RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/273 
6 November 2009 
 (09-5544) 
Dispute Settlement Body 
31 August 2009  
 
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 31 August 2009  
 
Acting Chairman:  Mr. Mario Matus (Chile) 
  
 Prior to the adoption of the Agenda
, Amb. Mario Matus, the Chairman of the General 
Council, welcomed delegations and said that he had been asked to chair the present meeting in the 
absence of Amb. John Gero, the Chairman of the DSB.   He noted that this was in accordance with the 
Rules of Procedure for meetings of the Dispute Settlement Body which provided that if the DSB 
Chairperson was absent from any meeting or part th ereof, the Chairperson of the General Council, or 
in the latter's absence the Chairperson of the Trade Po licy Review Body shall perform the functions of 
the DSB Chairperson.   Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................5  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........6  
(d) European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Communities..............................................................6  
(e) European Communities – Regime for the importation, sale and distribution of 
bananas:  Second recourse to Article 21.5 of  the DSU by Ecuador:  Status report by 
the European Communities....................................................................................................... ..7 
(f) Brazil – Measures affecting imports of retread ed tyres:  Status report by Brazil .....................10  
(g) United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing"):  Status repor t by the Unite d States........................................................................10  
2. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ..........................................11  
(a) Statements by the European Communities and Japan ..............................................................11  WT/DSB/M/273 
Page 2  
 
3.
 Korea – Measures affecting the importation of bovine meat and meat products 
from Canada.................................................................................................................... ........13  
(a) Request for the establishment of a panel by Canada ................................................................13  
4. United States – Anti-dumping admini strative reviews and other measures 
related to imports of certain orange juice from Brazil........................................................13  
(a) Request for the establishment of a panel by  Brazil...................................................................13  
5. United States – Measures relating to zeroing and sunset reviews:  Recourse 
to Article 21.5 of the DSU by Japan ......................................................................................14  
(a) Report of the Appellate Body and Report of the Panel.............................................................14  
6. China – Measures affecting imports of automobile parts ...................................................20  
(a) Statement by Canada, also on behalf of the EC and the United States.....................................20  
 
 
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.81) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.81) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.56) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.19 – WT/DS293/31/Add.19) 
 
(e) European Communities – Regime for the importation, sale and distribution of bananas:  
Second recourse to Article 21.5 by Ecuador:  Status report by the European Communities (WT/DS27/96/Add.7) 
 (f) Brazil – Measures affecting imports of retreaded tyres:  Status report by Brazil 
(WT/DS332/19/Add.5) 
 
(g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/34) 
  
1. The Chairman
 recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establishment of the reasonable 
period of time and shall remain on the DSB's Agenda  until the issue was resolved.  He proposed that 
the seven sub-items under Agenda item 1 be considered separately. 
(a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.81) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.81, 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.  WT/DSB/M/273 
 Page 3 
 
 
3. The representative of the United States  said that his country had provided a status report in 
this dispute on 20 August 2009, in accordance with Ar ticle 21.6 of the DSU.  As had been noted in 
that status report, a number of legislative proposals that would implement the DSB's recommendations and rulings in this dispute had b een introduced in the current Congress, which had 
convened in January 2009.  The US administrati on was working with the US Congress to implement 
the DSB's recommendations and rulings. 
4. The representative of the European Communities
 said that, at the present meeting, the 
United States was presenting its eighty-first status re port in this dispute.  The EC hoped that the new 
US authorities would now take steps to finally implement the DSB's ruling and resolve this matter. 
5. The representative of Cuba  said that, at the 20 July 2009 DSB meeting, the United States, in 
response to urgent calls by numerous Members to co mply with the rulings of the Appellate Body in 
this case, had argued that the credibility of the dispute settlement system remained intact, as 
demonstrated by the fact that new cases were be ing brought to the WTO.  However, as long as there 
were unresolved cases on the Agenda item regarding surveillance of the implementation of the DSB's 
recommendations, the system would not have fully accomplished its mission.  The main objective of 
the dispute settlement mechanism was to have me asures, which were inconsistent with the WTO 
Agreements eliminated, and this meant all measure s, without exception.  Cuba had requested the 
United States to provide information to the DS B, which was responsible for monitoring the 
implementation of the recommendations, on the concrete  steps being taken to comply with the rulings, 
which had been made more than seven years ago.  Unfortunately, the US status reports continued to 
be vague and repetitive and, contrary to the require ments set out in Article 21.6 of the DSU, did not 
provide information about progress made.  It was eviden t that it was not possible to give an account of 
progress that had not been made.  In July 2009, Cuba had updated Members on the legislative projects 
relating to Section 211.  No changes had been r ecorded in 2009, there was no serious discussion on 
this issue nor was the US administration working wi th the US Congress to find a legislative measure 
aimed at repealing the legislation, which had been in force for more than ten years.  In 2002, the 
Appellate Body had found that the legislation in question violated the national and the most-favoured-
nation treatment obligations contained in the TR IPS Agreement, which were among the principal 
pillars of the WTO.  Cuba noted that the press ha d reported on the July meeting between the US Trade 
Representative and the EU Trade Commissioner, whic h had been held to discuss pending trade issues 
between the United States and the EC.  However, the Section 211 dispute did not appear on the agenda of issues to be resolved in the coming months .  As had previously been stated, both sides must 
take effective action to end this dispute.  The onl y acceptable way forward was to repeal Section 211.  
As long as Section 211 remained in force, both parties to the dispute would be promoting the non-observance and violation of intellectual property rights .  Both parties were concerned about piracy and 
counterfeiting of products to the point of detaining generic medicines legally transported from one 
country to another, but ignored the fact that Bar cardi sold alcoholic beverages in Florida using the 
brand name Havana Club.  Finally, Cuba, once again, urged that measures be taken as soon as 
possible to resolve this long-standing dispute. 
6. The representative of Ecuador
 said that his country thanked the United States for its status 
report, which regrettably demonstrated little pr ogress towards compliance.  Ecuador fully supported 
the statement made by Cuba on this matter.  Once again, Ecuador recalled that Article 21 of the DSU 
expressly referred to prompt compliance with the DSB's rulings and recommendations, in particular 
with regard to matters affecting the interests of developing countries.  It was the United States that 
closely monitored compliance by all Members with their WTO obligations and had expressed, in different WTO Councils and Committees, its systemic  concerns regarding some of the commitments 
undertaken and had drafted internal reports about  other countries concerning compliance with their 
obligations in relation to intellectual property right s.  Therefore, if the United States wished to 
promote coherence, it should be setting a good ex ample.  Ecuador, once again, urged the US 
administration and Congress to speed up compliance with the DSB's rulings and recommendations by repealing Section 211.  WT/DSB/M/273 
Page 4  
 
7. The representative of India
 said that her country thanked the United States for its status report 
and its statement.  However, it was regrettable th at the new US Congress had not begun to consider 
any implementation action pertinent to this case, d espite the endeavours of the US administration and 
the appeals of WTO Members.  As had been men tioned by previous speakers, the situation of non-
compliance in this dispute was seriously damagi ng the credibility of the WTO dispute settlement 
system.  India was confident that the US administra tion would continue to work with the US Congress 
in a constructive manner with a view to  implementing the DSB's recommendations.  
8. The representative of China  said that his country thanked the United States for its eighty-first 
status report and its statement.  Regrettably, ther e was nothing new in the report, and the United States 
had not indicated when the matter would be resolved after more than seven years since the adoption of 
the DSB's recommendations and rulings.  China, ther efore, supported the statements made by the EC 
and Cuba, since the situation of non-compliance seriously damaged the authority of the TRIPS 
Agreement and the credibility of the WTO dispute se ttlement system.  China, once again, urged the 
United States to comply with the DSB's recommendations without further delay. 
9. The representative of Brazil  said that his country thanked the United States for its status 
report in this dispute.  Brazil joined previous speakers who had expressed serious concerns about the 
prolonged situation of non-compliance.  In this c onnection, Brazil urged the United States to take all 
the necessary steps to comply w ith the DSB's recommendations and rulings as quickly as possible. 
10. The representative of the Bolivarian Republic of Venezuela  said that his delegation noted the 
status report presented by the United States pertai ning to the Section 211 dispute.  His country 
endorsed the need to end the economic, commercial and financial blockade, which had been imposed 
by the United States on Cuba.  There must be a ba lance between demands and compliance, and rights 
must always be accompanied by responsibilities.  The United States was one of the countries which 
made most demands of the WTO, thereby generati ng an unavoidable responsibility in terms of its own 
conduct.  As stated by Cuba:  "doing is the best way of saying".  The current economic and financial 
crisis, which had started in the United States, had, once again, claimed as its direct victims developing 
countries which, unlike developed countries, did not have  millions of dollars at their disposal to revive 
their economies and tackle the imbalances which,  though economic in principle, had social 
repercussions.  Repealing Section 211 would greatly  help Cuba, and would be a clear signal from the 
new US administration that there was a real commitment to a world at peace – which could only be possible when injustice was reduced.  Section 211 w as unjust, illegitimate and illegal, and called into 
question the US commitment to comply with the in ternational treaties to which it was signatory.  The 
United States had been pushing back the agreed deadlin es for the repeal of Section 211.  By so doing, 
the United States had undermined the credibility of the WTO, but its non-compliance had gone unpunished.  However, the harm that this stance  caused to the Cuban people was even greater.  
Postponement was an effective strategy in a world where things were instantly picked up by the 
media;  where "urgent news" consistently receive d more coverage than important issues, thereby 
benefiting those who decided to break the rules,  since after a while, those cases were not news 
anymore.  But this could not be the way in whic h a multilateral organization like the WTO operated, 
where it had been claimed that one of its greatest  successes was the credib ility of the DSB.  His 
country, therefore, urged the United States to take  steps, as a matter of urgency and necessity, to 
comply with its obligations under the TRIPS Agreemen t, so that delegations did not have to hear, 
every month, statements made by the United States about its intention to comply and about the work 
carried out by the US administration and Congress.  
11. The representative of Viet Nam
 said that his country thanked the United States for its status 
report.  The dispute settlement mechanism was a ve ry important mechanism to ensure the balance 
between the rights and obligations of WTO Members.  Therefore, like other Members, Viet Nam urged the United States to promptly bring its meas ures into compliance with the DSB's rulings and 
recommendations in this dispute.   WT/DSB/M/273 
 Page 5 
 
