RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/250 
1 July 2008 
 (08-3124) 
Dispute Settlement Body 
20 May 2008  
 
   
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 20 May 2008  
 
Chairman:  Mr. Mario Matus (Chile) 
  
 Prior to the adoption of the Agenda
, the representative of Ecuador  said that his country 
wished to request that the item concerning the adoption of the Panel Report entitled:  "European 
Communities – Regime for the Importation, Sale a nd Distribution of Bananas:  Second Recourse to 
Article 21.5 of the DSU by Ecuador" (WT/DS27/RW 2/ECU) be removed from the proposed Agenda 
due to the interest of the Government of Ecuador to allow more time for the ongoing negotiations in 
order to resolve this long-standing dispute.  He further indicated that Ecuador would be requesting 
that a special meeting of the DSB be held before 7 June 2008 in order to cons ider the adoption of the 
above-mentioned Panel Report.    The Chairman
 proposed that, in accordance with Ru le 6 of the Rules of Procedure for 
meetings of the DSB, and as requested by Ecuador , the item related to the adoption of the Panel 
Report contained in WT/DS27/RW2/ECU, be withdrawn from the proposed Agenda.    The DSB so agreed
. 
  
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  
(d) European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Communities..............................................................5  
2. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ............................................7  
(a) Statements by the European Communities and Japan ................................................................7  WT/DSB/M/250 
Page 2  
 
3.
 United States – Final anti-dumping me asures on stainless steel from Mexico....................9  
(a) Report of the Appellate Body and Report of the Panel...............................................................9  
4. Proposed nominations for the indicative list of governmental and 
non-governmental panelists ...................................................................................................16  
 
 
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.66) 
 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.66) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.41) 
 
(d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.4 – WT/DS292/31/Add.4 – WT/DS293/31/Add.4) 
 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 four 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.66) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.66, 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 8 May 2008, in accordance with Article  21.6 of the DSU.  As noted in that status 
report, a number of legislative proposals that would implement the DSB's recommendations and 
rulings in this dispute had been introduced in th e current Congress, in both the US Senate and the US 
House of Representatives.  The US administration co ntinued to work with the Congress to implement 
the DSB's recommendations and rulings. 
4. The representative of the European Communities  said that it had been more than six years 
since the United States had been in breach of the TRIPS Agreement.  And, the EC was still counting 
and waiting for the United States to implement the DSB's ruling and to respect its obligations under 
the TRIPS Agreement.  The EC hoped that the bipar tisan bills introduced to repeal Section 211 would 
finally progress and put the United States into compliance with its TRIPS obligations. 
5. The representative of Cuba  noted, with regret, that delegati ons could easily predict what was 
to be reported under this Agenda item at each regular DSB meeting.  It seemed that the US 
administration would need many more years in order to  be able to bring its legislation into line with 
its WTO obligations.  The Marrakesh Agreement, wh ich had established the WTO, stipulated clearly 
and unequivocally, in Article XVI:4, that Members shall ensure that their laws, regulations and 
administrative procedures be in conformity with th e WTO Agreements.  Cuba was surprised to hear,  WT/DSB/M/250 
 Page 3 
 
 
at the previous regular DSB meeting, that the Un ited States had refused to be called a non-complying 
Member because the United States co nsidered that it had complied in the majority of its disputes.  
However, the United States had been involved in the largest number of disputes either as a defendant 
or a complainant.  According to the information available on the WTO website, the United States had 
participated as a defendant in 99 disputes and as a co mplainant in 89 disputes.  The Agenda of the 
present meeting further demonstrated the US failure to  comply with its obligations in relation to the 
disputes under continued surveillance by the DSB.  
6. It was well known that Cuba had a significant inte rest in this dispute.   Although Cuba was not 
a party to this dispute, it had condemned and would continue to condemn the situation of non-
compliance, as had also been done by other Member s.  Section 211 undermined the interest of Cuban 
trademark owners.  This was unacceptable and violated the WTO and the WIPO Agreements.  
Concerns regarding this situati on had gone beyond the dispute settle ment system, and questions had 
been raised over the system's cr edibility and viability.  The way the dispute settlement system worked 
was now being questioned by WTO Members.  Acad emics and non-governmental organizations were  
also focusing their attention on the system.  Reform s of the system were needed urgently.  Those 
reforms should include putting into place effective measures against non-complying Members in 
order to ensure the balance of rights and obligatio ns of all developed and developing Members, under 
equal conditions and without discrimination. 
7. The annual report by the Deputy US Trade Representative underlined the increasing 
importance of intellectual property rights, and the enforcement of those rights, for the US economy.  The report, approved by the US Congress, contained a Priority Watch List stipulating countries on 
which the United States could impose trade sanctions.  Cuba believed that this information was useful 
to other Members and invited them to reflect on th is.  Cuba questioned whether the United States 
could press other countries to comply or could impose trade sanctions for failing to comply with intellectual property rules without first bringing it s legislation into line with its international 
obligations.  He recalled that Sec tion 211 had been promoted by the Bacardi company to enable the 
products with the Havana Club trademark to have  access to the US market.  This was called:  
"trademark counterfeiting".  Therefore, in additio n to violating the TRIPS Agreement and the Paris 
Convention, Section 211 favoured an offence.  This type of offence was of concern to the 
United States, however only when such an offence w as committed by other countries.  Cuba requested 
the immediate repeal of Section 211 since the continued delay in the settlement of this dispute was 
damaging to the parties involved and cast doubt on the DSU provisions, the functioning of the DSB 
and the multilateral trading system.  
8. The representative of Brazil
 said that his country wished to express, once again, its concerns 
about the continuous non-compliance situation in th is case.  It should be emphasized that the US 
position in this dispute jeopardized one of the fo undations of the WTO, namely, the settlement of 
disputes amongst Members.  Brazil urged the United St ates to comply with the decisions and rulings 
of the DSB. 
9. The representative of India  said that her country thanked the United States for the status 
report and the statement made at the present meeting.   India wished to renew its systemic concerns 
about this situation arising out of non-compliance in this dispute.  Despite the adoption of the Panel 
and the Appellate Body Reports by the DSB in this case several years ago, Members were still 
waiting for implementation and compliance by the Unite d States.  India wished to reiterate that non-
compliance of the DSB's recommendations and rulings by any Member undermined the dispute 
settlement system, which was one of the main achievements of the Uruguay Round negotiations.  
10. The representative of Thailand  said that his country wished to thank the United States for its 
status report and the statement made at the present meeting.  Like previous speakers, Thailand wished 
to express its concern over the systemic implications of this dispute.  Non-implementation of the 
DSB's rulings and recommendations undermined th e rules-based multilateral trading system.  WT/DSB/M/250 
Page 4  
 
