WORLD TRADE  
ORGANIZATION  RESTRICTED 
WT/DSB/M/296 
4 July 2011 
 (11-3243) 
Dispute Settlement Body 
24 May 2011  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 24 May 2011 
 
Chairperson:  Mrs. Elin Østebø Johansen (Norway) 
 
  Prior to the adoption of the Agenda, the item concerning the Panel Report in the case on:  
"United States – Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres 
from China" (DS399) was removed from the proposed  Agenda following China's decision to appeal 
the Report. 
 
 
Subjects discussed: Page 
 
1. Surveillance of implementation of recommendations adopted by the DSB ......................... 2  
(a) United States – Section 211 Omnibus Appr opriations 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 Unite d States ................................................................................... 5 
(c) United tates – Section 110(5) of the US Copyright Act:  Status report by 
the United States ............................................................................................................. ............ 5 
(d) European Communities1 – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union ......................................................................... 6 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States ............................................................................................................. ............ 6 
(f) United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States ................................................................................................... ....... 7 
(g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States .......................................................................... 8 
(h) China – Measures affecting trading ri ghts and distribution services for certain 
publications and audiovisual entertainment products:  Status report by China .......................... 8 
2. 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 Union and Japan ............................................................................ 9                                                       
1 On 1 December 2009, the Treaty of Lisbon amendi ng the Treaty on Europe an Union and the Treaty 
establishing the European Community (done at Lisbon, 13 December 2007) entered into force.  On 
29 November 2009, the WTO received a verbal note (WT/L/779) from the Council of the European Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 
1 December 2009, the European Union replaces and succeeds the European Community. WT/DSB/M/296 
Page 2  
 
  3. Moldova – Measures affecting the importation and internal sale of goods 
(environmental charge) ........................................................................................................ .. 10 
(a) Request for the establishment of a panel by Ukraine ................................................................ 10 
4. Selection process for appointment of  new Appellate Body members ................................. 11  
5. Proposed nominations for the indicative list of governmental and 
non-governmental panelists ................................................................................................... 12 
 
 
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.102) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.102) 
 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.77) 
 (d) European Communities – Measures affecting the approval and marketing of  biotech products:  
Status report by the European Union (WT/DS291/37/Add.40) 
 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.20) 
 (f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.17) 
 
(g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.11) 
 (h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.4) 
 
 1. The Chairperson recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establis hment of the reasonable 
period of time and shall remain on the DSB's Agenda  until the issue was resolv ed.  She proposed that 
the eight sub-items under Agenda item 1 be considered separately.  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.102) 
2. The Chairperson drew attention to documen t WT/DS176/11/Add.102, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US Section 211 Om nibus Appropriations Act of 1998. 
3. The representative of the United States said that  his country had provided a status report in 
this dispute on 12 May 2011, in accordance with Arti cle 21.6 of the DSU.  Legislative proposals that 
would implement the DSB's recommendations and ru lings had been introduced in the current 112th 
Congress.  In the Senate, S. 603 had been introduced  on 16 March 2011.  This bill had been referred  WT/DSB/M/296 
 Page 3 
 
