RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/200 
25 January 2006 
 (06-0352) 
Dispute Settlement Body 
28 November 2005  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 28 November 2005  
 
Chairman:  Mr. Eirik Glenne (Norway) 
 
  Prior to the adoption of the agenda
, the following items were removed from the agenda at the 
request of the United States: (i) "Mexico – Tax Measures on Soft Drinks and Other Beverages: 
Request by the United States for a decision by the DSB; and (ii) "Mexico – Tax Measures  on Soft 
Drinks and Other Beverages: Report of the Panel".  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...................................................................................3  
(c) United States – Continued Dumping and Subsidy Offset Act of 2000:  Status report 
by the Unite d States ........................................................................................................... .........4  
(d) United States – Section 110(5) of the US Copyright Act:  Status report by the 
United States .................................................................................................................. .............6  
(e) United States – Countervailing measures concerning certain products from the 
European Communities:  Status report by the United States ......................................................6  
2. Brazil – Measures affecting im ports of retrea ded tyres ........................................................8  
(a) Request for the establishment of a pa nel by the European Communities...................................8  
3. Korea – Anti-dumping duties on imports of certain paper from Indonesia......................10  
(a) Report of the Panel............................................................................................................ ........10  
4. United States – Anti-dumping measures on oil country tubular goods (OCTG) 
from Mexico.................................................................................................................... .........12  
(a) Report of the Appellate Body and Report of the Panel.............................................................12  
5. Proposed nominations for the indicative list of governmental and 
non-governmental panelists ...................................................................................................18  
6. European Communities – Customs classifica tion of frozen boneless chicken cuts...........18  
(a) Statement by  Brazil............................................................................................................ .......18  
 WT/DSB/M/200 
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.37) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.37) 
 (c) United States – Continued Dumping and Subsid y Offset Act of 2000:  Status report by the 
United States (WT/DS217/16/Add.22 – WT/DS234/24/Add.22) 
 
(d) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.12) 
 (e) United States – Countervailing measures c oncerning certain products from the European 
Communities:  Status report by the United States (WT/DS212/19) 
 
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 then proposed that the five 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.37) 
2. The Chairman drew attention to document WT/D S176/11/Add.37, 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 17 November 2005, in accordance with  Article 21.6 of the DSU.  As noted in that 
report, several legislative proposals relating to  Section 211 that would implement the DSB's 
recommendations and rulings in this dispute had been  introduced in the current Congress, both in the 
US Senate and the US House of Representatives.  The US administration was working with the US 
Congress in order to implement the DSB's recommendations and rulings. 
4. The representative of the European Communities  noted that Members were now approaching 
the third anniversary of the original 31 Decemb er 2002 deadline that had been granted to the 
United States to comply with the DSB's ruling and recommendation in this dispute.  And, five months had already elapsed since the expiry of the ex tended implementation period on 30 June 2005.  Yet 
and, once again, the status report of the United St ates was void of substance.  No progress has been 
made.  He noted that effective and non-discrimin atory protection of intellectual property rights 
worldwide was essential for the development of interna tional trade.  This obj ective was shared by the 
EC and the United States.  The respect and improvement of the TRIPS Agreement were essential to this objective.  Section 211 was a discriminatory legi slation that was driven by specific interest.  Its 
removal by adoption of the repea ling bills pending in the US Congress would bring a satisfactory 
solution to this dispute and conform to this objective. 
5. The representative of Cuba
 said that, with the apparent aim to comply with the DSB's 
recommendations, the United States had continuously st ated in its most recent status reports that 
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 US Congress.  In fact, the US  WT/DSB/M/200 
 Page 3 
 
 
Congress had not taken any action on the bills presente d, nor had the US administration urged the US 
Congress to comply with the WTO report.  The valid ity of the measure such as Section 211, which 
had existed for over five years, and which the WTO had found more than three years ago to be in 
violation of intellectual property rights protected by  international conventions  and agreements, had led 
Cuba to question the historic leadership that the US Government had assumed in the defense of 
intellectual property rights at the heart of the WTO.  The process of postponements sought the 
expiration in 2006 of the period to renew the Hava na Club brand in the United States, thus impeding 
the Cuban-French venture, Havana Club International, to renew its legitimate rights to the US Patent 
and Trademark Office.  That fact would legally establi sh the theft of this trademark by Bacardi.  There 
was absolutely no legal or moral reason for Section 211 to be in force three years after the DSB had 
made its decision regarding this matter.  As co ncluded by the Appellate Body in its Report, 
Section 211 violated basic WTO principles such  as national treatment and most-favored-nation 
treatment, which evidenced the US discriminator y treatment against Cuba.  The indefinite 
postponement of the settlement of this dispute cast doubt on the efficacy and credibility of the DSB and the multilateral trading system and set a dange rous and systemic precedent which might affect 
other Members in the future, particularly developing  countries.  His delegation urged, once again, the 
United States to comply with the obligations assume d as a WTO Member by abolishing Section 211.  
The abolishment of Section 211 was, undoubtedly, the onl y feasible solution to this dispute in order to 
restore the credibility, predictabilit y and confidence that should preva il in multilateral trade relations 
with regard to intellectual property. 
6. The representative of Brazil
 said that, in light of the systemic importance of the discussions 
on the matter before the DSB at the present meeti ng, his delegation wished to reiterate Brazil's 
position on this issue which was contained in the statement made by Brazil at the 18 October 2005 
DSB meeting. 
7. The representative of Mexico  said that, like on previous occasions, his country noted Cuba's 
feeling of frustration resulting from the fact that the matter had not been settled within a reasonable 
period of time. Mexico believed that the ideal situa tion would be for Cuba not to initiate its own case 
to pursue this matter, however, Mexico recognized that Cuba's rights under the DSU remained fully 
valid. 
8. The representative of the Bolivarian Republic of Venezuela  said that, as stated at the previous 
DSB meeting, his country fully endorsed Cuba's st atement because it considered that Section 211 was 
WTO-inconsistent.  Venezuela urged the United States to find an appropriate so lution to this matter in 
line with the WTO Agreement. Ven ezuela wished to add to the comments made by Cuba that this 
type of non-compliance and violation undermined the credibility of the DSB and the DSU provisions.  Furthermore, it not only undermined the credibility of the WTO, but also the negotiations because the 
dispute settlement mechanism was considered to be the jewel in the crown of the WTO.  Venezuela 
would closely monitor how decisions were being im plemented and respected before undertaking any 
further WTO commitments.  Therefore, Venezuela once again urged the United States to comply with 
the WTO ruling. 
9. 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.37) 
10. The Chairman drew attention to document WT/D S184/15/Add.37, 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. WT/DSB/M/200 
Page 4  
 
