RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/245 
14 March 2008 
 (08-1150) 
Dispute Settlement Body 
21 January 2008  
 
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 21 January 2008  
 
Chairman:  Mr. Bruce Gosper (Australia) 
  
Prior to the adoption of the Agenda
1 
 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 .............................................................................................................. ...........3  
(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) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States .............................................................................................................. ...........6  
(e) European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Communities..............................................................9  
2. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ..........................................11  
(a) Statements by the European Communities and Japan ..............................................................11  
3. Australia – Measures affecting the importation of apples from New Zealand..................12  
(a) Request for the establishment of  a panel by New Zealand .......................................................12  
4. Proposed nominations for the indicative list of governmental and 
non-governmental panelists ...................................................................................................13  
  
                                                     
 
1 See page 2. WT/DSB/M/245 
Page 2  
 
  Prior to the adoption of the Agenda
 
 The representative of Japan
 said that, in light of the action taken by the United States, as 
reflected in WT/DS322/25, and the consequent referral to arbitration, pursuant to Article 22.6 of the 
DSU, the DSB was not in a position to grant author ization pursuant to Article 22.6 of the DSU and, 
therefore, the Agenda could be adopt ed without sub-items 4(a) and 4(b).2  Japan understood that the 
adoption of the Agenda without sub-items 4(a) and 4(b) would not constitute a withdrawal of Japan's 
request for DSB authorization, as set out in documents WT/DS322/23 and WT/DS322/24.   The representative of the United States
 said that his country agreed with Japan that the DSB 
was not in a position to grant authorization pursuant to Article 22.6 of the DSU and, therefore, the 
Agenda could be adopted without sub-items 4(a)  and 4(b).  The United States confirmed Japan's 
understanding that the adoption of the Agenda without those sub-items would not constitute a 
withdrawal of Japan's request for DSB authorization.  
 The Chairman
 proposed that the DSB take note of the statements and the shared 
understanding between the parties concerning the refe rral to arbitration, and that the agenda be 
adopted with the changes as proposed.   The DSB took note
 of the statements and the shar ed understanding between the parties 
concerning the referral to arbitration, and adopted  the agenda with the changes as proposed.  
  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.62) 
 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.62) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT(DS160/24/Add.37) 
 
(d) United States – Measures relating to zeroing and sunset reviews:  Status report by the 
United States (WT/DS322/22/Add.2) 
 (e) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37–WT/DS292/31–WT/DS293/31) 
 1. The Chairman
 recalled that Article 21.6 of the DSU required that "unless the DSB decides 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
agenda of the DSB meeting after six months follo wing the date of establishment of the reasonable 
period of time pursuant to paragraph 3 and shall remain on the DSB's agenda until the issue is 
resolved".  He proposed that the five sub-items to which he had just referred be considered separately. 
                                                      
2 See WT/DSB/W/368 - Item 4:  "United States – Measures Relating to Zeroing and Sunset Reviews:  
(a) Recourse to Article 22.2 of the DSU by Japan (WT/DS322/23);  (b) Recourse to Article 22.2 of the DSU by 
Japan (WT/DS322/24)".  WT/DSB/M/245 
 Page 3 
 
 
  (a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.62) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.62, 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 10 January 2008, in accordance with Ar ticle 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 th e current Congress, in both the US Senate and the US 
House of Representatives.  The US administratio n continued to work with the US Congress to 
implement the DSB's recommendations and rulings. 
4. The representative of the European Communities
 said that the EC was now approaching the 
sixth anniversary of the condemnation of Section 211 by the DSB.  The EC sincerely hoped that the bipartisan bills introduced in the US Congress to repeal Section 211 would finally progress and bring 
the United States into compliance with its TRIPS obligations. 
5. The representative of Cuba
 said that the United States, a blatant non-compliant with the 
DSB's rulings, attracted the largest number of comp laints under the dispute settlement mechanism.  
The United States had continued to submit laconic "c ompliance" status reports with no substance and 
had disregarded the concerns raised by a number of delegations in the DSB meetings.  If Members 
wanted to have a strong dispute settlement mech anism, which would ensure just and equitable 
protection of their rights, not only the most powerfu l ones, then the current mechanism – once viewed 
as the "jewel in the crown" able to resolve conflicts  and prevent trade wars – was in urgent need of 
reform.  Perhaps punitive measures should be imposed on those Members who blatantly and 
persistently failed to comply with the DSB's ru lings and recommendations, and Members affected by 
such failures should be offered fair compensation.  Ten years ago, the US Congress, giving into the 
pressures and bribes of the extreme right-wing Cuba n Americans and their partners in the firm 
Bacardi SA, had approved the so-called Section 211.   This legislative aberration violated the 
international laws and treaties to which the United States was a party.   
6. Section 211 violated obligations set forth in the TRIPS Agreement and the Paris Convention 
for the Protection of Industrial Property.  And yet it had been in force for years, in spite of the persistent and reasoned complaints  raised by Cuba and other Members concerning this disregard of 
international trade rules.  All Members knew how important it was, from the economic point of view, 
for a country to enjoy proper protection of copyri ght works, inventions, trademarks or industrial 
designs.  Section 211 ignored the rights of the owners of well-known Cuba n trademarks, thereby 
preventing these intangible assets from being successfully  exploited.  The United States accused other 
Members of non-compliance in various disputes.  At  the same time, the United States did not comply 
with the DSB's recommendations, and continued to provide Members with the same excuses 
regarding its non-compliance.  Meanwhile, Bacar di SA, through manoeuvring and bribery of people 
in the right places, had taken unfair advantage of the situation.  It had fraudulently marketed rum of low quality in the United States under the Havana Club trademark, and had repeatedly been taken to 
court in the United States.  Section 211 was an  extension of the US economic, commercial and 
financial blockade, which had been imposed on C uba for decades.  Although there was no solution in 
sight and efforts to denounce this situation were futile, Cuba reiterated that  it would not allow this 
issue to be forgotten, and that it would pursue its condemnations in every possible forum.  Cuba called 
for the immediate revocation of Section 211.  If such  WTO-inconsistent measur es remained in force, 
they would pose a threat to the stability of the mu ltilateral trading system, which appeared to favour 
only a few Members. WT/DSB/M/245 
Page 4  
 
