RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/217 
12 September 2006 
 (06-4329) 
Dispute Settlement Body 
19 July 2006  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 19 July 2006  
 
Chairman:  Mr.  Muhamad Noor Yacob (Malaysia) 
 
  
Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................6  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United 
States......................................................................................................................... ..................6  
(d) European Communities – Customs classifi cation of frozen boneless chicken cuts:  
Status report by the Eu ropean Communities...............................................................................7  
2. Implementation by the European Co mmunities of the recommendations and 
rulings of the DSB in relation to "European Communities – Regime for the Importation, Sale and Distribution of Bananas" and related subsequent WTO 
proceedings .................................................................................................................... ............8
 
(a) Statements by Honduras, Ni caragua and Panama.......................................................................8  
3. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ............................................9  
(a) Statements by Canada, the Eur opean Communiti es and Japan...................................................9  
4. United States – Anti-Dumping Act of 1916:  Implementation of the 
recommendations adopted by the DSB .................................................................................12  
(a) Statement by Japan ............................................................................................................. ......12  
5. United States – Anti-dumping measure on shrimp from Ecuador.....................................15  
(a) Request for the establishment of a panel by Ecuador ...............................................................15  
6. United States – Measures affecting the cross-border supply of gambling and 
betting services ............................................................................................................... .........16  
(a) Recourse to Article 21.5 of the DSU by Antigua and Barbuda:  Request for the 
establishment of  a panel....................................................................................................... .....16  WT/DSB/M/217 
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  7.
 Proposed nomination for the indicative list of governmental and 
non-governmental panelists ...................................................................................................17  
  
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.44) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.44) 
 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.19) 
 (d) European Communities – Cust oms classification of frozen boneless chicken cuts:  Status 
report by the European Communities (WT/DS269/15/Add.1 – WT/DS286/17/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.44) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.44, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning 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 6 July 2006, in accordance with Artic le 21.6 of the DSU.  As noted in the report, 
several legislative proposals relating to S ection 211 that would implement the DSB's 
recommendations and rulings in this dispute had been  introduced in the current US Congress, both in 
the US Senate and the US House of Representatives.   The US administration was working with the 
US Congress to implement the DSB's recommendations and rulings. 
4. The representative of the European Communities  said that the persistent ignorance by the 
United States of the DSB's ruling and recomme ndations in respect of Section 211 seriously 
undermined the authority of the TRIPS Agreement a nd the credibility of the US commitment towards 
WTO obligations and the US duty to promptly comply with the DSB's rulings and recommendations.  
The United States should also consider the "collatera l damage" that this attitude caused.  The TRIPS 
Agreement was a keystone in achieving effective and non-discriminatory protection of intellectual 
property rights worldwide.  By ignoring it persiste ntly in several disputes, the United States played 
against that objective and thus comp romised the interests of its industry  at large to preserve legislation 
that benefited the limited interests of very few comp anies.  The eventual repeal of the grandfathering 
provision in the FSC dispute showed that the US  Congress was perfectly able to work promptly 
towards compliance when it so wish ed.  This could be repeated in  the present dispute as several 
repealing bills were pending in the US Congress and w ould, by their adoption, bring a satisfactory end 
to the dispute.  The EC also called on the US administration to exercise its discretion and grant the specific licence that would allow the renewal of the current registration of the Havana Club mark, which was due to expire at the end of the month.  Such renewal would not give away or grant rights.   WT/DSB/M/217 
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  It would not decide as to who was the rightful owner of the mark in the United States.  It would only 
preserve the status quo and it would thus allow the on-going proceeding before US courts to come to 
their term as well as the US court decide who was the legitimate owner of that mark.  Granting the 
renewal would illustrate to perfection the US attachme nt to the principle that ownership of intellectual 
property rights should be decided in courts on the basis of the law.  On the contrary, refusing the 
renewal of the registration,  and thus the very possi bility to defend potential rights to the mark, would 
not only aggravate this particular dispute, but w ould also generally undermine the efforts to promote 
rules-based protection of intellectual property right s.  There was no more convincing argument than 
living up to the standards that one wanted to promote. 
5. The representative of Cuba  said that it had been four and a half years since the adoption by 
the DSB of the rulings and recommendations in the dispute: "United States – Section 211 Omnibus 
Appropriation Act of 1998", but the United States had yet to comply with them.  That made this 
dispute to be one of the oldest unresolved dis putes on the DSB's agenda.  Fives times during that 
period, the United States had been granted genero us deadlines to implement the recommendations.  
The last of these deadlines had expired on 30 June 2 005.  At that point, the EC and the United States 
had reached an understanding whereby the EC had undertaken not to request "at this stage" 
authorization to suspend concessions vis-à-vis  the United States until the EC "at some future date 
decided to request DSB authorization to suspe nd concessions ...".  This understanding, which was 
vague and imprecise, had not imposed any deadline  for compliance by the United States with its 
obligations. 
6. In spite of all the time that had passed, the onl y difference in the status reports submitted by 
the United States month after month was their date of circulation:  the reports did not offer the 
slightest indication that the US Government was making any effort to implement the DSB's decisions and hence that it would comply with its obligati ons as a WTO Member.  Faced with a report like the 
one presented at the present meeting, a repetition of  what the United States had been submitting for 
years, one should perhaps ask whether these reports had met the requirements of Article 21.6 of the 
DSU.  What the United States had been doing for more  than four years was to make a mockery of the 
DSB, postponing implementation of its decisions inde finitely with false promises that it was working 
with the US Congress to amend its legislation.  In fact, the US Government and its allies in Congress 
had merely been manoeuvring to prevent considerat ion of bills aimed at remedying this breach of 
international law, bills that could not even be discussed in the US Congress.  There was an 
explanation for this excessive delay in complying w ith the WTO rules:  the delay was an attempt to 
prevent the renewal of the renowned rum label, Hava na Club, which had been legally registered by a 
Cuban company with the US Patent and Trademark O ffice, in order to enable its powerful competitor 
Bacardi, with its well-known links to the Miami-base d anti-Cuban organization, to control the brand. 
7. He noted that on 27 July 2006, the deadline for the legitimate owner to renew this trademark 
would expire.  At that point, the joint Cuban-Fren ch company that currently  marketed Havana Club 
rum throughout the world would be arbitrarily deprived , for political reasons, of its legitimate rights in 
the territory of the United States, and as a result, it would not be able to sell the product in that 
country.  But the loss would be even greater to the WTO since its prestige and credibility in the 
international community would be undermined and it would lose the confidence of its Members by 
failing to provide any guarantee that the DSB's ruli ngs and recommendations w ould be implemented.  
This would bring to light, once again, the flaws of a system based on rules that were far from fair and 
equitable because they favoured the most powerful Me mbers that could afford the luxury of violating 
them without any fear that their rights could be nullif ied or impaired.  And it was not as if this was the 
only dispute where recommendations had yet to be im plemented by the United States.  The conduct of 
the United States had shown a consistent pattern of disregard for multilateral agreements and the 
WTO, which could have serious systemic implicat ions.  Such a persistent conduct set a dangerous 
precedent that might have implications for other Me mbers in the future, in particular less developed 
countries.  The conduct of the United States in this and other disputes cast doubt on the DSU and WT/DSB/M/217 
Page 4  
 
