrd 
Amendment was not reintroduced. 
51. The representative of the United States  said that, as his country had already explained at 
previous DSB meetings, the US President had signed the Deficit Reduction Act into law on 
8 February 2006.  That Act included a provisio n repealing the Continued Dumping and Subsidy 
Offset Act of 2000.  Thus, the United States had ta ken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes.  The United States recalled, furthermore, that 
Members, including the EC and Japan, had acknowle dged during previous DSB meetings that the 
2006 Deficit Reduction Act did not permit the distribu tion of duties collected on goods entered after 
1 October 2007.  The United States, therefore, did not understand the purpose for which the EC and Japan had inscribed this item on the Agenda of the present meeting. 
52. With respect to comments regarding further status  reports in this matter, as the United States 
had already explained, the United States had taken all steps necessary to implement the DSB's 
recommendations and rulings in these disputes.  In this light, the United States failed to see what 
purpose would be served by further submission of  status reports repeating the progress the 
United States had made in the implementation of the DSB's recommendations and rulings.  The 
United States wished to comment on Japan's statem ent that this legislation – though repealed – 
continued to cause trade distortions.  The United States did not understand the basis for this statement.  
The United States recalled that, with one exception, none of the complaining parties in this dispute 
had claimed that the CDSOA caused  trade-distorting effects under th e SCM Agreement.  Indeed, none 
of the Members speaking at the present meeting had made such a claim.  WT/DSB/M/255 
 Page 11 
 
 
  53. Furthermore, though one other Member had claimed that the CDSOA caused trade-distorting 
effects under the SCM Agreement, those adverse eff ects claims had been rejected.  Accordingly, 
Japan's comments alleging trade-distorting effect s were not based on any DSB recommendations and 
rulings.  The United States, therefore, failed to unde rstand the basis for Japan's statement that its trade 
with the United States was being distorted by virtue  of the now-repealed CDSOA.  The United States 
regretted Japan's announcement that it would continue  to apply its suspension of concessions in this 
dispute.  The United States continued to review th e action by Japan and had not concluded that it was 
able to share Japan's characterization.  As th e United States had observed previously, the DSB had 
only authorized the suspension of concessions or ot her obligations as provided in the Award of the 
Arbitrator. 
54. With respect to comments on the possibility of  reintroducing the CDSOA, the United States 
was not aware of any legislative proposals before  the Congress that sought to reintroduce the 
CDSOA, which, as the United States had explained,  was repealed by the Deficit Reduction Act of 
2005.  Finally, returning to a point the United St ates had raised in previous DSB meetings, the 
United States had noted the discrepancy between th e EC's position in a pending dispute currently on 
appeal and the EC's continuing statements to the DSB under this agenda item.  As Member's would 
recall from previous DSB meetings, the EC's position in that appeal was that a Member could not state at a DSB meeting that a measure taken to co mply by another Member was not consistent with 
that Member's WTO obligations.  The United States had invited the EC to bring its position on appeal 
into line with its actions at the DSB.  At the pr esent meeting, the United States could only express its 
regret that the EC in fact had made no effort to do so.  To the contrary, the EC's position here 
appeared to be entirely inconsistent with its positio n on appeal:  in its appellant submission in that 
dispute, the EC had told the Appellate Body that  "the European Communities considers that, once a 
Member has adopted implementing measures which are not properly challenged by the complaining Member, the suspension of concessions or othe r obligations can no longer be applied".   
55. Second, the United States would like to correct certain of the EC's statements made at 
previous meetings as well as at the present one.  Two meetings ago, the EC had asserted that the 
Deficit Reduction Act, which had repealed the CDSOA "states that it will produce effects only at 
some undetermined date in the future".  At the pr evious meeting and again at the present one,  the EC 
had stated that "transfers of anti-dumping and coun tervailing duties to [US] industry ... continue".  
Neither statement correctly described the Deficit Reduc tion Act.  To the contrary, as the United States 
had explained, the Deficit Reducti on Act did not permit the distribution of duties collected on goods 
entered after 1 October 2007.  So, in other word s, anti-dumping and countervailing duties that were 
being collected on goods entering the United States now  would not be distributed to domestic firms.  
