RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/241 
14 December 2007 
 (07-5556) 
Dispute Settlement Body 
22 October 2007  
 
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 22 October 2007  
 
Chairman:  Mr. Bruce Gosper (Australia) 
  
Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................4  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the 
United States .................................................................................................................. .............5  
2. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ............................................5  
(a) Statements by the European Communities and Japan ................................................................5  
3. Colombia – Indicative prices and rest rictions on ports of entry ..........................................7  
(a) Request for the establishment of a panel by Panama..................................................................7  
4. China – Measures affecting trading rights and distribution services for certain 
publications and audiovisual entertainment products ..........................................................8  
(a) Request for the establishment of a panel by the United States ...................................................8  
5. Turkey – Measures affecting the importation of rice ............................................................9  
(a) Report of the Panel............................................................................................................ ..........9  
6. Korea – Anti-dumping duties on imports of certain paper from Indonesia:  
Recourse to Article 21.5 of the DSU by Indonesia ...............................................................11  
(a) Report of the Panel............................................................................................................ ........11  
7. Appointment of Appella te Body members............................................................................13  
(a) Statement by the Chairman...................................................................................................... .13 
 
 WT/DSB/M/241 
Page 2  
 
  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.59) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.59) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.34) 
 
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 three sub-items  to which he had just referred be considered 
separately. 
(a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.59) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.59, 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 October 2007, in accordance with Article 21.6 of the DSU.  As noted in the 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 administ ration continued to work with the US Congress to 
implement the DSB's recommendations and rulings. 
4. The representative of the European Communities
 said that, month after month, delegations 
had listened to the United States reiterating its strong commitment to  the TRIPS Agreement and to a 
strong and non-discriminatory protection of intellectua l property rights.  But, delegations were still 
waiting to see a reconciliation of stat ements and acts.  Not only in the present dispute, but also in the 
dispute on Section 110, the United States had ignored for years fundamental obligations embodied in 
the TRIPS Agreement.  No matter how strongly th e United States might deny this, such outright 
neglect of its obligations under the TRIPS Agreem ent and the DSU undermined the authority of the 
TRIPS Agreement and of WTO rulings.  The EC hope d that the introduction of bipartisan bills that 
would, inter alia , repeal Section 211 showed a renewed and genuine interest of the United States to 
finally bring itself into compliance with its TRIPS oblig ations.  It was in the interest of all, including 
of the US Industry, that the United States fina lly complied with its obligations under the TRIPS 
Agreement. 
5. The representative of Cuba  said that, for five years now, th e United States had been saying 
that it was working to comply with the DSB's reco mmendations and rulings.  Every month, before the 
DSB, the United States reiterated its speech.  Cuba 's concern about the lack of progress, and about a 
deadlock in implementation, was shared by other WTO Members who had spoken in the DSB 
meetings regarding the seriousness of the situation.   By its action, the United States was disregarding 
the objective of the dispute settleme nt mechanism, namely, to guarantee prompt compliance with the 
DSB's recommendations and rulings, and to preserve th e rights and obligations of all Members.  The 
United States was among the countries that had subm itted and had received the most cases in the  WT/DSB/M/241 
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  framework of this dispute settlement system.  De legations had witnessed the US alleged concern at 
other Members' failure to respect intellectual prope rty rights.  It was strange that the United States 
should request the DSB to settle disputes concerni ng compliance with the TRIPS Agreement while it 
had not taken into account recommendations and rulings addressed to it in this area, in this and other 
cases.  It would seem that Members were in a situa tion – not, be it noted, the first – in which that 
country required others to comply with an obliga tion with which it had not itself complied.  If every 
Member were to adopt the same a ttitude, chaos would ensue and the rules that benefited only the most 
developed players would instantly be dispensed with. 
6. Section 211 was causing serious harm to a powe rful Cuban-French joint venture company.  
Its application would prevent the CUBAEXPORT co mpany, currently the owner of the Havana Club 
trademark in the United States, from renewing its registration in that territory.  Furthermore, owing to 
the unilateral economic trade and financial blocka de imposed on Cuba by the United States, the 
Cuban-French company could not market Cuban rum in the United States.  The attitude of the United States sent out very negative signals to other WTO Members and called into question the 
effectiveness of the dispute settlement mechanis m and the credibility of, and confidence in, the 
multilateral trade system, at a crucial time for th e WTO as it negotiated the Doha Round.  Cuba called 
for the immediate repeal of Section 211, with a ll the adverse consequences it entailed for Cuba, and 
hoped that the United States, the defender of property  rights in this and other areas, would recognize 
serious implications of the precedent it was setti ng by its conduct in every case in which it made a 
dead letter of what had been agreed to.  
7. The representative of China
 said that, like others, his country, once again, wished to express 
its concerns on protracted implementation in this case.  Five years had passed and the implementation 
issue pertaining to this case was still before the DSB for discussion and, while noting the development within the United States on this matter, there was yet no clear indication when this matter would hopefully be resolved.  Bearing in mind the sy stemic impact that the undue delay of full 
implementation of the DSB's rulings would cause to the integrity and efficiency of the dispute 
settlement system, China urged the United States to double its effort to fully implement the decision 
of the DSB in this case. 
8. The representative of Thailand
 said that his country thanked 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 the rules- based multilateral trading system.  Thailand, 
therefore, called on the United States to take the necessary and urgent steps to comply with its 
obligations under the TRIPS Agreement. 
9. The representative of Bolivia
 said that, like previous speakers, her delegation wished to state 
yet again that Bolivia was disappointed with the c ourse of events and the way the dispute settlement 
mechanism was working.  The situation of non-im plementation of recommendations and rulings set a 
serious precedent regarding the functioning of the system.  Bolivia wished to join other speakers 
requesting that the United States respect the DSB's recommendations and rulings, so as to be able to 
preserve the credibility of the dispute settlement mechanism. 
10. The representative of the United States  said that his country regretted that the EC was again 
suggesting that US actions in this dispute had unde rmined the authority of the TRIPS Agreement.  
Once again, the United States failed to understand  how its commitment to implement the DSB's 
recommendations and rulings in this dispute and its efforts to comply could undermine the "authority" 
of the TRIPS Agreement.  Indeed, the EC itself ha d noted the introduction of bipartisan bills in the 
current US Congress that would implement the DSB' s recommendations and rulings.  To the contrary, 
these efforts affirmed Members' commitments to th e TRIPS Agreement.  Finally, the United States 
regretted very much that some Members – including some whose record of protecting intellectual WT/DSB/M/241 
Page 4  
 