  eroded the very foundations underlying not only  the TRIPS Agreement, but all of the WTO 
Agreements, namely, the principles of national tr eatment and most-favoured-nation treatment.  Cuba 
wondered whether any credibility could be associated  with a multilateral trading system based on 
rules and on allegedly equal obligations for all partic ipants when one of its major players maintained 
an attitude of persistent and open defiance.  Cuba reiterated its app eal to Members to take rapid and 
effective steps to secure observance of the letter of the WTO Agreements and compliance with the 
WTO decisions by demanding that the United States comply immediately, unconditionally, and without further delay with all of the DSB's ruli ngs and recommendations, a nd in particular those 
pertaining to this dispute, by repealing S ection 211, which was unjust and discriminatory. 
8. The representative of Brazil
 said that, in view of the systemic relevance of the matter, his 
country wished to reiterate its concerns about the continuation of the non-compliance situation in this 
dispute.  The Panel and the Appella te Body Reports pertaining to this  dispute had been adopted by the 
DSB in January 2002, more than four and a half  years ago.  However, no implementing action had 
been taken by the United States thus far.  Based on the status report provided by the United States, it 
appeared to be no tangible sign that the matter would be resolved soon.  This situation could not be 
reconciled with the principle of prompt implemen tation of the DSB's rulings and recommendations, a 
cornerstone of the multilateral trading system.  It also impaired the credibility of the dispute settlement mechanism as an effec tive means to solve trade proble ms, irrespective of the parties 
involved.  The present non-compliance situation was al so incongruent with the positions advocated by 
the United States in the area of intellectual property ri ghts.  The impact of such a lack of actions on 
the legitimacy to promote the protection and enfor cement of the intellectual property rights were not 
negligible.  In light of these considerations, Br azil urged the United States to take the necessary and 
urgent steps to implement the releva nt DSB's rulings and recommendations. 
9. The representative of the Bolivarian Republic of Venezuela
 said that her country thanked the 
United States for its report of 19 July on the implementation of the DSB's recommendations and 
rulings in the case:  "United States – Section 211 Om nibus Appropriations Act of 1998".  Her country 
wished to be fully associated with the statement made by Cuba on this  matter.  It considered that the 
indefinite postponement of compliance with the recommendations and rulings merely supported the 
application of Section 211, a piece of legislation which the Appellate Body had considered to be 
inconsistent with WTO rules.  Her country was co ncerned about the systemic implications of this 
issue:  the status report submitted by the US dele gation – and this was unprecedented in this case – 
offered no certainty as to the adoption of the DSB' s recommendations and rulings in the near future, 
and moreover, there was a lack of transparency.  The need to respect the DSB principles was of 
concern and interest to all WTO Members, and the principle of prompt compliance with the DSB's rulings and recommendations was the cornerstone of the dispute settlement mechanism.  Her country 
urged the United States to make every possible effo rt to implement, immediately and without delay, 
the DSB's rulings and recommendations by repealing Section 211. 
10. The representative of Argentina
 said that his country wished to  reiterate its systemic concern 
about the delays in the implementation of the DS B's recommendations and rulings more than four 
years ago.  Prompt compliance with the DSB's ruli ngs and recommendations was a key element of the 
WTO dispute settlement system.  Protracted delays, and above all the lack of progress in implementation had a negative impact not only on the efficiency, but also on the credibility of the system.  This could only harm WTO Members, and in particular developing countries, for whom the 
dispute settlement system represented an instrument of  particular importance.  Argentina, therefore, 
urged the United States to redouble its efforts to co mply with the DSB's recommendations and rulings 
in this dispute. 
11. The representative of China
 said that his country first wished to thank the United States for its 
status report  and the statement made at the present m eeting.  Due to systemic interests, China wished 
to express its continued concern regarding this dis pute.  More than four years had passed since the  WT/DSB/M/217 
 Page 5 
 
 
  adoption by the DSB of both the Panel and the Appella te Body Reports pertaining to this dispute.  
However, it was very regrettable that there was no indication when the matter  would be resolved to 
the satisfaction of the parties and other Members.  Such delays caused systemic concerns about the 
efficacy of the dispute settlement system.  China be lieved that prompt and full implementation of the 
DSB's rulings and recommendations was one of the major cornerstones of the WTO dispute 
settlement.  China also believed that prompt im plementation in this dispute would not only be 
beneficial to other Members, but also to the United States, who was the advocate of intellectual property rights at all forums.  Once again, China ur ged the United States to implement the decision of 
the DSB in this dispute as soon as possible. 
12. The representative of Bolivia
 said that after having heard the status report by the United 
States and noting the lack of progress in the implementation of the relevant DSB's recommendations, 
Bolivia could only reiterate its regret already expr essed at the 19 June DSB meeting about the failure 
to comply with the rulings of a WTO judicial body, which was intended to provide Members with 
certainty.  Various social actors currently monito red, among other things, how disputes were being 
settled in the WTO, and whether the multilateral judicial system had been functioning properly. 
Therefore, repeated postponements of implementati on of the DSB's ruling for more than four years 
was unjustifiable and undermined the credibility and stab ility of the system.  It was clear that this non-
compliance was detrimental not only to the DSB, bu t that it also had an impact on the intellectual 
property rights, which had been agreed by all Members under the TRIPS Agreement.  Once again, 
Bolivia wished to join the other Members that had supported Cuba's call on  the United States to 
implement the DSB's ruling in this dispute. 
13. The representative of Uruguay  said that her country recognized the legitimate right of the 
parties to the dispute to seek a mutually acceptabl e solution that was consistent with the covered 
agreements.  Nevertheless, Uruguay shared the syst emic concerns expressed by previous speakers in 
relation to the importance of ensuring that Members complied promptly with the DSB's 
recommendations.  This was an essential factor in ensuring the smooth operation and credibility of the 
dispute settlement system as well as the legal certa inty and the effective balance of rights and 
obligations provided under the multilateral trading syst em.  Members must, therefore, do their utmost 
to comply promptly with the DSB's recommendations. 
14. The representative of India  said that his country continue d to have concerns that due 
consideration principle of prompt compliance w ith the DSB's rulings and recommendations, which 
was essential to effective resolution of  disputes to the benefit of all Members, appeared missing in this 
dispute.  Although a solution mutually acceptable to the parties was preferred, it was important that 
parties kept the DSB informed of progress towards su ch a resolution.  This was not apparent from the 
statements made by the parties, even four year s after the adoption of the DSB's recommendations and 
rulings, thus ignoring the systemic concerns in genera l.  India urged the parties to this dispute to be 
more responsive to these systemic concerns and to sh ed some light on the way they intended to fulfil 
the objective of prompt settlement and the actions th ey proposed to take to achieve that objective. 
15. The representative of the United States  said that with respect to Members' comments 
suggesting that the United States should grant a license to renew the "Havana Club" trademark 
registration, none of the DSB's recommendations and ru lings in this proceeding related to the renewal 
of specific trademark applications, so this was not an issue related to the implementation of the DSB's 
recommendations and rulings.  That said, the United States had taken note of the statements of those 
Members who had addressed this point, and wished  to point out that the request for a license 
authorizing payment of the renewal fee for the trad emark registration was pendi ng before the relevant 
agencies of the US government, which would make a d ecision in due course.  On a different point, the 
United States regretted that the EC and other Memb ers had, once again, reverted to suggesting that 
US actions in this dispute had somehow undermined  the authority of the TRIPS Agreement.  The 
United States failed to understand how its commitm ent to implement the DSB's recommendations and WT/DSB/M/217 
Page 6  
 