 
12. The representative of Costa Rica  said that his delegation had noted the status report submitted 
by the United States in relation to this case.  Cost a Rica stressed the importance of complying with the 
provisions of Article 21 of the DSU, which refe rred to the speedy comp liance with the DSB's 
decisions.  Costa Rica hoped that the United States would find a prompt solution to enable it to comply with the findings in this case. 
13. The representative of Argentina
 said that his country, once again, wished to join previous 
speakers who had referred to the prejudicial effect  on all WTO Members of the failure to implement 
the DSB's recommendations.  Argentina, therefore, urge d the parties to this dispute, and in particular 
the United States, to take the n ecessary steps to ensure that this  issue could finally be settled. 
14. The representative of Chile  said that his country had also noted the US status report pertaining 
to this dispute.  As had been stated at past DS B meetings, Chile had a serious systemic concern about 
the US failure to comply in this long-standing disp ute.  In Chile's view, the US failure to comply 
seriously damaged the system.  Chile, therefore,  urged the United States to take the necessary 
measures, in a timely fashion, to finally comply with the findings in this dispute. 
15. The representative of the United States  said that, in response to the statements made by some 
Members that this dispute raised concerns for the dispute settlement system, and as indicated at prior 
DSB meetings, the United States did not believe that  those concerns were well-founded.  First, the 
United States reiterated its intention to implem ent the DSB's recommendations and rulings and had 
made monthly status reports to this end.  This s howed a commitment to the dispute settlement system.  
Second, the record of compliance for WTO Memb ers generally, and for the United States in 
particular, was good.  Third, if the situation in  this particular dispute was having systemic 
consequences, one would expect Members to be demo nstrating less interest in bringing disputes to the 
WTO, but the facts did not bear this out.  In f act, since the previous summer, Members had filed 20 
consultation requests, which would not seem to refl ect a weakening in the confidence that Members 
had in the dispute settlement system. 
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.81) 
17. The Chairman  drew attention to document WT/DS184/ 15/Add.81, 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 20 August 2009, 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.  With 
respect to the DSB's recommendations and rulings that had not already been addressed by the US 
authorities by 23 November 2002, the US administration would work with the US Congress with respect to appropriate statutory measures that would resolve this matter. 
19. The representative of Japan
 said that his country thanked the United States for its statement 
and its status report.  Japan noted the US report that the United States had taken certain measures to 
implement part of the DSB's recommendations  in November 2002.  Japan hoped that the 
United States would soon be in a position to report to the DSB a tangible progress for the remaining 
part of the DSB's recommendations and rulings.  A full and prompt implementation of the DSB's 
recommendations and rulings was "essential to the effective functioning of the WTO and the WT/DSB/M/273 
Page 6  
 
maintenance of a proper balance of th e rights and obligations of Members".
1  Japan called on the 
United States to fully implement the DSB's recommendations in this long-standing dispute without further delay. 
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.56) 
21. The Chairman  drew attention to document WT/DS160/ 24/Add.56, 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 20 August 2009, in accordance with Ar ticle 21.6 of the DSU.  In July 2009, the EC 
Trade Commissioner and the US Trade Representati ve had met and had announced that they had 
exchanged ideas on this dispute.  The US administrati on would continue to conf er with the EC, and to 
work closely with the US Congress, in order to reach  a mutually satisfactory resolution of this matter. 
23. The representative of the European Communities  said that the United States had again 
reported non-compliance.  The EC was aware th at the United States was in favour of strong 
intellectual property protection throughout the worl d, and thus hoped that the United States would 
lead by example.  Therefore, in the status report, the EC would have preferred to have read that the 
US administration "was working" with the US Congress, instead of "would work" in an indefinite future.  The EC remained ready to work with th e US authorities towards the complete resolution of 
this case, and hoped that the financial loss suffered by the EC industry could be brought to an end 
soon. 
24. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.19 – WT/DS293/31/Add.19) 
25. The Chairman  drew attention to document WT/D S291/37/Add.19 – WT/DS293/31/Add.19, 
which contained the status report by the Europ ean Communities on progress in the implementation of 
the DSB's recommendations in the case concerning th e EC's measures affecting the approval and 
marketing of biotech products. 
26. The representative of th e European Communities  said that the EC regulatory procedures on 
biotech products continued to work as foreseen in the legislation.  Twenty-one GMO products had 
been authorized in the EC since the date of est ablishment of the WTO Panel.  Others were being 
processed in accordance with app licable law.  The authorization of three GM maize events2 had been 
submitted to the regulatory Committee in July and were now being transmitted to the Council, and 
EFSA had delivered positive risk  assessments on one GM cotton and four GM maize varieties.3 
27. The representative of Argentina  said that his country, once agai n, welcomed the EC's status 
report.  Argentina wished to state that it continue d to monitor with interest both the approval process 
and the status of implementation in the EC memb er States.  The positive outcome achieved thus far 
                                                      
1 Article 3.3 of the DSU. 
2 These GM maize events are the following: MON89034, MON88017 and 59122xNK603. 
3 Cotton GHB614 and Maize MIR 604, MON88017xMON810, 1507x59122 and 59122x1507xNK603.  WT/DSB/M/273 
 Page 7 
 
 
through dialogue provided sufficient incentive to continue along the same path.  Accordingly, 
Argentina renewed its commitment to continue in a positive way bilateral discussions, which had 
proved so beneficial for both parties. 
28. The representative of the United States  said that his country thanked the EC for its statement.  
Regrettably, the EC had shown little, if any, progr ess in addressing the problems in the operation of 
its approval system for biotech products.  At past  DSB meetings, the United States had already noted 
the large number of biotech applications backed up  in the EC approval system.  As a result of this 
backlog, the EC currently banned the import of maize and other important agricultural products 
produced in the United States.  In fact, the backlog in the EC approval system had grown substantially 
in the years since the DSB's rulings.  The US Pane l Report had listed 27 pending biotech applications.  
That number had more than doubled.  Currently, more  than 60 biotech applications were pending, and 
the possibility for meaningful market access for biot ech products remained bleak.  The United States 
again urged the EC to take prompt steps to resolve those serious and ongoing problems in the 
operation of its biotech approval system.  
29. The representative of th e European Communities  said that the GMO regulatory regime was 
not the subject of the original Panel's findings and neither was its "operation" nor was the status of 
specific applications not dealt with in the original Panel covered by this Agenda item.  In any event, 
the GMO regulatory regime was working normally .  Its functioning should not be rigidly assessed 
purely quantitatively and in abstract, in terms of number of authorizations per year, since this was 
dependent on various product and case specific el ements, and in particular on the quality of 
applications and on the time needed by appli cants to answer requests from EFSA on additional 
scientific information.  The speedy author ization process of GM soybean MON89788 (Roundup 
Ready 2), with a decision adopted only four months  after EFSA issued its opinion, showed that EC 
authorization procedures had performed satisfactorily once a complete application was filed. 
30. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) European Communities – Regime for the importation, sale and distribution of bananas:  
Second recourse to Article 21.5 of the DSU by Ecuador:  Status report by the European Communities (WT/DS27/96/Add.7) 
31. The Chairman
 drew attention to document WT/DS27/ 96/Add.7, which contained the status 
report by the European Communities on progr ess in the implementation of the DSB's 
recommendations and rulings in the case concerning the EC's regime for the importation, sale and 
distribution of bananas. 
32. The representative of the European Communities  said that, as had been indicated at previous 
DSB meetings, the EC stood ready to implemen t the recommendation of the Panel Report by means 
of modifying its bound duty. The EC still hoped that th e rebinding could be made in the context of a 
comprehensive agreement with Latin American supp liers, an agreement that had been sought since 
the EC initiated GATT Article XXVIII negotiations back in 2004.  The EC was fully committed to 
finding very soon a final solution to this long-standi ng "banana saga".  As had been indicated in its 
status report, the EC was fully engaged in nego tiations with all Latin American supplying countries 
with the view of concluding promptly such a co mprehensive agreement.  The EC hoped that the 
negotiations could soon lead to a satis factory agreement for all suppliers.  
33. The representative of Ecuador  said that his country thanked the EC for its status report and 
noted that, once again, that report failed to provide any indication of the date by which the EC 
expected to comply with the DSB's recommendations a nd rulings in this dispute.  The EC had offered 
to the MFN banana suppliers an agreement, which was subject to a series of conditions that had gone 
far beyond the Bananas dispute, and made any un derstanding more complex.  Those conditions had WT/DSB/M/273 
Page 8  
 