Thailand, therefore, called on the United States to ta ke the necessary and urgent steps to comply with 
its obligations under the TRIPS Agreement. 
11. The representative of China
 said that his country thanked the United States for its status report 
and the statement made at the present meeting.  On ce again, China wished to reiterate its systemic 
concerns about the protracted implementation process in this dispute.  China hoped that the current 
US Congress would realize that it was in the inter est of not only other Members, but also in the 
interest of the United States, to put an end to this  situation which damaged the authority of the TRIPS 
Agreement and the creditability of the WTO dispute settlement system.  Therefore, China urged the 
United States to make an extra effort to bring itself promptly into conformity with the decision of the DSB. 
12. The representative of Viet Nam
 said that this matter had been on the Agenda of the DSB for 
six years.  Viet Nam was a new WTO Member, and since it had first attended a DSB meeting, one year ago, it had not seen any progress regarding th is dispute, and did not know how long this non-
compliance situation would last.  In order to preserve Members' confidence in the dispute settlement system, Viet Nam, once again, urged the party concerned to respect the DSB's rulings. 
13. The representative of Mexico
 said that the DSU stated that:  "prompt compliance with 
recommendations or rulings of the DSB" was essential  in order to ensure the effective resolution of 
disputes "to the benefit of all Members" (Article 3. 3).  Mexico, therefore, urged the parties to this 
dispute to take the necessary steps to comply w ith the DSB's recommendations and rulings to the 
benefit of all Members. 
14. The representative of the United States  said that his delegation noted that the United States 
had come into compliance, fully and promptly, in the v ast majority of its disputes.  As noted by one of 
the speakers, the number of disput es in which the United States had been involved was substantial.  
As for the remaining few instances where US effort s to do so had not yet been entirely successful, 
such as the dispute under discussion, the United States continued to work actively towards 
compliance. 
15. The representative of Cuba  said that his delegation wished to respond to the second statement 
that had just been made by the United States.   Cuba considered that the DSB's rulings and 
recommendations did not constitute an optional me nu from which one could choose what type of 
decisions should or should not be implemented.  For years, in different legislatures of the US 
Congress, there had been several bipartisan draft bills to comply with the DSB's ruling on Section 211.  However, none of them had been passed because the US Government had done nothing  
to promote them.  On the contrary, it had manoeuv ered to create obstacles in order to avoid their 
adoption. 
16. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.66) 
17. The Chairman  drew attention to document WT/DS184/ 15/Add.66, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
18. The representative of the United States  said that his country had provided a status report in 
this dispute on 8 May 2008, in accordance with Ar ticle 21.6 of the DSU.  As of 23 November 2002, 
the US authorities 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 inv estigation at issue in  WT/DSB/M/250 
 Page 5 
 
 
this dispute.  Details were provided in document  WT/DS184/15/Add.3.  The US administration would 
work with the US Congress with respect to the r ecommendations and rulings of the DSB that had not 
already been addressed by the US authorities by 23 November 2002. 
19. The representative of Japan  said that his country thanked the United States for its statement 
and the most recent status report.  Japan acknowle dged that, in November 2002, the United States had 
taken certain measures to implement part of the DSB's recommendations.  The fact remained, 
however, that the remaining part of the recommenda tions had not yet been im plemented and the issue 
of implementation in this case was still on th e DSB Agenda.  Japan strongly hoped that the 
United States would soon be in a position to report to the DSB on more tangible progress in this long-
standing dispute.  A full and prompt implementa tion of the DSB's recommendations and rulings was 
essential for maintaining the credibility of the WT O dispute settlement system.  Japan urged the 
United States to come into full compliance w ith its obligations without further delay. 
20. 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.41) 
21. The Chairman  drew attention to document WT/DS160/ 24/Add.41, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
22. The representative of the United States  said that his country had provided a status report in 
this dispute on 8 May 2008, in accordance with Ar ticle 21.6 of the DSU.  The US administration 
would work closely with the US Congress and would c ontinue to confer with the EC, in order to reach 
a mutually satisfactory resolution of this matter.  In  this regard, the United States shared the EC's goal 
of discussing how a mutually satisfactory solu tion to this dispute could be achieved. 
23. The representative of the European Communities  said that there was nothing much to say, 
because nothing much had been happening in prev ious years.  The EC was still waiting for 
compliance.  
24. 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 Communities (WT/DS291/37/Add.4 – WT/DS292/31/Add.4 – WT/DS293/31/Add.4) 
25. The Chairman
 drew attention to document WT/DS291/37/Add.4 – WT/DS292/31/Add.4 – 
WT/DS293/31/Add.4, which contained the status report by the European Communities on progress in 
the implementation of the DSB's recommendations in  the case concerning the EC's measures affecting 
the approval and marketing of biotech products. 
26. The representative of the European Communities  said that the EC was glad to report, once 
more, that good faith cooperation between the compla inants and the EC continued.  The EC kept a 
regular dialogue with the three complainants and he ld regular technical meetings, which were aimed 
at addressing all relevant biotech-related issues of thei r concern.  Further technical meetings with the 
complainants were already foreseen to take place in June 2008.  Progress in  the processing of pending 
applications continued.  As reported at the previous DSB meeting, another GM product was 
authorized by the end of March;  this made 16 authorizations since the establishment of the WTO 
panel, seven in 2007 only.  Two more draft authori zation decisions had been introduced and were now WT/DSB/M/250 
Page 6  
 
