RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/228 
2 May 2007 
 (07- 1830) 
Dispute Settlement Body 
20 March 2007  
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 20 March 2007  
 
Chairman:  Mr. Bruce Gosper (Australia) 
 
 
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 (WT/DS176/11/Add.52) .................................................................................2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  Status report by the United States (WT/DS184/15/Add.52)...........................................5
 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United 
States (WT/DS160/24/Add.27)...................................................................................................6  
(d) United States – Laws, regulations and methodology for calculating dumping margins 
("Zeroing"):  Status report by the United States (WT/DS294/20/Add.1) ...................................6  
2. United States – Anti-dumping measure on shrimp from Ecuador.......................................7  
(a) Implementation of the recommendations of the DSB.................................................................7  
3. United States – Continued Dumping and Subsidy Offset Act of 2000:  Implementation of the recommenda tions adopted by the DSB ............................................8
 
(a) Statements by Canada, the Eur opean Communiti es and Japan...................................................8  
4. European Communities – Regime for the importation, sale and distribution of 
bananas ........................................................................................................................ ............10  
(a) Recourse to Article 21.5 of the DSU by Ecuador:  Request for the establishment of 
a panel (WT/DS27/80)........................................................................................................... ...10 
5. Chile – Provisional safeguard measur e on certain milk products/Chile –
 Definitive safeguard measu re on certain milk products.....................................................13  
(a) Request for the establishment of a panel by Argentina (WT/DS351/2 – WT/DS356/2)..........13  
6. Proposed nominations for the indicative list of governmental and 
non-governmental panelists (WT/DSB/W/343)....................................................................14  
 
 WT/DSB/M/228 
Page 2  
 
  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.52) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.52) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.27) 
 
(d) United States – Laws, regulations a nd methodology for calculating dumping margins 
("Zeroing"):  Status report by the United States (WT/DS294/20/Add.1) 
 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.52) 
2. The Chairman  drew attention to document WT /DS176/11/Add.52, 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 8 March 2007, in accordance with Article 21.6 of the DSU.  As noted in the 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 Congress, in both the US Senate and the US 
House of Representatives.  The US administration co ntinued to work with the Congress to implement 
the DSB's recommendations and rulings. 
4. The representative of the European Communities
 said that the introduction of bills to 
implement the DSB's ruling in Section 211 dispute was welcome news. Thirty five representatives 
were already supporting bills to repeal Section 211.  The EC hoped that the present Congress would 
not sit on those bills as the previous Congress and w ould finally bring an end to this dispute to the 
benefit of all.  Ignoring the TRIPS obligations, as th e United States had done for more than five years 
now, affected the interests of the whole indust ry by undermining the authority of the TRIPS 
Agreement and the credibility of actions to promote worldwide a rules-based protection of intellectual 
property rights.  The EC, therefore, urged the United States to comply with its obligations under the 
TRIPS Agreement. 
5. The representative of Cuba  said that, for over five years, the DSB Members had been 
awaiting the US action to implement the rulings an d recommendations in the Section 211 dispute.  
During that period of time, month after month the US delegation had continued to  reiterate that:  "The 
US administration is working with the Congress with respect to appropriate statutory measures that would resolve this matter".  The same statement had just been repeated again at the present meeting. 
The United States had little or no interest in complying with the DSB's rulings, and more specifically 
with its obligations under the TRIPS Ag reement, despite the fact that it considered itself to be a strong 
advocate of  intellectual property rights.  This had been confirmed by the fact that, in 2006, the US 
Patent and Trademark Office had denied a licence to renew the registration of the Havana Club  WT/DSB/M/228 
 Page 3 
 