 
  to the Senate Committee on the Judiciary.  In the House of Representatives, H.R. 1166 had been 
introduced on 17 March 2011.  This bill had been referred to the House Committee on the Judiciary.  
The US Administration would continue to work on solutions to implement the DSB's 
recommendations and rulings. 
4. The representative of the European Union said that the EU thanked the United States for its 
status report and hoped that the US authorities woul d very soon take steps towards implementing the 
DSB's ruling and resolve this matter. 
5. The representative of Cuba said that it had now been nine years since Section 211 had been 
found to be inconsistent with the TRIPS Agreemen t.  At the present meeting, the United States was 
submitting its 103rd status report on non-compliance, which only confirmed the US disregard for 
WTO rules.  Every month, the United States was be ing criticized by a number of delegations both in 
the DSB meetings as well as in other forums.  Over the past few years, in the context of the Doha 
Round negotiations, the US position was intransige nt while demands placed on developing countries 
far outweighed what the United States was ready to  offer.  Cuba believed that one should not 
disassociate the work of the DSB from the other wo rk of the WTO at the time when Members were 
negotiating the improvements to the DSU provisions.  In fact, this dispute proved that it would be 
necessary to put into place additional provisions to en able Members to deal with situations of non-
compliance.  An improved dispute settlement mech anism would provide all Members with a useful 
tool to settle their disputes.  Therefore, the Un ited States should repeal Section 211 fully and rapidly 
and stop giving excuses for its systematic violations of international law.  Cuba asked if the United 
States considered that it was entitled to follow different  rules than those that it had undertaken when it 
had signed the WTO Agreement.  A Member should  not be allowed to violate WTO rules which, 
although not perfect, were the result of considerable  efforts over a long period of time.  The US 
violation of WTO rules undermined the main obj ectives of the multilateral trading system.  The 
prolonged non-compliance and stat us reports without any substan tive content discredited both the 
United States and the multilateral trading system.  The United States should not continue to postpone 
the implementation of the decision that was consis tent with the principles advocated by the United 
States in the area of intellectual property rights.  Cuba would continue to request that the United States take rapid and firm action to put an end to th is dispute and to repeal Section 211 which, without 
any legal basis, served to deprive a Cuban-French  company of its legitimate rights to the HAVANA 
CLUB trademark in the United States. 
6. The representative of the Dominican Republic said that his country thanked the United States 
for its status report pertaining to the Section 211 dispute.  The Dominican Republic noted the US 
statement to the effect that the draft bill had recently been presented to the US Congress and, once 
again, urged the United States to take the necessar y measures to ensure compliance with the DSB's 
rulings, since long delays in implementation undermined the WTO credibility.   
7. The representative of Zimbabwe said that his count ry thanked the United States for its status 
report on the implementation of the DSB's recommenda tions and rulings in this dispute.  The US 
status report acknowledged that, in February 2002, "the United States informed the DSB of its intention to implement the recommendations and rulings  of the DSB in connection with this matter".  
However, despite the US assurances made nine y ears ago, the situation remained unchanged.  
Zimbabwe urged the United States to redeem that pl edge for the sake of the WTO's credibility and the 
long-suffering people of Cuba.  Members had wait ed a long time for the implementation of that 
important decision. 
8. The representative of the Bolivarian Republic of  Venezuela said that, once again, her country 
supported Cuba and requested that the United States  put an end to its economic, trade and financial 
embargo against Cuba.  That embargo had led to a series of actions taken by the United States since 
the 1960s.  In particular, it had led to the US failu re to implement, for over nine years, the Appellate WT/DSB/M/296 
Page 4  
 