  property rights might appear to be less than r obust – continued to criticize the US commitment to 
intellectual property rights.  These criticisms were co mpletely unfounded.  It was of course true that 
the United States remained a strong advocate of substantial protections for intellectual property 
internationally.  However, the United States was al so second to no one in providing strong intellectual 
property protection within its own territory. 
11. The representative of Cuba
 said that legislations had been submitted to the US Congress, but 
there was no guarantee that this dispute would be r esolved as required by the DSB's recommendations 
and rulings.  Different legislations and acts had been proposed in the past, but none of them had 
reached the final stage.  The Republican leadersh ip and the governing party had manoeuvred in the 
US Congress to avoid the approval of such legislati ons and acts.  Furthermor e, the US President had 
stated publicly that he would veto any legislative measures which would benefit directly or indirectly 
Cuba.  In this case, it would be just rendering jus tice by protecting the rules on intellectual property, 
which had been violated for many years.  This di spute had become very well known since it had been 
ongoing for a number of years.  In fact, more than five years had gone by without implementation of 
the DSB's recommendations and rulings.  Members were  in a state of limbo because no concrete steps 
had been taken beyond rhetorical statements.  
12. 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.59) 
13. The Chairman  drew attention to document WT/DS184/ 15/Add.59, 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. 
14. The representative of the United States  said that his country had provided a status report in 
this dispute on 10 October 2007, in accordance with  Article 21.6 of the DSU.  As Members would 
recall, as of 23 November 2002, the US author ities had addressed the DSB's recommendations and 
rulings with respect to the calculation of anti- dumping margins in the hot-rolled steel anti-dumping 
duty investigation at issue in this dispute.  De tails were provided in doc ument 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. 
15. 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 the measure to implement the part of the DSB's recommendations, as reported 
by the United States.  However, the fact remained th at, while it had been more than six years after the 
DSB had adopted the recommendations, the issue of implementation in this case was still on the DSB 
agenda, because the remaining part of the reco mmendations had not yet been implemented.  For 
instance, the United States had not made the necess ary legislative amendments to the relevant 
provisions of its Tariff Act of 1930, which still re quired the inclusion of dumping margins established 
for the sampled companies based only in part on "facts available" in calculating "all-others rate".  As a 
result, these WTO-inconsistent provisions could still apply to future anti-dumping investigations that 
would involve the calculation of "all other rate".  As  Japan had repeatedly stated before the DSB, a 
full and prompt implementation of the recommenda tions and rulings of the DSB was essential for 
maintaining the credibility of the WTO dispute settleme nt system.  Japan noted that, in its statement 
and the status report, the United States had stated  that the US administration was working with the 
new Congress to pass specific legislative ame ndments that would implement the DSB's 
recommendations and rulings.  In this regard, Japan  wised the United States to indicate when such  WT/DSB/M/241 
 Page 5 
 