 
  trademark, for foreign policy reasons.  In doing so, the United States had pre-empted the conclusion 
of the lawsuit currently under way in US courts wh ere the question of ownership of the trademark had 
to be determined without political interference. Th e United States was also not concerned about the 
possibility that other Members could follow the US  bad example and ignore the disciplines of the 
TRIPS Agreement, which could result in more chaos in the area of protection of intellectual property 
rights.  The US attitude, the only WTO Member that  had systematically failed to comply with its 
obligations under the WTO Agreements such as th e TRIPS Agreement undermined the credibility and 
the balance of the multilateral trading system at this important  juncture of the WTO. 
6. Furthermore, the status of the Section 211 di spute was not clear.  Article 21 of the DSU 
provided that:  "....prompt compliance with the r ecommendations and rulings of the DSB is essential 
to ensure the effective resolution of disputes to  the benefit of all Members and that, if it is 
impracticable to comply immediately, the Member concerned shall have a reasonable period of time in which to do so."  However, in the Section 211 dispute, the last reasonable period of time agreed 
between the US and the EC had e xpired on 30 June 2005.  That meant that it was not clear when the 
Member concerned had to implement the DSB's r ecommendations and rulings.  Cuba was aware that 
the only draft law that had been introduced in the current session of the US Congress was bill 
H.R. 1306 which had its own version in the Senate  S.749.  Both had been introduced by Florida 
lawmakers.  This Bill was intended to modify S ection 211 by making cosmetic changes that would 
leave it virtually intact, thereby usurping Cuban trad emarks of recognized international prestige.  He 
noted that Cuba had acquired that information from the Internet and that such information had not 
been provided by the United States to the DSB.  Once again, Cuba renewed its call on the United 
States to take prompt and immediate action to im plement the DSB's recommendations and rulings and 
insisted that the only possibl e solution to this dispute was to repeal Section 211. 
7. The representative of Brazil
 said that his country thanked the United States for its status 
report and the statement made at the present meeti ng.  However, Brazil regretted the lack of any 
positive development regarding the implementation of  the DSB's recommendations in this dispute, 
after more than five years since the adoption of the Panel and the A ppellate Body reports.  
Compliance with the DSB's recommendations, together  with the number of mutually agreed solutions, 
was the most faithful measure of the effectiveness of the dispute settlement system.  The fuller and 
faster a Member brought its measure into conformity  with its obligations, the more effective and, 
consequently, the more credible the system woul d be.  By contrast, the complete absence of 
meaningful actions toward compliance severely impa ired the functioning of the system, and altered 
the balance of rights and obligations, which the w hole Membership had negotiated.  Brazil recognized 
that all Members bore the responsibility for implemen tation, but the major players' behaviour had a 
much more significant impact and they bore a correspondingly greater individual responsibility. Brazil, therefore, urged the United States to step up the efforts to fully implement the relevant DSB's 
recommendations in the shortest period of time possible. 
8. The representative of India
 said that his country thanked the United States for its situation 
report and the statement.  However, as had been noted several times previously, there was no substantive change in the situation report.  India, therefore, felt compelled yet again to stress that the 
principle of prompt compliance with rulings and r ecommendations of the DSB appeared to be missing 
in this dispute.  This was a matter of great system ic concern, as more than five years had now elapsed 
since the adoption of the recommendations and rulings of the DSB in this case.  India again urged the 
parties to this dispute to inform the DSB as to how they intended to fulfill the objective of prompt 
settlement. 
9. The representative of the Bolivarian Republic of Venezuela
 said that his country wished to 
thank Cuba for its statement, which it fully endo rsed, and considered Cuba's complaint to be 
legitimate.  His delegation must, once again, draw attention to the continued inaction of the United 
States in this dispute.  As Cuba had mentioned, the United States had repeated every month, for over WT/DSB/M/228 
Page 4  
 
  four years, that the US administration was working with the US Congress to implement the Panel's 
rulings and recommendations on this matter.  Howe ver, his delegation wished to learn more about 
these efforts and to see concrete results in line w ith the Panel's recommendations.  Unfortunately, it 
would seem that the current situation was far from th at point.  Therefore, as far as his delegation was 
concerned, the fact remained that this persistent  disregard for the core obligations under the TRIPS 
Agreement undermined the authority of that inst rument, and hence the credibility of the WTO. 
10. The US administration's decision to refuse, on foreign policy grounds, to grant the specific 
licence needed to renew the registration of the Hava na Club trademark had also sent an inappropriate 
and disturbing message.  Renewal of this licence woul d not have given away or granted any rights.  It 
would merely have preserved the status quo and woul d have allowed the US courts to decide, in 
pending proceedings, who was the legitimate owner of  that trademark.  Ownership of intellectual 
property rights should be decided in courts on the b asis of the rule of law, free from the interference 
of political considerations.  If the example set by th is decision were to be followed by other countries, 
this would seriously undermine efforts to promot e rules-based protection of intellectual property 
rights worldwide.  His country, therefore, invited the United States to reconsider its position in light of 
its severely damaging effects, and in particular its  negative impact on a developing country, such as 
Cuba. Finally, his country urged the United States,  the only WTO Member that systematically failed 
to comply with panels' recommendations under the TR IPS Agreement, to bring itself into compliance 
with that Agreement. 
11. The representative of China
 said that, once again, his country wished to express its systemic 
concerns with the protracted implementation process in  the Section 211 dispute.  First, China thanked 
the United States for its status report and the statemen t.  China also thanked the EC and Cuba for their 
statements, which it fully supported. China appreciat ed the efforts made by United States during the 
past five years aimed at implementing the DSB's rulings.  However, unfortunately there was no indication when the matter would be resolved to the satisfaction of the parties to the dispute and other Members.  As China had stated at previous DSB meetings, the prompt and full implementation of the 
DSB's rulings and recommendations was one of the major cornerstones of the WTO dispute 
settlement system.  In the meantime, the prompt implementation in this dispute would not only be 
beneficial to other Members, but also to the Unite d States, who was an active advocate of intellectual 
property rights in all fora.  Therefore, China ag ain urged the United States to fully implement the 
decision of the DSB as soon as possible. 
12. The representative of Argentina
 said that his country thanked the United States for its status 
report regarding this dispute.  Ho wever, Argentina stressed the seriousness, from a systemic point of 
view, of the failure of Members to comply with the DSB's recommendations, and urged the 
United States to take the necessary steps to remedy the situation as quickly as possible. 
13. The representative of Nicaragua  said that her country thanked the United States for submitting 
its status report.  Like previous speakers, Nicar agua wished to express concern at the delay in 
implementing the DSB's recommendations and rulings in  this case.  In Nicaragua's view, such non-
compliance placed in jeopardy two fundamental components of the multilateral trading system:  (i) the balance of rights and obligations among all WTO Me mbersr;  and (ii) an effective application of 
the principles of most-favoured-nation and national treatment.  Furthermore, from the systemic point 
of view, the failure to settle this dispute promptly  cast doubt on the legitimacy and efficiency of the 
dispute settlement process and the protection of in tellectual property rights.  Finally, as the EC had 
stated in previous statements, intellectual property ri ghts must be awarded solely on the basis of legal 
considerations.  Nicaragua hoped that the US  Congress would adopt the necessary legislative 
measures in the near future. 
14. The representative of the United States
 said that his country regretted that certain Members – 
including some whose record of protecting intell ectual property rights appeared less than robust –  WT/DSB/M/228 
 Page 5 
 