being processed within the EC institutions.  The EC was also pleased to report progress in relation to 
the national safeguard measures covered by the pane l report.  On 7 May, two decisions had been 
adopted requesting Austria to lift its bans on im port and processing of GM maize MON810 and T-25.  
The EC believed that, given the inevitably sens itive nature of biotech issues, dialogue was the 
appropriate way forward.  The EC remained open to continue discussions with the three complainants. 
27. The representative of the United States
 said that his country thanked the EC for its written 
status report and for its statement made at the pr esent meeting.  The reasonable period of time for the 
EC's compliance in DS291 had expired on 11 January 2008.  Five years had passed since the United States had filed its consultation request in  May 2003, yet the issues covered in the dispute 
remained unresolved.  The commercial impact of th is dispute was significant and would only increase 
over the coming months.  Moreover, the recent rise in world food prices reinforced the importance for 
timely, science-based decisions on biotech crops .  The EC had just cited progress in making 
approvals.  The United States understood, however, th at no applications had been approved since the 
last DSB meeting.  Accordingly, over 40 biotech a pplications remained pending in the EC's biotech 
approval process.  Furthermore, the United Stat es understood that on 7 May, the European 
Commission had decided to send six pending biotech a pplications back to an EC scientific authority 
for further review.  The Commission had done so  notwithstanding the fact that each of these 
applications had already received a positive safety asse ssment from that same authority.  A brief 
discussion of the history of one of those applications – the application for the cultivation of BT-11 maize – served as an instructive example of why the United States continued to have serious concerns 
with the EC's approval process.  To be clear, th is was a different product application than the 
application discussed at the previous DSB meeting. 
28. The BT-11 maize application had first been filed in May 1996 – 12 years ago.  In 
November 2000 – over seven years ago – an EC scientific body had issued a positive safety 
assessment.  Notwithstanding that assessment, the EC  had failed to move the product forward in its 
approval process.  For this reason, the DSB had ru led that the EC's consideration of BT-11 was 
subject to undue delay, in breach of the EC's obligations under the SPS Agreement.  Effective 
October 2002, the EC had adopted new biotech approva l legislation.  In January 2003 – over five 
years ago – the BT-11 application had been resubmi tted under that legislation.  In April 2005, an EC 
scientific body had, once again, issued a positive saf ety assessment.  Under the EC legislation, the 
application should have moved forward in the appr oval process, but, again, had not been allowed to 
do so.   
29. Now, three years later, the European Commiss ion was sending the application back yet again 
to the EC scientific body for further review.  As the United States understood it, the Commission had 
asserted that further review was needed because of th e availability of additional scientific studies.  But 
based on this rationale, no new product – whethe r it resulted from the application of modern 
biotechnology or otherwise – could ever be a pproved, because scientific knowledge was always 
evolving.  As the DSB found in this dispute:  "Evolving science, scientific complexity and 
uncertainty, and limited available scientific informatio n or data are not, in and of themselves, grounds 
for delaying substantive approval decisions, a nd ... the SPS Agreement does not envisage that 
Members in such cases defer making substantive SPS d ecisions".  In sum, the history of the BT-11 
application, which had first been submitted 12 y ears ago, helped to illustrate the ongoing problems 
with the EC's biotech approvals.  Despite its con cerns with the EC's acti ons concerning the approval 
of biotech products, the United States at this point continued to seek a resolution through a dialogue 
with the EC.  The United States continued to hope  that the EC would take the steps necessary to 
resolve this dispute without further DSU proceedings. 
30. The representative of Argentina
 said that his country wished to thank the EC for the status 
report regarding new developments on this matter.  Argentina would continue to work in a positive 
spirit with the EC in implementing the DSB's re commendations on the basis of the work done thus 
far, as agreed by the two parties to the dispute.   WT/DSB/M/250 
 Page 7 
 
 
31. The representative of Canada  said that her country thanked the EC for its status report.  
Canada continued to monitor closely the progress ac hieved on this matter.  Canada hoped and was 
confident that the EC would follow all of the n ecessary steps to resolve this dispute in a manner 
satisfactory to all parties, given that the reasonable period of time to implement was set for the end of 
June 2008.  
32. The representative of the European Communities  said that the EC was working on the two 
applications referred to at the present meeting.  In line with the EC rules, the Commission would 
make a proposal for a decision once EFSA had had the opportunity to review the new scientific information brought to the attention of the Commiss ion in relation to these applications.  The GMO 
regulatory regime was working normally, as could be demonstrated by the seven authorizations 
granted in 2007 (15 since the establishment of the WTO panel in August 2003) and the authorization 
of a GM maize on 28 March 2008.  Four more applicati ons were in the final stage of the authorization 
procedure and two draft authorization decisions had been transmitted to the Council for a vote.  The 
approval of the other two applica tions would be discussed at upc oming relevant Council meetings. 
33. 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 
34. 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. 
35. The representative of th e European Communities  said that the position of the EC was well-
known.  The repeal of a WTO-incompatible legisla tion that would not produce effects before several 
years could not be considered as full implementation of the DSB's ruling.  Therefore, the EC wished 
to ask again the United States if and what steps it inte nded to take to stop the transfer of anti-dumping 
and countervailing duties to its industry.  The EC al so renewed its call on the United States to abide 
by its clear obligation under Article 21.6 of the DSU and to submit implementation reports in this 
dispute. 
36. The representative of Japan  said that the United States claimed that, because the Deficit 
Reduction Act had been signed into law in Febr uary 2006, the CDSOA was now repealed and no 
further actions were necessary on the part of the Unit ed States.  However, the latest distributions for 
2007 fiscal year, announced in December 20071, demonstrated that the CDSOA continued to transfer 
financial resources from the foreign producers/ exporters to their US domestic competitors.2  Thus the 
CDSOA remained operational with its "essential featur e" and "the decisive basis" for the Appellate 
Body's conclusion3 still intact.  Under these circumstanc es, Japan failed to understand why the 
United States had posited that there was no basis fo r Japan to state that the CDSOA continued to 
cause negative trade impacts on Japan and other WTO Members.  Japan, once again, urged the 
United States to immediately terminate the illegal di stributions and to repeal the CDSOA not just in 
form, but in substance, so as to resolve this dispute once and for all.  According to Article 21.6 of the 
DSU, the United States was under obligation to provid e the DSB with a status report in this dispute 
"until the issue is resolved".  Jap an reserved all its rights under the DSU until the United States came 
into full compliance with its obligations.  
                                                      
1 "FY2007 Annual Disbursements Report", issued by the US Customs and Border Protection  on  
5 December 2007.  The total amount of thes e disbursements is some US$262 million. 
2 Appellate Body Report, "US - Offset Act" (Byrd Amendment), paras. 255 and 259. 
3 Ibid. para. 259 . WT/DSB/M/250 
Page 8  
 
