RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/288 
15 December 2010 
 (10-6730) 
Dispute Settlement Body 
25 October 2010  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 25 October 2010  
 
Chairman:  Mr. Yonov Frederick Agah (Nigeria) 
 
 Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................6  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........6  
(d) European Communities1 – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union .........................................................................7  
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States .............................................................................................................. ...........7  
(f) United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States.................................................................................................... ......8  
(g) United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing"):  Status repor t by the Unite d States..........................................................................8  
2. European Communities1 and its member States – Tariff treatment of certain 
information technology products.............................................................................................9  
(a) Implementation of the recommendations of the DSB.................................................................9  
3. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ..........................................10  
(a) Statements by the European Union and Japan ..........................................................................10  
                                                      
1 On 1 December 2009, the Treaty of Lisbon amendi ng the Treaty on Europe an Union and the Treaty 
establishing the European Community (done at Lisb on, 13 December 2007) en tered into force.  On 
29 November 2009, the WTO received a verbal note (WT /L/779) from the Council of the European Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 
1 December 2009, the European Union replaces and succeeds the European Community. WT/DSB/M/288 
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  4.
 Armenia – Measures affecting the importation and internal sale of cigarettes and 
alcoholic beverages............................................................................................................ ......11  
(a) Request for the establishment of a panel by Ukraine................................................................11  
5. United States – Certain measures affect ing imports of poultry from China.....................12  
(a) Report of the Panel............................................................................................................ ........12  
6. Statement by Brazil regarding official documents addressing the issue of  
implementation of DSB recommendations and rulings.......................................................15  
  
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.95) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.95) 
 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.70) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.33) 
 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by the 
United States (WT/DS322/36/Add.13) 
 (f) United States – Continued existence and app lication of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.10) 
 (g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.4) 
  
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 establis hment 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.95) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.95, 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 14 October 2010, in accordance with  Article 21.6 of the DSU.  As had been noted, a 
number of legislative proposals that would implem ent the DSB's recommendations and rulings in this 
dispute had been introduced in the First Session of the current (111th) Congress.  The Second Session of the 111th Congress had begun in January 2010.  Th e Committee on the Judiciary of the House of  WT/DSB/M/288 
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  Representatives had held a hearing on certain of t hose proposals on 3 March 2010.  In addition, the 
US administration was working with Congress to im plement the DSB's recommendations and rulings. 
4. The representative of the European Union  said that, at the present meeting, the United States 
was presenting yet another status report in this di spute.  The EU hoped that the US authorities would 
soon take steps towards implementing the DSB's ruling and resolve this matter. 
5. The representative of Cuba  said that his country wished to draw attention to the fact that each 
month, under Agenda item 1, the DSB discussed the implementation issue pertaining to a long-standing dispute that involved the United States, due to its failure to comply with the DSB's 
recommendations and rulings.  Thus, under this Agenda  item, the United States was required to report 
on its progress in implementation.  The situation was similar with regard to the other Agenda items.  
The United States, which was the largest user of th e dispute settlement system, very often appeared on 
the list of disputes where compliance was pending.  Furthermore, with regard to the disputes where 
the United States had supposedly complied with its  obligations, Members continued to express 
concerns about the damage caused by US trade me asures.  Thus, it was difficult to reconcile this 
situation with the statements made by the United St ates in its most recent Trade Policy Review report, 
which read as follows:  (i) "The fundamental f eatures of US trade policy – maintenance of open, 
competitive markets, compliance w ith WTO obligations, and leadersh ip in the multilateral trading 
system - remain unchanged ..."
2;  (ii) "...we have made it clear that we welcome rapid and pragmatic 
resolution of trade disputes rather than prolonged uncertainty..."3, and (iii) "... a central theme of US 
policy has been to undertake the effective and tim ely implementation of our WTO commitments.  We 
believe it is not only important for American trade interests, but for the WTO system as a whole, to 
ensure that all Members meet their commitments.  The various manifestations of this policy range 
from active and constructive partic ipation in the deliberations of WTO committees to the use of the 
dispute settlement mechanism.  US trade policy seeks to support and advance the rule of law."4  In 
Cuba's view those statements bore no relation to the US action with regard to Section 211.   
6. Cuba noted that, for the past eight years, as a result of Section 211, the registration of 
intangible assets such as the Havana Club trade mark  had been repeatedly hindered and even made 
impossible in the United States as a result of Secti on 211.  This famous Cuban trademark, which was 
recognized as such all over the world, except by th e US authorities, had been registered in the 
United States to a Cuban company since 1976.  Hava na Club was made by Cuban master rum-makers 
using techniques that dated back more than half a century, which demonstrated the antiquity of the 
Cuban trademark.  It was, therefore, unacceptable that US companies wanted to appropriate that 
trade mark through the application of a law.  
7. Cuba had demonstrated its commitment to, and r espect for, international intellectual property 
treaties, agreements and arrangements to which it was party.  The same, however, could not be said about the United States, which had failed to bri ng its legislation into compliance with its WTO 
obligations.  This US behaviour was yet another ex pression of the US blockade against Cuba, a policy 
that had been extended to the area of intellectual pr operty.  In this regard, Cuba noted that, on 26 
October 2010, the UN General Assembly in New York  would vote on a new draft resolution entitled: 
"The Necessity of Ending the Economic, Commerc ial and Financial Embargo Imposed on by the 
United States of America Against Cuba".  Cuba was certain that the overwhelming majority of 
countries would, once again, unequivocally condemn th is genocidal policy agai nst Cuba.  Cuba would 
continue to request the United States to respond effectively and to repeal Section 211.  
                                                     
