WORLD TRADE  
ORGANIZATION   
WT/AB/17 
13 June 2012 
 (12-3113) 
  
  
 
     
 
    
 
 
APPELLATE BODY 
 
 
ANNUAL REPORT FOR 2011 
 
 
  
 
JUNE 2012 
    
  
 
     
 
    
 
    
 
    
The Appellate Body welcomes comments and inquiries  
regarding this report at the  
following address: 
 
Appellate Body Secretariat 
World Trade Organization 
rue de Lausanne 154 
1211 Geneva, Switzerland 
email: appellatebody.registry@wto.org 
<www.wto.org/appellatebody> 
 
  
 
 WT/AB/17 
Page i 
 
 
  CONTENTS 
  
I. Introduction ............................................................................................................... .................. 1  
II. Composition of the Appellate Body ......................................................................................... ... 4 
III. Appeals................................................................................................................... ..................... 6  
IV. Appellate Body Reports .................................................................................................... .......... 8  
V. Participants and Third Participants in Appeals ......................................................................... 62  
VI. Working Procedures fo r Appellate Review .............................................................................. 64  
VII. Arbitrations under Artic le 21.3(c) of the DSU .......................................................................... 6 9 
VIII. Technical Assistance .................................................................................................... ............. 69  
IX. Other Activities .......................................................................................................... ............... 69  
ANNEX 1A Members of the Appellate Body – 1 January to 31 December 2011:  
Biographical notes  ....................................................................................................... 71 
ANNEX 1B Farewell speeches of former  Appellate Body Members .............................................. 76 
ANNEX 2 Former Appellate Body Me mbers and Chairpersons ................................................... 80 
ANNEX 3 Appeals file d: 1995–2011 ............................................................................................ 8 2 
ANNEX 4 Percentage of panel reports appealed  by year of adoption: 1995–2011 ....................... 83 
ANNEX 5 WTO agreements addressed in Appellate Body reports circulated 
through 2011 ................................................................................................................ 8 4 
ANNEX 6 Participants and third participants in appeals: 1995–2011 ........................................... 85 ANNEX 7 Appellate Body Secretariat participation in technical assistance, training, and 
other activities in 2011 ............................................................................................... 106 
ANNEX 8 WTO dispute settlement reports a nd arbitration awar ds: 1995–2011 ........................ 108 WT/AB/17 
Page ii  
 
  ABBREVIATIONS USED IN THIS ANNUAL REPORT 
 
Abbreviation Description 
Anti-Dumping Agreement Agreement on Implementati on of Article VI of the General Agreement 
on Tariffs and Trade 1994   
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
GATS General Agreement on Trade in Services   
GATT 1994 General Agreement on Tariffs and Trade 1994  
Rules of Conduct  Rules of Conduct for the Understanding on Rules and Procedures 
Governing the Settlement of Disputes , adopted by the DSB on 
3 December 1996, WT/DSB/RC/1 
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
SPS  sanitary and phytosanitary  
SPS Agreement  Agreement on the Application of Sanitary and Phytosanitary Measures  
TBT Agreement Agreement on Technical Barriers to Trade   
TRIMs Agreement Agreement on Trade-Related Investment Measures   
TRIPS Agreement Agreement on Trade-Related Aspects of Intellectual Property Rights   
Vienna Convention Vienna Convention on the Law of Treaties , done at Vienna, 23 May 
1969, 1155 UNTS 331; 8 International Legal Materials 679  
Working Procedures Working Procedures for Appellate Review , WT/AB/WP/6, 
16 August 2010 
WTO World Trade Organization 
WTO Agreement Marra kesh Agreement Establishing the World Trade Organization  
 WT/AB/17 
Page 1 
 
 
  WORLD TRADE ORGANIZATION  
APPELLATE BODY  
 
ANNUAL REPORT FOR 2011 
 
 
 
I. Introduction 
This Annual Report summarizes the activities of th e Appellate Body and its Secretariat for the 
year 2011. 
Dispute settlement in the World Trade Organization (WTO) is regulated by the 
Understanding on Rules and Procedures Go verning the Settlement of Disputes (DSU), which is 
contained in Annex 2 of the Marrakesh Agreement Establishi ng the World Trade Organization  
(WTO Agreement ).  Article 3.2 of the DSU states the overarching purposes of the dispute settlement 
system.  According to Article 3.2, "[t]he dispute se ttlement system of the WTO is a central element in 
providing security and predictability to the multilateral trading system."  Further, Article 3.2 provides 
that the dispute settlement system "serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing pr ovisions of those agreements in accordance with 
customary rules of interpretation of public intern ational law."  The dispute settlement system is 
administered by the Dispute Settlement Body (D SB), which is composed of all WTO Members. 
A WTO Member may have recourse to the rules and procedures established in the DSU if it 
"considers that any benefits accruing to it directly  or indirectly under the covered agreements are 
being impaired by measures taken by another Member".
1  The DSU procedures apply to disputes 
arising under any of the covered agreements liste d in Appendix 1 to the DSU and include the 
WTO Agreement  and all the multilateral agreements a nnexed to it relating to trade in goods2, trade in 
services3, and the protection of intellectual property rights4, as well as the DSU itself.  Pursuant to 
Article 1.2 and Appendix 2 of the DSU, where the covered agreements contai n special or additional 
rules and procedures, these rules and procedures prev ail over those contained in the DSU to the extent 
that there is an inconsistency.  The applicati on of the DSU to disputes under the plurilateral trade 
agreements annexed to the WTO Agreement5 is subject to the adoption of decisions by the parties to 
these agreements setting out the terms for its  application to the individual agreement.6 
Proceedings under the DSU take place in stages.  In the first stage, Members are required to 
hold consultations with a view to reaching a mutu ally agreed solution to  the matter in dispute.7  If 
these consultations fail to realize a mutually ag reed solution, the dispute may advance to the 
adjudicative stage in which the complaining Memb er requests that the DSB establish a panel to 
examine the matter.8  Panelists are chosen by agreement of the parties, based on nominations 
proposed by the Secretariat.9  However, if the parties cannot agr ee, either party may request the WTO 
Director-General to determine the composition of the panel.10  Panels shall be composed of 
                                                      
1Article 3.3 of the DSU. 
2Annex 1A to the WTO Agreement.  
3Annex 1B to the WTO Agreement.  
4Annex 1C to the WTO Agreement . 
5Annex 4 to the WTO Agreement . 
6Appendix 1 to the DSU. 
7Article 4 of the DSU. 
8Article 6 of the DSU. 
9Article 8.6 of the DSU. 
10Article 8.7 of the DSU. WT/AB/17 
Page 2  
 
  well-qualified governmental and/or non -governmental individuals with expertise in international trade 
law or policy.
11  In discharging its adjudicative function, a panel is required to "make an objective 
assessment of the matter before it, including an objec tive assessment of the facts of the case and the 
applicability of and conformity with the relevant c overed agreements, and make  such other findings as 
will assist the DSB in making the recommendations or  in giving the rulings provided for in the 
covered agreements."12  The panel process includes written submissions by the main parties and also 
by third parties that have notified their interest in  the dispute to the DSB.  Panels usually hold two 
meetings with the parties, one of which also includ es a session with third parties.  Panels set out their 
factual and legal findings in an interim report that is subject to comments by the parties.  The final 
report is first issued to the parties, and is subse quently circulated to all WTO Members in the three 
official languages of the WTO (English, French, an d Spanish), at which time it is also posted on the 
WTO website. 
Article 17 of the DSU establishes a standing Appellate Body.  The Appellate Body is 
composed of seven Members who are each appointed  to a four-year term, with a possibility to be 
reappointed once.  The expiration dates of terms are staggered in order to ensure that not all Members 
begin and complete their terms at the same time.  Members of the Appellate Body must be persons of 
recognized authority;  with demonstrated expertise in law, international trade, and the subject matter 
of the covered agreements genera lly;  and not be affiliated with any government.  Moreover, the 
Appellate Body membership shall be broadly re presentative of the membership of the WTO.  
Appellate Body Members elect a Chairperson to serve a one-year term, which can be extended for an additional one-year period.  The Chairperson is responsible for the overall direction of Appellate 
Body business.  Each appeal is heard by a Division of three Appellate Body Members.  The process 
for the selection of Divisions is designed to ensu re randomness, unpredictability, and opportunity for 
all Members to serve, regardless of their national or igin.  To ensure consistency and coherence in 
decision-making, Divisions exchange views with the other four Members of the Appellate Body 
before finalizing Appellate Body  reports.  The Appellate Body receives legal and administrative 
support from its Secretariat.  The conduct of Members of the Appellate Body and its staff is regulated 
by the Rules of Conduct for the Understanding on Rul es and Procedures Governing the Settlement of 
Disputes  (Rules of Conduct ).
13  These Rules emphasize that Appellate Body Members shall be 
independent, impartial, and avoid any direct or indirect conflict of interest.  
Any party to a dispute, other than third parties, may appeal a panel report to the 
Appellate Body.  WTO Members that were third par ties at the panel stage may also participate and 
make written and oral submissions in the appellate  proceedings, but they may not appeal the panel 
report.  The appeal is limited to issues of law covered in the panel report and legal interpretations 
developed by the panel.  Appellate proceedings are conducted in accordance with the procedures 
established in the DSU and the Working Procedures for Appellate Review14 (Working Procedures ), 
drawn up by the Appellate Body in consulta tion with the Chairman of the DSB and the 
Director-General of the WTO, and communicate d to WTO Members for their information.  
Proceedings involve the filing of written submissions by the participants and the third participants, as 
well as an oral hearing.  The Appellate Body report is to be circulated to WTO Members in the three 
official languages within 90 days of the date when  the appeal was initiated, and is posted on the WTO 
website immediately upon circulation to Members.  In its report, the Appellate Body may uphold, 
modify, or reverse the legal findings and conclusions of the panel.   
                                                      
11Article 8.1 of the DSU. 
12Article 11 of the DSU. 
13The Rules of Conduct , as adopted by the DSB on 3 Decemb er 1996 (WT/DSB/RC/ 1), are directly 
incorporated into the Working Procedures for Appellate Review  (WT/AB/WP/6), as Annex II thereto. (See 
WT/DSB/RC/2, WT/AB/WP/W/2) 
14Working Procedures for Appellate Review , WT/AB/WP/6. WT/AB/17 
Page 3 
 
 
  Panel and Appellate Body repor ts must be adopted by WTO Members acting collectively 
through the DSB.  Under the reverse consensus ru le, a report is adopted by the DSB unless all WTO 
Members present at the meeting formally object to its adoption.15  Upon adoption, Appellate Body 
reports and panel reports (as modified by the A ppellate Body) become binding upon the parties. 
Following the adoption by the DSB of a pane l or Appellate Body report that includes a 
finding of inconsistency of a measure of the responding Member with its WTO obligations.  
Article 21.3 of the DSU provides that the responding Member should, in principle, comply immediately.  However, where immediate compliance is "imprac ticable", the responding Member 
shall have a reasonable period of time to implem ent the DSB's recommendations and rulings.  The 
"reasonable period of time" may be determined by the DSB, by agreement between the parties, or 
through arbitration pursuant to Article 21.3(c) of the DSU.  In such arbitration, a guideline for the 
arbitrator is that the reasonable period of time to implement pane l or Appellate Body 
recommendations should not exceed 15 months from th e date of adoption of a panel or Appellate 
Body report.  However, that time may be shorter or longer, depe nding upon the particular 
circumstances.  Arbitrators have indicated that the reasonable period of time shall be the shortest time 
possible in the implementing Member's legal system.  To date, arbitrations pursuant to Article 21.3(c) 
of the DSU have been conducted by current or former Appellate Body Members acting in an 
individual capacity. 
Where the parties disagree "as to existence or consistency with a covered agreement of 
measures taken to comply", the matter may be referre d to the original panel in what is known as 
"Article 21.5 compliance proceedings".  The repor t of the panel in the Article 21.5 compliance 
proceedings may be appealed.  Upon their adoption by  the DSB, panel and Appellate Body reports in 
Article 21.5 compliance proceedings become binding on the parties. 
If the responding Member does not bring its WTO- inconsistent measure into compliance with 
its obligations under the covered agreements within  the reasonable period of time, the complaining 
Member may request negotiations with the respon ding Member with a view to finding mutually 
acceptable compensation as a temporary and voluntary alternative to full compliance.  Compensation 
is subject to acceptance by the complaining Me mber, and must be consistent with the WTO 
agreements.  If no satisfactory compensation is ag reed upon, the complaining Member may request 
authorization from the DSB, pursuant to Article 22 of the DSU, to suspend the application of 
concessions or other obligations under the WTO agr eements to the responding Member.  The level of 
the suspension of concessions or other obligations au thorized by the DSB shall be equivalent to the 
level of the nullification or impairment  resulting from non-compliance with the DSB 
recommendations and rulings.  The responding Member  may request arbitration under Article 22.6 of 
the DSU if it objects to the level of suspension proposed or considers that the principles and 
procedures concerning the sector or covered agreem ent to which the suspension may apply have not 
been followed.  In principle, th e suspension of concessions or other obligations must relate to the 
same trade sector or agreement as the measure found to be incons istent.  However, if this is 
impracticable or ineffective for the complaining Me mber, and if circumstances are serious enough, the 
complaining party may seek authorization to suspend concessions with respect to other sectors or agreements.  The arbitration under Article 22.6 sha ll be carried out by the original panel, if its 
members are available.  Compensation and the suspension of concessions or other obligations are temporary measures;  neither is to be preferred to full implementation.
16  
A party to a dispute may request good offices,  conciliation, or mediation as alternative 
methods of dispute resolution at any stage of dispute settlement proceedings.17  In addition, under 
                                                      
15Articles 16.4 and 17.14 of the DSU. 
16Article 22.1 of the DSU. 
17Article 5 of the DSU. WT/AB/17 
Page 4  
 
  Article 25 of the DSU, WTO Members may have rec ourse to arbitration as an alternative to the 
regular procedures set out in the DSU.
18  Recourse to arbitration, including the procedures to be 
followed in such arbitration proceedings, is subject to mutual agreement of the parties.19 
II. Composition of the Appellate Body 
The Appellate Body is a standing body composed of seven Members appointed by the DSB 
for a term of four years with the possibility of  being reappointed once for another four-year term. 
The terms of office of Ms. Jennifer Hillman a nd Ms. Lilia Bautista e xpired on 10 December 
2011.20  On 4 March 2011, Ms. Bautista wrote to the Chair of the DSB stating that she would not be 
seeking reappointment for a second term.  On 21 Apr il 2011, Ms. Hillman informed the Chair of the 
DSB that, while she was willing to serve a second te rm, it was her understanding that there would be 
an objection from a Member country to her reappoi ntment.  Ms. Hillman considered that, as long as 
that objection stood, she would not ask the DSB to consider her potential reappointment.  The minutes 
of the DSB meeting of 21 April 2011 state that Ms. Hillman "was not requesting the DSB to consider 
her for reappointment".21 
As a result of the vacancies arising from the e xpiration of the terms of Ms. Bautista and 
Ms. Hillman, the DSB, on 24 May 2011, initiated a selection process to fill these two positions.  The deadline for receiving candidates' nominations was set for 31 August 2011.  The DSB further agreed 
to follow the procedures set forth in document WT /DSB/1, and, in accordance with them, established 
a Selection Committee to be chaired by the 2011 DSB Chair, along with the WTO Director-General, 
and the 2011 Chairpersons of the General Council, the Goods Council, the Services Council, and the 
TRIPS Council.  Four individuals were nominate d.  India and Pakistan each nominated one 
individual, while the United States nominated two individuals. 
Based on the recommendations of the Selecti on Committee, on 18 November 2011, the DSB 
decided to appoint Mr. Ujal Singh Bhatia (India) a nd Mr. Thomas Graham (United States) to serve for 
four years as Appellate Body Members commencing on 11 December 2011.  Mr. Bhatia and 
Mr. Graham were sworn in on 8 December 2011. 
The composition of the Appellate Body in 201 1 and the respective terms of office of its 
Members are set out in Tables 1A and 1B. 
                                                      
18There has been only one recourse to Article 25 of the DSU and it was not in lieu of panel or 
Appellate Body proceedings.  Rather, the purpose of th at arbitration was to set an amount of compensation 
pending full compliance by the responding Member. (See Award of the Arbitrators, US – Section 110(5) 
Copyright Act (Article 25) ) 
19Articles 21 and 22 of the DSU apply mutatis mutandis  to decisions by arbitrators. 
20The texts of the farewell speeches of Ms. Hillman and Ms. Bautista are provided in 
Annex 1B. 
21WT/DSB/M/295, 30 June 2011. WT/AB/17 
Page 5 
 
 
  TABLE 1A:  COMPOSITION OF THE APPELLATE BODY 1 JANUARY TO 10 DECEMBER 2011 
 
Name Nationality Term(s) of office 
Lilia R. Bautista Philippines 2007–2011 
Jennifer Hillman United States 2007–2011 
Shotaro Oshima Japan 2008–2012 
Ricardo Ramírez-Hernández Mexico 2009–2013 
David Unterhalter South Africa 2006–2009 
2009–2013 
Peter Van den Bossche Belgium 2009–2013 
Yuejiao Zhang China 2008–2012 
 
 
TABLE 1B:  COMPOSITION OF THE APPELLA TE BODY AS OF 11 DECEMBER 2011 
 
Name Nationality Term(s) of office 
Ujal Singh Bhatia India 2011–2015 
Thomas Graham United States 2011–2015 
Shotaro Oshima Japan 2008–2012 
Ricardo Ramírez-Hernández Mexico 2009–2013 
David Unterhalter South Africa 2006–2009 
2009–2013 
Peter Van den Bossche Belgium 2009–2013 
Yuejiao Zhang China 2008–2012 
 
 
Pursuant to Rule 5(1) of the Working Procedures , Lilia Bautista was elected by 
Appellate Body Members to serve as Chair of the Appellate Body from 17 December 2010 to 
10 December 2011.22  Ms. Bautista, however, informed th e DSB on 16 May 2011 that, for personal 
reasons, she had decided to resign as Chair of th e Appellate Body, effective from 14 June 2011.  
Appellate Body Members elected Jennifer Hillman to serve as Chair of the Appellate Body from 15 June to 10 December.
23  Ms. Yuejiao Zhang was elected by Appellate Body Members to serve as 
Chair for the period 11 December 2011 to 31 May 2012.24 
Biographical information about the Members of th e Appellate Body is provided in Annex 1A.  
A list of former Appellate Body Members a nd Chairpersons is provided in Annex 2. 
The Appellate Body receives legal and administrative support from the Appellate Body 
Secretariat, in accordance with Article 17.7 of th e DSU.  The Secretariat currently comprises a 
Director and a team of fifteen lawyers, one administrative assistant, and three support staff.  Werner Zdouc has been the Director of the Appellate Body Secretariat since 2006. 
                                                      
22WT/DSB/52. 
23WT/DSB/53. 
24WT/DSB/55. WT/AB/17 
Page 6  
 
  III. Appeals 
Under Rule 20(1) of the Working Procedures , and in accordance with Article 16(4) of the 
DSU, an appeal is commenced by  giving notice in writing to the DSB and filing a Notice of Appeal 
with the Appellate Body Secretariat.  Rule 23(1) of the Working Procedures  allows a party to the 
dispute other than the initial appellant to join the a ppeal, or appeal on the basis of other alleged errors, 
by filing a Notice of Other Appeal within 5 days of the filing of the Notice of Appeal. 
Nine appeals were filed in 2011.  Six of the a ppeals included an "other appeal".  All nine 
appeals related to original proceedings.  Further in formation regarding the nine appeals filed in 2011 
is provided in Table 2. 
TABLE 2:  APPEALS FILED IN 2011 
 
Panel reports appealed Date of 
appeal Appellant a Document 
number Other 
appellant b Document 
number 
Thailand – Cigarettes 
(Philippines) 22 Feb 2011 Thailand WT/DS371/8 - - - - - - 
EC – Fasteners (China) 25 Mar 2011 European Union WT/DS397/7 China WT/DS397/8 
US – Large Civil Aircraft 1 Apr 2011 European Union WT/DS353/8 United States WT/DS353/10 
US – Tyres (China) 24 May 2011 China WT/DS399/6 - - - - - - 
China – Raw Materials 
(United States) 31 Aug 2011 China WT/DS394/11 United States WT/DS394/12 
China – Raw Materials 
(European Union) 31 Aug 2011 China WT/DS395/11 European Union WT/DS395/12 
China – Raw Materials 
(Mexico) 31 Aug 2011 China WT/DS398/10 Mexico WT/DS398/11 
Philippines – Distilled 
Spirits (European Union) 23 Sept 2011 Philippines WT/DS396/7 European Union WT/DS396/8 
Philippines – Distilled 
Spirits (United States) 23 Sept 2011 Philippines WT/DS403/7 - - - - - - 
a Pursuant to Rule 20(1) of the Working Procedures. 
b Pursuant to Rule 23(1) of the Working Procedures. 
 
Information on the number of appeals filed each  year since 1995 is provided in Annex 3.  
Figure 1 shows the number of appeals f iled each year between 1995 and 2011. WT/AB/17 
Page 7 
 
 
  Figure 1:  Total Number of Appeals 1995–2011 
 
 
Fourteen panel reports were circulated duri ng 2011.  For three of these reports, the 60-day 
deadline for adoption or appeal was extended until 2012.25  The deadline to appeal two other panel 
reports circulated in 2011 did not expire until 2012.26  Three of the panel reports circulated in 2011 
were adopted by the DSB without being appealed.27  Three panel reports were circulated in 2010 for 
which the deadline for appeal did not expire until 2011.28  Thus, nine out of the twelve panel reports 
for which the 60-day deadline expired in 2011 were appealed, yielding an appeal rate of 75 per cent 
for the year 2011. 
The overall average of panel reports that have been appealed from 1995 to 2011 is 
67 per cent.  A breakdown of the percentage of pa nel reports appealed each year is provided in 
Annex 4. 
                                                      
25The 60-day deadline for adop tion or appeal was extended for the panel reports in US – Clove 
Cigarettes  and US – Tuna II (Mexico) until 20 January 2012 and for the panel report in  
EU – Footwear (China) until 22 February 2012.  See WT/DS406/5, WT/DS381/9, and WT/DS405/5. 
26Although the panel reports in US – COOL  were circulated in 2011, the 60-day deadline for adoption 
or appeal of these reports did not expire in 2011. 
27The panel reports in US – Zeroing (Korea) , US – Orange Juice (Brazil) , and US – Shrimp (Viet Nam) 
were adopted by the DSB on 24 February, 17 June, and 2 September 2011, respectively. 
28The panel reports in Thailand – Cigarettes (Philippines) , EC – Fasteners (China) , and  
US – Tyres (China)  were circulated on 15 November, 3 Dece mber, and 13 December 2010, respectively. WT/AB/17 
Page 8  
 
  IV. Appellate Body Reports 
Seven Appellate Body reports were circulat ed during 2011, the details of which are 
summarized in Table 3.  As of the end of 2011,  the Appellate Body has circulated a total of 
108 reports.   
TABLE 3:  APPELLATE BODY RE PORTS CIRCULATED IN 2011 
 
Case Title Document 
number Date 
circulated Date adopted  
by the DSB 
US – Anti-Dumping and Countervailing 
Duties (China) WT/DS379/AB/R 11 Mar 2011 25 Mar 2011 
EC and certain member States – 
Large Civil Aircraft WT/DS316/AB/R 18 May 2011 1 Jun 2011 
Thailand – Cigarettes (Philippines) WT/DS371/AB/R 17 Jun 2011 15 Jul 2011 
EC – Fasteners (China) WT/DS397/AB/R 15 Jul 2011 28 Jul 2011 
US – Tyres (China) WT/DS399/AB/R 5 Sep 2011 5 Oct 2011 
Philippines – Distilled Spirits 
(European Union) * WT/DS396/AB/R 21 Dec 2011 20 Jan 2012 
Philippines – Distilled Spirits 
(United States) * WT/DS403/AB/R 21 Dec 2011 20 Jan 2012 
* These two Appellate Body reports were  circulated as a single document. 
 
