WORLD TRADE  
ORGANIZATION  WT/DS320/17 
20 November 2008 
 
 (08-5657) 
 Original:   English 
  
 
UNITED STATES – CONTINUED SUSPENSION OF OBLIGATIONS 
IN THE EC – HORMONES DISPUTE 
 
Communication from the European Communities on expression 
 
of views regarding Appellate Body reports and circulation of documents  
 
 
 The following communication, dated 18 November 2008, is circulated at the request of the delegation of the European Communities.  
_______________ 
 
  In the DSB meeting of 14 November 2008,  the Dispute Settlement Body adopted the 
Appellate Body report in the dispute DS320, US – Continued Suspension of Obligations .  Prior to that 
meeting, the United States again requested the circulation of a communication criticising the 
Appellate Body's decision.
1   
  The purpose of this communication is not to rebut the arguments made by the United States 
on the substance of the Appellate Body report in th is dispute.  The European Communities considers 
that the DSB is the right forum for such an exchange.  Accordi ngly, the European Communities has 
responded to the arguments of the United States it disagrees with most in the DSB meeting of 
14 November 2008.  The European Communities refers  interested parties to the minutes of that 
meeting.  Rather, the purpose of this statement is to raise the general question of expressions of views 
in the DSB and the subsequent circulation of documents containing such comments. 
  The European Communities recalls that this circ ulation of documents issue specifically arose 
for the first time a meeting of the DSB when the DSB adopted the panel report in DS245 Japan – 
Apples (Article 21.5) .  Japan made a short statement but also had a longer version of that statement, 
which was circulated "as a relevant DS document ", with the agreement of the other WTO Members in 
that particular case .
2  The same approach was adopted at the same meeting for Korea's statement on 
the Appellate Body report in DS296 US – DRAMs .3  The circulation subsequently occurred in the 
WT/DS series of the disputes in question.  Prior to 2005, the circulation of such documents in a 
WT/DS series had been exceptional.4   
  Since the DSB meeting of 20 July 2005, and prior to the most recent circulation of a document in US – Continued Suspension of Obligations , the United States has in four cases requested 
and obtained the subsequent circ ulation of such statements.
5   
                                                      
1 WT/DS320/16. 
2 20 July 2005 DSB, WT/DSB/M/194, paras. 70 to 76; WT/DS245/19 (2 pages). 
3 20 July 2005 DSB, WT/DSB/M/194, paras. 84 to 85; WT/DS296/9 (11 pages). 
4 E.g. Mexico’s communication in US – 1916 Act , WT/DS162/8, of 26 July 2000. 
5 AB report in DS294 US - Zeroing (EC) , 9 May 2006 DSB, WT/DSB/M/211, para 37; WT/DS294/16 
(9 pages) and WT/DS294/18 (13 pages) (the DSB minutes merely record the statement by the United States that 
it intended to request the subsequent circulati on as a WT/DS document); AB report in DS322 US - Zeroing WT/DS320/17 
Page 2  
 
   
 The European Communities is concerned about these cases and feels compelled to make the following observations:  
• Any Member has the right  at any time to express its views on any panel and Appellate 
Body report. 
 
• However, Articles 16.4 and 17.14 of the DSU
6 do not create  such right, but merely 
provide that the adoption procedure for panel and Appellate Body reports is " without 
prejudice " to such right.  
 
• Members should ideally moderate the length  of such statements.  Repetition  (and 
subsequent re-translation) of legal arguments already set out  and disposed of in the 
report before the DSB for adoption is not an  efficient use of the Members' time and 
resources.  A succinct oral statement should be sufficient.   
 
• Regarding the content  of such statements, the European Communities understands, also 
from its own experience, that when a Member loses dispute proceedings or is otherwise not entirely satisfied with the results, it might continue to have strongly held views, or 
have new views about the Appellate Body repor t that it might wish to express.  However, 
nothing in the expression of such views shoul d call into question the party's mandatory 
and unconditional acceptance of the report.  The WTO Agreement is a single undertaking, and the Appellate Body consists  of persons of recognized authority and 
expertise, whom the Dispute Settlement Bo dy has appointed, and whose judgment all 
WTO Members have agreed to accept.  The adoption of the Appellate Body report marks 
the resolution of a dispute, thus, Members ha ve to accept that report as final.  The DSU 
does not foresee potentially interminable furthe r exchanges, with one or other Member 
intent upon having the "last word".   
 