The United States recognized that the EC was in the uncomfortable position of having to try to 
reconcile its actions here with its words to the Appellate Body, but a misc haracterization of US 
legislation would not do the job.  
56. The representative of th e European Communities
 said that the situations in both disputes had 
nothing in common, really.  The EC's position w as not inconsistent, the two disputes were not 
comparable.  In the Byrd Amendment dispute, the entry into force of the implementing act had been 
postponed by several years.  The EC only took at face value the US legislation.  The EC did not see 
how the US could seriously claim that the EC  had made a unilateral determination of non-
implementation when the implementing act itself st ated that it would produce effects only at some 
undetermined date in the future.  The EC had not made a misreading of the legislation as the 
United States had mentioned.  The EC did not contest that the Byrd Amendment did not apply any longer to imports made after 1 Oc tober 2007, but it would still apply to  all imports made before that 
date and that was stated in the legislation.  Theref ore, a measure taken to comply that produced legal 
effects simply did not yet exist and the United States  could not claim in good faith that such a measure 
existed.   WT/DSB/M/255 
Page 12  
 
  57. The representative of the United States
 said that his delegation wished to respond briefly to 
two issues in the EC's intervention.  First, the Un ited States had taken note of the EC's assertion that 
the United States could not take a certain position "in good faith", and would certainly convey that troubling assertion to its authorities in capital.  Seco nd, the EC might argue that it was simply reading 
the implementing legislation "on its face", but th e United States had explained how the EC reading 
was wrong.  Thus, it would appear that the EC was asserting a disagreement between it and the 
United States on the content of the US measure taken to comply. 
58. The representative of Japan
 said that, in response to a couple of points raised by the 
United States, he wished to state that Japan's reta liatory measure had been and was fully consistent 
with the findings and the Arbitrator's decision.  If the United States considered otherwise, it was up to 
the United States to substantiate that position.  With  respect to the transfer of financial resources from 
the foreign producers/exporters to the domestic co mpetitors under the CDSOA, it was true that duties 
collected on entries entered after 1 October 2007 were not subject to the distributions.  However, this 
did not change the fact that financial transfers of  duties collected from the entries that had already 
entered before that date, but had no t been distributed, still continued. 
59. The DSB took note  of the statements.  
4. European Communities and its member States – Tariff treatment of certain information 
technology products 
(a) Request for the establishment of a panel by the United States, Japan and the Separate 
Customs Territory of Taiwan, Penghu, Kinm en and Matsu (WT/DS375/8 – WT/DS376/8 – 
WT/DS377/6) 
60. The Chairman  drew attention to the joint communi cation from the United States, Japan and 
the Separate Customs Territory of Taiwan, Pengh u, Kinmen and Matsu contained in document 
WT/DS375/8 – WT/DS376/8 – WT/DS377/6, and in vited the respective re presentatives to speak. 
61. The representative of the United States  said that, as described in the joint panel request before 
the DSB at the present meeting, the United States,  together with Japan and Chinese Taipei, was 
concerned about the duties the EC was imposing on certain information technology products.  Three 
products were involved in this dispute.  The fi rst product was set top boxes with a communication 
function – in other words, cable and satellite box es that could access the Internet.  The second product 
was flat panel computer monitors.  And the third product was certain multifunctional digital machines 
– in other words, computer peripherals that could scan, print, copy and/or fax.  These products were 
included within the Information Technology Agreemen t, and the EC had incorporated the relevant 
commitments into its Schedules following the conclu sion of the ITA.  As Members knew, the ITA 
was widely regarded as a major succ ess of the WTO.  A little over one year ago, participants in the 
ITA had gathered in Geneva to celebrate the tent h anniversary of its signing.  At that time, many 
Members had lauded the agreement for creating ne w opportunities for trade and economic growth for 
developed and developing Members alike.  Unfo rtunately, the EC appeared increasingly to impose 
duties on ITA products covered by its existing duty-free tariff commitments.  As described in detail in 
the joint panel request, imports to the EC of the pr oducts at issue in this dispute were subject to 
ordinary customs duties, or other duties and charg es, in excess of those in the EC's WTO tariff 
Schedules, and commerce was accorded treatment less favourable than that provided in the EC 
Schedules.  The United States, therefore, considered  that these duties were inconsistent with the 
obligations of the EC and its member States under Article II:1(a) and (b) of the GATT 1994.  The 
United States had discussed these issues extensively w ith the EC over the past two years, including 
most recently during the consultations that had b een held in June and July.  Regrettably, those 
consultations had not resolved this dispute.  Accord ingly, the United States, together with Japan and  WT/DSB/M/255 
 Page 13 
 
 
  Chinese Taipei, requested that the DSB establish a pa nel to examine the matter set out in their panel 
request, with standard terms of reference.   