11. The representative of the United States
 said that his country had provided a status report in 
this dispute on 17 November 2005, in accordance with Article 21.6 of the DSU.  As of 23 November 2002, the US authorities had addresse d the DSB's recommendations and rulings with 
respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty investigation at issue in this dispute.  Details  were provided in document WT/DS184/15/Add.3.  The 
US administration continued to support specific le gislative 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 these amendmen ts.  The US administration would continue to 
work with the US Congress to enact legislation to  implement the DSB's recommendations and rulings. 
12. The representative of Japan
 said that his country had been waiting to see the passage of bill 
H.R. 2473 – introduced in the US House of Repres entatives in May 2005 –  which would amend the 
US anti-dumping statute relevant to this dispute.  Japan noted  the statement by the United States that 
the US administration would continue to work with the US Congress to enact this legislation. Prompt 
implementation of the DSB's recommendations a nd rulings was essential for the credibility and 
Members' confidence in the WTO system.  Japan believ ed that this conviction was shared not only by 
the US administration, but also by the US C ongress.  Japan, once again, strongly called on the 
United States to bring itself into compliance w ith its obligations under the WTO without further 
delay. 
13. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(c) United States – Continued Dumping and Subsidy Offset Act of 2000:  Status report by the 
United States (WT/DS217/16/Add.22 – WT/DS234/24/Add.22) 
14. The Chairman drew attention to documen t WT/DS217/16/Add.22 – WT/DS234/24/Add.22, 
which contained the status report by the United St ates on progress in the implementation of the DSB's 
recommendations in the case concerning the US Conti nued Dumping and Subsidy Offset Act of 2000. 
15. The representative of the United States  said that his country had provided a status report on 
17 November 2005, in accordance with Article 21.6 of the DSU.  As noted in that report, budget 
reconciliation legislation that included repeal of the CDSOA had been approved by the House 
Committee on Ways and Means on 26 October 2005 , and by the House Budget Committee on 
3 November 2005.  On 18 November 2005, after the United States had provided its status report, the 
full House had passed that legislation.  A confer ence committee with negotia tors from the House and 
the Senate would now consider the bill.  The US ad ministration would continue to work with the US 
Congress to enact legislation, and to confer with th e complaining parties in these disputes, in order to 
reach mutually satisfactory resolutions of these matters. 
16. The representative of th e European Communities  said that the inclusion of provisions 
repealing the Byrd Amendment in the Deficit Reduc tion Act adopted by the House of Representatives 
on 18 November 2005 was a significant and much welcome step in the implementation of the WTO's 
rulings and recommendations.  This was not the en d of it.  A House/Senate conference would now 
have to decide on it since the US Senate had passed a different version of the bill that did not provide 
for the repeal of the Bird Amendm ent.  But, the House vote was an encouraging sign that this dispute 
might be heading into the right direction;  i.e.  compliance and lifting of retaliation.  The EC hoped 
that the US Congress would build on the momentum created by the House vote and complete the 
legislative process to repeal the Byrd Amendment. 
17. The representative of Japan  said that his country had noted th e latest status report as well as 
the statement made by the United States at the present meeting, and in particular the fact that on 18 November 2005, the US House of Representa tives approved the Reconciliation Bill (H.R. 4241), 
which contained, among other things, a provision to repeal the CDSOA.  Japan  welcomed this action  WT/DSB/M/200 
 Page 5 
 
 
by one of the houses of the US Congress as an import ant step forward.  Japan strongly urged that the 
US Senate consider this legislation favourably as well so that the repeal of the CDSOA could finally 
be secured.  Japan's countermeasures, as an unha ppy last-resort remedy, shall be taken only 
temporarily until the implementation of the DSB' s recommendations and rulings was duly secured.  
Bearing that point in mind, Japan called on the United States to accelerate its work toward a full 
compliance with its obligations under th e WTO with regard to this dispute. 
18. The representative of Brazil  said that his country thanked the United States for the status 
report and noted that on 18 November 2005 the US House of Representatives had approved the repeal 
of the so-called Byrd Amendment in the context of the discussion on the budget reconciliation bill in 
the US Congress.  Brazil welcomed  such development and hoped th at the repeal of this illegal 
measure be expeditiously confirmed in the next step s of the legislative process in the United States, 
thus concluding an overly long period of non-complia nce in a matter that had serious systemic and 
economic implications. 
19. The representative of Canada  said that his country had taken note the US latest status report 
on the Continued Dumping and Subsidy Offset Ac t of 2000. The report recounted important and 
encouraging developments in this dispute.  On  18 November 2005, the US House of Representatives 
had adopted its version of the B udget Reconciliation Bill, which include d a provision for the repeal of 
the Byrd Amendment.  Canada welcomed this in itiative, though it was aw are that th ere w as still 
strong opposition in the US Congress to repeal the Byrd Amendment.  There is no doubt that the 
budget adjustment process afforded th e United States an opportunity to revoke the Act and to meet its 
obligations under the WTO.  For several years now, the international community had been calling for 
an end to this unlawful measure.  The Byrd Amendm ent's harmful effects on international trade were 
acknowledged when the DSB had determined that the measure contravened the rules of international 
trade.  Moreover, the Byrd Amendment was detr imental to the US economy, as several consumer 
protection groups in the United States had recognized.   For example, the Consuming Industries Trade 
Action Coalition (CITAC) was pushing for repeal of  the Byrd Amendment because it was damaging 
to the US economy.  CITAC and many other stake holders in the United States had welcomed with 
enthusiasm the first step taken recently towards the abolition of the Act. Canada had stated many 
times that trade sanctions were not the approach it preferred, but a measure it deemed necessary in 
order to protect its interests.  And Canada would certainly continue to defend its interests fully.  
Canada wished to remind the United States of the im portance for each one of them of an international 
trading system founded on the rule of law, and urged the United States to put an end to this dispute by 
abolishing the Byrd Amendment. 
20. The representative of Korea  said that, like other co-complainants in this dispute who had 
taken the floor previously, Korea had noted the st atus report and the statement made by the United 
States at the present meeting, and welcomed the fact that a budget reconciliation package that 
contained repeal of the CDSOA had been approv ed by the House Committee on Way and Means, the 
House Budget Committee and the full house in th e US Congress since the 18 October 2005 DSB 
meeting.  Korea considered that these recent deve lopments were positive signs for resolving this 
dispute and, hoped that similar pos itive developments would take place in the Senate in the near 
future.  It should also be recalled that the impl ementation regarding this dispute was far behind 
schedule since almost 2 years had passed since the expiry of the implementation period.  In this 
regard, Korea urged the United States to re double its efforts to implement the DSB's 
recommendations and rulings without further de lay to end this dispute once and for all. 
21. The representative of India   said that his country urged the United States to urgently complete 
its domestic processes leading up to the repeal of the CDSOA.  India, of course, reserved all its rights under the DSU, including the right to exercise the authority given by the DSB to India to suspend concessions or other obligations vis-à-vis  the United States. WT/DSB/M/200 
Page 6  
 
22. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.12) 
23. The Chairman drew attention to document WT/D S160/24/Add.12, 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. 
24. The representative of the United States  said that his country had provided a status report in 
this dispute on 17 November 2005, 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,  
in order to reach a mutually satisfactory resolution of this matter. 
25. The representative of th e European  Communities  said that, at the previous DSB meeting, the 
EC had urged the United States to implement the DS B's recommendations and rulings in this dispute 
and thereby to put an end to a situation of non-comp liance that had lasted for more than five years.  
As a first step, the EC had asked the United States to  describe in its status re ports the actual initiatives 
that were being undertaken to comply with th e DSB's recommendations and rulings.  Unfortunately, 
the most recent status report submitted by the United States was a mere repetition of previous 
statements.  The EC was concerned about the US attitude, which prevented the DSB from exercising 
appropriately its surveillance functions.  Similarly,  the EC was concerned about the lack of progress 
in the United States to bring its legislation into  line with international standards of copyright 
protection. Nevertheless, the EC still trusted th at the United States would act to remedy this 
unfortunate situation as proof of the seriousness of  its commitment towards the respect of the TRIPS 
Agreement and the protection of intellectual property rights worldwide.  The EC had been told that 
the US Trade Representative, Portman, had serious contacts with the US Congress on this, and the EC encouraged such efforts.  Finally, the EC wished to recall that it had reserved its right to reactivate, at 
any point in time, the arbitration proceedi ngs related to its request for retaliation. 
26. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) United States – Countervailing measures con cerning certain products from the European 
Communities:  Status report by the United States (WT/DS212/19) 
27. The Chairman  drew attention to document WT /DS212/19, which contained the status report 
by the United States on progress in the implementa tion of the DSB's recommendations in the case 
concerning countervailing measures on certain products from the European Communities. 
28. The representative of the United States  said that his country had provided a status report in 
this dispute on 17 November 2005.  As noted in th at report, the United States had consulted with 
relevant Congressional committees with regard to the implementation of the DSB's recommendations 
and rulings. The United States would continue to ta ke steps to implement the DSB's recommendations 
and rulings, including a request from the USTR to the Department of Commerce to conduct re-
determinations of the Spanish and UK reviews to  implement the DSB's recommendations and rulings. 
29. The representative of the European  Communities  said that the EC could not but welcome the 
US initiative to submit the relevant status report pertaining to the case under consideration. The EC 
had taken careful note of it.  The EC wished to express its disappointment at the fact that the US status report did not actually serve its intended purpose as e nvisaged in Article 21 of the DSU, namely to 
allow the DSB and the WTO Members to survey th e implementation of the relevant DSB's findings 
and recommendations.  In fact, the US status repor t was extremely short and provided no information  WT/DSB/M/200 
 Page 7 
 