  rulings in this dispute and its efforts to comp ly could undermine the "authority" of the TRIPS 
Agreement.  To the contrary, th ese affirmed Members' commitments to the TRIPS Agreement.  The 
United States appreciated that the EC and othe r Members who had spoken at the present meeting 
joined the United States in calling for effective pr otection of intellectual property rights worldwide. 
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.44) 
17. The Chairman  drew attention to document WT/DS184/ 15/Add.44, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning 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 6 July 2006, in accordance with Article 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 
continued to support legislative amendments that  would implement the DSB's recommendations and 
rulings with respect to the US anti-dumping duty statute, and was working with the US Congress to pass such amendments. 
19. The representative of Japan
 said that his country noted the statement made by the 
United States along with its latest status report.  Japan appreciated that the US administration would 
continue to work with the US Congress to enact le gislation H.R. 2473.  However, Japan regretted that 
it had not seen any progress for a long time.  A full and prompt implementation of the DSB's recommendations and rulings was a principal elemen t for ensuring the credibility of the WTO dispute 
settlement system.  Japan would like to renew its strong hope that the United States would make further efforts to implement the DSB's recommenda tions and rulings 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. 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.19) 
21. The Chairman  drew attention to document WT/DS160/ 24/Add.19, 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 6 July 2006, in accordance with Article  21.6 of the DSU.  As noted in the report, the 
US administration was working closely with the US Congress, and conferring with the EC, to reach a mutually satisfactory resolution of this matter. 
23. The representative of the European Communities
 said that, like at the previous DSB meeting, 
the EC regretted the lack of progress in solving this  long-standing dispute.  The Panel Report in this 
dispute had been adopted in July 2000 and the reasonable period of time for implementation had 
expired in July 2001.  Therefore, for five years now the United States had failed to take any tangible 
steps to amend a piece of legislation that violated intellectual property rights and hurt the interests of 
music creators.  Furthermore, the United States ha d provided no specific information to the DSB on  WT/DSB/M/217 
 Page 7 
 
 
  its intentions regarding implementation.  The EC  believed that this matter should be of serious 
concern to the entire Membership.  The EC urge d, once again, the United States to provide 
information on the specific steps that it had taken or intended to take to solve this dispute.  This 
situation of non-compliance had already lasted for t oo long.  Finally, the EC wished to recall that it 
had reserved its right to reactivate, at any point in time, the arbitration proceedings on retaliation. 
24. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Customs classificati on of frozen boneless chicken cuts:  Status 
report by the European Communities (WT/DS269/15/Add.1 – WT/DS286/17/Add.1) 
25. The Chairman  drew attention to document WT/DS 269/15/Add.1 – WT/DS286/17/Add.1, 
which contained the status report by the Europ ean Communities on progress in the implementation of 
the DSB's recommendations in the case concerning the EC's  customs classification of frozen boneless 
chicken cuts. 
26. The representative of the European Communities  said that, in conformity with its 
commitments expressed in the first status report submitted before the DSB at its meeting on 
19 June 2006, the EC had submitte d its second status report immediately following compliance.  The 
EC was pleased to report that Commission Regul ation (EC) No 949/2006 of 27 June 2006 "amending 
Annex I to Council Regulation (EEC) No 2658/87 on th e Tariff and Statistical Nomenclature and on 
the Common Customs Tariff" had been adopted and ha d entered into force on  27 June 2006.  The EC 
had thus fully implemented the relevant DSB's rulings and recommendations in this case.  
Furthermore, and in the spirit of its commitment to  the WTO, and despite the enormous procedural 
difficulties encountered, the EC had undertaken extra efforts to implement the relevant DSB's rulings 
and recommendations within the reasonable period of time, which had been fixed by the arbitrator.  
This proved not only the EC's commitment to full implementation, but also the fact that certain 
concerns expressed by the complainants at the DSB meeting on 19 June had not been founded.  The 
EC remained ready and willing to respond to any questions regarding the implementing regulation 
bilaterally. 
27. The representative of Brazil  said that his country wished to thank the EC for its status report 
and for its statement regarding the adoption of  Commission Regulation 949/2006 of 27 June 2006 as 
an action towards the implementation of the DSB's rulings and recommendations.  Considering that Commission Regulation 949/2006 had been adopted on the very last day of the reasonable period of 
time, on 27 June 2006, and had b een published a day later, Brazil was still assessing the scope and 
effects of that provision and whether its appli cation was in full conformity with the DSB's 
recommendations.  Brazil would point out, preliminarily , that, while the findings of the Panel and the 
Appellate Body comprised all products contained in heading 0210 of the EC Schedule, Commission 
Regulation 949/2006 had apparently provided classi fication guidelines exclusively in relation to 
chicken cuts (0210 99).  Thus, the EC seemed to ha ve adopted the most restrictive interpretation of 
the DSB's recommendations.  Brazil was following closely the EC's implementation actions and 
expected that the EC would fully comply with its  obligations under the WTO Agreements.  However, 
Brazil was not in a position to agree, at the present meeting, with the EC's statement that it had fully 
complied with the DSB's recommendations. 
28. The representative of Thailand
 said that his country noted and thanked the EC for the status 
report.  Because Thailand was still considering the level of compliance of the measures that the EC 
had taken to implement the DSB's rulings and re commendations in this dispute, and because it 
continued to consider all options in this regard, on 14 July 2006 Th ailand had concluded with the EC 
an agreement to preserve its procedural rights.  Thailand appreciated the cooperation of the EC in WT/DSB/M/217 
Page 8  
 