 
  amendments would be introduced in the new Congress.  Finally, Japan wished to renew its hope that 
the United States accelerate its work to come  to full compliance without further delay. 
16. 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.34) 
17. The Chairman  drew attention to document WT/DS160/ 24/Add.34, 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. 
18. The representative of the United States  said that his country had provided a status report in 
this dispute on 10 October 2007, in accordance with Article 21.6 of the DSU.  The US administration 
would work closely with the US Congress and w ould continue to confer with the European 
Communities, in order to reach a mutually satisfactor y resolution of this matter.  In this regard, the 
United States appreciated the  EC's statement at the 25 September 2007 DSB meeting that it remained 
prepared to work with the United States to seek a resolution to this  dispute.  The United States too 
shared the EC's goal of discussing how such a mu tually satisfactory solution could be achieved. 
19. The representative of the European Communities  said that the EC thought it had exhausted all 
ways of saying that this dispute had dragged on for too long, that it wanted to see it resolved, and that 
it was prepared to work with th e United States to do so.  Rather  than going through the monthly 
exercise of looking for marginally different ways to say those things, the EC would prefer if the United States modified the legislation in question so  that the DSB could be spared further discussion 
of this case.  
20. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
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 
21. The Chairman  said that this item was on the agenda of the present meeting at the request of 
the European Communities and Japan.  He inv ited the respective representatives to speak. 
22. The representative of th e European Communities  said that, since 1 October 2007, imports 
subject to anti-dumping or countervailing duties entered the United States without the duties collected on them being distributed later on.  This was a positive step that the EC had already had the 
opportunity to welcome.  However, the Continued Dumping and Subsidy Offset Act would continue 
to produce trade distorting effects for a number of years as duties collected on imports that had entered before 1 October would still be distribut ed.  The Congressional Budget Office had foreseen 
that distributions under the CDSOA would conti nue until 1 October 2009.  On 1 October 2007, the 
United States had started a new distribution and provisional amounts published earlier in the course of 
the year indicated that it was likely to be the most important thus far.  The EC was still waiting for a 
convincing explanation as to how to reconcile the United States' assertion month after month that it 
had taken all actions necessary to bring itself in  compliance with its WTO obligations and the 
continuation of CDSOA distributions which were in  violation of Articles 18.1 of the Anti-Dumping 
Agreement and Article 32.1 of the SCM Agreement.  The EC wished to ask ag ain the United States if 
and what steps it intended to take to stop the tran sfer of anti-dumping and countervailing duties to its WT/DSB/M/241 
Page 6  
 
  industry.  The EC also renewed its call on the Un ited States to abide by its clear obligation under 
Article 21.6 of the DSU and to submit im plementation reports in this dispute. 
23. The representative of Japan
 said that although his country recognized that a duty collected on 
entries entered as from 1 October 2007 was no longer subject to the distributions, "the distribution process will continue until all entries made befo re [that date] are liquidated and the duties are 
collected".
1  Under the US system, such liquidation and collection could take years to come.  Thus, 
contrary to the repeated US assertion that it had taken all necessary steps for implementation in this 
case, these latest US actions rendered further support to  the view that the United States had still failed 
to fully implement the DSB's recommendations and ru lings in this case.  In fact, the distribution 
process under the CDSOA was currently underway for the Fiscal Year 2007.  Japan, once again, 
urged the United States to immediately terminate th e illegal distribution and to repeal the CDSOA, 
not just in form, but also in substance.  Until then, Japan considered that the US compliance was 
incomplete and the issue of implementation in th is dispute must be under surveillance by the DSB 
pursuant to Article 21.6 of the DSU.  In this c onnection, Japan reiterated that the United States was 
under obligation to provide the DSB with a status repor t, pursuant to Article 21.6 of the DSU.  Japan 
reserved all its rights under the DSU until the United States came into full compliance. 
24. The representative of Canada  said that his country thanked the EC and Japan for including 
this item on the agenda of the present meeting.  Canada was pleased that duty deposits collected by 
the United States after 30 September would no longer be  subject to the Byrd Amendment.  While this 
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 would 
continue. 
25. The representative of Brazil  said that his country wished to thank the EC and Japan for 
maintaining this matter on the DSB's agenda.  The United States had begun another round of 
disbursements under the Byrd Amendment, pursuant to which US domestic industry would receive as 
much as US$279 million as a result of a WTO-inconsis tent measure being still operative in defiance 
of the repeated assertion by the United States that fu ll compliance had been achieved in this case.  In 
fact, the trade-distorting effects of the Byrd Amendment would still be felt for years since anti-dumping and countervailing duties collected on products entered into the United States up to 30 September 2007 would still be ha nded out to the US domestic industry at the expense of foreign 
producers and exporters and of WTO Members' rights.  Brazil wished to reiterate that full compliance 
on the part of the United States would only come through the complete elimination of all 
disbursements under the Byrd Amendment.  Until such condition was met, WTO Members should be 
able to exercise any rights related to the non-compliance situation in this case. 
26. The representative of China
 said that his country thanked the EC and Japan for, once again, 
raising this matter before the DSB.  China shared th e view of the previous speakers and wished to join 
them in urging the United States to comply fully with the DSB's rulings.  
27. The representative of India  said that her country thanked the EC and Japan for raising this 
matter at the present DSB meeting once again.  Indi a shared their concerns.  As mentioned earlier, 
India remained concerned about the US con tinued illegal disbursement of anti-dumping and 
countervailing duties to its industry.  India, therefor e, wished to reiterate that full compliance on the 
part of the United States would only come through th e complete elimination of  all disbursement under 
the Byrd Amendment.  Until such condition was me t, WTO Members should be able to exercise any 
rights related to the non-compliance situation it faced in this case. 
                                                      