 
whatsoever regarding the steps that  the United States intended to take  to implement the DSB's rulings 
and recommendations.  The EC thus wished to submit  a number of questions in this regard, and hoped 
that it would get responses regarding the US intende d course of action.  Before doing so, though, the 
EC wished to express its surprise at the statement in  the status report, namely, that the United States 
had consulted with relevant Congressional committ ees with regard to the implementation of the 
DSB's recommendations and rulings.  The EC did not  see any reason for legislative action in this 
respect.  The new "change-in-ownership" methodol ogy was not challenged in the recent compliance 
Panel proceedings, thus the EC did not see any n eed for legislative action and consultations with 
Congressional committees.  The EC would appreciate any US comments and clarifications in this 
regard. 
30. In addition to this point, the EC would like to submit a number of questions and expected to 
receive replies and clarifications, if possible. These included the following:  "(i) How exactly does the United States intend to implement the DSB rulings  and recommendations; and in particular those 
related to the need to make an explicit determina tion on the nature of the privatizations involved? 
What are the deadlines envisaged and how does th is determination fit with the Section 129 
proceedings?  (ii) Does the United States – throug h the DOC – intend to implement the compliance 
panel findings by revisiting the first sunset revi ew of 2000 in a new Section 129 proceeding?  If yes, 
could the United States indicate the applicable time-t ables and deadlines?  (iii) If we are not mistaken, 
all measures involved in this case are due to sunset  on 1 December 2005.  In this respect, the EC 
wishes to ask whether the US industr y has pursued sunset reviews.  If this is the case and indeed 
sunset reviews are opened, the United States is obliged  to examine all relevant evidence in line with 
Article 21.3 of the SCM Agreement, and in conf ormity with the recent DSB's recommendations 
following the compliance panel proceedings.  This  evidence obviously included evidence that was 
submitted in the previous Section 129 proceeding a nd was not examined by the DOC.  What is the 
position of the United States  in this respect?". 
31. In connection with the above, the EC considered that in any case, all measures covered in 
those proceedings including alleged subsidies in the French corrosion-resistant case, had all been 
amortized and there were good and valid reasons for not  opening sunset reviews on them.  In addition, 
there were no new subsidy allegations. Conseque ntly, proceeding to affirmative likelihood of 
subsidization determinations would run counter to all fundamental noti ons of good faith and fairness.  
In the upcoming sunset reviews, if any, the EC intended to make substan tive submissions to support 
its position.  Neverthe less, the EC would appreciate a preliminary US reaction in this respect.  Finally, 
the EC believed that it was time to end this privatizati on saga.  It served no purpose at all.  It was time 
for the United States to implement fully and fa ithfully the relevant DSB's recommendations and 
terminate the measures at issue.  This was the a ppropriate course of action required by both the DSB's 
ruling and recommendations and the fact that all these measures had been amortized in any case.  
Thus they should lapse.  Any other course of acti on was doomed to perpetuate a dispute that had run 
its course. 
32. The representative of the United States
 said that his delegation wished to thank the EC for its 
statement.  The United States noted that the EC had asked a number of questions, and that some of those questions contained some assumptions or othe r statements.  His delegation was unfortunately 
not in a position, at the present meeting, to answer  those questions or address those assumptions and 
other statements, but it would refer them all to capital for review. 
33. The DSB took note
 of the statements. WT/DSB/M/200 
Page 8  
 
2. Brazil – Measures affecting imports of retreaded tyres 
(a) Request for the establishment of a panel by the European Communities (WT/DS332/4) 
34. The Chairman
 drew attention to the communication from the European Communities 
contained in document WT/DS332/4, and invited th e representative of the European Communities  to 
speak. 
35. The representative of the European Communities  said that the EC regretted that it had become 
necessary to file the present request for the estab lishment of a panel over Brazil's discriminatory 
measures against imported retreaded tyres. The im port ban, from which only Mercosur imports were 
exempted, violated some of the most fundamental rules of the GATT 1994.  The EC had discussed this matter with the Brazilian authorities over many years and was disappointed that Brazil had not 
seized the opportunity to avoid the present WTO dispute.  Not only did the year-long talks bore no 
fruit, the situation had even deteriorated.  Most  recently, the Brazilian government had submitted a 
draft law to its legislature, which would confirm the import ban on retreaded tyres and an exemption for Mercosur imports in the form of an act of Par liament.  In these circumstances, the EC had no other 
option than to request the establishment of a pa nel in order to uphold fundamental principles of 
international trade law.  The EC would probably hear at the present meeting from Brazil that its 
measures were perfectly compatible with WTO disci plines since they were justified notably for the 
protection of the environment and public health.  Th e EC had to be very clear on this: the EC in no 
way would challenge any measure that could be just ified for environmental concerns.  But the present 
import ban on retreaded tyres did not fall in this cat egory.  Banning the importation of retreaded tyres 
made no contribution to the environm ental and health protection objective, and was in any event trade 
distorting and discriminatory.  Also, in the light of  some allegations which Br azil had made before the 
Committee on Trade and Environment, the EC wished  to stress that most of these assertions were 
completely unfounded.  Exports of retreaded tyres were not a tool for the EC to reduce the accumulation of waste tyres.  The importation of retreaded tyres from other countries to the EC was not only permitted, but also took place. In the light of the existing controversy between Brazil and the 
EC and the exhaustion of all means to settle the dispute amicably, the EC was presenting its request 
that a panel be established to rule on the matter. 
36. The representative of Brazil
 said that his country regretted th at the EC had decided to request 
the establishment of a panel in the present dispute. During the informal and formal consultations held 
on this issue, Brazil had provided abundant inform ation and evidence that the measures the EC was 
now trying to take to the panel st age were in full compliance with its multilateral obligations.  It was 
Brazil's expectation that the EC would be satisfied with the elaborate and expeditious clarifications 
given by Brazil. 
37. The dispute that the EC had brought against Brazil concerned a very special product.  Indeed, 
tyres were not ordinary products.  Designed to be both robust and durable, they contained highly 
combustible and pollutant materials and, even more  importantly, they generated a large quantity of 
absolutely undesirable wastes at the end of their lif e cycle.  As widely acknowledged, the impact of 
tyres on the environment and on human health was c onsiderable.  This related to their manufacture 
and use, as well as to the disposal of the wastes th ey generated.  Estimates showed that almost one 
billion tyres reached the end of their life cycle each  year all over the world. The British Environment 
Agency1 had helped all to better understand the dimensi ons of the problem when it had recalled that 
the volume of waste tyres generated every year in  the United Kingdom alone was enough to stretch a 
line from London to Sydney.  The same agency report ed that: "millions of tyres remain in stockpiles 
around the country (i.e. the United Kingdom) and some of these dumps harm the environment.  Tyres 
did not decompose and could be a fire risk affecti ng the air with toxic fumes, and watercourses, which 
                                                      