 
2 USTPR Report (WT/TPR/G/235), page 6, para. 5. 
3 USTPR Report (WT/TPR/G/235), page 9, para. 17. 
4 USTPR Report (WT/TPR/G/235), page 18, para. 72. WT/DSB/M/288 
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  8. Cuba considered that the information provided in the US status report, which consisted of 
changing a few lines each month, was absurd and disr espectful to all Members.  At present, there was 
a real danger that the unlawful intentions to auc tion Cuban patents and trade marks, which had been 
duly registered in the United States, would become a reality as a result of irrational decisions that 
were contrary to the principles of law.  This ne w development would aggravate the impact of the US 
failure to comply with the DSB's recommendations in this dispute.  In Cuba's view, it was clear that 
after so many years of damage to its trade and economy, the only solution to this dispute was the immediate repeal of Section 211. 
9. The representative of Ecuador
 said that his country supporte d Cuba's statement and, once 
again, wished to emphasize that Article 21 of th e DSU referred expressly to the prompt compliance 
with the DSB's recommendations and rulings, in par ticular with regard to matters affecting the 
interests of developing-country Members.  Ecuador  hoped that the United States would continue its 
efforts to ensure prompt compliance with the DS B's recommendations and rulings by fully repealing 
Section 211.  Ecuador requested the EU to provi de more detailed information on the steps it was 
taking to resolve this dispute. 
10. The representative of India  said that his country thanked the United States for its status report 
and its statement.  India noted with regret that ther e had been no substantive change in the situation, 
and felt compelled, yet again, to stress that the principle of prompt compliance was missing in this 
dispute.  India renewed its systemic concerns a bout the continuation of non-compliance, as this 
undermined the credibility and confidence that Me mbers reposed in the WTO dispute settlement 
system.  India urged the United States to implement the DSB's recommendations in this dispute 
without any further delay.  
11. The representative of Angola  said that her country thanked the United States for providing 
information on the implementation of the DSB's deci sion and the Appellate Body's findings made in 
2002 with regard to Section 211.  Angola recalled that the prompt compliance with the DSB's rulings 
and recommendations was essential to ensure an effec tive resolution of disputes to the benefit of all 
WTO Members.  As was well known, the Appella te Body Report, adopted by the DSB in 
February 2002, had found that Section 211 was inco nsistent with WTO rules and principles and had 
requested the United States to bring its measure into conformity with those rules and principles.  The 
delay in the implementation of the DSB's decision aff ected the efficiency and the predictability of the 
multilateral trading system and set a negative preced ent for similar cases.  Angola believed that 
concrete actions by the parties in this dispute w ould send a positive signal that WTO rules were being 
respected.  
12. The representative of Nicaragua  said that her country thanked the United States for its status 
report pertaining to this dispute.  Nicaragua regr etted that the report showed no substantive progress 
and confirmed the US continued lack of compliance with the DSB's recommendations.  This situation 
was not in line with the principle of prompt comp liance which was essential to ensuring the effective 
functioning of the dispute settlement system.  Ni caragua called upon the United States to fully comply 
with the DSB's recommendations and rulings in this dispute as soon as possible. 
13. The representative of Brazil  said that his country thanked the United States for its status 
report concerning the surveillance of implementati on in this dispute.  Brazil continued to be 
concerned by the US non-compliance with the DS B's recommendations and rulings.  Brazil urged the 
United States to bring its measures into conform ity with the multilateral trade disciplines in the 
nearest future. 
14. The representative of Bolivia  said that her country had not seen any progress in this dispute 
and was concerned about the consequences caused by  such non-compliance with the DSU provisions.  
The United States must comply with the DSB's rulings and repeal Section 21.  This would be  WT/DSB/M/288 
 Page 5 
 
