WORLD TRADE  
ORGANIZATION  RESTRICTED 
WT/DSB/M/298 
29 July 2011 
 (11-3896) 
Dispute Settlement Body 
17 June 2011  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 17 June 2011 
 
Chairperson:  Mrs. Elin Østebø Johansen (Norway) 
 
 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 Unite d States ................................................................................... 5 
(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 ......................................................................... 6  
(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 report by the United States .......................................................................... 8  
(h)  China – Measures affecting trading righ ts and distribution services for certain 
publications and audiovisual entertainment products:  Status report by China .......................... 9  
2.  European Communities1 and Certain member States – Measures affecting trade 
in large civil aircraft ....................................................................................................... .......... 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  
4.  Moldova – Measures affecting the importation and internal sale of goods 
(environmental charge) ........................................................................................................ .. 11 
(a)  Request for the establishment of a panel by Ukraine ................................................................ 11  
                                                      
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 Lisbon, 13 December 2007) entered 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/298 
Page 2  
 
5.  Canada – Certain measures affecting the renewable energy generation sector ................ 12  
(a)  Request for the establishment of a panel by  Japan ................................................................... 12  
6.  Ukraine – Taxes on distilled spirits ....................................................................................... 14  
(a)  Request for the establishment of a panel by Moldova .............................................................. 14  
7.  United States – Anti-dumping admini strative reviews and other measures 
related to imports of certain orange juice from Brazil ........................................................ 15  
(a)  Report of the Panel............................................................................................................ ........ 15 
8.  Proposed nomination for the indicative list of governmental and 
non-governmental panelists ................................................................................................... 18 
 
 
1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appr opriations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.103) 
 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.103) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.78) 
 
(d) European Communities – Measures affecting the approval and marketing of  biotech products:  
Status report by the European Union (WT/DS291/37/Add.41) 
 (e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.21) 
 
(f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.18) 
 (g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.12) 
 
(h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.5) 
  
1. The Chairperson 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 resolv ed.  She proposed that 
the eight sub-items under Agenda item 1 be considered separately.  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.103) 
2. The Chairperson drew attention to documen t WT/DS176/11/Add.103, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US Section 211 Om nibus Appropriations Act of 1998.  WT/DSB/M/298 
 Page 3 
 
 
  3. The representative of the United States said that  his country had provided a status report in 
this dispute on 6 June 2011, in accordance with Artic le 21.6 of the DSU.  Legislative proposals had 
been introduced in the 112th US Congress that would implement the DSB's recommendations and 
rulings.  The US Administration would continue to work on solutions to implement the DSB's recommendations and rulings. 
4. The representative of the European Union said th at his delegation thanked the United States 
for its status report.  The EU hoped that the US  authorities would very soon take steps towards 
implementing the DSB's ruling and resolve this matter.   
5. The representative of Cuba said that thus fa r there had been no change in the situation 
regarding the Section 211 dispute.  In the p ast 220 months, the United States had done nothing 
towards implementing the DSB's recommendations and rulings pertaining to this dispute.  The 
number of months that had elapsed far exceeded the 15 month-period provided under Article 21.3 of 
the DSU:  i.e. a reasonable period of time for implem entation.  It had not been two or three years but 
nine long years of US failure to comply with the recommendations, which undermined the certainty 
and predictability of the multilateral trading system.  Out of respect for Members of the WTO and its 
rules and principles, the lack of progress in this di spute should not continue indefinitely.  There was 
no longer any deadline for the United States to comp ly with the DSB's recommendations or for the 
EU to invoke Article 22.2 of the DSU to suspend concessions or other obligations.  Cuba wondered 
how much longer this legal vacuum would continue .  It questioned whether the credibility of the 
multilateral trading system, based on rules and ob ligations, which were supposedly equal for all 
Members, could be maintained if one key Memb er had an attitude of open defiance towards 
international disciplines and another Member did not dispute it.  
6. In the meantime, and given the fact that Section 211 remained in effect, the dispute over the 
legitimate ownership of the Havana Club trademark in  the United States continued.  The United States 
allowed the use, in its territory, of the renowned Cuban trademark for rum produced and sold by the 
Bacardi Company without registration and denied the right of renewal of the trademark by the 
company Cubaexport, which had been its true owner since 1976.  On 21 December 2010 and 
20 March 2011, Cuba had reiterated to the United St ates, by means of diplomatic notes, that the US 
Department of State needed to intervene in order fo r the Office of Foreign Assets Control to grant the 
company Cubaexport the licence that would enable it  to renew the Havana Club rum trademark in the 
United States.  Thus far, there had been no resu lt.  In Cuba's view, the United States was the only 
country with a different approach to the interpre tation and adoption of inte rnational rules governing 
intellectual property rights.  Spain had recently rej ected the claim of trademark ownership filed by 
Bacardi, reasserting the rights of the Havana Club Ho lding, a joint venture with Pernod Ricard, which 
had taken over Cubaexport's international rights ove r the Havana Club trademark.  Other countries 
had also recognized the Havana Club Holding's rights to this trademark.   
7. Cuba questioned whether the United States ha d perhaps decided once and for all not to 
comply with the DSB's recommendations and rulings  pertaining to Section 211, and whether the 
United States was aware that its conduct was detrim ental to its own image and that of the WTO.  
Cuba believed that it was time to put an end to th e intention of allowing the Bacardi Company, which 
had very close ties with Miami's anti-Cuban circl es and the US far right, and its fraudulent action to 
appropriate the trademark in the United States.  It was time for the United States to start acting in a 
manner consistent with due respect for the rules of the multilateral trading system, given that the 
United States was involved in the largest number of disputes before the DSB.  Cuba urged the 
United States to stop disregarding its obligation under Article 21.3 of the DSU, which stipulated that "[p]rompt compliance with recommendations [...] is essen tial in order to ensure effective resolution of 
disputes to the benefit of all Members". WT/DSB/M/298 
Page 4  
 
