RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/249 
2 June 2008 
 (08-2555) 
Dispute Settlement Body 
18 April 2008  
 
   
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 18 April 2008  
 
Chairman:  Mr. Mario Matus (Chile) 
  
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  
3. United States – Measures relating to zeroing and sunset reviews ........................................9  
(a) Recourse to Article 21.5 of the DSU by Jap an:  Request for the establishment of 
a panel........................................................................................................................ .................9  
4. Proposed nomination for the indicative list of governmental and 
non-governmental panelists ...................................................................................................10  
  WT/DSB/M/249 
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  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.65) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.65) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.40) 
 
(d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.3 – WT/DS292/31/Add.3 – WT/DS293/31/Add.3) 
 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.65) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.65, 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 7 April 2008, in accordance with Artic le 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 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, more than six years ago, the DSB 
had adopted the ruling condemni ng Section 211.  However, the EC was still waiting for the 
United States to comply with that ruling.  The EC hoped that the bipartisan bills introduced to repeal 
Section 211 would finally progress and bring the Unite d States into compliance with its obligations 
under the TRIPS Agreement.  
5. The representative of Cuba  said that the aim of the Dispute Settlement Understanding was to 
provide a rules-based, efficient and reliable system  for the settlement of disputes related to the 
implementation of what had been agreed under th e WTO Agreement.  If the Agreement had been 
breached, the system was expected to allow the situ ation to be resolved with a certain degree of 
promptitude.  Failure to observe the principle of "prompt compliance" caused serious prejudice to all 
WTO Members.  As demonstrated by the dispute under consideration, unresolved disputes affected 
not only the parties involved.  In failing to meet its obligations, the United States undermined a 
system that was based on rules, procedures and pr actices agreed by the Membership.  Practice and 
experience unquestionably pointed to the need for urge nt reform of the current system, as mandated in 
paragraph 30 of the Doha Ministerial Declaration.  Thus, changes were required to protect and enforce 
the rights of the weakest Members and those with a smaller share in international trade.  Penalties 
should be laid down for flagrantly non-complying Members that delayed the implementation of the  WT/DSB/M/249 
 Page 3 
 