 
  continued to criticize the US commitment to inte llectual property rights.  These criticisms were 
completely unfounded.  It was of course true th at the United States remain ed a strong advocate of 
substantial protections for intellect ual property internationally.  Howe ver, the United States was also 
second to no one in providing strong intellectual propert y protection within its own territory.  And, in 
response to some suggestions at the present meeting that the US compliance record was poor, the facts 
simply did not support that assertion.  Indeed, th e record showed that the United States had fully 
complied in the vast majority of its disputes.  As for the remaining few, the United States was actively 
working towards compliance. 
15. The representative of Cuba  said that his delegation wished to express disagreement with the 
US statement.  If five years was not a long peri od of time, Cuba did not know how much longer 
Members would have to wait for compliance with the DSB's decisions in this dispute, and in 
particular those relating to the TRIPS Agreement.  One simply needed to lo ok at the DSB agenda to 
realize how many rulings and recommendations had not yet been implemented by the United States. 
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.52) 
17. The Chairman  drew your attention to document WT/DS184/15/Add.52, 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. 
18. The representative of the United States  said that his country had provided a status report in 
this dispute on 8 March 2007, in accordance with Ar ticle 21.6 of the DSU.  As of 23 November 2002, 
the US authorities had addressed the DSB's recommendations and rulings with respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty inv estigation at issue in 
this dispute. Details were provided in document  WT/DS184/15/Add.3.  The US administration would 
work with the new Congress which had convene d in January 2007 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 noted the statement made by the United 
States along with its most recent status report that the US administration was working with the new US Congress to pass specific legislative amendments that would implement the DSB's recommendations and rulings.  However, it was regretta ble to note that it had been more than five and 
half years since the DSB had a dopted the recommendation and rulings regarding this case in 
August 2001, but the United States was still reporting to  the DSB on the status of its implementation. 
As Japan had repeatedly stressed before the DSB, a full and prompt implementation of the 
recommendations and rulings was essential for ma intaining the credibility of the WTO dispute 
settlement system.  Japan reiterated that it strong ly hoped that the United States would accelerate its 
efforts to complete its work on full compliance at the earliest possible date. 
20. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/228 
Page 6  
 
  (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.27) 
21. The Chairman
  drew attention to document WT/DS160/ 24/Add.27, 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 8 March 2007, in accordance with Article 21.6 of the DSU.  The US administration would work closely with the new US Congress and woul d continue to confer with the EC, in order to 
reach a mutually satisfactory resolution of this matter. 
23. The representative of the European Communities
 said that the EC's position on this dispute 
was well known, the EC wished to see the law made  conform to the WTO obligations of the United 
States.  The EC understood that the new US Congress might be more receptive to this defence of 
TRIPS-derived rights. The EC remained prepared to  work with the United States to seek a mutually 
satisfactory solution to this dispute and hoped that a solution could be identified in the near future. 
24. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) United States – Laws, regul ations and methodology for calculating dumping margins 
("Zeroing"):  Status report by the United States (WT/DS294/20/Add.1) 
25. The Chairman  drew attention to document WT/DS294/ 20/Add.1, 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 laws, regulations and me thodology for calculating dumping margins. 
26. The representative of the United States  said that his country had provided a status report in 
this dispute on 8 March 2007, in accordance with Article 21.6 of the DSU.  As noted in the report, on 6 March 2006, the US Department of Commerce had published a notice requesting comments on its 
intention to no longer perform average-to-average  comparisons in anti-dumping investigations 
without offsets.  On 26 January 2007, the Departme nt had published a notice that the date after which 
it would no longer perform such comparisons would be 22 February 2007.  Accordingly, as of 
22 February 2007, the United States was no longer performing average-to-average comparisons in 
anti-dumping investigations without offsets.  The United States continued to work to implement the DSB's recommendations in this dispute.  In that c onnection, on 26 February 2007, the Department of 
Commerce had issued to the parties to the anti-dum ping proceedings in question several preliminary 
results for comments. 
27. The representative of Japan
 said that his country wished to express its appreciation for the 
work and efforts made by the United States to implement the DSB's recommendations and ruling 
pertaining to this case.  As a result, the United States had abandoned its zer oing methodology in the 
weighted-average-to-weighted-average price compar ison in the original anti-dumping investigations 
on 22 February 2007, as scheduled.  This dem onstrated that the zeroing methodology was the 
"measure" that could be withdrawn by the US aut hority without any legislative action on the part of 
the US Congress.  Japan also understood that the United States was working hard to implement the 
other part of the recommendations and ruling of the DSB.  However, Japan recalled that the end of the 
reasonable period of time agreed upon between the EC  and the United States was approaching. Japan 
would closely observe, with much interest, whet her and how the United States would achieve full 
compliance with the DSB's recommendations in this dispute by bringing all the "as applied" cases 
found to be WTO-inconsistent into co nformity with the WTO Agreement.  WT/DSB/M/228 
 Page 7 
 