The following table shows which WTO agreemen ts were addressed in the Appellate Body 
reports circulated in 2011. 
TABLE 4:  WTO AGREEMENTS ADDRESSED IN APPELLATE BODY REPORTS 
CIRCULATED IN 2011 
 
Case Document number WTO agreements covered 
US – Anti-Dumping and Countervailing Duties (China) WT/DS379/AB/R SCM Agreement 
GATT 1994 
DSU 
EC and certain member States – 
Large Civil Aircraft WT/DS316/AB/R SCM Agreement 
GATT 1994 
DSU 
Thailand – Cigarettes (Philippines) WT/DS371/AB/R GATT 1994 
DSU 
EC – Fasteners (China) WT/DS397/AB/R Anti-Dumping Agreement 
GATT 1994 
WTO Agreement 
DSU 
US – Tyres (China) WT/DS399/AB/R China's Accession Protocol 
DSU WT/AB/17 
Page 9 
 
 
  Case Document number WTO agreements covered 
Philippines – Distilled Spirits 
(European Union) WT/DS396/AB/R GATT 1994 
DSU 
Philippines – Distilled Spirits 
(United States) WT/DS403/AB/R GATT 1994 
DSU 
 
Figure 2 shows the number of times specific WTO agreements have been addressed in the 
108 Appellate Body reports circulated from 1996 through 2011. 
 
 
Annex 5 contains a breakdown by year of the frequency with which the specific 
WTO agreements have been addressed  in appeals from 1996 through 2011. 
The Appellate Body's findings and conclusions in  the 7 Appellate Body reports circulated in 
2011 are summarized below. 
 
 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , 
WT/DS379/AB/R 
This appeal originated from a complaint brought by China concerning the simultaneous 
imposition of countervailing and anti-dumping duties by the United States on four products imported 
from China29 following concurrent countervailing duty and anti-dumping investigations.  The United 
States began applying its countervailing duty legisl ation to imports from China in 2007, after the 
United States Department of Commerce (the "USDOC ") determined that China's economy, albeit still 
not a market economy, had undergone sufficient econom ic reform as to enable the USDOC to identify 
and countervail subsidies granted by the Chin ese Government.  In the four anti-dumping 
investigations at issue, the USDOC treated China as a non-market economy ("NME") and determined normal value using prices in a surrogate country rather than Chinese domestic prices.   
Before the Panel, China raised multiple claims that the final USDOC determinations that led 
to the imposition of the duties, the orders imposi ng the duties themselves, and certain aspects of the 
conduct of the underlying countervailing duty investigations were incons istent with the United States' 
                                                      
29Circular welded carbon quality steel pipe ("CWP");  light-walled rectangular pipe and tube ("LWR");  
laminated woven sacks ("LWS");  and certain new pneumatic off-the-road tyres ("OTR"). Figure 2: WTO agreements add ressed in appeals 1996–2011 WT/AB/17 
Page 10  
 
  obligations under the SCM Agreement  and the GATT 1994.  China appealed the Panel's findings 
relating to the USDOC's determinations, in the re levant countervailing duty investigations:  that 
certain Chinese State-owned enterprises and Stat e-owned commercial banks  constituted "public 
bodies";  that certain subsidies were "specific" subs idies;  and that, because there were no appropriate 
benchmarks within China, recourse should be had to  external benchmarks to calculate the amount of 
the benefit associated with financial contributions in the form of the provision of goods, and in the 
form of the provision of loans.  China also appealed  the Panel's finding with respect to the issue of 
"double remedies", namely, that the United States was not required, when simultaneously applying anti-dumping and countervailing duties on the same pr oducts, to take account of whether the same 
subsidies were offset twice by virtue of the ma nner in which the anti-dumping duties were calculated 
under the USDOC's NME methodology.  
1. "Public body" in Article 1.1(a)(1) of the SCM Agreement  
The Appellate Body considered the meaning of  the term "public body" in accordance with 
Article 31 of the Vienna Convention .  In examining the context relevant to the interpretation of this 
term, the Appellate Body observed that Article 1.1( a)(1) joins the concept of "government" together 
with "any public body" under the collective term  "government".  At the same time, Article 1 
juxtaposes the collective term "government" (incl uding "public body") and "private body".  The 
Appellate Body further considered that in order to  be able to entrust or direct a private body to 
undertake the type of conduct cont emplated by Article 1 of the SCM Agreement , a public body would 
itself have to be vested with the authority or  responsibility to undertake such conduct.  The 
Appellate Body reasoned that, therefore, the concep t of "public body" shares certain attributes with 
the concept of "government". 
China also argued that, in interpreting the term  "public body", the Panel erred in failing to 
"take into account" the Interna tional Law Commission's Articles on Responsibility of States for 
Internationally Wrongful Acts  ("ILC Articles"), in particular, Articl es 4, 5, and 8, which deal with the 
attribution of conduct to States.  In examining th is aspect of China's appeal, the Appellate Body 
disagreed with the Panel's proposition that the ILC Articles are not "relevant rules of international 
law" in the sense of Article 31(3)(c) of the Vienna Convention.  The Appellate Body noted that the 
ILC Articles have been taken into account by panels  and the Appellate Body in previous cases.  While 
they are not treaty provisions, insofar as they refl ect customary international law or general principles 
of law, these Articles are applicable in the rela tions between the parties within the meaning of 
Article 31(3)(c).  In this case, the Appellate Body considered that there are similarities in the core 
principles and functions of Article 5 of th e ILC Articles and Article 1.1(a)(1) of the SCM Agreement , 
but added that its interpretation of the latte r provision did not turn on these similarities. 
The Appellate Body concluded th at the concept of "public body" shares certain attributes with 
the concept of "government", and that a public body  within the meaning of Article 1.1(a)(1) of the 
SCM Agreement  is an entity that possesses, exercises or is vested with governmental authority.  Based 
on its interpretation of the term "public  body" in Article 1.1.(a)(1) of the SCM Agreement , the 
Appellate Body reversed the Pane l's finding that the term "public body" means "any entity controlled 
by a government". 
Having reversed the Panel's interpretation of the term "public body" in Article 1.1(a)(1) of the 
SCM Agreement , the Appellate Body proceeded to complete th e analysis.  With regard to the SOEs in 
the four investigations at issue, which were produc ers of steel, rubber, and petrochemical inputs sold 
to the investigated companies or to trading compan ies, the Appellate Body noted that the USDOC had 
based its public body determinations principally on  evidence of majority government ownership.  
Further, the USDOC did not request information ot her than relating to government ownership from 
the relevant parties to the investigations.  The Appellate Body considered that, by not requesting WT/AB/17 
Page 11 
 
 
  information relating to factors other than ownershi p from the relevant parties, the USDOC had failed 
to comply with its duty to seek out relevant in formation—including information relevant to the 
potential characterization of SOEs as public bodies —and to evaluate such evidence in an objective 
manner.  The Appellate Body considered that evid ence of government ownership, in itself, is not 
evidence of meaningful control of an entity by government and cannot, without more, serve as a basis 
for establishing that the entity is vested with authority to perform a governmental function.  
Accordingly, such evidence, alone, cannot support a finding that an entity is a public body.  The Appellate Body held, therefore, that the USDOC's public body determinations in respect of SOEs in 
the four investigations at issue were inconsistent  with Article 1.1(a)(1), and consequently, with 
Articles 10 and 32.1 of the SCM Agreement .  With regard to the SOCBs in the OTR investigation, the 
Appellate Body noted that the USDOC did not base its determination solely on evidence of 
government ownership and had, in fact , considered other evidence relating inter alia  to the 
Government of China's role in the banking sector.  The Appellate Body thus held that China did not 
establish that the USDOC's public body determinati on in respect of SOCBs in the OTR investigation 
was inconsistent with Article 1.1(a)(1) of the SCM Agreement . 
2. Specificity under Article 2 of the SCM Agreement  
China appealed the Panel's interpretation a nd application of Article 2.1(a) of the 
SCM Agreement in respect of the USDOC's determination, in the OTR investigation, that lending by 
SOCBs to the tyre industry was de jure specific.  China also appealed  certain aspects of the Panel's 
interpretation of Article 2.2 of the SCM Agreement  in the context of the USDOC's determination in 
the LWS investigation that the provision of land-use rights was regionally specific. 
With regard to the interpretation of Article 2.1(a) of the SCM Agreement , the Appellate Body 
disagreed with China that the terms "subsidy" and "e xplicitly" in that provision require investigating 
authorities to establish that the actual words of the legislation pursuant to which the granting authority 
operates limit access to the particular financial contribution and to its resulting benefit.  The Appellate 
Body reasoned that an explicit limitation on access to  a financial contribution would necessarily entail 
a limitation on access to any resulting benefit, since onl y the enterprises or indust ries eligible for that 
financial contribution would be eligib le to enjoy the resulting benefit.  The Appellate Body stated that 
what must be made explicit under Article 2.1(a) is the limitation on access to the subsidy to certain 
enterprises, regardless of how this explicit limitatio n is established.  The Appellate Body, therefore, 
agreed with the Panel that, for the purpose of a sp ecificity determination under Article 2.1(a), the 
necessary limitation on access to a subsidy can be aff ected through an explicit limitation on access to 
the financial contribution, on access to  the benefit, or on access to both. 
With respect to the Panel's application of Artic le 2.1(a), the Appellate Body rejected China's 
alternative claim that the Panel erred in its appli cation of Article 2.1(a) to the facts of the OTR 
investigation.  The Appellate Body observed that the evidence reviewed by the Panel, upon which the 
USDOC had relied in making its specificity finding, provided a sufficient basis on which to find that 
access to the lending by SOCBs in th e OTR investigation was explicitly limited.  The Appellate Body 
also disagreed with China's conten tion that the Panel erred in its application of the term "certain 
enterprises" to the facts of the OTR investigation.   More specifically, the Appellate Body expressed 
doubt as to whether the Panel had, in fact, made the fi nding that China attributed to the Panel, namely, 
that, because one central government level instrument  identified 539 industries as targets for lending, 
that group of 539 industries collectively constituted "certain industries".  The Appellate Body noted 
that, rather, the Panel found that the USDOC had, in  the OTR investigation, established that several 
planning documents, at central, provincial and muni cipal levels of government, singled out the tyre 
industry as a target for development and instructed fi nancial institutions to provide financing to that 
industry.  The Appellate Body, therefore, upheld the Panel's finding that China did not establish that WT/AB/17 
Page 12  
 
  the USDOC's specificity determination in respect  of SOCB lending in the OTR investigation was 
inconsistent with Article 2.1(a) of the SCM Agreement . 
With regard to the USDOC's regional specific ity determination in the LWS investigation, 
China argued that the Panel erred in its interpreta tion of the term "subsidy" in Article 2.2 of the 
SCM Agreement , and in suggesting that a subsidy would be regionally specific if it is provided as part 
of a "distinct regime", even if the identical s ubsidy is available elsewhere.  The Appellate Body 
recalled its reasoning with respect to China's claim that  the Panel erred in its interpretation of the term 
"subsidy" under Article 2.1(a) and, on the same basi s, rejected China's contention that the Panel erred 
in its interpretation of the term "subsidy" in Article 2.2 of the SCM Agreement .  With regard to the 
second part of China's appeal under Article 2.2 con cerning a statement by the Panel about a "distinct 
regime", the Appellate Body considered that it was not clear that the Panel, in making the statement, 
considered that the mere existence of a "distinct regime" would enable a subsidy to be found to be 
specific to a designated geographical region, even if the identical subsidy were also available to enterprises outside that designated geographical region.   The Appellate Body considered that, in any 
event, the Panel's statement was obiter  in nature and it was, thus, unnecessary to consider it further.  
Consequently, the Appellate Body rejected China's allegations of error in respect of the Panel's 
statement concerning a "distinct regime" in the context of the LWS investigation.   
3. Benchmarks for input prices and for loans 
With regard to benchmarks for input prices, China appealed the Panel's interpretation and 
application of Article 14(d) of the SCM Agreement  relating to the USDOC's rejection of in-country 
private prices as benchmarks to calculate the amount of benefit associated with subsidies involving 
the provision of hot-rolled steel ("HRS") to  investigated companies in the CWP and LWR 
investigations.  China also challenged the Panel's in terpretation and application of Article 14(b) of the 
SCM Agreement  regarding the rejection of interest rates in China as benchmarks for loan subsidies, as 
well as the USDOC's use of a proxy benchmark, in the CWP, LWS, and OTR investigations. 
China argued that the Panel erred in  interpreting Article 14(d) of the SCM Agreement  as 
permitting investigating authorities to reject in-country private prices for HRS as a benchmark based 
solely on evidence that the government is the pred ominant supplier of the good in question.  Thus, 
China contended that the Panel erred in finding  that the USDOC acted consistently with the 
obligations of the United States under Article 14( d) by rejecting private prices in China as 
benchmarks for HRS inputs.  China also argued that the Panel acted inconsistently with Article 11 of 
the DSU, because it attributed to the USDOC a ra tionale for its finding that private prices were 
distorted other than the rationale articul ated in its publis hed determinations. 
The Appellate Body expressed the view that under Article 14(d) of the SCM Agreement , an 
investigating authority may reject in-country private prices if it reaches the conclusion that these are too distorted due to the predominant participation of the government as a supplier in the market.  The 
Appellate Body reasoned that it is price distortion that  allows an investigating authority to reject in-
country private prices, rather than the fact that the government is the predominant supplier per se .  
However, the Appellate Body noted that there ma y be cases where the government's role as a provider 
of goods is so predominant that price distortion is likely and other evidence carries only limited weight. 
The Appellate Body disagreed with China's contentions that the Panel misunderstood the 
Appellate Body report in US – Softwood Lumber IV  and wrongly interpreted Article 14(d) of the 
SCM Agreement  as permitting the rejection of in-country  private prices as benchmarks through the 
application of a per se  rule based on the role of the governme nt as the predominant supplier of the 
goods.  The Appellate Body instead agreed with  the Panel that, under Article 14(d) of the WT/AB/17 
Page 13 
 
 
  SCM Agreement , the issue of whether in-country private prices are distorted such that they cannot 
meaningfully be used as benchmarks is one that  must be determined on a case-by-case basis, having 
considered evidence relating to other factors, ev en in situations where the government is the 
predominant supplier in the market. 
Regarding the rejection by the USDOC of Chinese in-country private prices for HRS inputs in 
the CWP and LWR investigations, the Appellate Body  observed that, with 96.1 per cent market share, 
it was likely that the government would have the market power to affect the pricing by private 
providers for the same goods and to induce them to align their prices with the prices of HRS supplied 
by the government.  The Appellate Body also noted that, in such circumstan ces, evidence of factors 
other than government market share would have less  weight in the determination of price distortion 
than in a situation where the government had onl y a "significant" presence in the market.  The 
Appellate Body found that the Pa nel properly concluded that the US DOC could, consistently with 
Article 14(d) of the SCM Agreement , determine that private prices we re distorted a nd could not be 
used as benchmarks for assessing the adequacy of remuneration.  The Appellate Body, therefore, 
upheld the Panel's finding that the USDOC did not act inconsistently with the obligations of the 
United States under Article 14(d) of the SCM Agreement  by rejecting Chinese in-country private 
prices as benchmarks for HRS input subsidies in the CWP and LWR investigations. 
Finally, the Appellate Body rejected China's cl aim that the Panel acted inconsistently with 
Article 11 of the DSU in allegedly attributing to th e USDOC a rationale that was not articulated in its 
published CWP and LWR determinations.  The Appella te Body stated that a review of the reasons 
reflected in the USDOC determinations demonstr ated that there was an express basis in those 
determinations that supported th e Panel's statement that the US DOC "received and considered" 
evidence pertaining to factors other than government market share. 
The Appellate Body turned to China's claim on appeal that the Panel erred in interpreting 
Article 14(b) of the SCM Agreement , and in finding that the USDOC acted inconsistently with the 
obligations of the United States under that provisi on by rejecting interest rates in China as 
benchmarks to calculate the bene fit conferred by RMB-denominated loans.  China argued that the 
Panel erred in finding that the benefit benchmark that the USDOC actually used was consistent with 
Article 14(b) of the SCM Agreement .  Moreover, China contended that  the Panel acted inconsistently 
with Article 11 of the DSU by failing properly to assess the conformity of the benchmark used by the 
USDOC with the requirements of Article 14(b). 
The Appellate Body considered that reading Ar ticle 14(b) as always requiring a comparison 
with loans denominated in the same  currency as the investigated loan s, even in circumstances where 
all loans in the same currency are distorted by  government intervention, would frustrate the 
comparison called for under Article 14(b) and preven t calculation of the appropriate benefit.  The 
Appellate Body found that a certain degree of flexib ility applies under Article 14(b) in the selection of 
benchmarks, in order to can ensure a meaningful comparison for the determination of benefit.   
The Appellate Body agreed with the Panel that selecting a benchmark under Article 14(b) 
involves a progressive search for a comparable co mmercial loan, starting with the commercial loan 
that is closest to the investigated loan and m oving to less similar commercial loans while adjusting 
them to ensure comparability with the investigat ed loan.  The Appellate Body saw no inherent 
limitations in Article 14(b) that would prevent an  investigating authority from using as benchmarks 
interest rates on loans denominated in currencies othe r than the currency of th e investigated loan, or 
from using proxies instead of observed interest rates, in situations where the interest rates on loans in 
the currency of the investigated  loan are distorted and, thus, cannot be used as benchmarks. 
The Appellate Body emphasized that, the further away an investigating authority moves from 
the ideal benchmark of an identical or nearly iden tical loan, the more adjustments will be necessary to WT/AB/17 
Page 14  
 
  ensure that the benchmark loan approximates the "comparable commercial loan which the firm could 
actually obtain on the market" specified in Article 14( b).  This is true even when an investigating 
authority resorts to a benchmark loan in another currency or to a proxy.  Moreover, the methodology used to make such adjustments and effect such an  approximation must be transparent and adequately 
explained. 
The Appellate Body found that the Panel did not e rr in its interpretation of Article 14(b) of the 
SCM Agreement , in finding that "inherent in Article 14(b), as in Article 14(d), is sufficient flexibility 
to permit the use of a proxy in place of observe d rates in the country in question where no 
'commercial' benchmark can be found".  The Appell ate Body also found that the Panel did not err in 
its application of Article 14(b) in finding that , in the CWP, LWS, and OTR investigations, the 
USDOC's decision not to rely on interest rates in  China as benchmarks wa s reasoned and adequate, 
and one that a reasonable and objective investigating authority could reach based on the record before 
it.  The Appellate Body noted that the USDOC a nd the Panel considered evidence that highlighted 
various characteristics of the Chinese banking sector , including the government's predominant role as 
a lender, government regulation of interest rates, undifferentiated interest ra tes, as well as government 
influence over SOCB lending decisions, and consider ed that all of these factors taken together 
distorted the commercial lending market such that co mparing the interest rates of the investigated 
loans with observed interest rates in the same ma rket would not be meaningful for the purpose of 
Article 14(b).  The Appellate Body, therefore, upheld the Panel's finding that the USDOC's decision 
not to rely on interest rates in China as benchm arks for SOCB loans denominated in RMB in the 
CWP, LWS, and OTR investigations was consistent  with the obligations of the United States under 
Article 14(b) of the SCM Agreement . 
The Appellate Body then turned to the Panel' s finding that the proxy benchmark actually used 
by the USDOC to calculate benefit was not incons istent with Article 14(b).  This proxy was 
constructed by the USDOC based on a regression analysis  of interest rates in 33 countries with a gross 
national income similar to China's, adjusted for infl ation and in relation to institutional qualities.  The 
Appellate Body first addressed China's claim that the Panel failed to fulfil its obligations under 
Article 11 of the DSU.  In this respect, China argued that the Panel simply accepted the USDOC's 
conclusions without demanding any meaningful explan ation, rather than undertaking an in-depth 
examination of whether the USDOC's benchmark was supported by positive evidence demonstrating 
its consistency with Article 14(b) of the SCM Agreement . 
The Appellate Body observed that the Panel c onducted a cursory review of the USDOC's 
proxy benchmark and the adjustments made by the USDOC without engaging in a critical and 
searching analysis, or testing the adequacy and reasonableness of the USDOC's methodology in the 
light of other plausible alternative explanations.  The Appellate Body considered that the Panel did 
not conduct a sufficiently rigorous review of the USDOC's construction of its  proxy benchmark, but, 
rather, adopted a deferential standard of review that did not comport with the standard of review to be 
applied in countervailing duty cases.  The Appellate Body, therefore, found that the Panel failed to 
make an objective assessment of the matter before  it as required by Article 11 of the DSU and 
consequently reversed the Panel's finding that the benchmark actually used by the USDOC to 
calculate the benefit from RMB-denominated SOCB lo ans in the CWP, LWS, and OTR investigations 
was consistent with the obligations of the United States under Article 14(b) of the SCM Agreement .  
However, in the absence of sufficient factual findi ngs by the Panel and undisputed facts on the Panel 
record, the Appellate Body was unable to complete  the legal analysis of China's claim that the 
USDOC's proxy benchmark was inconsis tent with Article 14(b) of the SCM Agreement . WT/AB/17 
Page 15 
 
 
  4. "Double remedies" 
China appealed the Panel's interpretation and a pplication of Articles 10, 19.3, 19.4, and 32.1 
of the SCM Agreement , as well as of Article VI:3 of the GATT 1994, as allowing the imposition of 
"double remedies", that is the offsetting of th e same subsidization twice through the concurrent 
imposition of anti-dumping duties based on an NME methodology and of c ountervailing duties.  
China argued that the Panel erred in reasoning th at, because these provisions do not expressly prohibit 
a Member from offsetting the same domestic subsid ies through the imposition of two different duties, 
it was the intention of the drafte rs to authorize such actions. 
The Appellate Body explained that "double remedies" may arise when both countervailing 
duties and anti-dumping duties are imposed on the same imported products.  The term "double 
remedies" does not, however, refer simply to the fact that both an anti-dumping and a countervailing 
duty are imposed on the same product.  Rather, "do uble remedies" refers to circumstances in which 
the simultaneous application of anti-dumping a nd countervailing duties on the same imported 
products results, at least to some extent, in the offsetting of the same subsidization twice.  "Double 
remedies" are "likely" to occur in cases where an NM E methodology is used to calculate the margin 
of dumping.30 
The Appellate Body started its analysis with Article 19.3 of the SCM Agreement , which 
provides that countervailing duties shall be levied in the appropriate amounts in each case .  The 
Appellate Body observed that what is "appropriate" is  to be assessed in relation to something else, and 
as a function of particular circumstances.  The Appe llate Body agreed with the Panel that Article 19.4 
provides context relevant to Article 19.3, but did not share the Panel's apparent view that this 
provision, alone, defines what are "appropriate am ounts" of countervailing duties under Article 19.3.  
The Appellate Body also observed that several provisions in the SCM Agreement  (Articles 19.1, 19.2, 
19.3, and 21.1) link the actual amounts of countervaili ng duties to the injury to be removed and, thus, 
indicate that the appropriateness of the amount of countervailing duties is not unrelated to the injury that is being caused.  The Appellate Body also  considered the context provided by Articles 10 
and 32.1 of the SCM Agreement  and Article VI of the GATT 1994.  The Appellate Body disagreed 
with the contextual significance attributed by the Panel to Article VI:5 of the GATT 1994, as well as 
with its consideration of the signifi cance of the object and purpose of the SCM Agreement  for the 
interpretation of Article 19.3. 
Based on its interpretation, the Appellate Body  disagreed with the Panel that Articles 19.3 
and 19.4 of the SCM Agreement  are "oblivious to any potential c oncurrent imposition of anti-dumping 
duties".  The Appellate Body recalled its previous  jurisprudence that the WTO covered agreements 
should be interpreted in a coherent  and consistent manner, giving m eaning to all applicable provisions 
harmoniously, and that Members shoul d be mindful of their actions under one agreement when taking 
action under another.  The Appellate  Body considered that a proper understanding of the concept of 
"appropriate amounts" of countervailin g duties under Article 19.3 of the SCM Agreement cannot be 
achieved without due regard to relevant provisions of the Anti-Dumping Agreement , and that the 
requirement that any amounts be "appropriate" means, at a minimum, that investigating authorities may not, in fixing the appropriate amount of count ervailing duties, simply ignore that anti-dumping 
duties have been imposed to offset the same subsid ization.  The Appellate Body further noted that 
both the Anti-Dumping Agreement  and the SCM Agreement  contain provisions requiring that the 
amounts of anti-dumping and countervailing duties be  "appropriate in each case", as reflected in 
Articles 9.2 and 19.3 respectively, and concluded th at reading the two agreements together suggests 
                                                      
30Under an NME methodology, prices or costs in a surrogate country, rather than domestic prices, are 
used to calculate normal value. WT/AB/17 
Page 16  
 
  that the imposition of double remedies would circumve nt the standard of appropriateness that the two 
agreements separately establish for their respective remedies. 
The Appellate Body concluded that  the Panel erred in its interp retation of Article 19.3 of the 
SCM Agreement  and failed to give meaning and effect to all the terms of that provision, because under 
Article 19.3 of the SCM Agreement , the appropriateness of the amount of countervailing duties cannot 
be determined without having regard to anti-dump ing duties imposed on the same product to offset 
the same subsidization.  The amount of a counterva iling duty cannot be "appropriate" in situations 
where that duty represents the full amount of the subsidy and where anti-dumping duties, calculated at least to some extent on the basis of the same subs idization, are imposed concurrently to remove the 
same injury to the domestic industry.  The A ppellate Body, therefore, reversed the Panel's 
interpretation that Article 19.3 of the SCM Agreement does not address the issue of double remedies 
and found instead that the imposition of double re medies, that is, the offsetting of the same 
subsidization twice by the concurrent imposition of  anti-dumping duties calculated on the basis of an 
NME methodology and of countervailing duties, is inconsistent with Article 19.3 of the 
SCM Agreement . 
Having found that the imposition of double remedi es is inconsistent with Article 19.3 of the 
SCM Agreement , the Appellate Body considered that it was unnecessary for the purposes of resolving 
this dispute to rule on the interpretation of Article 19.4 of the SCM Agreement  and Article VI:3 of the 
GATT 1994.  The Appellate Body considered the Pane l's interpretation of these provisions to be moot 
and of no legal effect. 
Having reversed the Panel's interp retation of Article 19.3 of the SCM Agreement , the 
Appellate Body considered China's request that it complete the legal analysis and find the USDOC's 
concurrent imposition of anti-dumping duties calculate d on the basis of its NME methodology, and of 
countervailing duties on the same products in the four  countervailing duty determinations at issue to 
be inconsistent with Article 19.3 of the SCM Agreement . 
The Appellate Body agreed with the Panel that  double remedies are "likely" to arise from the 
concurrent imposition of anti-dumping duties cal culated based on an NME methodology, and of 
countervailing duties, but observed that double remedi es do not necessarily result in every instance of 
such concurrent application of these duties.  This  depends, rather, on whether and to what extent 
domestic subsidies have lowered the export price of  a product, and on whether the investigating 
authority has taken the necessary co rrective steps to adjust its methodology to take account of this 
factual situation. 
Turning to the four sets of investigations at  issue, the Appellate Body stated that an 
investigating authority is subject to an affirmative obligation to ascertain the precise amount of the subsidy, as well as the appropriate amount of the dut y.  The Appellate Body noted that in the four 
investigations at issue, the USDOC had made no attempt to establish whether or to what degree it would offset the same subsidies twice by imposing anti-dumping duties calculated under its NME 
methodology, concurrently with countervailing duties.   Thus, the Appellate Body concluded that by 
declining to address China's claims concerning dou ble remedies in the four countervailing duty 
investigations at issue, the USDOC had failed to fulfil its obligation to determine the "appropriate" 
amount of countervailing duties within the meaning of Article 19.3 of the SCM Agreement .  The 
Appellate Body, therefore, found that, in the four se ts of investigations at issue, the United States 
imposed anti-dumping duties calculated on the basis of  an NME methodology, concurrently with the 
imposition of countervailing duties on the same products, without having assessed whether double 
remedies arose from such concurrent duties.  The Appellate Body concluded that, in doing so, the 
United States acted inconsistently with its obligations under Article 19.3 of the SCM Agreement , and, 
consequently, with its obligations  under Articles 10 and 32.1 of the SCM Agreement . WT/AB/17 
Page 17 
 
 
  For these reasons, the Appellate Body recommende d that the DSB request the United States 
to bring its measures, found in the Appellate Body Report, and in the modified Panel Report, to be 
inconsistent with the SCM Agreement  into conformity with its oblig ations under that Agreement. 
 