37. The representative of Canada
 said that her country thanked the EC and Japan for keeping this 
matter on the Agenda of the DSB.  Canada agreed with the EC and Japan that the CDSOA remained 
subject to the surveillance of the DSB until th e United States ceased to administer it.  
38. The representative of China  said that his country thanked the EC and Japan for, once again, 
raising this item at the DSB meeting.  China suppor ted the view of the previous speakers and wished 
to join them in urging the United States to comply fully with the DSB's rulings. 
39. The representative of Brazil  said that his country thanked Japan and the EC for keeping this 
issue on the Agenda of the DSB.  Brazil was c oncerned that non-compliance by the United States in 
this dispute would undermine the credibility of the WTO dispute settlement system.  The disbursements made by the United States to its do mestic industry under the Byrd Amendment affected 
the rights of other WTO Members.  Brazil reiterated the need for the United States to bring this 
situation to an end and to fully implement the DSB's recommendations and rulings. 
40. The representative of Thailand
 said that first his country wished to thank the EC and Japan for 
continuing to bring this item before the DSB.  Thailand joined previous speakers in expressing 
ongoing disappointment that the United States co ntinued to illegally disburse funds under the 
CDSOA, and continued to refuse to submit status repor ts in this dispute.  Thailand, therefore, again 
urged the United States to provide a status report until the United States brought its actions into full 
conformity with its WTO obligations, and un til this matter had been fully resolved. 
41. The representative of India  said that her country thanked the EC and Japan for maintaining 
this issue on the Agenda of the DSB and joined those delegations in urging the United States to 
eliminate the trade-distorting effects of the disbursements under the Byrd Amendment.  The 
United States was still distributing disbursements under the CDSOA to the US domestic industry as a 
result of this WTO-inconsistent measure, at the e xpense of foreign producer s and exporters and of 
WTO Member's rights.  India, therefore, urged the United States to cease its WTO-inconsistent disbursement.  India supported the view that continued surveillance by  the DSB was needed. 
42. 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.  In its  statement, the EC appeared to state that the 
United States had not implemented the DSB's recommenda tions and rulings in this dispute.  In this 
regard, the United States noted that in a dis pute for which the panel report had recently been 
circulated, the EC had strongly advocated the pos ition that a Member could not state at a DSB 
meeting that a measure taken to comply by anothe r Member was not consistent with that Member's 
WTO obligations, unless the Member had had recourse to dispute settlement proceedings with respect 
to that measure.  The United States, therefore, rema ined particularly surprised by the statements made 
by the EC at the present meeting and several recent ones. 
43. With respect to the comments regarding further status reports and DSB surveillance in this 
matter, as the United States had already explained at previous DSB meetings, the United States had 
taken all steps necessary to implement the DSB's r ecommendations and rulings in these disputes.  In 
this light, the United States failed to see what purpose would be served by further submission of status reports repeating the progress the United States made in the implementation of the DSB's recommendations and rulings. 
44. The DSB took note
 of the statements.   WT/DSB/M/250 
 Page 9 
 
 
3. United States – Final anti-dumping measures on stainless steel from Mexico 
(a) Report of the Appellate Body (WT/DS344/AB /R) and Report of the Panel (WT/DS344/R) 
45. The Chairman  drew attention to the communication from the Appellate Body contained in 
document WT/DS344/9 transmitting the Appellate Bo dy Report on:  "United States – Final Anti-
Dumping Measures on Stainless Steel from Mexico", which had been circulated on 30 April 2008 in 
document WT/DS344/AB/R, in accordance with Article  17.5 of the DSU.  He reminded delegations 
that the Appellate Body Report and the Panel Report pertaining to this dispute had been circulated as 
unrestricted documents.  As Members were aware, Article 17.14 of the DSU required that:  "An Appellate Body report shall be adopted by the DS B and unconditionally accepted by the parties to the 
dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days 
following its circulation to Members.  This adopti on procedure is without prejudice to the right of 
Members to express their views on an Appellate Body report".  
46. The representative of Mexico
 said that the United States had been applying countervailing 
and anti-dumping duties on Mexican exports of stainless steel sheet and strip in coils since 8 June 1999, using the so-called zeroing methodology  to calculate the duties in both the original 
investigation and the subsequent periodic reviews.  Mexico had sought and awaited a solution to this 
problem.  On 30 April 2008, the Appellate Body ha d finally ruled in favour of Mexico, reversing 
certain aspects of the Panel Report that had b een appealed and reiterating that the zeroing 
methodology was WTO-inconsistent.  Mexico consid ered that these proceedings could have been 
avoided, given previous Appellate  Body rulings of inconsistency of zeroing with the Anti-Dumping 
Agreement.  However, the United States had refu sed to fully comply with the previous DSB's 
recommendations.  Therefore, Mexico had been comp elled to initiate its own proceedings.  Mexico 
welcomed this important ruling of the Appellate Body as well as those elements thereof which gave 
hope that this would be the last time that the inconsistency of the zeroing methodology had to be brought before a panel.  This w ould avoid further proceed ings and would save costs and time spent to 
examine the same issues.  Mexico also thanked the third parties to this dispute for their written and 
oral submissions supportin g positions similar to those of Mexico.  Mexico was confident that the 
United States would fully comply with the DSB's recommendations and rulings in this dispute.  In Mexico's view, this would require the United Stat es to abstain from applying the zeroing methodology 
in future periodic reviews and to eliminate zeroi ng from the specific measures challenged by Mexico 
in its "as applied" claims. 
47. The representative of the United States
 said that his country would first like to welcome the 
Panel Report being adopted at the present meeti ng.  The United States commended the Panel for the 
professional job that it had performed in this dispute, for its careful analysis of the relevant provisions 
of the Anti-Dumping Agreement and the GATT 1994 a nd for taking so seriously its responsibility to 
Members to conduct an objective examination of the matter placed before it.  It was clear from the 
Panel's Report that the Panel had not lightly chosen  not to follow the earlier Appellate Body reports 
on zeroing.  It would have been far simpler, not to  mention far more popular, for the Panel just to go 
along with what the Appellate Body had said on this subject.  However, the Panel had clearly been deeply troubled by the flaws in the logic and approach of those previous reports.  
48. In light of the Panel's careful examination and obvious struggle in attempting to reconcile the 
agreed text of the WTO Agreements with statements  made by the Appellate Body in its prior reports, 
it would have seemed that this Appellate Body di vision would have felt called upon to address most 
carefully the issues raised and the Panel's concer ns.  Thus, it was even more troubling that the 
Appellate Body division on this appeal had not on ly summarily rejected the Panel's points, but had 
also taken the Panel to task simply for taking the Pa nel's duties to heart and trying to ensure that the 
Panel's findings were consistent w ith the agreed text of the WTO Agreements.  The United States was 
deeply troubled by the Appellate Body division's response on two levels, each of them posing serious 
systemic problems for Members.  First, once again,  the division had devised a new basis to justify WT/DSB/M/250 
Page 10  
 