 
  28. The representative of the European Communities  said that the EC welcomed the entry into 
force of the new methodology, which had brought an  end to the practice of zeroing in original 
investigations when calculating the dumping marg in on a weighted-average -to-weighted-average 
basis.  The EC also welcomed the preliminary r esults in the proceedings aimed at implementing the 
DSB's ruling for the 15 original measures found WTO-incompatible, although it objected strongly to 
the massive increase in the "all others" rate in sev eral cases, due to the inclusion of "adverse facts 
available" duty rates in the calculation.  The EC hoped that the United States would complete these 
proceedings by the 9 April deadline and would gi ve full effect to the implementing measures by 
stopping to apply the zeroed duty rate after 9 Apr il, including when collecting duties on unliquidated 
entries.  The EC also trusted that the United St ates would abandon the unjustified increases in the all 
others rates and would leave these rates unchanged. With regard to the 16 "as applied" periodic 
reviews, to the EC knowledge, the United States ha d not yet taken any action to bring them into 
compliance with its WTO obligations. This raised serious concerns as to the US ability to fully 
implement the DSB's rulings and recommendations with in the three weeks that were now left before 
the expiry of the implementation period in this dispute.  The EC wished to know why the United 
States had not yet started implementing the DSB's ruling on the periodic reviews;  if the United States 
intended to bring them into compliance by 9 Ap ril, and if the United States could communicate a 
detailed time-table of its proposed implementation.  Failing such confirmation, the EC would have to 
prepare for the next step foreseen in the DSU;  i.e. protecting its retaliation rights. 
29. The representative of the United States  said that the EC's question would be passed on to 
capital.  As the EC was aware, there was a substa ntial amount of work involved in responding to the 
DSB's recommendations and rulings.  The United States was working hard to try to conclude the work 
by 9 April 2007. 
30. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
2. United States – Anti-dumping measure on shrimp from Ecuador 
(a) Implementation of the recommendations of the DSB 
31. 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  r ecalled that at its meeting on 20 February 2007, the 
DSB had adopted the Panel Report pertaining to the dispute:  "United States – Anti-Dumping 
Measure on Shrimp from Ecuador".  He invited the Un ited States to inform the DSB of its intentions 
in respect of implementation of the recommendations. 
32. The representative of the United States  said that his country intended to implement the 
recommendations and rulings of the DSB in a manner  that respected the US WTO obligations.  The 
United States would need a reasonable period of tim e in which to implement.  The United States and 
Ecuador had reached agreement on a reasonable pe riod of time of six months from the date of 
adoption of the Panel Report. 
33. The representative of Ecuador  thanked the United States for its statement concerning the 
time-frame within which it had stated that it  hoped to be able to implement the DSB's 
recommendations. Pursuant to the Panel's recommenda tions and the parties' agreement on procedures, 
Ecuador reiterated its request to the United States th at the Department of Commerce complete its new 
calculations, preferably by 20 August 2007.  Ecuado r was confident that that would mean that the WT/DSB/M/228 
Page 8  
 
  anti-dumping order could be revoked and that Ec uador could export without additional duties. 
Ecuador had learned that a preliminary calculatio n by the Department of Commerce indicated a 
reduction in the additional tariff.  Ecuador was, th erefore, optimistic that the final calculation would 
establish that no dumping was taking place. 
34. The representative of Japan
 said that his country welcomed the statement by the Untied States 
in which it had stated its intention to implement the recommendations and rulings of the DSB in this 
dispute.  Japan believed that the US statement together with the procedural agreement reached 
between the United States and Ecua dor demonstrated the willingness on th e part of the United States 
to resolve the "zeroing" disputes in an "efficien t" manner "with a minimum burden on the resources of 
the parties and the dispute settlement system"1.  Japan would closely observe, with much interest, how 
the United States would achieve compliance with the DSB's recommendations and rulings in this 
dispute. 
35. 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 Canada, the European Communities and Japan  
36. The Chairman  said that this item was on the agenda of the present meeting at the request of 
Canada, the European Communities and Japan and invited the respective representatives to speak. 
37. The representative of Canada  said that while his country appreciated the steps the 
United States had taken towards implementing the ru lings and recommendations in this dispute, the 
United States had only prospectively repealed the Byrd Amendment.  Anti-dumping and 
countervailing duties collected up to 30 September 2007 could still be disbursed to US producers 
under the terms of this legislation.  As such, Cana da believed that the US claim – made in its last 
status report from over a year ago – that it had "tak en the actions necessary to implement the rulings 
and recommendations" in this dispute was not accurate. Canada, therefore, called on the United States 
to resume the submission of status reports and to repeal the Byrd Amendment. 
38. The representative of th e European Communities  said that the repeal of the Byrd Amendment 
one year ago had been a significant step in the right direction.  But, it was still insufficient to bring the 
United States into full conformity with its WTO obligations.  As long as the transition period 
produced its effect, the US administration would continue distributing the anti-dumping and anti-
subsidy duties to its industry in breach of Ar ticles 18.1 of the Anti-Dumping Agreement and 
Article 32.1 of the SCM Agreement.  The EC, ther efore, asked again the United States if and what 
steps it intended to take to stop the transfer of  anti-dumping and countervailing duties without further 
delay.  The EC also renewed its call on the Un ited States to abide by its clear obligation under 
Article 21.6 of the DSU and to submit status reports on implementation in this dispute. 
39. The representative of Japan  said that his country continued to claim that by enacting the 
Deficit Reduction Act of 2005, it had taken a ll necessary actions to implement the DSB's 
recommendations and rulings.  Japan recognized th at the Act which had formally repealed the 
CDSOA was a significant step forward in the right di rection.  However, the fact remained that, under 
the transitional clause, the illegal di stribution still continued.  The transitional clause provided that the 
duties collected on imports that would enter prior to  1 October 2007 must be disbursed.  Under the US 
system, this meant that the disbursement under th e CDSOA would continue for years to come.  The 
                                                      