 
  important for ensuring the credibility of the multilateral trading system and the WTO.  Bolivia hoped 
that the United States would show the necessary political will to resolve this dispute.  Finally, she said 
that Bolivia supported the statement made by Cuba at the present meeting.  
15. The representative of China  said that her country thanked the United States for its most recent 
status report.  However, China regretted that th e report was merely a repetition of previous status 
reports and that there was no compliance in this dis pute after more than eight years since the adoption 
of the Panel and the Appellate Body Reports by the DSB.  China believed that this situation was not 
in line with the principle of prompt implementati on stipulated in the DSU provisions, and that it was 
highly inappropriate for a developed-country Member  to maintain such prolonged non-compliance in 
a dispute that involved the interests of a devel oping-country Member.  China strongly supported Cuba 
and urged the United States to implement the DSB's rulings without further delay. 
16. The representative of the Bolivarian Republic of Venezuela  said that the participation in the 
discussion under the Agenda item on the surveilla nce of the implementation of recommendations 
adopted by the DSB was of great importance to  her country, which was concerned about the 
credibility and the effective functioning of the di spute settlement mechanism.  Venezuela supported 
the statement made by Cuba and condemned the US -led economic, trade and financial embargo policy 
imposed on Cuba.  Venezuela was concerned about the US maintenance of legislation that was 
inconsistent with the TRIPS Agreement, the US  failure to repeal Section 211 and the US 
non-compliance with the DSB's recommendations for mo re than eight years.  Venezuela noted, once 
again, that in its most recent status report, da ted 15 October 2010, the United States had provided the 
same information as it had done so on previous occasi ons;  i.e. 94 times.  In that regard, Venezuela 
reiterated what had previously been pointed out th at this constituted "ac tion without results" and 
reflected the US lack of commitment towards th e DSB and WTO Members.  Venezuela called upon 
the United States to comply with the DSB's recomm endations and urged the United States to end the 
damaging embargo against Cuba. 
17. The representative of Paraguay  said that her country thanked the United States for its status 
report.  Paraguay regretted that, after several years, this case continued to remain on the DSB's 
Agenda.  Paraguay called on the United States to comply with the DSB's recommendations and 
rulings. 
18. The representative of Mexico  said that his country thanked the United States for its status 
report pertaining to this dispute.  Mexico urged th e parties to resolve this dispute through the legal 
remedies provided for under the DSU provisions.  He said that any Member had the right to initiate its 
own dispute on the same matter, if it considered that  its benefits were being impaired or nullified.  
Mexico noted that the discussion regarding various  pending disputes under Agenda item 1 of the DSB 
meeting could provide useful input for the discussi ons on effective compliance in the context of the 
DSU negotiations.  
19. The representative of the Dominican Republic  said that, like other delegations, her delegation 
also wished to underline the need for Members to comply with the DSB's recommendations since 
failure to do so would undermine the multilateral trading system.  The Dominican Republic thanked 
the United States for its status report and urged th e United States to resolve the dispute as soon as 
possible. 
20. The representative of South Africa  said that his country wished to join previous speakers in 
calling on the United States to bring its measures  into compliance with the DSB's rulings and 
recommendations.  The DSU espoused the principle of prompt implementation.  Non-compliance 
undermined the proper functioning of the DSU and presented severe systemic problems and challenges for WTO Members.  South Africa, theref ore, called on the United States to implement the 
DSB's recommendations as soon as possible. WT/DSB/M/288 
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  21. 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.95) 
22. The Chairman  drew attention to document WT/DS184/ 15/Add.95, 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. 
23. The representative of the United States  said that his country had provided a status report in 
this dispute on 14 October 2010, 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, the US administration would work wi th the US Congress with respect to appropriate 
statutory measures that would resolve this matter. 
24. The representative of Japan  said that his country thanked the United States for its statement 
and most recent status report.  Japan noted the US status report that the United States had taken certain measures to implement part of the DSB' s recommendations in November 2002.  As for the 
remaining part of the DSB's recommendations, Japan was still waiting for statutory action to be taken 
by the United States.  Japan hoped that the United States would soon be in a position to report to the DSB on tangible progress.  Japan noted that 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".
5  Japan called on the 
United States to fully implement the DSB's recommendations in this long-standing dispute without further delay. 
25. 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.70) 
26. The Chairman  drew attention to document WT/DS160/ 24/Add.70, 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. 
27. The representative of the United States  said that his country had provided a status report in 
this dispute on 14 October 2010, in accordance with Article 21.6 of the DSU.  The US administration 
would continue to confer with the EU, and to work  closely with the US Congress, in order to reach a 
mutually satisfactory resolution of this matter. 
28. The representative of the European Union  said that his delegation remained disappointed that 
the United States had again reported non-compliance.  As had regularly been stated, the EU remained 
ready to work with the US authorities towards the complete resolution of this dispute.  
29. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
                                                      