nothing to do with compliance with the DSB's re commendations and rulings in the dispute won by 
Ecuador and compensation for the EC's enlargem ent claimed by Ecuador.  His country failed to 
understand the EC's refusal to meet its obligations  towards Ecuador, a country which had legal rights 
to redress the situation, includi ng the retaliation right resulting fr om past bananas disputes.  
Nevertheless, Ecuador remained open to reaching a negotiated settlement in the WTO.  This matter 
must be resolved immediately.  However, an y agreement between the parties would only be 
acceptable if it maintained the bala nce achieved in July 2008.   
34. The representative of Panama
 said that his country was deeply disappointed, though not 
surprised, by the EC's continued lack of compliance in this long-standing dispute, and reiterated that 
Panama was fully committed to defending its rights.  The issue had been on the agenda for 17 years.  
There had been 13 rulings against the EC and the obligation to comply was already a decade old.  
Panama did not expect that the EC would make such little progress in the implementation of the 
DSB's rulings.  The EC's non-compliance with the DSB's recommendations undermined the WTO and the rules agreed by all Members.  The EC status report demonstrated the main problem faced in the 
past months.  In spite of repeated complaints by a number of Members, the EC was of the erroneous 
view that Members had to reach "a comprehensiv e agreement" on numerous elements before it could 
bring itself into compliance.  Panama had unders tood from the negotiations with the EC that, as a 
prior condition to compliance, and in a manner unpr ecedented in the WTO, the EC expected the MFN 
suppliers to give up their rights in order to secure  full compliance with the DSB's decisions in this 
dispute, and to accept costs not related thereto.  Under the DSU, compliance with WTO obligations 
was not contingent on compliance with "comprehensi ve" conditions.  In Panama's view, the DSU text 
was clear in demanding that the EC complied promptly and without conditions.  He noted that the 
reasonable period of time for the EC to bring itsel f into compliance with the DSB's recommendations 
had expired many years ago.  Therefore, a ny additional delay had, by definition, been 
unreasonable.  The EC's non-compliance record in this  dispute had clearly demonstrated that the MFN 
suppliers had been more than patient  in this dispute.  Panama and other players in this dispute had 
enormous, quantifiable tariff interests.  Panama beli eved that the matter had to be resolved promptly 
and positively, in a way that would safeguard Latin  America's substantive and procedural rights.  
Panama urged the EC to find a solution, without fu rther delay, to Latin American countries' tariff 
rights and their rights arising from the EC's enlargement. 
35. The representative of Colombia
 said that his country thanked the EC for its status report and 
noted that the report had reaffirmed, for the seventh  time since January 2009, the EC's intention to 
bring itself into compliance with the DSB's recomm endations and rulings by modifying its scheduled 
tariff commitments on bananas.  Colombia had particip ated in the discussions with the EC with a view 
to concluding an agreement on bananas that would establish, among other elements, the level of the 
new EC bound tariff duty.  Colombia hoped that those negotiations would result in a fair agreement, 
which required the full commitment of the EC.  Li ke the EC, Colombia hoped that a satisfactory 
agreement which would put an end to this long-st anding dispute would soon be reached.  Colombia 
hoped that the EC would comply with the DSU obliga tion to pay particular attention to this matter, 
which affected the interests of developing countries such as Colombia. 
36. The representative of Honduras  said that his country had been involved in the Bananas 
dispute since 1995 and its legal interests had still not  been respected.  Honduras was a complainant in 
the Bananas III dispute and hoped that the EC would in fact comply with its obligations.  Honduras 
was a substantial supplier of bananas to the EC ma rket and its interests had still not been recognized 
by the EC.  This persistent failure to comply  had destroyed Honduras' position on the EC market.  
Since the EC's common bananas regime had first been  established, his country's exports had fallen by 
90 per cent.  Thus Honduras' loss had been the AC P countries' gain.  The ACP suppliers, many of 
them with stronger economies than that of Hondur as, had experienced growth of 35-40 per cent in 
their banana exports to the EC over the period in question, and some had grown considerably more.  
A study recently published by one of the economists, used by the EC on the banana issue, stated that the effects of the EC's failure to comply would become even more far-reaching.  The study had  WT/DSB/M/273 
 Page 9 
 
 
concluded that the preferential tariff of €176 pe r tonne would almost double exports from the ACP 
countries in 2016.  It had further concluded that by  2016 Latin American suppliers would not maintain 
their volumes in the EC unless the €176 per tonne was reduced to €60 per tonne.  Although the EC 
itself had now acknowledged that huge distortions ex isted, there was no evidence that the EC was 
willing to make an effort to redress this.  In its lat est status report, the EC stated that it was "engaged 
in discussions" with Latin American countries, but th e reality was in fact that it had been engaged in 
extracting concessions, not in bringing itself promp tly into compliance with the recommendations.  
Honduras was dissatisfied at the lack of progress in this dispute.  Honduras, which had suffered long 
enough, was entitled to expect prompt compliance by the EC, and on those grounds it reserved all its 
rights to achieve that end.  
37. The representative of Costa Rica  said that his country supported the statements made by 
Ecuador, Panama, Honduras and other MFN suppliers.  Costa Rica noted  the EC's status report and 
was, once again, disappointed by the EC's co ntinued failure to comply with the DSB's 
recommendations and rulings in this case.  The condi tions imposed by the EC hampered a solution to 
this dispute and were in contradiction with the st atements made by the EC regarding its willingness to 
comply with the DSB's recommendations and rulings in  this dispute.  Costa Rica, once again,  urged 
the EC to make all possible efforts to put an end to this long-standing dispute. 
38. The representative of the Dominican Republic , speaking also on behalf of the ACP countries, 
said that since this matter had been on the Agenda of the DSB over the past seven meetings, the ACP 
countries had underlined their respect for the need to implement the DSB's de cisions, notwithstanding 
their disagreement with certain recommendations reache d by the Panel and the Appellate Body in this 
dispute.  They recalled that the recommendations of the Panel and the Appellate Body committed the 
EC to a TRQ at a tariff of €75/metric tons and an out-of-quota tariff of €680/metric tons.  As stated 
previously, the ACP countries could resign themselv es to live with a literal implementation of those 
recommendations.  The EC, however, aimed to ach ieve compliance and implementation by changing 
the structure of its tariff commitments through negotiations with the MFN banana suppliers.  It 
appeared that the result of this process may be an  overall reduction of applie d and bound duty rates.  
The DSB's recommendations in this dispute did no t require such an overall reduction of average 
tariffs;  but either a literal implementation (w hich would make MFN producers worse off) or a 
rearrangement.  A decision to reduce the EC's average banana tariffs could not be justified by the need 
to comply with the DSB's recommendations, but could rather be justified in the context of the DDA 
negotiations.  This should be kept in mind when designing and implementing a solution, which should 
be based on the right reasoning and anchored and balanced out in the right context.  The ACP 
countries remained committed to supporting their part ners in finding and implementing an effective 
final solution to the "banana issue". 
39. The representative of Ghana  said that his country supported the statements made by the 
representatives of the ACP countries and the EC.  All WTO Members acknowledged that they 
belonged to one big family.  As much as all Members relied on trade to boost their respective 
economies, all must try as much as possible not to  allow trade to drive a wedge among them.  In 
finding a lasting solution to this delicate dispute on bananas, where all the parties had systemic 
interests, it was important that the dispute be addr essed in a holistic manner.  In this regard Ghana 
appealed to all parties to this dispute to exercise mo re restraint and continue to negotiate in good faith 
with a view to finding a lasting and amicable soluti on to this dispute, while taking into consideration 
the economic and social interest of third parties. 
40. The representative of Guatemala  said that, once again, his country noted with regret the fact 
that this matter was still on the DSB's Agenda.  Gu atemala urged the EC to reflect on its position and 
to ensure prompt compliance with the recommendati ons and rulings of the Panel and the Appellate 
Body.  Guatemala also hoped that the EC would pr ovide more detailed reports on the implementation 
of the recommendations and rulings in this dispute.  WT/DSB/M/273 
Page 10  
 