  7. The representative of Brazil
 said that his country wished to renew its systemic concerns about 
the situation of non-compliance in this dispute.  Despite the adoption of the Panel and the Appellate 
Body Reports by the DSB in this dispute several y ears ago, no implementing action had been taken by 
the United States.  Brazil, once again, urged the Unit ed States to take, promptly, the requisite steps to 
bring the condemned measures into compliance with the DSB's recommendations.  
8. The representative of China  said that his country thanked the United States for its status report 
and its statement made at the present meeting.  Howe ver, it was very regrettable that the US status 
report contained no substantive changes.  China had been making statements on this issue for almost 
three years, and once again, wished to reiterate  its systemic concerns with the protracted 
implementation process in this dispute.  The prompt and full implementation of the DSB's rulings and 
recommendations was one of the major cornerstones of the WTO dispute settlement system.  China 
hoped that the current US Congress would realize that it was in the interest of not only other Members, but also in the interest of the United States to put an end to this situation, which 
undermined the authority of the TRIPS Agreement and the creditability of the dispute settlement system.  Therefore, China urged the United States to make an extra effort to bring itself promptly into 
conformity with the decision of the DSB. 
9. The representative of Thailand
 said that his country wished to thank  the United States for its 
status report and the statement made at the present meeting.  Like previous speakers, Thailand wished 
to express its concern over the systemic implications of this dispute.  Non-implementation of the DSB's rulings and recommendations undermined th e rules-based multilateral trading system.  
Thailand, therefore, called on the United States to ta ke the necessary and urgent steps to comply with 
its obligations under the TRIPS Agreement. 
10. The representative of India
 said that her country, while thanking the United States for the 
status report and the statement made at the present meeting, appreciated the steps taken thus far under 
Section 211 as a positive step.  However, India wish ed to renew its systemic concerns about the 
situation of non-compliance in this dispute.  As mentioned on previous occasions, this continuous 
non-compliance situation clearly undermined the cr edibility and confidence that the Members reposed 
in the system and the carefully negotiated balance of rights and obligations of the entire Membership. 
11. The representative of the Bolivarian Republic of Venezuela  said that her country thanked 
Cuba for its statement regarding the most recent developments in the case at hand, and noted the 
status report submitted by the United States.  Her coun try, once again, wished to draw attention to the 
adverse effects of the failure to implement the DSB's recommendations, which were not only harmful 
to the sovereignty of the WTO, but could also u ndermine the credibility of the rights negotiated by 
Members, and their confidence in the multilate ral trading system.  Members had witnessed 
expressions of goodwill on the part of the United States and yet Section 211 continued to be under 
discussion in the DSB.  Prompt compliance with th e DSB's recommendations, and particular attention 
to matters affecting the interests of developi ng-country Members, were essential requirements, 
stipulated in Article 21.1 and 2 of the DSU.  Preventing such flagrant violations must be a priority for 
all Members.  Alternatives must, therefore, be sought to ensure prompt compliance with the DSB's 
rulings.  If not, compensation should be offered to  those developing countries which were affected by 
such protracted failures to comply.  For the reas ons set forth above, her country strongly requested 
that the United States fully comply with its obligations under the TRIPS Agreement. 
12. The representative of Nicaragua  said that, like previo us speakers, her country wished to thank 
the United States for its status report.  Nicaragua noted that that report was very similar to the one 
which had been submitted by the United States at th e previous DSB meeting.  It was for that reason 
that Nicaragua continued to express its systemic concer ns regarding this issue, in particular since this 
matter had been on the DSB's agenda for a long peri od of time.  Nicaragua wished to encourage the  WT/DSB/M/245 
 Page 5 
 