  Body's ruling that Section 211 was inconsistent w ith the TRIPS Agreement and the Paris Convention 
for the Protection of Industrial Property.  As a WTO Member and a DSB Member, Venezuela noted 
with regret that the US status report repeated the same information contained in the previous status 
reports submitted by the United States.  In Venezuela' s view, this qualified as "action without results".  
Therefore, Venezuela requested that the United Stat es provide further details on the work being done 
with the US Congress.  Apart from the harm cause d to the Cuban people, Venezuela was concerned 
that the US non-compliance with multilateral trading rules undermined the credibility of the DSB.  As 
had been done on previous occasions, Venezuela ur ged the United States to comply with the DSB's 
recommendations. 
9. The representative of China said that her country  thanked the United States for its status 
report and its statement.  However, China noted th at the situation of non-compliance had not changed 
since the adoption of the DSB's decision more than  nine years ago.  In China's view, this was 
incompatible with the principle of prompt and e ffective implementation required by the DSU, in 
particular since the interests of a developing-countr y Member were affected.  China, therefore, urged 
the United States to implement the DSB's rulings without any further delay. 
10. The representative of Brazil said that his country thanked the United States for its status 
report pertaining to the surveillance of implementation in this dispute.  Once again, the United States 
reported lack of progress, a situation that continued to be a matter of concern to Brazil.  In that regard, 
Brazil urged the United States to expedite its effort s and bring its measures into conformity with its 
multilateral obligations. 
11. The representative of Ecuador said that his c ountry supported Cuba's statement and, once 
again, noted that Article 21 of the DSU explicitly  referred to prompt compliance with the DSB's 
recommendations and rulings, in partic ular with regard to matters aff ecting the interests of developing 
countries.  Ecuador hoped that the United States would accelerate its efforts to ensure compliance 
with the DSB's rulings pertaining to the Section 211 dispute. 
12. The representative of Mexico said that his count ry thanked the United States for its status 
report.  Mexico noted that the DSU contained pr ovisions on legal remedies, including on compliance.  
In this regard, Mexico indicated that any Member  could initiate a dispute on the same measure if it 
considered that its rights were being impaired or if no implementation took  place.  Mexico believed 
that the discussion under this Agenda item could provide useful input for the ongoing discussions 
carried out in the context of the DSU negotiations.  It could shed more light on how the DSU provisions should be modified, in particular with  regard to the issue of effective compliance. 
13. The representative of Viet Nam said that her count ry thanked the United States for its status 
report.  Viet Nam urged the United States to impl ement the DSB's recommendations and rulings so as 
to ensure the credibility of the system. 
14. The representative of Paraguay said that his count ry shared the concerns expressed by Cuba 
and other delegations with regard to the prolonge d delay in implementation of the DSB's rulings 
pertaining to this dispute.  This was not only a trade-related concern, but also a systemic one.  
Paraguay, therefore, urged the United States to co mply with the DSB's recommendations and rulings 
pertaining to this case. 
15. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting.  WT/DSB/M/296 
 Page 5 
 
 
  (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.102) 
16. The Chairperson drew attention to documen t WT/DS184/15/Add.102, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
17. The representative of the United States said that  his country had provided a status report in 
this dispute on 12 May 2011, in accordance with Article 21.6 of the DSU.  As of November 2002, the 
US authorities had addressed the DSB's recommendations  and rulings with resp ect to the calculation 
of anti-dumping margins in the hot-rolled steel anti-dumping duty investigation at issue in this dispute.  With respect to the DSB's recommendations  and rulings that had not already been addressed 
by the US authorities, the US Administration w ould work with the US Congress with respect to 
appropriate statutory measures that would resolve this matter. 
18. The representative of Japan said that his country  thanked the United States for its statement 
and its most recent status report.  Japan took note  of the US report that the United States had taken 
certain measures to implement part of the DSB' s recommendations in November 2002.  As for the 
remaining part of the DSB's recommendations, Japan  hoped that the United States would soon be in a 
position to report to the DSB on more tangible progr ess.  Full and prompt implementation of the 
DSB's recommendations and rulings was "essential to  the effective functioning of the WTO and the 
maintenance of a proper balance of th e rights and obligations of Members".2  Japan called on the 
United States to fully implement the DSB's recommendations in this long-standing dispute without further delay. 
19. 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.77) 
20. The Chairperson drew attention to documen t WT/DS160/24/Add.77, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning Section 110(5)  of the US Copyright Act. 
21. The representative of the United States said that  his country had provided a status report in 
this dispute on 12 May 2011, in accordance with Ar ticle 21.6 of the DSU.  The US Administration 
would continue to confer with the EU, and to work  closely with the US Congress, in order to reach a 
mutually satisfactory resolution of this matter. 
22. The representative of the European Union said that the EU thanked the United States for its 
status report and noted that the United States w as again reporting non-compliance.  As the EU had 
previously stated, the EU remained keen to wo rk with the US authorities towards the complete 
resolution of this case. 
23. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
                                                      