1 See the statement made by the United States at  the 20 February 2007 DSB meeting (Item 6).  WT/DSB/M/228 
 Page 9 
 
 
  United States must immediately stop the illegal disbursements and fully implement the DSB's 
recommendations and rulings.  Japan also reiterate d that the United States was under obligations to 
provide the DSB with a status report pursuant to Artic le 21.6 of the DSU.  Japan wished to reserve all 
its rights under the DSU until the United States came  into full compliance with its obligations. 
40. The representative of Brazil  said that he would repeat – word by word – the statement made 
by his delegation at the 17 March 2006 DSB meeting – the first meeting when this item had been 
included on the agenda, more than one year ago. Un fortunately, those words continued to be at the 
present meeting as relevant as they had been for the p ast year. He then stated  the following:  "Brazil 
thanks Canada, the EC and Japan for raising this issue at the DSB.  This is the appropriate forum to 
debate about a matter – compliance or non-complian ce – that concerns the whole Membership.  We 
share the view of those three Members that the 'iss ue' is not resolved in this dispute within the 
meaning of Article 21.6 of the DSU.  Significant and welcome as the repeal of the Byrd Amendment 
is, the conditions under which such repeal will operate do not support the assertion that the United 
States has implemented the DSB's relevant recommenda tions.  Brazil reiterates that there will be no 
full compliance on the part of the United States until and unless all disbursements under the Byrd 
Amendment cease.  As a consequen ce, the co-complainants cannot be deprived of any right conferred 
by the DSU with respect to this situation of non- compliance by the mere passing into law of the 
Deficit Reduction Omnibus Reconciliation Act." 
41. The representative of China  said that first, his country wished to thank and support Canada, 
the EC and Japan for raising this item on the agenda  of the present meeting.  China appreciated the 
efforts of the United States to implement the DSB' s rulings and recommendations in this dispute and 
welcomed the repeal of CDSOA.  However, China shared the view expressed  by previous speakers 
that the implementation issue had not been resolved in this dispute within the framework of Article 21 
of the DSU.  It was the obligation of a Member to fully and promptly implement the DSB's rulings 
and recommendations, which was critically important to  the credibility and efficiency of the dispute 
settlement system.  Therefore, Chin a wished to join previous speaker s in urging the United States to 
comply fully with the DSB's rulings. 
42. The representative of India  said that his country thanked Cana da, the EC and Japan for raising 
this issue at the DSB yet again.  India failed to understand how the United States could claim to be in 
compliance with the recommendations in this disp ute while continuing to disburse collected anti-
dumping and countervailing duties to its industry, almo st fours years after they should have stopped.  
Data available in the CDSOA Annual Report from th e US own Customs and Border Protection for the 
fiscal year 2006 only proved India's argument in this regard.  In spite of this, all the United States had 
done was to reiterate its indefens ible position.  Such unilateral action was indeed regrettable as it 
undermined the WTO dispute settlement system.  Indi a, therefore, again urged the United States to 
inform the DSB of the steps it proposed to take to  ensure full compliance, and reiterated its request 
that the United States resume submitting status reports in this dispute. 
43. The representative of Thailand  said that his country thanked Canada, the EC and Japan for 
once again bringing this item before the DSB.  Thai land remained disappointed at the United States' 
continued illegal disbursement of funds unde r the CDSOA.  Likewise, Thailand remained 
disappointed at the Unites States' continued refusal  to submit any status report on its outstanding 
implementation in this dispute.  Therefore, Thaila nd repeated its call for the United States to cease 
these WTO-inconsistent disbursements, to repeal the Byrd Amendment with immediate practical 
effect, and to resume providing status reports until su ch actions were taken and this matter had been 
fully resolved. 
44. The representative of Chile  said that his delegation wished to make a statement since many 
delegations at the present meeting had referred to disputes in which  compliance or full compliance 
with the rulings and recommendations of panels ha d been questioned. His delegation had a systemic WT/DSB/M/228 
Page 10  
 