41. The representative of the United States
 said that his country thanked the EC for its status 
report and its statement.  He said that the reasonabl e period of time for compliance in this dispute had 
expired more than ten years ago, on 1 January 1999 .  While taking note of the EC's efforts to reach 
agreement with interested parties to resolve th e dispute, the United States also noted that the 
commercial impact of the EC's non-compliance over this very long period was undeniably large and 
damaging to a number of WTO Members.  The United States called on the EC to resolve this dispute, 
and until then, it would renew its request to the EC to  provide a status report with respect to the US 
dispute.  
42. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(f) Brazil – Measures affecting imports of retreaded tyres:  Status report by Brazil 
(WT/DS332/19/Add.5) 
43. The Chairman  drew attention to document WT/DS332/ 19/Add.5, which contained the status 
report by Brazil on progress in the implementation of the DSB's recommendations and rulings in the case concerning Brazil's measures affecting imports of retreaded tyres. 
44. The representative of Brazil
 said that, on 20 August 2009, his country had provided the DSB 
with a status report in this dispute, in accordance with  Article 21.6 of the DSU.  As had been stated in 
that report, on 24 June 2009, Brazil's Supreme Court had decided that the importation of used tyres 
into Brazil violated core constitutional precepts rela ting to the rights to health and to a balanced 
environment.  The Supreme Court had also affirmed  the legality of Brazil's import ban on used tyres 
and had revoked lower court decisions that had allo wed some companies to import used tyres into 
Brazil.  This decision by the Supreme Court reinfor ced Brazil's comprehensive strategy to deal with 
the risks to the Brazilian population associated w ith the generation, transportation and accumulation 
of used tyres.  The decision also constituted a fundamental step towards full compliance in this 
dispute, which Brazil expected to achieve in the very near future. 
45. The representative of the European Communities  said that the EC noted Brazil's sixth status 
report.  The EC noted again that Brazil had admitte d not having achieved compliance to date, and this 
despite the expiry of the reasonable period of time mo re than eight months ago.  The EC continued to 
express its understanding and support for Brazil's measu res aimed at protecting its citizens against 
diseases spread by mosquitoes that bred in abandone d waste tyres.  For that purpose, however, there 
were measures available that would actually make a difference, contrary to the selective targeting of 
certain imported products that contri buted marginally, if at all, to the problem.  The EC was deeply 
concerned about Brazil's ongoing lack of complian ce and, once again, called upon Brazil to end, 
without further delay, its arbitrary and discriminator y practices regarding retreaded tyres, and to do so 
by removing the import ban. 
46. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(g) United States – Laws, regul ations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/34) 
47. The Chairman  drew attention to document WT/DS294/ 34, which contained the status report 
by the United States on progress in the implementa tion of the DSB's recommendations in the case 
concerning US laws, regulations and me thodology for calculating dumping margins. 
48. The representative of the United States  said that his country had provided a status report in 
this dispute on 20 August 2009, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, the United States had already taken a number of steps to implement the DSB's  WT/DSB/M/273 
 Page 11 
 
 
recommendations and rulings in this dispute.  With  regard to the remaining issues, including those 
identified in the DSB's recommendations and rulings, the United States was consulting with the EC in 
order to address those issues.  
49. The representative of the European Communities  said that it was the first time, at the present 
meeting, that the US recourse to zeroing appeared on the DSB's Agenda, but unfortunately not the 
last.  The EC noted the first status report in  dispute DS294, and the acknowledgement by the 
United States that it had not yet complied with th e DSB's recommendations and rulings.  This meant 
that a large number of EC exporters had been fa ced with excessive levels of anti-dumping duties, 
inflated by zeroing, for nearly two and a half year s.  There was no disagreement about that.  The EC 
also noted that the status report did not refe r to involving the US Congress in ending zeroing in 
administrative reviews.  This confirmed the EC's vi ew that the United States could bring itself into 
compliance by administrative action.  The United States had lost many zeroing disputes, with many WTO Members.  There was only one way to address the findings contained in the Reports adopted by 
the DSB and that was for the United States to i mmediately stop applying the zeroing methodology in 
administrative reviews and to stop collecting illegally calculated duties. 
50. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
2. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Communities and Japan 
51. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Communities and Japan.  He then invited the respective representatives to speak. 
52. The representative of Japan  said that, as previously stated, his country recognized that the 
enactment of the Deficit Reduction Act of 2005 that included provisions to repeal the CDSOA was an 
important step forward.  Howeve r, the implementation of the DSB' s recommendations and rulings had 
not been completed by virtue of the transitional clause contained in those provisions.4  I n  f a c t ,  o n  
29 May 2009, the US Customs and Border Protection had issued the "Notice of Intent to Distribute 
Offset for Fiscal Year 2009"5, pursuant to the CDSOA.  As had b een explained in that notice, "the 
distribution process will continue until all entries ma de before 1 October 20 07 are liquidated and anti-
dumping and countervailing duties are collected"6 and "[b]ecause of the st atutory constraints in the 
assessment of anti-dumping and countervailing duties, the distribution process will be continued for 
an undetermined period".7  This latest action demonstrated that the CDSOA had been repealed in 
form, but remained operational and, thus, the Unite d States still failed to fully implement the DSB's 
recommendations and rulings in this dispute.  U nder those circumstances, Japan had decided to 
continue, as from 1 September 2009, its suspension of concessions and relate d obligations under the 
GATT 1994 for another one year to induce full complia nce by the United States.  Details of this 
determination were provided in Japan's no tification to the DSB, dated 14 August 2009 
(WT/DS217/56).  Japan, once again, called on the Unite d States to stop illegal distributions and repeal 
the CDSOA, not just in form but in substance, so as to resolve this dispute.  According to Article 21.6 
of the DSU, the United States was under obligation to  provide the DSB with a status report in this 
dispute "until the issue is resolved".  In this regard, Japan reserved all its rights under the DSU.  
                                                      
4 SEC. 7601(b), Deficit Reduction Act of 2005. 
5 74 Federal Register at 25814 et seq . (dated 29 May 2009). 
6 See "Notice of intent to distribute offset for Fiscal Year 2009", 74 Federal Register at 25814 et seq. , 
dated 29 May 2009. 
7 See "Notice of intent to distribute offset for Fi scal Year 2009", 74 Federal Register at 25814 et seq.,  
dated 29 May 2009. WT/DSB/M/273 
Page 12  
 