2 Article 3.3 of the DSU. WT/DSB/M/296 
Page 6  
 
  (d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.40) 
24. The Chairperson drew attention to documen t WT/DS291/37/Add.40, which contained the 
status report by the European Union on progress in the implementation of the DSB's 
recommendations in the case concerning its measures a ffecting the approval and marketing of biotech 
products. 
25. The representative of the European Union said th at, as stated at the April 2011 DSB meeting, 
the EU welcomed the continuation of the technica l dialogue with the United States.  The dialogue 
gave the EU and the United States an opportunity to  discuss directly issues of their concern regarding 
biotechnology.  The EU hoped that this constructiv e approach based on dialogue would allow the 
parties to leave litigation aside.  Once again, the EU noted that its regulatory procedures on biotech 
products continued to work as foreseen in the legisl ation.  The number of GMOs authorized since the 
date of establishment of the Panel was thirty-four.  In 2010, 11 applications had been authorized, more 
than double the number of authorizations in 2009, in cluding one authorization for cultivation.  At the 
Agriculture Council held on 17 March 2011, two authorizations3 had been examined, together with 
the renewal of the authorization of maize 1507.  The final adoption by the Commission of these three 
products was expected in mid-June 2011.  Progress had also been made on other applications for 
authorization.  Four more draft applications had been voted in the Standing Committee in February 2011.
4  The Council would examine these applicati ons in the coming weeks.  In April 2011, 
EFSA had adopted another scientific opinion on a GM soybean (A5547-127). 
26. The representative of the United States said that  his country thanked the EU for its status 
report and its statement made at the present meeting.  The United States recalled the constructive 
discussions held with EU officials in March 2011.  At the same time, the United States noted with 
concern that, since July 2010, the EU had not made any decision on any one of the dozens of pending biotech applications.  Many of the pending appli cations had already received favourable assessments 
from the EU's own scientific authority.  The United St ates urged the EU to take steps to address these 
matters.   
27. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by the 
United States (WT/DS322/36/Add.20) 
28. The Chairperson drew attention to documen t WT/DS322/36/Add.20, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US measures relating to zeroing and sunset reviews. 
29. The representative of the United States said that  his country had provided a status report in 
this dispute on 12 May 2011, in accordance with Arti cle 21.6 of the DSU.  As the United States had 
explained in its status report, in December 201 0, the US Department of Commerce had announced a 
proposal to change the calculation of weighted  average dumping margins and assessment rates in 
certain anti-dumping proceedings.  Currently, the US  Department of Commerce was continuing with 
its ongoing work on the December proposal.  
                                                      