5 Article 3.3 of the DSU.  WT/DSB/M/288 
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  (d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.33) 
30. The Chairman  drew attention to document WT/DS291/ 37/Add.33, which contained the status 
report by the European Union on progress in the implementation of the DSB's recommendations in 
the case concerning its measures affecting the a pproval and marketing of biotech products. 
31. The representative of the European Union  said that, once again, his delegation noted that the 
EU regulatory procedures on biotech products continued to work as foreseen in the legislation.  The 
adoption, by the Commission, of five new authori zations for GM maize on 28 July 2010, had raised 
the number of GMOs authorized, since the date of es tablishment of the Panel, to thirty-four.  Progress 
had also been made on other applications for au thorization.  Recently, the European Food Safety 
Agency had delivered favourable opinions on two other GM events (GM MON 89034×1507×MON 
88017×59122 and MON 89034×1507×NK 603).  The EU hoped that the United States and the EU would continue their constructive technical dialogue  on which they had re-engaged on 20 July 2010.  
The EU hoped that this constructive approach, based  on dialogue, would allow the parties to leave 
litigation aside. 
32. The representative of the United States
 said that his country thanked the EU for its status 
report and its statement made at the present meeting.   As it had explained at previous DSB meetings, 
the United States continued to have substantial c oncerns with the operation of the EU's regulatory 
system for biotech products.  The United States noted  that at the 21September 2010 DSB meeting, the 
EU had mentioned that four biotech products had received favourable safety opinions from the EU's 
scientific food safety authority.  Those recent opini ons had included opinions from May 2010 on three 
varieties of biotech maize.  The United States noted  that those favourable opinions had been issued 
over five months ago.  The United States looked forward to the EU making timely decisions on the 
approval of those products in accordance with the EU's scientific opinions. 
33. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by the 
United States (WT/DS322/36/Add.13) 
34. The Chairman drew attention to document WT/D S322/36/Add.13, 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 measures relating to zeroing and sunset reviews. 
35. The representative of the United States  said that his country had provided a status report in 
this dispute on 14 October 2010, in accordance with Ar ticle 21.6 of the DSU.  As noted in that status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With respect to the outstanding issues, the United States would con tinue to consult with 
interested parties in order to address those issues. 
36. The representative of Japan  said that his country thanked the United States for its statement 
and its most recent status report.  The United States had stated in its status reports that it "will 
continue to consult with interested parties in orde r to address the findings contained in [the Appellate 
Body and the panel] reports" adopted by the DSB on 31 August 2009.  Japan took this statement as an expression of commitment by the United States to fully implement the DSB's recommendations and 
rulings.  Once again, Japan called on the United St ates to fulfil its commitment by taking immediate 
and concrete action so as to resolve this dispute. WT/DSB/M/288 
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  37. The representative of the European Union
 said that his delegation wished to reiterate its 
disappointment over the lack of any real progress by the United States on compliance with adverse rulings on zeroing in this dispute.  The EU recalled that immediate compliance with the DSB's recommendations and rulings was not an option but an obligation under the DSU. 
38. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.10) 
39. The Chairman  drew attention to document WT/DS350/ 18/Add.10, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning the existence and application of zeroing methodology by the United States. 
40. The representative of the United States  said that his country had provided a status report in 
this dispute on 14 October 2010, in accordance with Ar ticle 21.6 of the DSU.  As noted in that status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With regard to the remaining issues, the United States would continue to consult with 
interested parties. 
41. The representative of the European Union  said that the EU's concerns about the US lack of 
implementation in this dispute were well known and we re recorded in the minutes of past meetings of 
the DSB.  The EU remained disappointed that th e United States continued using zeroing in reviews 
which involved products and measures covered by this dispute, as if nothing had happened.  The most 
recent example was the reviews concerning ball b earings from France, Germany, Italy and the 
United Kingdom, for which the results had been pub lished on 1 September 2010.  The EU continued 
to urge the United States to reconsider its Secti on 129 determination immedi ately and to implement 
the DSB's rulings.  
42. 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/DS294/38/Add.4) 
43. The Chairman  drew attention to document WT/DS294/ 38/Add.4, 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 laws, regulations and me thodology for calculating dumping margins. 
44. The representative of the United States  said that his country had provided a status report in 
this dispute on 14 October 2010, in accordance with Ar ticle 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 
recommendations and rulings in this dispute.  Th e United States would continue to consult with 
interested parties with regard to  the remaining issues.  He said that, as Members were aware, the EU 
had requested authorization from the DSB to suspend concessions or other obligations in this dispute, 
and the United States had objected to the EU's requ est.  Therefore, pursuant to Article 22.6 of the 
DSU, the matter had been referred to arbitration.  Furthermore, in response to  a joint request by the 
United States and the EU, on 8 September 2010, the Arbitrator had issued a communication stating 
that it had decided to suspend its work.  The commun ication of the Arbitrator had been circulated to 
the DSB as document WT/DS294/39.  WT/DSB/M/288 
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  45. The representative of the European Union  said that his delegation thanked the United States 
for its status report.  The EU would continue c onsulting with the United States concerning the next 
steps in implementation.  The EU welcomed US rea ssurances that it was taking the necessary steps to 
bring itself into compliance and that the im position of sanctions would not be necessary. 
46. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
2. European Communities and its member States – Tariff treatment of certain information 
technology products  
(a) Implementation of the recommendations of the DSB  
47. 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 that 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 recal led that at its meeting on 21 September 2010, the 
DSB had adopted the Panel Report pertaining to the dispute:  "European Communities and its member 
States – Tariff Treatment of Certain Information T echnology Products".  The 30-day period in this 
case had expired on 21 October 2010 and, on 13 October 2010, the Eu ropean Union had informed the 
DSB in writing of its intentions in respect of implementation.  The relevant communication was 
contained in document WT/DS375/14 – WT/DS376/ 14 – WT/DS377/12.  He then invited the 
representative of the European Union to make a statement. 
48. The representative of the European Union  said that, at its meeting on 21 September 2010, the 
DSB had adopted the Panel's recommendations and ru lings in the dispute:  "European Communities 
and its Member States – Tariff Treatment of Cert ain Information Technology Products".  As provided 
in the first sentence of Article 21.3 of the DSU a nd as had already been stated in the EU's written 
communication of 13 October 2010, the European Union wished to state that it intended to implement 
the DSB's recommendations and rulings in this dispute in a manner that respected its WTO 
obligations.  The EU was consulting internally on the options for doing so and would need a 
reasonable period of time for implementation. 
49. The representative of the United States  said that his country thanked the EU for the written 
notification of its intentions dated 13 October 2010,  indicating that it intended to implement the DSB's 
recommendations and rulings in this  dispute, and for its statement made at the present meeting.  
Where, as in this case, no DSB meeting had been sche duled within 30 days of the meeting at which 
the DSB adopted its recommendations and rulings, and the parties to the dispute agreed, the 
United States believed that it was helpful to all Members for the Member concerned to provide its 
statement of intentions in writing as this avoide d having to schedule a DSB meeting just for that 
purpose.  The United States looked forward to furt her discussions with the EU on a reasonable period 
of time for its implementation, pursuant to Article 21.3(b) of the DSU.  In this context, the 
United States wished to recall a phrase made by th e EU earlier at the present meeting:  "immediate 
compliance with DSB recommendations and rulings is not an option but an obligation".  The United States trusted that the EU would a pply that sentiment to this item as well.   
50. The representative of Japan
 welcomed the EU's inten tion to implement the DSB's 
recommendations and rulings in this dispute, as s tipulated in the EU's written communication to the 
DSB, as well as in its statement at the present meet ing.  Japan further noted that the EU needed a 
reasonable period of time in which to implemen t the DSB's recommendations and rulings.  Thus, 
Japan stood ready to discuss this matter with the co-c omplainants.  As provided for in Article 21.1 of WT/DSB/M/288 
Page 10  
 
