RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/267 
26 June 2009 
 (09-3136) 
Dispute Settlement Body 
20 April 2009  
 
 
  
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 20 April 2009  
 
Chairman:  Mr. John Gero (Canada) 
 
 
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 by Ecuador:  Status report by 
the European Communities....................................................................................................... ..7
 
(f) Brazil – Measures affecting imports of retread ed tyres:  Status report by Brazil .....................11  
2. China – Measures affecting the protection and enforcement of intellectual 
property rights ................................................................................................................ ........12  
(a) Implementation of the recommendations of the DSB...............................................................12  
3. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ..........................................13  
(a) Statements by the European Communities and Japan ..............................................................13  
4. United States – Measures relating to shrimp from Thailand..............................................15  
(a) Statement by the United States on implementation of the recommendations adopted 
by the DSB..................................................................................................................... ...........15  
5. United States – Customs Bond Directive for merchandise subject to anti-
dumping/countervailing duties ..............................................................................................16  
(a) Statement by the United States on implementation of the recommendations adopted 
by the DSB..................................................................................................................... ...........16  WT/DSB/M/267 
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  6.
 United States – Measures concerning the importation, marketing and sale of 
tuna and tuna products ......................................................................................................... .16 
(a) Request for the establishment of a panel by Mexico ................................................................16  
7. Appointment of Appella te Body members............................................................................18  
(a) Statement by the Chairman...................................................................................................... .18 
 
 
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.77) 
 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.77) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.52) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.15 – WT/DS292/31/Add.15 – WT/DS293/31/Add.15) 
 
(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.3) 
 (f) Brazil – Measures affecting imports of retreaded tyres:  Status report by Brazil 
(WT/DS332/19/Add.1) 
 
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 six 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.77) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.77, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US Section 211 Omni bus Appropriations Act of 1998. 
3. The representative of the United States  said that his country had provided a status report in 
this dispute on 8 April 2009, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, a number of legislative proposals that would implement the DSB's recommendations and rulings in this dispute had been introduced in the current Congress, which had convened in 
January 2009.  The US administration was working with the Congress to implement the DSB's recommendations and rulings. 
4. The representative of th e European Communities
 said that the United States was presenting 
its seventy-seventh status report on its lack of pr ogress in the implementation of the DSB's ruling in  WT/DSB/M/267 
 Page 3 
 
 
  this dispute.  The EC hoped that the new US author ities would now take steps to finally implement the 
DSB's ruling. 
5. The representative of Cuba  said that nothing had changed in the case under consideration for 
more than seven years.  The only new development in 2009 had been an ambiguous reference to 
proposed legislation to implement the DSB's rulings.  He recalled, once again, what his delegation had 
repeatedly stated in the DSB, namely that status  reports must refer to progress made in implementing 
recommendations and rulings in accordance with Artic le 21.6 of the DSU.  The US administration 
professed to be among those the most concerned by th e failure to observe intellectual property rights 
in other parts of the world.  Recently, it had pub lished its annual list of countries whose efforts to 
combat piracy it deemed to be wanting.  That was known as the Special 301 Report, in which the United States had classified countries according to th e seriousness of the situa tion.  It was paradoxical 
that the country that drew up such a list of o ffenders, and which was currently negotiating an 
anti-piracy agreement, much broader in scope th an the TRIPS Agreement, was unable to repeal 
immediately Section 211, which was contrary to the WTO Agreement and to an industrial property 
convention of 1883.  In March 2009, it had been re ported in a number of international press media 
that, in the United States, a federal judge had dismissed a suit brought by the Cuban company 
CUBAEXPORT, the rightful owner of the HAVANA CLUB trade mark, against the US Treasury's 
Office of Foreign Assets Control (OFAC), which ha d denied the licence applied for in 2006.  The 
basis in law for the dismissal was Section 211.  The press had been swift to report the response of 
Bacardi:  "We are the legitimate owners of the br and" and "We are thrilled that once again the US 
courts have upheld these laws."  However, it had no t been mentioned that:  (i) Bacardi had conceived 
and promoted Section 211;  (ii) that five years af ter its enactment that provision had been found to be 
in breach of fundamental principles of the Paris Convention and the TRIPS Agreement;  and (iii) that a growing number of WTO Members requested its repeal.  Also it had been overlooked that the use of 
the HAVANA CLUB trade mark by Bacardi constituted unfair competition, which clearly entailed 
acts of unfairness towards consumers, competitors and the market.  As regards unfairness to the 
market, it encompassed exploitation of another's reputation, confusion and deceit of consumers and 
the breach of rules.  Cuba urged the immediate re peal of Section 211, which prompted the US judges 
to issue decisions which were contrary to what th e DSB had ruled more than seven years ago.  As 
long as Section 211 was in force, the United States had no more authority to challenge the registration 
of foreign trade marks in order to use them and prevent their real owner from ever marketing the 
product.  What would happen if another Member we re to cancel the registration of US trade marks 
and a company were to use them wilfully on that market, without infringing trade rights, and they were furthermore to claim unilate rally the prerogative of disregarding legally binding international 
agreements or some legal ruling in the multilateral context?  The response w ould undoubtedly be legal 
action, pressure and trade reprisals.  Why, then, a developed trading power such as the United States 
continued with impunity to disregard the rights of a company from a small underdeveloped country as 
well as international trade law, industr ial property law and the DSB's rulings? 
6. The representative of Brazil
 said that, as on previous occasions, his country wished to express 
its appreciation to the United States for its status re port pertaining to this dispute.  Brazil understood 
that full implementation of the DSB's recommendations  had not been achieved, and thus encouraged 
the United States to continue to pursue the necessary initiatives in this regard. 
7. The representative of China  thanked the United States for its status report and the statement.  
However, China regretted that the US Congress had not begun to consider any implementation action 
pertinent to this case despite the endeavours of th e US administration.  As previous speakers had 
pointed out, the situation of non-compliance was seriously damaging the authority of the TRIPS 
Agreement and the credibility of the WTO dispute se ttlement system.  China supported the statements 
made by the EC and Cuba, and urged the United St ates to implement the deci sion of the DSB without 
further delay. WT/DSB/M/267 
Page 4  
 