53. The representative of the European Communities
 said that, as in many previous meetings, the 
EC wished to ask the United Stat es when it would effectively stop the transfer of anti-dumping and 
countervailing duties to its industry, and finally put an end to the condemned measure.  The EC also 
renewed its call on the United States to abide by its  clear obligation under Article 21.6 of the DSU 
and to submit implementation reports in this dispute. 
54. The representative of China  said that his country thanked the EC and Japan for, once again, 
raising this matter at the DSB meeting.  China sh ared the concerns expressed by previous speakers 
and joined them in urging the United States to comply fully with the DSB's rulings. 
55. The representative of Canada  said that her country agreed with the EC and Japan that the 
Byrd Amendment remained subject  to the surveillance of the DS B until the United States ceased to 
administer it. 
56. The representative of India  said that her country thanked the EC and Japan, once again, for 
raising this matter at the DSB meeting.  India shar ed their concerns.  India remained disappointed at 
the US maintenance of those WTO-inconsistent dis bursements.  As had been mentioned by previous 
speakers, the CDSOA remained fully operational.  The disbursements made by the United States to its 
domestic industry under the Byrd Amendment affect ed the rights of other WTO Members.  India, 
therefore, urged the United States to cease its WTO-in consistent disbursement and supported the view 
that continued surveillance by the DSB was needed  as long as the United States did not comply with 
the WTO ruling. 
57. The representative of Thailand  said that his country thanked the EC and Japan for bringing 
this matter before the DSB once again.  Thailand urged the United States to cease disbursements 
under the Continued Dumping and Subsidy Offset Ac t, repeal the Byrd Amendment with immediate 
practical effect, and resume providing status reports  until such actions were taken and this matter was 
fully resolved. 
58. The representative of Brazil  said that his country thanked the EC and Japan for keeping this 
item on the DSB's Agenda.  It was clear that, until such time as the Un ited States ceased all 
disbursements made pursuant to the Byrd Amendment,  the situation of non-compliance would persist, 
and the issue would not be "resolved" within the m eaning of Article 21.6 of the DSU.  Thus, pursuant 
to Article 21.6, unless the DSB decided otherwise, the issue of implementation should be placed on the Agenda of the DSB and shall rema in there until the issue was resolved. 
59. The representative of the United States
 said that, as his country had explained at previous 
DSB meetings, the US President had signed the Defi cit Reduction Act into law on 8 February 2006.  
That Act included a provision repealing the Contin ued Dumping and Subsidy Offset Act of 2000.  
Thus, the United States had taken all actions necessary to implement the DSB's recommendations and rulings in those disputes.  The United States furt her recalled that Members had acknowledged that the 
2006 Deficit Reduction Act did not permit the distribu tion of duties collected on goods entered after 
1 October 2007.  With respect to comments regardi ng further status reports in this matter, as the 
United States had already explained at previous DS B meetings, it failed to see what purpose would be 
served by further submission of status reports repeat ing, again, that it had taken all actions necessary 
to implement the DSB's recommendations and rulings  in these disputes.  With respect to Japan's 
comments regarding its renewed retaliation measures,  the United States would be reviewing carefully 
the measures taken by Japan.  As previously obser ved, the DSB only authorized the suspension of 
concessions or other obligations as provi ded in the Award of the Arbitrator. 
60. The DSB took note
 of the statements.  WT/DSB/M/273 
 Page 13 
 
 
3. Korea – Measures affecting the importation of bovine meat and meat products from 
Canada  
(a) Request for the establishment of a panel by Canada (WT/DS391/3) 
61. The Chairman  recalled that the DSB had considered this matter at its meeting on 20 July 2009 
and had agreed to revert to it.  He drew atten tion to the communication from Canada contained in 
document WT/DS391/3, and invited the representative of Canada to speak. 
62. The representative of Canada  said that, at the 20 July 2009 DSB meeting, her country had 
presented its first request for the establishment of  a panel regarding Korea's measures affecting the 
importation of bovine meat and meat  products from Canada.  This requ est had come after more than 
six years of efforts on the part of Canada to reso lve this issue based on sci ence.  Over the years, 
Canada had continuously shown an  openness and willingness to reach a mutually satisfactory solution 
on this matter and was, therefore, surprised by Korea's affirmation at the 20 July 2009 DSB meeting that Canada had prematurely decided to resort to  dispute settlement.  Cana da had, in good faith, 
engaged in a total of 13 technical discussions w ith Korea as well as WTO consultations, all with a 
view to resolving this dispute.  Unfortunately, desp ite repeated assurances from  Korea that a mutually 
satisfactory solution was in close sight, no progress had been made.  Canadian beef was still banned 
from the Korean market, despite clear guidelines fr om the World Organization for Animal Health 
(OIE), allowing for the safe trade in beef under cond itions that Canada had met.  The panel request 
was a last resort.  Canada had already set out its reasons for proceeding with this case in its request for the establishment of a panel and would, therefore, not repeat them at the present meeting.  Pursuant to 
its request of 9 July 2009, Canada, therefore, asked , once again, that the DSB establish a panel in this 
case, with standard terms of reference. 
63. The representative of Korea
 said that his country regretted th at Canada had chosen to request 
the establishment of a panel for the second time, desp ite Korea's efforts to resolve this dispute in a 
mutually satisfactory manner, as indicated in its previous statement at the 20 July 2009 DSB meeting.  Korea understood that such a panel would be estab lished at the present meeting, in accordance with 
Article 6.1 of the DSU.  Once again, Korea wished to reiterate that Members had the right to take 
sanitary and phytosanitary measures necessary for the protection of human and animal life or health, 
in accordance with the SPS Agreement.  The di spute at hand was related to Bovine Spongiform 
Encephalopathy (BSE), which was a deadly disease, infectious to both human and cattle and for 
which no effective treatment had yet been develope d.  Sixteen BSE outbreaks had been reported in 
Canada, including two recently, in November 2008 and May 2009.  Under these circumstances, the 
SPS measures taken by Korea in this regard were indispensable to prevent the introduction of BSE 
agents into Korea, where BSE had never occurred, and to protect life and health of its people and 
animals.  Korea believed that its SPS measures were fully consistent with its relevant WTO 
obligations and was ready to de fend them before the panel. 
64. 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. 
65. The representatives of Brazil , Japan , Chinese Taipei  and the United States  reserved their 
third-party rights to participate in the Panel's proceedings. 
4. United States – Anti-dumping administrative reviews and other measures related to 
imports of certain orange juice from Brazil 
(a) Request for the establishment of a panel by Brazil (WT/DS382/4) 
66. The Chairman  drew attention to the communicati on from Brazil contained in document 
WT/DS382/4, and invited the representative of Brazil to speak. WT/DSB/M/273 
Page 14  
 
67. The representative of Brazil
 said that, on 20 August 2009, his country had requested the DSB 
to establish a panel to examine anti-dumping measures adopted by the United States on imports of Brazilian orange juice.  The request specifically challenged the use of zeroing when calculating the 
margin of dumping for exporters of orange juice from Brazil, a practice well-known to WTO 
Members, given the number of times it had already b een raised in the DSB.  Indeed, the issue of 
zeroing was obviously not a new one.  Almost a decade had passed since zeroing was first condemned 
in "EC - Bed Linen".  From 2000 to the present date, such a practice had been challenged and 
condemned several times.  The list of cases was lo ng:  "US - Hot Rolled Steel";  "US - Corrosion 
Resistant Steel Sunset Review";  "US - Softwood Lumber V";  "US - Zeroing (EC)";  "US - Zeroing 
(Japan)";  "US - Stainless Steel (Mexico)" and, more recently, "US - Continued Application (EC)", 
just to mention some of them.  The result of this  intense litigation had been a consistent and coherent 
line of decisions, finding zeroing to be "as such" and "as applied", in original investigations or in 
reviews, in any of the three methods of compar ison, inconsistent with the GATT 1994 and the Anti-
Dumping Agreement.  Despite the thousands of pa ges written on the subject and the sharp rebukes by 
the Appellate Body, the United States refused to abandon zeroing.  Except for a change in policy 
regarding the weighted-average-to-weighted-average  comparison method in original investigations, 
the United States had not yet changed its internal procedures and continued to apply zeroing in the 
calculation of dumping margins in other anti-dum ping procedures.  Brazil regretted having the 
obligation again to bring the issue of zeroing be fore the WTO Members.  Had the United States 
complied with its WTO obligations, this request woul d not have been necessary.  However, given the 
circumstances, Brazil had no choice but to request th e establishment of a panel to consider this issue 
once again.  Brazil hoped that, besides bringing relie f to Brazilian orange juice exporters subjected to 
an unfair and illegal practice, this dispute may cont ribute to persuade the United States to abandon the 
practice of zeroing and avoid any further burden on other WTO Members to re-litigate an issue in relation to which the debate should be over. 
68. The representative of the United States
 said that his country was disappointed that Brazil had 
chosen to move forward with a panel request at the present meeting.  The United States also had 
concerns with the way in which Brazil had frame d its panel request.  For example, the request 
included measures that were not in existence at the time of consultations a nd consequently could not 
have been, and had not been, consulted upon.  The United States was not in a position to agree to the 
establishment of a panel at the present meeting. 
69. The DSB took note  of the statements and agreed  to revert to this matter. 
5. United States – Measures relating to zeroing and sunset reviews:  Recourse to 
Article 21.5 of the DSU by Japan 
(a) Report of the Appellate Body (WT/DS 322/AB/RW) and Report of the Panel 
(WT/DS322/RW) 
70. The Chairman  drew attention to the communication from the Appellate Body contained in 
document WT/DS322/34 transmitting the Appellate Body Report on:  "United States – Measures 
Relating to Zeroing and Sunset Reviews:  Recourse  to Article 21.5 of the DSU by Japan", which had 
been circulated on 18 August 2009 in document WT/DS322/AB/RW, in accordance with Article 17.5 
of the DSU.  He reminded Members that the Appe llate Body Report and the Panel Report pertaining 
to this dispute had been circulated as unrestricted  documents.  He recalled that Article 17.14 of the 
DSU required that:  "An Appellate Body report sh all be adopted by the DSB and unconditionally 
accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the Appellate 
Body report within 30 days following its circulation to Members.  This adoption procedure is without 
prejudice to the right of Members to express their views on an Appellate Body report".  
71. The representative of Japan  said that his country appreciated the time and persistent efforts 
devoted to the proceedings of the Panel and the Ap pellate Body and the respective Secretariats.  The  WT/DSB/M/273 
 Page 15 
 