 
  United States to take a more pro-active attitude so  as to ensure a prompt compliance with the DSB's 
recommendations.  
13. The representative of Argentina  said that, like previous speaker s, Argentina highlighted the 
fundamental importance of prompt and satisfactory resolutions of disputes to the proper functioning 
of the dispute settlement system.  Accordingly, Argent ina requested that the parties to this dispute find 
a solution so that this item be removed from the DSB's agenda. 
14. The representative of Viet Nam  said that his country wished to join previous speakers and 
urged the United States to immediately implement the DSB's recommendations pertaining to this 
dispute.  
15. The representative of the United States  said that his country regretted very much that some 
Members – including some whose record of protecti ng intellectual property rights appeared less than 
robust – continued to criticize the US commitment to intellectual property rights.  These criticisms 
were completely unfounded.  It was, of course, tr ue that the United States remained a strong advocate 
of substantial protections for intellectual propert y internationally.  However, the United States was 
also second to no one in providing strong intellect ual property protection within its own territory. 
16. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.62) 
17. The Chairman  drew attention to document WT/DS184/ 15/Add.62, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
18. The representative of the United States  said that his country had provided a status report in 
this dispute on 10 January 2008, in accordan ce with Article 21.6 of the DSU.  As of 
23 November 2002, the US authorities had addresse d the DSB's recommendations and rulings with 
respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty 
investigation at issue in this dispute.  Details  were provided in document WT/DS184/15/Add.3.  The 
US administration would work with the US Congress with respect to the recommendations and rulings of the DSB that had not already been addressed by the US authorities by 23 November 2002. 
19. The representative of Japan
 said that his country thanked the United States for its statement 
and the latest status report in this dispute.  Japan also acknowledged that, in November 2002, the 
United States had taken some measures to implement certain parts of the DSB's recommendations, as 
reported by the United States.  The fact remained, how ever, that while it had been more than six years 
after the adoption of the DSB's recommendations, th e remaining part of the recommendations had yet 
to be implemented and the issue of implementation in this case was still on the DSB's agenda.  Japan 
noted the US statement that the US administra tion continued to support specific legislative 
amendments that would address unimplemented pa rts of the DSB recommendations and rulings, and 
that it was working with the current Congress to pa ss such amendments.  Japan strongly hoped that 
the United States would soon be in a position to re port to the DSB on more tangible progress in this 
respect.  A full and prompt implementation of the recommendations and rulings of the DSB was 
essential for maintaining the credibility of the WT O dispute settlement system.  Japan urged the 
United States to accelerate its work to come into full compliance without further delay. 
20. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/245 
Page 6  
 
  (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.37) 
21. The Chairman
 drew attention to document WT/DS160/ 24/Add.37, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
22. The representative of the United States  said that his country had provided a status report in 
this dispute on 10 January 2008, in accordance with Ar ticle 21.6 of the DSU.  The US administration 
would work closely with the US Congress and would c ontinue to confer with the EC, in order to reach 
a mutually satisfactory resolution of this matter.  In  this regard, the United States appreciated the EC's 
recent statements that it remained pr epared to work with the United St ates to seek a resolution to this 
dispute.  The United States shared the EC's goa l of discussing how such a mutually satisfactory 
solution could be achieved. 
23. The representative of the European Communities  said that, yet again, there was no need to 
repeat what the EC had stated countless times. The EC was still waiting for a solution in this long-
standing dispute.  
24. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) United States – Measures relating to zeroing and sunset reviews:  Status report by the 
United States (WT/DS322/22/Add.2) 
25. The Chairman  drew attention to document WT/DS322/ 22/Add.2, 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. 
26. The representative of the United States  said that his country had provided a status report in 
this dispute on 10 January 2008, in accordance with Ar ticle 21.6 of the DSU.  As the US status report 
explained, the United States was no longer perform ing average-to-average comparisons in anti-
dumping investigations without offsets.  The United States had thus eliminated the single measure that 
Japan had challenged and that th e Appellate Body had found to be inconsistent with the WTO 
Agreement "as such", and the United States had complied with the DSB's recommendations and rulings with respect to that measure.  In addition,  in respect of the one investigation that Japan had 
challenged "as applied" and which had not otherw ise been revoked, the United States had issued a 
revised determination in connection with that invest igation.  In respect of the administrative reviews 
challenged "as applied", those reviews had been  superseded by subsequent reviews.  The 
United States had, therefore, also complied w ith the DSB's recommendations and rulings concerning 
those measures. 
27. The representative of Japan
 said that his country thanked the United States for its statement 
concerning its status report regarding implementati on of the DSB recommendations and rulings in this 
dispute.  In the report, the United States had mentioned that, as from 22 February 2007, the 
United States was no longer using the zeroing metho dology in weighted average-to-weighted average 
(W-to-W) comparisons in original investigations.  As stated at the present meeting, the United States 
had also announced on 27 December 2007, that it had taken steps to implement the DSB's recommendations and rulings with respect to the an ti-dumping investigation regarding imports of cut-
to-length carbon quality steel products.  Japan recogni zed that these were positive steps forward in the 
right direction.  However, this step by the United States had addressed only a part of the DSB's 
recommendations and rulings.  Despite the expiry of  the reasonable period of time, mutually agreed 
between Japan and the United States, on 24 Decemb er 2007, in Japan's view, the United States had  WT/DSB/M/245 
 Page 7 
 