62. The representative of Japan  said that his country, acting jointly with the United States and 
Chinese Taipei, had initiated this dispute regarding th e tariff treatment the EC and its member States 
accorded to certain information technology (IT) produc ts.  Japan had serious c oncerns that certain EC 
measures were not only incompatible with the EC's  WTO obligations, but also impeded the systemic 
interests of all the participants in the Informa tion Technology Agreement (ITA), including Japan, the 
United States and Chinese Taipei.  This joint actio n taken by Japan was a clear indication of these 
important systemic concerns shared among certain Me mbers.  After the conclusion of the ITA, the IT 
industry had significantly developed.  The industr y's supply chain networks and production facilities 
had been globalized and new production methods had been created.  With these developments, many 
IT products had achieved drama tic technological advancements;  they had become much more 
sophisticated by technological integration to perform multiple functions. 
63. As participants in the ITA, the EC and its  member States had modified in 1997 their 
Schedules of Concessions to the GATT 1994 to reflect the commitment made under the ITA.  
Accordingly, the EC and its member States shall gr ant duty-free treatment for flat panel displays, set-
top boxes (STBs) with communication function, and multi functional digital machines (MFMs).  
However, as a result of the application of certain  EC regulations, the EC and its member States 
currently imposed duties on these pr oducts.  These measures would hinder the further development of 
the IT industry and were against the spirit of the ITA.  As detailed in its joint request for the 
establishment of a panel, the three co-complainants considered that these measures were inconsistent 
with the EC's and its member States' obligatio ns under the WTO Agreement.  Japan had held 
consultations with the EC with a view to reac hing a mutually satisfactory solution.  Although the 
consultations had provided opportunities for Japan and the EC to better understand their respective 
positions on this matter, they had failed to find such  a solution.  Therefore, Japan, the United States 
and Chinese Taipei hereby jointly re quested that a panel be established pursuant to Article 6 of the 
DSU and Article XXIII of the GATT 1994. 
64. The representative of Chinese Taipei  said that Chinese Taipei, acting jointly with the 
United States and Japan, was seeking the establishment of a panel at the present meeting to hear their 
dispute against the EC concerning the tariff treatme nt by the EC and its member States of certain 
information technology products.  Chinese Taipei w as deeply concerned that measures taken by the 
EC with respect to the tariff treatment of flat  panel displays, set-top boxes with communication 
functions, and multifunctional digital machines, we re inconsistent with its WTO obligations.  
Members were probably aware that Chinese Taipei ha d long been one of the largest suppliers of IT 
products to most of the world's markets.  As a direct  result of the EC's measures, its trade interests had 
been seriously affected.  His delegation would even go thus far as to say that the negative impact of such measures could become a hindr ance to the advancement of info rmation technology in general, 
and to trade in such products in particular.  As a participant in the ITA and a Member of the WTO, 
Chinese Taipei considered this case to be of e normous importance, not only because of its economic 
significance but also because of the systemic concer ns raised by the measures imposed by the EC and 
its member States.  When the EC had become a signa tory to the ITA, it had pledged to grant duty-free 
treatment to IT products, including those that he had just mentioned.  While the EC had modified its 
schedules of concessions to the GATT 1994 in order to reflect the commitments it had made under the 
ITA, the specific measures of the EC imposing du ties on those products had in effect rendered such 
commitments unfulfilled.  Its measures had severely eroded the standing of the ITA and, as detailed in its joint panel request, they were inconsistent w ith the WTO obligations of the EC and its member 
States, including those under Articles II:l (a) and II:1(b) of the GATT 1994. 