  8. The representative of Ecuador
 said that his country thanked the United States for its status 
report.  Ecuador supported the statements made by Cuba and other Members on this issue.  He drew 
attention to the provisions of Ar ticle 21 of the DSU on prompt compliance with recommendations and 
rulings of the DSB, in particular with regard to ma tters affecting the interest s of developing countries.  
The United States, both at home and in the va rious WTO Councils and Committees, had closely 
monitored the commitments undertaken by other Members.  Ecuador, therefore, expected the 
United States to set a good example.  After th e disputes on Bananas and Hormones, this was the 
longest-standing pending dispute in the WTO w ith respect to which all WTO Members should 
express concern.  Ecuador, once again, urged the United States to comply with the DSB's 
recommendations and rulings and to promptly repeal Section 211. 
9. The representative of the Bolivarian Republic of Venezuela  said that his country thanked the 
United States for its status report.  Venezuela was optimistic following the positive message of the 
presidents of the American continent who had atte nded the Fifth Summit of the Americas in Trinidad 
and Tobago, who had stated  their desire to coopera te in fostering development and well-being in the 
countries of the Americas.  It was hoped that the US President's undertaking would lead to prompt 
compliance with the DSB's recommendations and in par ticular in this case.  The repeal of Section 211 
had given rise to systemic concerns, which had been reiterated by Members at each DSB meeting, 
about the protracted situation of non-compliance.  Venezuela urged the parties to this dispute to 
immediately adopt measures that would ensure that  the adopted recommendations  were implemented.  
Compliance by the United States would have a positive effect on the overall effectiveness of the WTO 
dispute settlement system. 
10. The representative of India  said that her country thanked the United States for its status report 
and the statement.  India regretted that the new US Congress had not begun to consider any 
implementation action pertinent to this case, despite the endeavours of the US administration and the 
appeals of WTO Members.  As mentioned by previ ous speakers, the situation of non-compliance in 
this dispute was seriously damaging the credibility of the WTO dispute settlement system.  India was 
confident that the US administration would continue  to work with the US Congress in a constructive 
manner with a view to implementing the DSB's recommendations. 
11. The representative of Costa Rica  said that his country thanked the United States for its status 
report.  Costa Rica considered that, as in othe r cases under this Agenda item, it was important to 
comply with Article 21.1 of the DSU, whic h underlined that "Prompt compliance with 
recommendations or rulings of the DSB is essen tial".  Costa Rica was confident that the US 
administration would rapidly find a solution to this issue with its Congress, as indicated in the US 
status report. 
12. The representative of Thailand  said that her country joined previous speakers in thanking the 
United States for its status report and the statement.   Thailand remained positive regarding this matter 
and urged the United States to take all necessary steps to comply with its obligations in this dispute as 
soon as possible.   
13. The representative of Mexico  said that Articles 3.3 and 21.1 of the DSU, respectively, stated 
that the "prompt settlement" of di sputes was essential to the effec tive functioning of the WTO, and 
that "prompt compliance with recommendations or rulings of the DSB" was essential in order to 
ensure the effective resolution of disputes "to the be nefit of all Members".  Mexico urged the parties 
to heed these provisions and to take the measures required to achieve compliance, to the benefit both 
of the functioning of the WTO and of all Members. 
14. The representative of Viet Nam  thanked the United States for its status report and hoped that 
the United States would soon fully comply with the DSB's rulings and recommendations in this case.  WT/DSB/M/267 
 Page 5 
 
 
  15. The representative of the United States  said that his country regretted that some Members – 
including some whose record of protecting intell ectual property rights appeared less than robust – 
continued to criticize the US commitment to inte llectual property rights.  The criticisms were 
completely unfounded.  It was, of course, true that the United States remained a strong advocate of 
substantial protections for intellectual property in ternationally.  However, the United States also 
provided the highest standard of intellectual pr operty protection within its own territory.  The 
United States looked forward to continuing to work  with all Members to secure the protection of 
intellectual property rights around the world.  In response to the suggestion that the US compliance record was poor, the facts simply did not support that  assertion.  To the contrary, the record showed 
that the United States had fully complied in the vast ma jority of its disputes.  As for the remaining few 
– and those few were a small fraction of the to tal – the United States had been actively working 
towards compliance. 
16. The representative of Cuba
 said that his delegation was surprised to hear the US statement 
with regard to the US compliance record with inte llectual property rights matters.  For many years, 
Members had been waiting for compliance in this  case as well as in many other cases.  The DSU 
provisions and the WTO rules had to be complied with in all cases and not just in some cases.  It was 
very unfortunate that this case had been pendi ng for over seven years.  Cuba hoped that the 
United States would conform facts with its rhetoric.  
17. 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.77)  
18. The Chairman  drew attention to document WT/DS184/ 15/Add.77, 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. 
19. The representative of the United States  said that his country had provided a status report in 
this dispute on 8 April 2009, in accordance with Ar ticle 21.6 of the DSU.  As of 23 November 2002, 
the US authorities had addressed the DSB's recommendations and rulings with respect to the 
calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty inv estigation at issue in 
this dispute.  Details were provided in documen t WT/DS184/15/Add.3.  With respect to the DSB's 
recommendations and rulings that had not been  already 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.  
20. The representative of Japan  said that her country thanked the United States for its statement 
and the latest status report.  She said that the United States had reported that it had taken certain 
measures to implement part of the DSB's reco mmendations in November 2002.  Japan was hopeful 
that the United States would soon be in a position to report to the DSB more tangible progress for the 
remaining part of the DSB's recommendations and ru lings.  A full and prompt implementation of the 
DSB's recommendations and rulings was "essential to  the effective functioning of the WTO and the 
maintenance of a proper balance of th e rights and obligations of Members".1  Japan called on the 
United States to fully implement the DSB's recommendations in this long-standing dispute without 
further delay. 
21. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
                                                      
1 Article 3.3 of the DSU. WT/DSB/M/267 
Page 6  
 
  (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.52) 
22. The Chairman
 drew attention to document WT/DS160/ 24/Add.52, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
23. The representative of the United States  said that his country had provided a status report in 
this dispute on 8 April 2009, in accordance with Ar ticle 21.6 of the DSU.  He said that the US 
administration would work closely with the US C ongress and would continue to confer with the EC, 
in order to reach a mutually satisfactory resolution of this matter. 
24. The representative of the European Communities  said that the United States had again 
reported continued non-compliance in an IPR case.  The EC said that the United States had 
continually failed over a number of years to bring itself into compliance.  The EC hoped that this 
matter could be soon resolved.   
25. 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.15 – WT/DS292/31/Add.15 – WT/DS293/31/Add.15) 
26. The Chairman
 drew attention to document WT/D S291/37/Add.15 – WT/DS292/31/Add.15 – 
WT/DS293/31/Add.15, which contained the status re port by the EC on progress in the implementation 
of the DSB's recommendations in the case concerning  the EC's measures affecting the approval and 
marketing of biotech products. 
27. The representative of the European Communities  said that recent developments showed that 
the EC regulatory procedures on biotech products conti nued to work as foreseen in the legislation.  In 
the previous month only, the Commission had authori zed two applications:  an application of a GM 
oilseed rape (T-45) (10 March) and a GM carnation (16 March).  This would make 21 authorizations 
since the establishment of the panel.  Draft decisions on authorization of cultivation of GM maize 1507 and Bt11 were being processed in accordance with  applicable law.  With respect to national 
bans, the Commission had transmitted draft decision s requesting measures prohibiting cultivation of 
GM maize MON810 (FR, HU, EL and AT) to be lifted.  The EC believed that further progress in such 
a sensitive area could only be achieved through dialo gue and cooperation.  The EC remained open to 
continue discussions with the three complainants. 
28. The representative of Canada
 said that her country thanked the EC for its statement.  Canada 
valued the constructive dialogue that it had to date with the EC to resolve the issues that had been 
affected, and continued to affect the approval and marketing of biotech products in the European 
Union.  However, Canada continued to be partic ularly concerned about continuing member State 
actions on the cultivation and marketing of EU -wide approved biotech products.  Not only had 
Austria not lifted its ban on the maize event T 25, as recommended by the DSB in this case, but 
member States continued to adopt new, complete ly unjustified measures on biotech products.  For 
example, Canada had learned recently that Germ any had placed a new ban on the cultivation of a 
variety of maize (MON810) that had been author ized by the European Commission since 1998.  
Canada would continue to monitor the situation closely and hoped for the continuation of dialogue 
with the EC to address trade in biotech products in a constructive manner.  WT/DSB/M/267 
 Page 7 
 