  the DSU, prompt compliance with the DSB's recomm endations and rulings was essential in order to 
ensure effective resolution of disputes.  Japan tr usted that the EU would promptly implement the 
DSB's recommendations and rulings and wished to e ngage, together with the other co-complainants, 
in a constructive dialogue with the EU to this end. 
51. The representative of Chinese Taipei
 said that his delegation welcomed the EU's intention to 
implement the DSB's recommendations and rulings in this dispute as indicated in its written 
communication to the DSB, which had been circul ated within the 30-day period as set forth in 
Article 21.3 of the DSU, and in its statement at  the present meeting.  Chinese Taipei understood from 
the EU's communication and statement that it needed  a reasonable period of time to bring itself into 
compliance with the DSB's ruli ngs and recommendations.  Thus, Chinese Taipei stood ready to 
discuss this matter with the co-complainants.  Ar ticle 21.1 of the DSU stipulated that prompt 
compliance with the DSB's recommendations or ruli ngs was essential in order to ensure effective 
resolution of disputes to the benefit of all Memb ers.  Chinese Taipei believed that the EU would 
promptly comply and it looked forward to working closely with the other co-complainants, and engaging with the EU, to reach an effective and satisfactory resolution of this dispute. 
52. The DSB took note
 of the statements, and of the information provided by the European Union 
regarding its intentions in respect of implementation of the DSB's recommendations. 
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 Union and Japan 
53. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Union and Japan.  He then i nvited the respective representatives to speak. 
54. The representative of the European Union  said that, as it had done many times before, the EU 
wished to ask the United States when it would e ffectively stop the transfer of anti-dumping and 
countervailing duties to the US industry and, hence, put an en end to the c ondemned measure.  The 
EU reiterated that, the fact that the United St ates had stopped disbursing duties collected after a 
certain point in time did not achieve full complianc e.  Every disbursement that still took place was 
clearly an act of non-compliance with the DSB's recommendations.  The EU, once again, renewed its 
call on the United States to abide by its clear obliga tion under Article 21.6 of the DSU and to submit 
implementation reports in this dispute. 
55. The representative of Japan  said that, "FY 2010 Certifications Received" (which was a list of 
the claims filed by US domestic industries for FY2010 distributions) published by US Customs and 
Border Protection6 in September 2010 showed that a new round of distributions under the CDSOA 
appeared to be underway.  Thus the CDSOA remain ed operational.  As the US Customs and Border 
Protection explained, "the distribution process will continue for an undetermined period".7  Japan 
urged the United States to stop the illegal distributions  and repeal the CDSOA, not just in form but in 
substance, so as to resolve this dispute once and fo r all.  According to Article 21.6 of the DSU, the 
United States was under obligation to provide the DSB w ith a status report pertaining to this dispute.  
56. The representative of India  said that his country thanked the EU and Japan for regularly 
bringing this issue before the DSB and fully shar ed their concerns.  As had been mentioned by 
                                                      
6 See US Customs and Border Protection website at:  
http://www.cbp.gov/xp/cgov/trade/prior ity_trade/add_cvd/cont_dump/cdsoa_l0/ 
7 See US Customs and Border Protections website at:  
http://www.cbp.gov/xp/cgov/trad e/priority_trade/add_cvd/cont_dump/cont_dump_faq.xm1  WT/DSB/M/288 
 Page 11 
 