8. The representative of the Plurinational State of  Bolivia said that his country wished to 
reiterate its concerns about the curre nt situation in this dispute resulting from the US failure to comply 
with its WTO obligations.  In light of difficulties to conclude the Doha Round of negotiations in 2011, 
many Members were concerned about the credibility of the multilateral trading system.  Thus, this 
type of situation, such as the US failure to comp ly with its obligations, had a negative impact on the 
credibility of the multilateral trading system, and in particular on the dispute settlement system.  It 
was important for Members to comply with their obligations.  Bolivia urged the United States to 
comply with the DSB's rulings and remove the restrictions imposed under Section 211.  Bolivia supported the concerns expressed by Cuba at the present meeting.  
9. The representative of Brazil said that his country thanked the United States for its status 
report pertaining to this dispute.  Once again, the United States reported lack of progress, a situation 
that continued to be a matter of concern to Brazil.   Thus, Brazil urged the United States to bring its 
measures into conformity with the multilate ral trading rules in the nearest future. 
10. The representative of Ecuador said that his count ry supported Cuba's statement and recalled, 
once again, that Article 21 of the DSU made specif ic reference to the prompt compliance with the 
DSB's recommendations and rulings, in particular with  regard to matters affecting the interests of 
developing countries.  Ecuador hoped that the United States would intensify its efforts to ensure rapid 
compliance with the DSB's recommendations and rulings. 
11. The representative of the Dominican Republic said that his country thanked the United States 
for its status report pertaining to this dispute.  The Dominican Rep ublic was concerned about systemic 
implications of Section 211, whic h was inconsistent with Article 42 of the TRIPS Agreement.  Once 
again, the Dominican Republic urged the United Stat es to accelerate its domestic procedures so as to 
comply with the DSB's rulings and recommendations.   
12. The representative of the Bolivarian Republic of Venezuela said that her country, once again, 
supported Cuba's statement and re iterated its call on the United Stat es to end its policy of economic, 
trade and financial blockade imposed  on Cuba.  That policy had led to a series of actions taken by the 
United States since the 1960s.  In this particular situ ation, for more than nine years, the United States 
had failed to comply with the Appellate Body's ru ling to repeal Section 211, which was inconsistent 
with the TRIPS Agreement and the Paris Convention.  Venezuela regretted that, in its status report, 
the United States provided the same information as in its previous reports.  In Venezuela's view, this 
constituted "action without results".  Venezuela reque sted the United States to provide further details 
on the work being done with Congress so that Memb ers could be kept informed, as required by the 
DSU.  Apart from the harm caused to Cuba, Vene zuela was concerned that  the non-compliance with 
multilateral trading rules undermined the credibility  of the DSB.  As it had done on previous 
occasions, Venezuela urged the United States to  comply with the DSB's recommendations. 
13. The representative of Zimbabwe said that his c ountry supported previous speakers in urging 
the United States to implement the DSB's recommenda tions and rulings.  Zimbabwe hoped that, after 
almost a decade, at the next DSB meeting, th e United States would report that it had begun 
implementing the DSB's decision.    
14. The representative of China said that her country  thanked the United States for its status 
report and its statement made at the present meeting.  China regretted that the United Stated had, once 
again, reported non-compliance.  This prolonged situ ation of non-compliance was not in line with the 
principle of prompt and effective implementation s tipulated in the DSU, in particular since the 
interests of a developing-country Member were invol ved.  China supported Cuba and joined previous 
speakers in urging the United States to implem ent the DSB's rulings without further delay.  WT/DSB/M/298 
 Page 5 
 
 
  15. The representative of Angola said that her count ry thanked the United States for its status 
report but recalled that the prompt compliance with the DSB's recommendations and rulings was 
essential to ensuring effective resolutions of disputes to  the benefit of all Members.  The delay in the 
implementation of the DSB's decision and the Appella te Body's findings of 12 February 2002, with 
regard to Section 211, affected the security and th e predictability of the multilateral trading system 
and set a negative precedent for other cases.  Angola be lieved that concrete si gns and actions by the 
parties in this case would send a positive signal of respect for WTO rules.  
16. The representative of Paraguay said that his count ry shared the concerns expressed by Cuba 
and other speakers about delays in complying with  the DSB's recommendations and rulings in this 
dispute.  These were not just trade but also systemic concerns.  Paraguay, therefore, urged the 
United States to comply with the DSB's recommendations and rulings. 
17. The representative of Mexico said that his count ry thanked the United States for its status 
report and urged the parties to resolve this disput e through one of the legal remedies provided for in 
the DSU provisions.  Mexico noted that, if a disput e between two parties was not resolved, any other 
Member could initiate its own dispute on the same ma tter.  Mexico further noted that the discussion 
under this Agenda item could provide useful input  for the ongoing discussions carried out in the 
context of the DSU negotiations, in particular with regard to the issue of effective compliance.   
18. The representative of the United States said that, in response to "systemic" concerns voiced in 
certain interventions, as it had noted on previous o ccasions, for those few disputes where US efforts to 
come into compliance had not yet been entirel y successful, the United States had been working 
actively towards compliance in furtherance of the pur pose of the dispute settlement system.  In this 
dispute, the United States had previously provided so me details on those efforts.  In the US Senate, 
the bill S. 603 had been introduced on 16 March 201 1 and had been referred to the Senate Committee 
on the Judiciary.  In the US House of Representatives, H.R. 1166 had been introduced on 17 March 2011 and had been referred to the House Committee on the Judiciary. 
19. The representative of Cuba said that the United States had just informed Members that steps 
had been taken to resolve this dispute.  Howe ver, Members had not yet seen any results and the 
United States continued to violate the provisions of the TRIPS Agreement.  Cuba noted that, in the most recent Section 301 Report, the US Trade Representative urged the countries on the Priority 
Watch List, with the worst violations of intellectual property rights, to develop plans of action so as to 
be removed from that List.  However, the Report did not indicate how the United States would correct its own violations of international law.  In th e meantime, the United States continued with its non-
compliance.  Cuba drew Members attention to the f act that, at the beginning of May 2011, an assistant 
for intellectual property and innovation of the Office of the US Trade Represen tative had stated that 
the US Administration would continue to use a ll the available commercial tools to address the non-
compliance and implementation issues, given the importance of safeguarding intellectual property 
rules, an area of vital importance to the US  economy and its exports.  In Cuba's view, the 
United States was asking other countries to do what it was not in a position to do itself.     
20. 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.103) 
21. The Chairperson drew attention to documen t WT/DS184/15/Add.103, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. WT/DSB/M/298 
Page 6  
 