1 71 Federal Register at 31336 et seq. (dated 1 June 2006).  WT/DSB/M/241 
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  28. The representative of Thailand  said that his country wished to join previous speakers in 
thanking the EC and Japan for bringing this matter before the DSB once more.  As noted at previous 
DSB meetings, Thailand remained disappointed at the US continued illegal disbursement of funds 
under the CDSOA.  Thailand also remained disappointed at the US continued lack of status reports on 
its outstanding implementation in this dispute.  Therefore, Thailand again urged the United States to 
cease its WTO-inconsistent disbursements, to rep eal the Byrd Amendment with immediate practical 
effect, and to resume providing status reports until su ch actions were taken and this matter had been 
fully resolved. 
29. 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 was surprised to hear that the EC 
and Japan made the statement that the United States had not implemented the DSB's recommendations and rulings and woul d remain in breach of its WTO obligations.  The United States 
wished to remind the EC and Japan that, pursuan t to the Deficit Reduction Act, anti-dumping duties 
and countervailing duties that were being collect ed on goods now entering the United States would 
not be distributed to domestic firms.  With respect to comments regarding further status reports in this 
matter, those two Members who had inscribed this ite m on the agenda of the present meeting were, of 
course, free to do so, but 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. 
30. The DSB took note
 of the statements.  
3. Colombia – Indicative prices and restrictions on ports of entry 
(a) Request for the establishment of a panel by Panama (WT/DS366/6) 
31. The Chairman  recalled that the DSB had considered this matter at its meeting on 
28 September 2007, and had agreed to revert to it.  He drew attention to the communication from 
Panama contained in document WT/DS366/6, and invited the representative of Panama to speak. 
32. The representative of Panama  said that as his country had informed the DSB at its meeting on 
28 September 2007, since June 2005 Panama had b een experiencing serious difficulties in gaining 
access to Colombia's market as a consequence of the entry into force of a number of customs 
measures imposed on goods originating in, or coming from, Panama, which had had a negative impact 
on the country's export activities, and in particular on those taking place in the commercial free zone 
operating in Panama's territory, known as the Co lon Free Zone, which served as a centre for the 
collection and distribution of goods from various wo rld suppliers ultimately destined for Latin 
American markets.  Colombia was one of the main  destination markets of the Colon Free Zone and 
had been so since its creation, so that these measures  had directly affected the legal security of those 
re-exportation activities carried out by domestic and in ternational suppliers, the final destination of 
which was Colombia.  He reiterated that Panama ha d spent two years trying to resolve this problem.  
Unfortunately, in spite of the pact between Panama  and Colombia to put an end to this dispute, 
through the repeal by Colombia of the customs r estrictions in question and the implementation of a 
Protocol of Cooperation and Exchange of Customs Information which had yielded results, Colombia 
had now decided unilaterally and unexpectedly to di sregard this amicable solution, which had even 
been notified to the WTO, and once again to intro duce measures with effects similar to those that 
were the subject of Panama's initial query last year.  It was for that reason that, following a 
consultation process in July 2007, Panama was now requesting the establishment of a panel to settle 
once and for all a dispute that was seriously aff ecting the advantages derived by Panama from the WT/DSB/M/241 
Page 8  
 
  WTO Agreements, as was indicated in Panama's pa nel request, which was s ubmitted for consideration 
by the DSB for the second consecutive time. 
33. The representative of Colombia
 said that his country regretted that Panama had decided to 
request the establishment of a panel to resolve this dispute.  On 31 July 2007, Colombia had attended 
the consultation meeting where it had provided a respon se to the questions raised by Panama.  On that 
occasion, Colombia had explained the scope of th e measures and their compatibility with the WTO 
rules and, at that time, Panama had not reacted to Colombia's response.  Colombia was at the disposal 
of Panama's authorities to continue this dialogue.  Colombia regretted that the parties had not been 
able to reach a mutually agreed solution, but was ready to demonstrate the legality of the measures 
called into question and prove th at they were WTO-consistent. 
34. 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. 
35. The representatives of Ecuador , the European Communities , Guatemala , Honduras , India , 
Chinese Taipei  and the United States  reserved their third-party rights to participate in the Panel's 
proceedings. 
4. China – Measures affecting trading rights and distribution services for certain 
publications and audiovisual entertainment products  
(a) Request for the establishment of a panel by the United States (WT/DS363/5) 
36. The Chairman  drew attention to the communication from the United States contained in 
document WT/DS363/5, and invited the representative of the United States to speak. 
37. The representative of the United States  said his country was concerned about certain Chinese 
measures that affected market access for films for theatrical release;  for audiovisual home 
entertainment products, such as DVDs  and video cassettes;  for books, periodicals, journals, and other 
publications;  and for sound recordings.  These me asures appeared to ra ise a number of WTO 
concerns.  The United States and China had been di scussing these matters bilaterally for quite some 
time.  Three sets of issues were before the DSB at the present meeting. First, China only permitted 
certain Chinese state-designated enterprises to impor t these products into th e customs territory of 
China.  This restriction acted as a bottleneck fo r those products at the border.  Second, China 
restricted the rights of foreign entities to engage in the business of distributing publications, audiovisual home entertainment products and sound recordings within China.  For some of the 
industries at issue, distribution was limited to  Chinese state-owned enterprises.  Others faced 
restrictive requirements not imposed on domestic en terprises.  In yet other cases, only joint ventures 
under Chinese control were permitted to engage in dist ribution.  Third, China imposed restrictions on 
distributing imported publications, sound recordings, and films for theatrical release.  These were 
restrictions that Chinese products did not face.  For example, of the dozens of distributors of films for theatrical release in China, only two were allowed to  handle imported films.  Distribution of imported 
publications and the digital distribution of impor ted sound recordings also faced discriminatory 
restrictions. 
38. China's measures appeared to be inconsistent with several provisions of the WTO Agreement, 
including provisions in the GATS, the GATT 1994, and China's Protocol of Accession.  The US panel request described these matters in greater detail.  In addition, the United States was also concerned 
about the relationship between the measures at issu e and the protection of intellectual property rights 
in China.  China's barriers to market access fo r these copyright-dependent products were keeping 
legitimate products away from the Chinese consumer.  These barriers, in turn, benefited copyright 
pirates who operated in the Chinese market.  In ot her words, the protection of intellectual property  WT/DSB/M/241 
 Page 9 
 