 
  previous speakers, the CDSOA remained operati onal and the WTO-inconsistent disbursements 
continued unabated to the US domestic industry.   India was concerned that non-compliance by 
Members led to a lack of credibility of the WTO di spute settlement system.  India, therefore, urged 
the United States to report full compliance on this issue as soon as possible. 
57. The representative of Brazil  said that his country thanked the EU and Japan for keeping this 
item on the DSB's Agenda.  As had been expressed at previous DSB meetings, Brazil was of the view 
that as long as the United States continued to make disbursements pursuant to the Byrd Amendment, 
the situation of non-compliance in this dispute w ould persist and the issue would not be "resolved" 
within the meaning of Article 21.6 of the DSU.  Thus, pursuant to Article 21.6 of the DSU, unless the DSB decided otherwise, the issue of implementati on should be placed on the Agenda of the DSB and 
should remain thereon until the issue was resolved. 
58. The representative of China
 said that her country thanked the EU and Japan for raising this 
item at the DSB meeting.  China shared the concer ns expressed by previous speakers and joined them 
in urging the United States to fully comply with the DSB's rulings. 
59. The representative of Thailand  said that his country thanked Japan and the EU for continuing 
to bring this item before the DSB and supported the statements made by previous speakers.  Thailand 
continued to urge the United States to cease the disbursements, repeal the Byrd Amendment with 
immediate practical effect, and resume the submissi on of status reports until such actions had been 
taken and this matter was fully resolved. 
60. 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 these disputes.  Furthermore, the Un ited States recalled that Members had acknowledged 
that the 2006 Deficit Reduction Act did not permit the distribution of duties collected on goods entered after 1 October 2007.  The United States, therefore, did not understand the purpose for which 
the EU and Japan had inscribed this item on the Ag enda of the present meeting.  With respect to 
comments regarding further status reports in this matter, as it had already explained at previous DSB 
meetings, the United States failed to see what purpose would be served by further submission of status 
reports repeating the progress the United States had made in the implementation of the DSB's recommendations and rulings. 
61. The DSB took note
 of the statements. 
4. Armenia – Measures affecting the importatio n and internal sale of cigarettes and 
alcoholic beverages 
(a) Request for the establishment of a panel by Ukraine (WT/DS411/2/Rev.1) 
62. The Chairman  drew attention to the communicati on from Ukraine contained in document 
WT/DS411/2/Rev.1, and invited the representative of Ukraine to speak. 
63. The representative of Ukraine  said that her country regretted that Armenia maintained 
measures affecting the importation and internal sale of  cigarettes and alcoholic beverages in violation 
of the national treatment principle of the multilatera l trading system, and in clear violation of its 
commitment set out in the Working Party Report on Armenia's accession to the WTO in 2002.  The measures at issue were the following:  (i) the so- called "Presumptive Tax" under the Armenia's law 
"On Fixed Charges on Tobacco Products", in for ce since 2000, which imposed higher tax rates on 
imported cigarettes than on like domestic products;  (ii) the collection of import duties on imported WT/DSB/M/288 
Page 12  
 
  cigarettes according to the previously mentione d law in excess of duties set forth in Armenia's 
Schedule of Concessions;  and (iii) the imposition of  higher excise tax rates on imported alcoholic 
beverages than on like domestic products pursuant to  the Law "On Excise Tax", in force since 2000.  
Ukraine believed that these measures were in viola tion of Article III:1,2 and 4 of the GATT 1994 as 
well as Armenia's WTO commitment, which confirme d that Armenia would apply its domestic taxes 
in a non-discriminatory manner consistent with the national treatment provisions before or from the 
date of accession.  She said that Armenia had been  aware of these discriminatory and protectionist 
violations.  Ukraine had raised this issue with Armenia bilaterally and ha d drawn the attention of 
Armenia's high-level delegation to this matter in the context of the trade policy review of Armenia in 
April 2010.  At that time, several Members had ech oed and had shared Ukraine's concerns regarding 
this matter.  Ukraine had encouraged Armenia to honour its multilateral commitments and to bring its 
measures into full compliance with the WTO basic principles by taking speedy and effective actions.  
Notwithstanding the clear acknowledgement of thos e long-standing problems and Ukraine's openness 
to dialogue and patient efforts to resolve those ma tters bilaterally, Ukraine unfortunately had to report 
that no WTO-consistent solution had been forthcoming from Armenia.   
64. She recalled that, on 20 July 2010, Ukraine had requested consultations with Armenia, 
pursuant to Article 4 of the DSU and Article XXII. 1 of the GATT 1994.  The official request for 
consultations was circulated in  document WT/DS411/1; G/L/925 date d 22 July 2010.  Subsequently, 
having waited more than 60 days after filing its request for consultations, without receiving any 
official response from Armenia in due time, Ukrain e had exercised its right under the DSU and had 
requested the establishment of a panel to examine this  matter.  She noted that Ukraine's request for the 
establishment of a panel had been circulated as document WT/DS/411/2/Rev.1 on 8 October 2010 and 
was available to all Members.  Nevertheless, offi cial consultations between Ukraine and Armenia had 
finally been held only recently.  Those consultati ons, which had shown Armenia's engagement in the 
process, had borne no sign of havi ng moved the two parties any forward towards an immediate 
satisfactory resolution of this dispute.  Ukraine re mained open to further cons ultations in substance, 
and hoped to reach an amicable and sustainable solu tion to this matter.  Thus, Ukraine would highly 
appreciate if Armenia removed its discriminatory measures which were, in their current form, inconsistent with the basic principles of the multilate ral trading system.  Ukraine, therefore, requested 
that the DSB establish a panel, with standard terms of  reference, to examine the matter as laid out in 
Ukraine's panel request.  
65. The representative of Armenia
 said that his country wished to  thank Ukraine for its statement 
and to inform the DSB that Armenia had intensifie d its bilateral consultations with Ukraine on this 
matter. Armenia believed that the matter could be re solved bilaterally through consultations and, for 
that reason, it was not in a position to agree to th e establishment of a panel at the present meeting. 
66. The DSB took note  of the statements and agreed  to revert to this matter. 
5. United States – Certain measures affecting imports of poultry from China 
(a) Report of the Panel (WT/DS392/R) 
67. The Chairman  recalled that at its meeting on 31 July  2009, the DSB had established a panel to 
examine the complaint by China pertaining to this di spute.  The Report of the Panel, contained in 
WT/DS392/R, had been circulated  on 29 September 2010 as an unrestrict ed document.  The Report of 
the Panel was before the DSB for adoption at the request of China.  He said that the adoption 
procedure was without prejudice to the right of Members to express their views on the Report. 
68. The representative of China  said that her country thanked the members of the Panel and the 
Secretariat for the time and efforts dedicated to resolving this dispute, which concerned various 
measures taken by the United States affecting impor ts of poultry from China.  The United States had  WT/DSB/M/288 
 Page 13 
 