22. The representative of the United States said that  his country had provided a status report in 
this dispute on 6 June 2011, in accordance with Ar ticle 21.6 of the DSU.  As of November 2002, the 
US authorities had addressed the DSB's recommendations  and rulings with resp ect to the calculation 
of anti-dumping margins in the hot-rolled steel anti-dumping duty investigation at issue in this dispute.  With respect to the DSB's recommendations  and rulings that had not already been addressed 
by the US authorities, the US Administration w ould work with the US Congress with respect to 
appropriate statutory measures that would resolve this matter. 
23. The representative of Japan said that his country  thanked the United States for its statement 
and its most recent status report.  Japan took note  of the US report that the United States had taken 
certain measures to implement part of the DSB's recommendations in November 2002.  With respect 
to the remaining part of the DSB's recommendations , Japan hoped that the Un ited States would soon 
be in a position to report to the DSB on more tangi ble and concrete progress, as the United States 
appeared to have done under the previous sub-item 1(a) on the Agenda of the present meeting.  Full 
and prompt implementation of the DSB's recommenda tions and rulings was "esse ntial to the effective 
functioning of the WTO and the maintenance of a proper balance of the rights and obligations of 
Members".2  Japan called on the United States to fully implement the DSB's recommendations in this 
long-standing dispute without further delay. 
24. 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.78) 
25. The Chairperson drew attention to documen t WT/DS160/24/Add.78, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning Section 110(5)  of the US Copyright Act. 
26. The representative of the United States said that  his country had provided a status report in 
this dispute on 6 June 2011, 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. 
27. The representative of the European Union said th at the EU took note of the US status report 
and remained keen to work with the US authorities towards the complete resolution of this dispute.  
28. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.41) 
29. The Chairperson drew attention to documen t WT/DS291/37/Add.41, 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 a ffecting the approval and marketing of biotech 
products. 
30. The representative of the European Union said th at, as the EU had mentioned at the previous 
DSB meeting, the EU welcomed the continuation of  the technical dialogue with the United States.  
This dialogue gave an opportunity to both the EU  and the United States to discuss directly issues of 
their concern regarding biotechnology.  The EU hoped that this constructive approach based on 
                                                      
2 Article 3.3 of the DSU.  WT/DSB/M/298 
 Page 7 
 
 
  dialogue would allow the parties to leave litigati on aside.  The EU, once again, noted that its 
regulatory procedures on biotech prod ucts continued to work as foreseen in the legislation.  The 
number of GMOs authorized since the date of establishment of the Panel was thirty-four.  In 2010, 11 applications had been authorized, including one au thorization for cultivation.  At the Agriculture 
Council held on 17 March 2011, two authorizations
3 had been examined, together with the renewal of 
the authorization of maize 1507.  The final adop tion by the Commission of these three products was 
expected on 17 June 2011.  Progress had also been made  on other applications for authorization.  Four 
more draft applications had been voted in the Standing Committee in February 2011.4  The Council 
would examine those applications in the coming weeks.  In April, EFSA had adopted another 
scientific opinion on a GM soybean (A5547-127).  
31. The representative of the United States said that  his country thanked the EU for its status 
report and its statement made at the present meetin g.  The United States welcomed the information 
provided a moment ago that the EU expected to make, during the present day, its first biotech approvals since July 2010.  Unfortunately, dozens of  biotech applications still remained pending in 
the EU approval system.  Those pending applicati ons included applications for the approval of 
products that the DSB had specifically identified as be ing unduly delayed in contravention of the EU's 
obligations under the SPS Agreement.  Many of  the pending applications had already received 
favourable assessments from the EU's own scientific au thority.  After a favourable scientific review, 
the next step in the EU's approval process was for an  application to be considered during one of the 
monthly meetings of a regulatory committee.  Ho wever, the EU had been recently cancelling the 
monthly meetings of the regulatory committee th at considered biotech products.  The EU had 
cancelled its scheduled meeting for June 2011, and th is was the third cancellation in 2011.  The EU's 
decisions not to hold meetings to consider pending bi otech applications appeared to be contributing to 
delays in approvals.  The United States would ask that the EU take steps to address these matters. 
32. The representative of the European Union said that the GMO regulatory regime was not the 
subject of the original Panel's findings, and neit her its "operation" nor the status of specific 
applications not dealt with in the original  Panel were covered by this Agenda item. 
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.21) 
34. The Chairperson drew attention to documen t WT/DS322/36/Add.21, which contained the 
status report by the United States on progress in th e implementation 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 6 June 2011, in accordance with Ar ticle 21.6 of the DSU.  As the United States had 
explained in its status report, in December 201 0, the US Department of Commerce had announced a 
proposal to change the calculation of weighted  average dumping margins and assessment rates in 
certain anti-dumping proceedings.  At the present time, the US Department of Commerce was continuing with its ongoing work on the December proposal.  
                                                      
3 (Maize MON89034xMON88017 and cotton GHB614MON89034.) 
4 (MIR604×GA21 maize, BT11×MIR604 maize, 281-24-236/3006-210-23 cotton, 
Bt11×MIR604×GA21 maize.) WT/DSB/M/298 
Page 8  
 
36. The representative of Japan said that his country  thanked the United States for its statement 
and its most recent status report.  Japan took note of the report that the internal consultation process 
and ongoing work was under way, based on the pr oposal announced by the US Department of 
Commerce on 28 December 2011.  While taking th e US implementation efforts as a positive step 
forward, Japan continued to seek prompt and full co mpliance by the United States with respect to all 
of the measures at issue that were subject to th e recommendations in this dispute.  Japan looked 
forward to continuing its dialogue with the United States and would closely monitor any developments on this matter.  Japan reserved its right under the DSU to take appropriate action, if 
necessary. 
37. The representative of China said that her country  thanked the United States for its status 
report and its statement made at the present meet ing.  China welcomed the steps taken by the 
United States towards the implementation of th e DSB's rulings and recommendations on zeroing 
issues.  However, as mentioned by China in its co mments made at the previous DSB meeting on the 
US proposal of 28 December 2010, China remained to be very concerned as to how the United States 
would implement the DSB's decision on zeroing issues.   Thus, China would follow this matter closely 
and urged the United States to fully comply with  the DSB's rulings and recommendations without 
undue delay. 
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.18) 
39. The Chairperson drew attention to documen t WT/DS350/18/Add.18, which contained the 
status report by the United States on progress in th e implementation 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 th at his country had addressed the issue of 
compliance with the findings in this dispute in the status report provided on 6 June 2011, and earlier 
in the discussion under Agenda item 1(e) of the pr esent meeting.  The United States referred Members 
to that report and that statement for further details. 
41. The representative of the European Union said that the EU thanked the United States for its 
most recent status report.  Since the United Stat es had not reported any steps to address the concerns 
raised by the EU in the DSB, the EU referred Members to its statements made in January and 
February 2011.  The EU remained ready to engage  with the United States in discussions within the 
WTO and bilaterally in order to ensure that its c oncerns were addressed by the United States.  The EU 
looked forward to further information from the United States on its intentions. 
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.12) 
43. The Chairperson drew attention to documen t WT/DS294/38/Add.12, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US laws, regulations and me thodology for calculating dumping margins.  WT/DSB/M/298 
 Page 9 
 