 
  taken no further steps than to abolish zeroing re garding W-to-W comparisons in the original 
investigations.  For the remaining part of th e DSB's recommendations concerning the other WTO-
inconsistent zeroing measures, Japan found little progress in the status of the US implementations.  In other words, according to the status report, the United States had not taken any measures to comply 
with regard to transaction-to-transaction (T-to-T) co mparisons in the original investigations as such, 
periodic reviews as such, individual periodic review s as applied, new shipper reviews as such, and 
individual sunset reviews, on all of which the Ap pellate Body had clearly found the inconsistency 
with the WTO Agreement.  Nor did Japan find any indication on the part of the United States of its intention to make further efforts towards impl ementing the recommendations and rulings concerning 
these measures.  
28. In addition, the United States had stated in the status report, with r espect to the assessment 
reviews at issue in this dispute, that the results had been superseded by subsequent reviews in each 
case and that, therefore, no further action was necessary for the United States to bring these 
challenged measures into complianc e with the recommendations and rulings of the DSB.  Japan found 
it hard to understand this logic.  Even after the s ubsequent reviews, the same measure still remained in 
force and under that measure the United States con tinued to collect WTO-inconsistent anti-dumping 
duties.  The claims the United States was making raised a serious concern that the WTO dispute 
settlement system was unable to redress illega l individual anti-dumping actions, as long as the 
Member concerned subsequently conducted peri odic reviews under a retrospective duty assessment 
system.  The United States could not avoid its ob ligation to bring the measure into conformity 
according to the recommendations and rulings of the DSB, by falsely claiming that such measure no 
longer existed. 
29. Japan believed that a full and prompt impl ementation of the DSB's recommendations and 
rulings was essential for the effective resolution of particular disputes.  It was also essential for 
maintaining the credibility and proper functioning of the WTO dispute settlement system.  It was 
Japan's deep regret that the United States had failed to do so.  The Appellate Body Report shall be 
unconditionally accepted by the parties to the dispute,  once adopted by the DSB, irrespective of their 
views on the Panel and Appellate Body Reports.  In  the light of the common objectives of the WTO 
dispute settlement shared by Members, Japan had fe lt obliged to take the next steps provided in the 
DSU.  Accordingly, on 10 January 2008, Japan ha d requested authorization from the DSB to suspend 
the application to the United States of tariff concessi ons or other obligations pursuant to Article 22.2 
of the DSU.  Finally, Japan wished to urge the US  administration to accelerate its efforts to come into 
full compliance with the DSB's recommendations and rulings and the US obligations under the 
covered agreements. 
30. The representative of the European Communities
 said that the deadline for implementation of 
the DSB's ruling in this dispute had now expired.  A nd, again, the EC was confronted with a failure of 
the United States to comply with the DSB's reco mmendations and rulings.  He recalled that, with 
regard to the issue of zeroing, the EC was also aw aiting full implementation of the rulings in its own 
zeroing case against the United States (DS294).  In add ition, the EC had had to initiate another dispute 
because of the continued application of zeroing by the United States, which was now pending before a 
panel (DS350).  To justify its inaction, the EC ha d heard from the United States that the illegality of 
zeroing was not yet settled in the WTO.  This was anything but correct.  The issue of zeroing had been subject to numerous litigations since the firs t case brought against the EC in 1998.  To-date, 12 
disputes had been brought against the use of zeroi ng by the United Stat es, whether as the unique 
subject of the dispute or as part of a wider disput e.  All issues of law had been extensively pleaded 
and analyzed.  There was no doubt left that zeroing ran foul of fundamental obligations of the Anti-Dumping Agreement, which were to establish dum ping in respect of an exporter and a certain 
product, and to conduct a fair comparison between th e export prices and normal value.  The fact that 
the United States had sought a change to the WTO obligations in the future was not valid ground for 
not complying with the obligations as they currently stood.  Going down the route suggested by the WT/DSB/M/245 
Page 8  
 