 
  and market access for legitimate copyright-depe ndent products were bound t ogether.  As he had 
mentioned a few moments ago, the United States had discussed all of these issues extensively with 
China, including in the consultations that had been held in June and July.  While those consultations 
had provided some helpful clarifications, regretta bly, they had not resolved this dispute. The 
United States, therefore, requested that the DSB establish a panel at the present meeting to examine 
the matters set forth in the US panel request. 
39. The representative of China  said that his country respected the rights of the United States 
under the DSU.  However, China regretted that th e United States was requesting for the establishment 
of a panel in the case under consideration.  Si nce its accession, China had been sincerely and 
faithfully fulfilling its WTO commitme nts, including those pertinent to this case.  Currently, China 
annually imported and distributed dozens of re venue-sharing films as committed, half a million 
publications of different types and countless audi ovisual products of various sources.  Thus, a good 
access into the marketplace of China for such produc ts of other Members had already been provided.  
Regardless of those facts and China's explanati ons at various occasions, including the consultation 
under the DSU, as well as China's wish  to resolve this dispute through consultations, the United States 
came forward with its request, which China regre tted.  Having said that, and in accordance with the 
DSU provisions, China did not agree to the estab lishment of a panel at the present meeting.  
40. The DSB took note  of the statements and agreed  to revert to this matter. 
5. Turkey – Measures affecting the importation of rice 
(a) Report of the Panel (WT/DS334/R) 
41. The Chairman  recalled that at its meeting on 17 Marc h 2006, the DSB had established a panel 
to examine the complaint by the United States pertai ning to this matter.  The Report of the Panel, 
contained in document WT/DS334/R had been ci rculated on 21 September 2007 as an unrestricted 
document.  The Panel Report was now before the DSB for adoption at the request of the United States.  This adoption procedure was with out prejudice to the right of Members to express 
their views on the Panel Report. 
42. The representative of the United States
 said that his country wished to sincerely thank the 
members of the Panel and the Secretariat for their hard  work in this dispute.  The Panel Report was in 
most respects thorough and well-re asoned, and the United States was pleased to propose its adoption.  
In this dispute, Turkey had acted inconsistently with its WTO obligations by requiring importers to 
obtain licenses known as certificates of control to impor t rice and by failing to grant licenses to import 
rice at or below Turkey's bound duty rate.  The Un ited States was pleased with the Panel's finding that 
Turkey's import licensing regime for rice co nstituted a quantitative import restriction and 
discretionary import licensing inconsistent with Artic le 4.2 of the Agreement on Agriculture.  Turkey 
had also acted inconsistently with its WTO oblig ations by requiring importers to purchase domestic 
rice as a condition for importing rice under a tariff-rate-quota system.  The United States was also very pleased that the Panel had found Turkey's domestic purchase requirement to be in breach of 
Article III:4 of the GATT 1994.  The Panel's analys is of both of these measures was sound, and the 
United States recommended it to Members' attention. 
43. The United States also wished, however, to bring two systemic concerns relating to the 
Panel's final Report to the attention of Members.  First, the United States noted that in the final 
Report, the Panel had chosen not to make a recommendation that Turkey bring the domestic purchase requirement into conformity with Turkey's WTO ob ligations.  This failure by the Panel was very 
troubling.  Article 19.1 of the DSU stated that, wh en a panel concluded that a Member's measure was 
inconsistent with a covered agre ement, the panel "shall recommend that the Member concerned bring 
the measure into conformity with that agreement".  This requirement was unconditional.  It applied WT/DSB/M/241 
Page 10  
 