findings against zeroing in reviews – this time that  the margin of dumping was exporter based and that 
somehow this precluded finding a margin of dumping with respect to an individual transaction.  The reasoning under this approach continued to be deep ly flawed and failed to comport with the actual, 
agreed treaty text.  Second, the division had si gnificantly departed from the established understanding 
of the relationship between panel a nd Appellate Body reports and the role of the Appellate Body and 
that of Members.  This Report purported to create a new legal effect for Appellate Body reports, one 
that would appear to grant to the Appellate Body the very authority to issue authoritative 
interpretations of the covered agreements that was reserved by the WTO Agreement exclusively to 
Members. 
49. With respect to the first systemic level of c oncern, the United States simply noted that there 
were numerous flaws in the Appellate Body's reasoning in this latest report, including in particular its 
rejection of the fact that the Uruguay Round nego tiators had not agreed to prohibit zeroing in 
assessment reviews.  No common understanding ha d been reached on zeroing in the Uruguay Round 
because, despite extensive efforts by many particip ants, proposals to prohibit zeroing had been firmly 
opposed by many others, including several users of  anti-dumping measures.  However, if Members of 
the WTO had never agreed to ban zeroing, then the DSU did not empower the Appellate Body to 
create new obligations that imposed such a ban.  The Appellate Body's approach ought to be of 
concern to every single WTO Member, any one of  which may someday be called upon to defend its 
own laws and regulations, and ever y one of which would want to re ly on the negotiated outcome of 
the Uruguay Round, the Doha Round, or other WTO negotiations – and not be held to rules found 
nowhere in those outcomes.  The United States would not dwell on those points further at the present 
meeting.  Instead, it had prepared a written statemen t that addressed the continuing and evolving flaws 
with the Appellate Body's analysis of zeroing.  A copy of that statement would be available in the 
room after the meeting and would be  circulated to all delegations.
4  
50. The second level of systemic concern was of su ch enormous institutional significance for the 
dispute settlement system that the United States wa s compelled to elaborate on its concerns at the 
present meeting.  In this dispute, the Panel had correctly noted its obligations under Articles 11, 3.2 
and 19.1 of the DSU, and had undertaken its work in accordance with those obligations.  And, in 
carrying out its task, this Panel – like another panel before it – had carefully considered, and 
ultimately disagreed with, the various versions of the Appellate Body's reasoning in prior disputes 
involving zeroing in assessment reviews.  On appeal, Mexico had raised a claim under Article 11 of the DSU.  The first few paragraphs of the Appella te Body Report's discussion of that appeal were 
unexceptional.  The division first recalled the task of the Panel under Article 11 of the DSU:  to assist 
the DSB in discharging its responsibilities, and to  make an objective assessment of the matter, 
including the applicability of, and conformity with, the covered agreements.  It further recalled that 
under Article 3.2 of the DSU, "the dispute settleme nt system of the WTO is a central element in 
providing security and predictability to the multilatera l trading system".  And, it recalled that the 
original members of the Appellate Body, in one of the very first appeals it had heard, clarified the 
status of prior adopted reports:  they were not binding, except with respect to the particular dispute between the parties, but they "should be taken into  account where they are relevant to any dispute".  
The United States had no quarrel with any of this, and believed that all Members shared that view. 
51. The discussion then turned, however , in a significantly different direction – one that no longer 
relied on WTO Agreement text or even on prior adop ted reports.  The discussion began to use terms 
such as "'security and predictability' in the disput e settlement system" – which was a misstatement of 
the text, since the DSU only spoke of the dispute settlement system providing security and predictability to the "multilateral trading system".  The discussion had also asserted that the Panel's 
"failure to follow previously adopted Appellate Body reports ... undermines the development of a 
coherent and predictable body of jurisprudence cl arifying Members' rights and obligations under the 
covered agreements".  The division closed by e xpressing its concern about "the Panel's decision to 
                                                     
 
4 Subsequently circulated in document WT/DS344/11.  WT/DSB/M/250 
 Page 11 
 
 
depart from" the Appellate Body's prior rulings on these issues, stating that the Panel's approach had 
"serious implications for the proper functioning of the WTO dispute settlement system".  
52. The Appellate Body division was mistaken.  This second part of the Appellate Body's 
discussion misperceived the WTO Agreement and this  Member-driven organization.  It was WTO 
Members that had negotiated and had agreed to obl igations, and they had don e so by consensus.  
Members had also established one and only one mean s for adopting binding interpretations of the 
obligations that they agreed to:  Article IX:2 of the WTO Agreement provided that the Ministerial 
Conference and the General Council had the exclusive au thority to adopt such in terpretations.  Yet the 
approach in this Appellate Body Report would appear  to mean that Appellate Body reports should be 
treated as authoritative interpretations of the covered agreements – they were to  be followed by panels 
regardless of whether a panel in a particular dispute agreed with those prior reports.  In other words, 
panels were simply to abdicate their responsibility to conduct an objective assessment of the matters 
before them and should simply follow prior Appellate Body reports.  This did a disservice to panels 
and the serious responsibility that the DSB assigned to them. 
53. What was more, WTO Members had made it clear – in fact, the DSU said it twice – that the 
findings of panels and the Appellate Body could not add to, or diminish the rights and obligations in 
the covered agreements.  Perhaps unlike some othe r institutions, the WTO did not rely on adjudication 
to advance its objectives.  However, this Appellate  Body Report's approach, including its references 
to a "coherent and predictable body of jurisprude nce", would appear to transform the WTO dispute 
settlement system into a common law system.  Bu t that was nowhere agreed among Members.  And 
what was more, this division had raised all of th ese systemic concerns unnecessarily, some might even 
say gratuitously.  The Report had rejected Mexico's  Article 11 appeal, so all of this discussion was 
mere dicta by the division. 
54. The United States did, of course, share the Appe llate Body's interest in having similar cases 
treated similarly.  The United St ates expected that all Members woul d do likewise.  The United States 
did not, however, share this Report's view that this  meant that panels must follow Appellate Body 
reports in different disputes.  Rather, to cite agai n the "Japan – Alcoholic Beverages" Appellate Body 
Report, the United States would expect any panel to take account of any other relevant adopted report, 
whether authored by the Appellate Body or by a di fferent panel.  To take account of an adopted 
report, of course, did not mean to follow it without hesitation.  To the contrary, to take account of 
such a report meant to examine it, to consider it, a nd to engage with its reasoning.  The United States 
recalled that an objective assessment  was one that was critical and searching.  Such an assessment 
could lead, in fact, to further or greater clarification. 
55. The WTO dispute settlement system functioned properly when the rules that Members had 
established for that system were respected.  One of those rules was that a panel must make an 
objective assessment of the matter before it, includi ng an objective assessment of the "applicability of 
and conformity with the relevant  covered agreements".  Whatever  one's views of the substantive 
issues in this dispute, there was no question but th at the Panel had done so here.  The United States, 
therefore strongly believed that the Appellate Body 's concerns about the Panel's approach were 
misplaced.  Rather than presenting "serious imp lications" for the dispute settlement system, the 
Panel's actions in this dispute affirmed the strength of that system. 
56. The representative of th e European Communities  said that the EC wished to recall that it had 
a direct interest in this dispute (as indeed did many other Members) as it was also awaiting full 
implementation of the DSB's ruling in its own zeroing case against the US (DS294).  In addition, the 
EC had had to initiate another dispute because of  the continued application of zeroing by the 
United States which was now pending before the Pane l (DS350).  In fact, since the first case brought 
against the EC in 1998, 12 disputes had been brought against the use of zeroing by the United States, 
whether as the unique subject of the dispute or as part of a wider dispute.  All issues of law had been 
extensively pleaded and analysed.  There was no doubt left that zeroing ran foul of fundamental WT/DSB/M/250 
Page 12  
 