  concluding that agreement, which in the spirit of  transparency had been notified to the WTO.  
Thailand expected it to be circulated shortly to all Members. 
29. The DSB took note
 of the statements. 
2. Implementation by the European Communiti es of the recommendations and rulings of 
the DSB in relation to "European Communiti es – Regime for the Importation, Sale and 
Distribution of Bananas"1 and related subsequent WTO proceedings 
(a) Statements by Honduras, Nicaragua and Panama 
30. The Chairman  said that this item was on the agenda of the present meeting at the request of 
Honduras, Nicaragua and Panama and invited the re presentatives of the respective countries to speak. 
31. The representative of Honduras  said that his delegation wished to make a brief statement at 
the present meeting.  He then referred to previous statements made by Honduras, which noted that this 
issue fell within the purview of the DSB and had explained why it was appropriate that it should be 
included on the agenda of the DSB meeting.  The EC continued to state before the DSB that its tariff, 
which had more than doubled, a nd ACP profits, which had increased enormously, must be "put to the 
test of the market" and reserved for "monitoring" disc ussions.  For the record, he noted that the "test 
of the market" had merely confirmed Honduras' worst fears.  Since January, Latin American 
traditional suppliers had already collectively lost so me of their market shares in comparison to the 
same period of the previous year, while ACP suppliers  had made virtually equivalent gains in market 
shares.  These MFN losses and the corresponding ACP gains were expected over time to become 
substantially more pronounced if the 176 €/mt rate  was maintained, if the new African plantations 
continued to generate increased exports, and if ACP preferences increased.  No traditional MFN 
supplier could expect to be spared.  This was not "t rade neutrality", it was discrimination that violated 
the rulings and recommendations pertaining to the Ba nanas III case.  Nor was there any comfort to be 
derived from the "monitoring" discussions.  Accordi ng to all reports, the EC's monitoring proposal 
would institutionalize the autonomous tariff of 176 €/mt, for a number of years it would offer no 
prospect for improvement in access, and over time it would enable the ACP to improve its profits.  
Honduras considered this to be more of a call for cap itulation than an attempt to provide a remedy.  If 
the EC could not offer a remedy that was mutually satisfactory to all interested suppliers, including 
Honduras, additional steps would be needed. 
32. The representative of Nicaragua  said that as Honduras had alread y made quite clear, the EC's 
contention that the new tariff was set at the right le vel was not confirmed by the EC market.  Not only 
were traditional MFN suppliers losing their market position to ACP suppliers, but prices in the EC-25 
had totally collapsed.  The press was reporting that f. o.t. prices in Europe for Latin American bananas 
now barely covered the cost of the US$4.10/box tari ff, plus freight.  The price collapse in the EC-25 
had caused an equivalent price collapse in all secondary  markets.  This situation was being referred to 
by some as the "Banana Apocalypse".  The EC's respon se to this market crisis was to ask Nicaragua to 
simply disregard it.  The EC had proposed that the following be accepted:  (i) a bound tariff that 
would be set at a rate higher  than the current autonomous rate;  (ii) an autonomous rate of €176/mt 
that would not be lowered for several years;  and (iii) considerable advantages for ACP countries that, 
in less than a year and five months, would be further increased.  Nicaragua, like other Members, did not consider this to be an appropriate framework  for settling the dispute.  Countries like Nicaragua 
had no future under such an arrangement.  His country  must, therefore, continue its discussions with 
interested parties on the next steps to be taken. 
                                                     
 
1 WT/DS27.  WT/DSB/M/217 
 Page 9 
 
 
  33. The representative of Panama  said that, like Honduras, Panama did not agree with the 
persistent attempts by the EC to characterize its ba nana import regime as "trade neutral".  More than 
doubling of the MFN tariff and the margin of pr eference could not under any circumstances be 
described as "trade neutral".  That had been confirme d by this year's up to date statistics.  Bearing in 
mind that the EC's regime had changed significantly at the beginning of the year, a market share 
analysis was extremely revealing.  A comparison of  shares in the EC market with those of 2005 
revealed that six of the eight traditional Latin America suppliers had lost ground.  The other two 
suppliers had declared gains of less than 1 per cent which, in one of the two cases, could be entirely 
attributed to low production in 2005.  On the other hand, African ACP suppliers were declaring discernable increases in market shares.  The only ex ception involved a supplier that was recovering 
from damage caused by storms, but had already not ified its intention of doubling its production over 
the next five years.  With the increases in African  production that had been extensively reported in the 
press, there was all the more reason to believe that the ACP gains, which were already obvious in the 
EC market, were set to multiply over time.  Con sequently, in Panama's view, allowing the current 
arrangements to continue over the next few years,  far from providing a remedy, would simply add to 
the injury.  Like Honduras, Panama was seeking a comprehensive and mutually satisfactory solution 
for all interested suppliers, and if  it was unable to achieve that solu tion, Panama would have to take 
the necessary measures. 
34. The representative of th e European Communities
 said that the EC had, once more, listened 
carefully to the statements made on this matter.  Th e EC wished to refer to its prior statements on its 
objection to categorisation of this matter as an "imp lementation issue" relevant to Article 21 of the 
DSU.  The EC remained open to addressing the concer ns of Latin American suppliers in relation to 
the new import regime in the appropriate fora.  The EC was well aware of the importance of the banana industry for Latin American countries (as well as the ACP countries) and had always taken 
these interests into consideration.  A solution w as currently being pursued under the good offices of 
Norway.  The EC was in regular contacts with the WTO Members involved to discuss this issue, 
including the rebinding of the MFN tariff.  Such discussions had most recently taken place in the 
context of the DDA negotiations.  The EC remain ed committed to mainta ining access to the EC 
market by all banana supplying countries.  He adde d that the work under the auspices of the Minister 
of Norway demonstrated everything else but a "Banana Apocalypse", to which Nicaragua had referred.  The figures seemed to demonstrate that MFN importers all togeth er had not fared badly 
under the new system. 
35. The representative of the United States
 said that his country was disappointed that the EC had 
still not resolved this issue, despite the important  and pressing concerns that Members had voiced at 
the past six DSB meetings.  The United States was co ntinuing its informal discussions with interested 
Members in this regard.  The United States believe d that it was imperative that the EC work with 
interested Members to resolve th is dispute as quickly as possible. 
36. The DSB took note  of the statements.   
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 
37. 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. 
38. The representative of Canada  said that his country had repeatedly expressed its appreciation 
with the steps the United States had taken towards implementing the DSB's rulings and 
recommendations in this dispute.  However, the United States had prospectively repealed the Byrd WT/DSB/M/217 
Page 10  
 