 
  completely banned the importation of poultry pr oducts from China since 2007 through its annual 
appropriation acts and other related measures.  Those measures fundamentally violated relevant WTO 
rules, significantly impeded the ordinary Sino-U S trade in poultry products, and substantially 
impaired the rights and benefits that Chinese enterprises deserved to enjoy under the multilateral 
trading system.  Although China had repeatedly expr essed its serious concerns to the United States, 
both bilaterally and multilaterally, unfortunately this  matter could not have been resolved.  China 
welcomed the Panel Report which had been issued  on 29 September 2010.  The Panel was very clear 
in its findings that, among others, Section 727 of Division A of the Omnibus Appropriations Act of 
2009 ("Section 727"), which had been signed into law as Public Law 111-8, as such, was inconsistent 
with Articles 2.2, 2.3, 5.1, 5.2, 5.5, 8, and Anne x C of the SPS Agreement and Articles I and XI of the 
GATT 1994.  China believed that the Panel's rulings , as they were, already sufficed in addressing 
conclusively the question of WTO-in consistency of the US poultry legislation.  Therefore, China had 
inscribed the Panel Report on the Agenda of the pr esent meeting for adoption.   Although Section 727 
had now expired, China noted that certain provisi ons in annual appropriations measures of the US 
Congress may still affect China's ability to access the US poultry market in the future.  Therefore, 
China wished to reiterate that Chinese poultry products were safe and hoped that the United States 
would attach importance to China's concerns, ta ke positive steps to eliminate all discriminatory 
measures against Chinese poultry products, conduct fa ir import assessments and tests on poultry from 
China and resume normal China – US trade on poultry products.  
69. The representative of the United States  said that his country was disappointed with the 
findings in the Panel Report pertaining to this disput e.  The measure that had been the subject of the 
dispute, Section 727 of a 2009 Appropriations Act, was a single sentence that restricted the funding of 
certain government activities during a specific and lim ited period of time.  The measure had been 
adopted in the context of an equivalence re view, a process explicitly recognized in the SPS 
Agreement.  In particular, the measure had been a dopted during an ongoing re view of China's request 
to have the United States agree that China's SPS meas ures resulted in exports of poultry products from 
China that would meet the level of safety deemed  appropriate by the United States.  The specific 
effect of the measure was to prohibit the US De partment of Agriculture from using funds, during a 
period of several months, to establish or implemen t a rule permitting import of poultry products from 
China.  The measure was designed to provide time fo r a study of changes in China's regulatory system 
and the development of a plan to guarantee the safet y of imports from China.  As the Panel had found, 
Section 727 had expired in 2009, and there was curren tly no restriction on the use of funds to finalize 
or implement a determination as to whether China' s SPS measures were equivalent to US measures.  
Although the measure was an expired funding restricti on with a narrow effect under US law, the Panel 
Report in this dispute addressed the measure under multiple, disparate provisions of the WTO 
Agreement.   
70. Those findings raised a number of significant questions that should be of interest and concern 
to many Members.  First, issues regarding e quivalence reviews were new to the WTO dispute 
settlement, and were distinct from any previous di spute under the SPS Agreement.  Article 4 of the 
SPS Agreement provided specific obligations when  a Member claimed that its measures were 
equivalent.  Yet, China made no claim in this di spute under Article 4.  Nor did the Panel Report 
recognize that Article 4 was important context to be  used in determining whether other provisions of 
the SPS Agreement applied to issues involving an equi valence review.  As a result, many of the Panel 
Report's findings appeared to be at odds with the in herent nature of any Member's review of a claim 
of equivalence.  For example, the Panel Report had found that Section 727 breached SPS Articles 2.3 
and 5.5 because it found that Section 727's differen tial treatment of Chinese poultry products resulted 
in discrimination.  By its very nature, however , an equivalence examination treated products from 
different Members differently.  Indeed, the whole pr emise of an equivalence review was to decide 
whether to allow the import of products from the te rritory of a single WTO Member because of that 
Member's measures.  The Panel Report's findings  regarding Article 8 and Annex C of the SPS 
Agreement raised similar questions.  On their face,  Article 8 and Annex C ap plied only to "control, WT/DSB/M/288 
Page 14  
 