 
  DSB's rulings beyond reasonable time-limits.  Me mbers should work towards proposals that would 
permit some form of penalty to be imposed on tho se Members who had failed, for years, to comply 
with the DSB's recommendations and rulings, under  the pretext that legislative measures were 
pending before the Congress.   
6. Section 211, introduced in the US Congress on 21 May 1998 by the Sub-Committee on 
Courts and Intellectual Property, was an instru ment enacted for the purpose of disregarding the 
trademark rights of Cuban owners.  The set of laws  already adopted to intensify the Cuban blockade 
had not been enough, and some kind of manifestation of this policy had been necessary in the area of 
intellectual property rights to "tighten the screw" even further.  The vast importance that the non-complying Member in this dispute supposedly attached to intellectual property was common 
knowledge.  The promotion of strict laws in this  area, and efficient enforcement of the TRIPS 
Agreement and of bilateral agreements that contai ned the so-called TRIPS plus provisions, constituted 
a priority for the US administration.  This was clearly all about making other countries meet their obligations in this area, while the Member in ques tion continued to apply provisions that violated the 
TRIPS Agreement and the Paris Convention, which was administered by WIPO.  A spokesperson for 
the Office of the US Trade Representative had stat ed that enforcement and settlement of disputes 
would remain top priorities.  She had undoubtedly re ferred to those disputes in which that country was 
the complaining party, and in which the issue of  enforcement implied billions of dollars for US 
companies.  The fact that this  case remained unresolved and the persistent non-compliance by the 
United States affected not only the complaining part y but also Cuba, on account of the interest it had 
in this dispute, as well as those Members that dema nded, month after month, a prompt solution to this 
dispute.  This situation also undermined the credibility  of the major trading players that were united in 
promoting observance of international obligations.  He then quoted Cuban national hero, José Martí, 
who had stated that:  "Action speaks louder than wo rds".  Thus, the immediate repeal of Section 211 
demanded action, not trite explanations  that all were tired of hearing. 
7. The representative of India
 said that his country thanked the United States for the status 
report and the statement made at the present meeti ng.  India appreciated the steps taken by the 
United States thus far to repeal Section 211 as a step  in the positive direction.  However, as mentioned 
on several occasions, there was no substantive change in the situation, and India felt compelled again 
to stress that the principle of prompt compliance was missing in this dispute.  India, therefore, wished 
to renew its systemic concerns about this con tinuous non-compliance situation by WTO Members, 
which clearly undermined the credibility and conf idence that Members reposed in the system. 
8. The representative of Brazil  said that his country wished to highlight, once more, its concern 
about the situation of continued non-compliance in this dispute, which undermined one of the most 
important purposes of the WTO, namely, the settleme nt of disputes amongst its Members.  Recalling 
Members' commitment to this pillar of the WT O, Brazil urged the United States to promptly 
implement the DSB's recommendations and rulings.  
9. The representative of China  said that his country thanked the United States for its status report 
and the statement made at the present meeting.  Chin a, once again, wished to reiterate its systemic 
concerns with the protracted implementation process in  this dispute.  China hoped that the present US 
Congress would realize that it was in the interest of not only other Members, but also in the interest of the United States to put an end to this situati on, which undermined the authority of the TRIPS 
Agreement and the credibility of the WTO dispute settlement system.  Therefore, China urged the 
United States to make an extra effort to bring itsel f promptly into conformity with the DSB decision.  
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/249 
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 Viet Nam
 said that, like previous speakers, his country urged the party 
concerned to respect the DSB's rulings and recommendations. 
12. The representative of the Bolivarian Republic of Venezuela  said that his country wished to 
thank Cuba for its statement informing Members of the most recent developments in this dispute.  His 
country also noted the status report submitted by th e United States.  Six years had now passed, but no 
implementation of the DSB's recommendations had taken place.  The effects of this protracted failure 
to comply were not only harmful to the soverei gnty of the Organization, but also undermined the 
credibility of the rights negotiated by Members, as well as the confidence of Members in the 
multilateral trading system.  Having witnessed expressions of goodwill on the part of the 
United States, his country urged the United States to seek alternatives that would ensure prompt 
compliance with the DSB's recommendations and rulings.  If not, compensation for developing 
countries affected by this continued failure to co mply should be provided.  It was essential that 
particular attention be paid to matters affecting th e interests of developing countries, as stipulated in 
paragraphs 1 and 2 of Article 21 of the DSU.  Preven ting a flagrant violation of this principle must be 
Members' priority.  For these reasons, his countr y strongly requested that the United States fully 
comply with its WTO obligations. 
13. The representative of Nicaragua  said that her country wished to thank the United States for its 
status report.  Nicaragua also thanked Cuba for th e statement made at the present meeting.  Nicaragua 
believed that all Members were committed to comp ly with the DSB's recommendations and rulings.  
Nicaragua joined previous speakers in calling on th e United States to put an end to this excessive 
delay in implementing the DSB's recommendations.  
14. The representative of the United States  said that his country regretted very much that some 
Members – including some whose record of protecti ng intellectual property rights appeared less than 
robust – continued to criticize the US commitment to intellectual property rights.  These criticisms 
were completely unfounded.  It was of course tr ue that the United States remained a strong advocate 
of substantial protections for intellectual propert y internationally.  However, the United States was 
also second to no one in providing strong intellect ual property protection within its own territory.  
That said, the United States welcomed these Member s' commitment to intellectual property rights, 
and looked forward to working with all Members to  secure the protection of intellectual property 
rights around the world.  In response to the comments about "systemic concerns" about non-
compliance, as the United States had stated many times in the past, the record was clear:  the 
United States had come into compliance, fully and promptly, in the vast majority of its disputes, 
thereby strengthening the dispute settlement system .  As for the remaini ng few instances where the 
US efforts to do so had not yet been entirely successf ul, such as this dispute, the United States 
continued to work activ ely towards compliance. 
15. 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.65) 
16. The Chairman  drew attention to document WT/DS184/ 15/Add.65, 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.  WT/DSB/M/249 
 Page 5 
 