3 Maize MON89034xMON88017 and cotton GHB614MON89034. 
4 MIR604×GA21 maize, BT11×MIR604 maize, 281-24-236/3006-210-23 cotton, 
Bt11×MIR604×GA21 maize.  WT/DSB/M/296 
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  30. The representative of Japan said that his country  thanked the United States for its statement 
and its most recent status report.  Japan took note of the report that the internal consultation process 
and ongoing work was under way, based on the pr oposal announced by the US Department of 
Commerce on 28 December 2010.  While taking th e US implementation efforts as a positive step 
forward, Japan continued to seek prompt and full co mpliance by the United States with respect to all 
of the measures at issue that were subject to th e recommendations in this dispute.  Japan looked 
forward to an ongoing dialogue with the United Stat es and would closely monitor any developments 
on this matter.  Japan reserved its right under the DSU to take appropriate action, if necessary. 
31. The representative of China said that her country welcomed the steps taken by the 
United States towards the implementation of th e DSB's rulings and recommendations on zeroing 
issues.  At the 25 March 2011 DSB meeting, China had provided some comments on the proposal of 
the US Department of Commerce (USDOC) that had been publishe d in the Federal Register on 
28 December 2010.  At the present meeting, China wi shed to repeat those co mments again.  First, 
China believed that currently effective dumpi ng margins calculated using zeroing methodology 
should be eligible for revision to ensure fairne ss and to avoid prolonged and unnecessary litigations.  
This would require the USDOC to adopt guidelines  for the transition period from the prior to the 
revised methodology.  Second, China believed that the United States should take this opportunity to 
clarify important issues concerning the use of targeted dumping, and communicate its intention to abide by clear international obligations and prohi bit the use of zeroing methodology.  The USDOC's 
proposal of 28 December 2010 did not identify the issue of targeted dumping by name, but did clearly refer to it when explaining the proposed methodolog y.  China also had serious concerns about the 
appropriateness of the recently-developed practice by the United States.  Ch ina wished to ask the 
United States to clarify how the USDOC used the targeted dumping methodology to calculate 
dumping margins, and why the zeroing methodology was necessary in connection w ith this alternative 
method.  China looked forward to the US feedback on this matter.  
32. The representative of the United States said th at his country noted the comments from China 
and would refer them to capital.  At the present time, the US Department of Commerce had issued a 
proposal to change its calculation.  The proposal was not final and did not prejudge what might happen in any specific past review, and was subject to comment.  The United States was continuing to 
review the comments it had received.  
33. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.17) 
34. The Chairperson drew attention to documen t WT/DS350/18/Add.17, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning the existence and application of zeroing methodology by the United States. 
35. The representative of the United States said th at his country had addressed the issue of 
compliance with the findings in this dispute in th e status report provided on 12 May 2011, and earlier 
in the context of the discussion under Agenda item 1( e) of the present meeting.  The United States, 
therefore, referred Members to that report and to that statement for further details.   
36. The representative of the European Union said that the EU thanked the United States for its 
most recent status report.  Since the United Stat es had not reported on any steps to address the 
concerns raised by the EU in the DSB, the EU re ferred Members to its statements made at the DSB 
meetings in January and February 2011.  The EU re mained ready to engage with the United States in 
discussions within the WTO and bilaterally in order to ensure that its con cerns expressed in the DSB WT/DSB/M/296 
Page 8  
 
  were addressed by the United States.  The EU looked forward to further information from the 
United States on its intentions. 
37. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(g) United States – Laws, regul ations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.11) 
38. The Chairperson drew attention to documen t WT/DS294/38/Add.11, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US laws, regulations and me thodology for calculating dumping margins. 
39. The representative of the United States said th at his country had addressed the issue of 
compliance with the findings in this dispute in th e status report provided on 12 May 2011, and earlier 
in the context of the discussion under Agenda item 1( e) of the present meeting.  The United States, 
therefore, referred Members to that repo rt and statement for further details.   
40. The representative of the European Union said that the EU thanked the United States for its 
status report and referred Members to its stat ement made under Agenda item 1(f) of the present 
meeting concerning the US proposal of 28 December 2010. 
41. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.4) 
42. The Chairperson drew attention to document WT/DS363/17/Add.4, which contained the 
status report by China on progress in the implemen tation of the DSB's recommendations in the case 
concerning China's measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products. 
43. The representative of China said that her country had provided a status report in this dispute 
on 12 May 2011, in accordance with Article 21.6 of th e DSU.  China had made tremendous efforts to 
implement the DSB's recommendations and rulings, and had, thus far, completed amendments to most 
measures at issue.  This fully demonstrated China' s sincerity towards the implementation of the DSB's 
recommendations and rulings.  China believed that th is matter would be resolved properly through 
joint efforts and mutual cooperation with relevant parties. 
44. The representative of the United States said that his country thanked China for its status report 
and its statement made at the present meeting.  Th e United States remained concerned about the lack 
of progress by China in bringing its measures rela ting to films for theatrical release into compliance 
with the DSB's recommendations and rulings.  The United States also had significant concerns about 
the incomplete progress relative to China's measu res relating to audiovisual home entertainment 
products, reading materials, and sound recordings.  The United States was conferring with China on 
those matters and hoped that China would ta ke steps to resolve this matter soon. 
45. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting.  WT/DSB/M/296 
 Page 9 
 