  regardless of events that might occur during the pa nel proceeding, including any changes made to the 
measure after panel establishment.  The Panel in  this dispute had found the domestic purchase 
requirement within its terms of reference and ha d found that measure to be WTO-inconsistent.  
Therefore, under DSU Article 19.1 the Panel was required to make a recommendation.  In other 
words, panels did not have the option to decline to make a recommendation. 
44. Second, the United States was troubled by the Panel's addition of an entirely new section in 
the final report that had not been included in th e interim report.  Because the new section was not 
included in the interim report, neither party had a ch ance to review it during the interim review period.  
Furthermore, during the course of the panel proceedi ng, neither party had requested the findings made 
in that section.  The Panel's decision to make new findings in a new section of its report at the final 
stage of the proceeding, and after interim review by the parties, could not be reconciled with the 
provisions of Article 15 of the DSU.  The United States believed that all Members should be concerned by the systemic implications of such an addition and so the United States had prepared a 
paper that explained its concerns in more detail.  The United States was making a copy of that paper 
available in the room and would be pleased to provide it to any interested delegation.
2 
45. In conclusion, putting these systemic issues to one side, the United States had sought for 
many years to reach a mutually agreed solution with Tu rkey to the issues raised in this dispute.  The 
United States hoped this report would assist in resolv ing the dispute and that Turkey would promptly 
bring its measures into compliance with its WTO obligations.  
46. The representative of Turkey  said that his country wished to take this opportunity to 
acknowledge the hard work of the Panel and the Secr etariat in preparing the Report.  At the same 
time, Turkey also wished to make a number of observa tions regarding the Report.  First of all, Turkey 
was disappointed with the Panel's finding of inco nsistency with Article 4.2 of the Agreement on 
Agriculture.  Turkey did not share the Panel's c onclusion in paragraph 8.1 of the Report regarding 
Certificates of Control on rice imports.  Turkey believe d that the instrument of Certificate of Control 
was not inconsistent with any of its WTO obligatio ns.  Moreover, Turkey wished to inform the DSB 
that it was currently exploring what steps might n eed to be taken to comply with the recommendation 
of the Panel in this case in compliance with Turkey's  rights under the WTO.  Turkey would revert to 
this issue at the next DSB meeting.  Turkey w as also willing to engage in constructive discussions 
with the United States on this matter. 
47. As regards the tariff-rate-quota (TRQ) issue, Turkey was not satisfied with the Panel's 
decision to make findings on any of the measures rela ting to the TRQ regime.  In that respect, again 
Turkey could not endorse the content of paragrap h 8.3 of the Report.  As Turkey had underlined 
during the Panel's proceedings, the TRQ regime had expired and Turkey had made repeated 
assurances that it would not re-introduce any simila r measure in the future.  Therefore, Turkey 
considered that the Panel's decision to make a findi ng on this issue was not appropriate.  But, Turkey 
welcomed the Panel's decision to refrain from making any specific recommendation to the DSB on 
this matter. 
48. The representative of Australia  said that her country had participated as a third party in this 
dispute and wished to join the parties in thanking the Panel and the Secretariat for their work in this 
case.  Australia welcomed the findings of the Pane l, which confirmed that a WTO Member could not 
resort to non-tariff barriers to circumvent WTO tariffs and other access commitments.  Australia had a continuing commercial interest in ac cess to Turkey's rice market and looked forward to Turkey's early 
implementation of the DSB's recommendations.  Austra lia would, however, like to register its concern 
at the consideration by the Panel of matters in its  final Report which had not been addressed in the 
interim report and which had not been raised by either  party during the interim review.  In Australia's 
                                                     
 
2 The US paper was subsequently circulated in document WT/DS334/9.  WT/DSB/M/241 
 Page 11 
 
 
  view this raised systemic issues which were potentia lly prejudicial to the predictability of the dispute 
settlement system. 
49. The representative of Canada  said that his country agreed with the United States that a panel 
should refrain from including in the final report findings  that did not appear in the interim report.  
Parties were to be given the opportunity to make  comments on all draft findings as provided for in 
Article 15 of the DSU.  The Panel had not included its findings on special and differential treatment in 
the interim report and, therefore, the Panel ha d not offered the United States an opportunity to 
comment on these findings as provided for in Article 15.2 of the DSU. 
50. The DSB took note  of the statements and adopted  the Panel Report contained in 
WT/DS334/R. 
6. Korea – Anti-dumping duties on imports of certain paper from Indonesia:  Recourse to 
Article 21.5 of the DSU by Indonesia 
(a) Report of the Panel (WT/DS312/RW) 
51. The Chairman  recalled that at its meeting on 23 January 2007, the DSB had decided, in 
accordance with Article 21.5 of the DSU, to refer to the original Panel the matter raised by Indonesia 
concerning the implementation by Korea of the re commendations and rulings of the DSB pertaining 
to this dispute.  The Report of the Panel contai ned in document WT/DS312/RW had been circulated 
on 28 September this year as an unrestricted docum ent.  The Panel Report was now before the DSB 
for adoption at the request of Indonesia.  This a doption procedure was without prejudice to the right 
of Members to express their views on the Panel Report. 
52. The representative of Indonesia  said that her country thanked the Panel and the Secretariat for 
their work on this dispute.  Indonesia was satisfied  with the outcome of the Article 21.5 proceedings.  
The Panel had confirmed Indonesia's view that Ko rea had failed to implement the recommendations 
and rulings adopted by the DSB.  Indonesia recalle d that at the 28 November 2005 DSB meeting at 
which the original Panel Report had been adopted , Korea had declared that its implementation 
proceedings would "provide an example of the c onduct of anti-dumping investigations in a manner 
consistent with the highest standards of  procedural and substantive fairness".3  The Article 21.5 Panel 
Report, to be adopted at the present meeting, est ablished beyond doubt that Korea's confidence was 
misplaced and that its investigating author ity had failed to meet that standard. 
53. On the primary issue before it, the Panel ha d found that Korea had not complied with the 
rulings and recommendations of the original panel re garding the exercise of special circumspection in 
utilizing secondary information to calculate the dumpi ng margins for the largest Indonesian exporter.  
Consequently, the anti-dumping measure remained inc onsistent with Article 6.8 and Annex II of the 
Anti-Dumping Agreement.   The Panel had also ruled that the Korean Trade Commission had failed to 
respect the procedural rights of the Indonesian exporter during the implementation process by refusing to give it any opportunity to submit its views on the injury re-determination.  Thus, not only had 
Korea failed to bring itself into compliance, it had also  introduced fresh violations of Article 6.2 of the 
Anti-Dumping Agreement  during the implementation process.  It was now up to Korea to bring itself 
into compliance with its treaty obligations.  Indon esia expected Korea to do so by immediately 
withdrawing the anti-dumping measure. 
54. As Indonesia had previously explained, proper im plementation by Korea of the Panel's rulings 
and recommendations regarding Article 6.8 a nd Annex II of the Anti-Dumping Agreement  would lead 
to de minimis margins and, therefore, termination of the measure for the exporter in question.  
                                                     