 Appellate Body Report, EC and certain member States – Large Civil Aircraft , 
WT/DS316/AB/R 
This appeal originated from a challenge broug ht by the United States against over 300 alleged 
instances of subsidization, over the course of four decades, by the European Communities and four of 
its member States—France, Germany, Spain, and the United Kingdom—with respect to large civil 
aircraft ("LCA") developed, produced, and sold by Airbus SAS and its predecessor entities.  The 
specific measures at issue in this dispute included:   
 "Launch Aid" or "Member State Financing" ("LA/MSF") for the development of 
various Airbus LCA, consisting of the A 300, A310, A320, A330/A340 (including the 
A330-200 and A340-500/600 variants), A350, and A380; 
 
 loans from the European Investment Bank to Airbus entities between 1988 and 2002; 
 
 infrastructure and infrastructure-relate d grants by the four member State 
governments; 
 
 corporate restructuring measures undertaken by the French and German 
Governments;  and 
 
 research and technological development funding  granted to Airbus entities by the four 
member State governments. 
 
The United States claimed that the European  Communities and the four member States, 
through the use of these subsidies, caused adverse e ffects to the United States ' interests within the 
meaning of Articles 5 and 6 of the SCM Agreement , and that certain of the LA/MSF measures are 
prohibited export subsidies within the meaning of Article 3 of the  SCM Agreement . 
On appeal, the European Union challenged the Panel's finding that Article 5 of the  
SCM Agreement  covers subsidies granted prior to 1995;  the Panel's alleged failure to take into 
account changes in ownership, the need for a pass -through analysis, and the extinction, extraction, 
removal, or withdrawal of the subsidies;  several  aspects of the Panel's analysis as regards LA/MSF, 
including its ultimate finding that some of th e LA/MSF measures are export subsidies prohibited 
under Article 3 of the SCM Agreement ;  the Panel's findings that certain infrastructure measures, 
equity contributions, and research and technol ogical development support constitute specific 
subsidies;  the Panel's findings concerning disp lacement of imports from the European Union and 
displacement of exports from certain third-country markets;  some of the Panel's findings regarding 
certain lost sales campaigns;  and the Panel's causation analysis under Articles 5 and 6 of the 
SCM Agreement , that is, the examination of whether the European Communities and the four Member 
States, through the use of LA/MSF and non-LA/MSF subsidies, caused serious prejudice to the 
interests of the United States.  Finally, regarding many of the above points, the European Union also 
claimed that the Panel failed to make an objectiv e assessment  of the matter (including of the facts) 
and failed to set out adequately the basic rationale for its findings, contrary to Articles 11 and 12.7 of 
the DSU. WT/AB/17 
Page 18  
 
  The United States cross-appealed two aspects of th e Panel Report:  (i) the finding that certain 
of the LA/MSF measures did not constitute export s ubsidies;  and (ii) the finding that the United 
States failed to demonstrate the existence of an allegedly unwritten LA/MSF Programme.
31 
1. Preliminary Issues 
(a) Terms of Reference 
The European Union argued that the Panel er red in its interpretati on and application of 
Article 6.2 of the DSU in concluding that Spanis h and French research and technological development 
("R&TD") funding measures had been properly identifi ed in the United States' panel request and were 
therefore within the Panel's terms of reference.  The Appellate Body did not consider that the 
United States' panel request could be understood as having identified loans provided pursuant to the 
Spanish PROFIT programme.  The Appellate Body explained that, although information concerning 
the PROFIT programme was readily available in th e public domain at the time of the panel request, 
the United States made no mention of the programme  in its request.  The Appellate Body did not 
consider that subsequent reference by the Un ited States to the PROFIT programme during the 
information-gathering process under Annex V to the SCM Agreement , or in its written submissions 
before the Panel, cured the lack of specification in the panel request.  For the Appellate Body, it 
followed from this that, by reason of the lack of sp ecification of the PROFIT programme by name, the 
European Communities and the third parties were co nsequently not on notice that the programme was 
part of the complainant's case.  On this basis, th e Appellate Body reversed the Panel's finding that the 
R&TD loans provided pursuant to the Spanish PROFIT  programme were within the Panel's terms of 
reference. 
With respect to the French R&TD funding measu res, the Appellate Body observed that the 
United States' panel request identified R&TD fu nding from the French Government, including 
regional and local authorities, since 1986 for civil aer onautics-related R&TD projects in which Airbus 
participated.  In other words, these funding measur es were identified by references to the funding 
authority, time period, and area of support.  Give n the specific circumstances of these measures, the 
Appellate Body did not consider that the Unite d States could have provided additional specifying 
information concerning the name of the funding pr ogramme.  The Appellate Body therefore upheld 
the Panel's finding that the French R&TD grants  were within the Panel's terms of reference. 
                                                      
31The United States did not appeal the Panel's ruling that it had failed to establish the existence, as of 
July 2005 (at the time the Panel was established), of a LA/MSF commitment measure for the A350 constituting 
a specific subsidy within  the meaning of the SCM Agreement .  Nor did the United States challenge the Panel's 
rejection of its claims of price undercutting, price suppression, and price depression under Article 6.3(c) of the 
SCM Agreement , or the Panel's rejection of its claim of injury under Article 5(a) of the SCM Agreement , or the 
Panel's rejection of its claim regarding loans by the European Investment Bank to Airbus. WT/AB/17 
Page 19 
 
 
  (b) Temporal Scope of Article 5 of the SCM Agreement  
The European Union claimed that the Panel e rred in its interpretati on and application of 
Article 5 of the SCM Agreement  when concluding that all alleged actionable subsidies granted by the 
European Union prior to 1 January 1995 were in cluded in the temporal scope of this dispute.32 
The Appellate Body modified the Panel' s interpretation of Article 5 of the SCM Agreement , 
but upheld the Panel's conclusion rejecting the Eur opean Communities' request to exclude all alleged 
subsidies granted prior to 1 January 1995 from the tem poral scope of the dispute.  Referring to the text 
of Article 5 of the SCM Agreement  and the non-retroactivity of treaties principle reflected in 
Article 28 of the Vienna Convention , the Appellate Body disagreed w ith the European Union that, by 
virtue of Article 28, no obligation arising out of Article 5 is to be imposed on a WTO Member in 
respect of subsidies granted or brought into ex istence prior to the entry into force of the 
SCM Agreement .  The Appellate Body recognized that this may mean that a subsidy granted prior to 
1 January 1995 falls within the scope of Article 5 of the SCM Agreement , but explained that this is 
only because of its possible nexus to  the continuing situation of cau sing, through the use of this 
subsidy, adverse effects to which Article 5 applies.   In reaching this conclusion, the Appellate Body 
emphasized that it was not suggesting that the causing of adverse effects, through the use of pre-1995 
subsidies, could necessarily be characterized as a "conti nuing" situation in this case.  Rather, it simply 
found that a challenge to pre-1995 subsidies was not precluded  under the terms of the 
SCM Agreement . 
(c) Life of a Subsidy and Intervening Events 
The European Union argued that the Panel e rred in the interpretation and application of 
Articles 1, 5, and 6 of the SCM Agreement .  According to the European Union, the Panel ignored the 
"legal principle" reflected in these provisions that , when a benefit to a recipient arising from prior 
subsidies diminishes over time or is removed or is  taken away, there is a "significant change" that 
must be taken into account in the application of the SCM Agreement  and, in particular, in the 
examination of the causal link between the granting of the subsidy and the alleged adverse effects.  
For its part, the United States requested the Appellate Body to uphold the Panel's finding that, on a 
proper interpretation of Articles 1, 5, and 6 of the SCM Agreement , there is no requirement to 
demonstrate a "continuing benefit" for purposes of an adverse effects analysis. 
The Appellate Body said it unders tood the participants to agree with the basic proposition that 
a subsidy has a life, which may come to an end,  either through the removal of the financial 
contribution and/or the expiration of the benefit.  In the particular context of Part III of the 
SCM Agreement , a panel is called upon to determine whethe r the complainant has demonstrated that 
the responding party is causing, through the use of an y subsidy, adverse effects.  The Appellate Body 
considered that a subsidy does not remain unchanged over time.  Rather, at the time of the grant of a 
subsidy, the subsidy will necessarily be projected to ha ve a finite life and to be utilized over that finite 
period.  In order properly to assess a complaint under Ar ticle 5 that a subsidy causes adverse effects, a 
panel must take into account that a subsidy accrues and diminishes over time, and will have a finite 
                                                      
32In particular, the European Communities argued that  the following groups of measures fell outside 
the temporal scope of the SCM Agreement :  (i) LA/MSF committed and paid prior to 1 January 1995;  (ii) EIB 
loans to EADS and the Airbus companies that were provide d in full prior to 1 January 1995;  (iii) the extension 
of the runway at the Bremen Airport, which occurred in 1988 and 1989;  and (iv) share transfers and equity 
infusions that took place before I January 1995.  In addition, in relatio n to R&TD funding, the 
European Communities argued "that grants or disbur sements made after 1 January 1995 pursuant to 
programmes established prior to 1 January 1995 are with in the temporal scope of Ar ticle 5, while grants or 
disbursements made prior to 1 January 1995 are outside the temporal scope of Article 5 and should be excluded 
from these proceedings." WT/AB/17 
Page 20  
 
  life.  The Appellate Body added that the adverse ef fects analysis under Article 5 is distinct from the 
"benefit" analysis under Article 1.1(b) of the SCM Agreement  and there is consequently no need to 
"re-evaluate" under Article 5 the amount of the benef it conferred pursuant to Article 1.1(b).  Rather, 
an adverse effects analysis under Article 5 must consider the trajectory of the subsidy as it was 
projected to materialize over a certain period at the time of the grant.  Separately, where it is so 
argued, a panel must assess whether there are "inter vening events" that occurred after the grant of the 
subsidy that may affect the projected value of the subsidy as determined under the ex ante  analysis.  
Such events, the Appellate Body found, may be releva nt to an adverse effects analysis because they 
may affect the link that a complaining party is seek ing to establish between the subsidy and its alleged 
effects. 
Regarding the European Union's contention that  a complaining party must demonstrate the 
existence of a "continuing benefit" during the refe rence period in order to show that a subsidy is 
capable of causing present adverse effects, Appellate Body explained that the text of Articles 5 and 6 
of the SCM Agreement  does not support the proposition that ther e must be "present benefit" during the 
reference period.  The Appellate Body further cons idered that the requireme nt that the effects of 
subsidies be felt in the reference period, does not mean  that the subsidies, and in particular the benefit 
conferred, must also be present during that period.   Rather, in focusing on the causing of adverse 
effects through the use of any subsidy, Article 5 e nvisages that the use of the subsidy and the adverse 
effects may not be contemporaneous. 
For these reasons, the Appellate Body agreed  with the Panel that the United States was not 
required, under Article 5 of the SCM Agreement , to establish that all or part of the "benefit" found to 
have been conferred by the provision of a fina ncial contribution continues to exist during the 
reference period.  The Appellate Body emphasized, how ever, that, as with a subsidy that has a life and 
materializes over time, so too do the effects of a subsidy accrue and diminish over time, thus the 
effects of a subsidy will ordinarily dissipate over tim e and will end at some point after the subsidy has 
expired. 
In sum, therefore, the Appellate Body modifi ed the Panel's interpretation of "continuing 
benefit", but upheld the Panel's ultimate  finding that Articles 5 and 6 of the SCM Agreement  do not 
require that a complainant demonstrate that a benef it "continues" or is "present" during the reference 
period for purposes of an adverse effects analysis. 
(d) Extinction, Extraction, and Pass-Through of Subsidies 
Before the Panel and on appeal, the European  Union referred to a number of "intervening 
events" that it claimed reduced, or brought to an end,  all or part of the subsidies provided to Airbus 
companies and therefore should have been taken in to account by the Panel as part of its adverse 
effects analysis.  The European Union identified th e following "intervening events": (a) shares in an 
enterprise that has previously received subsidies ar e subsequently bought by new private owners in 
sales transactions conducted at arm's length and for fair market value, resulting in the "extinction" of 
subsidies; (b) a parent company removes cash or cash equivalents from a wholly owned subsidiary 
that has previously received subsidies, resulting in the "extraction" of subsidies;  and (c) a company 
that has previously received subsidies is restructur ed and legally reorganized to form a new company, 
resulting in a situation in which the subsides do not "pass through" to the new company. 
 Extinction of subsidies 
The European Union argued on appeal that cer tain transactions involving sales of shares in 
Aérospatiale-Matra, EADS, and Airbus SAS were c onducted at "arm's length" and for "fair market 
value" and therefore "extinguished", in full or in part, alleged subsidies remaining in those WT/AB/17 
Page 21 
 
 
  companies.33  Referring to the Appellate Body Reports in US – Lead and Bismuth II and  
US – Countervailing Measures on Certain EC Products  (the "privatization cases"), the 
Appellate Body noted that the present case was not brought in a Part V context where the question 
arises as to the rate of subsidi zation present in the product that is being countervailed.  The Appellate 
Body added that none of the sales transactions in this dispute amounted to a full privatization of a 
previously state-owned company. 
Although the Members of this Division discussed at  length the issue of extinction of subsidies 
in the context of partial privatizations and pr ivate-to-private sales, no common view emerged.  
Instead, each Member of the Division set out separate views on this issue: 
One Member agreed with the Appellate Body ru lings in previous privatization cases that a 
full privatization, conducted at arm's length and for fair market value involving a complete or 
substantial transfer of ownership and control, "extinguishes" prior subsidies, but expressed the view 
that that this rule does not apply to partial priva tizations or to private-to-private sales.  Another 
Member considered that the rationale  underlying the Appellate Body's case law on full privatizations 
in countervailing measure cases under Part V equally app lies in situations of partial privatization and 
private-to-private transactions and in the context of Part III of the SCM Agreement .  The third 
Member questioned in principle whether an acquis ition of shares, concluded at arm's length and for 
fair market value, could warrant the conclusion that an extinction of benefit had taken place. 
The Appellate Body considered that consistent with the Appellate Body's guidance in those 
previous cases, a fact-intensive inquiry into th e circumstances surrounding the changes in ownership 
would be required in order to determ ine the extent to which there are sales at fair market value and at 
arm's length, accompanied by transfers of ownershi p and control, and whether a prior subsidy could 
be deemed to have come to an end.  Moreover, the Appellate Body noted that a panel assessing claims 
under Part III of the SCM Agreement  would have to examine whether th e transactions are of a nature, 
kind, and amount so as to affect an adverse effe cts analysis and attenuate the link sought to be 
established by the complaining party under Articles 5 and 6 of the SCM Agreement  between the 
challenged subsidies and their alleged effects. 
The Appellate Body reversed the Panel's findi ng that certain corporate share transactions 
involving the Airbus consortium did not "extinguish" a portion of past subsidies, because the Panel 
failed to assess whether the partial privatizations and private-to-private sales transactions were at 
arm's-length terms and for fair market value, and to what extent they involved a transfer in ownership 
and control to new owners;  however, there were in sufficient factual findings or undisputed facts on 
record for the Appellate Body to complete the anal ysis and determine whether the transactions at issue 
indeed "extinguished" a portion of past subsidies. 
 Extraction 
The second category of "intervening events" th at the European Union argued should have 
been taken into account by the Pane l under its adverse effects analysis  concerned the removal of cash 
from two Airbus predecessor companies—Da imlerChrysler Aerospace AG ("Dasa") and 
Construcciones Aeronáuticas SA ("CASA")—prior to  their contribution to European Aeronautic 
                                                      
33These transactions consisted of the following: (i ) the French Government's sale of shares in 
Aérospatiale-Matra in 2000;  (ii) the combination of th e LCA-related assets and activities of the Airbus partners 
to form EADS and the public offering of EADS shar es in 2000;  (iii) sales of EADS shares by various 
shareholders between 2001 and 2006, including sales by the French Government and Lagardère in 2001 (0.93% and 2.07%, respectively), a sale by  DaimlerChrysler in 2004 (2.75%), and sales by DaimlerChrysler and 
Lagardère in 2006 (totalling 15%);  and (iv) the exercise of a "put option" and sale by BAE Systems of its 20% 
interest in Airbus SAS to EADS in 2006. WT/AB/17 
Page 22  
 
  Defence and Space Company NV ("EADS"), in 2000.  According to the European Union, these 
transactions—which it referred to as "cash extractions"— had the effect of "extracting" or taking away 
all or part of the "incremental value" create d by prior subsidies provided to Dasa and CASA. 
Unlike the Panel, the Appellate Body said it did not a priori  exclude the possibility that all or 
part of a subsidy may be removed from a firm by the removal of cash or cash equivalents.  The 
Appellate Body added that even the complaining party in this case did not preclude that there are 
circumstances in which a Member may remove ca sh from a subsidized company in a way that 
"withdraws" the subsidy.
34 
Turning to consider the European Union's ar guments on appeal, the Appellate Body noted 
that the European Union had provided no persuasi ve evidence as to how the specific subsidies 
provided to Dasa and CASA increased the "incremental  value" of those companies, and therefore how 
the cash "removed" could be deemed to remove that value.  Thus, while it did not a priori  exclude the 
possibility that all or part of a subsidy may be "e xtracted" by the removal of cash or cash equivalents, 
the Appellate Body upheld the Pane l's ultimate finding that it had not been established that the "cash 
extractions" from Dasa and CASA remo ved a portion of past subsidies. 
 Withdrawal of subsidies within the meaning of Articles 4.7 and 7.8 
of the SCM Agreement  
The Appellate Body turned next to consider whether, as argued by the European Union, the 
"cash extractions" from Dasa and CASA, as well as th e partial privatization and private-to-private 
sales transactions at issue, constitute "withdrawals"  of subsidies within the meaning of Articles 4.7 
and 7.8 of the SCM Agreement .  The Appellate Body recalled that the drafters of Articles 4.7 and 7.8 
contemplated that the remedy of "withdrawal" would be available only after a panel and the Appellate 
Body had determined, in original proceedings, th at subsidies are prohibited and/or actionable and 
causing adverse effects.  The Appellate Body considered that a recommendation to "withdraw" subsidies pursuant to Article 4.7 is directed at subsid ies that have been found to be prohibited;  under 
Article 7.8, a recommendation to "withdraw" subsidies or remove their adverse effects is directed at 
actionable subsidies that have been found to cau se adverse effects.  Such recommendations do not 
concern subsidies that have been "extracted" or "e xtinguished", nor are panels or the Appellate Body 
required to make recommendations with respect to de tracted or extinguished subsidies.  The Appellate 
Body recalled that, in this dispute, at the time the sales transactions and "cash extractions" took place, 
there had been no findings by a panel or the Appe llate Body that alleged subsidies were either 
prohibited subsidies or actionable subsidies causing adverse effects.  Therefore, the Appellate Body 
did not consider that the sales transactions and "cash extractions" resulted in the "withdrawal" of 
subsidies, within the meaning of Articles 4.7 and 7.8 of the SCM Agreement . 
Accordingly, the Appellate B ody upheld the Panel's ultimate finding that the "cash 
extractions" did not result in the "withdrawal" of s ubsides, within the meaning of Articles 4.7 and 7.8 
of the SCM Agreement .  With respect to the sales transactions at issue, the Appellate Body said it had 
no basis to make a finding that they resulted in "wit hdrawal" of subsidies as it had not been able to 
complete the analysis to determine whet her they "extinguished" prior subsides. 
                                                      
34The Appellate Body noted, however, that this does not amount to saying, as the 
European Communities acknowledged before the Panel, that every time cash leaves a company the benefit of 
prior financial contributions would be correspondingly diminished.  Rather, a consideration of whether the cash 
removed from a company eliminates past subsidies is a fa ct-specific inquiry that must be assessed based on the 
circumstances of the case.  That inqu iry, the Appellate Body explained, would consider matters such as whether 
the cash "extracted" was in the form of dividends representing the profits of a company, which both participants 
accepted would not normally amount to an  "extraction" of past subsidies. WT/AB/17 
Page 23 
 
 
   