 
  2. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Union and Japan 
46. The Chairperson said that this item was on the Agen da of the present meeting at the request of 
the European Union and Japan.  She then invited the respective representatives to speak. 
47. The representative of the European Union said that the EU had already informed the DSB 
about the annual adjustment in the level of duties applied by the EU in this case in a document 
circulated on 12 April 2011.  At the present meeting, and as it had done many times before, the EU wished to ask the United States when it would e ffectively stop the transfer of anti-dumping and 
countervailing duties to the US industry and, hence, put an end to the condemned measure.  The fact 
that the United States had stopped disbursing duties collected after a certain point in time did not 
achieve full compliance.  Every disbursement that still took place was clearly an act of non-
compliance with the DSB's recommendations.  The EU  renewed its call on the United States to abide 
by its clear obligation under Article 21.6 of the DS U and to submit status reports pertaining to this 
dispute. 
48. The representative of Japan said that his country  had learned that US Customs and Border 
Protection had just started disbursing a certain amount  of funds under the CDSOA that it had withheld 
from distribution for FYs 2006 to 2010 pending domestic litigations.5  This development appeared to 
show that the CDSOA remained operational.  Accord ing to US Customs and Border Protection, "the 
distribution process will continue for an undetermined period".6  Japan urged the United States to stop 
the illegal distributions and repeal the CDSOA, not just  in form but in substance, so as to resolve this 
dispute.  According to Article 21.6 of the DSU, the United States was under obligation to provide the 
DSB with a status report in this dispute. 
49. The representative of Canada said that his country agreed with the EU and Japan that the 
Byrd Amendment remained subject  to the surveillance of the DS B until the United States ceased to 
administer it. 
50. The representative of Brazil said that his country  thanked the EU and Japan for keeping this 
item on the DSB's Agenda.  As long as the United Stat es continued to make disbursements pursuant to 
the CDSOA, the situation of non-compliance in this di spute would persist.  As this dispute remained 
unresolved, the United States was required to resume the submission of status reports.  
51. The representative of India said that his count ry thanked the EU and Japan for regularly 
bringing this issue before the DSB.  India shar ed their concerns and endorsed their views.  As 
mentioned by previous speakers, the CDSOA remain ed fully operational, allowing for disbursements 
by the US Administration to its domestic industry.  This affected the rights of Members and undermined the credibility of the dispute settlement  system.  India agreed that this item should 
continue to remain under the surveillance of  the DSB until full comp liance was achieved. 
52. The representative of Thailand said that his count ry thanked the EU and Japan for continuing 
to bring this item before the DSB.  Thailand supp orted the statements made by previous speakers and 
continued to urge the United States to cease the disbursements and fully comply with the DSB's 
recommendations and rulings on this matter. 
                                                      
5 See US Customs and Border Protection's website at:  
http://www.cbp.gov/xp/cgov/trad e/priority_trade/add_cvd/cont_dump/withheld_funds.xml 
6 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trad e/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml WT/DSB/M/296 
Page 10  
 