  concern regarding this matter.  The role of the WTO was to assist the parties in finding a solution to a 
dispute.   Thus, Chile was concerned that persis tent and repeated doubts with regard to compliance 
could undermine the WTO because if Members did not comply with panels' recommendations, they would all have to bear consequences. 
45. 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.  With  respect to comments regarding further status 
reports in this matter, as his delegation had alread y explained, the United States had taken all steps 
necessary to implement the DSB's recommendations and rulings in these disputes.  Those Members 
who had inscribed this item on the agenda of the present meeting were, of course, free to do so, but 
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.  Finally, the United St ates continued to be surprised by the assertions 
that the United States would not have implemente d the DSB's rulings and recommendations until the 
last CDSOA distribution was made.  Of course, such questions were for panels to decide. 
46. The DSB took note
 of the statements.  
4. European Communities – Regime for the impo rtation, sale and distribution of bananas 
(a) Recourse to Article 21.5 of the DSU by Ecuador :  Request for the establishment of a panel 
(WT/DS27/80)  
47. The Chairman  recalled that the DSB had considered this matter at its meeting on 
8 March 2007 and had agreed to revert to it.  He  drew attention to the communication from Ecuador 
contained in document WT/DS27/80, and invite d the representative of Ecuador  to speak. 
48. The representative of Ecuador  said that this item was on the DSB's agenda for the second 
time.  At the present meeting, his delegation w ould not reiterate the background of the case or 
Ecuador's legal arguments, which were set out in Ecuador's request for the establishment of a panel 
under Article 21.5 of the DSU.  Ecuador wished to reaffirm its statement  made at the DSB meeting 
on 8 March 2007, when full details had been pr ovided of the reasons why Ecuador had been 
compelled to request the establishment of a panel.  Therefore, in the light of the foregoing, and in 
accordance with Article 6 of the DSU, the DSB mu st establish a panel at the present meeting. 
49. The representative of th e European Communities  reiterated that the EC had always expressed 
its firm commitment to pursue a negotiated solu tion in 2007 for the benefit of all WTO Members 
concerned.  Most of the statements made at the special DSB meeting held on 8 March, including that 
of Ecuador, had pointed in that direction.  Sin ce then the EC had had numerous high level meetings 
seeking to find a solution to this dispute.  Without prejudice to Ecuador's rights under the DSU, 
Ecuador's request for the establishment of a panel seemed to contradict this overall spirit, hopes and 
expectations.  Ecuador had opted for bringing a case mostly focused on the preferential treatment 
offered to some of the most weak and vulnerable WTO Members, which, in addition, had received 
multilateral consent.  Furthermore, the EC was obliged to reiterate the EC's objection to the 
invocation of Article 21.5 of the DSU as a basis for this request.  The EC reiterated its position that 
the current EC banana import regime was not a "measure to comply" with the recommendations and rulings of the DSB in the Bananas III dispute, whic h had been adopted almost a decade ago.  Those 
recommendations and rulings had already been implem ented back in 2001.  The EC would, therefore, 
use all its rights to contest Ecuador's recourse to Article 21.5 of DSU.  WT/DSB/M/228 
 Page 11 
 
 
  50. The representative of Nicaragua  said that her country supported Ecuador's request for the 
establishment of a panel.  This dispute on non-compliance had gone on long enough without a settlement. Failure to find a solu tion had not only affected access by  Nicaraguan producers to the EC 
market, it also caused substantial losses in sales to the US market due to the volume displaced from 
the EC market.  This dispute must be settled in a way that would preserve trade interests of MFN 
developing countries, such as Nicaragua, which su ffered a great amount of damage.  Consequently, 
Nicaragua requested that Ecuador's Article 21.5 request  be approved, reserved the right to participate 
as a third party in the Article 21.5 proceedings to defend its substantial trad e interest, and hoped that, 
in accordance with the developing country provisions  of Article 21, this matter would be reviewed 
promptly and expeditiously. 
51. The representative of Panama
 said that, as had clearly been stated at the 8 March 2007 DSB 
meeting, Panama endorsed Ecuador's request fo r the establishment of a panel and intended to 
participate in the proceedings as actively as possible in  order to defend its trade interests. Panama, like 
Ecuador, was of the opinion that the banana measures taken by the EC to comply with the "EC – Bananas III" recommendations and other related pro ceedings had failed to meet the EC's compliance 
obligations.  The EC was applying:  (i) an ACP ta riff quota, which violated Article XIII of the GATT 
1994 and was not covered by a waiver;  (ii) a huge ACP tariff preference which violated Article I of 
the GATT 1994, and was not covered by a waiver;  (iii) an "autonomous" customs duty which was in 
violation of Panama's most basic rights in this area. Given that these non-compliant measures threatened Panama's most important agricultural i ndustry and its 8,000 workers, Panama continued to 
believe that short-term relief must be granted.  Ne vertheless, Panama regretted to note that more than 
a year had passed with no assurances whatsoever th at access would be improved in the short term.  
Panama, therefore, must take the necessary steps to protects its interests in these proceedings. 
52. The representative of Honduras
 said that, as a developing country that employed thousands of 
workers in its banana sector, Honduras maintained a strong interest in obtaining full and fair access to 
the EC market.  Honduras continued to believe that  the current EC arrangement unfairly restricted 
access to the EC market for Honduras' important ba nana sector.  In 2006, the banana industry in 
Honduras had suffered a 5 per cent decline in its volum e of exports to the EC, a 16 per cent decline in 
its share of the EC market, and a 37 per cent decline in the value of its exports to the EC.  Honduras, 
therefore, considered that short-term improvement s in access were essential.  In order to safeguard 
this vital sector of its economy, Honduras wished – as it had already done in 2002 – to make its 
position very clear, namely, that it reserved all subs tantive and procedural rights to address the EC's 
continuing non-compliance in this dispute. 
53. The representative of St. Kitts & Nevis , speaking also on behalf of the Windward Island  
banana producers:  St. Lucia, St. Vincent & the Grenadines and Dominica , said that the countries 
under consideration attached the highest priority to Ecuador's request for the est ablishment of a panel.  
For most developing countries the challenges that  confronted development were the same; i.e. 
securing the livelihoods of peoples through sustaina ble employment was a sacrosanct principle to 
which the countries under consideration subscribed.  For them,  sustainable employment was the greatest bulwark against poverty.  It was critical that all developing countries be granted an 
opportunity to sustain the livelihoods of their peoples.  This should not be pursued in a manner that sought compromise or negated the ability of other de veloping countries to provide economic security 
and the prospect of development for their people.  It was for that reason that his delegation was 
concerned that there was no sufficient level of sens itivity, even amongst developing countries, of the 
developmental concerns and aspiratio ns of other developing countries.  It was for the above reasons 
that Dominica, St. Lucia, and St. Vincent and th e Grenadines' producers expr essed deep regret that 
Ecuador had decided to pursue this matter in the DSB. 
54. While his delegation recognized the importance of the DSB for its role in adjudicating 
disputes, it believed that the DSB did not offer the b est forum for a lasting solution to this matter.  WT/DSB/M/228 
Page 12  
 