65. In the last few months, Chinese Taipei ha d made exceptional efforts on three separate 
occasions to consult with the EC in  good faith pursuant to Article 4 of the DSU.  Chinese Taipei had WT/DSB/M/255 
Page 14  
 
  gone at lengths to demonstrate its interests in arri ving at a mutually satisfactory solution, but to its 
great regret no solution had been found.  Chinese Taip ei continued to have serious concerns about the 
extent to which the EC's measures were compatible  with the covered Agreements of the WTO.  The 
lack of progress thus far in this dispute compelle d Chinese Taipei to take the next step, which was 
recourse to the dispute settlement mechanism.  Chin ese Taipei hereby requested, jointly and severally 
with the United States and Japan, that a panel be  established according to Article 6 of the DSU and 
Article XXIII of the GATT 1994. 
66. The representative of th e European Communities
 said that the issue of the tariff treatment and 
customs classification of certain Information Tec hnology products was not new – and it was the EC's 
firm view that attempting to address it via the litiga tion route would produce no solutions.  Following 
the adoption of the Information Technology Agre ement, the EC had agreed to grant duty-free 
treatment to a specific list of IT products.  Since th at product list had been agreed back in 1996, new 
products and new technologies had appeared on the market.  The resulting technological changes had 
enhanced the design and functionalities of digital pr oducts, and had given new or additional functions 
to many of the products originally covered, thereby making those products objectively different.  
Consequently, they fell outside of the product cat egories covered by the ITA.  The ITA posed a 
systemic challenge, which was a direct result of th e irreconcilability of the ITA specific product-based 
approach and the rapid evolution in the IT Industry.   In the EC's view, this could only be addressed by 
revisiting the product coverage of the Agreemen t through negotiation with all participants.  
67. The EC had offered on many occasions to use th e mechanisms foreseen in the ITA to solve 
this issue through negotiations.  The EC's offers  had been met with scepticism as to whether 
negotiations were suitable to deliver a prompt solution.  The EC now faced WTO litigation and 
legitimately felt that litigation was unduly used as a substitute for negotiations.  Unlike the 
complainants, the EC did not view – and she quoted  one of the complainants, "litigation as another 
form of negotiations" and would not wish for such views to become common amongst the WTO 
Membership.  The EC believed that the ITA rules we re clear and was confident that the products were 
correctly classified and received the tariff treatment  provided for in the EC schedules of concessions.  
On a procedural aspect, as the EC had already bilate rally explained to all the three complainants when 
accepting consultations, it was the EC which bore th e responsibility for the matter covered by the 
disputes, as this matter was of exclusive EC compet ence.  The EC was, therefore, the only respondent 
in these disputes.  This status of the EC had also been recognized on numerous previous occasions, 
including by the DSB's rulings, and also those spec ifically with respect to customs matters, for 
instance in the adopted Panel report in "EC – Select ed Customs Matters" (DS315).  The EC, therefore, 
took note of the requests for establishment of a pane l by the United States, Japan and the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Ma tsu addressed to the EC.  In this proceeding, 
the EC would be the sole respondent.  The EC ve ry much regretted the steps taken at the present 
meeting by Chinese Taipei, Japan and the United St ates to request the establishment of a panel in 
these disputes, and opposed the establishment of the panels. 