1 Environment Agency  - Tyre Watch;  
http://www.environment-agency.gov.uk/bu siness/444251/444707/288582/?lang=_e.  WT/DSB/M/200 
 Page 9 
 
 
fire quench waters could run into.  Some landfill tyre fires had been burning for years."  The ever-
growing generation of rubber wastes was thus a major concern to environmental and health 
authorities.  In many countries the increasing volum e of waste tyres had already exceeded the limits of 
the ordinary waste disposal capacities and techniques. 
38. Waste tyres, which had made up for the largest part of the world's rubber waste stream, were 
definitely the most problematic waste to deal with : they were difficult to collect for geographical, 
economic and cultural reasons; they were costly to deposit due to their huge volume; they were hard 
to dispose of since no options for disposal of larg e quantities of rubber wastes had proved to be thus 
far, at the same time, environmentally s ound and technically and economically viable. 
39. Tyres were also a source of significant public h ealth concerns, especially in tropical countries.  
Tyres were ideal breeding places for mosquitoes transmitting serious diseases such as yellow fever, 
dengue and malaria.  According to the World Hea lth Organization, malaria caused more than 300 
million acute illnesses and, at least, one million deaths annually.2  The WHO had also recalled that 
dengue was the most important emerging tropical viral disease in the world.3  Both diseases were 
present in Brazil. Tyres did play an important role  in the spreading of the vectors of these diseases 
among countries and continents.  Other health risks associated with this product resulted of air, 
ground and water contamination by toxic substances released through burning of tyres.  Furthermore, 
some methods of waste tyres disposal had an impact on human health. 
40. For all these reasons, and in order to avoid prem ature generation of unwanted wastes in their 
territories, Brazil and several other WTO Members ha d adopted measures to restrict trade in casings 
and retreaded tyres. 
41. The dispute that the EC had brought against Brazil referred to a specific kind of tyre – 
retreaded tyres.  A retreaded tyre was a previously used tyre which worn tread was replaced with new 
material.  A retreaded tyre was a short lifespan product.  While new tyres might potentially be 
retreaded at least once before becoming wastes, re treaded tyres in most cases could not be retreaded 
for a second time in light of stringent technical a nd safety regulations, adopted both in the EC and 
Brazil.  It was only logical then that imports of re treaded tyres increased the volume of waste tyres to 
be eliminated in the importing country.  It was also  reasonable to conclude that the benefits deriving 
from that kind of trade remained largely with th e exporting countries, which got rid of the casings 
used to produce the retread and were paid for that.  To the importing country remained the burden to 
dispose of rubber wastes generated by a product that en tered its territory just to perform the final stage 
of its life cycle. 
42. Both Brazil and the EC were perfectly awar e of the health and environmental problems 
resulting from the accumulation of waste tyres in its territory. During the formal and informal 
consultations held with the EC, Brazil had made clear that it lacked capacity to deal, in an 
environmentally sound way, with the whole amount of  waste tyres generated annually in the country  
as well as with the millions of units already scattere d throughout the national territory.  Moreover, 
Brazil also stressed that it would not cope with a regular and increasing flow of retreaded tyres from 
the EC. 
43. Brazil was of the view that, in the present cas e, there was a set of serious and legitimate 
concerns that must inform any consideration of th is matter.  Brazil believed that, as recognized for 
instance in the Declaration on TRIPS and Public He alth, WTO rules could and should be interpreted 
and implemented in a manner supportive of WTO Memb ers' right – and in Brazil's case, constitutional 
obligation – to protect public health and the envir onment.  By requesting the establishment of a panel 
                                                      
2 http://mosquito.who.int/cmc_upload/0/000/015/372/RBMInfosheet_1.htm. 
3 WHO, Guidelines for Treatment of Dengue Fever/Dengue Haemorrhagic Fever in Small Hospitals, 
 New Delhi, 1999. WT/DSB/M/200 
Page 10  
 
at the present meeting, the EC had resorted to the WTO dispute settlement mechanism as an 
additional step in its strategy to guarantee market s in the developing world to dump a short lifespan 
product – retreaded tyres –  broadly rejected by Euro pean consumers.  In light of the foregoing, Brazil 
could not accept that a panel be established as requested by the EC. 
44. The representative of the Bolivar ian Republic of Venezuela
 said that since this matter was on 
the DSB's agenda for the first time, his delegation wished to make a statement. This was a very 
complex case, which involved not only WTO Agreemen t, but also various multilateral environmental 
agreements. Moreover, the issue was linked to qu ality standards and environmental means.  His 
delegation would convey the informa tion regarding this matter to cap ital, and wished to be kept 
informed of any developmen ts regarding this matter. 
45. The representative of Cuba  said that his country shared Brazil's concerns about the harmful 
effects on the environment and hum an health of the increasing generation of waste tyres and 
considered that Brazil quite properly had taken me asures to tackle the problems caused by the 
growing generation of scrap tyres in its territory.  All were aware that tyres discarded in the environment were an ideal breeding ground for mosqu itoes that carried diseases such as dengue fever 
and yellow fever.  Trade in tyres, particularly used tyres, was one of the main causes of the spread of 
viral diseases around the world.  Furthermore, ty res contained highly combustible and polluting 
materials, and fires frequently occurred where tyres were stockpiled, posing a threat to human health 
from air and soil contamination.  The current pace of trade in used and retreaded tyres from the 
developed to developing countries was a matter of r eal concern.  Many developed countries viewed 
the exportation of used tyres as a way to reduce the volumes of scrap tyres generated in their 
territories, and even as a valid option for disposing of  waste tyres.  They were thus transferring the 
management of waste tyre disposal and the envi ronmental responsibility to third world countries in 
view of the shorter life span of such tyres, using other countries as dumps, which was totally 
unacceptable.  Cuba would be following devel opments regarding this matter with interest. 
46. The DSB took note
 of the statements and agreed  to revert to this matter. 
3. Korea – Anti-dumping duties on imports of certain paper from Indonesia 
(a) Report of the Panel (WT/DS312/R) 
47. The Chairman  recalled that at its meeting on 27 September 2004, the DSB had established a 
panel to examine the complaint by Indonesia pertaining to this matter.  The Report of the Panel contained in document WT/DS312/R had been circulated on 28 October 2005 as an unrestricted document.  The Panel Report was now before the DSB for adoption at the request of Indonesia.  This 
adoption procedure was without prejudice to the right  of Members to express their views on the Panel 
Report. 
48. The representative of Indonesia
 said that his country wished to thank the Panel and the WTO 
Secretariat for their time devoted to the dispute u nder consideration.  The matter at hand concerned 
the imposition by Korea of anti-dumping duties on Indonesian exports of paper.  As Indonesia had 
explained at the time of establishment of the pane l, its export paper to the Korean market were 
substantial and the imposition of the duty had cause d serious disruptions to its economy.  Indonesia 
was, therefore, pleased with the overall outcome of the disput e.  The Panel had found that Korea's 
measures violated several provisions of the Anti-Dump ing Agreement.  It had ruled that Korea failed 
to make a proper determination of dumping and fa iled to properly assess injury.  The Panel had also 
ruled that the procedural rights of Indonesia's e xporter were not respected and had found that the 
Korean investigating authority acted inconsistently with the disciplines of the Anti-Dumping 
Agreement.  WT/DSB/M/200 
 Page 11 
 