 
  29. The representative of Argentina  said that his country thanked the EC for its status report.  He 
recalled that Argentina had made a statement on th is matter at the 20 March DSB meeting and, once 
again, expressed Argentina's desire to  continue to work with the EC. 
30. The representative of the United States  thanked the EC for its status  report and its statement.  
The United States regretted to report that, on 14 April 2009, Germany had announced a new biotech 
ban that seriously called into question the EC's commitment to resolving this long-standing dispute.  The United States recalled that, at the 19 Febr uary 2009 DSB meeting, the United States had 
expressed serious concerns with EC member Stat e measures banning biotech products that had been 
approved by the EC prior to the EC's adoption of the across-the-board moratorium on biotech 
approvals.  The United States noted that the DSB found that such measures had not been based on risk 
assessments and thus breached the EC 's obligations under the SPS Agreem ent.  He added that, despite 
specific DSB findings that Austria's ban on an insect -resistant maize variety was inconsistent with 
WTO rules, Austria continued to ban the cultivation of that product.  The United States further noted 
that the EC had not only failed to remove the Aust rian ban, but even allowed the same ban to be 
adopted by France, Greece and Hungary.  The Unit ed States understood that at the end of March, 
Luxembourg had become the fifth EC member State to adopt the ban, and that Germany planned to 
ban the same variety of maize.  In making the an nouncement, Germany's Minister for Agriculture 
explicitly relied for justification on the bans previ ously adopted by Austria, France, Greece, Hungary 
and Luxembourg.  The German ban was especia lly troubling because German farmers had been 
purchasing this product in significant and increasing vol umes, and had been growing this variety of 
maize safely and successfully for over a decade.   
31. Just as for the other bans, the United States was aware of no scientific justification.  Nor had 
Germany cited any scientific justification.  Indeed , the EC's own scientific committees had repeatedly 
reviewed those bans, and had found no scientific basi s.  In short, the United States was greatly 
concerned that additional EC member States continued to ban biotech products, relying for 
justification on earlier member State bans found by the DSB and/or EC-wide scientific committees to 
be without a basis in science.  It was becoming in creasingly apparent that EC member State bans on 
biotech products could render meaningless any action taken at the Community level.  The 
United States wished to hear from the EC how it would eliminate the existing unjustified member 
State bans and how it intended to stop its member States from adopting further such measures.  The 
United States thanked the DSB for its attention to this matter. 
32. The representative of th e European Communities
 said that the measures mentioned were not 
related to the implementation of the WTO Panel Repor t, as they were not covered by it.  Thus, the 
DSB was not the appropriate forum to deal with those questions. 
33. 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 by Ecuador:  Status report by the European Communities 
(WT/DS27/96/Add.3) 
34. The Chairman  drew attention to document WT/DS27/ 96/Add.3, 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 concerni ng the European Communities' regime for the 
importation, sale and distribution of bananas. 
35. The representative of the European Communities  said that, as indicated at previous DSB 
meetings, the EC stood ready to implement the re commendation made in Ecuador's report by means 
of modifying its bound duty.  The EC still hoped that th is rebinding could be made in the context of a 
comprehensive agreement with Latin American supp liers, an agreement that had been sought since WT/DSB/M/267 
Page 8  
 
  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-standing "banana saga".  As indicated in its status report, the EC was fully engaged in negotiations wi th all Latin American supplying countries with the 
view of concluding promptly such a comprehensiv e agreement.  The EC hoped that these negotiations 
could soon lead to a satisfactory agreement.  The requests made to the EC to simply sign tel quel  the 
draft agreement established in the margins of the July 2008 Ministerial Meeting simply disregarded 
the fact that the signature of that agreemen t was subject to the successful adoption of DDA 
Agriculture modalities.  Having said that, the EC was now engaged in negotiations to discuss the 
possibility of concluding a draft agreement with a number of elements based on the July 2008 text, 
subject to necessary adjustments to the current situ ation and hoped that all banana suppliers would 
constructively engage in the necessary discussions. 
36. The representative of Ecuador
 said that his country thanked the EC for its status report.  In 
that report the EC had, once again, failed to give any indication of the date by which the EC hoped to 
comply with the DSB's recommendations and rulings in this case.  He recalled that the EC's recent 
proposal to Latin American MFN suppliers was charact erized by the following:  (i) its lack of balance 
in the commitments that would be assumed by the pa rties;  (ii) the linkage of tariff cuts to the 
uncertain conclusion of Doha Round modalities;  ( iii) the introduction of further conditions in areas 
unrelated to compliance with the DSB's recommenda tions and rulings and the compensation for the 
EC's enlargements;  (iv) linking the proposal to  an "early harvest" of the Doha Round modalities 
together with prior agreement in the negotiations on  tropical products and the erosion of preferences 
and (v) making the proposed agreement subject to th e conclusion of a parallel agreement with another 
Member.  Ecuador considered that the 27 July Agreement, with the major Latin American MFN suppliers, had struck a proper balance among the par ties.  Ecuador had identified those products and 
areas that might be subject to their cross-retaliati on and the possible initiation of demands against the 
EU-ACP trade agreements.  A unilateral decision by  the EC would have serious political, legal and 
systemic implications.  Finally, he reiterated that the EC had, once again, refused to submit a status 
report concerning the DSB's recommendations a nd rulings in the Bananas dispute with the 
United States.  Ecuador did not share the EC's unila teral interpretation of the DSU in this regard. 
37. The representative of Panama
 said that his country regretted that  it had to express, once again, 
its disappointment at the EC's status reports and the actions the EC had undertaken since January.  
The most recent status report, like the previous ones,  failed to reflect the EC's true position.  In that 
report, the EC had asserted that it intended to bri ng itself into compliance with its obligations.  
Panama saw no evidence of such an intention.  By  demanding that Latin American banana supplying 
countries paid in other product areas in exchange fo r the EC's compliance, the EC was departing from 
the concept of "intention to comply" as set out in the DSU provisions.  The status report also asserted 
that the EC was engaged in negotiations with the La tin American banana supplying countries.  As far 
as Panama was aware, there had been no negotiations since July 2008.  The report likewise stated that 
there was interest in a "comprehensive agreemen t", which was hard to understand since the most 
important element, namely complying promptly  with Articles I and II of the GATT 1994, would 
appear to be absent.  There had been no effort wh atsoever on the EC's part to clarify the new tariff 
rate, which would remedy the breach of tariff binding and eliminate the discrimination.  When the EC alluded to a "comprehensive agreement", it appeared  to refer to negotiations that would accommodate 
issues and Members outside the normal scope of DSB compliance.  In its status report, the EC had expressed its interest in reaching a satisfactory agre ement promptly.  However, the EC had introduced 
so many quotas, deadline extensions and procedur al complexities that a "prompt" agreement would 
appear to be out of the question.  Panama sa w no way of reconciling the many discrepancies in 
compliance and the underlying impediments in this status report with the EC's obligation to bring 
itself promptly into conformity with WTO rules.   It was no less difficult to see how ignoring the 
DSB's recent decisions could be consistent with the EC's renewed promise to resist protectionism.  As 
Panama had already stated, if the EC really intended to put an end to its legacy of illegalities, only the  WT/DSB/M/267 
 Page 9 
 