68. The representative of the United States  said that his delegation had noted the EC's "firm view" 
that the litigation route would "provide no solutions".   Of course, the United States did not understand 
the EC to be suggesting that it would not implem ent the DSB's recommendations  and rulings were the 
co-complainants to prevail on their claims in this dispute.  The co-complainants considered that the 
EC was currently in breach of its current WTO oblig ations, and had requested the DSB to establish a 
panel to consider that matter.  In response to the EC's comments on the proper responding parties in 
this dispute, the United States noted that the EC member States were WTO Members.  As such, each 
had taken on all the obligations set out in the WTO Agreement.  For example, they were bound by the 
tariff commitments in their respective schedules.  Furthermore, as WTO Members, the EC member 
States were necessarily capable of being made responding parties in a dispute, as they had been in this 
one.  Because the EC member St ates had been named as respondent s in the panel request, claims 
against the EC member States would be pa rt of the panel's terms of reference.  WT/DSB/M/255 
 Page 15 
 
 
  69. The DSB took note  of the statements and agreed  to revert to this matter. 
5. Japan – Countervailing duties on dynami c random access memo ries from Korea  
(a) Statement by Japan 
70. The representative of Japan , speaking under "Other Business", said that his country was 
pleased to report that it had implemented the DSB's recommendations and rulings in the dispute:  
"Japan – Countervailing Duties on Dynamic Random  Access Memories from Korea" (WT/DS336).  
He recalled that on 17 December 2007, the DSB ha d adopted the Appellate Body Report and the 
Panel Report, as modified by the Appellate Body Report.  As Members would recall, the following 
WTO-inconsistencies had been found in  this dispute.  First, the Japan's investigating authorities had 
acted inconsistently with Article 1.1(b) and Article  14 of the SCM Agreement by determining that the 
December 2002 Restructuring conferred a benefit on Hynix.  Second, Japan's investigating authorities 
had calculated the amount of benefit conferred on Hynix by the October 2001 and December 2002 
Restructurings inconsistently with Articles 1.1(b) and 14 of the SCM Agreement.  Third, with respect 
to the October 2001 Restructuring, Japan had acted  inconsistently with Article 19.4 of the SCM 
Agreement by levying countervailing duties on imports  which Japan's investigating authorities had 
found were not subsidized at the time of duty im position.  On 5 May 2008, the Arbitrator under 
Article 21.3(c) of the DSU had determined that a r easonable period of time for Japan to implement the 
DSB's recommendations and rulings was eight months  and two weeks.  That period of time would 
expire on 1 September 2008.  
71. On 30 January 2008, Japan's investigating aut horities had initiated an investigation pursuant 
to Japan's Customs Tariff Law and related re gulations in order to implement the DSB's 
recommendations and rulings.  During the investigati on, due account had been taken to defend the due 
process rights of the interested parties.  As the re sults of the investigation that had been conducted 
scrupulously in accordance with the findings in the adopted panel and Appellate Body reports, Japan's 
investigating authorities had found the existenc e of benefit conferred by the December 2002 
Restructuring and had calculated the amount of bene fit to Hynix in a manner that Japan believed was 
fully consistent with the SCM Agre ement.  With respect to the Oc tober 2001 Restructuring, Japan had 
determined to exclude the countervailing duties eq ual to 18.1 per cent so as to comply with the 
relevant DSB's recommendations and rulings.  Con sequently, the countervailing duty rate would be 
reduced from 27.2 per cent which was currently in pl ace to 9.1 per cent.  As of now Japan had given 
public notice of the final determination and had a nnounced the revision of countervailing duties that 
would apply as from 1 September 2008 in Cabinet Order No.266 published in the Special Issue 
No. 189 of the Official Gazette dated on 29 A ugust 2008.  With those actions, Japan had complied 
with the DSB's recommendations and rulings in this dispute. 
72. The representative of Korea  said that his country was deeply disappointed to hear Japan's 
claim that it had fully implemented the DSB's d ecision in the DS336 dispute, which was Korea's 
challenge to Japan's measures imposing counterva iling duties on imports of  dynamic random access 
memories ("DRAMs") from Ko rea.  The Reports of the Panel and the Appellate Body, as adopted by 
the DSB, had eliminated all bases for the conti nuation of countervailing duties on DRAMs exported 
by Hynix Semiconductor.  Moreover, both the Pa nel and the Appellate Body had found that the 
December 2002 restructuring transaction was "co mmercially reasonable", which meant that such 
transaction was fully in accordance with normal ma rket practices, and thus had not conferred any 
"benefit" to Hynix within the meaning of the SCM Agreement.  However, the announcement made at 
the present meeting demonstrated that Japan had d ecided not to withdraw its countervailing duties on 
imports of Hynix DRAMs.  This was agains t the DSB's decision and its recommendations.  