  United States would be the end of a system based on rules, which were enforced and respected to the 
equal benefit of all Members.  The EC hoped that the United States would finally accept this and put 
an end to all remaining illegal practices of zeroing. 
31. The representative of the United States
 said that it was clear from Japan's intervention that the 
United States and Japan had a disagreement about whether the United States had taken measures to 
comply with the DSB's recommendations and rulings or  whether those measures were consistent with 
a covered agreement.  The United States was, ther efore, puzzled why Japan had chosen to pursue a 
request for retaliation and arbitration under Article 22.6 of the DSU at this time.  It was well known 
that Japan was one of the most active proponents of  "sequencing".  Japan had advocated the position 
that the DSU text required a complaining party to have recourse to Article 21.5 when there was a 
disagreement about compliance.  For instance, Ja pan had said that, in its view, "when there was 
disagreement [with regard to compliance], a prevaili ng party could not resort to Article 22.6 without 
resolving this disagreement through the process of Article 21.5".3  Japan had also advocated that 
sequencing was important to the proper functioni ng of the dispute settlement system.  When 
commenting on a US request to suspend concessions under Article 22.2, Japan had said that "it was 
important not to resort to unilateralism, and befo re the DSB authorized a request for suspension of 
concessions, there should be a factual determinati on of a violation of the WTO Agreement or non-
compliance with the rulings of the panel or the A ppellate Body.  This woul d safeguard the long-term 
integrity, fairness and impartiality of the system.  Japan had proposed  to suspend the US request and 
wait for the determination of the panel under Article 21.5".4  
32. In light of these prior statements, the United States wondered whether Japan intended to 
persist in its current course of action, and if so, what conclusion Members should draw from Japan's 
apparent change of position on sequencing.  Sec ond, regarding Japan's comments concerning the "as 
such" measure, Japan had only challenged one measur e "as such", which it had referred to as the 
"zeroing procedures".  The Panel and the Appellate  Body had also concluded that the "zeroing 
procedures" "do not correspond to separate rule s or norms, but simply reflected different 
manifestations of a single rule or norm" (AB Report, para. 88). 
33. The representative of the European Communities  said that, in light of the US comments, he 
wished to state that th e EC was very strongly in favour of th e sequencing mechanism when there was 
a genuine disagreement on implementation.  Th e first step should be a compliance panel under 
Article 21.5 of the DSU and only then one could re quest arbitration under Article 22.6 of the DSU. 
34. The representative of Japan  said that his delegation wished to respond to the comment made 
by the United States.  He said that the United St ates had stated that, by abolishing the zeroing 
methodology in W-to-W comparison investigations , it had removed the zeroing measures identified 
by the Panel and the Appellate Body.  Because of that, there had to be some disagreement between 
Japan and the United States with respect to the implementation of "as such" measure found to be 
WTO-inconsistent.  Japan was not sure whether th ere was any disagreement within the meaning of 
Article 21.5 of the DSU.  Japan did not disagree that the United States had eliminated zeroing in W-
to-W comparison in investigations and was not sayin g that that action was WTO-inconsistent.  Japan 
was puzzled by the US intervention that there had to be some disagreement.  Japan's position was that 
those actions, namely, abolishing zeroing methodol ogy in W-to-W comparison investigations, had 
neither addressed Japan's concern nor the DSB's reco mmendations and rulings.  Japan took note of the 
US statement and would continue to consult with th e United States.  With respect to the US comment 
on Japan's position regarding sequencing, Japan had been and continued to be a strong advocate of 
sequencing.  Japan and the EC had put forward th eir proposal on sequencing in the context of the 
DSU negotiations.  Japan was surprised about the US statement questioning Japan's position on this 
                                                      