 Claims under Article 11 of the DSU 
The Appellate Body declined to make additiona l findings as to whether the Panel failed to 
make an objective assessment of the matter and ther eby acted inconsistently with Article 11 of the 
DSU in its treatment of the European Commun ities' arguments concerning the "extinction", 
"extraction", and "withdrawal" of subsidies. 
 Pass-through of subsidies 
The Appellate Body turned next to address the European Union's request for reversal of the 
Panel's finding that the United States was not required, in order to make a prima facie  case under 
Articles 5 and 6 of the SCM Agreement , to demonstrate that the benefits of subsidies provided to 
Airbus predecessor companies "passed through" to Airbus  SAS, the current producer of Airbus LCA.  
The Appellate Body noted that the Un ited States' claims were not lim ited to adverse effects caused by 
subsidies provided to the current producer of LCA or to the current LCA models produced by Airbus 
SAS.  Rather, the United States also challenged subsidies provided to "predecessor Airbus GIE 
companies" and "predecessor affilia ted companies" of both Airbus GIE and Airbus SAS.  Recalling 
that subsidies provided in the past can continue to have adverse effects at a later point in time, the 
Appellate Body did not consider that the facts of  this case required the United States to demonstrate 
that past subsidies "passed through" from the Airbus  Industries consortium to Airbus SAS, in addition 
to showing that the European Uni on was in breach of its obligation not to cause, through the use of 
any subsidy, adverse effects to the interests of th e United States.  Furthermore, the Appellate Body 
agreed with the Panel that despite  the changes in "legal organizati on", the "economic realities" of 
production of Airbus LCA demonstrated the pr edecessor and successor compan ies were the same 
producers of LCA.  Thus, the Appellate Body was not faced with a situation where predecessor and 
successor companies were unrelated and operated at  arm's length and where a pass-through analysis 
might therefore be required. 
For these reasons, the Appellate Body upheld the Panel's finding that the United States was 
not required to demonstr ate, as part of its prima facie case under Article 5 of the SCM Agreement , that 
subsidies provided to the Airbus predecessor compan ies "passed through" to the current producer of 
Airbus LCA, Airbus SAS. 
2. Launch Aid/Member State Financing  
(a) The Alleged LA/MSF Programme 
In its other appeal, the United States challenge d the Panel's finding that the United States 
failed to demonstrate the existence of an allege dly unwritten LA/MSF Programme.  The United States 
described the alleged LA/MSF Programme as "ongoing co nduct" or "repeated provision of [LA/MSF] 
to each and every major Airbus model, under the sam e four core conditions and benefiting the same 
subsidized product". 
The Appellate Body began by considering whether the United States' request for the 
establishment of a panel identified an LA/MSF Programme as a "specific measure at issue", as required by Article 6.2 of the DSU.  The Appellat e Body agreed with the participants that the 
United States' panel request explicitly identifie d the provisions of LA/MSF for individual LCA 
models.  However, the Appellate Body was of the vi ew that the United States' panel request failed to 
identify a challenge to a distinct measure, c onsisting of an unwritten LA/MSF Programme or "a 
concerted and coherent approach ... designed to  contribute to the long-term competitiveness of WT/AB/17 
Page 24  
 
  Airbus".  The Appellate Body recalled that it is well established that, where a panel request fails to 
identify a particular measure or fails to specify a pa rticular claim, such a measure or claim will fall 
outside the panel's jurisdiction.  Moreover, a comp lainant's submissions during the panel proceedings 
cannot cure a defect in a panel request.  The Appella te Body found therefore that the alleged LA/MSF 
Programme was not within the Panel's terms of reference because it was not identified in the 
United States' request for the establishment of a pane l, as required by Article 6.2 of the DSU.  Having 
reached this conclusion, the Appellate Body had no  jurisdiction to consider further the arguments 
raised by the participants, and the Panel's finding regarding the alleged LA/MSF Programme.  
Accordingly, the Appellate Body declared moot a nd of no legal effect the Panel's finding that the 
United States had failed to establish the existe nce of an unwritten LA/MSF Programme measure 
constituting a specific subsidy within the meaning of Articles 1 and 2 of the SCM Agreement . 
(b) LA/MSF Benefit 
With respect to the Panel's fi ndings on the individual LA/MSF measures, the European Union 
argued, inter alia , that the Panel erred in failing to take account of Article 4 of the Agreement between 
the United States and the European Economic Commun ity concerning the application of the GATT 
Agreement  on Trade in Civil Aircraft (the "1992 Agreement")35 in interpreting and applying the notion 
of "benefit" under Article 1.1(b) of the SCM Agreement .  The European Union additionally challenged 
the Panel's application of Article 1.1(b) to the facts and its assessment of the evidence, pursuant to 
Article 11 of the DSU, concerning the appropriate ma rket interest rate that the Panel used as a 
benchmark to compare against the interest rates of the LA/MSF measures, in order to determine whether the latter conferred a benefit on the Airbus  companies.  In particular, the European Union 
took issue with the project-specific risk premia that the Panel used in constructing a market interest 
rate benchmark.  It also challenged the Pane l's rejection of the European Union's proposed 
benchmark, which was based on the interest rates al legedly charged by Airbus risk-sharing suppliers.  
Furthermore, the European Union asserted that to the extent that the Panel made findings with respect 
to the relevance of the number of sales over which full repayment is expected to the appropriateness 
of the market rate of return, the Panel erred in its determination of benefit. 
Regarding the issue of whether the challenge d LA/MSF measures conferred a benefit within 
the meaning of Article 1.1(b) of the SCM Agreement , the Appellate Body found that Article 4 of the 
1992 Agreement is not a relevant rule of internati onal law applicable in th e relations between the 
parties, within the meaning of Article 31(3)(c) of the Vienna Convention , that informs the meaning of 
"benefit" under Article 1.1(b) of the SCM Agreement  and does not form part of the facts to establish 
the relevant market benchmark at the time the LA/MSF was granted. 
Next, the Appellate Body turned to the Europ ean Union's challenge to the Panel's assessment 
of benefit.  The Panel determined whether the LA/MSF confer a benefit by examining whether the 
cost of the challenged LA/MSF contracts to Airbus is  less than the cost that Airbus would be faced 
with if it sought financing on the same or sim ilar terms and conditions as LA/MSF from the market. 
In order to make the comparison required by Article 1.1(b), the Panel first determined the 
internal rate of return of each of the LA/MSF measures.  Neither the European Union nor the 
United States questioned on appeal the Panel's dete rmination of the maximum returns obtained by the 
                                                      
35Article 4 of the 1992 Agreement stipulates that development support provided by governments shall 
not be afforded to a new aircraft programme unless a valid critical project appraisal, based on "conservative 
assumptions" has established that there is a reasonable expectation that all costs (including repayment of all 
support money) can be recovered within 17 years, on terms and conditions provided for under the Agreement;  direct government support sha ll not exceed 33 per cent of the total deve lopment costs at interest rates no less 
than certain specified rates;  and calcu lations shall be made on the basis of the forecast of aircraft deliveries in 
the critical project appraisal. WT/AB/17 
Page 25 
 
 
  member States on the LA/MSF.  The European Uni on's appeal focused exclusively on the other 
element of the Panel's comparison, that is, the rates of return that a market lender would have required 
to provide financing to Airbus.  Both the Un ited States and the European Communities sought to 
develop a proxy that, in their view, most accurately re flected the rate of return that would have been 
demanded by a market lender.  This proxy, and pa rticularly one of its components (the project-
specific risk premia), was at the h eart of the European Union's appeal. 
The Panel examined the project-specific risk premia put forward by both parties and had 
misgivings about both.  As regards the project-speci fic risk premium put forward by the United States, 
the Panel considered that it had "a number of defici encies" which, in its view, "imply that it probably 
overstates the appropriate level of project-specifi c risk that may be reasonably associated with 
LA/MSF provided for at least a number of the challenged Airbus LCA projects".  The Panel also 
found that the benchmark proposed by the European  Communities "under-estimate[d] the appropriate 
level of project-specific risk that may be reasonabl y associated with LA/MSF for all of the challenged 
measures". 
The European Union challenged on appeal the Pa nel's assessment of the appropriate project-
specific risk premium as both an error of application of Article 1.1(b) of the SCM Agreement  and as a 
failure to make an objective assessment of the fa cts under Article 11 of the DSU.  However, the 
Appellate Body concluded that the European Union's appeals of the quantification of the level of risk, 
the choice of relevant factors for quantification, a nd the reasoning of the Panel were challenges to the 
objectivity of the Panel's assessment of factual determ inations within the meaning of Article 11 of the 
DSU. 
The Appellate Body then proceeded to review the Panel's assessment of the project-specific 
risk premium put forward by the United States and found the Panel's reasoning in relation to the United States' proposed project-specific risk premium was internally inconsistent.  Consequently, the 
Appellate Body reversed the Panel's findings th at the United States' proposed project-risk premium 
constituted the minimum project risk for the A300 an d A310, the exterior uppe r boundary of the range 
of project risk for the A320, A330/A340, A330- 200, and A340-500/600, and the internal upper 
boundary of the range of project risk for the A380. 
The Appellate Body turned to the Panel's as sessment of the project-specific risk premium 
proposed by the European Communitie s.  In reviewing the Panel's assessment, the Appellate Body 
identified several flaws in the Panel's analysis.  The Panel had summarized the 
European Communities' rebuttal arguments and eviden ce, but did not engage with them.  Nor did had 
the Panel explained how it reconciled its conclusi on with the rebuttal arguments and evidence.  The 
Appellate Body considered that this type of reasoni ng is not consistent with the Panel's duty to make 
an objective assessment of the facts under Article 11 of the DSU.   
The Appellate Body clarified, however, that the errors it had identified did not invalidate the 
Panel's overall conclusion about the reliability of the project-specific risk premium proposed by the 
European Communities.  It was reasonable for the Panel to have concluded that LA/MSF reduces the 
level of risk of an LCA project perceived by th e risk-sharing suppliers.  As a result, risk-sharing 
suppliers would be expected to demand a lower rate of return on their participation in an LCA project 
than they would have demanded in the absence of LA/MSF.  Therefore, the Appellate Body was of 
the view that deriving the project risk premium from the rate of return of the risk-sharing suppliers 
underestimated the project risk premium that would be demanded by a market lender in the absence of 
LA/MSF. 
Accordingly, the Appellate Body rejected this aspect of the European Union's appeal and did 
not consider that its concerns with certain aspect s of the Panel's reasoning warranted disturbing the 
Panel's ultimate finding that the project-specifi c risk premium proposed by the European Union WT/AB/17 
Page 26  
 
  underestimates the appropriate level of project-speci fic risk associated with the challenged LA/MSF 
measures.  In the light of its conclusions, the Appe llate Body had to consid er how its intermediate 
findings affected the Panel's ultimate conclusion that the LA/MSF measures confer a benefit within 
the meaning of Article 1.1(b) of the SCM Agreement.   The Appellate Body ultimately upheld the 
Panel's conclusion that the European Commun ities' proposed project-specific risk premium 
underestimated the risk premium that a market ope rator would have reasonably demanded Airbus pay 
for financing on the same or similar terms as the challenged LA/MSF.  The Appellate Body observed 
that the uncontested evidence indicat ed that, even leaving aside the pr oject-specific risk premium, the 
rates of return obtained by the member States on all but two of the challenged LA/MSF measures are 
below a market benchmark that does not include a proj ect-specific risk premium.  The rate of return 
obtained by the member States under the other two LA/MSF measures is below a market benchmark 
that includes the project-specific risk premium propo sed by the European Communities, which in fact 
understated the risk premium.  Accordingly, the A ppellate Body upheld the Panel's conclusions that 
the challenged LA/MSF measures conferred a benefit within the meaning of Article 1.1(b) of the 
SCM Agreement . 
The European Union also challenged the Panel's statement that "the number of sales over 
which full repayment is expected says little, if anything,  about the appropriateness of the rate of return 
that will be achieved by the lender".  The Appellate  Body explained that the Panel's statement could 
be misunderstood to suggest that the number of sales is irrelevant to the calculation of the rate of 
return of the member State governments, which w ould be incorrect.  Given the potential that the 
Panel's statement could be misused in the future, th e Appellate Body reversed the Panel's statement. 
3. Non-Launch Aid/Member State Financing Measures 
(a) The EC Framework Programmes 
The European Union argued that the Panel er red in finding that certain R&TD grants 
provided to Airbus pursuant to the Second (1987-19 91), Third (1990-1994), Fourth (1994-1998), Fifth 
(1998-2002), and Sixth (2002-2006) EC Framework Pr ogrammes were "specific" subsidies within the 
meaning of Article 2.1(a) of the SCM Agreement .   
Referring to findings made by the Panel, th e Appellate Body observed that each of the 
EC Framework Programmes appeared to divide up funding into those research areas th at are sector-
specific—such as the allocations to "aeronautics" and "aeronautics and space"—and those that are "of 
a general horizontal nature, poten tially cutting across a variety of business segments".  Thus, each 
EC Framework Programme targeted funding to economic activities "at both horizontal and sector-
specific levels".  In the light of these findings,  the Appellate Body did not consider that the 
EC Framework Programmes ensured "equal access" to funding. 
Moreover, the Appellate Body di d not consider that explicit limitations on access to a subsidy 
to entities active in one sector of the economy will lead to a different conclusion under Article 2.1(a) by virtue of the fact that separate groupings of  entities have access to othe r pools of f unding under 
that programme.  For the Appellate Body, if access to the same subsidy is limited to some grouping of 
enterprises or industries, an investigating author ity or panel would be required to assess whether the 
eligible recipients can be collectively defined as  "certain enterprises".  Where access to certain 
funding under a subsidy programme is explicitly limit ed to a grouping of enterprises or industries that 
qualify as "certain enterprises", this leads to a provi sional indication of specificity within the meaning 
of Article 2.1(a), irrespective of how other funding under that programme is distributed.  The 
Appellate Body further considered that, on the b asis of the evidence before it, the Panel could 
properly have concluded that those eligible to r eceive funding allocated to research in the aeronautics 
sector qualified as "certain enterprises".  For these reasons, the Appellate Body saw no grounds to WT/AB/17 
Page 27 
 
 
  disturb the Panel's conclusion that the evidence before it "indicate[d] that amounts of subsidization 
were explicitly set aside under each of the relevant Framework Programmes for the research efforts of 
'certain enterprises'". 
For these reasons, the Appellate Body did not c onsider that the Panel erred in applying the 
principle under Article 2.1(a) to determine that th e allocation of R&TD subsidies to the aeronautics 
sector was specific.  Accordingly, the Appellate Body upheld the Panel's finding that the R&TD 
subsidies granted to Airbus under each of the EC Framework Programmes were "specific" subsidies 
within the meaning of Article 2.1(a) of the SCM Agreement . 
(b) Infrastructure Measures 
The European Union argued that the Panel er red in its interpretati on and application of 
Article 1.1(a)(1)(iii) of the SCM Agreement in finding that certain measures relating to the 
Mühlenberger Loch near Hamburg, the Brem en airport runway extension, and the ZAC 
Aéroconstellation industrial park near Toulouse are not general infrastructure and constitute financial 
contributions.   
The Panel stated that the disagreement between the parties focused on the "central question" 
of whether the challenged infrastructure constitutes th e provision of "other than general infrastructure" 
within the meaning of Article 1.1(a)(1)(iii) of the SCM Agreement .  On appeal, however, the 
European Union directed its challenge to a different  issue.  Stating that the Panel posed the "wrong 
question" by asking whether the challenged infrastru cture measures constituted the provision of "other 
than general infrastructure", the European Union ma intained that the Panel ignored its argument "that 
a distinction must be made between, on the one hand,  the creation of infrastructure and, on the other 
hand, the provision of infrastructure to the recipi ent".  The European Union thus submitted that the 
Panel erred in its interpretation and application of Article 1.1(a)(1)(iii) by failing to recognize that the 
relevant transaction for purposes of its  analysis under Article 1.1(a)(1)(iii) was the provision of goods 
or services in the form of infrastructure to Airbus Deutschland and Airbus France, not the creation of that infrastructure. 
After examining the measures at issue, th e Appellate Body modified the Panel's 
characterization of the infrastructure measu res constituting a financial contribution under 
Article 1.1(a)(1)(iii) of the SCM Agreement .  On the basis of its review of the Panel record, the 
Appellate Body considered that a proper characteriz ation of the financial contributions provided to 
Airbus consists of the following:  (i) the lease of land and special purpose facilities at the Mühlenberger Loch industrial site;  (ii) the right  to exclusive use of the extended runway at the 
Bremen airport;  and (iii) the sale of land and the lease of facilities at the Aéroconstellation industrial 
site. 
The European Union also argued on appeal that  the Panel erred in its interpretation and 
application of the term "benefit", within the meaning of Article 1.1(b) of the SCM Agreement , in 
finding that the three infrastructure measures at is sue confer a benefit on Airbus Deutschland and 
Airbus France.   
The Appellate Body noted that there is no di sagreement between the participants that the 
market was the appropriate benchm ark in determining benefit within  the meaning of Article 1.1(b), 
and that Article 14(d) confirms the importance of ex amining the value of the financial contribution in 
relation to "prevailing market conditions".  The principal question was instead whether the Panel 
nevertheless erred in failing to determine be nefit in conformity with that standard. WT/AB/17 
Page 28  
 
  The Appellate Body recalled that the Panel ha d found that the cost to government in 
providing the infrastructure exceeded the amounts th e government received in return for that 
investment.  The Appellate Body noted that, in a rriving at its findings, the Panel denied that it was 
resorting to a "cost-to-government" standard. 
The Appellate Body considered that the Panel' s assertions that it was not relying on the costs 
to the government to determine benefit were  belied by its analysis.  The Appellate Body 
acknowledged that, in certain circumstances, a seller's costs may be a relevant factor to consider in 
assessing whether goods or services were provided for less than adequate remuneration.  However, 
the Appellate Body saw no indication that the Panel relied on any considerations other than 
investment costs in arriving at its determinati on of a market benchmark.  The Appellate Body 
therefore considered that the Panel erroneously equated the government's investment costs with 
market value.  The Appellate Body considered that  the Panel's conclusion that the relevant authorities 
did not recoup their investment was equivalent to stating that those investments conferred a benefit 
because they resulted in a net cost to the government.   
The Appellate Body rejected this reasoning by the Panel because it did not adhere to this 
market logic.  The Appellate Body explained that th e fact that a market actor would seek a return on 
its investment does not mean that it could necessarily  obtain that return on the market.  Indeed, the 
rent a market actor can charge will be constrained by  market conditions even if the rent does not cover 
its costs.  Accordingly, the Appellate Body did not consider that it is consistent with Articles 1.1(b) 
and 14(d) to establish a market benchmark for a good or service by referring to the demands or 
expectations only of a seller or lessor, or, alternatively, only of a buyer or lessee.  The price of a good 
or service must reflect the interaction between th e supply-side and demand-side considerations under 
prevailing market conditions.  For these reasons, the Appellate Body considered that the investment 
costs borne by the relevant authorities in these ci rcumstances were an insufficient basis upon which to 
establish the market value of the sale or lease of the infrastructure at issue, and found that the Panel 
committed error in relying exclusivel y on those costs to establish the ex istence and amount of benefit.  
Accordingly, the Appellate Body reversed the Panel' s findings that the infrastructure measures at issue 
conferred a benefit on Airbus within th e meaning of Article 1.1(b) of the SCM Agreement . 
Having reversed the Panel's findings in respect of benefit, the Appellate Body turned to 
consider whether it could complete the analysis an d find that the infrastructure measures at issue 
conferred a benefit within the m eaning of Article 1.1(b) of the SCM Agreement . 
The Appellate Body found that the provision of the lease of the land at the Mühlenberger 
Loch industrial site near Hamburg and the provisi on of the right to exclusive use of the extended 
runway at the Bremen airport conferred a benefit on Airbus within the meaning of Article 1.1(b) of 
the SCM Agreement .  With respect to the provision of the lease of the land at the Mühlenberger Loch 
industrial site in Hamburg, the Appellate Body concluded, on the basis of the Panel's findings regarding the value of generally available industria l land in Hamburg and the location and customized 
features of the Mühlenberger Loch industrial site , that there was a certain premium that was not 
included in the rent that Airbus actually paid to lease industrial land at that site.  Likewise, with 
respect to the extended runway at the Bremen airpor t, the Appellate Body concluded, on the basis of 
the Panel's finding that Airbus di d not pay additional fees for its use of the extended runway, that 
Airbus was provided the right to exclusive use of the extended runway for which it paid no additional 
remuneration. 
The Appellate Body also found, however,  that there were insufficient factual findings by the 
Panel or undisputed facts on the Panel record to co mplete the legal analysis and determine whether a 
benefit was conferred with respect to the Aéro constellation industrial site in Toulouse. WT/AB/17 
Page 29 
 
 
  4. Equity Infusions 
(a) Capital Investments 
The European Union argued that the Panel erre d in its interpretation and application of 
Article 1.1(b) of the SCM Agreement in finding that certain equity in fusions in Aérospatiale by the 
French Government—consisting of four capital inv estments in Aérospatiale between 1987 and 1994, 
and a 1998 transfer by the French Government of  its stake in Dassault Aviation to Aérospatiale—
conferred a "benefit" to Aérospatiale.  The Eur opean Union further argued that the Panel acted 
inconsistently with Article 11 of the DSU in ma king findings without a sufficient evidentiary basis 
concerning reasonable market-based rates of return, and in the absence of coherent reasoning in its 
assessment of evidence concerning the performance  of Aérospatiale's peer companies.   
The Appellate Body recalled that the standard  for assessing "benefit" under Article 1.1(b) of 
the SCM Agreement requires that the assessment of whether a benefit has been conferred is to be 
made by reference to whether the terms of the financial investment by a government are more 
favourable than those available on the market. 
The Appellate Body did not consider that the Panel viewed a "reasonable rate of return" as 
connoting a different test than the "usual investment  practice" standard.  Accordingly, the Appellate 
Body dismissed the European Union' s claim that the Panel erred in its interpretation of Article 1.1(b) 
of the SCM Agreement , or failed to provide an objective asse ssment under Article 11 of the DSU, by 
not properly applying a "reasonabl e rate of return" standard. 
The Appellate Body also examined the European  Union's contention that the Panel failed to 
apply as a market benchmark certain evidence s ubmitted by the European Communities relating to 
investors in Boeing.  The Appellate Body considered  that the Panel, in deciding to accord relatively 
more weight to evidence of the financial perform ance of a group of peer French companies in the 
defence and aerospace industries than to evidence of Boeing's prospects for future LCA production, 
did not exceed its margin of discretion under Article 11.  The Appellate Body therefore dismissed the 
European Union's claim that the Panel's treatme nt of the evidence relating to Boeing violated 
Article 11 of the DSU.   
For these reasons, the Appellate Body upheld the Panel's finding that the capital investments 
at issue conferred a benefit on Aérospatiale w ithin the meaning of Article 1.1(b) of the 
SCM Agreement . 
(b) Share Transfers 
The European Union claimed that the Panel erred in finding that the 1998 transfer by the 
French Government of its 45.76% interest in Dass ault Aviation to Aérospatia le conferred a benefit 
within the meaning of Article 1.1(b) of the SCM Agreement . 
The Appellate Body recalled that the focus of Article 14(a) of the SCM Agreement  on the 
"investment decision" is a critical st ep in the analysis because it identif ies what is to be compared to 
the market benchmark, and when that comparison is to be situated.  The Appellate Body said it would 
next seek to identify the "investment decision" th at the Panel was to compare against the market 
benchmark consisting of the usual inve stment practice.  It considered that the Panel's analysis revealed 
a failure to identify the correct "i nvestment decision" to be assessed in relation to the usual investment 
practice, and therefore an error in the Panel's app lication of the legal standard under Articles 1.1(b) 
and 14(a) to the facts of this case. WT/AB/17 
Page 30  
 
  For these reasons, the Appellate Body reversed the Panel's finding that the French 
Government's transfer of shares of Dassault Aviation to Aérospatiale conferred a benefit on 
Aérospatiale within the meaning of Article 1.1(b) of the SCM Agreement .  The Appellate Body also 
said it was unable to complete the analysis on this issue. 
5. Export Subsidies 
The European Union argued that the Panel erre d in its interpretation and application of 
Article 3.1(a) and footnote 4 of the SCM Agreement36 in finding that the subsidies granted under the 
German, Spanish, and UK LA/MSF contracts for th e A380 were "in fact tied to … anticipated 
exportation" within the meaning of footnote 4, and were thus continge nt in fact upon export 
performance.  In its other appeal, the United Stat es claimed that the Panel also misapplied the 
standard for de facto  export contingency under Article  3.1(a) and footnote 4 of the SCM Agreement  in 
finding that the United States had failed to show th at the subsidies granted under the French LA/MSF 
contracts for the A380, A340-500/600, and A330 -200, and the Spanish LA/MSF contract for the 
A340-500/600 were contingent in fact upon export performance. 
Referring to the text of Article 3.1(a) and footnote 4 of the SCM Agreement , and to previous 
jurisprudence, the Appellate Body noted that, in co ntrast to the term "actual exportation", the term 
"anticipated exportation" inherently contains an  element of uncertainty, in that an exportation 
expected to occur in the future may, or may not, actually occur.  The Appellate Body added that by 
referring to the "granting of a subsidy" that is tie d to "anticipated" exportation, footnote 4 describes 
the situation that exists at the time a subsidy is granted, but does not require that the anticipated 
exportation be realized after the s ubsidy is granted.  Nor does the term "anticipated exportation", read 
in isolation, indicate by whom  the exportation is anticipated.  However, the Appellate Body 
considered that, by using the phrase "the granting of  a subsidy", the inquiry under footnote 4 must 
focus on "whether the granting authority impo sed a condition based on export performance in 
providing the subsidy" and concluded that it is the granting authority that "anticipates" that 
exportation will occur after the granting of the subsidy, and that grants a subsidy on the condition  of 
such anticipated exportation. 
The Appellate Body reasoned that because anticip ated exportation alone is not proof that the 
granting of the subsidy is tied to the anticip ation of exportation, the legal standard for de facto export 
contingency under Article 3.1(a) and footnote 4 of the SCM Agreement  also requires that there exists a 
relationship of conditionality between the granting of  the subsidy and anticipated exportation.  For the 
Appellate Body, where a subsidy is alleged to be  "in fact tied to … anticipated exportation", the 
relationship of conditionality is, unlike in the case of de jure  export contingency, not expressly or by 
necessary implication provided in the terms of the re levant legal instrument granting the subsidy.  The 
Appellate Body considered therefore that the fa ctual equivalent of such conditionality can be 
established by recourse to the following test:  is th e granting of the subsidy geared to induce the 
promotion of future export performance by the recipient? 
The Appellate Body added that, where releva nt evidence exists, the assessment could be 
based on a comparison between, on the one hand, the ratio of anticipated export and domestic sales of 
the subsidized product that would come about in co nsequence of the granting of the subsidy, and, on 
                                                      