Furthermore, such continued imposition of duties di d not reconcile with Japan's own admission that 
subsidies in the semiconductor industry provided bene fits only for a period of five years.  Japan's 
recalcitrance had left Korea with no choice but to  pursue the remedies available under the DSU.  WT/DSB/M/255 
Page 16  
 
  Korea had already initiated discussions with Japan on a possible sequencing agreement to move the 
process forward under the relevant provisions of the DSU.  Unfortunately, Korea might have to seek 
action from the DSB on this matter again in the near future. 
73. The representative of Japan
 said that, with respect to Korea' s statement, Japan was confident 
that its measures taken to comply with the DSB's recommendations and rulings were fully consistent 
with its obligations under the SCM Agreement.  Jap an would not get into a detailed discussion at the 
present meeting, as Japan did not believe that th e DSB was the forum in which to debate highly 
technical case specific issues regarding determina tions and findings made by Japan's investigating 
authority.  That being said, Japan was ready to pur sue the dialogue with Korea and would respond to 
any further concerns that Korea might have. 
74. The DSB took note  of the statements. 
6. Statement by Ecuador concerning the European Communities' regime for the 
importation, sale and distribution of bananas 
75. The representative of Ecuador , speaking under "Other Business", said that his delegation was 
obliged to make a statement at the present meeting in order to clarify certain points contained in a 
press release issued on 28 August 2008 by the EC con cerning its decision to appeal against the Panel 
Report on:  "European Communities – Regime for the Importation, Sale and Distribution of Bananas:  
Second Recourse to Article 21.5 of the DSU by Ecuador ". He said that Ecuador was obliged to pursue 
the legal claim on this matter because of the EC's failure to sign the Geneva Agreement on Trade in 
Bananas, dated 27 July 2008, which had been desi gned to put an end to the longest running legal 
dispute in the history of the WTO.  His said that his authorities had requested him to register 
Ecuador's great frustration about the lack of comp liance by the EC with a commitment negotiated in 
good faith by Ecuador during a lengthy process of talks carried out by the WTO Director-General.  At the present meeting, Ecuador would not repeat the arguments put forward by his delegation in the 
meetings of the TNC and the General Council in July  2008.  He only wished to recall that, at that 
time, Ecuador had underlined the fact that the Agre ement in question was totally independent of the 
Doha Round agreement on modalities, since a reading of the text and, in partic ular paragraphs 4 and 5 
thereof, proved that Ecuador and the other Latin American countries were right about the unquestionable fact that the Agreement was separate fro m the results of any agreement or lack thereof 
on modalities.  The Agreement was designed to ensure the EC's compliance with the DSB's 
recommendations and to give compensation for the EC's successive enlargements between 2004 and 
2007, in accordance with the provisions of Article  XXVIII of the GATT 1994.  In that Agreement, 
Ecuador had undertaken to waive its legal rights in exchange for the tariff reduction agreed for MFN 
bananas.  The Agreement would make it possible fo r a country like Ecuador, with limited resources 
for combating poverty, to save hundreds of millions of dollars in tariff payments and avoid the 
enormous financial cost of legal proceedings.  Th e EC held the key to resolving this long-standing 
dispute, and Ecuador, therefore, urged the EC to si gn the Agreement and put an end to a dark chapter 
in the history of relations between Ecuador and the EC.  