 
  44. The representative of the United States said th at his country had addressed the issue of 
compliance with the findings in this dispute in the status report provided on 6 June 2011, and earlier 
under Agenda item 1(e) of the present meeting.  Th e United States referred Members to that report 
and that statement for further details.   
45. The representative of the European Union said that the EU thanked the United States for its 
status report and referred Members to its statemen ts made under Agenda item 1(f) concerning the US 
proposal of 28 December 2010. 
46. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.5) 
47. The Chairperson drew attention to document WT/DS363/17/Add.5, which contained the 
status report by China on progress in the implemen tation of the DSB's recommendations in the case 
concerning China's measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products. 
48. The representative of China said that her country  had provided its status report in this dispute 
on 6 June 2011, in accordance with Article 21.6 of the DSU.  China had made tremendous efforts to 
implement the DSB's rulings and recommendations, a nd had thus far completed amendments to most 
measures at issue.  China believed that this matter would be properly resolved through joint efforts 
and mutual cooperation with relevant parties. 
49. The representative of the United States said that his country thanked China for its status report 
and its statement made at the present meeting.  Th e United States remained concerned by the lack of 
progress by China in bringing its measures relating to films for theatrical release into compliance with 
the DSB's recommendations and rulings.  The United States also had significant concerns about the 
incomplete progress relative to China's measures re lating to audiovisual home entertainment products, 
reading materials, and sound recordings.  The United States was conferring with China on these 
matters and hoped that China would take steps to resolve this matter soon. 
50. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
2. European Communities and Certain member States – Measures affecting trade in large 
civil aircraft 
(a) Implementation of the recommendations of the DSB 
51. The Chairperson recalled that, in accordance w ith the DSU provisions, the DSB was required 
to keep under surveillance the implementation of r ecommendations 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.  She reca lled that at its meeting on 1 June 2011, the DSB 
had adopted the Appellate Body Report and the Pa nel Report, as modified by the Appellate Body 
Report, pertaining to the dispute on:  "European  Communities and Certain member States – Measures 
Affecting Trade in Large Civil Aircraft".  She inv ited the European Union to inform the DSB of its 
intentions in respect of implementation of the DSB's recommendations. WT/DSB/M/298 
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52. The representative of the European Union said that the EU intended to implement the DSB's 
recommendations and rulings in this dispute in a manner that respected its WTO obligations, and 
within the time-limit set out in the SCM Agreement.   The EU had already begun to evaluate options 
for doing so. 
53. The representative of the United States said that his country welcomed the EU's statement that 
the EU would comply with the DSB's recommendations an d rulings in this dispute.  Article 7.9 of the 
Subsidies Agreement provided a six-month period fro m the adoption of the Pa nel and Appellate Body 
Reports for the EU and its member States to take appr opriate steps either to withdraw the subsidies or 
to remove the adverse effects of the subsid ies.  That six-month period would expire on 
1 December 2011.  The United States recalled that  the subsidies found to be WTO-inconsistent, 
including launch aid, equity financing, and infrastructure payments, were enormous.  The 
United States also recalled that those subsidies had been found to have caused adverse effects of lost 
market share in some of the biggest aircraft mark ets in the world and lost sales totalling hundreds of 
aircrafts.  Accordingly, full compliance in this dispute, by the EU and four of its member States withdrawing those enormous subsidies or removing th eir adverse effects, would be economically very 
significant for the United States.  The United States said that it would be monitoring developments in 
the EU closely and remained ready to work w ith the EU and the member States as they moved 
forward on implementation. 
54. 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 
55. The Chairperson said that this item was on the Agen da of the present meeting at the request of 
the European Union and Japan.  She then invited the respective representatives to speak. 
56. The representative of Japan said that the CDSOA remained operational5 and, as US Customs 
and Border Protection had explained, "the dist ribution process will continue for an undetermined 
period".6  Japan urged the United States to stop the il legal distributions and repeal the CDSOA, not 
just in form but in substance, so as to resolve this dispute.  Accord ing to Article 21.6 of the DSU, the 
United States was under obligation to provide the DSB with a status report in this dispute. 
57. The representative of the European Union said that the EU had already informed the DSB 
about the annual adjustment in the level of duties applied by the EU in this case in a document 
circulated on 12 April 2011.  At the present meeting, and 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 end to the condemned measure.  The fact 
that the United States had stopped disbursing duties collected after a certain point in time did not 
achieve full compliance.  Every disbursement that still took place was clearly an act of non-
compliance with the DSB's recommendations and rulings.  The EU renewed its call on the 
United States to abide by its clear obligation unde r Article 21.6 of the DSU and to submit status 
reports pertaining to this dispute. 
                                                      
5 See US Customs and Border Protection's website at:  
http://www.cbp.gov/xp/cgov/trade/pr iority_trade/add_cvd/cont_dump/ 
6 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trad e/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml  WT/DSB/M/298 
 Page 11 
 
 
  58. The representative of Canada said that his count ry thanked the EU and Japan for placing this 
item on the Agenda and agreed that the Byrd Amendm ent remained subject to the surveillance of the 
DSB until the United States ceased to administer it. 
59. The representative of Brazil said that his country  thanked the EU and Japan for keeping this 
item on the Agenda of the DSB.  As the United St ates continued to make disbursements pursuant to 
the Byrd Amendment, this dispute was not resolved .  Once again, Brazil urged the United States to 
fully implement the DSB's recommendations and ruli ngs in this dispute and, until then, to provide 
status reports as required by Article 21.6 of the DSU. 
60. The representative of Thailand said that his count ry thanked Japan and the EU for continuing 
to bring this item before the DSB.  Thailand supp orted the statements made by previous speakers and 
continued to urge the United States to fully comp ly with the DSB's rulings and recommendations on 
this matter. 
61. The representative of India said that his count ry thanked Japan and the EU for regularly 
bringing this issue before the DSB.  As India ha d previously mentioned, the CDSOA remained fully 
operational, affecting the rights of Members and und ermining the credibility of the dispute settlement 
mechanism.  India requested the United States to report full compliance without any further delay and 
agreed with previous speakers that until such tim e, this issue should continue to remain under 
surveillance of the DSB. 
62. 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.  The United States welc omed the EU'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, therefore, did not understand the purpose for which the EU and 
Japan had inscribed this item on the Agenda of the present meeting.  With respect to comments 
regarding further status reports in this matter, the United States failed to see what purpose would be 
served by further submission of status reports rep eating, again, that the United States had taken all 
actions necessary to implement the DSB's recommendati ons and rulings in these disputes.  Finally, in 
relation to the EU's statement referring to its "an nual adjustment", as had been  previously stated, the 
United States would be reviewing carefully the measures taken by the EU.  As the United States had previously observed, the DSB only authorized the suspension of concessions or other obligations as 
provided in the Award of the Arbitrator. 
63. The DSB took note of the statements. 
4. Moldova – Measures affecting the importation an d internal sale of goods (environmental 
charge) 
(a) Request for the establishment of a panel by Ukraine (WT/DS421/4) 
64. The Chairperson recalled that the DSB had considered this matter at its meeting on 
24 May 2011 and had agreed to revert to it.  She drew Members attention to the communication from 
Ukraine contained in document WT/DS421/4, and invited the representative of Ukraine to speak. 
65. The representative of Ukraine said that her country  wished to bring to the attention of the 
DSB its request for the establishment of a panel in this dispute for the second consideration.  In its 
panel request, which had been circulated in WT/D S421/4 on 13 May 2011 pursuant to Article 6 of the 
DSU, Ukraine was requesting that the DSB establish a panel with standard terms of reference, as set WT/DSB/M/298 
Page 12  
 