obligations of the Anti-Dumping Agreement, whic h were to establish dumping in respect of an 
exporter and a certain product, and to conduct a fa ir comparison between the export prices and normal 
value.  The EC was grateful to the Appellate Body  and its Secretariat for their work and for having 
reversed the Panel's controversial findings.  This comprehensive repor t should, once and for all, solve 
the problem of zeroing in the calculation of margins of dumping.  
57. The EC welcomed the fact that the Appellate Body had, once again, confirmed the illegality 
of zeroing during reviews, an issue which had already been ruled upon in two previous disputes (DS294 and DS322).  In so doing, the Appellate Bo dy had rectified a number of the many serious 
legal errors which the Panel had committed.  The EC  particularly welcomed the clarifications from 
the Appellate Body to the effect that "absent coge nt reasons, an adjudicatory body would resolve the 
same legal question in the same way in a sub sequent case" (para. 160) and "the relevance of 
clarification contained in adopted  Appellate Body reports is not limited to the application of a 
particular provision in a specific case" (para. 161) .  Whilst self-evident, these statements confirmed 
the rules-based nature of the WTO, and th e multilateral aspects of dispute settlement.  
58. The EC equally welcomed the statement that "compliance with established time limits by all 
participants regarding the filing of submissions is an important element of due process of law" 
(para. 164).  Whilst also self-evident, this similarl y confirmed the rules-based nature of the WTO.  
The EC anticipated that, following this clarifica tion, Members would take all necessary steps to 
ensure that their submissions to the Appellate Body, and eventually  also to panels, were timely, 
failing which the appropriate legal consequences woul d follow.  As regards the next steps which the 
United States would undertake after the adoption at the present meeting, the EC expected the 
United States to unconditionally accept the adopted  Appellate Body's Report, as provided for under 
Article 17.14 of the DSU, and to  put an end to all remaining illegal practices of zeroing.  The EC 
would like to emphasize that it was not an option fo r the United States to ignore the findings of the 
Appellate Body and to continue this practice. 
59. The representative of Thailand
 said that his country wished to thank the Panel, the Appellate 
Body and the Secretariat for their work on this case, and would like to warmly welcome the adoption 
at the present meeting of the Appellate Body Report and the Panel Report, as amended by the 
Appellate Body Report.  Thailand had participated as a third party in this dispute as a result of its 
long-standing concern about the use of the zeroing methodology in anti-dumping proceedings.  In Thailand's view, the zeroing methodology was inconsis tent with Article VI of the GATT 1994 and the 
Anti-Dumping Agreement, whether zeroing was used in the original investigation stage or any type of 
review.  Thailand firmly believed that the Anti-Dump ing Agreement, particularly Article 2.4, did not 
permit the use of zeroing in any circumstance.  Th erefore, Thailand highly appreciated the Appellate 
Body's findings and conclusions in this dispute. 
60. The representative of Japan
 said that the Appellate Body had, once again, reversed the Panel's 
erroneous findings and had affirmed its previ ous findings that zeroing in periodic reviews was 
inconsistent with the Anti-Dumping Agreement and the GATT 1994.  It was regrettable that the issue 
of zeroing had been brought back before the Appellate  Body for its review repeatedly despite its well-
established rulings on the issue, but the Appellate Body  had come to the right decision.  Japan shared 
the concerns expressed by the Appellate Body in th is Report about "the Panel's decision to depart 
from well-established Appellate Body jurisprudence cl arifying the interpretation of the same legal 
issues".5  As the Appellate Body had explained, "[t]he  panel's failure to follow previously adopted 
Appellate Body reports addressing the same issues  undermines the development of a coherent and 
predictable body of jurisprudence clarifying Me mbers' rights and obligations under the covered 
agreement as contemplated under the DSU".6  Japan fully supported the adoption of the Appellate 
Body Report by the DSB at the present meeting.   The DSU provided that the adopted Appellate Body 
                                                      