 
  Agreement of July 2008 afforded a suitable means of finding a clear solution.  Panama called on the 
EC to reinstate that agreement without further delay. 
38. The representative of Colombia  said that his country was grateful for the EC's status report, 
and took note of the EC's proposal to bring itsel f into compliance with the DSB's recommendations 
and rulings by modifying its scheduled tariff comm itments on bananas. Colombia hoped that the EC 
would act quickly in this respect.  Colombia had been examining a proposal submitted recently by the 
EC and had been discussing it with other Latin Amer ican banana suppliers.  Colombia hoped to obtain 
a result that would preserve the economic value of th e agreement reached in July 2008.  With respect 
to the fears expressed by the ACP banana suppliers, Co lombia recalled that the margin of preference 
increased from €75/ton to €176/ton at their expense, and with a regime that had repeatedly been 
declared illegal.  Colombia wanted to see the ba lance restored and the EC's regime brought into 
conformity with WTO rules.  Colombia hoped that in the near future necessary conditions would be 
created for the initiation of negotiations on the basis of the July Agreement with a view to reaching a 
comprehensive solution to the banana issue.  To do so, the EC's full cooperation was needed. 
39. The representative of the Dominican Republic , speaking on behalf of the ACP countries, said 
that, at the DSB meetings held on 11 Decemb er 2008, 19 February and 20 March 2009, the ACP 
countries had registered their disagreement with certain conclusions reached by the Panel and the 
Appellate Body in this dispute, and also their r espect for the need to implement final decisions.  
Currently, only the finding of a violation of th e EC's obligations under Article II of the GATT 1994 
awaited implementation.  She recalled that the Pa nel and the Appellate Body had concluded that the 
EC's schedule at this time still committed the EC to  an out-of-quota tariff of €680/mt and a TRQ of 
2.2 million tons at a tariff of €75/mt.  As previ ously mentioned, the ACP countries could live with a 
faithful and literal implementation of those conclusions.  As reflected in  its status report, however, the 
EC aimed to achieve compliance and implementa tion by changing its tariff structure through 
negotiations with the MFN banana suppliers.  This process, it seemed, may lead to a reduction of 
applied (and bound) duty rates.  She stressed, once mo re, that the DSB's conclusions in this dispute 
did not require any overall reduction of average ta riffs;  nor, in fact, did the negotiations under 
Article XXVIII of the GATT 1994.  Any decision to re duce the EC's banana tariffs thus would find its 
rationale exclusively in the DDA.  She underlined that the ACP count ries actively supported efforts to 
move towards an effective solution of the issue of  the EC bananas tariff regime.  The ACP countries 
wished to ensure that the steps ev entually agreed upon would be taken for the right reasons and that 
they would be balanced out in the right context. 
40. The representative of Costa Rica  said that his country noted the EC's status report but, once 
again, was disappointed with that report.  Si nce 1992, the EC bananas import regime had been 
examined by a number of different bodies, all of wh ich, as in this case, had confirmed the illegality of 
that regime with the rules of the multilateral trading system:  the GATT and the WTO.  Costa Rica continued to hope that the EC would comply with its obligations.  The status report submitted by the 
EC was vague and did not refer to the proceedings  initiated by the United States.  The EC had not 
stated when it would comply with the DSB's re commendations and had provided no details as to how 
it would do so.  In its report, the EC stated that  it was seeking an agreement with Latin American 
banana-exporting countries on this issue.  Such a statement appeared to be seeking to give the 
impression that no agreement had yet been reached or that the MFN exporters were the ones preventing an agreement which would enable the EC to remedy its bananas import regime.  The 
solution to this long-standing dispute had, however, been found on 27 July 2008.  The 
27 July Agreement was a balanced agreement and was the only time when the EC and all the Latin 
American countries under the MFN regime were in agre ement on this issue.  It was important not to 
lose sight of the great importance of this, so that any attempt to reinvent the wheel should be avoided.  Costa Rica urged the EC to make the utmost effort to resolve this issue, which continued to be an 
irritant for its region and caused problems for developing countries. WT/DSB/M/267 
Page 10  
 
  41. The representative of Honduras
 said that, ever since the Bananas III dispute came under 
surveillance for the first time 12 years ago, the EC had repeatedly asserted that it was taking the 
requisite steps to respect its obligation to comply w ith its obligations.  The fact that those promises 
had not been kept had been found in four WTO re view procedures.  At the present meeting, the EC 
had yet again assured the DSB that it intended to comply  with its obligation.  As in the past, the EC's 
words were at odds with its actions.  When the EC re ferred to compliance, it was in fact saying that it 
envisaged making a few minor adjustments, provided th at, and until such time as, the Latin American 
parties accepted the EC's long list of conditions.  The list was a set of requirements that were not 
linked to the compliance under the dispute settlement  system.  The EC only envisaged the possibility 
of complying if, for example, the entire Membership  did not object to its compromise offer.  The EC 
only envisaged complying if the complainants in  the Bananas III dispute, which included Honduras, 
and other interested suppliers renounced the right to liberalization in respect of other products.  Small 
tariff cuts could not be regarded as compliance on th e part of the EC, which turned this case into a 
complicated Doha exercise, nor could the EC transfer  its obligation to comply to other Members.  If 
the EC genuinely intended to settle this case, rather  than pursue its illegal actions, it should forget the 
idea of imposing inappropriate conditions merely ai med at detracting from a solution.  Honduras was 
still willing to accept the solution to which the EC had ag reed in July 2008.  To the extent that the EC 
continued to refuse the July Agreement, and in order to settle the issue, if the EC insisted on imposing 
irregular conditions and obfuscated its own oblig ation to comply, Honduras could only ask whether 
the EC's assurances of compliance were the EC's most recent list of unfulfilled promises.  As an original complainant in the Bananas III dispute, Honduras continued to reserve all of its rights to 
challenge the EC's repeated non-compliance.  
42. The representative of Nicaragua
 said that her delegation wished to refer to the statements it 
had made at previous DSB meetings and expressed renewed disappointment at the EC's long-standing 
and continuing failure to comply in this dispute.  The status report of 8 April stated without any 
explanation that "the EC is enga ged in negotiations with Latin Am erican banana-supplying countries" 
and hoped that these negotiations "can soon lead to  a satisfactory agreement".  Nicaragua was not 
aware of any agreement being negotiated or of any proposal by the EC that could "soon lead to a 
satisfactory agreement".  Furthermore, a close readi ng of the status report showed that the EC did not 
indicate any intention of bringing itself promptly into  compliance.  The EC had not stated this because 
its position was contrary to prompt compliance.  The EC had taken the position that it was only under 
the obligation to comply if the Latin American  banana supplying countri es, including Nicaragua, 
renounced the rights to which they were entitled in other Doha-related areas and accepted other 
unilateral conditions imposed by the EC that were not  linked to this dispute.  Under the DSU, the EC 
did not have the prerogative to turn its obligation to comply with the DSB's ruling into a multilateral 
trade negotiation contingent upon requirements that  had nothing to do with the re-instatement of 
rights.  Nor did the EC have the prerogative to in sist that the Latin American supplying countries, 
which had a definite stake in the illegal measures in  question, should not negotiate with any Member 
other than itself.  The EC's responsibility was clear and unconditional.  The EC was under the 
obligation to comply with the DSB's ruling, wh ich required the EC to provide immediate and non-
discriminatory access to the Latin American suppliers .  The EC's continuing reluctance to comply 
should be a matter of systemic concern to all delegations.  The WTO was setting a highly visible 
example of recurring non-compliance, which weak ened its enforcement mechanisms, promoted 
protectionism to the detriment of the rule of law, and breached Members undertaking to help developing countries overcome poverty through trade.  Nicaragua, once again, called upon the EC to 
bring itself into compliance without delay.  
43. The representative of Cameroon
 said that his delegation thanked the EC for its status report 
and endorsed the content of the statement made by the Dominican Republic, on behalf of the ACP 
countries.  Since Cameroon's position remained the same, his delegation wished to refer to its 
previous statements made at the DSB mee tings on 11 December 2008, and 19 February and 
20 March 2009.  There was nothing in particular th at would enable Cameroon to change its position,  WT/DSB/M/267 
 Page 11 
 