 
sheer volume of the submissions and evidential documen ts filed by the parties suggested that the tasks 
before them in those compliance proceedings were challenging, but the Panel and the Appellate Body 
had discharged their responsibilities in a faithful and professional manner.  Japan welcomed the 
findings and conclusions of the Panel and the Appe llate Body as well as the analysis and reasoning 
behind them.  The Panel and the Appellate Body ha d examined the matters before them rigorously 
and thoroughly, and had decided this case based on the specific facts and circumstances of the case 
pertaining to the implementation of the DSB's recommendations and rulings concerning zeroing.  
Ever since the DSB had adopted the Reports of th e Appellate Body and the Panel in the original 
proceedings, on 23 January 2007, Japan had contin uously urged the United States to cease the WTO-
inconsistent zeroing procedures both as such and as a pplied.  However, even after the expiration of 
the reasonable period of time, on 24 December 2007, the implementation by the United States was 
limited to a part of the DSB's recommendations  and rulings.  The issues presented in the DSU 
Article 21.5 proceedings which might have appeared to be complicated and technical were in fact 
straightforward.  As the Panel and the Appellate  Body had rightly found, there were no measures 
taken to fully comply with the recommendations and rulings and, where the measures taken to comply 
did exist, they were inconsistent with covered ag reements.  In other words, the United States had not 
ceased the zeroing procedures as such and as applied ex cept for in the context of weighted average-to-
weighted average comparisons in original investiga tions.  At the present meeting, Japan would neither 
repeat the discussions which had taken place during the proceedings nor summarize the findings and 
conclusions of the Reports of the Panel and the A ppellate Body.  The findings  and conclusions by the 
Panel and the Appellate Body were clear.  Nor was ther e need to refer to the relevant provisions of the 
DSU;  the Reports to be adopted at the presen t meeting of the DSB s hould be unconditionally 
accepted by the parties.  What was required was a concrete action by the United States to fully 
implement the DSB's recommendations and rulings.  A time had come for the United States to take 
immediate and concrete action to fully implement the DSB's recommendations and rulings in order to 
resolve this dispute once and for all. 
72. The representative of the United States  said that his country thanked the Panel, the Appellate 
Body, and the Secretariat staff assisting them for thei r work in this proceeding.  As an initial matter, 
with respect to the issue of zeroing, the Unite d States recognized that the Appellate Body had 
addressed the consistency of zeroing in anti-dumpi ng proceedings in a number of disputes.  The 
United States continued to take a different view of  the commitments that Members negotiated, and did 
not negotiate, concerning the use of zeroing.  None theless, the United States had publicly stated its 
intention to comply with the DSB's recommendati ons and rulings in all of these disputes.  The 
United States wanted Members to understand that  it was working actively to implement these 
recommendations and rulings, including those made in  other disputes for which the reasonable period 
of time was still ongoing.  However, as the United St ates had explained to the Appellate Body, this 
appeal was not about zeroing, but rather concerne d what a Member with a retrospective anti-dumping 
system must do to come into compliance with the DSB's recommendations and ru lings with respect to 
individual administrative reviews.  This dispute also  raised important procedural issues as to the scope 
of dispute settlement proceedings.  On both of  those questions, the Appellate Body and the 
compliance Panel had misconstrued US  obligations and had read requirements into the DSU that had 
not been agreed by Members. 
73. The United States was very concerned that the Appellate Body had, once again, rejected the 
argument that implementation of the DSB's re commendations and rulings with respect to 
administrative reviews should be determined by refe rence to the date of entry.  In doing so, the 
Appellate Body had ignored the well-established principle that the Appellate Body itself had 
recognized in prior disputes – implementation in th e WTO dispute settlement system was prospective 
in nature.  The Appellate Body's interpretation of compliance would have the United States reach 
back in time to redo determinations that had been made with respect to entries that had occurred many 
years before the end of the reasonable period of tim e, in some cases as long ago as six to seven years 
before the deadline for compliance.  And yet some how the Appellate Body had not found this to be 
retroactive or otherwise contrary to the prospec tive nature of compliance.  The United States asked WT/DSB/M/273 
Page 16  
 
Members to reflect on the implications of the Appellate Body's finding.  Members should be 
concerned with the systemic consequences that co uld flow from those findings.  For example, in 
future compliance proceedings, a similar approach could be taken with respect to border measures, 
such as ordinary tariffs, special agricultural safeg uards, tariff preferences and customs valuation.  
Members had never agreed to a dispute settlement system in which implementation was retrospective 
in nature and in which they could be required to take actions after the end of the reasonable period of 
time with respect to past entries of merchandise.  Only in subsequent disputes would all Members know more fully what consequences would follow from the Appellate Body's reasoning, but in the 
meantime Members would be left with questions and uncertainty.  In addition, the United States 
referred to the Appellate Body's analysis in US - Ze roing I (EC) (Article 21.5) ("EC I").  There, the 
Appellate Body had made a distinction between t hose measures that derived "mechanically" from the 
assessment of duties and those that  did not.  The Appellate Body had explicitly left open the question 
of whether liquidations that had occurred after th e reasonable period of time, because they had been 
delayed by judicial review, could constitute a failure to comply.  Moreover, for three of the reviews at 
issue in this proceeding – identified as Reviews 4,  5 and 6 – there were no post reasonable period of 
time effects whatsoever that could have served as the basis for a finding of inconsistency.  The 
United States was troubled that the Appellate Body had rejected its argument concerning post 
reasonable period of time liquidations.  The Appellate  Body's findings rejected the distinction the 
Appellate Body itself drew between mechani cally and non-mechanically derived measures. 
74. The Appellate Body's findings with respect to Reviews 4, 5 and 6 were also cause for concern 
and were at odds with the Appellate Body's recent a pproach in the "EC I" dispute.  It was difficult to 
understand how a measure that had not been applied after the expiration of the reasonable period of 
time could form the basis for a finding that the me asures were inconsistent as applied.  Lastly, the 
United States turned to a troublesome procedural finding by the Appellate Body, which had potential 
implications far beyond anti-dumping disputes.  The Appellate Body had affirmed the compliance 
panel's finding that a particular administrative review , Review 9, which had no t been in existence at 
the time of Japan's panel request, was properly with in the scope of the compliance proceeding.  The 
DSU, however, was clear – a measure not in existence at the time of a panel request could not fall within the scope of a dispute settlement proceeding.  The Appellate Body had viewed the fact that "we 
are dealing here with Article 21.5 proceedings" as a r eason to depart from the text of the DSU.  It had 
reached this conclusion without ever addressing US  arguments based on the language of Article 21.5 
itself;  in fact, those US arguments did not even ap pear in the report.  For example, Article 21.5 only 
provided jurisdiction for a panel where there was a "d isagreement" over a "measure taken to comply".  
The United States was at a loss to understand how a non-existent measure could be a measure "taken" 
to comply, or how a measure not in existence coul d serve as the basis for finding that there was a 
"disagreement" at the time of a panel request over the existence or consistency of that non-existent 
measure.  The Appellate Body had also viewed th e "prompt settlement" of disputes, in the sense of 
Article 3.3 of the DSU, as justifying the inclusio n of Review 9.  "Prompt settlement", however 
laudable a goal, did not provide a basis for departi ng from the requirements of the DSU.  And the text 
of Article 3.3 actually supported the exclusion of future measures, since su ch non-existent measures 
could not possibly be "impairing" any benefits at th e time of a panel request.  The Appellate Body had 
made much of the fact that Review 9 was initiated and underway at the time of Japan's panel request 
and that it was the most recent administrative review  in a series of reviews.  The United States failed 
to see how this reasoning squared with recent Appe llate Body findings where challenges to on-going 
proceedings at the time of a panel request were considered premature.  Nor did the United States 
understand how the Appellate Body was so confident that at the time of the panel request, the final 
results of Review 9 were so predictable that they  should have been included within the scope of the 
proceeding.  In fact, Japan had no way of knowing the final results of the review, as any number of 
circumstances could have affected that outcome.   
75.
 The United States considered that all Members should share those concerns.  The Appellate 
Body was not empowered to fashion exceptions to th e text of the DSU.  In the past, the Appellate 
Body had recognized the rule that "the measures in cluded in a panel's terms of reference must be  WT/DSB/M/273 
 Page 17 
 