  Amendment.  As Canada understood the operation of the repealing legislation, anti-dumping and 
countervailing duties collected after 30 Septembe r 2007 would be deposited in the US Treasury, 
rather than being disbursed to US producers.  Of  particular concern with this method of repeal, 
however, was that anti-dumping and countervailing duti es collected before that date would continue 
to be disbursed to US producers for many years after 1 October 2007.  In fact, on 1 June 2006 
US Customs had published a notice of its inte nt to continue disbursing anti-dumping and 
countervailing duties under the Byrd Amendment later in the course of the year.  It was in this context that Canada continued to be puzzled with the US cl aim – in its last status report from over five months 
ago – that it had "taken the actions necessary to implement the rulings and recommendations" in this 
dispute.  The US assertion that it had implemented the rulings and recommendations in this dispute 
would not be accurate until disbursements under the Byrd Amendment had ceased completely.  This 
so-called approach to compliance – this method of prospective "repeal" of a measure found to be in 
violation of the WTO Agreement – raised importa nt commercial and systemic concerns.  Canada 
called on the United States to resume the submission of status reports and to immediately repeal the 
Byrd Amendment. 
39. The representative of th e European Communities
 said that, at the previous DSB meeting, the 
United States had reiterated its position that it had taken all actions necessary to implement the DSB's 
recommendations and rulings in this  dispute.  He recalled that the CDSOA had been found in breach 
of WTO rules for transferring anti-dumping and counte rvailing duties to the US industry.  As long as 
those transfers continued, there would be no full im plementation.  By denying its obligation to take 
further actions, the United States had actually granted itself the right to comply with the DSB's ruling 
at some undetermined date in the future regardless  of Members' duty to comply promptly with the 
DSB's rulings.  The US Congressional Budget Office had foreseen that the repeal of the Byrd Amendment would not produce any effects before fiscal  year 2010 starting on 1 October 2009.  And, 
currently, the United States was taking the preparat ory steps to make a sixth distribution under the 
CDSOA.  As the EC had mentioned at the previous DSB meeting, this distribution to start on 
1 October would most likely be more significant than  in the previous year and would cause further 
nullification and impairment to the whole WTO member ship.  This was, in addition, not an isolated 
case.  The FSC dispute or the 1916 Anti-Dumping Ac t dispute to which the DSB would revert under 
the next agenda item were other examples where th e United States had equa lly extended unilaterally 
and considerably the implementation period by way of transition or grandfathering provisions.  The 
FSC dispute, where the US Congress had finally pu t an end to WTO-illegal grandfathering clauses 
periods, showed that the United States could revisi t the delayed termination of the Byrd Amendment, 
if the political will was there.  A very recent Court decision offered the perfect opportunity to 
complete the implementation process and finally st op the transfer of anti-dumping and countervailing 
duties without further delay.  On 13 July 2006, the US Court of International Trade had indeed found 
that the CDSOA was violating the US Constitution.  Finally, the EC renewed its call on the United 
States to abide by its clear obligation under Article  21.6 of the DSU and to submit status reports on 
implementation in this dispute. 
40. The representative of Japan
 said that his country had to reiterate its disappointment that the 
United States had not, once again, submitted a status re port in July in spite of the statements made at 
previous DSB meetings.  Although Japan welcomed the enactment of the Deficit Reduction Act of 
2005, the illegal distribution under the CDSOA woul d still continue under the transitional clause of 
the CDSOA.  The United States should provide the DSB with information on how actual 
disbursements would work and should take the n ecessary steps to implement the complete repeal of 
the CDSOA.  Japan urged the United States to co mply fully with the DSB's recommendations and 
rulings without further delay and to provide its stat us report.  Japan reserved all the rights under the 
DSU until full implementation was obtained by the United States. 
41. The representative of India  said that his country, once again, wished to thank Canada, the EC 
and Japan for raising this matter at the present meet ing.  India joined other Members who had spoken  WT/DSB/M/217 
 Page 11 
 
 
  previously in expressing its disappointment on the lack of any progress report by the United States 
even though it had not yet fully complied with its  obligations based on the DSB's recommendations 
and rulings in this dispute.  There was no respon se from the United States to the question put by India 
at the previous DSB meeting as to how continue d disbursements of duties collected on imports 
entering the United States squared up with its comp liance obligations.  Clearly, the United States 
needed to do more than reiterate a clearly inde fensible position on compliance.  Such a unilateral 
action undermined the WTO dispute settlement system.  India urged the United States again to inform 
the DSB of the steps it proposed to take to ensure fu ll compliance.  India also requested again that the 
United States resume submitting status reports in this dispute. 
42. The representative of Thailand  said that at the outset he wished to take the opportunity to 
thank Canada, the EC and Japan for bringing this  item before the DSB yet again. And yet again, 
Thailand wished to join previous  speakers in expressing disappointment that the United States still 
continued to illegally disburse funds  under the CDSOA, and that it still refused to submit a status 
report on its outstanding implementation in the case:   "US – Continued Dumping and Subsidy Offset 
Act of 2000".  Thailand, therefore, again, reaffi rmed its views expressed in DSB meetings since 
February 2006, and urged the United States to con tinue providing status reports until it brought its 
actions into full conformity with the DSB's rulings and recommendations in this dispute, and until this 
matter had been fully resolved. 
43. The representative of Brazil  said that his country wished to thank Canada, the EC and Japan 
for their effort to bring once again this matter to th e attention of the DSB.  He reiterated that Brazil 
did not take issue with the repeal of the Byrd Am endment as such.  This was a rather late, but still 
welcome action by the United States.  Brazil c ould not, however, accept the statement that this 
prospective repeal alone meant that the United St ates had fully complied with the DSB's rulings and 
recommendations in the present dispute.  Brazil a nd others had been urging the United States to 
present the rationale behind its statement that the issue had been resolved within the meaning of 
Article 21.6 of the DSU.  But no reply had been offered by the United States.  In particular, no 
explanation at all had been given about the fact that the repeal would allow illegal disbursements to 
continue until, at least, October 2007.  By persisten tly refusing to provide any explanation to sustain 
its allegation of compliance, the United States might  be understood to be confirming that its assertion 
had no legal basis.  Brazil invited the United States  to clarify the reasons why it believed that full 
implementation had been achieved in this case a nd how the next Byrd Amendment disbursements 
could constitute WTO-consistent actions in li ght of the relevant DSB's recommendations. 
44. The representative of the United States  said that, as the United States 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.  A nd, given that the Unite d States had taken all 
actions necessary to implement the recommendations and rulings in these disputes, the United States 
failed to see what purpose would be served by the su bmission of status reports repeating the progress 
the United States made in the implementation of  the DSB's recommendations and rulings.  In 
addition, as the United States had explained at the 17 May DSB meeting, the United States was 
surprised to hear Canada intervene under this item.  Next, with regard  to the EC's criticism concerning 
future actions that might be taken under the CDSOA,  the United States noted with interest the EC's 
statement made at the 19 June DSB meeting in conn ection with the Sugar dispute.  In claiming that it 
had already come into compliance, the EC had described that – on an annualized  basis – its revised 
measure would place it in a position to maintain its subsidized exports within its commitments only 
from the marketing year 2006/2007.  Nevertheless, th e EC had asserted it was already in compliance.  
The United States reiterated that it had taken a ll steps necessary to implement the recommendations 
and rulings in the CDSOA dispute.  Finally, with respect to one Member's comment about the FSC WT/DSB/M/217 
Page 12  
 