3 WT/DSB/M/54, p. 13. 
4 WT/DSB/M/54, p. 22.  WT/DSB/M/245 
 Page 9 
 
 
  matter.  This was so especially because, in this par ticular case, Japan considered that the United States 
had made very little progress towards the implementa tion of the DSB's recommendations and rulings.  
Under such circumstances, Japan had requested aut horization to retaliate in order to reserve its 
legitimate rights provided under the DSU provisions.  However, Japan was still open to discussions 
with the United States regarding a sequencing agreement. 
35. The DSB took note  of the statements. 
(e) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37-WT/DS292/31-WT/DS293/31) 
36. The Chairman  drew attention to document WT /DS291/37-WT/DS292/31-WT/DS293/31, 
which contained the status report by the Europ ean Communities on progress in the implementation of 
the DSB's recommendations in the case concerning th e EC's measures affecting the approval and 
marketing of biotech products. 
37. The representative of th e European Communities  said that this case was an example of good 
faith cooperation between complainants and a defend ant in relation to compliance with a WTO panel 
report.  The EC had been holding regular technical  discussions with the three complainants, which 
had addressed all relevant biotech-related issues of th eir concern.  In recognition of the usefulness of 
this dialogue and progress made in the processing of pending applications, the three complainants had 
agreed to further extend the initial 12-month re asonable period of time for implementation until 
11 January 2008.  Two of the complainants (Arg entina and Canada) had even agreed to a second 
extension of the reasonable period of time of five  and one months respectively.  The United States, 
while tabling a retaliation requ est, had concluded a sequencing agreement that would suspend 
proceedings conducive to the determination of  any retaliation until compliance procedures under 
Article 21.5 of the DSU were concluded.  Nu mbers might be illustrative in assessing progress.  
Seventeen applications had been approved since th e WTO panel had been esta blished in August 2003.  
Only in 2007, seven new GM products had been aut horized and four other products would likely be 
approved in early 2008.  The EC be lieved that given the inevitably sensitive nature of biotech issues, 
dialogue was the appropriate way forward and remain ed open to continue discussions with the three 
complainants. 
38. The representative of the United States  said that that his country thanked the EC for its 
written status report and for its statement made at th e present meeting.  The reasonable period of time 
for the EC's compliance in this dispute had expired on 11 January 2008.  Although now over four and 
a half years had elapsed since the United States had filed its consultation request in May 2003, the 
issues covered in the dispute remained unresolved and the United States remained very concerned 
with the EC's treatment of agricultural biotech products.  The EC had cited progress in making approvals, and indeed some approva ls had occurred.  The United States would note, however, that the 
DSB had found that the EC had adopted a general moratorium starting in 1999 – nearly eight years ago – and lasting at least through mid-2003.  A hand ful of approvals over an eight year period was, 
unfortunately, of little commercial significance.  Rath er, the essential facts were that over 40 biotech 
applications were currently pending in the EC approval system – including many applications 
currently approved and marketed in major world mark ets.  At least one pending application had been 
filed over 10 years ago.   
39. The United States was, likewise, concerned th at some of the member State product bans 
found by the DSB to be in breach of the EC's SPS obligations remained unchanged.  Moreover, 
additional EC member States had adopted new bans on the very same biotech products covered by the 
member State measures found to be in breach of SPS obligations.  The United States was especially 
disappointed that the Government of France, on 11 January 2008 – the very last day of what should 
have been a period for compliance – had announced that it would be adopting a new ban on the only WT/DSB/M/245 
Page 10  
 
  biotech variety currently grown commercially in the EC.  Quite obviously, such actions were not 
conducive to a resolution of this dispute.  The Unite d States believed that it had been very patient 
throughout this dispute.  Before  initiating this dispute in May 2003, the United States had waited for 
four years for the EC to follow WTO rules, as well as its own published procedures and the 
recommendations of its own scientists.  Even thou gh the dispute settlement proceedings had taken 
three and a half years from the filing of the consu ltation request to the adoption of the Panel report, 
the United States had agreed to a one year reasonable period of time for compliance.  The United States had further agreed to extend that period from 21 November 2007 until 11 January 2008.   
40. On 17 January 2007, the United States had preserved its rights by filing with the DSB a 
request for authorization to suspend concessions.  As the EC and the United States had informed the 
DSB, the parties had entered into a sequencing agreement under which the US request would be 
referred to arbitration and such arbitration proceed ings would be suspended for a limited period of 
time.  This process was intended to encourag e further discussion and cooperation between the 
United States and the EC and was a further illustration of US patience.  There was, however, a limit to 
how long the United States could wait before further exercising its rights under the DSU.  US seed 
companies, farmers, and exporters continued to experience significant commercial losses as a result of 
the EC's treatment of biotech products.  Furthermor e, the EC's policies not only impeded US trade, 
but also discouraged the adoption of technology that had the potential to address many global problems.  Biotech crops had the improved yields necessary to feed the world's growing population, 
offered tremendous opportunities for better health a nd nutrition, and could protect the environment by 
reducing soil erosion and pesticide use.  For these reasons, the United States looked forward to 
continuing its dialog with the EC and urged the EC to take prompt  action to address the outstanding 
issues regarding the EC's treatment of biotech products.   
41. The representative of Argentina
 said that his country wished to thank the EC for submitting 
its first status report regarding the implementati on of the DSB's recommendations.  The report had 
been circulated in document WT/DS293/31, pursuant  to Article 21.6 of the DSU.  Given the EC's 
willingness to comply, Argentina had been holding  discussions on a technical level with the EC, 
which had, thus far, proved positive.  In view of  the foregoing, on 11 January 2008, Argentina had 
decided to extend the reasonable period of time for implementation for five months with the aim of 
securing further significant progress on issues of mutual  interest.  Argentina agreed with the points 
made by the EC in its statement and welcomed th e channel for dialogue, which had been established, 
in the hope that it would promote a definitive solution to the pending issues. 
42. The representative of Canada  said that her country thanked the EC for its status report, dated 
10 January 2008.  As the EC had stated, Canada, along with the other complainants in this matter, had 
been holding discussions on a technical level with the EC since the DSB's adoption of the Panel Report on 21 November 2006.  During the course of th e reasonable period of time, Canada had agreed 
to one extension of the original reasonable period of time to 11 January 2008, and had now agreed to 
a further extension of the reasonable period of time to  11 February 2008.  Canada had agreed to this 
further short extension of the reasonable period of time in order to continue to pursue the technical 
dialogue that it had been engaged in, over the past 14  months.  It was Canada's  expectation that during 
this time, further technical discussions would yield progress in addressing Canada's concerns. 
43. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting.  WT/DSB/M/245 
 Page 11 
 