5 Appellate Body Report, para. 162. 
6 Ibid. para. 161.  WT/DSB/M/250 
 Page 13 
 
 
Report "shall be ... unconditionally accepted by the par ties to the dispute" (Article 17.14) and that 
"[p]rompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution of dispute to the benefit of all Members" (Article 21.1).  Japan strongly hoped that 
the United States would take the decision by the DSB seriously, and would promptly bring illegal zeroing measures into full conformity with the WTO Agreement. 
61. The representative of Hong Kong, China
 said that zeroing was one of the most frequently 
challenged practices in anti-dumping disputes.  Like many other Members, Hong Kong, China had 
long held the position that zeroing was inconsistent  with WTO rules.  Hong Kong, China welcomed 
the reaffirmation of the Panel and the Appellate  Body in this case of the illegality of such 
methodology.  Specifically, the Panel had reaffi rmed that model of zeroing in the original 
investigation was inconsistent with Article 2.4.2 of  the Anti-Dumping Agreement.  In this connection, 
Hong Kong, China was pleased to note that the respondent had already ceased the practice since 
February 2007.  Hong Kong, China welcomed the Appellate Body's finding that zeroing in periodic 
reviews was a violation of Article V1:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement.  This was the third Appellate B ody Report that prohibited zeroing in such duty 
assessment proceedings.  These consistent and unbr oken Appellate Body rulings established a clear 
line of jurisprudence.  They conclusively answ ered the question of the WTO-consistency of the 
zeroing practice and would definitely help enhance the predictability and cons istency of anti-dumping 
regimes of WTO Members. 
62. Separately, Hong Kong, China shared the c oncern of the Appellate Body regarding the 
following of its jurisprudence on the same legal issu es by subsequent panels.  This was an important 
systemic issue with profound implications on the functioning of the WTO dispute settlement system, 
which was a central element in providing security and predictability of the multilateral trading system.  
Hong Kong, China was grateful for the clarificati ons and comments made by the Appellate Body in 
its Report.  With these observations and comments,  Hong Kong, China suppor ted the adoption of the 
Report of the Appellate Body, and that of the Panel,  as modified by the Appellate Body.  Hong Kong, 
China encouraged all parties concerned to take prompt actions to bring any WTO-inconsistent 
practices and measures into compliance. 
63. The representative of Australia
 said that her country joined the parties in thanking the 
Appellate Body and the Secretariat for their hard wo rk on this dispute.  Australia would like to take 
this opportunity to comment on one specific issue rai sed in the dispute.  Australia agreed with the 
statements made by the Appellate Body in the Report on the importance of the security and 
predictability of the dispute settlement system, and on "enhancing the prompt settlement of disputes":  
as noted in Article 3.2 of the DSU, enhancing secu rity and predictability w as a key objective of the 
system;  while panel and Appellate Body repor ts were binding only on the parties concerned, 
Australia – like other WTO Members – referred ex tensively to adopted Pa nel and Appellate Body 
reports in its own submissions.  Australia also agr eed with the Appellate Body's statements as to the 
distinct roles of panels and the Appellate Body in the hierarchical structure contemplated in the DSU. 
64. At the same time, Australia noted that Article 19.2 of the DSU provided that "in their findings 
and recommendations, the panel a nd Appellate Body cannot add to or diminish the rights and 
obligations provided in the c overed agreements":  similarl y, Article 3.2 provided that 
"recommendations and rulings of the DSB cannot a dd to or diminish the rights and obligations 
provided in the covered agreements".  It was, ther efore, necessary for panels and the Appellate Body 
to strike a balance between security and predictab ility, on the one hand, and maintaining the parties' 
rights and obligations under the c overed agreements, on the other. 
65. In the present case, Australia ag reed with the Appellate Body that a claim under Article 11 of 
the DSU was not made out:  Article 11 obliged a pane l to make an "objective assessment of the matter 
before it...";  Australia agreed with previous Appellate  Body statements that "not every error of law or 
incorrect legal interpretation attributed to a panel c onstitutes a failure on the part of the panel to make WT/DSB/M/250 
Page 14  
 
an objective assessment of the matter before it"
7 ... and that to constitute a violation of Article 11, 
there must be "an egregious error that calls into question the good faith of the panel".8 
66. The representative of Chile  said that, first, his country wished to thank the Appellate Body 
members and the Secretaria t for the Report.  As a third party to this dispute, Chile supported the 
adoption of the Appellate Body Re port and the Panel Report, as modified by the Appellate Body.  In 
particular, Chile firmly supported the ruling which, for the third time, had established that the use of 
zeroing in periodic reviews or duty assessment was inconsistent with the provisions of the GATT 
1994 and the Anti-Dumping Agreement.  Specifically , Chile agreed with the Appellate Body's 
conclusion that the terms:  "margin of dumpi ng" as well as "dumping" had the same meaning 
throughout the Anti-Dumping Agreement.  From this conclusion necessarily stemmed the assertion 
that "margin of dumping" was an exporter-specific concept.  Despite the US claim, an importer-
specific margin of dumping did not exist, nor could there be any dumping by an importer.  In the view 
of the Appellate Body, it necessarily followed that  there could be no "dumping" or "margin of 
dumping" at the individual transaction level.  On the contrary, as already stated in previous Appellate 
Body rulings, and in contradiction with the Panel's fi nding, dumping must be determined in respect of 
the product as a whole.  The key point might be that all those disputes had enabled Members to fully 
understand the workings of the retroactive anti-dum ping duty administration system applied by the 
United States, making it possible to counter the latte r's arguments based on the alleged specificities of 
the system, from which flowed the sophisticated US  interpretations of the Anti-Dumping Agreement.  
In other words, it had been made clear that con tinued application of a unique and special system 
provided no excuse or justification for making inte rpretations of the Anti-Dumping Agreement that 
were not permitted. 
67. Although Chile entirely agreed with the conc lusions and recommendations of the Appellate 
Body Report, his delegation wished to devote some ti me to the issue of systemic implications of the 
decision by the Panel to ignore prior Appellate Body  reports and to conduct its own analysis, thereby 
arriving at a different, and even contradictory, c onclusion.  Despite arguments by several Members in 
the appeal proceedings, the Appellate Body had b een clear as to the effect of prior Panel and 
Appellate Body reports.  Indeed, pa nels were not obligated to follow previous reports.  In keeping 
with Chile's line of thought, the Appellate Body ha d confirmed that its reports created legitimate 
expectations among Members and should, therefore, be  taken into consideration, although they were 
not – he reiterated not – binding.  Chile thanked the Appellate Body for its confirmation in this regard 
and for refraining from crossing the "obligation" lin e.  Chile concurred with the Appellate Body's 
analysis in paragraph 161 of its Report, and with the role of the Appellate Body, under the dispute 
settlement mechanism.  Chile could not disregard th e core objectives of the DSU.  On the other hand, 
the DSU, panels and the Appellate Body were  covered by, and opera ted within, an inter-
governmental, rules-based and Member-driven system.  One must not forget that one was not operating within a system under which individuals br ought action before a domestic tribunal.  By 
crossing the line in stating that previous reports would provide a mandatory framework in subsequent 
disputes, according to the wish of some Members,  the Panel would have not only prejudged future 
disputes and even tied the hands of future panels, but it would have also created rights and obligations 
when the Membership alone could do so.  Chile was gr ateful to the Appellate Body for abiding by the 
above principle.  
68. Chile also noted that the Appellate Body had re frained from ruling that the Panel had acted in 
breach of the obligations and duties laid down in Arti cle 11 of the DSU.  This was in keeping with the 
logical reasoning above.  As Chile pointed out, th e fact of abstaining from following a precedent to 
the letter did not mean that a panel was acting in breach of its Article 11 duties, precisely because the precedents in question were not binding; even though,  as Chile had stated earlier, the Panel's line of 
action in this particular case had been unfortunate.  That being said, certain phrases in the Report gave 
                                                     