  dispute, the United States questioned the wisd om of re-opening congressional debate over the 
Continued Dumping and Subsidy Offset Act. 
45. The representative of Canada
 said that he wished to make a second intervention in the light of 
the comments just made by the United States.  He not ed that every violation of a WTO obligation had, 
at a minimum, two components.  One was the direct harm that that violation inflicted upon Members.  
The other one was a systemic concern that derived fro m that violation, and in particular where there 
were repeated findings against the Member and that  Member failed to bring itself into compliance. 
46. It was the case that a court in the United Stat es had found that the CDSOA ought not to have 
applied to Canada.  His authorities were still trying  to determine the implications of that court 
decision.  It was the case also that the Court of  International Trade had found that the CDSOA was 
unconstitutional because, under the CDSOA, paymen t of a subsidy was conditioned on the expression 
of a public policy position, which was contrary to the First Amendment of the United States 
Constitution.  These were important facts inside th e United States.  At the same time, there were 
systemic concerns within the WTO regardless of  any specific impact on Canada by these court 
decisions.  There were specific concerns that Cana da had about the method of implementation by the 
United States, and that was the point that his delega tion had been trying to make in its statements.  
First, that prospective repeal did not amount to repeal and, therefore, the United States continued to have an obligation to provide status reports.  Sec ond, for that reason the United States could not claim 
to be in compliance, and therefore to claim that it continued to be in compliance created systemic 
concerns in respect of every other dispute.  Th at was why his delegation was making statements on 
this subject. 
47. The representative of the European Communities
 said that he wished to make a comment 
concerning a reference made by the United States in relation to the Sugar dispute.  He thought that it 
was one thing to average out over one year where the end of the reasonable period was in the middle 
of that year, but that it was another thing to do this over a long period of time. 
48. The DSB took note  of the statements. 
4. United States – Anti-Dumping Act of 1916:  Implementation of the recommendations 
adopted by the DSB 
(a) Statement by Japan 
49. The Chairman  said that this item was on the agenda of the present meeting at the request of 
Japan, and invited the represen tative of Japan to speak. 
50. The representative of Japan  said that his country had placed this item on the agenda of the 
present meeting, because it had considered it appropria te to draw the DSB's attention to a disturbing 
development relating to this dispute.  A series of events witnessed recently illustrated how the 
United States had failed to fully comply with the DSB's recommendations and rulings, despite the 
contrary contention it had made years ago.  He th en briefly recalled the history of the case.  In 
September 2000, the DSB had adopted the Reports of the Panel and the Appellate Body that had 
found that the 1916 Anti-Dumping Act was inconsistent  with the WTO Agreements.  Specifically, the 
DSB had ruled that "by providing for the imposition of  fines or imprisonment or for the recovery of 
treble damages", the 1916 Anti-Dumping Act constituted impermissible responses to dumping and subsidy under the WTO Agreement.
2  The United States had been granted a reasonable period of time 
to comply with the DSB's recommendations and ru lings, that had been determined to expire in 
                                                      
2 Appellate Body Report:  "United States – Anti-Dumping Act of 1916", WT/DS136/AB/R, 
WT/DS162/AB/R, adopted on 26 September  2000, paras. 137-138.  WT/DSB/M/217 
 Page 13 
 
 
  July 2001.  Upon request by the United States, th at period had been extended until December 2001.  
The United States had failed to act within that exte nded period and thereafter.  In the meantime, a 
lawsuit had been filed against a Japanese co mpany under the 1916 Anti-Dumping Act.  In 
December 2003 and June 2004, the Federal District C ourt in the State of Iowa had rendered judgment 
of more than US$31.6 million for treble damage plus more than US$4.1 million for attorney's fees and 
costs against the Japanese company.  The Japanese company had appealed. 
51. In December 2004, three years after the expi ry of the reasonable period of time, the US 
Congress had finally repealed the 1916 Anti-Dumping Act.  At the DSB meetings held on 24 November and, again, on 17 December of 2004
3, the United States had declared that, with this 
repeal, it had implemented the DSB's recommendations and rulings in this dispute.  However, as 
Japan had explained in the same meetings, the rep eal was prospective only and thus had no effect on 
the pending cases.  Japan had further responded to the US claim, by expressing its serious concern with the pending cases under the Act that threatened to inflict damage to Japanese companies and also 
by reiterating its position that, without retroactive ef fect, the implementation was still partial.  Thus 
Japan had urged the United States "to do its utmost  in order to effectively prevent damages being 
inflicted upon Japanese companies".  Before the DS B, Japan had also expressly reserved all its rights 
under the DSU in this matter. 
52. He then turned to the aftermath and the c onsequence of the partial compliance by the 
United States.  The litigation against the Japanese co mpany pending at the time of repeal continued 
and, despite the repeated calls by Japan to take  appropriate action available to it to prevent any 
damage from being inflicted;  upon the Japanese en tity under the 1916 Anti-Dumping Act, the United 
States had failed to do so.  In January 2006, the US  Court of Appeals for the Eighth Circuit affirmed 
the judgment of the District Court.  The Japanese company had eventually filed a petition to the US 
Supreme Court for a writ of certiorari.  In June 2006, that petition had been denied and the judgment 
of the District Court became final.  As a result,  the Japanese company had been forced to pay more 
than US$35 million of treble damage plus a ttorneys' fees and costs of suit under the 
1916 Anti-Dumping Act.  In other words, despite  the US contrary claims, the repeal of the 
1916 Anti-Dumping Act was only in form;  the fact w as that the Act had continued to be in force and 
applied, and had actually caused the nullification or  impairment of benefits accruing to Japan, even 
one and a half year after the United States had declared the completion of its implementation. 
53. Moreover, while the Japanese company that ha d been forced to pay damages under the 
1916 Anti-Dumping Act sought to recover its damages attributed to the Act in Japan's court pursuant 
to a Japanese municipal law, the adversary party of that company in the lawsuit made yet another 
legal move to file a motion for preliminary and perm anent anti-suit injunctions to the District Court of 
Iowa in order to prevent the Japan ese company from filing a lawsuit in Japan.  The District Court had 
recently granted this motion partly as it related to a preliminary injunction. 
54. Japan wished to express its d eep regret and disappointment that the Japanese company had 
thus been forced to pay a huge amount of dama ges pursuant to the 1916 Anti-Dumping Act, which 
had been found to be inconsistent with the WTO Agreement and, the United States claimed, had been 
repealed years ago.  He said that the story that he  had shared with Members at the present meeting and 
the predicament endured by the Japanese company called into  question the self-claimed 
implementation of the DSB's recommendations an d rulings by the United States.  Rather, they 
demonstrated that in substance the illegal 1916 Anti- Dumping Act still applied at least partially and 
caused an adverse impact on Japan, in the form of a damage award agai nst the Japanese entity 
pursuant to final court judgment for the civil claim under the Act.  Consequently, Japan maintained its 
position that this dispute had not yet been settled,  despite the US claims to the contrary. 
                                                     