out in Article 7.1 of the DSU, to examine this matter.  In Ukraine's view, the measures were in 
violation of the national treatment principle.  Th e Law of Moldova on "Charge for Contamination of 
Environment" imposed a charge on the imports of  products, the use of which contaminated the 
environment.  However, it seemed that like domestic  products were not subject to this charge.  
Pursuant to this law, Moldova also applied "a char ge for a plastic or 'tetra-pack' package containing 
products (except for dairy produce)".  It appeared that packages containing domestically produced like 
products were not subject to this charge.  Uk raine considered that Moldova's measures were 
inconsistent with its obligations  under the GATT 1994.  Moldova seemed to have acted inconsistently 
with Article III:1 and 2 of the GATT 1994, by subj ecting the products of the territory of other 
Members imported into Moldova, directly or indirectly , to internal taxes or other internal charges of 
any kind in excess of those applied, directly or indirectly, to like domes tic products and affording 
protection to domestic production.  Moldova also  seemed to have acted inconsistently with 
Article III:4 of the GATT 1994, by failing to accord to Ukraine's products, imported into Moldova, treatment no less favourable than that accorded to like products of national origin in respect of all 
laws, regulations and requirements affecting thei r internal sale, offering for sale, purchase, 
transportation, distribution or use.  Ukraine ha d hoped that the matter could be resolved at the 
consultations stage without recourse to a panel.   However, Moldova seemed unwilling to accord a 
sympathetic consideration to Ukraine's concerns and had not afforded adequate opportunity for 
consultations requested in document WT/DS421/1 of  21 February 2011.  In that regard, Ukraine 
regretted to report that no WTO-consistent soluti on had been proposed by Moldova.  Nevertheless, 
Ukraine remained open to further contacts with Mo ldova and hoped that it would be possible to find a 
solution to this matter through the panel to be established at the present meeting.   
66. The representative of Moldova said that her de legation was aware that, pursuant to the DSU 
provisions, Moldova could not oppose the establishmen t of the panel requested by Ukraine on this 
matter, since this issue was before the DSB for its second consideration.  Nevertheless, Moldova 
wished to underline that it had continued to inform  Ukraine of its measures in  order to resolve this 
dispute.  In that regard, the draft Law on the amendments of the Law on Charge for Contamination of 
the Environment of 25 February 1998 had already been discussed and coordinated among all national 
competent authorities and was currently awaiting examination and approval  by the government.  
Furthermore, on 31 May 2011, the Deputy Prime Minister, Minister of Economy of the Republic of Moldova, Mr. Valeriu Laz ăr, had proposed to the Ukrainian Deputy Prime Minister, Mr. Kliuev to 
continue to consult at the bilateral level, and had expressed Moldova's willingness to work on a 
solution that would resolve this matter.  Unfortunately, Moldov a had not received any reply or 
reaction from Ukraine on this issue.  
67. 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. 
68. The representatives of Argentina, China and th e European Union reserved their third-party 
rights to participate in the Panel's proceedings.   
5. Canada – Certain measures affecting the renewable energy generation sector 
(a) Request for the establishment of a panel by Japan (WT/DS412/5) 
69. The Chairperson drew attention to the co mmunication from Japan contained in document 
WT/DS412/5, and invited the representative of Japan to speak. 
70. The representative of Japan said that his country  had made this request for the establishment 
of a panel on 1 June 2011.7  As had been explained in the panel request, this was a clear case of 
domestic content requirements, which were explic itly condemned in several provisions under the 
                                                      