• In WTO dispute settlement practice such stat ements are recorded in the DSB minutes, 
which is logical given that WTO Members make  these statements in DSB meetings.  In 
contrast, the European Communities does not co nsider it appropriate to circulate such 
documents as a WT/DS document.  WT/DS documen ts relate to specific procedural steps 
occurring on the basis of the DSU, of which the Members need to be informed in order to 
know what the law is, or in order to know what is the state of the dispute, or in order to 
be in a position to exercise their rights under the DSU should they wish to do so.  
Documents containing a statement of views by  one party to the dispute or one Member 
do not fall into this category, and should not  be circulated with the designation WT/DS 
and the number of the dispute in question, any more than any other Member's expression of views, recorded in the DSB minutes, s hould be so designated and/or subsequently 
circulated.   
                                                                                                                                                                    
 
(Japan) , 23 January 2007 DSB, WT/DSB/M/241, paras. 74 and 76; WT/DS322/16 (7 pages) (the DSB minutes 
merely record the statement by the United States that it intended to request subsequent circulation, but not as a 
WT/DS document); panel report in DS241 Turkey-Rice , 22 October 2007 DSB, WT/DSB/M/241, paras. 42 to 
45; WT/DS334/9 (2 pages) (the DSB minutes do not record the intended subsequent circulation); AB report in 
DS344 US - Stainless Steel , 20 May 2008 DSB, WT/DSB/M/250, para. 49; WT/DS344/11 (13 pages) (the DSB 
minutes merely record the statement by the United States that it intended to request subsequent circulation, but not as a WT/DS document). 
6 "An Appellate Body report sha ll be adopted by the DSB and unco nditionally 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 the Members. This adoption procedure is without prejudice to the right of Members 
to express their views on an Appellate Body report."  WT/DS320/17 
 Page 3 
 
 
   
• While the European Communities considers th e separate circulation of each and every 
statement by WTO Members in the DSB, without limitation, undesirable, and at odds with the practice, it is of course Member's ri ght to request the circulation of a document 
if they consider this necessary.  However,  such circulation should then occur in a 
document series of the DSB, and not in the series of formal documents belonging to a 
particular dispute.   
  The European Communities voiced its objection to  the designation of such documents in the 
WT/DS series relating to a particular dispute in the DSB meeting of 1 August 2008.
7  During that 
meeting, the United States referred to Rule 23 of the Rules of Procedure for DSB meetings, according 
to which Members "may circulate a written statement for distribution to Members, the summary of 
which, at the representative's request, may be  reflected in the records of the [DSB]."8  R u l e  2 3  
confirms the position of the European Communities because DSB minutes are part of the DSB record, 
but a WT/DS number symbol relates to a particular  dispute and precisely not  to the work of the 
Dispute Settlement Body itself.  Rule 23 says nothing to suggest that circulated written statements 
should become part of the WT/DS series of a particular dispute.  Further, contrary to the impression 
which the United States attempted to give on 1 August 2008,9 written statements of the type had only 
seldom been recorded as WT/DS documents before th is recently became a rather frequent habit of the 
United States.  Only exceptionally had such a docum ent been circulated with a WT/DS symbol during 
the first ten years of DSB practice.  In contrast, quite a number of such statements were recorded 
under the designation WT/DSB/COM.  The latter desi gnation is more appropriate and should become 
the harmonised norm again.   
  In the light of the fact that, contrary to the principles set out above, a longer statement was 
recently again circulated with the WT/DS designation of the dispute US – Continued Suspension of 
Obligations in EC – Hormones , the European Communities feels comp elled to request the circulation 
of the present communication in the same series, so as to ensure that the WT/DS record of this dispute 
does not contain the document circulated at th e United States' request, without response.   
 
__________  
                                                     
 
7 WT/DSB/M/254 Minutes of the Dis pute Settlement Body on 1 August 2008, item 5, paras. 71 to 88 
and particularly 72 to 74 and 86. 
8 WT/DSB/M/254 Minutes of the Dispute Settlement Body on 1 August 2008, item 5, para. 75. 
9 Ibidem.