36Article 3.1(a) of the SCM Agreement  prohibits "subsidies contingent, in law or in fact, whether solely 
or as one of several other conditions, upon export performance, including those illustrated in Annex I".  
Footnote 4 of that provision, which elaborates on the standard for export contingency "in fact", states: "This 
standard is met when the facts demonstrate that the granting of a subsidy, without having been made legally contingent upon export performance, is in fact tied to actual or anticipated exportation or export earnings.  The 
mere fact that a subsidy is granted to enterprises which export shall not for th at reason alone be considered to be 
an export subsidy within the meaning of this provision." WT/AB/17 
Page 31 
 
 
  the other hand, the situation in the absence of the subsidy.  Moreover, where the evidence shows, all 
other things being equal, that the granting of th e subsidy provides an incen tive to skew anticipated 
sales towards exports, in comparison with the hi storical performance of the recipient or the 
hypothetical performance of a profit-maximizing firm in  the absence of the subsidy, this would be an 
indication that the granting of the subsidy is in f act tied to anticipated exportation within the meaning 
of Article 3.1(a) and footnote 4 of the SCM Agreement .   
The Appellate Body further explained that the standard for determining whether the granting 
of a subsidy is "in fact tied to … anticipated expor tation" is an objective sta ndard, to be established on 
the basis of the total configuration of facts cons tituting and surrounding the granting of the subsidy, 
including the design, structure, and modalities of operation of the measure granting the subsidy.  
Indeed, the conditional relationship between the gran ting of the subsidy and export performance must 
be objectively observable on the basis of such evidence in order for the subsidy to be geared to induce 
the promotion of future export performance by the reci pient.  The Appellate Body concluded that the 
standard for de facto export contingency is therefore not satis fied by the subjective motivation of the 
granting government to promote the future  export performance of the recipient. 
In sum, the Appellate Body concluded that a subsidy that is neutral on its face, or by 
necessary implication, and does not differentiate between a recipient's exports and domestic sales 
cannot be found to be contingent, in law , on export performance within th e meaning of Article 3.1(a) 
of the SCM Agreement .  Such a subsidy may nonetheless constitute a subsidy contingent in fact  upon 
export performance within the meaning of the same provision if it is "in fact tied to actual or anticipated exportation or export earnings" under footnote 4 of the SCM Agreement .  For the 
Appellate Body, the granting of the subsidy may be tied to anticipated exportation, and thus 
contingent in fact upon export performance under Article 3.1 and footnote 4 of the SCM Agreement  if 
it is geared to induce the promotion of futu re export performance by the recipient.  The 
Appellate Body explained that the issue of whether this standard is met must be assessed on the basis 
of an examination of the measure granting the s ubsidy and the facts surrounding the granting of the 
subsidy, including the design, structure, a nd modalities of operation of the measure.  The 
Appellate Body added that the fact alone that the recipient of a subsidy exports is insufficient for a 
finding of de facto export contingency. 
The Appellate Body endorsed the Panel's inte rpretation of "anticipated exportation" under 
footnote 4 of the SCM Agreement .  The Appellate Body found, how ever, that the Panel equated the 
standard for de facto  export contingency with a standard b ased on the reasons for granting a subsidy 
and that, in so doing, the Panel erroneously in terpreted Article 3.1(a) and footnote 4 of the 
SCM Agreement .  The Appellate Body explained that, c ontrary to what the Panel assumed, the 
standard for finding that the granting of a subsidy is  in fact tied to anticipated exportation is not met 
simply by showing that anticipated exportation is th e reason for granting the subsidy.  Instead, the test 
is whether the granting of the subsidy is geared to  induce the promotion of future export performance 
by the recipient.  The authority's reasons for the granting of the subsidy may provide some evidence to 
meet the correct standard, but it is not to be equate d with that standard.  The Appellate Body therefore 
reversed the Panel's interpretation that, in order to fi nd that the granting of a subsidy is in fact tied to 
anticipated exportation, a subsidy must be granted because  of anticipated export performance. 
Because the Panel applied this erroneous sta ndard in reaching its final conclusions, the 
Appellate Body reversed the Panel's conclusion th at the United States has demonstrated that the 
German, Spanish and UK A380 contracts amount to pr ohibited export subsidies within the meaning of 
Article 3.1(a) and footnote 4 of the SCM Agreement , and that the United States has not shown that the 
granting of the LA/MSF subsidies by France fo r the A380, A340-500/600, and A330-200, and by 
Spain for the A340-500/600 was contingent in f act upon anticipated export performance, within the 
meaning of Article 3.1(a) and footnote 4 of the SCM Agreement .  The Appellate Body noted, 
however, the Panel's factual findings and undisputed facts on the record did not provide a sufficient WT/AB/17 
Page 32  
 
  basis for it to determine whether the LA/MSF subsidi es under the contracts at issue are granted so as 
to provide an incentive to Airbus to  export in a way that is not simp ly reflective of the conditions of 
supply and demand in the domestic and export markets undistorted by the granting of these subsidies.  
The Appellate Body said that it was thus not able to  complete the analysis and determine whether the 
LA/MSF subsidies under the contracts at issue are geared to induce the promotion of future export 
performance by Airbus.  Therefore, the Appellate Bo dy found that it was unable to make a finding as 
to whether the granting of the LA/MSF subsidies unde r these contracts is in fa ct tied to anticipated 
exportation within the meaning of Ar ticle 3.1(a) and footnote 4 of the SCM Agreement .  The 
Appellate Body added that the Panel' s recommendation under Article 4.7 of the SCM Agreement , that 
"the subsidizing Member granting each  subsidy found to be prohibited w ithdraw it ... within 90 days", 
must therefore also be reversed. 
6. Serious Prejudice 
The European Union challenged various aspects of  the Panel's finding that the effect of the 
subsidies provided to Airbus constitutes serious prejudice to the interests of the United States, 
including the findings of displacement of imports from the European Union, displacement of exports 
from certain third-country markets, or threat ther eof, significant lost sales, and the analysis of 
causation. 
(a) General Approach to the Assessment of Serious Prejudice 
The Appellate Body recalled that the Panel in th is dispute chose to examine the United States' 
claims, that the effect of the challenged subsidies was displacement and lost sales, on the basis of a 
two-step approach.  This approach consisted of first considering whether the particular phenomena 
identified in Article 6.3(a), (b), and (c) of the SCM Agreement  (such as displacement or lost sales) can 
be observed.  In undertaking this first step of  the analysis, the Panel did not address the question 
whether any particular phenomenon that can be obser ved is actually caused by subsidies provided to 
Airbus.  Rather, the Panel examined the question of causation in the subsequent section of its serious 
prejudice analysis, where it reviewed the parties' theories of causation and related arguments and 
evidence. 
The Appellate Body noted that it had found that panels may undertake an analysis of whether 
serious prejudice was the effect of challenged subsid ies under either a unitary or two-step approach.  
Under a unitary approach, the analysis of the particular market phenomena identified in the 
subparagraphs of Article 6.3 of the SCM Agreement  is not conducted separately from the analysis of 
whether there is a causal relationship between the challenged subsidies and those market phenomena.  
By contrast, under a two-step approach like the one adopted by the Panel, the analysis first seeks to 
identify the market phenomena and then, as a se cond step, examines whether there is a causal 
relationship.  The Appellate Body indicated a pref erence for the unitary appr oach, observing that such 
approach has a sound conceptual f oundation and explaining that it ma y be difficult to ascertain the 
existence of some of the market  phenomena in Article 6.3 without  considering the effect of the 
subsidy at issue. 
(b) Subsidized Product and Product Market 
The Appellate Body turned next to address the European Union's appeal as it related to the 
Panel's analysis of the United States' claims of di splacement under Articles 6.3(a) and 6.3(b) of the 
SCM Agreement .  In particular, the Appellate Body ex amined whether the Panel erred in its 
interpretation and application of the term "market" in Articles 6.3(a) and 6.3(b), and whether the Panel 
acted inconsistently with Article 11 of the DS U when assessing "displacement" on the basis of a WT/AB/17 
Page 33 
 
 
  single subsidized product and a single product market  for all LCA as determined by the complaining 
party. 
The Appellate Body explained that "displacement" is a situation where im ports or exports of a 
like product are replaced by the sales of the subs idized product and construed the concept of 
displacement as relating to, and arising out of, comp etitive engagement between products in a market.  
This, however, can only be the case if those products are in actual or potential competition in the same 
market.  Thus, an assessment of the competitive re lationship in the relevant product and geographic 
market is required in order to determine whether and to what extent one product may displace another.  
The Appellate Body noted that ordinarily, the subs idized product and the like product will form part 
of a larger product market.  In other cases, however , a complainant may have chosen to define the 
subsidized and like products so broadly that it is necessary to analyse the real  competitive interactions 
that are taking place, and thereby determine whether displacement is occurring. 
In sum, the Appellate Body concluded that the scope of the "market" to be examined for the 
purposes of Articles 6.3(a) and 6.3(b) of the SCM Agreement  is likely to vary from case to case 
depending upon the particular factual circumstances, including the nature of the products at issue, as 
well as demand-side and supply-side factors. 
Turning to the specifics of this dispute, th e Appellate Body considered that the Panel 
committed legal error by failing to assess and review the United States' subsidized product claims and 
refusing to make its own independent assessment of  whether all Airbus LCA compete in the same 
market or not.  In its analysis, the Panel deferred to the United States' subsidized product allegations 
rather than making its own independent assessment of whether all Airbus LCA should be treated as a 
single subsidized product.  The Appellate Body foun d that, in so doing, the Panel failed to make an 
objective assessment of the matter, including the "app licability of and conform ity with the relevant 
covered agreements", as required under Article 11 of the DSU.  The Appellate Body emphasized that 
the Panel's failure to comply with its duties unde r Article 11 appeared to flow directly from its 
erroneous interpretation of the requirement s of Articles 6.3(a) and 6.3(b) of the SCM Agreement , 
which led it to believe that it lacked the power and was under no obligatio n to assess independently 
the "subsidized product" and the relevant product market.  In the absence of  such a determination, 
however, the Panel did not have a proper basis fo r assessing whether the alleged subsidized and like 
products compete in the same market or multiple markets, which, the Appellate Body said, is a 
prerequisite for assessing whether displacement within  the meaning of Articles 6.3(a) and 6.3(b) could 
be found to exist as alleged by the United States. 
The Appellate Body added that there is no inhibition on how a complainant may choose to 
formulate its claim as to the scope of the "subsidi zed product";  it can do so as it thinks best comports 
with the adverse effects it seeks to challenge.  Th is does not mean, however, that a panel has no duty 
to review the complainant's formulation of the scope  of the "subsidized product".  Rather, the panel 
has a duty to ascertain the relevant product market or markets in which the complainant's and 
respondent's products compete.  The notion of "subs idized product" and "like product" is, in each 
case, to be analysed as an integral part of a pane l's duty objectively to assess a particular claim of 
serious prejudice and its obligation to assess the relevant market under Articles 6.3(a) and 6.3(b). 
In the light of the above, the Appellate Body fo und that the Panel erred in its interpretation of 
the term "market" in Articles 6.3(a) and 6.3(b) of the SCM Agreement  and acted inconsistently with 
Article 11 of the DSU.  The Appellate Body explai ned that the Panel did so by failing to make an 
objective assessment of the "applicability of and confor mity with the relevant covered agreements", in 
particular by concluding that it was not required "to make an independent  determination of the 
'subsidized product', as opposed to relying on the complainant's identification of the product".  Consequently, the Appellate Body reversed the Pa nel's findings of displacement on the basis of a 
single subsidized product and a single like product.  Noting, inter alia , that the Panel did not engage WT/AB/17 
Page 34  
 
  with the relevant evidence in a thorough and meani ngful manner, the Appellate Body found that it 
was unable to complete the legal analysis to find that there are one or more LCA product markets. 
(c) Displacement and Lost Sales 
 Displacement 
The Appellate Body explained that, where a complainant puts forward a case based on the 
existence of displacement as a directly observa ble phenomenon and the panel opts to examine it under 
a two-step approach, as was done in this dispute,  displacement arises under Article 6.3(a) of the 
SCM Agreement  where imports of a like product of the co mplaining Member are declining in the 
market of the subsidizing Member , and are being substituted by the subsidized product.  Similarly, 
under Article 6.3(b), displacement arises where ex ports from the like product of the complaining 
Member are declining in the third-country market concerned, and are being substituted by exports of 
the subsidized product.  Displacement must be dis cernible.  The identification of displacement under 
this approach should focus on trends in the markets,  looking at both volumes and market shares.  The 
trend has to be clearly identifiable and an assessmen t based on a static comparison of the situation of 
the subsidized product and the like product at the beginning and at the end of the reference period 
would be inadequate.  Where a two-step appro ach is used under Article 6.3(a) and (b), and 
displacement has been shown on a preliminary basis,  the complaining Member will have to establish, 
in addition, that such displacement is  the effect of the challenged subsidies.37 
The Appellate Body undertook its own analysis  based on the uncontested evidence and found 
displacement in some product and geographic ma rkets.  The Appellate Body noted that the 
European Union's appeal of the Panel's finding of displacement was limited and that the European 
Union expressly stated that it did not request the Ap pellate Body to reverse the Panel's displacement 
findings in their entirety.  More specifically, the Eu ropean Union did not seek reversal of the findings 
of displacement (under the first step of the Panel' s two-step approach to analysing serious prejudice) 
in the single-aisle, 200-300 seat and 300-400 seat LC A (or twin-aisle) markets of China, Korea, and 
the European Union, and the single-aisle LCA mark et of Australia.  For the Appellate Body this 
meant that, in its appeal, and in framing its requ est for reversal, the European Union acknowledged 
that there is some displacement in  these markets under the first step of  the Panel's two-step approach.  
The Appellate Body also noted that the United Stat es and the European Union agreed that there is 
competition between similar models of LCA;  that  their disagreement is limited to the degree of 
competition across models and also as between the extremes of Boeing's a nd Airbus' product ranges; 
and that the European Union noted that the displacement could be asse ssed on the basis of either three 
or five product markets.  Moreover, the Appellate Body considered that it had before it uncontested 
evidence of Airbus' and Boeing's volume of sales  and market shares for each of the geographic 
markets at issue.  In these circumstances, the Appe llate Body considered it po ssible and appropriate to 
                                                      
37As regards threat of displacement, the Appellate Body  stated that neither subp aragraph (a) nor (b) of 
Article 6.3 of the SCM Agreement  expressly refers to "threat of displacement".  Nevertheless, the introductory 
paragraph of Article 6.3 states that "[s]erious prejudi ce in the sense of paragraph (c) of Article 5 may arise" 
where there is one of the market phenomena describe d in the subparagraphs listed under that provision, 
including (a) and (b).  Footnote 13 to Article 5(c), in turn , clarifies that "[t]he term  'serious prejudice to the 
interests of another Member' is used in this Agreement in the same sense as it is used in paragraph 1 of 
Article XVI of [the] GATT 1994, and includes threat of serious prejudice".  Although Article 15.7 of the 
SCM Agreement  concerns threat of material  injury , the Appellate Body said that it believed that it also provides 
relevant guidance for understanding the concept of threat of serious prejudice  under Article 5(c).  Thus, as with 
a determination of threat of material injury, the Appellate  Body considered that it is reasonable to require that 
the determination of threat of serious prejudice "be based on facts and not merely on allegation, conjecture or 
remote possibility" and that "[t]he change in circumstan ces" that would create a situation in which the subsidy 
would cause displacement "must be clearly foreseen and imminent". WT/AB/17 
Page 35 
 
 
  complete the analysis and examine the claims of  displacement on the basis of undisputed evidence 
regarding three product markets:  the single-aisl e LCA product market;  th e twin-aisle LCA product 
market;  and the Very Large Aircraft product market.  By proceeding in this manner, the 
Appellate Body said it was examining the data fro m a perspective proposed by the responding party 
and not rejected by the complaining party. 
The Appellate Body found on the basis of uncont ested evidence, that there was displacement 
under Articles 6.3(a) and 6.3(b) of the SCM Agreement  during the reference period 2001-2006 in the 
single-aisle and twin-aisle LCA product markets in  the European Communities; and that there was 
displacement in the single-aisle LCA product market in Australia;  in the single-aisle and twin-aisle 
LCA product markets in China;  and in the single-ai sle and twin-aisle LCA product markets in Korea.  
The Appellate Body also found that the uncontested  evidence did not establish displacement over the 
reference period in Brazil, Mexico, Singapore, and Chinese Taipei, or threat of displacement in India 
in any product market. 
One Member of the Division expressed the divergent view that the Appellate Body could not 
complete the analysis of displacement given it s lack of fact-finding powers and the absence of a 
determination of the relevant pro duct market(s).  This Member of the Division recalled that, after a 
review of the relevant factual findings of the Pa nel and the undisputed evidence on the Panel record, 
the Appellate Body had concluded that it was unable to  complete the analysis of whether that there are 
one or more LCA product markets and that the Ap pellate Body's mandate under Article 17.6 of the 
DSU did not allow it to conduct the type of factua l assessment that would be required properly to 
define the product market(s) in this case.  Leaving as ide the issue of completion, this Member agreed 
with the Division's interpretation of the concept of  displacement and endorsed the causation findings 
that displacement and lost sales were the eff ect of the LA/MSF and non-LA/MSF subsidies. 
 Lost Sales 
The Appellate Body began its analysis by inte rpreting the term "lost sales".  The Appellate 
Body explained that, under Article 6.3(c) of the SCM Agreement , "lost sales" are sales that suppliers 
of the complaining Member "failed to obtain" an d that instead were won by suppliers of the 
respondent Member.  The Appellate Body described "lost sales" as a relational concept and found that 
its assessment requires consideration of the behaviour of both the subsid ized firm(s), which must have 
won the sales, and the competing firm(s), which alle gedly lost the sales.  The Appellate Body added 
that such assessment can focus on a specific sales campaign when such an approach is appropriate 
given the particular characteristics of the market or  it may look more broadly at aggregate sales in the 
market.38 
                                                      
38The Appellate Body noted that where lost sales are assessed under a two-step approach such as the 
one adopted by the Panel in this case, the finding of lost sales in the first step is necessarily preliminary and of 
limited significance in coming to a conclusion under Article 6.3(c) and a definitive determination under Article 6.3(c) must await cons ideration of whether such lost sales are th e effect of the challe nged subsidy.  For 
the Appellate Body, while a two-step approach to the assessment of lost sales is permissible, the most 
appropriate approach to asse ss whether lost sales are the effect  of the challenged subsidy is through a unitary 
counterfactual analysis.  According to the Appellate Body , this would involve a comparison of the sales actually 
made by the competing firm(s) of the complaining Member  with a counterfactual scenario in which the firm(s) 
of the respondent Member would not have received the challenged subsidies.  The Appellate Body considered 
that there would be lost sales where the counterfactual analysis shows that, in the absence of the challenged 
subsidy, sales won by the subsidized firm(s) of the respondent Member would have been made instead by the 
competing firm(s) of the complaining Member. WT/AB/17 
Page 36  
 
  In this part of its appeal, the European Union challenged only the Panel's finding that the sale 
of A380 aircraft to Emirates Airlines constituted a "lost sale" for Boeing.
39  The Appellate Body 
determined that the Panel's fi ndings that there was competition between the Airbus A380 and the 
Boeing 747 and that Airbus and Boeing competed for sales even when formal offers may not have 
been requested or made, provided a sufficient basis for the Panel's finding of lost sales.  Therefore, the 
Appellate Body upheld the Panel's finding, under the first step of its two-st ep approach, that Boeing 
lost the Emirates Airlines sale to Airbus and that the lost sale was significant. 
(d) Causation 
The European Union argued that the Panel erred in relation to the second step of the Panel's 
two-step analysis, namely whether the subsidies pr ovided to Airbus caused serious prejudice to the 
United States' interests within the meaning of Articles 5(c) and 6.3 of the SCM Agreement , in the form 
of displacement of Boeing LCA and lost sales. 
 Establishing a "causal link" between the subsidy and the market 
situations described in Article 6.3 of the SCM Agreement  
The Appellate Body recalled that to satisfy  the causation requirement under Articles 5(c) 
and 6.3(c), it must be shown that there is a "ge nuine and substantial relati onship of cause and effect" 
between the subsidies and the alleged market phenom enon.  In addition, panels assessing claims under 
Articles 5(c) and 6.3(c) must ensure that the effects of other factors are not improperly attributed to the challenged subsidies.  One possible approach to  the assessment of causation, the Appellate Body 
said, is an inquiry that seeks to  identify what would have occu rred "but for" the subsidies. 
The Appellate Body noted that the Panel had d escribed the task at hand as a determination of 
whether the particular market phenomena observe d over the period 2001-2006 were caused by the 
specific subsidies it had found were provided to Airb us.  For the Appellate Body, the Panel appeared 
to have proceeded in its analysis on the basis of a "but for" test as evidenced by its frequent reference 
to this test in the Panel Report.  The Appellate Bo dy considered that this may have been, in part, a 
reflection of the United States' argument that market  distortion and adverse effects flow directly from 
Airbus' entry at a particular time with a particular  aircraft, which in the United States' view would not 
have been possible but for the subsidies. 
 The age of a subsidy 
Before turning to review the Panel's assessment  of whether displacement and lost sales were 
the effects of the challenged subsidies, the Appellate Body discussed the issue of the age of a subsidy.  
The Appellate Body disagreed with the Panel that it is only the effect of a single subsidy that would 
dissipate over time, while multiple subsidies may ha ve the opposite effect.  To the contrary, the 
Appellate Body observed that, in general, the effect s of any subsidy can be expected to diminish and 
eventually come to an end with th e passage of time.  Regarding the effects of particular subsidies, the 
Appellate Body noted that the A300 and A310 were launched more than 30 years ago, and that the 
first delivery of an A300 to a customer took place in 1974, while the A310 was first delivered to a customer and put in service in 1985.  The Appellate  Body considered therefore that LA/MSF for the 
A300 and A310 are likely to cause minimal, if an y, adverse effects during the reference period 
2001-2006. 
                                                      
39The European Union did not appeal the first step of the Panel's two-step analysis in relation to the 
easyJet, Air Berlin, Czech Airlines, Air Asia, Iberia, South African Airways, Thai  Airways International, 
Singapore Airlines, and Qantas sales campaigns. WT/AB/17 
Page 37 
 