 
  and since the EC was planning on an extended ag reement, Cameroon reaffirmed its willingness to 
participate constructively, as it always had done, in  the search for a solution which would take into 
account the interests of all suppliers. 
44. The representative of the United States  said that the EC had, once again, filed a status report 
that mentioned only Ecuador's proceeding, and even in that context, provided no information 
regarding how the EC was in compliance with its  obligations under Articles I and XIII of the 
GATT 1994.  As had been previously stated, the fact  was that the DSB had not adopted any panel or 
Appellate Body report finding that the EC was in compliance with its WTO obligations with respect 
to its bananas import regime.  This was true w ith respect to the United States as well as the other 
original co-complainants in this dispute.  With r espect to the GATT Article II inconsistency that the 
panel and Appellate Body had found, the United Stat es, once again, wished to recall that the EC was 
required to reduce its bananas tariff as a dispute se ttlement compliance matter.  This was independent 
of whatever other goals the EC may wish to ach ieve in a much broader and distinct set of 
negotiations.  The United States noted that the r easonable period of time for compliance by the EC 
had expired more than 10 years ago, on 1 January  1999, and the commercial impact of the EC's non-
compliance over this very long period was undeni ably large and damaging to a number of WTO 
Members.  Once again, the United States hoped th at, at the next DSB meeting, Members would 
receive a comprehensive status report with a comp rehensive explanation of how the EC intended to 
come into substantive compliance with its obligat ions, as well as a description of the progress it was 
making towards that end.   
45. The representative of Guatemala  said that his delegation would li ke to join other delegations 
in expressing its disappointment at the EC's failure to comply with the DSB's rulings in this case.  
Guatemala regretted that the report submitted by the EC on 9 April 2009 w as vague, and failed to 
explain how the EC intended to bring itself into co mpliance with what had been  decided by the DSB.  
Guatemala recalled what had been said in the DSB and other WTO fora, namely that an agreement 
that would have put an end to this dispute had already been reached between the EC and the Latin 
American banana-producing countries.  He said th at he was referring to the Geneva Agreement on 
Trade in Bananas, completed on 27 July 2008.  Once again, Guatemala urged the EC to comply with what had been agreed. 
46. The representative of th e European Communities
 said that the Appellate Body had confirmed 
that no recommendation (as opposed to findings) was warranted with respect to  the measure at issue 
in this dispute, since it was no longer in existen ce (para. 479 of the AB report).  The Appellate Body 
had referred generally to the principle that in  Article 21.5 DSU procedures, original DSB's 
recommendations and rulings "remain in effect until th e EC brings itself into substantive compliance".  
However, there was no longer a compliance issue here , since the measure at fault had ceased to exist 
in 2007.  The current tariff treatment of bananas of ACP origin was a completely different measure, 
based on the negotiation of Free Trade Agreements ( FTAs) with the ACP countries concerned.  Tariff 
preferences could equally result from FTA ne gotiations with Latin American suppliers. 
47. 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.1) 
48. The Chairman  drew attention to document WT/DS332/ 19/Add.1, 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. 
49. The representative of Brazil  said that, on 8 April 2009, his country had provided the DSB 
with a further status report in this dispute, in accord ance with Article 21.6 of the DSU.  In that status WT/DSB/M/267 
Page 12  
 
  report, Brazil provided updated information on the actions pursued by the Government regarding the 
implementation of the DSB's recommendations and ru lings, following the adoption of the Reports of 
the Panel and the Appellate Body.  As stated in its status report, Brazil believed that the judgment of 
ADPF 101 by the Supreme Court would constitute a f undamental step in the strengthening of Brazil's 
environmental policy concerning tyres, as well as for the implementation of the DSB's recommendations and rulings in this dispute. 
50. The representative of the European Communities
 said that the EC noted Brazil's second status 
report and what Brazil had considered progress to wards WTO compliance since its import ban on 
retreaded tyres was found incompatible with the WT O Agreement.  The EC noted, once again, that 
Brazil admitted not having achieved compliance to da te, and this despite the expiry of the reasonable 
period of time on 17 December 2008.  As regards Br azil's efforts towards implementation, the EC 
maintained its position expressed at the 20 March 20 09 DSB meeting.  The EC was neither convinced 
nor satisfied by Brazil's actions.  The fastest and the best way to do away with the ongoing and WTO-incompatible discrimination would be to lift by Br azil its import ban on retreaded tyres.  This would 
also ensure that Brazil respected its MERCOSUR ob ligations, confirmed by binding arbitral rulings.  
The EC did not feel it had received a satisfactor y answer to its question of what exactly Brazil 
intended to set up when it had referred to a "co mmon trade regime for tyres with its MERCOSUR 
partners".  The EC stressed again that the DS B's rulings and recommendations in this case did not 
permit keeping the import ban in place, while main taining the possibility for intra-MERCOSUR trade 
in retreads.  The EC emphasized that it was strongly in favour of environmental and public health 
protection.  It would, therefore, by no means wish to discourage Brazil from doing more for the protection of its citizens against diseases spread by mosquitoes that breed in abandoned waste tyres.  
For that purpose, however, much better, more effec tive measures were available as compared with the 
selective targeting of certain imported products that did not actually contribute to the problem.  The 
EC was dissatisfied by the ongoing resort, incl uding by representatives of the Brazilian Government, 
and in fact by the reporting judge of the Supreme C ourt referred to by Brazil, to the polemic allegation 
that the EC intended to export its waste to Brazil.   The EC managed, recycled and recovered waste 
tyres without relying on exportation.  Moreover, like the overwhelming majority of WTO Members, 
the EC did not ban the importation of retreaded tyres.  On the contrary, the EC imported retreaded tyres from other countries, including from Brazil.  The EC, therefore, 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. 
51. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
2. China – Measures affecting the protection and enforcement of intellectual property 
rights 
(a) Implementation of the recommendations of the DSB 
52. The Chairman  recalled that, in accordance with the DS U provisions, the DSB was required to 
keep under surveillance the implementation of reco mmendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Members.  In this respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  He reca lled that at its meeting on 20 March 2009, the DSB 
had adopted the Panel Report pertaining to the cas e on:  "China – Measures Affecting the Protection 
and Enforcement of Intellectual Property Rights".  He noted that the 30-day period, under Article 21.3 
of the DSU, for stating China's intentions in resp ect of implementation in this case had expired on 
19 April, and on 15 April, China had informed the DSB in writing of its intentions in respect of 
implementation.  The relevant communication was contained in document WT/DS362/11.  He invited 
the representative of China to make a statement.  WT/DSB/M/267 
 Page 13 
 