 
3 See minutes of the DSB meeting on 24 and 26 November 2004, WT/DSB/M/179, paras. 2-6; see also 
minutes of the DSB meeting on 17 Decem ber 2004, WT/DSB/M/ 180, paras. 59-62. WT/DSB/M/217 
Page 14  
 
  55. Japan recalled that Article 3.4 of the DSU provi ded that "[r]ecommendations or rulings made 
by the DSB shall be aimed at achieving a satisfactory settlement of the matter ...".  Similarly, Article 3.7 states "[t]he aim of the dispute settleme nt mechanism is to secure a positive solution to a 
dispute."  Japan believed that a unilateral declar ation of full compliance by the Member concerned 
hardly served these objectives, when it was evident that the compliance was only partial.  Japan also 
noted that Article 3.10 of the DSU commanded th at "all Members will engage in these [dispute 
settlement] procedures in good faith in an effort to resolve the dispute."
4  Japan reiterated its call to 
the United States to take appropriate action in good faith to address Japan's concerns so as to 
"achiev[e] a satisfactory settlement of [this] matter". 
56. The representative of the United States  said that his country wished to thank Japan for its 
statement.  His delegation would  refer Japan's co mments to its authorities.  For now, he wished to 
note several facts regarding the US court litigation to which Japan had referred.  First, the court 
litigation in question – which was not itself cove red by Japan's "as-such" challenge – had begun 
several years ago, and in fact predated the DSB's rulings and recommendations in this dispute.  The 
legislation the United States adopted to repeal the 1916 Act had not affected this ongoing litigation, 
which had proceeded to a fairly advanced stage.  Second, the court proceeding had revealed that the 
Japanese company in question had not only engaged in dumping, it had, in the words of the 1916 Act, 
done so with "the intent of destroying or injuri ng an industry in the United States."  The company's 
US competitor had been forced to close plants and to lay off employees during this period – and a 
manager for the Japanese company had stated that he  was "very pleased" with that outcome.  In this 
regard, Japan's position in the US court litigation app eared to be at odds with its position in the WTO 
dispute over the 1916 Act.  Specifically, during the WTO proceedings Japan had asserted that the Act 
was an anti-dumping statute, and not an antitrust statute;  in the US court litigation, Japan encouraged the court to require "specific predatory intent", a requirement found not in anti-dumping statutes, but 
at the core of US antitrust law.  Third, the court litigation had also revealed that the Japanese company 
in question had engaged in very troubling activity.  For example, to make it appear as if it had not 
been engaged in dumping, the company had created secret rebates on its sales in the United States.  
The company's lawyer had recognized that putting the rebate in writing would be "incriminating" and 
had urged the company's US subsidiary to falsify a nd destroy its business records to conceal the secret 
rebates, advice which the company had followed.  Fi nally, he noted that the US court's decision to 
enjoin the Japanese company from taking advantage of  Japan's "claw-back" law was not related to the 
recommendations and rulings adopted in this dispute. 
57. The representative of the European Communities
 said that the EC had also brought a WTO 
dispute against the Anti-Dumping Act of 1916 and ha d expressed its concerns at the DSB meeting of 
24 November 2004 on the incomplete implementa tion of the DSB's ruling condemning the US 
legislation.  It had always been and it was still the EC's position that a proper solution to the WTO 
dispute on the 1916 Anti-Dumping Act called for a re peal of the Act and a termination of the 
on-going court cases. It was now more than four years after the implementation deadline and the 
United States was still taking WTO-incompatible actions in application of the 1916 Anti-Dumping 
Act.  This was again an outright neglect of the duty to comply promptly with the DSB's rulings and recommendations.  The EC fully supported Japan's position. 
58. The representative of Japan
 said that his delegation appreciated the reaction of the 
United States that Japan's statement would be transmit ted to capital.  In any ev ent, Japan was prepared 
to further discuss this matter with the United States.  He said that regarding the details of the court 
proceedings in the United States, he did not have an y detailed information at this stage.  He would 
convey the US statement to capital and would check what was ongoing in the US court.  If Japan had any comments or questions in this regard they woul d raise them with the United States bilaterally.  He 
also had one preliminary comment with regard to th e point raised by the Un ited States that the US 
                                                     