  Beyond the clear and immediate conc erns regarding Ecuador's request,  it was rather unfortunate that 
Ecuador had now decided to pursue litigation instead  of negotiations despit e conciliatory exchanges 
between the interested  parties during the c onsultations in December 2006 and Ecuador's pledge to seek a 
negotiated settlement.  Finally, the countries under consider ation reaffirmed their support for 
negotiations rather than litigation in order to resolve this dispute, and pledged commitment to work in a 
constructive manner with all parties involved.  He also  wished to formally request that should a panel be 
established, Dominica, St. Lucia, St. Vincent and the Grenadines, due to the impo rtance of this issue for 
their economies, would request third-part y status in the panel's proceedings. 
55. The representative of the United States
 said that, as his delegation had previously stated many 
times, the United States had looked forward to this di spute finally being resolved at the beginning of 
2006;  i.e. the United States had looked forward to the EC shifting to a tariff-only regime as it had 
committed to do in 2001.  Ecuador's request, at the present DSB meeting, underscored the concerns of 
Members with the current EC regime and only affirm ed the need for the EC to  work with interested 
Members to reach a resolution.  The United States supported Ecuador's efforts to try to obtain a 
resolution to this dispute. 
56. The representative of Cameroon  said that his country strongly objected to Ecuador's request 
which, as the EC had clearly stated, was targ eting the ACP preferences. Cameroon found this 
unfortunate.  Cameroon considered that negotiations  were in the interest of all WTO Members. 
However, it seemed that Membership of the WTO was limited to some.  He underlined that the 
interests of all Members should be maintained.  Ta rgeting the preferences of the ACP countries and 
requesting a panel was a confrontational appro ach,  which should be denounced. Cameroon supported 
the statements made by the EC and St. Kitts & Nevis. 
57. The representative of Côte d'Ivoire  said that, as previously stat ed, his country was surprised 
that the consultations held among all the banana pr oducers, including Ecuador, had arrived at this 
point.  However, his country noted that it was Ecuador 's right to request a panel and that such a panel 
would have to be established.  Côte d'Ivoire w ould request to be granted third-party rights to 
participate in the proceedings, once a panel was established. 
58. The DSB took note  of the statements and agreed , pursuant to Article 21.5 of the DSU, to refer 
to the original Panel, if possible, the matter rai sed by Ecuador in document WT/DS27/80.  The Panel 
would have standard terms of reference. 
59. The representatives of Cameroon , Colombia , Côte d'Ivoire , Dominica , the Dominican 
Republic , Ghana , Jamaica , Japan , St. Lucia,  St. Vincent & the Grenadines  and the United States  
reserved their third-party rights to pa rticipate in the Panel's proceedings. 
60. The representative of Jamaica  said that her delegation wished to make a statement regarding 
third-party participation in the Panel's proceedings.  Jamaica wished to indicate that in keeping with 
the practice of previous banana pa nels, it would be reques ting enhanced third-party participation in 
the Panel's proceedings and that a communication to this effect would be submitted to the WTO 
Secretariat. 
61. The DSB took note  of the statement.  
  WT/DSB/M/228 
 Page 13 
 
 
  5. Chile – Provisional safeguard measure on cer tain milk products/Chile – Definitive 
safeguard measure on certain milk products 
(a) Request for the establishment of a panel by Argentina (WT/DS351/2 – WT/DS356/2) 
62. The Chairman  drew attention to the communication from Argentina contained in document 
WT/DS351/2 – WT/DS356/2, and  invited the representative of Argentina  to speak. 
63. The representative of Argentina  said that in the period between September and 
December 2006, Chile had imposed two safeguard measures (provisional and definitive) on liquid 
milk, powdered milk and Gouda cheese from Arge ntina.  These safeguard measures had been 
imposed as a result of the investigation initiated by the Chilean authority in August 2006, and 
consisted of a tariff surcharge of 23 per cent applic able for a period of 200 days in the case of the 
provisional measure, and for a period of one year  in the case of the defi nitive measure. Argentina 
considered that these measures violated the provisions of the GATT 1994 and the Agreement on 
Safeguards, nullifying and impairing benefits accrui ng to Argentina.  Argentina believed that these 
two measures, imposed with no evidence of the circ umstances that would justify them, infringed – in 
being applied to imports of milk products from Argentina and no other country – a fundamental 
principle of the legal system governing internati onal trade: most-favoured-nation treatment.  There 
were also clear irregularities in the investigation pr ocedure, which, in Argentina's view, would make 
the investigation carried out by the Chilean authority, along with the measures subsequently imposed, 
inconsistent with various  provisions of the Agreement on Safegua rds and the GATT 1994.  In order to 
avoid a dispute, Argentina had requested two c onsultations with Chile under the DSU provisions.  
Unfortunately, a mutually satisfactory settlement of  the matter had not been reached.  Therefore, 
Argentina now requested the establishment of a pa nel as it was  its right to do so.  Argentina 
emphasized that, during the consultations, it had made enormous efforts and had provided ample 
evidence of its good faith and willingness to r each a satisfactory settlement, formulating two 
questionnaires in order to ascertain the technical r easons why the safeguards had been imposed.  On 
both occasions, the Chilean authorities had merely refe rred to the need to protect the sector producing 
the raw material for the goods at issue, imports of which were declining because the price paid by 
processing plants was constantly being reduced.  Given that it had proved impossible to reach an 
agreement, and for all the reasons explained above , Argentina requested the establishment of a panel 
with standard terms of reference. 
64. The representative of Chile  said that his country regretted Argentina's decision to request the 
establishment of a panel regarding the provisional and definitive safeguard measures on certain milk 
products, a decision taken despite the explanations and legal basis, which had been submitted during 
the consultations.  Without prejudice to the foregoi ng, Chile was particularly concerned over the 
manner in which Argentina had acted, and objected to the request, inter alia , for several reasons: 
Argentina used a single request  for the establishment of a panel to cover two requests for 
consultations regarding different measures.  Chile wa s not aware of any legal precedents or basis that 
would justify Chile's approach.  If accepted, that a pproach would have negative systemic implications 
for the procedural rights enshrined in the DSU, and in particular, though not exclusively, in Article 6.2 of the DSU.  Chile noted that Argentin a had made many mistakes since its first request for 
consultations regarding the provisi onal measure.  Among other things, it had not clearly indicated the 
measure being challenged, and had c ited the wrong substantive rules.  Some of those errors had been 
the subject of corrigenda including the one circulated  recently, more than two months after the request 
for consultations had been made.  Chile had never made an issue of those deficiencies mainly because 
they had came as part of a negotiation process designe d precisely to clarify aspects of the measures 
being challenged, as well as their legal basis. 
65. Chile was not accustomed to use procedural loopholes to delay the progress of proceedings, 
but believed that to attempt to consolidate two re quests for consultations regarding different measures WT/DSB/M/228 
Page 14  
 