 
  2. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Communities and Japan 
44. The Chairman  said that this item was on the agenda of the present meeting at the request of 
the EC and Japan. He invited the respective representatives to speak. 
45. The representatives of the European Communities  said that the United States had now 
completed its seventh illegal distribution under the CDSOA.  Slightly more than US$262 million had 
been distributed to US companies, which had put the total amount disbursed thus far under the 
CDSOA close to US$2 billion.  Another US$112 mil lion was being held due to pending litigation and 
might be distributed later.  The EC wished to ask  again the United States if and what steps it intended 
to take to stop the transfer of anti-dumping and co untervailing duties to its industry.  The EC also 
renewed its call on the United States to abide by its  clear obligation under Article 21.6 of the DSU 
and to submit implementation reports in this dispute. 
46. The representative of Japan  said that on 5 December 2007, the US Customs and Border 
Protection issued the "FY2007 Annual Disbursement s Report".  Based on the information contained 
in that report, the total figure for fiscal year 2007 disbursements under the CDSOA, which had just 
been completed, amounted to some US$262 million.  These latest disbursements demonstrated that 
the CDSOA had been repealed only in form, but  was still operational.  Although Japan recognized 
that duties collected on entries entered as from 1 October 2007 were no longer subject to the distributions, "the distribution process will continue  until all entries made before [that date] are 
liquidated and the duties are collected".
5  In the US system, such liquidation and collection could take 
for years to come, and the distributions that w ould cause negative trade impacts on Japan and other 
WTO Members, would continue.  Under these circumst ances, Japan failed to see the rationale behind 
the US assertion that it had taken all necessary st eps for implementation in this case.  Japan, once 
again, urged the United States to immediately term inate the illegal disbursements and repeal the 
CDSOA not just in form, but also in substance.   Under Article 21.6 of the DSU, the issue of 
implementation must be under surveillance by the DS B until the issue was resolv ed.  Japan wished to 
remind the United States that it was still under oblig ation to provide the DS B with a status report 
pursuant to that provision.  Japan reserved all its rights under the DSU until the United States would 
come into full compliance. 
47. The representative of India  said that her country expressed its appreciation to the EC and 
Japan for maintaining this issue before the DSB on ce again.  While India appreciated and took note of 
the US statement in the previous DSB meeting to the effect that anti-dumping or countervailing duties 
that were being collected on products entered in to the United States after 30 September 2007 would 
not be handed out to the US domestic industry, ther e remained the fact that distribution still did occur 
under the Byrd Amendment with trade-distortive e ffects on foreign producers and exporters.  India 
asked the United States if and what steps it intended to take to stop the transfer of anti-dumping and 
countervailing duties to its industry, and urged the United States to cease its WTO-inconsistent 
disbursements. 
48. The representative of China  said that his country thanked the EC and Japan for, once again, 
raising this item at the DSB meeting.  China s upported the view expressed by previous speakers and 
wished to join them in urging the United St ates to fully comply with the DSB's rulings. 
49. The representative of Canada  said that her country was pleased that duty deposits collected by 
the United States after 30 September would no longer be subject to the Byrd Amendment.  While this 
                                                      