 
  53. The representative of China  recalled that the DSB had adopt ed, on 20 March 2009, the Panel 
Report in this dispute.  After reaching an agreemen t with the United States,  China had informed the 
DSB of its intentions to implement the DS B's recommendations and rulings by letter on 
15 April 2009, rather than at a special meeting, and had requested that this item be placed on the 
Agenda of the present meeting.  China was pleased to reaffirm its intention to implement the DSB's 
recommendations and rulings in this dispute in a manner that respected China's WTO obligations.  
China would need a reasonable period of time in wh ich to implement.  China stood ready to consult 
with the United States regarding a reasonable pe riod of time to implement, in accordance with 
Article 21.3(b) of the DSU. 
54. The representative of the United States  said that his country thanked China for its statement 
indicating that it intended to implement the DSB's r ecommendations and rulings in this dispute.  The 
United States further thanked China for its letter of 15 April, that conveyed this same intention, and 
was pleased to confirm that, as stated in that le tter, the United States had agreed that China would 
inform the DSB of its intentions by letter rather than  at a special meeting of the DSB.  In light of the 
pressing problems of IPR infringement, the United States looked forward to China moving promptly 
to bring its measures into compliance with its oblig ations.  The United States stood ready to discuss 
with China a reasonable period of time for its im plementation under Article 21.3(b) of the DSU. 
55. The representative of the European Communities  said that, as had been stated under item 1 of 
the Agenda, the EC attached great importance to th e effective protection of IP rights and hoped that 
China would expeditiously implement the DSB's recommendations. 
56. The DSB took note  of the statements, and of the inform ation provided by China regarding its 
intentions in respect of implementation of the DSB's recommendations in this case. 
3. 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 
57. The Chairman  said that this matter was on the Agenda of the present meeting at the request of 
the EC and Japan.  He then invited the respective representatives to speak. 
58. The representative of the European Communities  said that, on 17 April, the EC had adopted a 
regulation that would bring the level of retalia tory measures applied in this dispute down to 
US$16.31 million as from 1 May 2009.  In accordan ce with the DSB's authorization to suspend 
concessions to the United States, this reflected the proportionate decrease of the amount disbursed to 
US companies from anti-dumping and countervailing du ties collected on EC products in the latest 
distribution of November 2008.  But it showed also  that duties were still being paid to the US 
industry.  The EC asked the United States again as to  when it would effectively stop the transfer of 
those 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 oblig ation under Article 21.6 of the DSU and to submit 
status reports in this dispute. 
59. The representative of Japan  said that the latest distribution for FY20082 showed that the 
CDSOA still remained operational.3  Japan, once again, called on the United States to stop illegal 
distributions and repeal the CDSOA, not just in form  but in substance, so as to resolve this dispute 
                                                      
2 According to the latest CDSOA Annual Report published by US Customs, some US$180 million 
have been disbursed for FY 2008.  See US Customs and Border Protection's website at:  
http://www.cbp.gov/xp/cgov/trade/priority_tra de/add_cvd/cont_dump/cdsoa_08/fy08_annual_rep/  
3 In the words of the US Customs, "the distribution process will continue for an undetermined period". 
See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/tr ade/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml  WT/DSB/M/267 
Page 14  
 
  once and for all.  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 ".  Japan reserved all its 
rights under the DSU until the United States came into full compliance. 
60. The representative of India
 said that her country thanked the EC and Japan, once again, for 
raising this item at the DSB meeting and shared th eir concerns.  India remained disappointed at the 
United States' maintenance of these WTO-inconsiste nt disbursements.  As mentioned by previous 
speakers, the CDSOA remained fully operational.  Those disbursements made by the United States to 
its domestic industry under the Byrd Amendment aff ected 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 th e DSB was needed, as long as the United States did not comply with 
the WTO ruling. 
61. 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 wished to join them in urging the United States to comply fully with the DSB's rulings.  
62. 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. 
63. The representative of Brazil  expressed his country's appreciation to Japan and the EC for 
raising this important issue in the DSB.  Brazil was of the view that the CDSOA still allowed for 
disbursements by the US administration to its domestic industry.  Members continued to raise 
concerns about this fact.  Brazil thus expected th at the United States would endeavour all efforts to 
rectify this situation so as to be in full complia nce with the DSB's recommendations and rulings.  
64. The representative of Thailand  thanked the EC and Japan for continuing to bring this item 
before the DSB.  Thailand remained disappointed at the US maintenance of these WTO-inconsistent 
disbursements.  She said that Thailand regretted th at the CDSOA remained fully operational, affecting 
several million dollars worth of Thai exports to th e United States.  Once again, Thailand urged the 
United States to cease those disbursements, repeal  the Byrd Amendment with immediate practical 
effect, and resume providing status reports until su ch actions were taken and this matter was fully 
resolved. 
65. The representative of the United States  said that, as his country had already explained at 
previous DSB meetings, the US President had signed the Deficit Reduction Act into law on 
8 February 2006.  That Act included a provisio n repealing the Continued Dumping and Subsidy 
Offset Act of 2000.  Thus, the United States had ta ken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes.  Th e United States recalled further that Members, 
including the EC and Japan, ha d acknowledged during previous DSB meetings that the 2006 Deficit 
Reduction Act did not permit the distribution of  duties collected on goods entered after 
1 October 2007.  With respect to comments regard ing further DSB surveillance in this matter, as it 
had already explained at previous DSB meetings, th e United States had taken all steps necessary to 
implement the DSB's recommendations and rulings.  In this light, the United States failed to see what purpose would be served by further submission of  status reports repeating the progress the 
United States made in the implementation of the DSB's recommendations and rulings.  With respect to the EC's comments on its new measures suspe nding concessions, the United States continued to 
review the action by the EC and ha d not concluded that it was able to share the EC's characterization 
at this time.  As previously observed, the DSB onl y authorized the suspension of concessions or other 
obligations as provided in the Award of the Arbitrator. 
66. The DSB took note
 of the statements.  WT/DSB/M/267 
 Page 15 
 