 
49. Indonesia recalled that Article 21.1 of the DSU provided that prompt compliance with the 
DSB's recommendations or rulings was essential in order to ensure the effective resolution of disputes 
to the benefit of all Members and for the sake of the credibility of the WTO.  Furthermore, Article 
21.3 of the DSU provided that immediate compliance was expected unless this was impracticable. The parties to the dispute had discussed pr oper compliance with the DSB's rulings and 
recommendations to eliminate the anti-dumping marg in and thereby to eliminate the measures.  
Indonesia was aware that Korea had taken the positi on during the Panel proceeding that if the Panel 
were to find that Korea had acted inconsisten tly with its obligations, Korea would welcome the 
opportunity to correct its measures, just as Korea w ould expect other Members to do so with respect 
to claims against Korean exporters.  Indonesia w as encouraged by the sentiment behind this position 
and trusted that Korea would in that spirit implem ent the Panel's ruling fully, promptly, and without 
seeking to limit or minimize the ruling in any way.  In doing so, Korea's implementation of the Panel 
would be an example for all Members involved in the trade remedy disputes.  Given the nature of the DSB's rules and Korea's excellent record in ma tters of WTO compliance, Indonesia hoped that the 
measures would be withdrawn immediately so that fu rther damage to its paper industry be averted. 
Indonesia, therefore, welcomed the adoption of the Panel Report. 
50. The representative of Korea
 said that his country wished to take this opportunity to express its 
appreciation for the Panel's efforts in the course of the proceedings.  Anti-dumping investigations 
necessarily involved a comprehensive and complex anal ysis of detailed information concerning prices 
in various markets, production costs, and the effect of imports on the domestic industry.  As a result, 
the Panel's review of the substantive issues in  anti-dumping determinations necessarily required a 
careful and searching analysis of the factual record as it related to the relevant legal issues.  While 
Korea did not agree with all aspects of the Panel's decision, it was indisputable that the Panel had 
reached its decision only after a careful review of th e evidence and the submissions of the parties.  As 
a result of the Panel's efforts, Indonesia's claims had received a fair and obj ective review mandated by 
the DSU. 
51. In Korea's view, the results of the Panel's re view represented a vindication of the actions by 
the Korean Trade Commission (KTC) – the Korean government agency whose determinations in the 
anti-dumping investigation were the subject of Indonesi a's claims.  In its requ est for consultations and 
its request for the establishment of a panel, Indo nesia had identified dozens of issues under the WTO 
Anti-Dumping Agreement.  By contrast, the Panel's final Report had found that the KTC had acted inconsistently with the Anti-Dumping Agreement on only a few relatively minor procedural matters: 
(i) the adequacy of the KTC's explanation of its choice of the amounts used, as "facts available," to 
represent general and administrative expenses as well as interest expenses in the calculation of a constructed normal value for two of the respondents;  (ii) the adequacy of the description of the steps 
undertaken by the KTC to corroborate the prices used , as "facts available," to determine the export 
price and normal value for a third respondent;  (iii) the adequacy of the KTC's disclosure of the results 
of its verification of the Indonesian respondents;  (i v) the adequacy of the KTC's explanation of its 
analysis of the impact of dumped imports on the domestic industry; and (v) the KTC's treatment as 
confidential information of a submission that was by its nature confidential, without requiring a 
further demonstration by the submitter that there was "good cause" for confidential treatment. 
52. As he had mentioned previously, Korea did not agree with the Panel's conclusions on those  
procedural issues.  Nevertheless, because Korea aspi red to provide an example of the conduct of anti-
dumping investigations in a manner consistent w ith the highest standards of procedural and 
substantive fairness, Korea was prepared to take a ppropriate action to remedy the flaws that the Panel 
had identified.  Consequently, the KTC would  unde rtake the steps necessary to implement the Report 
in order to remove any question about the KTC's actions. 
53. Finally, Korea believed it was important to not e that its experience in this proceeding had 
identified one area in which the procedures mandated by the DSU, as implemented by the Panel in 
this proceeding, had proven to be inadequate.  Duri ng the course of the proceedings before the Panel, WT/DSB/M/200 
Page 12  
 
Indonesia had included in its delegation a company employee of certain Indonesian respondents, and 
allowed that company employee to have access to s ubmissions by the Government of Korea that had 
been designated as confidential.  The Panel had deni ed Korea's request that that employee be removed 
from Indonesia's delegation, and had, therefore, a llowed the employee to participate in the Panel's 
meetings in which confidential in formation had been discussed.  In Korea's view, the actions of 
Indonesia and the Panel with respect to that employee  could not be reconciled with the provisions of 
Article 18.2 of the DSU, which required Members to  "treat as confidential information submitted by 
another Member to the panel."  What was at stake, in particular, was the confidentiality of information 
submitted to the investigating authorities by ot her competing respondents that had provided their 
business information to the investigating authorities confidentially, with the understanding that their 
business secrets would not be revealed to other re spondents.  If the confidentiality of information 
submitted to a panel in confidence was not strictly  maintained, Members would be forced into a 
difficult choice between defending thei r interests vigorously in the Panel's proceedings and avoiding 
the harm that necessarily arose wh en the confidentiality of their confidential information was not 
respected.  Korea had to agonize over the possibility th at the integrity of its investigating authorities 
might be jeopardized by having business confiden tial information of one Indonesian respondent 
revealed to its rival respondents who had been behi nd Indonesia's Government's decision to bring an 
action against the Korean investigating authorities' anti-dumping determination at issue in this case.  
Korea hoped that future panels would operate consistently with the understanding that the 
confidentiality requirements of Article 18.2 coul d not be circumvented by the expedient of 
designating private company officials as a member of a party's delegation. Finally, he expressed 
Korea's appreciation for the opportunity to present comments on the Panel Report and looked forward 
to the adoption of the Report. 
54. The representative of th e European Communities
 said that the dispute raised for the first time 
the issue of whether Article 6.10 of the Anti-Dump ing Agreement when requiring to determine an 
individual margin of dumping for each known export er or producer obliged to calculate a separate 
dumping margin for each separate legal entities.  Article 6.10 did not define the notion of 
exporter/producers and several provisions of the Anti-Dumping Agreem ent confirmed that 
relationships between legally distinct entities mi ght impact dumping, notably Article 9.5, which 
excluded the calculation of an individual dumping marg in, if the alleged newcomer was related to any 
of the exporters or producers already subject to th e anti-dumping duties.  The Panel had, therefore, 
rightly concluded that Article 6.10 allowed trea ting as a single exporter subject to a single dumping 
margin several distinct legal corporations that were  related to each others.  The Panel's conclusion was 
also of particular practical importance for the effectiveness of the Anti-Dumping Agreement.  Requiring the calculation of individual dumping marg ins for related corporations would have create 
the likelihood of manipulation of anti-dumping measures (thus rendering them ineffective) by 
enabling the related producers to channel their exports  to the Community through  the affiliate with the 
lowest dumping margin. 
55. The DSB took note
 of the statements and adopted  the Panel Report contained in 
WT/DS312/R. 
4. United States – Anti-dumping measures on oil country tubular goods (OCTG) from 
Mexico 
(a) Report of the Appellate Body (WT/DS282/AB /R) and Report of the Panel (WT/DS282/R) 
56. The Chairman  drew attention to the communication from the Appellate Body contained in 
document WT/DS282/8 transmitting the Appellate Body Report pertaining to the dispute:  
"United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico", which had been circulated on 2 November 2005 in  document WT/DS282/AB/R, in accordance with 
Article 17.5 of the DSU.  He reminded delegati ons that the Appellate Body Report and the Panel 
Report pertaining to this dispute had been circulat ed as unrestricted documents.  He recalled that   WT/DSB/M/200 
 Page 13 
 