 
3 Korea's statement made at the 28 November 2005 DSB meeting (WT/DSB/M/200;  para. 52). WT/DSB/M/241 
Page 12  
 
  Moreover, the appropriate means for Korea to comply with the rulings and recommendations 
regarding its failure to conduct the implementation proceedings in accordance with Article 6.2 of the 
Anti-Dumping Agreement was to terminate the an ti-dumping measure.  In this regard, Indonesia 
noted that in a recent Article 21.5 case involving a measure taken by the United States, Korea had 
stated that "all the obligations contained in Artic le 6" were "fundamental due process rights" and 
where these rights were not respected in an implem entation proceeding, "the only way to bring the 
measure into conformity with relevant provisions  of the covered agreements is to revoke it".
4 
55. Indonesia assumed that Korea considered itsel f bound by the same standards under the WTO 
Agreements to which it would hold the United Stat es and other WTO Members.  In circumstances 
where Korea had been found to have acted inc onsistently with the fundamental due process 
obligations under Article 6 of the Anti-Dumping Agreement, Indonesia hoped that Korea would act 
promptly on the basis of its own stated position that the "only way to bring the measure into conformity" in such circumstances "is to revoke it".  Indonesia also noted that, as a practical matter, in 
every other instance in which an Article 21.5 Panel had found that a WTO Member had failed to bring 
an anti-dumping measure into compliance with prev ious panel rulings, the anti-dumping measure had 
then been terminated or withdrawn as part of a settlement with the complaining Member.  This 
included the US measure at issue in the case just mentioned.  If, therefore, Korea failed to now 
terminate the measure at issue, it would become the first WTO Member to cling to an anti-dumping measure that had twice been found to be inconsis tent with the Anti-Dumping Agreement.  Indonesia 
now had the right to take retaliatory action under Article 22 of the DSU.  Korea's WTO-inconsistent 
measure had been in place for almost four years, improperly restricting Indonesia's access to the 
Korean market.  Indonesia would have no choice, but to request authorization to take retaliatory 
action, if Korea continued to enforce this WTO-inconsistent measure. 
56. The representative of Korea
 said that his country appreciated this opportunity to make a 
statement before the DSB in discussing the adoption of the Panel Report in this dispute.  In evaluating 
the redetermination issued by the Korea Trade Co mmission ("KTC"), the Panel had dismissed two out 
of the four claims raised by Indonesia as failing to meet the prima facie  standard.  The Panel's 
decision, however, found two errors in the KTC's impl ementation of the prior Panel Report:  First, the 
Panel had found that, while the KTC had demonstrated  that the "facts available" interest expense 
figure it adopted was consistent with "information from other independent sour ces at [its] disposal," 
the KTC had failed to provide an adequate explan ation why that information was more reasonable 
than other "facts available" that might have b een used.  Second, while the Panel had found no 
substantive errors in the KTC's revised explanation of its injury analysis (and Indonesia did not allege 
that any such errors existed), the KTC had imprope rly failed to allow the Indonesian respondents to 
comment on the revised explanation of the in jury determination before it was adopted. 
57. Korea was puzzled by certain aspects of the Panel's decision.  Korea did not doubt that the 
Panel had attempted to address the issues raised in th is dispute in good faith.  However, the Panel had 
inexplicably failed to consider a number of argu ments presented by Korea, and it had also based its 
ruling in part on incorrect assumptions and misinterpretations of the actual determination by the KTC.  Korea was confident that, if the Panel had fully c onsidered the arguments presented by Korea and had 
interpreted the determination by the KTC in acco rdance with the clear meaning of the relevant 
passages, the outcome would undoubtedly have been di fferent.  Korea also believed that the Panel's 
decision regarding the selection of "facts availabl e" represented a significant departure from the 
requirements of Article 6.8 and Annex II of the An ti-Dumping Agreement.  The fundamental fact of 
this investigation was that the Indonesian responde nts had refused to cooperate – more particularly, 
they had deliberately refused to provide necessar y information to the KTC and had misled the KTC 
                                                     