7 WT/DS412/5.  WT/DSB/M/298 
 Page 13 
 
 
  WTO Agreement as an origin-based discriminat ion.  The measures at issue and their WTO-
inconsistent aspects were clear and simple.  In May 2009, the Canadian province of Ontario had 
introduced the so-called feed-in tariff programme.  Under that programme, th e Canadian measures at 
issue provided for guaranteed, long-term pricing for the output of renewable energy generation 
facilities that contained a defined percentage of  domestic content.  T hus, under those measures, 
technologically advanced and highly competitive and sophisticated solar pane ls, or other renewable 
energy generation equipment produced in Japan, were  discriminated against in the market of the 
Canadian province of Ontario simply because of their origin.  
71. Japan wished to clarify that it challenged th is feed-in tariff programme of Ontario, not 
because it promoted renewable energy generati on, but because it contained WTO-inconsistent 
domestic content requirements.  Such a WTO-incons istent origin-based discrimination had nothing to 
do with, and ought to play no part in, Ontario's end eavour to promote renewable energy generation.  
Japan considered that the measur es at issue were inconsistent w ith Canada's obligations under the 
WTO Agreement because they constituted a prohib ited subsidy, and also discriminated against 
equipment for renewable energy generation faciliti es produced outside the province of Ontario in 
favour of such equipment produced in Ontario.   
72. In particular, the measures were inconsistent w ith the following provisions:  (i) Articles 3.1(b) 
and 3.2 of the SCM Agreement, because the measu res were subsidies within the meaning of 
Article 1.1 of the SCM Agreement that were provi ded contingent upon the use of equipment for 
renewable energy generation facilities produced in Ontario over such equipment imported from other 
WTO Members including Japan;  (ii) Article III:4 of the GATT 1994, because the measures accorded 
less favourable treatment to imported equipment for renewable energy generation facilities than 
accorded to like products originating in Ontario;  and (iii) Article 2.1 of the TRIMS Agreement, in 
conjunction with paragraph 1(a) of its Illustrativ e List, because the measures were trade-related 
investment measures inconsistent with Article III:4 of the GATT 1994, which required the purchase 
or use by enterprises of equipment for renewable energy generation facilities of Ontario origin over 
imports from other WTO Members including Japan .  Japan had requested consultations on 
13 September 2010 and had engaged in the consultations in good faith with Canada with a view to 
reaching a mutually satisfactory so lution.  While the consultations had provided useful opportunities 
for the parties to better understand their respective pos itions on this matter, the parties were unable to 
resolve their differences.  Japan, therefore, requested, pursuant to  Articles 4.7 and 6 of the DSU, 
Article XXIII of the GATT 1994, Article 8 of th e TRIMS Agreement and Articles 4.4 and 30 of the 
SCM Agreement, that a panel be established to exam ine the matter as set out in its panel request with 
standard terms of reference in accordance with Article 7.1 of the DSU. 
73. The representative of Canada said that his count ry was disappointed that Japan had decided, 
at the present meeting, to request a panel in r espect of the Ontario Green Energy and Green Economy 
Act and the related feed-in-tariff pr ogramme.  Canada was confident that this legislation and the feed- 
in-tariff programme were consistent with Canada 's WTO obligations.  On 25 October 2010, Canada 
had held consultations with Japan concerning the Ontario legislation and feed-in-tariff programme.  
During those consultations, Cana da had provided information to Japan on the operation of the 
programme, a programme that had been established to  increase the supply of renewable energy in the 
province of Ontario.  Those consultations were help ful but, unfortunately, despite Canada's work with 
Ontario to find a solution to Japan's concerns, c onsultations had not yet concluded successfully.  
Canada and Japan continued to enjoy a strong and c onstructive trade relationship, which, at times, 
understandably involved certain differences of opi nion.  At the present meeting, Canada was 
regrettably not in a position to agree to the establishment of a panel.  
74. The representative of the European Union said th at the EU was seriously concerned about the 
discriminatory nature of Ontario's Feed-in-Tari ff (FIT) Programme which established local content 
requirements on goods and labour used by electricity  producers.  The EU was concerned that the FIT WT/DSB/M/298 
Page 14  
 
Programme was inconsistent with Canada's WTO ob ligations.  The EU stressed that it supported the 
development of renewable energy, an area in which the EU had itself set ambitious targets for 2020.  
However this should be done in compliance w ith WTO rules by which Canada, like other WTO 
Members, was bound.  In view of its substantial trad e and systemic interest in the issue, the EU had 
participated as a third party in the consultations requested by Japan in September 2010.  Unfortunately 
those consultations had not led to any solution to this dispute.  Therefore, the EU would follow this 
issue very closely and reserved all its rights in that respect. 
75. The DSB took note of the statements and agreed to revert to this matter. 
6. Ukraine – Taxes on distilled spirits 
(a) Request for the establishment of a panel by Moldova (WT/DS423/4) 
76. The Chairperson drew attention to the comm unication from Moldova contained in document 
WT/DS423/4, and invited the representative of Moldova to speak. 
77. The representative of Moldova said that her country  noted with regret that Ukraine had acted 
inconsistently with the first sentence of Article  III:2 of the GATT 1994 by applying a lower tax rate 
on domestic distilled spirits, namely "Cognac", than  on certain other imported like distilled spirits, 
thereby nullifying or impairing the benefits accruing to Moldova unde r the GATT 1994.  In the event 
that the beverages falling within the category of "s pirits" were found by the Panel not to be "like 
products" to domestic "Cognac" within the meaning of the first sentence of Article III:2 of the 
GATT 1994, Moldova further claimed that Ukraine ha d acted inconsistently with the second sentence 
of Article III:2 of the GATT 1994 by applying a lowe r tax rate on domestic distilled spirits, namely 
"Cognac", than on certain other imported directly co mpetitive or substitutable distilled spirits, so as to 
afford protection to the domestic production, thereb y nullifying or impairing the benefits accrued to 
Moldova under the GATT 1994.   
78. Moldova's claims were set out as follows.  With  regard to Article III:2, first sentence, she 
noted that under the amendments made to Law no. 178 from 7 May 1996 on "rates of excise duty on ethyl alcohol and alcoholic beverages" in 2008, (p rovisions further included in the new Ukrainian Tax 
Code no. 2755 of 2 December 2010), different excise tax rates were applied to "spirits" falling under 
HS 2208 20 12 00 and HS 2208 20 62 00, namely "Cognac" , and to the rest of the alcoholic beverages 
falling under HS 2208.  This difference in tax burde n was made even more dramatic by a systemic 
postponement of the term of equalization of the mentioned rates.  Thus, the tax burden on some 
Moldovan distilled spirits reached a value almost f our times greater than the tax burden on Ukrainian 
"like products", named "Cognac".  Moldova consid ered that "Cognac" and all alcoholic beverages 
falling within the category of "spirits" were "like pr oducts" within the meaning of the first sentence of 
Article III:2 of the GATT 1994.  Therefore, Moldova claimed that by levying a tax on the alcoholic 
beverages falling within the category of "spirits" which was in excess of the tax applied to domestic 
"Cognac", Ukraine violated the first sentence of Article III:2 of the GATT 1994. 
79. With regard to Article III:2, second sentence, sh e said that in case any of the beverages falling 
within the category of "spirits" were found by th e Panel not to be a "like product" to domestic 
"Cognac", Moldova claimed that, at the very least, they would still be "directly competitive or substitutable" products.  Moreover,  Moldova believed that the above-mentioned ta x differences 
between "Cognac" and the rest of the alcoho lic beverages falling unde r HS 2208 could not be 
regarded as " de minimis ".  Nevertheless, Moldova noted that most of the alcoholic beverages falling 
within the category of "spirits", which were expor ted in substantial quantities to Ukraine, were 
classified under a different category from the "Cogn ac" tariff position.  In contrast, the so-called 
"Cognac" was primarily manufactured in Ukraine and almost all of the consumed "Cognac" in 
Ukraine was produced domestically.  For the above  reasons, Moldova claimed that, by applying a 
higher tax on distilled spirits (to the extent that they were not "like products" to "Cognac", but still  WT/DSB/M/298 
 Page 15 
 