 
  17. The representative of the United States  said that his country had provided a status report in 
this dispute on 7 April 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 
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. 
18. The representative of Japan
 said that his country thanked the United States for its statement 
and its latest status report.  Japan acknowledged that, in November 2002, the United States had taken 
certain measures to implement part of the DSB's recommendations, as reported by the United States.  
The fact remained, however, that the remaining part of the recommendations had not yet been 
implemented and the issue of implementation in this dispute was still on the 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 implementation of the DSB's 
recommendations and rulings was essential for ma intaining the credibility of the WTO dispute 
settlement system.  Japan urged the United States to  come into full compliance with its obligations 
without further delay. 
19. 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.40) 
20. The Chairman  drew attention to document WT/DS160/ 24/Add.40, 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. 
21. The representative of the United States  said that his country had provided a status report in 
this dispute on 7 April 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 solution to  this dispute could be achieved, and appreciated 
the EC's recent statements that it remained prepared  to work with the United States towards that end. 
22. The representative of the European Communities  said that there was nothing much to say.  
The US status report was static – it had been a co py and paste exercise for a long time now.  The EC 
was still waiting for the US compliance.  
23. 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.3 – WT/DS292/31/Add.3 – 
WT/DS293/31/Add.3) 
24. The Chairman  drew attention to document WT/DS291/37/Add.3 – WT/DS292/31/Add.3 – 
WT/DS293/31/Add.3, 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. WT/DSB/M/249 
Page 6  
 
  25. The representative of the European Communities
 said that the EC was happy to report that 
good faith cooperation between the complainants and the EC continued.  The EC kept a regular 
dialogue with the three complainants and held re gular technical meetings, which were aimed at 
addressing all relevant biotech-related issues of thei r concern.  Progress in the processing of pending 
applications continued.  In addition to the seven  new GM products authorized in 2007, one GM maize 
had been authorized on 28 March 2008.  Four othe r products should be approved soon and two more 
draft authorization decisions should also be discussed  in the EC Council in the short term.  The EC 
believed that given the inevitably sensitive nature of  biotech issues, dialogue was the appropriate way 
forward and remained open to continue discussions with the three complainants. 
26. 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.  The issues covered in the dispute remained unresolved, even though nearly five y ears had passed since the United States had filed its 
consultation request in May 2003.  The commercia l impact of this dispute was significant and 
growing.  The EC had claimed progress towards compliance on the basis of the recent approval for 
import and use of GA-21 maize.  The EC's handling of  this application, however, in fact exemplified 
the serious concerns of the United States with de lays in the EC's approval system.  The GA-21 
application had first been filed nearly 10 years ago, in May 1998.  The application had received a 
positive safety assessment from the EC's own scientif ic committee in September 2000, which was 
nearly seven and a half years ago.  Yet the EC ha d failed to move the product forward in its approval 
process.  For this reason, the DSB had ruled that  the EC's consideration of GA-21 was subject to 
undue delay, in breach of the EC's obligations under the SPS Agreement.
1    
27. The application had been withdrawn in the face of the EC's endless delays and had 
subsequently been resubmitted in July 2005 under the EC's new biotech approval legislation.  And 
again it faced delays.  The applicant had receive d no questions on the application for over seven 
months.  The safety assessment, which confirmed th e product's safety, had then taken an additional 
17 months, even though EC legislation provided a si x-month period, and even though an EC scientific 
committee had already issued a pos itive safety assessment years befo re.  And when this product – 
which had now received two positive assessment s from EC scientific committees – had been 
submitted to the EC member States for approval, me mber States had failed to follow the scientific 
assessment and had failed to grant approval.  The re sult was further delays.  The application had again 
been submitted to the member States, this time at the level of the EC Counc il, and the EC Council had 
again failed to grant approval.  Only then, after an additional waiting period , had the product been 
finally approved for import and use in the EC.   
28. In sum, the approval of GA-21 had taken near ly 10 years from the time an application had 
first been submitted and nearly seven and a half years from the time GA-21 received its first positive 
safety assessment from an EC scientific committee.  Thus, the experience with GA-21 did not speak 
favourably of the EC's record, but only emphasized the problems with the EC's biotech approvals.  
Despite its concerns with the EC's actions c oncerning the approval of biotech products, the 
United States at this point looked forward to con tinuing its dialogue with the EC.  The United States 
continued to hope that the EC would take the step s necessary to resolve this dispute so that there 
would be no need for the United States to pursue further proceedings under the DSU.  
29. The representative of Canada  said that his country thanked the EC for its status report.  As 
previously noted, Canada continued to monitor the progress made on this file closely, and was 
disappointed to hear of the recent Romanian ban on  the cultivation of the biotech product "MON810".  
Canada hoped that a mutually satisfactory resolutio n of this dispute would be possible before the 
                                                      