 
   The Panel's assessment of causation 
The Appellate Body recalled that the United States advanced two theories of causation, 
referred to by the Panel as the "product" and "pri cing" theories of causation.  The Appellate Body 
added that it was concerned in this appeal only with the "product" theory of causation.40  Under this 
theory, the United States argued that the subsidies had an impact on Airbus' ability to launch and 
bring to the market models of LCA that the United States submits would not otherwise have been 
possible at the time and in the way that it  did without the support of those subsidies. 
The Panel contemplated four distinct scenar ios as to what the LCA industry would have 
looked like in the absence of the challenged subsidie s.  In scenarios 1 and 2, Airbus would not have 
entered the market without subsidies, and Boeing  would have been a monopolist (scenario 1) or 
would have competed with another US LCA manufac turer (scenario 2).  Howe ver, the Panel did not 
rule out entry into the market by a non-subsidized Airbus, either in competition only with Boeing 
(scenario 3) or with Boeing and another US LCA manufacturer (scenario 4). 
The European Union argued on appeal that th e Panel's focus was on the third and fourth 
counterfactual scenarios in which a non-subsidized Ai rbus would have entered the market, albeit later 
and with different LCA.  In support, the Europ ean Union referred to the Panel's statement that 
whether it might have been competing at all for those sales, for instance with a different LCA 
developed without subsidies, is questionable, as the lost sales all involved aircraft the Panel had 
concluded would not have been de veloped by Airbus at the releva nt times had earlier models not 
benefited from subsidies.  According to the Europe an Union, the Panel did not resolve the issue it 
considered "questionable", and thus left open whet her, in the four single-aisle sales campaigns at 
issue, a non-subsidized Airbus could have offered "different LCA developed without subsidies".  For 
the European Union, the result of this was that th e Panel was required to complete the counterfactual 
by conducting a comparison of (i) Airbus' actual sales  at issue in the 2001-2006 reference period with 
(ii) a non-subsidized Airbus' ability to secure  these sales in a counterfactual scenario.  The 
European Union appealed the Pane l's failure to conduct this assessme nt and, more particularly, its 
failure to respond to the following five questions:  (i ) what particular aircraft a non-subsidized Airbus 
would have launched;  (ii) what would have been their level of t echnology;  (iii) what would have 
been the prices at which Airbus could have offered t hose aircraft;  (iv) whether there would have been 
any commonality advantage or disadvantage;  and (v) whether there were any non-attribution factors 
that would have prevented Boeing from securing some of the sales. 
The Appellate Body considered that the Eu ropean Union's appeal of the alleged non-
completion of the counterfactual was premised exclusively on scenarios 3 and 4, on which the 
European Union claimed the Panel had focused.  Th e Appellate Body did not agree that this was a 
proper characterization of the Panel's findings.  In  fact, the Panel found that scenarios 3 and 4, in 
which Airbus would have entered the market without  subsidies, were "unlikely".  The Appellate Body 
said instead that if one were to describe the Pane l as having focused on particular scenarios, it would 
have to be scenarios 1 and 2—scenarios the Panel c onsidered "plausible"—in which Airbus would not 
have entered the market without subsidies. 
The Appellate Body observed that, under scenario s 1 and 2, there was no need for the Panel to 
proceed further in its counterfactual analysis.  With out the subsidies, Airbus would not have existed 
under these scenarios and there would be no Airbus airc raft on the market.  None of the sales that the 
subsidized Airbus made would have occurred as Bo eing (or the other US manufacturer envisaged by 
the Panel) would be the only supplier(s) of LCA, it (or they) would have made the sales instead.  
                                                      
40The Panel rejected the United States' "pricing" th eory of causation and the United States did not 
appeal this aspect of the Panel's analysis. WT/AB/17 
Page 38  
 
  Thus, the Appellate Body found that the conclusi on under scenarios 1 and 2 satisfies, without more, 
the "genuine and substantial re lationship" standard articulated  by the Appellate Body in US – Upland 
Cotton .  The Appellate Body considered that this ch ain of reasoning would establish that the subsidies 
are a sufficient cause of the lost sales and the disp lacement and that the additional questions that the 
European Union asserted the Panel should have cons idered would have been moot.  The Appellate 
Body explained that it would be pointless to attemp t delineating the features of something that would 
not have existed without the subsidies. 
The Appellate Body agreed with the Panel that in  the particular circumstances of this case the 
need to fully examine the particular non-attribut ion factors raised by the European Communities 
depended on whether a non-subsidized Airbus would have had any aircra ft available to sell at the time 
the relevant sales were made.  If Airbus had not exis ted without the subsidies, the airlines involved in 
the relevant sales campaigns would have had a li mited choice:  purchase aircraft from Boeing or 
possibly from the other US manufacturer envisaged in  the Panel's counterfactual scenario 2.  The 
Appellate Body said it had difficulty understanding how the non-attribution factors raised by the 
European Communities could have led an airline in those circumstances not to purchase the desired 
aircraft from Boeing or the other US manufacturer.  The Appellate Body recalled that the Panel had 
found that Airbus could not conceivably present in th e LCA market with the same aircraft and at the 
same times as it actually was given its earlier conclusions concerning the cumulative effect of LA/MSF and the other subsidies in dispute on Airb us' ability to launch successive models of LCA as 
and when it did.  Moreover, the Appellate Body s uggested that the Panel could have provided a fuller 
analysis under scenarios 3 and 4.  In particular, th e Panel could have more fully explored how a non-
subsidized Airbus would have de veloped during the more than 35 years that elapsed between 1969, 
when Airbus launched the A300, a nd the end of the reference period.  Nonetheless, looking at the 
Panel's analysis as a whole, the Appellate Body said it understood the Panel to have concluded that, 
under scenarios 3 and 4, a non-subsidized Airbus would have been significantly retarded in its efforts 
to develop LCA that were capable of competing in th e market and that it would not have been able to 
overcome this competitive disadvantage by the end of  the reference period.  For the Appellate Body, 
the Panel's conclusion that a non-subsidized Air bus would not have achieved the market presence it 
did over the period 2001 to 2006, which followed from its views that a non-subsidized Airbus would 
be a much weaker LCA manufacturer with at best  a more limited offering of LCA models, provided 
enough of a basis to establish a "genuine and substant ial relationship of cause and effect" in this case. 
The Appellate Body went on to examine whethe r a fuller consideration of the counterfactual 
scenarios 3 and 4 along the lines of the five questions  that the European Union asserted the Panel was 
required to examine to complete the counterfactual would lead to a different conclusion based on the 
evidence on the record and in the lig ht of the Panel's overall reasoning.  Based on its own analysis, the 
Appellate Body concluded that it did not believe that the Panel would have reached a different 
conclusion had it pursued its counterfactual analysis fu rther along the lines of the five questions raised 
by the European Union.  Therefore, the Appellate Bo dy rejected the European Union's claims that the 
Panel presumed causation and failed to establish the required chain of causation in its assessment of 
whether the displacement and lost sales were the ef fect of the LA/MSF subsidies within the meaning 
of Article 6.3(a), (b), and (c) of the SCM Agreement .  For similar reasons, the Appellate Body rejected 
the European Union's allegations that the Panel fa iled to make an objective assessment of the facts 
under Article 11 of the DSU.  Instead, the Appellate Bo dy found that the Panel's analysis sufficiently 
established a "genuine and substantial" causal  link between the LA/MSF subsidies and the 
displacement and lost sales. 
The European Union also argued that the Panel erred by failing to consider the 
1992 Agreement in evaluating the Unite d States' claims of adverse effects.  The Appellate Body noted 
that the 1992 Agreement does not address the remedies that each party could pursue at the multilateral 
level.  The Appellate Body added that while th e 1992 Agreement provides in Article 10.1 that the 
parties "shall seek to avoid any trade conflict on ma tters covered" by it, it does not say that either WT/AB/17 
Page 39 
 
 
  party could not challenge support provided by the other party to its LCA industry if such support 
caused adverse effects.  Instead, the Appellate Body noted that the fifth recital of the 1992 Agreement 
states that it was the parties' "intention to act w ithout prejudice to their rights and obligations under 
the GATT and under other multilateral agreements ne gotiated under the auspices of the GATT".  The 
Appellate Body further noted that, at the other oral  hearing, the European Union suggested that the 
1992 Agreement delineated the interests of the Un ited States in the area of government measures 
relating to the LCA industry and thereby limited the ability of the United States to assert claims of adverse effects to its interests under the SCM Agreement .  The Appellate Body found, however, that 
the European Union did not provide a basis for concluding that any interests reflected in the 
1992 Agreement exhausted the "interests" of  the United States under Article 5 of the SCM Agreement .  
Nor did the Appellate Body see a basis for the argume nt that a bilateral agreement serves to limit the 
interests of the parties under a subsequent multila teral agreement.  In these circumstances, the 
Appellate Body did not consider that there was a basis for the European Union's allegation that the 
Panel's failure to consider the 1992 Agreement in the context of the assessment of adverse effects 
constitutes an error in the interpretation and application of Article 5(c) of the SCM Agreement  or a 
violation of the Panel's duties under Articles 12.7 and 11 of the DSU. 
 Causation – A380 Lost Sales 
The Appellate Body turned next to examine the European Union's appeal of the Panel's 
finding that a non-subsidized Airbus would not have  been able to launch the A380 in 2000.  The 
Appellate Body noted that, in making this appeal, th e European Union sought to invalidate the Panel's 
consequential finding that the challenged subsidi es caused Boeing to lose significant sales in the 
Emirates Airlines, Qantas, and Singapore Airlin es sales campaigns.  These sales campaigns were won 
by Airbus selling A380 aircraft. 
The European Union claimed that the Panel erre d in its evaluation of various elements which 
supported its finding that "either directly or indirectly, LA/MSF was a necessary precondition for 
Airbus' launch in 2000 of the A380".  In particular, the European Union argued that the Panel erred:  
(i) in its assessment of the A380 bu siness case;  (ii) in its evaluation of Airbus' ability to fund the 
A380 without access to LA/MSF;  and (iii) in its an alysis of Airbus' technological capabilities in the 
absence of LA/MSF. 
The Appellate Body said it did not find that the Pa nel acted inconsistently with Article 11 of 
the DSU in finding that either directly or indirectly, LA/MSF was a necessary precondition for Airbus' launch in 2000 of the A380.  The Appellate Body c onsidered the Panel to have erred in speculating 
about an alleged economic incentive to  overstate sales and in referring to ex post events in its 
assessment of the Airbus A380 business case, because an ex ante  analysis is required.  However, it did 
not believe that these deficiencies invalidated the Pa nel's conclusions in relation to Airbus' ability to 
launch the A380 in 2000 in the absence of LA/MSF.  The Panel's ultimate conclusion that LA/MSF 
was a necessary precondition for Airbus' launc h of the A380 in 2000 was based on multiple 
considerations, such as the A380 business case itsel f, evidence on Airbus' ability to fund the A380 in 
the absence of LA/MSF, and the financial and tech nological impact of LA/MSF provided in relation 
to previous models of Airbus LCA.  The Appella te Body found that, in assessing the credibility and 
determining the probative value of the evidence c oncerning each of these elements, the Panel acted 
within the bounds of its discretion as trier of facts under Article 11 of the DSU, and did not act 
inconsistently with its duty to c onduct an objective assessment of the f acts simply by according to that 
evidence a lesser weight than th at posited by the European Co mmunities.  Thus, based on these 
multiple considerations, the Panel had a sufficiently  objective basis for its ultimate finding that 
LA/MSF was a "necessary precondition" for the launch of the A380 in 2000.  Accordingly, the 
Appellate Body upheld the Panel's finding that "eith er directly or indirectly, LA/MSF was a necessary 
precondition for the launch of the A380 in 2000". WT/AB/17 
Page 40  
 
   Causation for non-LA/MSF subsidies 
The European Union appealed the Panel's fi nding that the effect of non-LA/MSF subsidies 
was to cause displacement of Boeing LCA from the EC and certain third-country markets within the 
meaning of subparagraphs (a) and (b), and significant lost sales within the meaning of subparagraph (c), of Article 6.3 of the SCM Agreement .  These non-LA/MSF subsidies include:  
(i) certain equity infusions and share transf ers from the French and German Governments
41;  
(ii) certain infrastructure measures provided  by French, German, and Spanish authorities42;  and 
(iii) certain RT&D subsidies.43 
In discerning the effect of the subsidies challe nged by the United States in this dispute, the 
Panel first sought to determine separately the effect of LA/MSF, which, according to the 
United States, was the primary subsidy benefiting Ai rbus LCA.  The Panel came to the conclusion 
that LA/MSF was necessary to the launch of each successive model of Airbus LCA, and that the 
individual and cumulative effect of those measures was fundamental to Airbus' ability to launch the 
particular LCA models it launched at the time that it did.  The Panel then turn ed to the United States' 
argument that the non-LA/MSF measures, namely equity infusions, infrastructure measures, and R&TD subsidies, had effects similar to LA/MSF be cause they shifted costs of LCA development from 
Airbus to the governments, giving Airbus an edge , and allowing it to enter the LCA market with new 
LCA models at a pace that would otherwise not have been possible.  The Panel came to the 
conclusion that non-LA/MSF subsidies complemented  and supplemented the "product effect" of 
LA/MSF and, therefore, had the same effect on Ai rbus' ability to launch the LCA it launched at the 
time that it did.  After coming to its conclusion, th e Panel stated that it was appropriate to undertake 
its analysis of the effects of the subsidi es on an aggregated basis in this dispute. 
After reviewing the Panel's analysis, the Appellate  Body stated that, despite its statement that 
it is appropriate to undertake our analysis of the effe cts of the subsidies on an aggregated basis in this 
dispute, the Panel did not actually conduct an aggr egated assessment of the effects of LA/MSF and 
non-LA/MSF subsidies. 
Next, the Appellate Body considered whether it was appropriate for the Panel to have done 
what it actually did, namely to focus its causati on analysis on whether the non-LA/MSF subsidies at 
issue—equity infusions, infrast ructure measures, and R&TD subsidies—complemented and 
supplemented the effects of LA/MSF.  The Appellate Body found that the approach used by the Panel 
is permissible under Article 6.3 of the SCM Agreement , provided that a genuine causal link between 
the non-LA/MSF subsidies and the market phenom ena alleged under Article 6.3 is established .  The 
Appellate Body explained that, having determin ed that each of the LA/MSF measures enabled 
launches of particular Airbus LCA models and ther efore was a substantial cause of the displacement 
and significant lost sales of Boeing LCA, the Panel sought to determine whether non-LA/MSF 
subsidies complemented and supplemented the effe cts of LA/MSF measures, even if each of the non-
                                                      
41These include 1987, 1988, and 1994 capital contributions by the French government to Aérospatiale;  
1992 capital contribution by Crédit Lyonnais to Aérospatiale;  1989 acquisition by the German Kreditanstalt für 
Wiederaufbau  of a 20% equity interest in Deutsche Airbus;  and 1992 transfer of that 20% equity interest to the 
German Messerschmitt-Bölkow-Blohm GmbH . 
42These include the lease of the land at Mühlenberg er Loch industrial site in Hamburg;  Right to 
exclusive use of extended Bremen runway;  Regional gran ts by the German authorities in Nordenham;  Spanish 
government grants and regional grants by the authorities in Andalucia and Castilla-La Mancha in Sevilla, 
La Rinconada, Toledo, Puerto Santa Maria, and Puerto Real. 
43These include grants under Second, Third, Fourth, Fifth, and Sixth EC Framework Programmes;  
1986-1993 R&TD grants by the French Government;  Luftfahrtforschungsprogramm I, II, and III German 
grants;  Grants by Bavarian, Bremen, and Hamburg auth orities;  Civil Aircraft Research and Development and 
Aeronautics Research programmes by the UK Government. WT/AB/17 
Page 41 
 
 
  LA/MSF subsidies, taken individually, would not ha ve enabled launches of particular Airbus LCA 
models, and therefore would not have been a substa ntial cause of the displacement and significant lost 
sales.  Once the Panel determined that LA/MSF s ubsidies were a substantial cause of the observed 
displacement and lost sales, it was not necessary to  establish that non-LA/MSF subsidies were also 
substantial causes of the same phenomena.  Moreove r, the fact that LA/MSF subsidies were the 
substantial cause of adverse effects does not exclude  that non-LA/MSF subsidies had similar effects.  
Rather, it was conceivable that non-LA/MSF subsidi es complemented or supplemented the effects of 
LA/MSF subsidies.  For these reasons, the Appellate Body disagreed with the European Union that 
Articles 5(c) and 6.3 of the SCM Agreement  preclude an affirmative finding that non-LA/MSF 
subsidies cause adverse effects where they complement and supplement the effects of LA/MSF 
subsidies that have been found to be a substantial and genuine cause of adverse effects.  However, the 
Panel's approach did not absolve it from establis hing a genuine causal link between the different 
categories of non-LA/MSF subsidies and Airbus' ab ility to launch and bring to the market its LCA 
models. 
The Appellate Body then examined whether th e Panel had a sufficient basis for concluding 
that each set of the non-LA/MSF subsidies at issue, namely equity infusions, infrastructure subsidies, 
and R&TD subsidies, complemented and supplemented the "product effect" of LA/MSF, in that they 
similarly contributed to Airbus' ability to bring to  the market its models of LCA, thereby causing 
displacement of Boeing LCA from the European Unio n and third-country markets, and significant lost 
sales, under Article 6.3(a), (b), and (c) of the SCM Agreement .   
The Appellate Body upheld the Panel's finding that the equity infusions at issue 
complemented and supplemented the effects of LA /MSF on Airbus' ability to launch and bring to the 
market its models of LCA.  The Appellate Body further concluded that the Panel had a sufficient 
evidentiary basis and provided a sufficiently reasone d and adequate explanation for this finding, and 
therefore acted consistently with its duty to conduct an objective assessment of the matter under 
Article 11 of the DSU.  The Appellate Body reached similar findings with respect to the infrastructure 
measures at issue in this dispute and upheld the Pane l's findings under Article 6.3(a), (b), and (c), and 
found that the Panel had not failed to comply with its duties under Article 11 of the DSU. 
However, the Appellate Body reversed the Pane l's finding that R&D subsidies had the same 
effect.  The Appellate Body considered that such subsidies will not have any impact on Airbus' (and 
consequently on Boeing's) sales unless they provide  Airbus LCA with a competitive advantage in 
relation to Boeing LCA.  Such a competitive advant age, in the Appellate Body's view, must be 
reflected either in technologies incorporated in m odels of LCA actually la unched by Airbus, or in 
technologies that make the production process of those LCA more efficient.  Without specific findings that technology or production processes funded by R& TD subsidies contributed to Airbus' ability to 
launch and bring to the market particular models of LCA, the Panel did not, have a sufficient basis to 
conclude that those subsidies "complemented and supplemented" the "product effect" of LA/MSF. 
7. Recommendations 
Having reversed the Panel's finding that certain A380 LA/MSF contracts amounted to 
prohibited export subsidies, the Appellate Body co nsequently reversed the Panel's recommendation 
pursuant to Article 4.7 of the SCM Agreement  that these subsidies be withdrawn within 90 days.  
However, the Appellate Body observed that, to th e extent the Appellate Body upheld the Panel's 
findings with respect to actionable subsidies that cau sed adverse effects, or such findings had not been 
appealed, the Panel's recommendation pursuant to Article 7.8 of the SCM Agreement  that "the 
Member granting each subsidy found to  have resulted in such adverse effects, 'take appropriate steps 
to remove the adverse effects or … withdraw the subsidy'", stands. WT/AB/17 
Page 42  
 
   Appellate Body Report, Thailand – Cigarettes (Philippines) , WT/DS371/AB/R 
This appeal originated from a complaint brought by the Philippines concerning certain 
customs valuation and fiscal matters affecting cigare ttes imported into Thailand from the Philippines.  
The measures at issue principally concerned Thaila nd's customs valuation regime and certain aspects 
of its value added tax ("VAT") laws.  Thailand's app eal was limited to certain of the Panel's findings 
under Article III:2, Article III:4, and Article X:3(b) of the GATT 1994.   
1. Article III:2, First Sentence, of the GATT 1994 
The Appellate Body first identified the sp ecific measure that the Panel found to be 
inconsistent with Article III:2 of the GATT 1994.  This consisted of an exemption from VAT liability 
for resellers of domestic cigarettes, together w ith the imposition of VAT on resellers of imported 
cigarettes when they do not satisfy prescribed cond itions for obtaining input tax credits necessary to 
achieve zero VAT liability.  The Appellate Body agreed  with the Panel that the Thai measure at issue 
affects the respective tax liability imposed on importe d and like domestic cigarettes.  This is because 
Thailand's measure subjects resellers of importe d cigarettes to VAT when they do not satisfy 
prescribed conditions for obtaining input tax cred its necessary to achieve zero VAT liability, whereas 
resellers of like domestic cigarettes can never be s ubject to any VAT liability by reason of a complete 
exemption from VAT.  Thus, the Appellate Body consid ered that the measure at issue falls within the 
scope of Article III:2, first sentence, of the GATT 1994.   The Appellate Body considered that the fact 
that resellers of imported cigarettes may take ac tion to achieve zero VAT liability under Thailand's 
measure does not preclude a finding of inconsistency with Article III:2,  first sentence.  The Appellate 
Body echoed its statement in Korea – Various Measures on Beef  that "the intervention of some 
element of private choice" does not relieve a Me mber of responsibility under the GATT 1994.  The 
Appellate Body also disagreed with Thailand that allowing the Panel's finding to stand would thwart 
the ability of WTO Members to ensure proper admini stration of their tax regimes, and observed that 
Members remain free to administer their tax re gimes as they see fit so long as they do so in 
conformity with Article III:2. 
Accordingly, the Appellate Body upheld the Pa nel's finding that Thailand acts inconsistently 
with Article III:2, first sentence, by subjecting impor ted cigarettes to internal taxes in excess of those 
applied to like domestic cigarettes. 
2. Article III:4 of the GATT 1994 
Thailand advanced three independent claims for reversal of the Panel's finding under 
Article III:4, namely, that:  (i) the Panel's analys is of "treatment no less favourable" was insufficient 
as a matter of law to support a findin g that Thailand acted inconsistently with Article III:4;  (ii) the 
Panel acted inconsistently with due process and Article 11 of the DSU by accepting and relying upon 
Panel Exhibit PHL-28944, submitted by the Philippines at the last stage of the proceeding, without 
affording Thailand an opportunity to comment on that  evidence;  and (iii) the Panel failed to conduct a 
correct legal analysis in respect of Thailand's defence under Article XX(d) of the GATT 1994 and, 
thereby, deprived Thailand of the opportunity to assert its defence. 
                                                      
44Panel Exhibit PHL-289 consisted of an expert tax option on the issue of whether, as a matter of 
Thai law, VAT registrants reselling domestic cigarettes were  required to report their sales of domestic cigarettes. WT/AB/17 
Page 43 
 