 
  "directly competitive or substitutable" products) than  on "Cognac", Ukraine afforded protection to its 
domestic production of so-called "C ognac", thereby violating the second sentence of Article III:2 of 
the GATT 1994.   
80. In light of the above and Moldova's pr oposal, on 13 April 2011, Moldova had held 
consultations with Ukraine in Kiev with a view  to reaching a mutually satisfactory solution.  
Unfortunately, the consultations failed to settle th e dispute.  At the present meeting, Moldova was 
resorting to its right under the DSU to request the establishment of a panel to examine this matter, 
since no mutually satisfactory solution had been found.  Pursuant to Article 6 of the DSU and 
Article XXIII:2 of GATT 1994, Moldova was requesting that a panel be established, with  standard 
terms of reference, as set out in Article 7.1 of the DSU, to examine the matter as set out in Moldova's 
panel request, which had been circulated in doc ument WT/DS423/4.  Moldova remained open for 
further dialogue with Ukraine and hoped that a su stainable solution would be found to this matter. 
81. The representative of Ukraine said that her count ry was surprised that Moldova had requested 
the establishment of a panel to examine this matter.  It was disappointing and discouraging that this 
panel request was made shortly after the parties ha d held their first round of  consultations.  Ukraine 
had duly replied to Moldova's request for consu ltations and had made everything possible for the 
consultations to start at the earliest convenient date.  The parties had held an informative and 
promising meeting on 13 April 2011.  Given the speci ficity of the goods under consideration, during 
the first meeting, Ukrainian experts had asked a number of relevant ques tions and had requested 
Moldovan counterparts to provide specific techni cal information deemed necessary and helpful in 
understanding their concern.  Ukraine had received the much appreciated mate rials just a few weeks 
ago and was still considering them .  Ukraine had regarded Moldova 's cooperative approach as a 
willingness to seek a solution with Ukraine.  As all knew, any technical information must be carefully 
studied to help experts to accurately assess the problem .  Since the parties were at an early stage of the 
consultations and had just started looking into the substance of the matter, Ukraine could not find any 
logic or justification in Moldova's statement that:  "the consultations failed to  settle the dispute".  In 
Ukraine's view, that conclusion was rather hasty a nd one-sided, and considered that Moldova's request 
for establishment of a panel was premature.  Ther efore, Ukraine objected to the establishment of a 
panel.  Ukraine hoped that Moldova would rely on the DSU provisions regarding consultations, rather 
than to overburden the dispute settlement system by starting panel procedures for a case which could 
be resolved through consultations.  That would also  encourage Ukraine to continue consultations, in 
close cooperation with Moldova, in order to find a mutually satisfactory solution.  
82. The representative of the European  Union said that, for the record , the EU wished to indicate 
that it was sensitive to the use of the term:  "cogn ac" and would prefer the term:  "so-called cognac". 
83. The DSB took note of the statements and agreed to revert to this matter. 
7. United States – Anti-dumping administrative reviews and other measures related to 
imports of certain orange juice from Brazil 
(a) Report of the Panel (WT/DS382/R) 
84. The Chairperson recalled that at its meeting on 25 September 2009, the DSB had established 
a panel to examine the complaint by Brazil pertai ning to this matter.  The Report of the Panel 
contained in WT/DS382/R had been circulated on 25 March 2011 as an unrestricted document.  
Subsequently, at its meeting on 21 April 2011, the DSB had adopted a draft decision, set out in document WT/DS382/7, with regard to the time-peri od for adoption or appeal in this dispute.  The 
Report of the Panel was before the DSB for adoption at the request of Brazil.  The adoption procedure 
was without prejudice to the right of Members to express their views on the Report. WT/DSB/M/298 
Page 16  
 
85. The representative of Brazil said that his country  thanked the members of the Panel and the 
Secretariat for the time and effort dedicated to reso lving this dispute.  Brazil also thanked the third 
parties to this dispute for their written and oral s ubmissions supporting positions similar to those of 
Brazil.  As Members were aware, the central issu e that had been challenged in this case was the 
consistency with the covered agr eements of the methodology known as "zeroing".  This issue, of 
course, was not a new one when Brazil had initiated th e "Orange Juice" dispute.  "Zeroing" had first 
been found to be inconsistent w ith the covered agreements in 2001 in the "Bed Linen" case.  A decade 
had passed and "zeroing" had been challenged and condemned several times, but the debate on its 
legality had continued to drain valuable time a nd resources from Members and the WTO.  At first 
sight, the dispute initiated by Brazil could be seen as just one more case in a long string of disputes 
against "zeroing".  Indeed, this w as just one of 14 challenges that had thus far been brought against 
the United States by nine different WTO Members.  At this time, however, in an important shift of 
attitude, the United States, for the first time in cases i nvolving the application of "zeroing" in reviews, 
had decided not to appeal the Panel Report.  Braz il welcomed this decision, which strengthened the 
WTO as a whole and the dispute settlement mechanism in particular. 
86. With respect to the Panel's findings in this dispute, Brazil commended the Panel's conclusion 
that "zeroing" was "unfair".  The Panel had clarif ied that the "fairness" requirement of the first 
sentence of Article 2.4 of the Anti-Dumping Agre ement applied beyond the mere selection of 
transactions and the use of adjustments to account  for differences in price comparability.  It was 
concerned with the "comparison" itself.  It was the comparison between export price and normal value 
that must be "fair".  Therefore, and according to the Panel, "a comparison methodology (such as 
'simple zeroing') that ignores transactions which, if properly taken into account would result in a 
lower margin of dumping, must be considered 'unfai r' and […] inconsistent with Article 2.4 [of the 
Anti-Dumping Agreement]".  Another finding of th e Panel regarding Article 2.4 of the Anti-Dumping 
Agreement deserved attention.  The Panel had conclu ded that "[…] the obligation under Article 2.4 is 
focused on the 'comparison' between export price and nor mal value, not its impact.  In other words, it 
was the nature of the 'comparison' itself and not the results of that comparison that is disciplined under 
[that article]".  That meant that "zeroing" was "unf air" irrespective of whether the final margin of 
dumping actually applied was considered to be de minimis , for instance. 
87. Brazil also warmly welcomed the Panel's findi ngs concerning the "continued use" measure.  
The Panel, following a previous decision by the A ppellate Body, had confirmed that an "ongoing 
conduct" by a Member was a measure that could be brought to challenge in the WTO dispute 
settlement system.  In so deciding, the Panel had r eaffirmed that Members did not have to challenge 
continuously each and every inves tigation and review as a separate and independent measure.  This 
would lead to a potentially endless loop of litigati on.  The possibility to challenge the "ongoing 
conduct" clearly served better the purpose of prompt settlement of disputes.  Moreover, the Panel had 
correctly understood the nature of Brazil's claim under the "continued use" measure and had stated 
that, "[…] it is the very existence of the 'zeroing' in struction […], independent of  its application that is 
the subject of Brazil's complaint".  In sum, the "c ontinued use" of "zeroing" was inconsistent with 
Article 2.4 of the Anti-Dumping Agreement irresp ective of the outcome of the calculation.  The 
Panel's findings on the above-mentioned issues we re of systemic importance and Brazil was 
convinced that they would positively contribute to th e prompt settlement of any eventual new dispute 
on "zeroing".   
88. That positive note, however, could not be exte nded to the Panel's reasoning on some legal 
issues brought to its attention.  For instance, Brazil regretted that the Panel had not been clearer in 
respect to the correct definition of "dumping".  The Panel had agreed with Brazil that "'dumping' was a concept that related to an individual exporter' s pricing behaviour" and that "[…] the notion of 
'dumping' is indeed fundamental and of critical  importance to the operation of the Anti-Dumping 
Agreement".  However, the Panel had not drawn th e correct conclusions from those findings.  If the 
purpose of anti-dumping duties was precisely to remedy the injurious effect of the exporter's pricing behaviour, the Panel's conclusion should have been unequivocal in the sense that "dumping" and  WT/DSB/M/298 
 Page 17 
 