 
  4. United States – Measures relating to shrimp from Thailand 
(a) Statement by the United States on implementation of the recommendations adopted by the 
DSB 
67. The Chairman  said this item was on the Agenda of the present meeting at the request of the 
United States.  He then invited the re presentative of the United States to speak. 
68. The representative of the United States  said that, on 1 August 2008, the DSB had adopted the 
recommendations and rulings contained in the Panel a nd Appellate Body reports in this dispute.  The 
United States wished to take the opportunity to describe to Members the st eps that the United States 
had recently taken to implement those recommendati ons and rulings.  First, on 12 January 2009, the 
US Customs had published a notice proposing to end the designation of shrimp subject to anti-
dumping or countervailing duty orders as a special ca tegory or covered case subject to an enhanced 
bonding requirement.  After considering public co mments on its proposal, US Customs had issued a 
final notice ending the designation, effective 1 Ap ril 2009.  This notice had been published in the 
Federal Register on 1 April 2009.  The United States would be pleased to provide a copy to interested 
Members.  As a result of this action, importers of shrimp may now obtain bonds based on the ordinary 
bond formulas and were no longer required to post bonds in the amounts established under the 
additional bond requirement.  Furtherm ore, with regard to the finding of the panel regarding the use of 
zeroing by the Department of Commerce in the inve stigation of warmwater shrimp from Thailand, the 
Department of Commerce completed its Section 129 determination, recalculating the margins of 
dumping without zeroing, and implemented the determ ination effective 16 January 2009.  Thus, the 
representative of the United States was pleased to repo rt that his country had complied with the DSB's 
recommendations and rulings in this dispute. 
69. The representative of Thailand  said that her country wished to thank the United States for its 
cooperation in negotiating the reasonabl e period of time in this dispute and for its hard work in taking 
certain measures to comply before the end of the reasonable period of time.  Thailand was particularly 
appreciative of the US efforts in implementing the DSB's recommendation with respect to the use of 
zeroing in this dispute by 1 February 2009.  With  respect to the enhanced bonding requirement, 
Thailand also welcomed the US publication on 1 Ap ril 2009 of a notice in the US Federal Register 
setting forth how the United States intended to co mply with the DSB's recommendations regarding 
the enhanced bonding requirement thus far.  Tha iland thanked the United States for taking this step 
and for the cooperative manner in which the Unite d States had listened to Thailand's views on the 
implementation of the DSB's recommendations.  Because the Federal Register notice had been published at the end of the reasonable period of tim e, Thailand was still considering whether the steps 
enumerated in the notice would be sufficient to bring the United States into compliance with the 
DSB's rulings and recommendations in this case.  In  any event, Thailand would have to see how the 
notice was applied to individual importers of shrimp from Thailand before it could assess whether the 
United States had come fully into compliance.  Pending that assessment, Thailand reserved all of its 
rights under the DSU.  With that in mind, Th ailand had entered into negotiations with the 
United States regarding a "sequencing" agreemen t.  Thailand looked forward to continuing those 
negotiations with the United States in the same cordial and constructive manner as in all other 
discussions with the United States in these proceedings.  Thailand hoped, of course, that no further 
proceedings under the DSU would be necessary.  Becau se Thailand considered that this issue had not 
been resolved, it requested that th is matter continue to be placed on the DSB's Agenda in accordance 
with DSU Article 21.6 of the DSU until it was fully resolved. 
70. The DSB took note
 of the statements. WT/DSB/M/267 
Page 16  
 
  5. United States – Customs Bond Directive for merchandise subject to anti-
dumping/countervailing duties 
(a) Statement by the United States on implementation of the recommendations adopted by the 
DSB 
71. The Chairman
 said that this item was on the Agenda of the present meeting at the request of 
the United States.  He invited the represe ntative of the United States to speak. 
72. The representative of the United States  said that many of the comments that the United States 
made under the previous Agenda item applied to this one as well.  In particular, as mentioned 
previously, as a result of the notice published by US Customs on 1 April 2009, importers of shrimp 
were no longer required to pos t bonds in the amounts estab lished under the additional bond 
requirement and instead may import with bonds in amounts calculated using the ordinary bond 
formulas.  He also noted that the action extended not only to importers of shrimp from Thailand and 
from India, but to all affected importers.  Finally,  he reported that the United States had notified the 
documents relating to the additi onal bond requirement to the Co mmittee on Anti-Dumping Practices 
and the SCM Committee, in accordance with the finding of the panel.  The United States was, 
therefore, pleased to inform th e DSB that the United States had complied with the recommendations 
and rulings adopted by the DSB in this dispute. 
73. The representative of India  said that her country thanked the United States for its statement 
regarding implementation of the recommendations and rulings on the Enhanced Bond requirement 
imposed under the Customs Bond Directive, whic h had been found incompatible with the WTO 
Agreement.  India also thanked the United Stat es for its cooperation in negotiating the reasonable 
period of time in this dispute, and for the efforts in taking certain measures to comply, before the end 
of the reasonable period of time.  Without prejudice to their rights under the DSU, India welcomed the steps announced by the United States in the Federal Register on, 1 April 2009, setting forth how it 
intended to comply with the DSB's recommendations and rulings.  Since the notice had been 
published at the very end of the reasonable period of time, India would have to see how the notice 
would be applied in practice to individual importers  of shrimp from India.  India looked forward to 
seeing how those steps would be implemented.  Pending that assessment, and reserving their rights under the DSU, India was willing to have further constructive discussions with the United States in 
these proceedings.  Since India considered that this issue had not been fully resolved, it requested that 
the matter continue to be placed on the DSB's Age nda, in accordance with Article 21.6 of the DSU, 
until it was fully resolved. 
74. The DSB took note
 of the statements. 
6. United States – Measures concerning the import ation, marketing and sale of tuna and 
tuna products 
(a) Request for the establishment of a panel by Mexico (WT/DS381/4) 
75. The Chairman  recalled that the DSB had considered this matter at its meeting on 
20 March 2009 and had agreed to revert to it.  He  drew Members' attention to the communication 
from Mexico contained in document WT/DS381/4, a nd invited the representative of Mexico to speak. 
76. The representative of Mexico  said that, at the 20 March DSB meeting, his country had 
requested the establishment of a panel in this case.  However, it had proved impossible to establish 
such a panel at that meeting because of the US refu sal to do so.  At the present meeting, Mexico's 
request was on the DSB's Agenda for the second time.  In accordance with Article 6.1 of the DSU, 
Mexico, once again, requested that a panel be estab lished, and referred to its statement made at the  WT/DSB/M/267 
 Page 17 
 