5 71 Federal Register at 31336 et seq. (dated 1 June 2006). WT/DSB/M/245 
Page 12  
 
  was a significant step forward, duty deposits collect ed by the United States before 1 October 2007, 
would, nevertheless, continue to be subject to th e Byrd Amendment.  Until the United States ceased to 
administer the Byrd Amendment, Canada shared  the view that surveillance by the DSB should 
continue. 
50. The representative of Thailand
 said that his delegation wished to join previous speakers in 
thanking the EC and Japan for continuing to bring this item before the DSB. Thailand noted with 
appreciation the positive steps taken by the United States not to disburse to its industries AD/CVD duties collected on goods entering the United States from 1 October 2007.  However, Thailand remained concerned that AD/CVD duties collected on goods that entered the United States prior to 
1 October 2007 would continue to be disbursed to the domestic industry under the Byrd Amendment.  
The updated figures, mentioned by the EC and Japan, relating to the latest round of disbursements, 
validated Thailand's concern.  Thailand, theref ore, urged the United States to cease its WTO-
inconsistent disbursements, to repeal the Byrd Amendment with immediate practical effect, and to 
resume providing status reports until such actions we re taken and this matter had been fully resolved. 
51. The representative of Brazil
 said that his country, once again, thanked the EC and Japan for 
keeping this item on the DSB's agenda and joined th em in urging the United States to eliminate trade-
distortive effects of the disbursements under the Byrd Amendment.  The United States was still distributing disbursements under the CDSOA to th e US domestic industry as a result of a WTO-
inconsistent measure, at the expense of foreign pr oducers and exporters and of WTO Members' rights.  
Brazil wished to emphasize that full compliance on the part of the United States would only come 
through the complete cessation of all di sbursements under the Byrd Amendment. 
52. 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.  The United States welcomed the EC and Japan's 
recognition that the 2006 Deficit Reduction Act did not  permit the distribution of duties collected on 
goods entered after 1 October 2007.  The United States w as, therefore, all the more surprised to hear 
statements that the United States had not implemented the DSB's recommendations and rulings.  The United States questioned whether its understandi ng was correct that the Members making such 
statements were saying that they considered th at the United States had not implemented the DSB's 
rulings and recommendations, notwithstanding the fact that anti-dumping duties and countervailing 
duties that were being collected on goods now entering the United States would not be distributed to 
domestic firms.  With respect to the comments regarding further status reports and the DSB's 
surveillance in this matter, as th e United States had already explained at previous DSB meetings, the 
United States had taken all steps necessary to im plement the DSB's recommendations and rulings in 
these disputes.  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. 
53. The DSB takes note
 of the statements.  
3. Australia – Measures affecting the importation of apples from New Zealand  
(a) Request for the establishment of a panel by New Zealand (WT/DS367/5) 
54. The Chairman  recalled that the DSB had considered this matter as its meeting on 
17 December 2007 and had agreed to revert to it.  He drew  attention to the communication from 
New Zealand contained in documen t WT/DS367/5, and invited the re presentative of New Zealand to 
speak.  WT/DSB/M/245 
 Page 13 
 
 
  55. The representative of New Zealand  said that, at the DSB meeting held on 17 December 2007, 
his country had briefly described its concerns with  respect to Australia's measures for the importation 
of New Zealand apples.  He did not propose to re peat that description at the present meeting.  
New Zealand had taken note of Australia's stat ement at the 17 December meeting, including 
Australia's comment that bilateral channels were th e most effective way to deal with the issue.  
New Zealand, too, regretted that bilateral discussi ons on the specific matters described in its panel 
request had up to now not resulted in a mutually ag reeable solution to New Zealand's concerns.  His 
country, therefore, once again requested that th e DSB establish a panel at the present meeting to 
examine the matters set forth in New Zealand's panel request. 
56. The representative of Australia  said that her country was disappointed that New Zealand had 
decided to make a second request for the establishment of a panel in this dispute.  Australia reiterated 
its view that the measures set out in the Fi nal Import Risk Analysis Report for Apples from 
New Zealand were consistent with Australia's WTO  obligations.   Australia appreciated the 
importance New Zealand attached to the apples issue,  but remained convinced that bilateral channels 
were the most effective way to resolve this matter .  Australia understood that New Zealand, in fact, 
shared Australia's desire for a bilateral solution.  Australia ac knowledged that a panel would be 
established at the present meeting.  However, it cons idered that New Zealand's panel request failed to 
satisfy the requirements of Article 6.2 of the DSU.  Australia had raised the substance of its concerns 
with New Zealand and, therefore, would not go thro ugh the issue at the present meeting.  Australia 
reserved its right to bring these procedural deficien cies to the attention of the Panel, should these 
proceedings progress to that stage. 
57. 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. 
58. The representatives of Chile , the European Communities , Japan , Chinese Taipei  and 
the United States  reserved their third-party rights to participate in the Panel's proceedings. 
4. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/367) 
59. The Chairman  drew attention to document WT/DSB /W/367, which contained additional 
names proposed for inclusion on the indicative list of governmental and non-g overnmental panelists, 
in accordance with Article 8.4 of th e DSU.  Unless there was any obj ection, he wished to propose that 
the DSB approve the names contained in document WT/DSB/W/367. 
60. The DSB so agreed . 
__________