76. The representative of Colombia
 said that the EC's decision to appeal against the findings of 
the Panel, which had, once again, condemned the EC's  banana import regime, had been filed at a time 
when the parties had reached a solution to the banana  dispute.  The appeal was clearly presented in 
response to the actions taken by Ecuador and the United States to propose for adoption the 2008 Panel 
Reports concerning the EC's banana import regime.  All knew that the EC's appeal would not lead to a 
change in the Appellate Body's jurisprudence on th is matter.  The EC's ba nana import regime was 
inconsistent, for a number of reasons, with the EC 's WTO obligations.  Given the political reality of 
the importance attached by the EC to its banana  import regime and the perpetual difficulty of 
implementing the rulings to bring the EC's banana import regime into compliance with the EC's WTO 
obligations, Colombia had used a mechanism which had brought the parties to the table within legal  WT/DSB/M/255 
 Page 17 
 
 
  parameters.  Colombia had sought the good offices of  the WTO Director-General in November 2007, 
under the procedures of the 1966 Decision.  After nume rous meetings, a stand-alone Agreement, that 
is, an agreement not linked to the negotiation of  modalities in the Doha Round, had been reached 
between the EC and the MFN banana supplying countries, on 27 July 2008.  For reasons that 
Colombia found mystifying, the EC had disowned th e stand-alone Agreement.  Colombia knew that 
the only way to terminate the never ending banana  dispute was by putting into effect the Geneva 
Agreement on Trade in Bananas, dated 27 July 2008.  With that Agreement, the EC would tie up all 
the loose ends of the past and the MFN countries would improve their access conditions to the EC's 
market.  Pursuant to the Agreement, the MFN count ries accepted the more favourable treatment given 
to ACP suppliers.  Now, for example, it was known that  their exports were entering in violation of the 
EC's commitments since no association agreements had been signed, nor was there a waiver for 
preferential treatment.  The EC's compliance with th e Agreement would have eliminated the need for 
action by Ecuador and the United States as well as  for the appeal, and it would have made it 
unnecessary to involve the Appellate Body in an issue in which th e circumstances might change, but 
not the substance.  It could, therefore, prove highl y convenient for the EC to tie up all the loose ends 
of the banana issue by implementing the Agreemen t.  Colombia deplored the EC's decisions and 
hoped that the EC's appeal was not an excuse to di sregard the many months of work, the results of 
which benefited all:  the EC, the MFN banana supplying countries, the ACP countries and the 
multilateral trading system. 
77. The representative of Panama  said that his country wished to lend its support to the views 
expressed by Ecuador.  As the DSB was aware, there had already been 11 legal rulings against the EC 
on bananas.  The parties were now about to em bark on cases number 12 and 13.  Latin America's 
legal hand had again been forced by the EC, who after reaching a settlement Agreement on 27 July 2008 had then walked away.  While the EC  wanted the Membership to believe that its 
Agreement was contingent on Doha's success, the e xplicit language of that Agreement proved the 
contrary.  The 27 July 2008 Agreement remained on th e table ready to be signed.  It was not open to 
re-negotiation.  If the EC wanted to put an end to this long dispute, it would need to respect the peace 
it had already committed to on 27 July 2008.  Until  it did, Panama, like Ec uador, would defend its 
rights. 
78. The representative of Costa Rica
 said that his country thanked Ecuador for placing this matter 
on the Agenda of the present meeting.  Costa Rica understood and shared Ecuador's concern about the 
EC's continued non-compliance with the decisions of the DSB, the determinations of two arbitration 
proceedings on bananas, and the EC's obligati ons under Articles XXVIII and XXIV of the GATT in 
relation to its two most recent enlargements.  In  recent months, the good offices of the WTO Director-
General, under the DSU, had facilitated a rapprochement  between the parties, which had finally 
concluded, on 27 July 2008, the Geneva Agreem ent on Trade in Bananas.  That Agreement had 
coincided with the Doha Round Ministerial nego tiations in July 2008, as had occurred with the 
banana negotiations in 2001, which had been held in Doha, in paralle l to other important Ministerial 
negotiations.  However, both the results of the 2001 banana negotiations in Doha and those of 
27 July 2008 were valid in and of themselves.  Th e Agreement reached had independent validity, as 
was established in paragraph 4 thereof, and did not, therefore, depend on the success of the Doha Round negotiations in the WTO.  Despite th at fact, when the Round had reached an impasse, 
the EC had stated that it would not comply w ith the commitments made under the Agreement.  