 
Article 17.14 of the DSU required that:  "An Appella te Body report shall be adopted by the DSB and 
unconditionally accepted by the parties to the disput e unless the DSB decides by consensus not to 
adopt the Appellate Body report within 30 days follow ing its circulation to Members.  This adoption 
procedure is without prejudice to the right of Members to express their views on an Appellate Body report". 
57. The representative of Mexico
 said that the Reports that would be adopted at the present 
meeting were the latest in a series of cases on the so-called "sunset review" disciplines of the Anti-Dumping Agreement and, more specifically, on th e manner in which the US authorities made sunset 
review determinations.  The Panel had found, unequivocally, that the determination of the Department 
of Commerce (DOC) that dumping was likely to continue or recur was "not supported by reasoned 
and adequate conclusions based on the facts before it".  The United States had evidently agreed that 
its measure was illegal, as it had not even appealed that finding.  Thus, the United States must bring its WTO-inconsistent measure into conformity  with its commitments under the Anti-Dumping 
Agreement.  Mexico believed that the only way for the United States to bring its measure into 
conformity with the Anti-Dumping Agreement was by revoking it.  The continuation of the measure 
in 2001 was illegal, and it was time for this measure , which had been in place now for more than ten  
years, to be terminated.  In addition, a NAFTA pane l had declared that measure to be in violation of 
US law. 
58. Although Mexico had won the case, it had not won the appeal.  The manner in which the 
Appellate Body had dismissed Mexico's claims – particularly those related to the Sunset Policy 
Bulletin (SPB) – should be of strong systemic concern to all WTO Members.  Thus far, twice – in the 
claims brought by Argentina in "US – Oil Count ry Tubular Goods Sunset Reviews" (Argentina – 
OCTG), and by Mexico in the present case – panels  had found the SPB to be  WTO-inconsistent "as 
such" with Article 11.3 of the Anti-Dumping Agre ement. The Panel in the "Argentina – OCTG" case 
had rightly found that the relevant provisions of th e SPB were WTO-inconsiste nt as such.  However, 
the Appellate Body had reversed that finding.  It had ruled that the Panel in that case had failed to 
conduct a "qualitative analysis" of at least some of the DOC determinations to determine whether the 
DOC regarded the SPB as determinative or conclusive – and not just indicative – of likely dumping.  
The Appellate Body had thus found that the Panel had breached its obligation under Article 11 of the 
DSU. In making that  finding, the Appellate Bo dy in the "Argentina – OCTG" case had emphasized 
its view that the SPB was not necessarily WTO-consistent.  Far from it. The Appellate Body had stated that, "[t]he fact that affirmative determin ations were made in re liance on one of the three 
scenarios in all the sunset reviews of anti-dumping duty orders where domestic interested parties took 
part strongly suggests that these scenarios are m echanistically applied." The Appellate Body had 
added that "in another case", it could be properly c oncluded that the three scenarios in the SPB were 
regarded by the Department as "determinative/c onclusive of the likelihood of continuation or 
recurrence of dumping." 
59. The "Mexico – OCTG" dispute was precisely that  "other case".  The Panel in the present case 
had had all of the DOC sunset review determinati ons that had been before the "Argentina – OCTG" 
Panel.  Even more, despite Mexico's objections, the Panel in that case had deliberately delayed those  
proceedings in order to review carefully the Appe llate Body's findings.  The "Mexico – OCTG" Panel 
had conducted exactly the kind of "qualitative analys is" that the Appellate Body had found to be 
lacking in the "Argentina – OCTG" case.  Like th e earlier Panel, the Panel in the present case had 
little difficulty concluding that the SPB was indeed WT O-inconsistent as such.  It had found that "the 
SPB scenarios are treated as conclusive or determina tive in sunset reviews." In making that finding, 
the Panel had emphasized that "we are not focusing solely on the outcomes in these sunset reviews, 
but rather on our qualitative analys is of the determinations....".  It had concluded that the DOC "has 
consistently based its determinati ons in sunset reviews exclusively on the scenarios, to the disregard 
of other factors". WT/DSB/M/200 
Page 14  
 
60. Nevertheless, the Panel's findings on the WTO- inconsistency of the SPB had been reversed 
on appeal.  Once again, the fault was not with the comp laining party, but with the Panel, which in the  
Appellate Body's view, did not meet the sta ndards of the "qualitative analysis" required under 
Article 11 of the DSU.  For example, the Appellate  Body had complained about supposed failure of 
the Panel's analysis to indicate whether, in th e cases that had been raised, the DOC had wrongly relied 
on the SPB scenarios.  The Appellate Body had also stated, among other things, that the Panel had not 
explained the facts of the cases, or reveal whethe r other factors should have been taken into account 
by the DOC.  This fact should give all Members pause.  WTO Members had been unable to enforce 
their rights in successive cases on th e basis of factors entirely beyond their control, such as the 
manner in which the Panel described its analysis.  Such  a factor was also entirely extraneous to what 
should be the real issue – the violation of the An ti-Dumping Agreement by the United States, not the 
manner in which the Panel had conduc ted or explained its analysis. 
61. Consequently, the way the issue had been dealt with raised concerns about the security and 
predictability of WTO dispute settlement system, as well as the enforceability of underlying rights and obligations of Members.  The sunset provision of the Anti-Dumping Agreement was becoming the  
most litigated clause in the WTO Agreement.  Th e SPB had been universally criticized, and it had 
been definitively condemned by two Panels as in consistent with Article 11.3.  Yet each time the 
Panels had tried to follow the Appellate Body's gui dance, their analysis, or their description of the 
analysis, had been the basis for reversal by the A ppellate Body – not on the merits, but on the failure 
of the Panels to conduct an elusive and ill-define d "qualitative analysis." In  the meantime, the SPB 
escaped condemnation, and the United States kept  rendering sunset decisions based on the 
presumptions of the SPB.  Something was obviously wrong since in 227 out of 227 of the sunset 
reviews, the DOC had determined that dumpi ng would be likely to continue or recur. 
62. As all Members were aware, WTO dispute se ttlement was a major undertaking, requiring a 
significant commitment of resources both from the litigating governments as well as the affected 
private industries.  An aggrieved Member would be willing to commit such resources where its rights 
were violated, and where it was confident that the WTO would provide a remedy.  Unfortunately, in 
at least some cases – those involving the key discip lines of the sunset review provision of the Anti-
Dumping Agreement – it was now by no means clear that the WTO could or would provide a remedy.  All Members should be seriously concerned that th eir rights were being denied because of the conduct 
of Panels.  For that reason, all WTO Members – not just Mexico – had lost as a result of this Appellate Body's decision.  Article 3.2 of the DSU provided that the dispute settlement system "serves 
to preserve the rights and obligations of Members under the covered agreements".  Unfortunately, the 
Appellate Body decision in the present case fell far short of that standard, as Mexico's rights under  
Article 11.3 of the Anti-Dumping Agreement had been denied, not preserved.  Mexico invited Members to reflect on the serious implications of the Appellate Body's Report.  Mexico hoped that 
such profound systemic defects would not be re peated by the Appellate Body in future cases. 
63. He regretted that time would not permit to discuss all other aspects of the decision, but he 
would be remiss if he did not also bring to the a ttention of Members two other very troubling aspects 
of the Appellate Body's Report. First, the Appella te Body dismissed Mexico's argument that a WTO-
consistent finding of likely dumping was a legal pr edicate to a WTO-consistent finding of likely 
injury.  The Appellate Body had stated that, "the 'r eview' contemplated in Article 11.3 is a 'distinct' 
process with a 'different' purpose from the original  investigation".  Regardless of whether the 
Article 11.3 review process was really so distin ct from the originating investigation – a highly 
questionable proposition – the Appellate Body had negated one of the key principles of the Anti-
Dumping Agreement:  i.e. causation.   Indeed, the Appellate Body ha d recognized in the same Report 
that: "Article VI of GATT 1994 establishes the fundame ntal principle that there must be a causal link 
between dumping and injury to a domestic industry,  if an anti-dumping duty is to be levied on a 
dumped product." The Anti-Dumping Agreement – in cluding Article 11.3 – implemented Article VI 
of GATT 1994.  It stretched the bounds of credulity  to believe that the drafters of the Agreement 
intended the "fundamental principle" of causation to  be established in the investigation and present  WT/DSB/M/200 
 Page 15 
 