 
  (a) "[T]reatment No Less Favourable" 
With respect to the Panel's interpreta tion of Article III:4 of the GATT 1994, the 
Appellate Body observed that the phrase "treatment  no less favourable" has been interpreted on prior 
occasions as calling for an analysis of whether the measure at issue modifies the conditions of 
competition to the detriment of imported products, and that formal differences in treatment are neither 
necessary nor sufficient to establish an inconsistenc y with Article III:4.  Moreover, the Appellate 
Body recalled that the analysis of whether imported products are treated less favourably requires a careful examination, grounded in close scrutiny of the "fundamental thrust a nd effect of the measure 
itself", including of the implications of the measure for the conditions of competition between imported and like domestic products.  The Appellate Body reiterated that the analysis of the 
implications of the measure in the marketplace ne ed not be based on empirical evidence as to the 
actual effects and that such implications may be discerned from the design, structure, and expected operation of the measure.  The Appellate Body furt her stated that when imported and like domestic 
products are subject to a single regulatory regime  with the only difference being that imported 
products must comply with additional requirements,  this would provide a significant indication that 
imported products are treated less favourably.  Nonethel ess, the Appellate Body reiterated, an analysis 
of less favourable treatment under Article III:4 normally  requires further identification or elaboration 
of the implications of the measure in the marketplace. 
Turning to the Panel's analysis of less favourable treatment in this dispute, the Appellate Body 
noted that the differences in treatment of importe d and like domestic cigarettes under Thai law stem 
from the fact that resellers of imported cigarettes are subject to additional administrative 
requirements, whereas resellers of like domestic cigarettes are exempted therefrom.  This in itself 
provided a significant indication that imported ciga rettes are accorded less favourable treatment.  
Moreover, the Appellate Body disagreed with Tha iland that the Panel based its finding only on a 
"theoretical possibility" that differences in treatment could  potentially  affect the conditions of 
competition to the disadvantage of imported cigarettes.  Rather, the Panel properly recognized that it 
was not required to inquire into the actual  effects of the measure.  The Panel also elaborated on 
certain implications of the additional administrative requirements in the marketplace.  In particular, the Panel referred to an econometric study on switching patterns betwee n imported and domestic 
cigarettes as confirming that the additional admini strative requirements may have a negative impact 
on the conditions of competition of imported ciga rettes.  The Panel further explained that the 
additional administrative requirements can be li nked to the operating costs of businesses, thereby 
affecting the business decisions of cigarette s uppliers.  For these reasons, the Appellate Body 
concluded that the Panel's analysis of less  favourable treatment took proper account of the 
implications of the measure at issue in the marketplace. 
Accordingly, the Appellate Body upheld the Pa nel's finding that Thailand acts inconsistently 
with Article III:4 of the GATT 1994 because it acco rds less favourable treatment to imported 
cigarettes by imposing additional administrative requi rements only on resellers of imported cigarettes. 
(b) Article 11 of the DSU:  The Panel's Treatment of Late-Submitted Evidence 
With regard to the Panel's acceptance of and reliance upon an exhibit submitted late in the 
proceedings by the Philippines, the Appellate Body recalled that due process is a fundamental principle in WTO dispute settlement and that its  protection is a crucial means of ensuring the 
legitimacy and efficacy of a rules-based system of ad judication.  The Appellate Body explained that a 
panel's working procedures should embody and reinforce due process and that the use by panels of 
detailed, standardized working procedures promotes fairness and the protection of due process.  The 
Appellate Body also reiterated that due process wi ll be best served by working procedures that 
provide for "appropriate factual discovery at an ear ly stage in panel proceedings", and that, as a WT/AB/17 
Page 44  
 
  general rule, due process requires that each party be  afforded a meaningful opportunity to comment 
on arguments and evidence submitted by the other pa rty.  At the same time, due process may also 
require a panel to take proper account of other inte rests, including the need for proceedings to be 
conducted in a timely manner and the need for proceed ings to be brought to a close.  Ensuring due 
process requires a balancing of various interests, in cluding systemic interests as well as those of the 
parties, and both general and case-specific considerati ons.  In the view of the Appellate Body, panels 
are best situated to determine how this balance should be struck in any given proceeding, provided 
that they are vigilant in the protection of due process and remain within the bounds of their duties 
under Article 11 of the DSU. 
The Appellate Body disagreed w ith Thailand's allegation that the Panel failed to comply with 
paragraph 15 of its Working Procedures by acceptin g Exhibit PHL-289 at an advanced stage of the 
proceedings without affording Thailand an opportu nity to comment thereon.  The Appellate Body 
considered Exhibit PHL-289 to be factual evid ence necessary for purposes of rebuttal or comments on 
Thailand's responses to questions.  A ccordingly, the Appellate Body ag reed with the Panel that this 
was not the type of evidence that, pursuant to paragraph 15, can be accepted only if the submitting 
party has shown good cause and the other party h as been accorded an opportunity to comment. 
However, the Appellate Body was of the view  that compliance with the Panel's Working 
Procedures was not dispositive of the issue of wh ether the Panel had ensured due process and acted 
consistently with Article 11 of the DSU.
45  The Appellate Body recognized that Exhibit PHL-289 was 
submitted very late in the proceedings, and that the Pa nel could have chosen to refuse to accept it or to 
afford Thailand an opportunity to respond to it.  Taking into account all of the circumstances, 
however, the Appellate Body considered that the Pane l did not fail to protect due process in this case, 
and, therefore, did not fail to comply with its  duty under Article 11 of the DSU to conduct an 
objective assessment of the matter. 
(c) Thailand's Defence under Article XX(d) of the GATT 1994 
Thailand contended that the Panel's statement th at "[a]s addressed in Section VII.F.6(b)(ii) 
above … we found that the Thai VAT laws that Thailand purports to secure compliance with through 
the administrative requirement[s] at issue, were not WTO consistent" reveals that the Panel made a 
fundamental error in rejecting Thailand's defence unde r Article XX(d).  Because Section VII.F.6(b)(ii) 
of the Panel Report contains the Panel's finding th at the additional administrative requirements are 
inconsistent with Article III:4, Thailand argued th at this cross-reference shows that the Panel's 
reasoning on Article XX(d) was circular.  The Phili ppines contended that the Panel's reference to 
Section VII.F.6(b)(ii) was a mere clerical e rror and that the Panel intended to refer to 
Section VII.E.5(b)(ii) of its Report, wh ich dealt with discriminatory taxation. 
The Appellate Body agreed with the par ticipants that the Panel's reference to 
Section VII.F.6(b)(ii) was erroneous.  Read lite rally, the cross reference would mean that the 
additional administrative requirements were not just ified as necessary to secure compliance with those 
same administrative requirements.  The Appellate Bo dy further observed that the Panel's analysis was 
                                                      
45The Appellate Body identified a number of other relevant considerations, including that:  (i) the 
Philippines submitted Exhibit PHL-289 at the earliest possible opportunity following Thailand's submission of 
evidence with its responses to the second set of Panel que stions;  (ii) Thailand did not object to this evidence 
until its comments on the Panel's Interim Report, nearly  seven months after Exhibit PHL-289 was submitted, 
and did not request an opportunity to comment on this ev idence;  (iii) the issue of whether VAT registrants are 
required to report their sales of VAT-exempt domestic cigarettes was contested between the parties throughout the proceedings and eac h adduced several pieces of evidence in suppo rt of its position;  and (iv) Exhibit 
PHL-289 was not the only evidence supporting the Panel's finding that resales of domestic cigarettes need not 
be reported on the monthly tax forms. WT/AB/17 
Page 45 
 
 
  extremely brief and insufficient to allow the Appella te Body to conclude with confidence that, as the 
Philippines suggested, the Panel really intended to re fer to Section VII.E.5(b)(ii), or to any other 
section of its Report.  Accordingly, the Appellate Bo dy reversed the Panel's finding that Thailand did 
not discharge its burden of demonstrating that  the additional administrative requirements are 
necessary to secure compliance with laws or regul ations that are GATT-consistent, within the 
meaning of Article XX(d) of the GATT 1994. 
Thailand further argued that because this "funda mental" error "effectively deprived Thailand 
of its right to assert its Article XX(d) defence" to the finding of inconsistency with Article III:4, the 
Panel's finding under Article III:4 shoul d also be reversed.  The Appe llate Body rejected Thailand's 
request, noting that the analysis of a substan tive obligation in the GATT 1994 necessarily precedes, 
and is distinct from, the further and separate asse ssment of whether a measure is justified under an 
exception.  Instead, the Appellate Body went on to co mplete the legal analysis in respect of Thailand's 
defence under Article XX(d).  The Appellate Body ob served that, in all its submissions before the 
Panel, Thailand devoted only six paragraphs to its  Article XX(d) defence, and provided very limited 
elaboration of the necessary elements of its asserted defence.  The Appellate Body considered that the 
arguments and evidence put forward by Thailand fa iled, on their face, to establish the requisite 
elements of an Article XX(d) defence. 
Accordingly, the Appellate Body found that Thailand had failed to make out a prima facie  
defence and, therefore, failed to establish that th e additional administrative requirements are justified 
under Article XX(d) of the GATT 1994. 
3. Article X:3(b) of the GATT 1994 
The Appellate Body reviewed the Panel's inte rpretation of the terms "administrative action 
relating to customs matters" and "prompt review and correction" as set out in Article X:3(b).  The Appellate Body found no error in the Panel's co nclusion that "administrative action relating to 
customs matters" encompasses "a wide range of acts applying legal instruments having a rational relationship with customs matters".  Next, the Appellate Body found that "prompt review and 
correction" is to be understood as review and correc tion that is performed in a quick and effective 
manner and without delay.  The Appe llate Body found that what is quick or performed without delay 
depends on the particular circumstances of each case,  and therefore, agreed with the Panel that the 
nature of the specific administrative action at issue informs the meaning of th e word "prompt" in the 
particular circumstances of a Member's domestic system.  The Appellate Body added that Article X:3(b) does not prescribe one particular type of review or correction and that the reference to 
"judicial, arbitral or administrative tribunals or proc edures" suggests that there are a variety of ways in 
which a Member may comply with the obligation of  maintaining tribunals or procedures for prompt 
review and correction of administrative action. 
With respect to the application of Article X:3( b) to the specific facts of this dispute, the 
Appellate Body found that the customs guarantee decisi ons at issue are acts of the executive branch of 
government and thus constitute administrative action in the sense of Article X:3(b).  Furthermore, 
because they serve to secure the payment of ultim ate customs duties, these guarantee decisions are 
connected to "customs matters" and thus fall within  the scope of Article X:3(b).  The Appellate Body 
rejected Thailand's argument that guarantee decisions  do not constitute "administrative action" within 
the meaning of Article X:3(b) because they are only  administrative steps of a provisional nature.  
Instead, the Appellate Body found that, in term s of the purpose of securing payment of customs 
duties, the guarantee is the final measu re, not merely an intermediate step. 
The Appellate Body then considered whether the Panel erred in finding that Thailand's 
provision of a right of appeal against the impositi on of a guarantee only when the notice of assessment WT/AB/17 
Page 46  
 
  of final duty liability has been issued does not satis fy the obligation prescribed in Article X:3(b).  In 
the particular circumstances of a guarantee, which is  effective as a security from the time it is given 
until the time when the ultimate cu stoms duties are paid, the Appella te Body considered that, for 
review to be timely and effective, it must be po ssible to challenge the guarantee during the time it 
serves as a security.  In the present case, because guarantee decisions can only be challenged once a 
notice of assessment of final duty lia bility has been issued, Thai law invariably delays review of 
guarantee decisions and thereby shields these decision s from challenge throughout the period in which 
they serve as a security and in which traders are most affected by them.  The Appellate Body concluded that this system does not ensure prompt  review of the relevant administrative action and 
thus found no error in the Panel's conclusion that  Thailand's system for the review of guarantee 
decisions is not compatible with the obligation unde r Article X:3(b) to provide for the prompt review 
of administrative action relating to customs matters. 
Therefore, the Appellate Body upheld the Pa nel's finding that Thailand acts inconsistently 
with Article X:3(b) of the GATT 1994 by failing to ma intain or institute inde pendent review tribunals 
or procedures for the prompt review of guarantee decisions. 
 
 Appellate Body Report, EC – Fasteners (China) , WT/DS397/AB/R 
This appeal originated from a complaint brought by China concerning the treatment provided 
by the European Union under its anti-dumping regulations to exporters and producers from China in the determination of dumping margins and the imposition of anti-dumping duties, as well as, the anti-dumping duties imposed on certain iron or steel f asteners from China and other aspects of that 
investigation.  The specific measur es of the European Union challenged by China were Article 9(5) of 
Council Regulation (EC) No. 1225/2009 (the "Basi c AD Regulation") on protection against dumped 
imports from countries not members of the European Community, and Council Regulation (EC) No. 91/2009 imposing a definitive anti-dumping duty on  imports of certain iron or steel fasteners 
originating in the People's Republic of China.
46   
Under Article 9(5) of the Basic AD Regul ation, an exporter or producer from a WTO 
Member designated as a non-market economy country  ("NME") under EU law, like China, will 
receive a country-wide dumping margin and a country-wide anti-dumping duty unless it can demonstrate that its export activities are sufficiently independent from the State to warrant individual 
treatment. 
The European Union appealed certain of the Panel's findings under Articles 6.2, 6.4, 6.5, 
6.5.1, 6.10, 9.2, and 18.4 of the Anti-Dumping Agreement , Article I:1 of the GATT 1994, and 
Article XVI:4 of the WTO Agreement .  China cross-appealed certain other findings of the Panel under 
Articles 2.4, 3.1, 4.1, 6.1.1, 6.2, 6.4, 6.5, and 6.5.1 of the Anti-Dumping Agreement . 
1. Article 9(5) of the Basic AD Regulation 
The Appellate Body first considered that the Panel's assessment of the meaning and scope of 
Article 9(5) of the Basic AD Regulation was not a "factual matter" excluded from appellate review 
but a matter of legal characterization subject to appella te review according to Article 17.6 of the DSU.  
The Appellate Body observed that the Panel examined  Article 9(5) for the purpose of determining its 
consistency with a number of provisions of the Anti-Dumping Agreement  and the GATT 1994 and 
                                                      
46China's claims with regard to Article 9(5) of th e Basic AD Regulation challenged that measure "as 
such" and "as applied", while its claims with regard to Council Regulation (EC) No. 91/2009 challenged the 
specifics of the Basic AD Regulation "as applied" in the fasteners investigation. WT/AB/17 
Page 47 
 
 
  recalled that when a panel examines the municipal law of a WTO Member in order to determine 
whether that Member has complied with its WTO obligations, that examination is a legal 
characterization by a panel and is, therefore, subj ect to appellate review under Article 17.6 of the 
DSU.47 
The Appellate Body interpreted Article 6.10 of the Anti-Dumping Agreement  as expressing an 
obligation to determine individual margins of dumpi ng, and not merely a preference, as advocated by 
the European Union.  The Appellate Body, unlike th e Panel, considered that sampling is not the only 
exception to the rule requiring the determinati on of individual dumping margins.  The Appellate 
Body, however, affirmed that any other exception mu st be specifically provided for in the covered 
agreements and that it would be incompatible wi th the existence of a requirement to determine 
individual margins if Members were free to depart  from it by unilaterally determining what qualifies 
as an applicable exception.   
With regard to Article 9.2 of the Anti-dumping Agreement , the Appellate Body interpreted 
that provision as requiring investigating authorities to specify an individual duty for each supplier, 
except where this is impracticable, when several supp liers are involved.  Further, the Appellate Body 
considered that the exception in the third senten ce of Article 9.2, which allows investigating 
authorities to name the supplying country concerned if  it is "impracticable" to  name all the suppliers, 
does not allow the imposition of a single country-w ide anti-dumping duty in investigations involving 
NMEs where the imposition of individual duties is  alleged to be "ineffective", but is not 
"impracticable".   
Turning to the facts of the dispute, the Appellate Body observed that the function of the 
Individual Treatment Test ("IT test") in Article 9(5) of the Basic AD Regulation is to determine 
whether exporters or producers are sufficiently dis tinct from the State to overcome the presumption of 
singularity, such that they should be entitled to in dividual treatment pursuant to Article 9(5).  The 
Appellate Body further noted that, by focusing on State interference with exporters and State 
intervention in the economy in general, the IT test  captures broader market distortions in the economy 
and different kinds of interferences by the State than  that of the control or material influence by the 
State over the exporters in respect of pricing and output of a particular like product.  As a 
consequence, the cumulative criteria of the IT test  are likely to result in the denial of individual 
treatment where the relationship between individual e xporters and the State is not such as to justify 
treating the State and one or several exporters as a single entity for the purposes of Articles 6.10 and 9.2 of the Anti-Dumping Agreement . 
Finally, the Appellate Body found that the IT t est is not consistent with Articles 6.10 and 9.2 
of the Anti-Dumping Agreement , because it presumes that in NMEs all the exporters and the State 
constitute a single entity which should receive a single dumping margin and a single anti-dumping 
duty.  The Appellate Body considered that such  a presumption lacks a legal basis in the covered 
agreements and, in particular, that it cannot  be derived from the provisions of Section 15
48 of China's 
Accession Protocol.  The Appellate Body reasoned that , even accepting in principle that there may be 
circumstances where particular exporters and pr oducers from NMEs may be considered as a single 
entity for purposes of Articles 6.10 and 9.2, such singularity cannot be presumed, but must be determined by the investigating authorities on the b asis of facts and evidence submitted or gathered in 
the investigation. 
                                                      
47Appellate Body Report, US – Section 211 Appropriations Act , para. 105. 
48The Appellate Body found that Section 15 of China's Accession Protocol establishes special rules 
regarding the domestic price aspect of price comparability, which relate to the determination of normal value, 
but that it does not contain an open-e nded exception that allows WTO Members to treat China differently for 
other purposes under the Anti-Dumping Agreement and the GATT 1994, such as the determination of export 
prices or individual versus countrywide margins and duties. WT/AB/17 
Page 48  
 
  In the light of the above, the Appellate Body u pheld the Panel's findings that Article 9(5) of 
the Basic AD Regulation was inconsistent "as such", and "as applied" in the fasteners investigation, 
with Articles 6.10 and 9.2 of the Anti-Dumping Agreement  because it conditions the determination of 
individual dumping margins, and the imposition of  individual anti-dumping duties, on the fulfilment 
of an "Individual Treatment Test". 
2. Article I:1 of the GATT 1994 
The European Union argued on appeal that the Pa nel erred in finding that Article 9(5) of the 
Basic AD Regulation is inconsistent with the MFN obligation of Article I:1 of the GATT 1994. 
The Appellate Body observed that Article VI  of the GATT 1994 permits the imposition of 
anti-dumping duties, which may otherwise be incons istent with other provisions of the GATT 1994, 
such as Article I:1.  Therefore, the Appellate B ody reasoned, a preliminary question to be addressed 
before determining whether an anti-dumping duty has been imposed inconsistently with Article I:1 of 
the GATT 1994 is whether the anti-dumping duty has b een imposed consistently with Article VI of 
the GATT 1994.  However, China did not claim before the Panel that Article 9(5) of the Basic AD Regulation was inconsistent with Article VI of th e GATT 1994, and the Panel did not engage with the 
implications of the absence of a claim under Ar ticle VI for a claim under Article I:1 of the 
GATT 1994.  Thus the Panel's reasoning lacked an essen tial step in the sequence of the legal analysis.  
In these circumstances, the Appellate Body did no t consider it appropriate to explore further the 
implications of the absence of a claim under Article VI of the GATT 1994 for a claim under Article I:1 of the GATT 1994 and declined to rule on the Panel's finding that Article 9(5) of the Basic 
AD Regulation is inconsistent with Article I:1 of the GATT 1994.  The Appellate Body declared this 
finding moot and of no legal effect.  The Appellate Body further noted that, having found Article 9(5) 
of the Basic AD Regulation is inconsistent "as such" with Articles 6.10 and 9.2 of the 
Anti-Dumping Agreement , a ruling under Article I:1 of the GATT 1994 was unnecessary for purposes 
of resolving this dispute. 
3. Article XVI:4 of the WTO Agreement  and Article 18.4 of the Anti-Dumping 
Agreement  
As a consequence of its findings under Articles 6.10 and 9.2 of the Anti-Dumping Agreement , 
the Appellate Body also upheld the Panel's finding th at the European Union acted inconsistently with 
Article XVI:4 of the WTO Agreement  and Article 18.4 of the Anti-Dumping Agreement  by failing to 
ensure the conformity of its laws, regulations, an d administrative procedures with its obligations 
under the relevant Agreements. 
4. Articles 4.1 and 3.1 of the Anti-Dumping Agreement  
China appealed the Panel's conclusion that the Eu ropean Union did not act inconsistently with 
Articles 4.1 and 3.1 of the Anti-Dumping Agreement with respect to the definition of the domestic 
industry in the fasteners investigation.  
The Appellate Body began its analysis with  the interpretation of Article 4.1 of the 
Anti-Dumping Agreement , which allows an investigating author ity to define the domestic industry in 
an anti-dumping investigation either as the domestic producers as a whole, or as those producers "whose collective output of the products cons titutes a major proportion of the total domestic 
production".  The Appellate Body found that the cont ext in which the term "a major proportion" is 
situated indicates that the term should be properl y understood as a relatively high proportion of the 
total domestic production.  Given the purpose of defi ning the domestic industry, which is to provide 
the basis on which an authority makes an inju ry determination, and of the requirement under WT/AB/17 
Page 49 
 
 
  Article 3.1 of the Anti-Dumping Agreement  that an injury determination involves an objective 
examination of the impact of the dumped imports, the Appellate Body found that an investigating 
authority must not act so as to give rise to a mate rial risk of distortion in defining the domestic 
industry. 
Turning to the fasteners investigation, the Appellate Body found that, contrary to the 
European Union's view, 25 per cent of total domes tic production, which was the minimum benchmark 
provided under Article 5.4 of the Anti-Dumping Agreement  for assessing whether an anti-dumping 
investigation has sufficient support among domestic producers, could not be presumed to meet the 
requirement of "a major proportion" of the collec tive output of domestic pr oduction under Article 4.1 
of the Anti-Dumping Agreement .  The Appellate Body further found that the domestic industry, as 
defined in this case, did not include those producers who provided the relevant information requested 
by the Commission but were unwilling to be part of the sample that the Commission subsequently 
investigated with regard to some (but not all) in jury factors.  In the Appellate Body's view, the 
Commission's approach shrank the universe of produ cers whose data could have been used for the 
injury determination, and such an approach was not justified by the fragmented nature of the fastener 
industry or practical constraints on obtaining info rmation from domestic producers.  The Appellate 
Body found, therefore, that the Panel erred in finding that the European Union did not act inconsistently with Article 4.1 of the Anti-Dumping Agreement  in defining a domestic industry 
comprising producers accounting for 27 per cent of total estimated EU production of fasteners. 
The Appellate Body, however, found that the Pane l did not err in rejecting China's contention 
that the European Union acted incons istently with Article 3.1 of the Anti-Dumping Agreement  by 
making an injury determination on the basis of a sa mple that was allegedly not representative of the 
domestic industry defined in the investigation.  Th e Appellate Body agreed with the Panel that a 
statistically valid sample was not the only way of ensuring that the sample was representative, and 
that China failed to demonstrate that the Commi ssion could have included more producers in the 
sample.  Furthermore, the Appellate Body found that the Panel did not fail to conduct an objective 
assessment of the facts, as required by Article 11 of the DSU, in finding that the European Union did 
not exclude domestic producers who did not sup port the anti-dumping investigation from the 
definition of the domestic industry.  The Appellate Bo dy also found that the Panel did not misinterpret 
Article 4.1 of the Anti-Dumping Agreement  or act inconsistently with Article 11 of the DSU when 
finding that the European Union did not violate Article 4.1 by excluding from the domestic industry definition those producers who did not make themselves known within 15 days following the 
initiation of the investigation.  Finally, the Appellate  Body found that the Panel did not err in rejecting 
China's consequential claim that by excluding the above producers the European Union acted 
inconsistently with the oblig ation in Article 3.1 of the Anti-Dumping Agreement  to carry out an 
objective examination.  
5. Dumping Determination – Articles 6.4, 6.2, and 2.4 of the Anti-Dumping Agreement  
The European Union and China each appealed the Panel's findings regarding certain aspects 
of the Commission's dumping determination in th e fasteners investigation.  Specifically, the 
European Union appealed the Panel's finding th at the Commission acted inconsistently with 
Articles 6.4 and 6.2 of the Anti-Dumping Agreement  by not providing a timely opportunity for the 
Chinese interested parties to see the product types used by the Commission for purposes of comparing 
export prices and normal value in the dumping determination.  China appealed the Panel's finding that 
the European Union did not act inconsistently with Article 2.4 of the Anti-Dumping Agreement  by 
failing to conduct a "fair comparison" between the export price and the normal value in the dumping 
determination.   WT/AB/17 
Page 50  
 