Costa Rica had deployed its best efforts to achi eve a strengthening of the rules of the multilateral 
trading system in order to deepen the process of trad e liberalization so as to benefit all concerned, and 
in particular developing countries.  Costa Rica unde rstood the EC's frustration at the failure of the 
negotiations in the Round and shared that frustration.  However, as a country that observed the rule of 
law within its frontiers and in the international sphere, Costa Rica failed to understand why the EC 
disowned the Geneva Agreement on Trade in Bana nas reached in July 2008.  The Agreement had 
been negotiated and had been concluded as a st and-alone agreement independent of the single 
undertaking under the Round, and should, therefore, be  respected.  Respect for the mutual rights and WT/DSB/M/255 
Page 18  
 
  obligations of Members, irrespective of their size, was a matter of fundamental importance to 
Costa Rica.  This could be achieved by rejecting un ilateral decisions and actions in the area of trade 
and international law, and by ensuring that g ood sense, good faith and the letter of agreements 
prevailed in international relations.  Costa Rica hoped that the EC would comply with the Geneva 
Agreement on Trade in Bananas by implementing it as from 1 January 2009, as agreed on 
27 July 2008 by Costa Rica and other delegations.  
79. The representative of Nicaragua
 said that, like previous speakers, her country was also 
concerned about the EC's position in this disput e.  She recalled that, at the TNC meeting on 
30 July 2008, her delegation had stated that Nicara gua was still analysing the implications of the 
Geneva Agreement on Trade in Bananas reached by the end of July 2008.  However, Nicaragua did 
not understand how the EC could have first agreed to a solution to what was already a 16-year-old 
trade dispute and had, subsequently, disowned that Agreement only a few days afterwards, stating that 
a settlement of this issue depended on success in adopting modalities in agriculture and NAMA.  
Numerous legal proceedings had confirmed that th e trading rights of the Latin-American exporting 
countries were being infringed by the EC, and these rights must, therefore, be restored.  Nicaragua 
had defended its interests in this dispute since 1992 and would continue to do so at the appeal 
proceedings. 
80. The representative of Cameroon  said that his delegation wished to react to the statement made 
by Ecuador, which had been supported by other Me mbers who had been negotiating with the EC in 
the context of the Geneva Agreement on Trade in Ba nanas of 27 July 2008.  As Cameroon had stated 
at the July meeting of the General Council, Came roon was not a party to the Agreement, but had 
always been an interested third party to all banana agreements.  Cameroon always favoured a 
negotiated solution and believed th at negotiations should not exclude  other interested parties.  
Cameroon continued to believe that the EC, as well as the MFN suppliers, needed to take this into 
account.  The DSB was to resolve trade issues not to le gislate trade law.  Trade had to be at the centre 
of the considerations, and all parties involved must take into account the interests of all interested 
parties so that everybody could participate both in the legal proceedings and negotiations at the same 
time.  Otherwise, it would not be fair for particul ar interests of certain Members and a particular 
product to be set aside.  Cameroon believed that  all Members needed to be able to find an 
arrangement satisfactory to all so that trade would benefit all. 
81. The representative of th e European Communities  said that not surprisingly her delegation did 
not have any speaking points on this matter as it had not expected this item to be on the Agenda of the 
present meeting.  The EC thanked delegations for their statements.  The EC had taken good note of 
them and would transmit them to Brussels.  However, she wished to note that the central issue raised 
in the statements at the present meeting was a bout a difference of opinion on what had exactly 
happened during the Ministerial week in July 2008 .  As had been made clear, in particular by 
Costa Rica at the present meeting, it was undeniable that this was all linked to the DDA negotiations.  
Therefore, it would seem that the DSB was not th e right forum for a discussion on this, but the TNC 
or the General Council would be better suited. 
82. The DSB took note  of the statements. 
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