 
4 Emphasis added.   WT/DSB/M/217 
 Page 15 
 
 
  court proceeding was not covered by this dispute.  He noted that this dispute was related to the claim 
on Anti-Dumping Act of 1916 as such and any ac tion which involved the application of the 
Anti-Dumping Act of 1916, which was judged incons istent as such, would be covered by the 
recommendations and rulings reached in this disput e. Therefore,  he could not agree with the 
statement made by the United States on this point.  It was his intention to convey the discussion at the 
present meeting to Tokyo and, if necessar y, his delegation would revert to it. 
59. The DSB took note  of the statements.  
5. United States – Anti-dumping measure on shrimp from Ecuador 
(a) Request for the establishment of a panel by Ecuador (WT/DS335/6) 
60. The Chairman  recalled that the DSB had considered this matter at its meeting on 
19 June 2006, and had agreed to revert to it. At  the present meeting, he drew attention to the 
communication from Ecuador contained in document WT/DS335/6, and invited the representative of Ecuador to speak. 
61. The representative of Ecuador
 recalled that on 8 June, his country had submitted a request to 
the DSB for the establishment of a pa nel to resolve its dispute with the United States regarding the US 
Department of Commerce's policy that applied the so-called "zeroing" of negative anti-dumping 
margins in original investigations.  The request had been blocked by the United States at the DSB 
meeting held on 19 June.  On 6 Ju ly, Ecuador had submitted a second request for the establishment of 
a panel to resolve this dispute.  As had been stated previously, the United States had applied the 
policy of "zeroing" in its investigation of certain  frozen warm water shrimp from Ecuador.  Had the 
US not applied this policy, the Department of Commerce would not have issued an anti-dumping 
order in February 2005, since it would not have  found dumping by any Ecuadorian shrimp exporter. 
62. The anti-dumping order had had an extremely nega tive impact on Ecuador's shrimp industry.  
Shrimp was Ecuador's principal private-sector export to the United States and its second most important private-sector exports overall, accounting fo r more than 10 per cent of the country's total 
exports in 2005, with a value of over US$450 milli on.  The shrimp industry generated significant 
employment opportunities in many impoverished areas of his country where few employment 
opportunities were available.  Ecuador, therefore, requested that the DSB establish a panel at the 
present meeting, as it strongly believed that the pr actice of "zeroing" was inconsistent with the 
Anti-Dumping Agreement, bearing in mind that th e Appellate Body had twice before found "zeroing" 
to be inconsistent with Article 2.4.2 of the Anti- Dumping Agreement.  The first finding related to a 
complaint by Canada regarding softwood lumber and the second involved a case brought by the EC 
concerning a variety of steel products.  Ecuador was,  therefore, quite confident that its position was 
correct and that it would be recognized as such by th e panel.  Ecuador had held  consultations with the 
United States on a number of occasions over the past few months.  These consultations had been useful for narrowing their differences.  However, the parties had not yet been able to reach a mutually 
satisfactory settlement and, for that reason, Ecua dor was submitting its panel request for the second 
time.  
63. The representative of the United States
 said that as his country had mentioned at the 19 June 
DSB meeting, the United States had been working with Ecuador in an effort to resolve this dispute.  
The United States hoped to continue to work with Ec uador in this regard, notwithstanding that a panel 
would be established at the present meeting. 
64. The representative of Thailand  said that his country wished to express its full support for 
Ecuador’s request to establish a panel for this dispute.  Thailand strongly believed that the 
Anti-Dumping Agreement did not permit the use of  "zeroing" in any circumstance, and more WT/DSB/M/217 
Page 16  
 
  importantly, that the "zeroing" methodology was intrin sically unfair.  Indeed the Appellate Body had 
rightly denounced this practice, most recently in  the case: "United States – Laws, Regulations and 
Methodology for Calculating Dumping Margins".  Therefor e, in light of its substantial interest in this 
matter, Thailand wished to reserve its right to participate as a third party in this dispute. 
65. The representative of India
 said that, like Thailand, his country also wished to reserve its 
third-party rights. 
66. The DSB took note  of the statements and agreed  to establish a panel in accordance with the 
provisions of Article 6 of the DSU w ith standard terms of reference. 
67. The representatives of Brazil , China , the European Communities , India , Japan , Korea  and 
Thailand  reserved their third-party rights to participate in the Panel's proceedings. 
6. United States – Measures affecting the cross-border supply of gambling and betting 
services  
(a) Recourse to Article 21.5 of the DSU by Antigua and Barbuda:  Request for the establishment 
of a panel (WT/DS285/18) 
68. The Chairman  drew attention to the communication from Antigua and Barbuda contained in 
document WT/DS285/18, and invited the represen tative of Antigua and Barbuda to speak. 
69. The representative of Antigua and Barbuda  said that his country was requesting the 
establishment of a compliance panel under Article 21.5 of the DSU to evaluate the status and 
sufficiency of compliance by th e United States with the recommendations and rulings of the DSB 
pertaining to the case:  DS285.  In his country's view,  the United States had not made any efforts to 
comply with the rulings at all, offering now only a statement of a government official as an act of 
compliance after, having insisted almost a year ago that compliance was going to be difficult, and that 
it would involve legislation and take at least 15 months.  In the event, Antigua and Barbuda had 
received a statement from a government official, exactly like a prior statement by another government official that had been found unpe rsuasive by the Panel and the Appe llate Body.  In the meantime, the 
United States had been busy passing legislation that  was directly and unequivo cally contradictory to 
the rulings of the DSB in this case, and out of the entire universe of remote gaming offered to 
Americans not only globally but lawfully from within  the United States in the past months the US 
Department of Justice had just chosen to indict th e principals of two Antiguan licensees, including the 
latest just two days ago.  Under the ag reed procedures between the United States and 
Antigua & Barbuda, the United States had agreed not to object to the establishment of the panel, and 
so his country respectfully asked the DSB to establish a panel under Article 21.5 of the DSU. 
70. The representative of the United States
 said that his country had explained in its April status 
report and during the 21 April DSB meeting, and as the United States had discussed with Antigua and 
Barbuda during bilateral cons ultations, the United States had complied with the DSB's 
recommendations and rulings. The issue of complia nce in this dispute was limited, clear, and 
straightforward.  According to the DSB's reco mmendations and rulings, the only remaining issue 
related to whether US federal criminal law,  which prohibited remote gambling, included a 
discriminatory carve out that allowed remote gambling on horse racing.  More precisely, the DSB had found that the United States had not shown that US  legal prohibitions applied to both foreign and 
domestic suppliers of remote betting services for horse racing.  The US chief law enforcement agency, 
the US Department of Justice, had explained that US  federal criminal statutes did in fact prohibit the 
remote transmission of bets or wagers on horse races;   and that an unrelated civil statute known as the 
Interstate Horseracing Act had made no changes in the relevant criminal statutes.  Accordingly, the 
United States was now in a position to show that US  legal prohibitions applied to both foreign and  WT/DSB/M/217 
 Page 17 
 
 
  domestic suppliers of remote betting services for hor se racing.  The United States also understood that 
it might be Antigua's view that the only possible means of compliance was by making changes to US 
law.  Legislative action was one possible means of compliance, but the United States had never agreed, as Antigua had suggested, that legislativ e action was the only means.  For these reasons, the 
United States was disappointed that Antigua w as nonetheless seeking the establishment of a panel 
under Article 21.5 of the DSU.  However, pursuant to its procedural agreement with Antigua, which 
had been circulated to the DSB in document WT/DS285/16, the United States would accept the 
establishment of a panel at the present meeting. 
71. 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 ma tter raised by Antigua and Barbuda in document 
WT/DS285/18.  The Panel would have  standard terms of reference. 
72. The representatives of China , the European Communities  and Japan  reserved their third-party 
rights to participate in the Panel's proceedings 
7. Proposed nomination for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/325) 
73. The Chairman  drew attention to document WT/DSB/W /325, which contained an additional 
name proposed for inclusion on the indicative list of  governmental and non-governmental panelists, in 
accordance with Article 8.4 of the DSU.  Unless th ere was any objection, he wished to propose that 
the DSB approve the name contained in document WT/DSB/W/325. 
74. The DSB so agreed . 
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