  into a single request for the establishment of a pa nel could seriously jeopardize Chile's procedural 
rights. Argentina seemed to be keen to correct its p ast mistakes, but in so doing, it was raising doubts 
about what it was challenging.  In its request for the establishment of a panel, it referred to "measures" 
in the plural, without making clear whether the reference was to the provisional or the definitive 
measure;  it included legal provisions that were not  amongst those cited during the consultations;  and 
it relied on legal rules that were not applicable to  both measures, such as Article 7.1 of the Agreement 
on Safeguards, which could not be applied to provisional measures.  It was Chile's understanding that 
in the light of the procedural confusion that c ould result from Argentina's single panel request, the 
Secretariat had suggested that Argentina discuss this  matter with Chile.  Yet it was Chile that had put 
forward a practical solution to avoid confusion.  Chile had proposed to Argentina to withdraw its 
panel request and to submit two separate panel requ ests covering each of the different measures, as it 
had been done with Argentina's requests for consulta tions.  Chile would have no objection to the first 
request or to a single panel examining the complaints raised in both requests, in line with the spirit of 
Article 9 of the DSU.  In that way, such a pa nel could focus on the substance rather than on 
procedural issues.  Regrettably, Argentina had not  accepted that proposal.  In addition, Argentina's 
request had inherent flaws that further warranted its  dismissal.  For example, it identified as a measure 
at issue the minutes of a meeting of Chile's Commi ssion on Distortions that had not been the subject 
of either of the two consultations and could not, therefore, become part of the panel's terms of 
reference.  At the present meeting, his delegation had not addressed the substance of Argentina's claim 
because it believed that before doing so one must cl early establish what Argentina was alleging to and 
on what legal basis.  If Argentina insisted on th e establishment of a panel, Chile would defend its 
measures. 
66. The representative of Argentina
 said that, in accordance with the DSU provisions, Chile had 
the right at this stage to oppose Argentina's requ est for the establishment of a panel.  Chile had 
referred to substantive and procedural aspects.  With  regard to the substance, Argentina did not wish 
to make any comments because it did not believe that  it was relevant to enter into any discussion at 
this stage.  However, with regard to the procedur al issues referred to by Chile, his delegation wished 
to point out that nothing in practice or under the DSU provisions prevented a Member from making a request in an unified way as Argentina had done in th is case.  Argentina did not violate the rules, but 
simply had tried to follow a practical approach.  Argentina believed that bringing together both 
matters was relevant since the provisional and defi nitive measures had been imposed as a result of a 
single investigating procedure by the Chilean authorit y.  Thus, Argentina's panel request was perfectly 
in line with Article 6.2 of the DSU. 
67. The representative of the United States
 said that with respect to the statements made by the 
parties to the dispute, the United States wished to  make a comment on one issue.  The United States 
saw nothing in the DSU that prevented a Member fr om requesting that the DSB establish a panel to 
examine a matter involving measures that had, in fact, been consulted on. 
68. The DSB took note  of the statements and agreed  to revert to this matter. 
6. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/343) 
69. The Chairman  drew attention to document WT/DSB /W/343, 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 th e DSU.  Unless there was any obj ection, he wished to propose that 
the DSB approve the names contained in document WT/DSB/W/343. 
70. The DSB so agreed .  WT/DSB/M/228 
 Page 15 
 
 
  71. The Chairman  said that it was his intention to make a statement at the next regular DSB 
meeting regarding the need to update the indica tive list of governmental and non-governmental 
panelists.  This was, of course, in accordance wi th the proposals for the administration of the 
indicative list of panelists approved by the DSB on 31 May 1995 and contained in an Annex to 
document WT/DSB/33.  He said that an item concerni ng this matter would be placed on the agenda of 
the next regular DSB meeting to be held in April. 
72. The DSB took note  of the statement.  
 
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