  inspection or approval procedures".  The examples in the SPS Agreement of those procedures were 
"procedures for sampling, testing and certification".  However, the Panel Report found, without a textual basis, that equivalence reviews were cove red by Article 8 and Annex C.  In short, the 
relationship between equivalence reviews under Artic le 4 and other provisions of the SPS Agreement 
was a complex one.  That relationship was of systemic importance to all WTO Members.  The 
United States considered that the matter warranted a more careful analysis than it received in the 
Panel Report.   
71. Second, the United States had systemic concer ns with the Report's "like products" analysis 
under Article I of the GATT 1994.  The Panel Repor t's analysis effectively proceeded from the 
assumption that products produced by one WTO Member, and processed by that Member's food 
safety system, must be presumed to be as safe as products produced by another Member and 
processed by that Member's food safety system.  Th ere was no basis for such a presumption.  Indeed, 
that approach would be contrary to the very purpose of an equivalence review.  Third, the 
United States was concerned with  the treatment the Panel Report provided the US defence under 
Article XX(b) of the GATT 1994.  The Report did not include a systematic analysis of the US 
arguments.  Instead, the Panel Report found that no m easure that breached Articles 2 and 5 of the SPS 
Agreement could be justified under Article XX(b).  The United States believed that this conclusion 
was not correct.  In fact, it had the legal rela tionship between Article XX of the GATT 1994 and the 
SPS Agreement backwards.  The SPS Agreement cont ained obligations in addition to those in 
Article XX of the GATT 1994.  The fact that a me asure may not fully comply with those additional 
obligations was not sufficient, standing alone, to support a finding that the measure was not 
"necessary to protect human, animal, or plant lif e or health" under Article XX(b).  With those 
concerns in mind, the United States noted its appreci ation that the Panel Report had exercised judicial 
economy with respect to China's claim under Article 4.2 of the Agreement on Agriculture, and part of 
China's claim under Article 5.5 of the SPS Agreement.   In that context, the Report explained the 
principles underlying the exercise of judicial economy,  in particular that panels should only address 
those claims necessary to resolve the dispute.  Appl ying that same approach to other issues may have 
avoided many of the systemic concerns raised by the United States at the present meeting.   
72. The United States again noted that, as the Panel had found, the measure at issue had expired 
in 2009.  The United States further noted that, th e US Department of Agriculture was currently 
working with China on reviewing its equivalence a pplication, and looked forward to working with 
China on this matter in a positive and productive manner.   As the measure at issue in this dispute had 
ceased to exist in 2009, the United States considered that the measure had been withdrawn within the 
meaning of Article 3.7 of the DSU, and that this dispute had been resolved. 
73. The representative of the European Union
 said that his delegation welcomed the Panel 
Report, which had clearly arrived at the right conc lusions on a measure that was obviously in breach 
of basic WTO obligations.  The EU also welcomed the Panel's examination of Articles I and XI of the 
GATT 1994, even after the breaches of the SPS Agreem ent had already been found.  The EU thought 
that this was the correct approach, as obligations under the SPS Agreement could not be considered in 
a vacuum and separately from their natural context of GATT obligations.  However, the EU had some 
doubts on the exact path that the Panel had chosen to  come to the conclusion that the measure was not 
justified under Article XX(b) of the GATT 1994.  Th e Panel had arrived at this finding by simply 
observing that the measure had been found in breach  of Articles 2 and 5 of the SPS Agreement, and 
that, therefore, the measure must also not have been  in line with the requirements of Article XX(b) of 
the GATT 1994.  The EU was of the view that, wh ile the SPS Agreement and Article XX(b) of the 
GATT 1994 were obviously very closely related, it woul d not be appropriate to assume that a breach 
of the SPS Agreement always and automatically r esulted in the measure not being in line with 
Article XX(b) of the GATT 1994.  On the contrary, in the context of analyzing violations of Articles I 
and XI of the GATT 1994, and possible defences ther eto, the EU considered that the Panel should 
have examined the measure in light of the different requirements of Article XX(b) of the GATT 1994  WT/DSB/M/288 
 Page 15 
 
 
  and the chapeau to see if those requirements had been met.  Given the particular facts of this case, the 
EU would have expected such an examination to have arrived at a finding  of inconsistency with 
Articles I and XI of the GATT 1994, not justified by Article XX(b), but not automatically because of the SPS breach per se .  That approach would also have been more coherent with the Panel's analysis 
of Articles I and XI of the GATT 1994 as distinct obligations.   
74. The DSB took note
 of the statements and adopted  the Panel Report contained in 
WT/DS392/R. 
6. Statement by Brazil regarding official documents addressing the issue of  
implementation of DSB recommendations and rulings 
75. The representative of Brazil , speaking under "Other Business", sa id that his country wished to 
raise an issue related to WTO dispute settlement th at had caught Brazil's attention when it had read 
the Report prepared by the Secretariat in connecti on with the most recent Trade Policy Review (TPR) 
of the United States.  In its Report, the Secretariat stated that:  "The United States has not yet implemented the WTO Dispute Settlement Body's (D SB) recommendations and rulings relating to:  
Section 110(5) of the US Copyright Act;  some aspects of the US anti-dumping investigation of 
certain hot rolled steel products from Japan;  and Section 211 of the Omnibus  Appropriations Act of 
1998."  Brazil believed that the Secr etariat in charge of the US TPR had prepared this list on the basis 
of item 1 of the DSB's Agenda, although it must ha ve looked at the Agenda of a meeting that had 
taken place before August 2009.  Br azil understood that, in practice, a dispute was only placed under 
item 1 of the DSB Agenda when the responding party voluntarily submitted status  reports pursuant to 
Article 21.6 of the DSU.  In cases where a party had not yet implemented the DSB's recommendations 
and rulings, but nevertheless had not submitted a status  report, the dispute was not listed under item 1.  
Therefore, in light of this practice, there was no reason to assume that the list of disputes provided under item 1 covered all disputes where implementa tion was still outstanding.  One obvious example 
of incongruity was the Cotton dispute.  There might  be others, as demonstrated by the discussion on 
implementation in the Byrd Amendment dispute.  Brazil, therefore, requested that the WTO 
Secretariat take this situation into account when  addressing in official documents the issue of 
implementation of DSB recommendations and rulings, and clarify that the list drawn from item 1 of 
the DSB Agenda may not be exhaustive with respect  to disputes where no full implementation had yet 
taken place.   
76. The DSB took note
 of the statement. 
__________