1 "European Communities – Measures Affecting th e Approval and Marketing of Biotech Products" 
(WT/DS291/R), para. 7.2142.    WT/DSB/M/249 
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  expiry of the reasonable period of time for implemen tation in June 2008, and Ca nada trusted that the 
EC would take all the steps necessary to addr ess member State safeguards of this nature. 
30. The representative of Argentina  said that his country wished to thank the EC for its status 
report.  As mentioned by the EC, Argentina wished  to flag the spirit of cooperation and dialogue in 
this case.  Argentina welcomed the approval of GA- 21 maize and looked forward to working with the 
EC as well as the other co-complainants towa rds the speedy resolution of this dispute. 
31. The representative of the European Communities  said that, in reply to the statements made by 
the United States and Canada, it should be recalled that this Agenda item was about implementation 
of recommendations and rulings.  As correctly st ated by the United States, GA-21 maize had been 
identified as an undue delay case in this dispute.  Now,  with the authorization, all delays had come to 
an end, and the EC could not do more  to implement.  With regard to Canada's statement, the EC noted 
that no Romanian measures had yet been adopted or notified.  
32. 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 
33. 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. 
34. The representative of Japan  said that the latest distributions under the CDSOA, which had 
been announced in December 20072, amounted to some US$262 million.  This US action 
demonstrated that the CDSOA was still operational.   The CDSOA continued to cause negative trade 
impacts on Japan and other WTO Members.  In this  regard, Japan supported the EC's renewal of its 
retaliatory measures which had been notified to th e DSB on 3 April 2008.  Japan, once again, urged 
the United States to immediately terminate the illegal distributions and repeal the CDSOA, not just in 
form but in substance, so as to resolve this disput e 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. 
35. The representative of th e European Communities  said that, on 27 March 2008, the EC had 
adopted a regulation that would bring the level of re taliatory measures applied in this dispute down to 
US$33.38 million.  In accordance with the DSB's authorization to suspend concessions to the 
United States, this reflected the proportionate decr ease of the amount disbursed to US companies from 
anti-dumping and countervailing duties collected on EC  products in the latest distribution of 
November 2007.  The list of products that would remain subject to the 15 per cent additional import 
duty had been transmitted on 3 April 2008 for circula tion to the parties and the DSB.  The EC would 
also like to ask again the United States if and what st eps it intended to take to stop the transfer of anti-
dumping and countervailing duties to its industr y.  The EC finally renewed its call on the 
United States to abide by its clear obligatio n under Article 21.6 of the DSU and to submit 
implementation reports in this dispute. 
                                                      