 
throughout the life of the order, but then had merely  assumed to exist at the very point in the process 
in which Members were obligated to terminate the measure, subject to a limited exception.  Even 
more disturbing was the direction taken by the Appe llate Body's decisions relating to that type of 
review.  First, by adopting an extremely literal interpretation of the Anti-Dumping Agreement, the 
Appellate Body had stated that these reviews we re different from Article 5 investigations.  
Subsequently, the Appellate Body ha d determined that, despite the clear language of footnote 9 of the 
Anti-Dumping Agreement, an authority was not oblig ated to comply with all of the disciplines 
established in Article 3.  Members were told that an authority did not have an obligation to comply 
with one of the basic principles established in  Article VI of GATT 1994 and the Anti-Dumping 
Agreement:  i.e. determination of the existence of a causal relationship between the likely dumping 
and the likely injury. 
64. The facts of the case in question highlighted the systemic problem that resulted from a finding 
that no such relationship had to be determined. In the case in question, the Panel had found that the 
determination of likely dumping of Mexican OC TG was illegal, and the United States had not 
appealed that finding.  Nonethel ess, the Panel had upheld the ITC' s determination of likely injury, 
which was based on the likely volume, price effe ct, and impact of the imports that the DOC 
determined should be likely to be dumped.  Mexico  asked Members:  "How is it possible to confirm 
the affirmative likely injury determination if the determination of likely dumping was found to be 
illegal?".  Mexico very much concerned that the sun set reviews were beginning to be converted into a 
simple "extension" of the original investigation,  with the continued dilu tion of the negotiated and 
explicit obligation to terminate the anti-dumping duties after five years. 
65. Second, the Appellate Body had also dismissed Mexico's claim that the Panel had erred in 
failing to make a specific finding that the United States had no legal basis to continue its anti-dumping measure beyond the five-year period established by Artic le 11.3.  Mexico wished to point out that in 
"US – Corrosion-Resistant Steel Sunset Review", th e Appellate Body had ruled that: "Members are 
required to terminate an anti-dumping duty within five  years of its imposition 'unless' ...  in the review 
the authorities determine that the expiry of the du ty would be likely to lead to continuation or 
recurrence of dumping..." But, under the Appellate Bo dy's new interpretation in this case, what used 
to be an obligation to determine likelihood of dumpi ng "in the review" had been changed to a right to 
"cure" a WTO-inconsistent likelih ood determination during a reasonable time for implementation.  If 
the violation of time-bound obligations could be cured ex-post, then WTO Members should wonder 
what was the value of this type of obligations.  Ag ain, Mexico feared that the Appellate Body's ruling 
on this issue maybe used to diminish the right s and obligations negotiated by Members.  The 
Appellate Body's ruling could be misinterpreted to  negate one of the fundamental principles of the 
Agreement: any dumping order that failed to meet th e limited exceptions of Article 11.3 simply could 
not be extended beyond five years, and it must be terminated.  Mexico would pursue that point 
through the implementation process to ensure that st rict adherence to the substantive disciplines of 
Article 11.3 was required in order to extend the meas ure beyond five years.  This was the substantive 
obligation and the corresponding right agreed by  the Members, and Mexico was committed to 
ensuring that that right was in no way diminished  through the dispute settlement process. With these 
observations, Mexico wished to join other Memb ers in adopting the Panel and the Appellate Body 
Reports at the present meeting. 
66. The representative of  the United States
 said that his country wished to begin by thanking the 
Appellate Body and the members of the Panel for thei r work in this dispute, as well as to thank the 
Secretariat for their assistance to the Appellate Body  and Panel.  The United States was pleased that 
the Appellate Body had upheld the Panel's findings on likelihood of injury and the margin likely to 
prevail, and that the Appellate Body had  reversed  the Panel's finding that the SPB was not consistent 
with US WTO obligations.  The United States co mmended the analyses and findings of both the 
Appellate Body and the Panel with respect to all in jury-related issues.  In a well-reasoned analysis, the 
Appellate Body, like the Panel, had found that th ere was no requirement that a Member apply the 
provisions of Article 3 in a sunset review.  They al so applied the correct standard of review in finding WT/DSB/M/200 
Page 16  
 
that the United States had complie d with its obligations in determ ining likelihood of continuation or 
recurrence of injury.  The United States was also pleased that the Appellate Body had reversed the 
Panel's finding that the SPB was inconsistent with Article 11.3 of the Anti-Dumping Agreement.  In 
contrast to the view expressed by Mexico in its st atement at the present meeting, this Appellate Body  
finding in fact had reinforced certain core princi ples of the dispute settlement system:  namely, the 
principles that a complaining party must demonstrate its case based on a careful, reasoned analysis 
supported by evidence, and that Panel's findings must  have a solid factual and analytical basis.   
Mexico had stated at the present meeting that so me inferences could be drawn from the US decision 
not to appeal a part of the Panel Report.  In fact, there was no basis for Mexico to attribute any special 
significance to the US decision not to appeal  a narrow panel finding on the particular US 
determination at issue.  The Panel itself had stressed  that its finding was a procedural one that might 
not affect the outcome of the determination.  Th e United States hoped Mexico was not suggesting that 
parties must in every dispute be compelled to a ppeal every issue to avoid inferences of any kind. 
67. The representative of the European Communities
 said that the EC welcomed the reiteration by 
the Panel that the Sunset Policy Bulletin (SPB) was a measure that might be challenged as such within 
the WTO system and noted, with satisfaction, that this finding was not subject to appeal.  However, 
there were other findings in the dispute which were of  concerns to the EC.  First, the Appellate Body 
had reversed the Panel's finding that the SPB had breached per se  the obligation under Article 11.3 of 
the Anti-Dumping  Agreement to conduct an investigati on taking into consideration all relevant facts.  
The Appellate Body had considered that the Panel had failed to establish that the USDOC applied the 
pre-established scenarios and presumptions linked to these scenarios of the sunset policy bulletin in 
every case.  For the EC, the question was not whether the SPB mandated a WTO inconsistent 
behaviour in all cases, but whether the norm was c onform to the WTO obligation.  Clearly, the SPB  
directed USDOC to normally consider exclusively past volume of dumped imports and past dumping 
and apply presumptions without co nsideration of all the facts and circumstances that might be 
relevant to assess whether dumping was likely to continue or recur.  It was only in limited 
circumstances and after the interested party had satisfied USDOC that good cause existed that other 
factors might be considered.  This clearly run against the WTO provision that required from the investigating authority to conduct in all ci rcumstances a fully-fledged investigation. 
68. Second, the EC had in different disputes defended that the disciplines of the Anti-Dumping 
Agreement applicable to the application of the anti-dumping measure in the first place should apply 
mutatis mutandis  when it came to prolong its life for another five years.  This was particularly true for 
Articles 2 and 3 of the Anti-Dumping Agreements, which contained the provisions defining the two 
key concepts of dumping and injury.  The conclusi on that Article 3 did "not normally apply" which 
had been reached in the "Argentina – OCTG" case a nd renewed in the dispute in question had  added 
to the earlier finding in Corrosion-resistant steel from Japan that Article 2 did not normally apply 
either to sunset reviews created legal uncertainties.   The absence of clear disciplines applicable to 
sunset reviews could only weaken the effectiv eness of the obligation to terminate anti-dumping 
measures after five years which had been consid ered yet as a main achievement of the Uruguay 
Round. 
69. The representative of Hong Kong, China
 said that the dispute under consideration was the 
latest of a series of cases brought before the WTO in respect of the conduct of "sunset reviews" of anti-dumping orders.  Hong Kong, China appreciated th e work of the Panel, the Appellate Body and 
the Secretariat on this case, but considered that th e Panel and the Appellate Body's rulings had also 
exposed some fundamental difficulties with the sunset review provisions in the Anti-Dumping 
Agreement.  His delegation wished to highlight one particular issue, namely, the issue of causation in 
a sunset review.  The Appellate Body had held that, while Article  11.3 required a nexus between the 
"expiry of an anti-dumping duty" and the continua tion or recurrence of dumping and injury, on its 
face Article 11.3 did not require investigating author ities to establish the existence of a "causal link" 
between likely dumping and likely injury.  That inte rpretation caused several difficulties.  First, it 
meant that while the original imposition of an  anti-dumping duty required the establishment of  WT/DSB/M/200 
 Page 17 
 