 
  20 March DSB meeting.  Mexico was nevertheless l eaving the door open to the possibility of reaching 
a mutually satisfactory solution with th e United States regarding this matter. 
77. The representative of the United States  said that his country was disappointed that Mexico 
had chosen to move forward with its request fo r panel establishment a second time.  As had been 
explained at the 20 March 2009 DSB meeting, United States considered its dolphin-safe labelling 
regime central to the protection of the dolphin population in the Eastern Tropical Pacific ocean.  Furthermore, the United States was confident that the US dolphin-safe labelling measures that Mexico 
had challenged were consistent w ith US WTO obligations.  In addition, the United States was very 
concerned that Mexico was proceeding with this request for another reason.  On 24 March 2009, the 
United States had invoked Article 2005(4) of the North American Free Trade Agreement (NAFTA).  
In that provision, the NAFTA parties had agreed that certain disputes which pertained to matters 
arising under the WTO Agreement and the standard s-related provisions of the NAFTA, and which 
concerned human, animal or plant life or health or  the environment and raise factual issues regarding 
the environment or conservation, would be heard – at the responding party's option – solely under the 
NAFTA's dispute settlement procedures.  This dispute met the criteria set out in that NAFTA 
provision, and the United States had the right to have  this dispute considered under the NAFTA.  The 
United States understood that a panel would be estab lished at the present meeting.  The United States 
deeply regretted Mexico's decision to seek establis hment of a WTO panel despite its prior agreement 
with the other NAFTA parties on a choice of forum provision in their free trade agreement, and their 
invocation of that provision.  The United States urged Mexico to reconsider its position.  The 
United States would also be consider ing its options moving forward.  
78. The representative of New Zealand
 said that environmental labelling was a growing 
phenomenon in international trade.  New Zealand expected, therefore, that this case would be an 
important one for the WTO  system.  New Zealand had both a systemic and commercial interest in 
ensuring that environmental labelling was pursued within the parameters established by the WTO 
Agreements.  
79. The representative of Mexico  said that his delegation wished to comment briefly on the 
statement made by the United States, and in this connection, it wished to underline a couple of issues 
both for the benefit of the other Members and in  the interest of transparency, as well as to 
acknowledge the importance that Mexico attached  to NAFTA.  After the first request for the 
establishment of a panel, the United States had requ ested Mexico's authorities that this matter be 
resolved under the NAFTA dispute settlement mech anism indicating that certain provisions of 
NAFTA were applicable in this dispute.  Me xico had always acknowledged the importance of 
NAFTA's dispute settlement mechanism.  However, ha ving examined that requ est carefully, Mexico's 
authorities had concluded that the provisions cited by the United St ates did not apply in the present 
dispute.  Mexico had replied promptly to the United States explaining the foregoing.  In that reply, it had also pointed out that, besides the legal consid erations, this dispute dealt with issues that had 
important multilateral implications th at had to be resolved in the WTO.  Many countries had indicated 
informally that they wished to take part in, or follow up on, the dispute which would not be possible under NAFTA proceedings.  Mexico considered that th e substantial interest prompted by this case at 
international level ought also to be taken into accoun t.  Accordingly, Mexico reiterated its request for 
the establishment of a panel in order to settle this dispute in the WTO. 
80. The representative of the United States
 said that the present meeting was perhaps not the best 
place to debate the meaning of NAFTA's dispute settlement provisions.  However, in light of 
Mexico's comments, it might be helpful to say that , at the time the NAFTA had been negotiated, the 
NAFTA parties understood that disputes concerning standards-related measures for the protection of 
human, animal or plant life or health or the envi ronment could arise under either the NAFTA or the 
WTO.  As a consequence, the NAFTA parties sp ecifically included the NAFTA choice of forum 
provision to give the responding party the right to have such disputes heard before a NAFTA panel.  WT/DSB/M/267 
Page 18  
 
  The United States was very concerned that Me xico's approach would mean that NAFTA 
Article 2005(4) would never apply.  That was certainly  not the intention of the NAFTA parties, and it 
was a cause for serious concern.  The United Stat es appreciated  Mexico's acknowledgment that the 
international community may have an interest in this dispute.  The United States hoped that it could 
count on Mexico's cooperation in making sure that the proceedings in this dispute – whether in the 
WTO or under the NAFTA – were as transparent as possible, including by making submissions 
publicly available when filed and by opening the panel hearings to public observation. 
81. 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. 
82. The representatives of Argentina , Australia , China , Ecuador , the European Communities , 
Guatemala , Japan , Korea , New Zealand , Chinese Taipei  and Turkey  reserved their third-party rights 
to participate in the Panel's proceedings. 
7. Appointment of Appellate Body members 
(a) Statement by the Chairman 
83. The Chairman , speaking under "Other Business", said that, as he had announced at the outset 
of the meeting, he would like to make a statement concerning the process for appointment of 
Appellate Body members.  In this connection, he re ferred to his fax to delegations of 25 March 2009, 
which set forth certain arrangements concerning this matter.  In that regard, he recalled that the 
Selection Committee would interview all six of the nominated candidates starting on 20 April (afternoon) and continuing through the afternoons of  21 and 22 of April.  Since all six candidates 
would be in town that week, he reminded Members that, in accordance with past practice, delegations 
wishing to meet with the candidates were invited to  contact directly their respective Geneva missions 
to make an appointment – in this case, the missi ons of Argentina, Brazil, Costa Rica, the European 
Communities and Mexico.  With regard to the pr ocess through which interested delegations could 
express their views on the candidates directly to th e Selection Committee, arrangements to do so had 
already been made by the Secretariat for the days of 12 and 13 May.  He understood that some Members had already contacted the Secretariat to make an appointment with the Committee.  Those 
Member who still wished to make an appointment on one of those two days were invited to contact 
the Council and TNC Division.  Alternatively, dele gations could send their comments in writing to the 
Committee.  Such comments should be addressed to th e Chairman of the DSB, in care of the Council 
and TNC Division, and sent by no later than 20 Ma y 2009 at 6 pm.  After completing its interviews 
with the candidates and hearing or receiving in wr iting the views of all interested delegations, the 
Selection Committee would meet to decide by co nsensus on its recommendations to fill the two 
Appellate Body positions under consideration.  As  agreed by the DSB on 22 December 2008, the 
Selection Committee would make its recommendations to  the DSB by no later than the end of May so 
that a decision on this matter could be taken by th e DSB at its regular meeting in June.  Finally, he 
recalled that, pursuant to its decision of 22 Decemb er, the DSB had agreed to ask the DSB Chairman 
to continue to carry out consultations on the possi ble reappointment of Mr. David Unterhalter, who 
had expressed his willingness and desire to be reappoi nted for a second term.  As was the case at the 
previous meeting, he intended to continue these consultations and would report back to Members on 
this as soon as it was appropriate to do so.   
84. The DSB took note
 of the statement. 
__________