2 "FY2007 Annual Disbursements Report" issued by the "US – Customs and Border Protection" 
5 December 2007. WT/DSB/M/249 
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  36. The representative of Canada
 said that his 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 Byrd Amendment 
remained subject to the surveilla nce of the DSB until the United St ates ceased to administer it. 
37. 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. 
38. The representative of Brazil  said that his country thanked the EC and Japan for keeping this 
matter on the DSB Agenda and reiterated the need for prompt compliance by the United States in this dispute.  The continued disbursements made by th e United States to its domestic industry under the 
Byrd Amendment impaired the rights of other WT O Members, and, from a systemic perspective, 
defied the authority of the WTO dispute settlement  system.  Implementation of the recommendations 
and rulings adopted by the DSB had been pending for mo re than five years now.  It was time for the 
United States to meet its obligation under the DS U and to stop distributing duties collected before 
1 October 2007 within the scope of the CDSOA. 
39. The representative of India
 said that her country thanked the EC and Japan for maintaining 
this issue before the DSB once again.  India noted  with appreciation the positive steps taken by the 
United States and 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, duties 
collected before 1 October 2007 woul d, nevertheless, continue to be subject to the Byrd Amendment.  
This had trade-distorting effects on foreign producer s and exporters.  India, therefore, urged the 
United States to cease its WTO-inconsistent disbursem ent.  India supported the view that continued 
surveillance by the DSB was needed. 
40. The representative of Thailand
 said that his country wished to join previous speakers in 
thanking the EC and Japan for bringing this item before the DSB.  Thailand appreciated the positive 
steps taken by the United States to not disburse to its industries AD/CVD duties collected on goods 
entering the United States from 1 October 2007.  However, AD/CVD duties collected on goods that 
entered the United States prior to 1 October 2007 con tinued to be disbursed to the domestic industry 
under the Byrd Amendment.  Thailand, theref ore, urged the United States to cease its WTO-
inconsistent disbursements, to repeal the Byrd Amendment with immediate practical effect, and to 
resume providing status reports until such actions we re taken and this matter had been fully resolved. 
41. The representative of the United States  said that, as his country had already explained at 
previous DSB meetings, the US President had signed the Deficit Reduction Act into law on 
8 February 2006.  That Act included a provisio n repealing the Continued Dumping and Subsidy 
Offset Act of 2000.  Thus, the United States had ta ken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes.  The United States welcomed Members' recognition that the 2006 Deficit Reduction Act did not permit the distribution of duties collected on goods entered after 1 October 2007.  The United States, therefore, did not understand the purpose for which 
the EC and Japan had inscribed th is item on the Agenda of the pr esent meeting.  Furthermore, the 
United States noted that in a dispute for which th e panel report had recently been circulated, the EC 
had strongly advocated the position that a Member coul d not state, for example, at a DSB meeting that 
a measure taken to comply by another Member was not consistent with that Member's WTO obligations, unless the Member had first had recour se 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. 
42. With respect to comments regarding further status  reports in this matter, as the United States 
had already explained at previous DSB meetings, the United States failed to see what purpose would 
be served by status reports repeating that the United States had taken all steps necessary to implement  WT/DSB/M/249 
 Page 9 
 