  53. The representative of the United States said that, as his country had explained at previous 
DSB meetings, the US President signed the Deficit Reduction Act into law on 8 February 2006.  That 
Act included a provision repealing the Continued Du mping and Subsidy Offset Act of 2000.  Thus, 
the United States had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes.  Furthermore, the Un ited States recalled that Members had acknowledged 
during previous DSB meetings that the 2006 Defic it Reduction Act did not permit the distribution of 
duties collected on goods entered after 1 October 20 07.  With respect to comments regarding further 
status reports in this matter, 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 in these disputes.   
54. The DSB took note of the statements. 
3. Moldova – Measures affecting the importation an d internal sale of goods (environmental 
charge) 
(a) Request for the establishment of a panel by Ukraine (WT/DS421/4) 
55. The Chairperson drew attention to the comm unication from Ukraine contained in document 
WT/DS421/4, and invited the representative of Ukraine to speak. 
56. The representative of Ukraine said that her c ountry regretted that Moldova maintained 
measures affecting the importation and internal sale of goods for the reasons of environmental 
charges, which had been imposed in violation of the national treatment principle of the multilateral 
trading system.  The governmental measure, acco rding to the Law of Moldova "On Charge for 
Contamination of Environment", imposed a char ge on imports of products, the use of which 
contaminated the environment.  It appeared that  like domestic products were not subject to this 
charge.  Pursuant to the Law, Moldova also applie d "a charge for a plastic or 'tetra-pack' package 
containing products (except for dairy produce)".  It  appeared that packages containing domestically 
produced like products were not subject to this ch arge.  Ukraine considered that the measure was 
inconsistent with Moldova's obligations under the GATT 1994.  Moldova seemed to act inconsistently 
with Article III:1 and 2 of the GATT 1994, by subj ecting the products of the territory of other 
Members imported into the territory of Moldova, dir ectly or indirectly, to internal taxes or other 
internal charges of any kind in ex cess of those applied, directly or indirectly, to like domestic products 
and affording protection to domestic production.  Mo ldova also seemed to act inconsistently with 
Article III:4 of the GATT 1994, by failing to accord  to Ukraine's products imported into Moldova 
treatment no less favourable than that accorded to like products of national origin in respect of all 
laws, regulations and requirements affecting thei r internal sale, offering for sale, purchase, 
transportation, distribution or use.  Moldova was awar e of this problem, since Ukraine had raised this 
issue several times over the years bilaterally at di fferent levels.  Ukraine had been encouraging 
Moldova to bring its long-standing measure into compliance with the multilateral trading rules.  
Unfortunately, no WTO-consistent solu tion had been proposed by Moldova.   
57. With a view to seeking additional information from Moldovan experts by establishing a 
working dialogue, which could have served as a platfo rm for better understanding of the interests of 
the two sides and, in the long run, would facilita te a mutually satisfactory solution, Ukraine had 
proposed that consultations be held as soon as possibl e on a date to be agreed by the parties.  She 
noted that Ukraine's request for consultations had been circulated to Members as document 
WT/DS421/1 on 21 February 2011.  However, it had not  been possible for those consultations to be 
held since Moldova had failed to reply to Ukraine's request within ten days and had not entered into 
consultations in good faith within a period of no more  than 30 days after the date of receipt of the 
request, as provided for in Article 4 of the DSU.  T hus, Ukraine had not been given any opportunity to 
meet Moldovan authorized trade and other relevant  experts as counterparts and consult with them.   WT/DSB/M/296 
 Page 11 
 