 
4 Panel Report:  "United States - Sunset Reviews of Anti-Dumping Measures on OCTG from 
Argentina:  Recourse to Article 21.5 by Argentina" , WT/DS268/RW, Third Party Written Submission of the 
Republic of Korea, 26 April 2006, Annex B-4, page B-27, para. 18.  WT/DSB/M/241 
 Page 13 
 
 
  about the extent to which critical information would be made available during the on-site verification.  
The Panel's suggestion that the KTC was nonethel ess required to explain why it had chosen "facts 
available", that was "less favourable" to the In donesian respondents than information from other 
sources could not be reconciled with the final sente nce of paragraph 7 of Annex II – especially in 
view of the Panel's holding that there was no r eason to prefer the information that was "more 
favourable" to the Indonesian respondents.  In any event, given that the information used by the KTC 
was actually more favourable to the Indonesian r espondents than the information they had themselves 
reported, there simply was no basis for faulting the KTC. 
58. The Panel's analysis of the KTC's revised explan ation of its injury determination was equally 
flawed.  The original Panel's decision faulted the KT C's injury analysis only for failing to provide an 
adequate explanation of the various factors described  in Article 3.4 of the Anti-Dumping Agreement.  
The Panel had not found any error in the KTC's s ubstantive analysis.  The KTC therefore understood 
that implementation of the Panel' s decision required only that it revise its explanation.  While the 
Panel had not rejected that claim, the Panel ha d based its decision on the unsupported assertion that 
"it was ... entirely possible, if not to be expected,"  that the KTC would change its analysis as well as 
its explanation in the implementation proceeding.  The issue, however, was not what was "possible" 
or even what was "to be expected".  Instead, the issue was what the KTC had actually done.  Since the 
KTC had not, in fact, changed its analysis, but in stead had only provided a more comprehensive 
explanation of the analysis already adopted in its  original determination, the Panel's decision was 
clearly flawed.  In light of the fact that Indon esia had not raised any substantive objections to the 
KTC's revised explanation, the logic of the Pane l's decision frankly escaped Korea.  Nevertheless, 
despite these errors in its analysis, the Panel ha d explicitly rejected Indonesia's claim that the KTC 
was required to use a "facts available" figure for in terest expenses that would reward the Indonesian 
respondents for their non-cooperati on and would require Korea to revoke the anti-dumping duties it 
had imposed.5  Instead, the Panel had held only that ye t further explanation was needed from the 
KTC.  While Korea believed that all of the explan ation that might reasonably be needed had already 
been set forth in the KTC's determ ination and in Korea's submissions to the Panel, it seemed to Korea 
that the interests of efficient and expeditious reso lution of this dispute would best be served by a 
prompt implementation of the Panel's ruling to correct the alleged lack of explanation, rather than by 
an appeal to prove that the Panel had based its decision on incorrect and unsupported assumptions, or 
that it had failed to properly consider the explan ations and arguments proffered by the KTC and 
Korea. 
59. As a final matter, Korea wished to note that th e determination that was the subject of this 
dispute had largely been rendered moot, in light of  a subsequent finding of dumping by the KTC in 
the sunset review of this anti-dumping duty, an d the negotiation of a price undertaking with the 
Indonesian exporters.  Nevertheless, Korea was pr epared to provide additional explanations and 
opportunities to comment required by the Panel's deci sion.  Korea looked forward to discussing with 
Indonesia an appropriate schedule to implemen t the recommendations of the Panel Report. 
60. The DSB took note  of the statements and adopted  the Panel Report contained in 
WT/DS312/RW. 
7. Appointment of Appellate Body members 
(a)  Statement by the Chairman 
61. The Chairman , speaking under "Other Business", said that as he had announced at the outset 
of the meeting, he wished to make a statement regarding the ongoing process for selecting four new 
Appellate Body members.  He said that the Sel ection Committee had now co mpleted its interviews 
                                                      
5 Final Panel Report, para. 6.51. WT/DSB/M/241 
Page 14  
 
  with the nine candidates nominated for the four upc oming Appellate Body vacancies.  The interviews 
had been held on 26 and 27 of September and on 11 and 15 of October.  The Selection Committee had 
also concluded its consultations with interested de legations to hear their views on the candidates.  
Those consultations had been held on 16, 17 and 18  October 2007.  Forty-four delegations had met 
with the Selection Committee.  In addition, writte n comments had been recei ved by the deadline of 
18 October from five delegations.  He recalled that , pursuant to the procedures agreed by the DSB on 
20 June 2007, a decision on the four vacancies had to be taken by the DSB at its meeting on 
19 November 2007.  In order for the DSB to be able  to do so, the Selection Committee had to provide 
its recommendations regarding the four vacancies by no later than 8 November, which was also a 
deadline for submitting items for the agenda of th e 19 November DSB meeting so that the airgram 
could be issued on 9 November.  While it was the Se lection Committee's original intention to provide 
its recommendations by no later than 5 November, he  had recently been advised that, due to various 
scheduling difficulties, the Selection Committee would now only be able to provide its recommendations on or shortly before 8 November, rath er than on 5 November as originally planned.  
The Selection Committee regretted any inconven ience that this short delay might cause for 
delegations.  He hoped that this slightly revised ti me-table would be agreeable  to all delegations and 
thanked them for their understanding.  
62. The DSB took note
 of the statement.  
 
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