 
  "margin of dumping" were to have  been understood in relation to a product under investigation as a 
whole, encompassing all of the export transactions, a nd that they could not have been found to exist 
on a transaction-specific basis.  The Panel could also  have taken the next step and concluded that a 
harmonious and coherent interpre tation of the Anti-Dumping Agreement implied a uniform definition 
of dumping that applied equally in investigations an d reviews.  The Panel's reluctance to accept those 
conclusions, after so many years of litigation and sever al Appellate Body Report s, was disappointing.  
It was no minor comfort, however, that the Panel, ultimately, had decided to follow the previous case-
law.  This decision provided security and predictab ility to the multilateral trading system.  Recent and 
positive developments in the United States revealed a willingness of the US authorities to deal with 
the question of "zeroing" in a constructive manner.   Brazil was confident that the United States would 
fully comply with the DSB's recommendations and rulings in this dispute.  Brazil and the 
United States had already consulted and agreed on a reasonable period of time of nine months for 
implementation. 
89. The representative of the United States said that his country thanked the members of the Panel 
and the Secretariat for their work on this dispute.  The United States had made very clear its 
significant concerns with the Appellate Body's ev aluation of the WTO-consistency of "zeroing" in 
past disputes and would not repeat its concerns at the present meeting.  The United States continued to 
believe that those reports went beyond what the te xt of the agreements provided and what negotiators 
had agreed to in the Uruguay Round.  Although the Panel in this dispute had ultimately elected to 
adhere to rulings on "zeroing" made by the Appe llate Body in past disputes, the United States 
recognized the Panel's careful, independent assessment  reflected in its reasoning on the issue.  The 
Panel, like previous panels, ha d properly understood that the Anti-Dumping Agreement could be 
permissibly interpreted as allowing the use of zeroing in reviews.  The Panel had explained that "there 
exists no single answer" to the question of whet her "dumping" could be defined on a transaction-
specific basis or, rather, whether it must be defined for the "product as a whole".8  In addition, the 
Panel had expressly acknowledged "the  objective lack of clarity in the current definition of 'dumping' 
that is set forth in the Anti-Dumping Agreemen t (a conclusion which [t he Panel] believes is 
inescapable after almost a decade of unprecedented, and often conflicting, pa nel and Appellate Body 
opinions on the matter)".9  But in the end, notwithstanding its own independent view and the standard 
of review set out in Article 17.6 of the Anti-Dump ing Agreement, the Panel, in its own words, had 
"follow[ed] the Appellate Body", and had found th at "zeroing" was inconsistent with the WTO 
Agreement.10    
90. In addition to concerns about the finding on " zeroing", the United States had concerns that the 
Panel had chosen to base the ultimate outcome of the "Orange Juice" dispute not on its own 
interpretation of the WTO Agreement texts, but on fi ndings that had been reached in other disputes.  
The DSU did not establish a system in which pa nel or Appellate Body reports became binding 
precedents.  Instead, the WTO Agreement11 explicitly reserved to Members, in the Ministerial 
Conference or the General Council, the "exclusive authority" to issue binding – or what the DSU12 
referred to as "authoritative" – in terpretations of the covered agreements.  The United States also 
noted that the express reservation of authority should not be disregarded, as some had argued, in the 
name of "security and predictability".  Security a nd predictability in the system were not advanced 
when, as was the case with "zeroing", the results of di spute settlement had the e ffect of adding to or 
diminishing the rights and obligations to which the Members had agreed in the text of the covered 
agreements.  Notwithstanding its systemic concerns  about the findings in this and earlier zeroing 
disputes, the United States recognized the systemic  importance of compliance with dispute settlement 
                                                      
8 Panel Report, para. 8.1.   
9 Panel Report, para. 7.134. 
10 Panel Report, para. 7.135. 
11 WTO Agreement, Article IX:2. 
12 DSU, Article 3.9. WT/DSB/M/298 
Page 18  
 
findings.  To that end, the United States had devot ed significant resources to comply with the DSB's 
recommendations and rulings in zeroing disputes.  As  the United States had previously explained to 
the DSB, the US Department of Commerce had a nnounced a proposal to change the calculation of 
weighted average dumping margins and assessment rat es in certain anti-dumping proceedings.  In that 
light, and as had previously been agreed with Brazil,  the United States wished to state that it intended 
to implement the DSB's recommendations and rulings in this dispute in a manner respecting its WTO 
obligations, and that it would need a reasonable peri od of time in which to implement.  As had been 
mentioned by Brazil in its statement, Brazil and the United States had further reached an agreement 
regarding an appropriate reasonable period of time, and the parties would circulate that agreement to 
Members, shortly. 
91. The representative of the European Union said th at the EU welcomed the fact that the Panel 
had followed the guidance provided in numerous ruli ngs of the Appellate Body  on zeroing.  However, 
the EU did not agree with a statement contained in  the Panel Report, suggesting to "solve the zeroing 
controversy" in the Rules negotiations.  The EU considered that there was no "controversy" with regard to the issue whether the practice of zeroi ng was allowed under current WTO rules.  The issue 
had been resolved a long time ago by the Appellate Body and, since then, had been confirmed many 
times. 
92. The DSB took note of the statements and adopted the Panel Report contained in 
WT/DS382/R. 
8. Proposed nomination for the indicative list of governmental and non-governmental 
panelists 
93. The Chairperson drew attention to document WT/DSB/W/452, which c ontained an additional 
name proposed for inclusion on the indicative list of  governmental and non-governmental panelists, in 
accordance with Article 8.4 of the DSU.  She propo sed that the DSB approve the name contained in 
document WT/DSB/W/452. 
94. The DSB so agreed. 
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