 
  This had made it impossible for Ukraine's experts to put questions to their Mo ldovan colleagues in an 
open dialogue and get a better unde rstanding of the current situation, and to propose possible 
solutions to Moldova.  Though there had been a t echnical meeting between the representatives of the 
Geneva-based missions of both parties on 22 March 2011, one month from the date of the request for 
consultations, a clear proviso had been stated by the Permanent Representative of Moldova that this 
meeting was not considered to be consultations in the meaning of the DSU, and that it should rather 
be considered by Ukraine as a preliminary techni cal meeting.  Two months after the request for 
consultations had been filed, Ukraine had receive d an informative descriptive note, which contained 
no formal signs of dates, venue or authorized persons holding power to assist in resolving the matter at the DSU consultations stage.  That document raised more questions regarding substance, but 
Ukrainian experts still did not have an opportunity to put them to Mo ldovan authorized counterparts at 
the consultation stage.   
58. At the present meeting, Ukraine was making r ecourse to its right under the DSU provisions to 
request the establishment of a panel to examine this  matter, having waited for more than 60 days after 
filing the request for consultations and not seeing an y movement towards a resolution of the matter at 
the consultation stage.  Therefore, Ukraine was requ esting, pursuant to Article 6 of the DSU, that the 
DSB establish a panel, with standa rd terms of reference as set out in Article 7.1 of the DSU, to 
examine the matter as laid out in Ukraine's panel requ est, which had been circulated to all Members as 
document WT/DS421/4 on 13 May 2011.  Ukraine rema ined open to further substantial consultations 
with Moldova, and hoped that it would be possible to  reach a sustainable solution to this matter.  
59. The representative of Moldova said that her count ry objected to Ukraine's request for the 
establishment of a panel to examine Moldova's meas ures affecting the importation and internal sale of 
goods, also called the environmental charge. 
60. The DSB took note of the statements and agreed to revert to this matter. 
4. Selection process for appointment of new Appellate Body members 
61. The Chairperson recalled that, at the DSB meeting on 21 April 2011, she had announced her 
intention to place, on the Agenda of the present meeting, the item concerning the 2011 selection 
process for the appointment of two new members of th e Appellate Body.  She further recalled that, at 
the 21 April 2011 DSB meeting, she had also announced  her intention to propose that the DSB agree 
to four elements with regard to the selection process.   She noted that, at the present meeting, a written 
version of those elements had been made availabl e by the Secretariat outside the room.  She then 
proposed that the DSB agree to the following:  (i) to launch as from 24 May 2011 the selection 
process for appointment of two new members of th e Appellate Body;  (ii) to set a deadline of 
31 August 2011 for Members' nominations of candida tes for the two positions;  (iii) to agree to 
establish a Selection Committee, based on the pr ocedure set out in document WT/DSB/1, which 
would consist of the Director-General and the 2011 Chairpersons of the General Council, Goods 
Council, Services Council, TRIPS Council and the DSB, which would be presided by the 2011 DSB 
Chair;  (iv) to request the Selection Committee to  conduct interviews with candidates and to hear 
views of WTO Members in September/October, and to make recommendations to the DSB by no later 
than 10 November 2011, so that the DSB could take a final decision on this matter at the latest at its regular meeting on 21 November 2011. 
62. The representative of the European Union said that  the EU wished to thank Ms. L. Bautista 
and Ms. J. Hillman for their service on the Appe llate Body.  The EU hoped that it would be able 
express its appreciation more personally to them in future.  The EU highly appreciated their efforts, 
skills and professionalism.  The EU took note of the pr ocedure laid out by the Chairperson and did not 
only hope, but expected, that the process would yi eld nominations that would provide Members with WT/DSB/M/296 
Page 12  
 
  sufficient choice to be able to select candidates of the highest standing and quality for these very 
important positions. 
63. The Chairperson said that, since there was no obj ection to proceed along the lines that she had 
just outlined, she wished to propose that the DSB agree to her proposal regarding the selection process 
for the appointment of two new Appellate Body members.  
64. The DSB took note of the statements and agreed  to the Chairperson's proposal regarding the 
selection process for the appointment of two new Appellate Body members. 
65. The Chairperson said that, as was done in the past, nominations of  candidates, together with 
their curricula vitae, should be addressed to the Ch airperson of the DSB in care of the Council & TNC 
Division, and would subsequently be circul ated as Job documents to all WTO Members. 
66. The DSB took note of the statement. 
5. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/449) 
67. The Chairperson drew attention to document  WT/DSB/W/449, which contained additional 
names proposed for inclusion on the indicative list of governmental and non-g overnmental panelists, 
in accordance with Article 8.4 of the DSU.  She proposed that the DSB approve the names contained 
in document WT/DSB/W/449. 
68. The DSB so agreed. 
__________