 
dumping causing injury to the domestic industry, a lower standard was sufficient to justify the 
continuation of a dumping duty upon "sunset review s".  However, Article 11.1 provided that "an anti-
dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping 
which is causing injury  [emphasis added] ", and the Appellate Body stated4 that "[a] causal link 
between dumping and injury to the domestic i ndustry is thus fundamental to the imposition and 
maintenance  [emphasis added]  of an anti-dumping duty under the Anti-dumping Agreement".  It was 
thus difficult to reconcile the requirement of Article  11.1 with the interpretation that Article 11.3 did 
not require establishment of the existence of a cau sal link between likely dumping and likely injury.  
Moreover, if the interpretation of Article 11.3 w as extended to reviews under Article 11.2 which, on 
its face, also did not require investigating aut horities to establish a causal link between likely dumping 
and likely injury, this would render Article 11.1 whol ly meaningless.  Third, that interpretation was 
also difficult to reconcile with the structure of Ar ticle 11.3 under which, in the Appellate Body's own 
words, "the termination of the anti-dumping duty at the end of five years is the rule and its 
continuation beyond that period is the "exception". 
70. The Panel and the Appellate Body Reports ha d also exposed the problem with "sunset 
reviews" that there was very little guidance in Article 11.3 on what needed to be done to assess 
whether the expiry of an anti-dumping duty would be "likely to lead to con tinuation or recurrence of 
dumping and injury".  Much room was left for data  interpretation and the dr awing of conclusions.  
The lack of certainty in the conduct of sunset revi ews had led to a serious problem that, once an anti-
dumping order was imposed; the sun never set, despite the original intention of Article 11.3 that an 
anti-dumping order should, as a rule, expire no late r than five years from its imposition.  Members 
would, therefore, have to continue their efforts to  find a satisfactory solution to this problem in the 
current negotiations.  With the foregoing observations, Hong Kong, China urged the United States to take prompt action to bring its inconsistent measure into conformity with the Anti-Dumping 
Agreement. 
71. The representative of Argentina
 said that his country welcomed the adoption of the Panel 
Report, which affirmed, once again, the inconsistenc y of a sunset review procedure employed by the 
United States.  In this case, those procedures were also  the subject of a complaint by Argentina.  As a  
third party, Argentina had argued strongly that the Appellate Body should maintain the finding made 
by the Panel on the inconsistency as such of th e Sunset Policy Bulletin (SPB).  Consequently, 
Argentina could not hide its deep -seated disappointment, surprise a nd concern – feelings which would 
surely be shared by other Members – when faced by a further reversal by the Appellate Body of a 
finding of inconsistency of the SPB made by a Pa nel.  Argentina's surprise was even greater on 
account of the grounds on which the Appellate Body had decided to overturn the Panel's finding.  
Notwithstanding the Panel's decision to follow the lin e of reasoning suggested by the Appellate Body 
itself in the case "Argentina – OCTG", the finding of inconsistency had been reversed, not – as 
occurred in that case – on account of the absence of a "qualitative analysis" by the Panel with regard 
to some of the over 200 cases presented as proof of th e consistent application of the SPB, but because 
it had been understood that the qualitative analysis u ndertaken was not sufficiently explicit.  And that 
was so despite the fact that the Appellate Body had expressly recognized that the cases presented as 
evidence strongly suggested that the three SPB scenarios were applied in a mechanical way.   In view 
of that situation, Argentina could not avoid feeling that the threshold established for a complaining Member to show the inconsistency as such of the SPB with the Anti-Dumping Agreement was not 
only virtually unattainable – since it largely depe nded on a factor entirely outside its control as the 
manner in which the Panel decided to focus its anal ysis – but also unforeseeable and likely to change.  
An outcome of this nature cast doubt on the predic tability of the dispute settlement system and its 
capacity to protect the rights and obligations of Memb ers.  Argentina hoped that, in the interests of the 
system, the United States would implement the conclusi ons of the Reports to be adopted at the present 
meeting, bringing the measures declared to be WTO- inconsistent in line w ith its WTO obligations 
with the speed which the safeguarding of the rights of the complaining Member required. 
                                                     
 
4 Paragraph 117 of the AB Report. WT/DSB/M/200 
Page 18  
 
72. The representative of Canada
 noted that it was not just complainants that had rights in dispute 
settlement, but responding parties as well as they were  presumed to be acting consistently with the 
WTO Agreement unless proven otherwise.  Where ev idence was only a "strong suggestion" as the EC 
and Argentina had suggested, it did not amount to  proof and a responding Member was entitled to 
benefit from the presumption of good faith complia nce.  Panels that could only find "strong 
suggestion" of a WTO violation might not determ ine that a WTO violation had been established. 
73. The representative of Argentina  said that by referring to the Appellate Body's recognition of 
the fact that the evidence suggested  that three SPB scenarios had been  applied in a mechanical way, 
he was not trying to say that this should become proof .  He had just mentioned that to highlight that 
the Appellate Body was setting a standard of pr oof which was very high, virtually inaccessible, 
unpredictable and changed constantly. 
74. The DSB took note  of the statements and adopted  the Appellate Body Report contained in 
WT/DS282/AB/R and the Panel Report contained in WT/DS282/R, as modified by the Appellate 
Body Report. 
5. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/302) 
75. The Chairman  drew attention to document WT/DSB /W/302, 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/302. 
76. The DSB so agreed . 
6. European Communities – Customs classifica tion of frozen boneless chicken cuts 
(a) Statement by Brazil  
77. The representative of Brazil , speaking under "Other Business", said that, on 
22 November 2005, her country had circulated a requ est for arbitration pursuant to Article 21.3(c) of 
the DSU, in order to determine a reasonable peri od of time for the implementation of the DSB's 
decisions in the case:  "European Communities – Cu stoms Classification of Frozen Boneless Chicken 
Cuts" (DS269).  At the present meeting, Brazil wish ed to register its dissatisfaction with the 
unjustifiable delay of the EC in presenting its prop osal on such a reasonable period of time.  She 
recalled that the Appellate Body Report and the Pa nel Report, as modified by the Appellate Body 
Report, had been adopted on 27 September 2005.  On 18 October 2005, the EC had stated its intention 
to implement the DSB's recommendations and to contact the complainants "in the coming days". 
However, it was only after several attempts by the comp lainants to meet with the EC that the EC had 
finally agreed to hold a meeting to put forward its  proposal on a reasonable period of time and on the 
modalities of implementation.  That meeting had taken place on 18 November 2005, one week after 
the expiration of the 45 day-period laid down in Article 21.3(b) for reaching an agreement on a 
reasonable period of time;  one month after the EC's statement on implementation and almost two 
months from the adoption of the Reports in Oct ober 2005.  For reasons of confidentiality, Brazil 
would not enter into the discussion on terms and the conditions presented by the EC to implement the 
DSB's recommendations, which left Brazil no ot her option but to request arbitration under 
Article 21.3(c) of the DSU. 
78. The representative of the European Communities  said that the EC was a little bit perplexed to 
hear Brazil's statement.  The EC had been, through out this case, in very close contact to discuss a 
reasonable period of time.  It was true that some de lays had occurred.  But such delays were primarily 
linked to the holidays which traditionally occurred in  Brussels around 1 November.  His delegation in  WT/DSB/M/200 
 Page 19 
 
 
Geneva had been in frequent contacts with Brazil's delegation.  The EC had met as early as previous 
Friday and was very likely to meet again in the c ourse of the week, as provided for in Article 21.3 of 
the DSU.  Brazil was not the only complainant in the case under consider ation and had not yet 
received a reply to its initial proposal from the ot her co-complainant.  He noted that the other 
co-complainant had not yet filed a request for arbitration regarding this issue. 
79. The DSB took note  of the statements.   
 
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