 
measures that are in existence at the time of the est ablishment of the panel".  Only where a subsequent 
measure was in essence the same measure as the on e identified in the panel request had it been 
included in the scope of the panel proceeding.  That was not the case with separate and distinct 
administrative reviews.  The Appellate Body, appa rently influenced by the circumstances surrounding 
this dispute, had relied on an "objective" of the DS U to contradict its express terms.  This was not an 
appropriate approach to treaty interpretation, could raise serious concerns in any further negotiations, 
and should be of concern to all Members. 
76. The representative of the European Communities  said that the EC welcomed the Appellate 
Body Report, although it was rather disappointing to ha ve had to intervene with  regard to yet another 
failure by the United States to implement correctly in a zeroing case.  There was a lot of mystification 
on this issue but what the Appellate Body had found was in essence quite simple – WTO Members 
could not use zeroing and they could not collect zeroed duties after the end of the implementation 
period.  Whatever the United States may say, this was hardly revolutionary.  The Appellate Body had 
confirmed that, and had explained why, the US cl aim of discrimination between retrospective and 
prospective anti-dumping systems was not valid at a ll.  The Appellate Body had further confirmed 
that, and had explained why, the United States could not hide itself behind domestic litigation to 
escape its clear and unambiguous obligation to stop  collecting illegal anti-dumping duties after the 
end of the reasonable period of time.  Brazil's request  in the previous Agenda item showed that this 
issue would not go away.  The only way for the Unite d States to solve the problem of those escalating 
disputes was to show leadership, stop zeroing and implement the findings correctly. 
77. The representative of Korea  said that, as a third party to this dispute, his country welcomed 
the findings of the Reports provided in this disput e.  Korea noted that the Panel and the Appellate 
Body had properly addressed the issues raised in this compliance dispute.  Korea hoped that this 
ruling would contribute to further clarifying the im plementation scope and obligation, especially with 
regard to zeroing in the context of the US anti- dumping proceedings.  However, Korea remained 
concerned about the ongoing zeroing practice by the United States, which had been repeatedly found 
to be inconsistent with the Anti-Dumping Agreem ent as well as other covered agreements.  This 
situation could lead Members to a continuous circle of disputes, undermining the Members' 
expectation of security and predictability of the multilateral trading system.  Korea expected the 
United States to take prompt measures to fully  implement the DSB's rulings and recommendations 
without delay.  Korea would continue to remain vi gilant in monitoring the situation in the future. 
78. The representative of Norway  said that, as a third party, her country thanked the Appellate 
Body, the Panel and the Secretariat for their work  in this long-standing dispute and welcomed the 
adoption of the Panel and the Appella te Body Reports at the present meeting.  Norway noted that the 
Appellate Body had, once again, confirmed the illegality of the zeroing methodology and clarified 
important implementation related issues.  The ongoing zeroing practiced by the United States had 
repeatedly been found to be inconsistent with  the Anti-Dumping Agreement and the GATT 1994.  
Norway urged the United States to change its practice and bring itself into conformity with its 
obligations by discontinuing the use of zeroing.  No rway hoped that this issue was now finally settled 
and that implementation would occur without delay. 
79. The representative of Japan  said that his country wanted to briefly respond to some of the 
points made by the United States in its statement.  First, the United States had stated that the findings 
of the Panel and the Appellate Body would allow the retroactive remedy, contrary to what the 
Appellate Body had recognized previously.  This was the argument that the United States had put 
forward during the compliance proceedings and was squarely rejected.  The remedy Japan sought, 
which had been upheld by the Panel and the Appellate Body, was not "retroactive" at all.  What Japan 
claimed was that as long as the measures at issue ha d legal effect after the end of the reasonable 
period of time, those measures must be brought into conformity with the covered agreement.  As the 
Panel and the Appellate Body had rightly found,  a responding Member failed to comply with the 
DSB's recommendations if the measure found to be WT O-inconsistent "continued to have legal effect WT/DSB/M/273 
Page 18  
 
after the end of the reasonable period of time", in th is specific case, if "they continued to provide the 
authority for the collection of anti-dumping duties in  respect of the relevant (unliquidated) import 
entries" after the reasonable period of time.
8   
80. Second, the United States claimed that Reviews 4, 5 and 6 could not have provided a basis for 
a finding of inconsistency because they had no post r easonable period of time effect.  Again, this was 
the argument made by the United States during the Appellate Body's proceedings and had squarely 
been rejected by the Appellate Body.  As approvingl y referred to by the Appellate Body in para. 193 
of its Report, the Panel had found that "'the e xport-specific margins of dumping and import-specific 
assessment rates in Reviews 4, 5, [and] 6 … were a ffected (in the sense of being inflated) by zeroing', 
'Reviews 4, 5 and 6 continued to have legal effect long after the adoption of the DSB's 
recommendations and rulings', and some of the import entries covered by Reviews 4, 5, and 6 had not 
been liquidated when the reasonable period of time expired".9  Those findings had not been appealed 
by the United States and Japan failed to see how the United States could argue that Reviews 4, 5, and 6 could not be found WTO-inconsistent because they  had no post-reasonable period of time effects.  
81. Third, the United States appeared to argue th at the finding by the Panel and the Appellate 
Body to include Review 9 within the scope of th e Panel's terms of refere nce would have a broader 
implication for the operation of the DSU.  On th is jurisdictional issue concerning Review 9, two 
questions had been presented;  (i) whether Japan's panel request identified Re view 9 as "the specific 
measure at issue", and (ii) whether that Review which had been initiated at the time of the panel 
request and was due to be completed during the Pa nel proceedings could be included in the panel's 
terms of reference.  In disposing of both questi ons, the Panel and the Appellate Body had focused on 
the particular facts and circumstances of this case.   Specifically, the Panel's findings on those two 
questions, which had been upheld by the Appellate  Body, were based on the facts or its factual 
findings that:  (i) Review 9 had been alread y initiated at the time of the panel request
10;  (ii) "there is a 
high degree of predictability regarding the future occurrence of subsequent administrative reviews" 
under the US retrospective anti-dumping duty assessme nt system in which the subsequent review 
supersedes the preceding one11;  and (iii) administrative reviews formed part of a continuum, the 
purpose of which is the ongoing assessment of anti-dumping duties owed under the 1989 Anti-Dumping Order" on ball-bearing from Japan and "a chain of measures or a continuum existed" at the time of the panel request and Review 9 had been a latest part of this chain
12 "in which zeroing was 
used".13  Japan did not think that the case specific findi ngs by the Panel and the Appellate Body would 
have such a broader implication for the opera tion of the DSU, as had been claimed by the 
United States.  
82. The United States had claimed that since Review  9 was still ongoing at the time of the panel 
request, Japan's claim on Review 9 was premat ure and Japan had no way of knowing the final 
outcome of Review 9.  As the Panel had f ound, there was "a high degree of predictability"14 regarding 
the future review under the US system, and Review 9 was a latest part of a "chain of measures or a 
continuum that existed at the time of the panel request".15  It must also be recalled that the zeroing 
procedures in reviews had been found to be WTO-in consistent as such and the Panel had found that 
the United States had failed to comply regarding tho se as such measures.  This Panel's finding was not 
appealed by the United States.  Thus the zeroing procedures were still out there for use in reviews.  
                                                      
8 Panel Report, para. 7.149.  See also Panel Report, para. 7.148, approvingly quoted in the Appellate 
Body Report, para. 161;  Appellate Body Report, paras. 160 and 168. 
9 Appellate Body Report, para. 193 (footnote omitted). 
10 See e.g . Panel Report, paras. 7.110 and 7.116;  AB Report, paras. 118, 122, 124, and 127. 
11 See e.g. Panel Report, paras. 7.102, 7.106, and 7.111. 
12 See e.g. Panel Report, paras. 7.110 and 7.116;  AB Report, paras. 113 and 127. 
13 AB Report, para. 127. 
14 Panel Report, paras. 7.102 and 7.111. 
15 Panel Report, para. 7.116;  see also AB Report, paras. 113 and 127.  WT/DSB/M/273 
 Page 19 
 