 
7 Appellate Body Report, "US – Steel Safeguards", para. 497. 
8 Appellate Body Report, "EC – Hormones", para. 133.  WT/DSB/M/250 
 Page 15 
 
 
Chile some cause for concern.  According to para graph 160, "[e]nsuring "security and predictability" 
in the dispute settlement system, as contemplated in Article 3.2 of the DSU, implied that, absent 
cogent reasons, an adjudicatory body would resolv e the same legal question in the same way as had 
been done in previous cases.  Paragraph 162 likew ise stated as follows:  "We are deeply concerned 
about the Panel's decision to depart from well-estab lished Appellate Body jurisprudence clarifying the 
interpretation of the same legal issues."  Such phrases could lead to unfortunate conclusions regarding 
the nature of the dispute settlement system, and Ch ile hoped that this would not become a trend likely 
to constrain panels in future dis putes, and above all, that this woul d not alter the nature of the rights 
and obligations negotiated by the Membership.  Chile  believed that an interim report at the Appellate 
Body stage would have prevented the phrases in  question from appearing in the final Report. 
69. The representative of India  said that her country welcomed th e Appellate Body Report in this 
dispute and noted the clarifications given by the Ap pellate Body regarding the Panel's analysis on the 
issue of WTO-inconsistency of the zeroing practices, and the significance WTO Members attached to the reasoning provided in the adopted Panel and Appella te Body Reports.  India believed that the legal 
interpretations embodied in the adopted Panel a nd Appellate Body Reports had become part and 
parcel of the acquis  of the WTO dispute settlement system.  Rejecting this prior jurisprudence by the 
Panel amounted to undermining the Member's fait h that the adopted reports created legitimate 
expectations for the purpose of consistency and stability in the interpretation of their rights and 
obligations under the covered Agreements.  The Panel in the present dispute, had bypassed and 
disregarded the conclusions of the Appellate Body in prior disputes that were directly on point. 
70. India also welcomed that the Appellate Body had held that US zeroing practices during the 
reviews were as such inconsistent with Article VI :2 of the GATT 1994, and Article 9.3 of the Anti-
Dumping Agreement.  India recalled that the issue of clarifying and improving disciplines in respect 
of zeroing, had also been a major negotiating issue in the current round of WTO Rules negotiations.  Several Members, including India, had expressed th e view that there should be express provision in 
the Agreement prohibiting zeroing in any form, includi ng all original investigations and reviews such 
as changed circumstances, sun-set, administrative a nd new shipper, so that such disputes could be 
avoided in future.  India had a systemic interest in this issue and, therefore, had been actively 
supporting the proposals to prohibit zeroing.  India belie ved that the findings of the Appellate Body in 
this dispute had settled the issues relating to the practice and procedures of zeroing, and should now 
pave way for an early conclusion on this issue in the Negotiating Group on Rules. 
71. The representative of Norway
 said that her country welcomed the adoption of the Appellate 
Body Report at the present meeting.  Norway was deeply concerned about the misguided approach 
taken by the Panel when it had chosen to depart from previous jurisprudence.  Not just because the 
Panel had departed from previous decisions by the Appellate Body, but also because the reasoning 
and the interpretive approach of the Panel had been  so flawed.  It was, therefore, with great 
satisfaction that Norway saw the Appellate Body co rrect the errors of the Panel and the DSB could 
now adopt the Appellate Body Report.  
72. The representative of Colombia  said that his country welcomed the Report of the Appellate 
Body and its finding that the use of zeroing was inconsistent with the Anti-Dumping Agreement.  
Colombia wished to express its views on the system ic issue as to whether a panel may rely on the 
findings of previous panel reports that the Appella te Body had reversed, and in particular whether 
panels were required to follow the Appellate Body's findings.  In th is connection, Colombia agreed 
with the reasoning of the Panel that there was no provision in the DSU that required WTO panels to 
follow the findings of previous panels or of th e Appellate Body on the same issues brought before 
them.  In fact, a panel or Appellate Body decision b ound only the parties to the relevant dispute.  On 
the other hand, in compliance with the last senten ce of Article 3.2 of the DSU:  "recommendations 
and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered 
agreements".  While recognizing the need to provide  security and predictability to the multilateral 
trading system through the development of a consiste nt line of jurisprudence, Colombia wished to WT/DSB/M/250 
Page 16  
 
recall that the Ministerial Conference and the General Council alone were  empowered to adopt 
authoritative interpretations. 
73. The representative of Mexico
 said his delegation wished to make additional comments with 
respect to the Reports submitted for adoption at the present meeting.  Fi rst of all, the decision of the 
Appellate Body was consistent with the view expr essed by most Members regarding the interpretation 
of the Anti-Dumping Agreement and Article VI of the GATT 1994.  Therefore, it was not a matter of 
an interpretation that was not shared by the majo rity of Members, but to the contrary, it was an 
interpretation that was shared by the majority of Members.  At the same time, with respect to the 
comments regarding the negotiating history, it had been demonstrated that Members had different 
expectations about the outcome of the Uruguay Rou nd, but such negotiating history was not relevant 
when the text of the Agreement was clear, as the Appellate Body had confirmed on several occasions.  
With respect to the issue of zeroing, Mexico woul d carefully examine the paper circulated by the 
United States regarding its systemic concerns.  However, at this point, Mexico only wished to welcome the adoption of the Panel Report, as modifi ed by the Appellate Body's decision, and hoped 
that as of now finally resources would not need to be  spent to hear the same legal questions over and 
over again.  With regard to certain comments ma de by some delegations at the present meeting, 
Mexico pointed out that the decision by the Appellate  Body should not be quoted out of its context. 
Panels must pay attention to the Appellate Body's findings particularly when dealing with the same 
legal questions.  In this regard, Mexico did not share the concerns expressed by some Members at the 
present meeting.  Mexico would have been very  concerned if the Appellate Body had accepted a 
different approach concerning the question of zeroing. 
74. The DSB took note
 of the statements, and adopted  the Appellate Body Report contained in 
WT/DS344/AB/R and the Panel Report contained in WT/DS344/R, as modified by the Appellate 
Body Report. 
4. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/376) 
75. The Chairman  drew attention to document WT/DSB /W/376, which contained additional 
names proposed for inclusion on the indicative list of governmental and non-g overnmental panelists, 
in accordance with Article 8.4 of the DSU.  Unless there was any objection, he proposed that the DSB 
approve the names contained in document WT/DSB/W/376. 
76. The DSB so agreed . 
 
__________