 
  the DSB's recommendations and rulings in these disput es.  With respect to the recent notification by 
the EC of the continuation of its suspension of c oncessions, the United States continued to review the 
action by the EC.  As Members would recall, the DSB only authorized the suspension of concessions 
or other obligations as provided in the Award of the Arbitrator.  Finally, the United States wished to 
comment on Members' statements that this legislation – though repealed – continued to cause trade 
distortions.  The United States found this statement surprising.  The United States recalled that, with 
one exception, none of the complaining parties in  this dispute had claimed that the CDSOA caused 
trade-distorting effects under the SCM Agreement.  Indeed, none of the Members speaking at the present meeting had made such a claim.  Furthermore, though one other Member had claimed that the CDSOA caused trade-distorting effects under the SC M Agreement, those adverse effects claims had 
been rejected.  Members' comments alleging any trad e-distorting effects were thus not based on any 
DSB recommendations and rulings.  The United States,  therefore, failed to understand the basis for 
Members' continuing statements that their trade with the United States was being distorted by virtue of the now-repealed CDSOA. 
43. The representative of the European Communities
 said that the range of the targeted products 
and the rate of the additional duty had been selected so that the effect of the additional duty over one 
year on imports from the United States of the selected products represented a value of trade that would not exceed the level of nullification or impair ment currently caused to the EC.  This level of 
nullification or impairment had been established pr ecisely on the basis of the formula established by 
the WTO Arbitrators themselves and of the late st data published by the United States, which 
concerned the disbursement of duties collected during the Fiscal Year 2007.  The EC measures were 
fully consistent with the decision of the arbitr ator and fully respected the rules of the DSU. 
44. The DSB took note
 of the statements.  
3. United States – Measures relating to zeroing and sunset reviews 
(a) Recourse to Article 21.5 of the DSU by Japan :  Request for the establishment of a panel 
(WT/DS322/27) 
45. The Chairman  drew attention to the communicati on from Japan contained in document 
WT/DS322/27, and invited the representatives of  Japan and the United States to speak. 
46. The representative of Japan  said that, on 7 April 2008, his country had requested the 
establishment of a compliance panel by the DSB,  pursuant to Articles 6 and 21.5 of the DSU, 
Article XXIII of the GATT 1994, and Article 17. 4 of the Anti-Dumping Agreement in connection 
with the United States' failure to implement the DS B's recommendations and rulings in this dispute.  
The details of the measures at is sue and Japan's claims were set out in document WT/DS322/27 and 
Japan would not repeat them at the present meeting.  Japan wished to express its regret that the issue 
of compliance in this dispute must be resolved through recourse to the compliance proceedings under 
Article 21.5 of the DSU.  In accordance with paragraph 1 of the ad hoc  procedures under Articles 21 
and 22 of the DSU, agreed by Japan and the Unite d States for exclusive purpose of this dispute and 
contained in document WT/DS322/26, it was Japan' s understanding that the compliance panel would 
be established by the DSB at the present meeting.  Jap an hoped that the panel, to be established by the 
DSB at the present meeting, would rigorously examin e the matters referred to it and would come to 
the right conclusions as expeditiously as possible so  as "to promote the prompt resolution of" this 
dispute.3  As anticipated in the ad hoc  procedures4, Japan would cooperate with the United States in 
these compliance proceedings to this end. 
                                                      
3 Appellate Body Report:  "United States – Softwood Lumber IV" (Article 21.5 of the DSU), para.72. 
4 WT/DS322/26, para.1(c). WT/DSB/M/249 
Page 10  
 
  47. The representative of the United States
 said that his country was disappointed that Japan was 
seeking the establishment of a panel given that the United States had explained to Japan the actions 
the United States had taken to comply with the DSB' s recommendations and rulings in this dispute.  
However, pursuant to the US understanding with Japa n, which had been circulated to the DSB in 
document WT/DS322/26, the United States would accept establishment of a panel at the present 
meeting.  The United States would, of course, defe nd its position vigorously in this proceeding.  The 
United States also wished to note that some of the measures identified in Japan's panel request 
appeared not to be measures taken to comply w ith the DSB's recommendations and rulings in this 
dispute.  For example, Japan listed periodic review results in Annex I of its request that had been 
issued prior to the adoption of the DSB's recommend ations and rulings and, in some cases, prior to 
Japan's original request for consultations.  These meas ures were, therefore, not within the scope of an 
Article 21.5 proceeding.  
48. The DSB took note  of the statements and agreed , pursuant to Article 21.5 of the DSU, to refer 
to the original Panel, if possible, the matter raised by Japan in document WT/DS322/27.  The Panel would have standard terms of reference. 
49. The representatives of China
, the European Communities , Norway , Chinese Taipei  and 
Hong Kong, China  reserved their third-party rights to pa rticipate in the Panel's proceedings. 
4. Proposed nomination for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/374) 
50. The Chairman  drew attention to document WT/DSB/W /374, which contained an additional 
name proposed for inclusion on the indicative list of  governmental and non-governmental panelists, in 
accordance with Article 8.4 of the DSU.  Unless there was any objection, he proposed that the DSB 
approve the name contained in document WT/DSB/W/374. 
51. The DSB so agreed . 
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