 
Under those circumstances, Japan failed to see how its claim on Review 9 could be speculative.16  The 
United States appeared to criticize the Appellate Bo dy's consideration of Article 21.5 as a context in 
interpreting the requirement in Article 6.2.  Howe ver, those were the compliance proceedings referred 
to pursuant to Article 21.5 of the DSU.  There was nothing wrong with considering Article 21.5 of the 
DSU in interpreting the requirement under Article 6.2 in these compliance proceedings.  Under the 
Vienna Convention, such consideration as a context was even required.  As the Appellate Body had 
rightly observed, "the text of Article 6.2 of the DSU does not require that a measure be referred to 
individually in order to be properly identified for purpose of that Article"17, and "Article 6.2 does not 
set out an express temporal condition or limitation on the measures that can be identified in a panel request".
18  Thus "the requirement of Article 6.2 must be adapted to a panel request under 
Article 21.5, and the scope and function of Ar ticle 21.5 proceedings necessarily inform the 
interpretation of the Article 6.2 requirements in such proceedings".19  In any event, the findings of the 
Panel and the Appellate Body were  founded on the specific facts and circumstances of this case.  As 
the Appellate Body had found, in the sp ecific circumstances of this case, "an a priori  exclusion of 
measures completed during Article 21.5 proceedi ngs could frustrate the function of compliance 
proceedings"20 that is to fully resolve the disagreement contemplated under Article 21.521 and as "an 
aggrieved Member"22 "Japan had a basis to consider that Review 9, as part of a 'chain of measure or a 
continuum' in which zeroing was used, could lead to  the impairment of benefits accruing to it under 
the Anti-Dumping Agreement and the GATT 1994".23 
83. The representative of Thailand  said that his country had participated as a third party in this 
dispute due to its systemic and substantive interest in the elimination of zeroing in all forms, as such 
and as applied.  Thailand thanked the Members of the Appellate Body and the Secretariat for their 
excellent work in this dispute.  Thailand welc omed the decisions of the Appellate Body upholding 
that of the Panel, and looked forward to prompt  implementation by the United States.  Prompt 
implementation would particularly  benefit developing countries such as Thailand that did not have 
sufficient resources to fully particip ate in multiple continuous litigati on cycles.  Finally, as mentioned 
by Thailand in its statements made previously in  the DSB regarding other zeroing disputes, Thailand 
sincerely regretted the controversy those cases had caused. 
84. The representative of India  said that her country welcomed the Appellate Body Report in 
these proceedings, and the clarifications given by the Appellate Body on the issue of WTO-
consistency of the zeroing practices.  India was not  a third party in those proceedings but its strong 
systemic interest in the issue of prohibition of zeroing was well known to all.  Members were aware 
that the correct legal interpretation of the GATT 1994 and the Anti-Dumping Agreement, with respect 
to this matter, had been repeatedly confirmed by the Appellate Body Reports on several occasions, 
and the present Report was consistent  and coherent to the earlier decisions on this issue.  In India's 
view, zeroing in any form, whether investigations or  reviews such as changed circumstances, sunset 
reviews or administrative reviews was WTO-inconsis tent.  However, it was regrettable that Members 
were repeatedly coming to the DSB on this subject matter.  India also wished to express its concern 
over the Appellate Body's decision to open these pr oceedings to the public and the reasoning given by 
the Appellate Body and the confidentiality rules of the DSU.  India was not against enhancing 
transparency in the dispute settleme nt mechanism.  However, in India's view, the confidentiality the 
government provided under the DSU was a matter of s ubstantive issue.  Any bilateral arrangement by 
the parties in this regard ma y lead to systemic concerns. 
                                                      
16 See also  AB Report, para. 114. 
17 AB Report, para. 116. 
18 AB Report, para.121. 
19 AB Report, para. 125; see also id, paras. 109 and 122. 
20 AB Report, para. 122. 
21 See e.g. AB Report, paras. 122, 155, and 158. 
22 AB Report, para. 127. 
23 Appellate Body Report, para. 127. WT/DSB/M/273 
Page 20  
 
85. The DSB took note
 of the statements, and adopted  the Appellate Body Report contained in 
WT/DS322/AB/RW and the Panel Report contained in WT/DS322/RW, as upheld by the Appellate 
Body Report.   
6. China – Measures affecting imports of automobile parts 
(a) Statement by Canada, also on behalf of the EC and the United States 
86. The representative of Canada , speaking under "Other Business", said that her delegation 
wished to make a statement also on behalf of th e EC and the United States and believed that both the 
EC and the United States would wish to make their i ndividual statements thereafter.  She recalled that 
on 12 January 2009, the DSB had adopted the Panel and the Appellate Body Reports in "China – 
Autos" (DS342).  The parties in this case, and th e related cases with the United States and the EC, 
(DS339 and 340), had adopted a reasonable period of  time for implementation on 27 February 2009.  
This reasonable period of time would expire th e following day.  Under the DSU, China had an 
obligation to report on its implementation, six m onths following the establishment of a reasonable 
period of time for implementation – namely as of 27 August 2009.  China should have used the 
present meeting to inform the DSB on how it would implement the recommendations and rulings in 
the case "China - Auto Parts", as required under Artic le 21.6 of the DSU.  It was regrettable that 
China had not placed the matter on the Agenda and ha d not circulated a status report as required by 
the DSU.  China's failure to respect its reporting obligations was extremely worrying, particularly 
because the reasonable period of time for implementation would expire the following day.  Canada called upon China to make every effort to comply with its obligations under the DSU. 
87. The representative of the European Communities
 said that under Article 21.6 of the DSU, 
China should have informed the DSB, at the present meeting, on how it would implement the 
recommendations and rulings in the "China - Autos Part s" dispute.  Yet regrettably, it had failed to do 
so.  This was extremely worrying, as it was China's first recommendations and rulings to implement.  
The EC hoped that China was not creating a precedent in  its refusal to be transparent.  Furthermore, 
this secrecy was all the more worrying, because the reasonable period of time would expire the 
following day.  The EC, therefore, urged China to  comply with all its obligations under the DSU. 
88. The representative of the United States  said that his country also wished to make a brief 
comment concerning the dispute:  "China – Measures Affecting Imports of Automobile  Parts".  
China's reasonable period of time for compliance in this dispute had been established over six months 
ago – on 27 February 2009, and, as mentioned, would expire the follow ing day, 1 September 2009.  In 
those circumstances, it would have been very helpfu l to the United States, to its co-complainants the 
EC and Canada, and to the DSB as a whole if China had provided a written status report on its 
implementation in advance of the present meeting.  The United States, therefore, joined Canada and 
the EC in expressing regret that China had chosen  not to do so.  The United States understood that 
China had very recently announced that its im plementation of the DSB's recommendations and 
rulings in those disputes would be effective by  1 September 2009 and the United States looked 
forward to reviewing China's measures taken to comply.  
89. The representative of China  said that his country wished to first respond briefly to the 
statements made by the United States, the EC and Canada, which China believed were not well-
founded.  With respect to the issue of status reports, he said that Article 21.6 of the DSU stipulated that:  "the issue of implementation of the recommenda tions or rulings shall be placed on the agenda of 
the DSB meeting after six months following the date  of establishment of the reasonable period of time 
pursuant to Article 21.3 unless the DSB decides otherwi se".  In the "China - Auto Parts" case, the date 
of the establishment of the reasonable period of time was 27 February 2009.  Therefore, the first day after the six-month period for submitting status re ports was 27 August 2009.  Since the closing date 
for inscribing items on the Agenda of the pr esent DSB meeting was 20 August 2009, seven days 
before expiration of the reasonable period of ti me, China had difficulty in understanding how it  WT/DSB/M/273 
 Page 21 
 
 
should have the obligation, as alleged by the Unite d States, the EC and Canada, to submit a status 
report at the present meeting, pursuant to Article 21.6 of the DSU.   
90. China recalled that at its meeting on 12 January 2009, the DSB had adopted the 
recommendations and rulings pertaining to this di spute.  On 27 February 2009, China, the 
United States, the EC and Canada had agreed and had notified the DSB that the reasonable period of 
time for implementation was seven months and 20 days and would expire on 1 September 2009.  
Since then, China had made great efforts to impl ement the DSB's decisions.  On 15 August 2009, the 
Ministry of Industry and Information Tec hnology and National Development and Reform 
Commission had issued a joint decree to stop the implementation of relevant provisions concerning importation of auto parts in Automobile Industr y Development Policy.  On 28 August 2009, the 
General Administration on Customs and relevant ag encies had promulgated a joint decree to repeal 
Decree 125.  All those new decrees would come into  effect on 1 September 2009.  Therefore, China 
was glad to declare that it had brought its measures into conformity with the DSB's recommendations and rulings.  Before concluding, China wished to poi nt out that it had taken actions to implement the 
DSB's ruling and recommendations with a view to up holding the multilateral trading system.  China, 
therefore, hoped that Members with poor record of implementing the WTO rulings could also take 
concrete actions to respect th eir international obligations. 
91. The DSB took note
 of the statements. 
__________