  The Appellate Body found that Article 6.4 of the Anti-Dumping Agreement , which requires an 
investigating authority to provide timely opportun ities for all interested parties to see all non-
confidential information that is relevant to the presentation of their cases and used by the authority, 
applies to a broad range of information used by the authority for purposes of carrying out a required 
step in an anti-dumping investigation.  The Appella te Body disagreed with the European Union's view 
that the term "information" in Article 6.4 was limited to facts and raw data submitted by other 
interested parties.  Rather, the Appellate Body found that such in formation may take various forms, 
including data submitted by the interested parties and information that has been processed, organized, 
or summarized by the authority.  Moreover, pursu ant to the last sentence of Article 2.4 of the 
Anti-Dumping Agreement , an investigating authority must indicat e to the parties what information is 
necessary to ensure a fair comparison.  The Appella te Body found that, at a minimum, the authority 
must inform the parties of the products with re gard to which it makes the comparison between the 
export price and the normal value within the meaning of Article 2.4.  Without such information, the 
parties would not be able to request adjustments for differences affecting price comparability so as to 
ensure that their interest in a fair comparison is protected. 
The Appellate Body noted the Panel's factual finding that, in the questionnaires sent to the 
Chinese producers in the fasteners investigation, as we ll as to the Indian producer whose prices were 
used to establish the normal value, the Commis sion requested that the information on the product 
under investigation be reported on the basis of categories defined by Product Control Numbers 
("PCNs").  The PCNs consisted of six physical characteristics of fasteners, which were further divided into 38 narrowly defined specifications.  Because the Indian producer did not provide information on 
the basis of the PCNs, the Commission resorted to the use of "product types" defined by two factors 
(strength class and the distinction between standard and special fasteners) for purposes of the comparison between the export price and the normal value.  The Appellate Body further noted the 
Panel's factual finding that the Ch inese producers twice requested clarifi cation in this regard, and were 
not informed of the basis for the price comparis on until one day before the deadline for comments on 
the Commission's final determination. 
Turning to the European Union's appeal, the A ppellate Body rejected the contention that the 
grouping of products into product types was a fact ual determination made by the Commission and 
was not "information" within the meaning of Article 6.4 of the Anti-Dumping Agreement .  The 
Appellate Body agreed with the Panel that it was necessary for the Chinese inte rested parties to be 
informed of the product types, on the basis of wh ich the Commission made the price comparison, so 
as to enable them to request adjustments for diffe rences affecting price comparability and to ensure 
that their interest in a fair comparison was pr otected.  The Appellate Body further found that the 
Panel's finding that the Commission did not provide  a timely opportunity for the Chinese interested 
parties to see the information regarding the product types was supported by the evidence on the record 
and that, consequently, the Panel did not act inconsis tently with Article 11 of the DSU in reaching this 
finding.  The Appellate Body upheld the Panel's finding that the European Union acted inconsistently 
with Article 6.4 of the Anti-Dumping Agreement .  The Appellate Body also upheld the Panel's finding 
that the European Union acted incons istently with Article 6.2 of the Anti-Dumping Agreement  
because the Chinese interested parties could not defe nd their interests as a result of the Commission's 
failure to provide a timely opportunity for them to see the information regarding the product types. 
With regard to China's other appeal, the Appe llate Body found that the Panel erred in its 
application of Article 2.4 by not taking into account the last sentence of Article 2.4, which requires an 
investigating authority to indicate to the parties what information is necessary to ensure a fair 
comparison.  Specifically, the Appellate Body fo und that the Panel conducted its analysis under 
Article 2.4 in isolation from its findings under Arti cle 6.4, in particular the finding that it was 
necessary for the Chinese interest ed parties to be informed of the basis on which the Commission 
made the price comparison in order to ensure that their interest in a fair comparison was protected.  
The Appellate Body therefore found that, by not i ndicating the product types used for purposes of the WT/AB/17 
Page 51 
 
 
  price comparison until very late in the investigati on, the European Union acted inconsistently with 
Article 2.4 by depriving the Chinese producers of the ability to request any adjustments for 
differences that could have affected price comparab ility.  However, the Appellate Body declined to 
uphold the other grounds for China's other appeal.  Specifically, the Appellate Body found that the Panel did not fail to distinguish between an au thority's obligations, under Article 2.4 of the 
Anti-Dumping Agreement , to first evaluate identified differen ces that may potentially affect price 
comparability and to then make ad justments for any differences actually affecting price comparability.  
The Appellate Body also found that the Panel did not act inconsistently  with Article 11 of the DSU by 
finding that the Commission was not required to make  adjustments for every physical characteristic 
identified in the PCNs.  Finally, the Appellate Bo dy found that the Panel did not misinterpret or 
misapply Article 2.4 of the Anti-Dumping Agreement  by dismissing China's unsubstantiated 
contention that the Commission was required to ma ke adjustments for alleged quality differences 
between the Indian and Chinese fasteners under investigation. 
6. Confidential Treatment of Information 
The European Union appealed the Panel's findi ng that the Commission violated Article 6.5.1 
of the Anti-Dumping Agreement by failing to ensure that statements submitted by two Italian 
producers explaining why confidential inform ation was not susceptible of summary were 
"appropriate".  The European Union argued that Article 6.5.1 imposes only a "best endeavours" 
obligation on authorities with regard to a party' s submission of a "statement of the reasons why 
summarization is not possible" and that the Commission complied with this obligation. 
The Appellate Body found that Article 6.5. 1 is mandatory and requires investigating 
authorities to ensure that, in the exceptional circum stances in which confidential information is not 
susceptible of summary, a statement of reasons is provided explaining why summarization is not 
possible.  The Appellate Body f ound that neither of the statemen ts submitted by the two EU producers 
indicated an "exceptional circumstance" or explai ned why summarization of particular information 
was not possible.  Therefore, the Appellate Body upheld the Panel's finding that the European Union 
acted inconsistently with its oblig ations under Article 6.5.1 of the Anti-Dumping Agreement . 
The European Union appealed the Panel's finding that the European Union acted 
inconsistently with its obliga tions under Article 6.5 of the Anti-Dumping Agreement by treating 
"product type" information submitted by the analog ue country producer, the Indian company Pooja 
Forge, as confidential without "good cause" being show n.  On a procedural basis, the European Union 
argued that this claim was not within the Panel's terms of reference.  In the alternative, the 
European Union claimed that the Panel violated its obligations under Article 11 of the DSU, and 
deprived the European Union of its due process ri ghts, when it "made the case" for China through its 
questioning during the panel proceed ings.  On the substance of the claim, the European Union argued 
it was not obliged to require Pooja Forge to show "good cause", because this requirement applies to 
"interested parties" as defined in Article 6.11 of the Anti-Dumping Agreement , and analogue country 
producers do not fall within those explicitly listed in that definition. 
The Appellate Body found that China's claim th at the European Union violated Article 6.5 by 
treating "product type" informati on submitted by Pooja Forge as confidential without a showing of 
"good cause", fell within the scope of China's pa nel request because it contained the phrase "the 
[European Union] wrongly treated information as conf idential".  The Appellate Body then analyzed 
China's submissions before the Panel,  and the Panel's treatment of this claim.  In the Appellate Body's 
view, China's arguments focused on the lack of "pro duct type" information contained in Pooja Forge's 
non-confidential questionnaire response, rather than  the lack of a "good cause" showing having been 
made for its confidential treatment.  The Appellate  Body found that the first and only time China 
articulated an argument under Article 6.5 regarding the lack of a "good cause" showing for WT/AB/17 
Page 52  
 
  confidential treatment was in response to the Panel's qu estioning after the first meeting of the parties.  
The Appellate Body concluded that  China had failed to substantiate  its claim before the Panel under 
Article 6.5, and therefore reversed the Pane l's finding that the European Union had acted 
inconsistently with its obliga tions under Article 6.5 of the Anti-Dumping Agreement . 
7. Non-Disclosure of the Identity of the Complainants 
China appealed the Panel's finding  that the European Union did not act inconsistently with its 
obligations under Article 6.5 of the Anti-Dumping Agreement  by treating the identity of the 
complainants and the supporters of the complaint as confidential because of the risk of commercial 
retaliation by customers who also purchased fastener s from Chinese suppliers.  China argued that the 
Panel erred in its interpretati on and application of Article 6.5 when it found that a "purely 
hypothetical" retaliation could constitute "good cause" , and when it found that "good cause" had been 
shown without any evidence presented to support a "m ere assertion".  China further argued that the 
Panel erred in finding that the disclosure of th e sampled producers' identities did not undermine the 
"good cause" alleged for the confidential treatment of the complainants' and supporters' identity, and 
that the Panel impermissibly shifted the burden of pr oof to China, in violation of Article 6.5 of the 
Anti-Dumping Agreement  and Article 11 of the DSU.  As a preliminary matter, the Appellate Body 
found that China's claim under Article 11 of the DSU was not included in its Notice of Other Appeal, and therefore was not properly before it.   
The Appellate Body found that, in determin ing whether "good cause" has been shown, an 
investigating authority is required to strike a ba lance between the proprietary interests of those 
seeking protection of information and the transpar ency and due process that should be accorded to 
parties that require access to information to defend their interests.  In reviewing China's arguments, 
the Appellate Body considered that they did not ra ise issues of legal interpretation and application; 
instead, these arguments challenged the Panel's asse ssment and weighing of the evidence.  As China 
had not properly raised a claim under Article 11 of the DSU challenging the Panel's assessment of 
whether good cause had been shown for the confidentia l treatment of the comp lainants' identity, the 
Appellate Body declined to disturb the Panel's c onclusions.  The Appellate Body therefore upheld the 
Panel's finding that the European Union had not acted inconsistently with Article 6.5 of the 
Anti-Dumping Agreement in not disclosing the identity of the complainants and supporters of the 
complaint. 
The European Union argued on appeal that the Pa nel acted inconsistently with Article 6.2 of 
the DSU when it found that China's claim concer ning the non-disclosure of the identity of the 
complainants and supporters under Articles 6.2 and 6.4 of the Anti-Dumping Agreement  was within its 
terms of reference.  According to the European Union, Articles 6.2 and 6.4 of the Anti-Dumping 
Agreement  contain multiple obligations that apply thr oughout an anti-dumping investigation, and the 
Panel therefore erred in finding that "the nature" of  these articles is such that the mere listing of them 
in the panel request was sufficient to cover a ny claims that China subsequently brought.   
The Appellate Body found that China's claim with  respect to the confidential treatment of the 
identity of the complainants and supporters was not mentioned in China's panel request.  The 
Appellate Body further found that the obligations c ontained in Articles 6.2 and 6.4 are broad in scope, 
and that the mere listing of these provisions was not sufficient to "present the problem clearly" as 
required under Article 6.2 of the DSU.  On these grounds, the Appellate Body  reversed the Panel's 
finding that China's claims under Articles 6.2 and 6.4 we re within its terms of reference, and declared 
moot the Panel's finding that the European Union did not act inconsistently with its obligations under 
Articles 6.2 and 6.4. WT/AB/17 
Page 53 
 
 
  8. Time-Limit for Submission of the Market Economy Treatment/Individual Treatment 
("MET/IT") Claim Form 
China appealed the Panel's finding  that the European Union did not act inconsistently with its 
obligations under Article 6.1.1 of the Anti-Dumping Agreement  when it allowed Chinese exporters 
less than 30 days to reply to the MET/IT Claim Form .  China argued that the proper interpretation of 
the term "questionnaires" in Article 6.1.1covers all substantial information requests that warrant 
verification visits, and which would not prevent the authorities from completing the investigation 
within the required time period. 
Based on the context provided by Articl es 6.1, 6.2, 5.10, and 6.14 of the 
Anti-Dumping Agreement , the Appellate Body found that the "questionnaires" referred to in 
Article 6.1.1 are a particular type of document dist ributed early in an investigation, and through which 
the investigating authority solicits a substantial am ount of information relating to the key aspects of 
the investigation, that is, dumping, injury, and ca usation.  The Appellate Body also noted that 
Article 6.1 requires that parties be given "ample  opportunity" to present in writing all the evidence 
they consider relevant to the investigation.  Ho wever, the Appellate Body found that the purpose of 
the MET/IT Claim Form was to determine whethe r individual exporters could satisfy the market 
economy treatment or individual treatment tests,  and it did not solicit substantial amounts of 
information regarding the key aspects of an investiga tion, that is dumping, injury and causation.  On 
this basis, the Appellate Body found that the M ET/IT Claim Form was not a "questionnaire" within 
the meaning of Article 6.1.1 of the Anti-Dumping Agreement.   It also upheld the Panel's finding that 
the European Union did not act inconsistently with  its obligations under Article 6.1.1 when it gave 
Chinese exporters and producers less than 30 days to submit the MET/IT Claim Form. 
Accordingly, the Appellate Body recommended th at the DSB request the European Union to 
bring its measures, found in the Appellate Body Re port and in the Panel Report as modified, to be 
inconsistent with the Anti-Dumping Agreement  and the WTO Agreement , into conformity with its 
obligations under those Agreements. 
 
 Appellate Body Report, US – Tyres (China) , WT/DS399/AB/R 
This appeal originated from a complain t brought by China with respect to the 
WTO-consistency of a safeguard  measure imposed by the United States on imports of certain 
passenger vehicle and light truck tyres from China.  The measure at issue was imposed under Section 16 of China's Accession Pr otocol, which provides other WTO Members with the right to 
impose safeguard measures on imports from China alone  when such imports are "increasing rapidly" 
so as to be a "significant cause" of material injury to the domestic industry.
49  The Appellate Body 
explained that an analysis of the particular obliga tions set out under Section 16 of the Protocol must 
begin with, and focus upon, the actual language used in the Protocol, including the phrases 
"increasing rapidly" and "a significant cause". 
1. Increase in Imports 
The Appellate Body began by addressing China's cl aim that the Panel erred in finding that the 
United States International Trade Commission (the "USITC") properly determined that imports from 
                                                      
49Section 16 of China's Accession Protocol sets out the conditions  for the imposition of a product-
specific safeguard measure on imports from China and provides that application of this transitional safeguard 
mechanism shall be termin ated 12 years after the date of Chin a's accession to the WTO, that is, in 
December 2013. WT/AB/17 
Page 54  
 
  China were "increasing rapidly" within the meaning of Paragraph 16.4 of China's Accession Protocol.  
Based on its interpretative analysis of the term "increasing rapidly", the Appellate Body found that 
imports from China will be "increasing rapidly" with in the meaning of Paragraph 16.4 when they are 
increasing at great speed or swiftly, either in relativ e or absolute terms.  The Appellate Body added 
that such increases in imports must be occurring over a short and recent period of time, and must be of 
a sufficient absolute or relative magnitude to be a si gnificant cause of material injury to the domestic 
industry. 
The Appellate Body rejected China's argumen t that the use of the present continuous 
"increasing" in Paragraph 16.4 required the USIT C to focus on import increases during the most 
recent past, in this case the year 2008.  The Appe llate Body agreed with China that the present 
continuous "are increasing" connotes an upward trend in imports that continues at the present time.  
However, the Appellate Body reasoned that inves tigating authorities do not have access to real-time 
import data, and therefore have to examine import tr ends during a sufficiently recent period, which is 
used as proxy for current imports.  For the Appellate Body, once the period of investigation is sufficiently recent to provide a reasonable indicatio n of current import trends, the use of the present 
continuous "are increasing" does not imply that the i nvestigating authority's analysis should be limited 
to import data at the very end of the period of inv estigation.  Moreover, the Appellate Body noted that 
both the Panel and the USITC separately examined ab solute and relative import data for the last two 
years of the period of investigation, including 2008. 
The Appellate Body also dismissed China' s argument that the term "rapidly" in 
Paragraph 16.4 required investigating authorities to focus their analysis on the rates of increase in 
subject imports.  For the Appellate Body, the text  of Paragraph 16.4 requires that imports—and not 
the rates of increase imports—be "increasing rapidly" .  The Appellate Body added that a decline in 
the annual rate of increase in subject imports does not preclude a finding that they are "increasing rapidly", particularly because Para graph 16.4 admits of import incr eases in both absolute and relative 
terms.  In any event, the Appellate Body consider ed that both the Panel and the USITC gave sufficient 
consideration for the rates of increase in im ports during the period of investigation. 
Finally, the Appellate Body also disagreed w ith China that the term "increasing rapidly" 
required investigating authorities to assess the most re cent rates of increases in imports relative to the 
rates of increase earlier in the five-year 2004-2008 pe riod of investigation.  Having found earlier that 
Paragraph 16.4 did not require a focus on the rates of  increase in subject imports, and that a decline in 
the rate of increase in subject imports in 2008 did not preclude a finding that they were "increasing 
rapidly", the Appellate Body considered that th e Panel was not required to compare the rates of 
import increases in 2008 with the rates of increase in  earlier periods.  The Appellate Body added that 
both the Panel and the USITC gave a ppropriate consideration to absolute  and relative rates of increase 
in the two last years of the period of investigation. 
On this basis, the Appellate Body upheld the Panel's finding that the USITC did not fail to 
properly evaluate whether imports from China met th e specific threshold under Paragraph 16.4 of the 
Protocol of "increasing rapidly". 
2. The Meaning of "A Significant Cause" 
China argued that the Panel erred in its interp retation of Paragraph 16.4 in failing to give 
meaning to the term "significant".  China contended that the inclusion of the term "significant" to 
qualify the term "cause" indicated that Paragraph 16.4 of the Protocol imposed a more rigorous 
causation standard than other WTO agreements, which simply refer to "cause".  According to China, 
Paragraph 16.4 requires a "particularly strong, subs tantial and important cau sal connection" between 
rapidly increasing imports and material injury to the domestic industry.   WT/AB/17 
Page 55 
 
 
  The Appellate Body noted that the ordinary mean ing of "significant" is "important, notable".  
The term "cause", in turn, has been interpreted by the Appellate Body in other contexts as denoting a 
relationship between at least two elements, whereby the first element has "bro ught about, produced or 
induced" the existence of the second element.  Thus , the Appellate Body opined that Paragraph 16.4 
suggested that rapidly increasing imports must be an "important" or "notable" factor in "bringing 
about, producing or inducing" material injury to the domestic industry.  The Appellate Body added 
that Paragraph 16.4 stipulates that rapidly increasing imports from China must be "a" significant cause of material injury to the domestic industry.  Fo r the Appellate Body, this suggested that rapidly 
increasing imports may be one of several causes th at contribute to produc ing or bringing about 
material injury to the domestic industry.  However, the inclusion of the term "significant" to qualify "a 
cause" indicated to the Appellate Body that rapi dly increasing imports must be more than a mere 
contributing cause to the material injury of the dom estic industry.  Rather, the contribution made by 
rapidly increasing imports to the material injury of the domestic industry must be important or 
notable. 
The Appellate Body rejected China's argumen t that Paragraph 16.4 required a higher degree 
of causality between rapidly increasing imports and mate rial injury to the domestic industry than other 
WTO agreements.  The Appellate Body reasoned that  China's argument in this respect was premised 
on other WTO agreements requiring th at imports be no more than "a cause" of the requisite level of 
injury.  However, the Appellate Body has made clea r that the causation standard contained in other 
WTO agreements required a "genui ne and substantial relationshi p of cause and effect" between 
subject imports and the requisite level of injury.  For the Appellate Body, such "genuine and 
substantial" causal link implies a higher degree of causality than subject imports being merely "a 
cause" of injury, as suggested by China. 
Thus, the Appellate Body found that the term "s ignificant" describes the causal relationship or 
nexus that must be found to exist between rapi dly increasing imports and material injury to the 
domestic industry, which must be such that ra pidly increasing imports make an "important" or 
"notable" contribution in bringing about material in jury to the domestic industry.  Such assessment 
must be carried out on the basis of the obj ective factors listed in the second sentence of 
Paragraph 16.4, such as the volume of imports, the effect of imports on prices, and the effect of imports on the domestic industry. 
The Appellate Body disagreed with China that Paragraph 16.4 required investigating 
authorities to "refine" their causation analysis to  meet the distinct "significant cause" standard 
reflected therein.  In particular, the Appellate Body rejected China's argument that Paragraph 16.4 
required a "higher degree of competitive overlap" a nd a strict correlation between the "degrees of 
change" in subject imports and injury factors.  The Appellate Body considered that the analysis of the 
conditions of competition and of correlation betwee n upward trends in impor ts and downward trends 
in injury factors were mere "analytical tools" th at may assist investigating authorities in determining 
whether rapidly increasing imports are "a significant cause" of material injury to the domestic industry 
under Paragraph 16.4.  As such, neither of these an alytical tools is dispositive of the question of 
whether rapidly increasing imports are "a significant cause" of material injury.  For the Appellate Body, China's arguments in this respect  were predicated on Paragraph 16.4 requiring a 
"particularly strong, substantia l and important" causal link between rapidly increasing imports and 
material injury to the domestic industry.  However, properly read, Paragraph 16.4 requires 
investigating authorities to establish that rapidly in creasing imports make an important contribution in 
bringing about material injury to the domestic industry.  Thus, according to the Appellate Body, 
investigating authorities have the discretion to calib rate their analyses of the conditions of competition 
and of correlation to the particular circumstances of  the case at hand, so long as the analysis provides 
a sufficiently reasoned and adequate explanation that rapidly increasing imports are a "significant 
cause" of material injury to the domestic industry. WT/AB/17 
Page 56  
 
  The Appellate Body also found that an investig ating authority can make a determination as to 
whether subject imports are a significant cause of ma terial injury only if it properly ensures that 
effects of other known causes are not improperly attri buted to subject imports and that those effects 
do not suggest that subject imports are in fact on ly a "remote" or "minimal" cause, rather than a 
"significant" cause of material injury to the domestic  industry.  The Appellate Body explained that the 
significance of the effects of rapidly increasing import s must therefore be assessed in the context of 
other known causal factors.  The Appellate Body added that the extent of the analysis that is required 
will depend on the impact of other causes that ar e alleged to be relevant and the facts and 
circumstances of the particular case. 
3. Conditions of Competition 
The Appellate Body addressed China's specific claims of error in relation to the Panel's 
review of the USITC's causation analysis, beginn ing with China's claim that the Panel (and the 
USITC) erroneously disregarded the existence of  "attenuated competition" between subject imports 
and domestic tyres in the US market.  China argued that 60% of domestic production went to the tier 1 of the replacement market and to the original equipment manufacturers ("OEM") market, where 
they faced "virtually no competition" from Chin ese imports, which were concentrated on the lower-
end tiers 2 and 3 of the replacement market.
50 
The Appellate Body initially noted that the Pa nel erroneously relied on views expressed by 
the dissenting USITC commissioners  in finding that the USITC properly determined that were no 
clear dividing lines between tiers 1, 2 and 3 of the replacement market.  The Appellate Body 
cautioned that under Article 11 of the DSU the Panel was required to assess whether the USITC 
provided a reasoned and ade quate explanation for its affirmative finding of market disruption, and that 
the views of the dissenting commissioners were not a part of that determination.  However, the Appellate Body considered that this error did not invalidate the Panel's ultimate conclusion that 
competition between Chinese and domestic tyres in th e replacement market was "significant".  For the 
Appellate Body, this conclusion was reasonably su pported by the Panel's reasoning that the data 
before the USITC suggested that both US and Ch inese tyres had a "significant presence" in tiers 2 
and 3 of the replacement market.  
Although the Appellate Body considered that the Panel could have provided a more thorough 
analysis as to why the "increasing degree of comp etition" in the OEM market did not require the 
USITC to dismiss competition in that market as "n egligible", the Appellate Body considered that the 
"significant presence" of both Chinese and US tyres in tiers 2 and 3 of the larger replacement market, 
combined with a limited - but growing - presence of  Chinese tyres in tier 1 of the replacement market 
and the smaller OEM market sufficiently supported the Panel's conclusion that the USITC did not err 
in finding that there was significant competition betw een subject imports and domestic tyres in the US 
market. 
Accordingly, the Appellate Body upheld the Pa nel's finding that the USITC did not err in its 
assessment of the conditions of competition in the US market. 
                                                      
50Both the Panel and the USITC accepted that the repl acement market generally could be divided into 
three segments or "tiers", differentiated on the basis of brand and prices.  Tier 1 consisted of major, flagship 
premium brands;  tier 2 consisted of secondary, associate, or foreign producer brands;  and tier 3 included 
private label, mass market, lesser-known brands, and non-branded tyres. WT/AB/17 
Page 57 
 
 
  4. Correlation 
The Appellate Body next assessed China's claim that the Panel erred in finding that the 
USITC was entitled to rely on an "overall coinci dence" between upward movements in subject 
imports and downward movements in injury factors in  finding that subject imports were a "significant 
cause" of material injury to the US industry.  
The Appellate Body rejected China's argumen t that the Panel failed adequately to assess a 
"disconnect" in trends between 2007 and 2008, when the rate of increases in imports declined, while 
injury factors such as production, shipments and sales nonetheless continued to deteriorate.  The 
Appellate Body recalled its earlier conclusion that Paragraph 16.4 did not require strict correlation 
between the magnitude  of upward import trends and the magnitude  of downward movements in the 
performance indicators of the domestic industry.  Th e Appellate Body further reasoned that the 2007 
and 2008 data compiled by the USITC supporte d its overall causation finding, because imports 
continued to increase in the period (albeit at a sl ower pace), and injury indicators continued to 
deteriorate.  
Furthermore, the Appellate Body found that  the Panel did not err in finding correlation 
between increases in subject imports and the prices  and profitability of the domestic industry.  The 
Appellate Body disagreed with China that improve ments in the cost of goods sold ("COGS")/sales 
ratio and in the profitability of the US industr y in 2007 undermined the Panel's finding of overall 
correlation.51  The Appellate Body reasoned that the fact that discrete injury factors improved in one 
year of the reference period did not undermine the Panel's overall finding of correlation, particularly 
where such injury factors deteriorated in all other years of the period of investigation, and all other 
injury factors deteriorated in every year of the period of investigation.  
On this basis, the Appellate Body upheld the Panel's finding that the USITC's reliance on an 
overall coincidence between an upward movement in  subject imports and a downward movement in 
injury factors reasonably supported the USITC's find ing that rapidly increasing subject imports were a 
significant cause of material injury to the domestic  industry within the meaning of Paragraph 16.4 of 
the Protocol. 
5. Other Causes of Injury 
The Appellate Body found that some form of non-attribution analysis is inherent  in the 
establishment of a causal link between rapidly increasi ng imports and material injury to the domestic 
industry.  The Appellate Body recalled that Para graph 16.4 requires that rapidly increasing imports 
from China make an important contribution to bringing about material injury to the domestic industry.  
According to the Appellate Body, this determinati on can only be made if an investigating authority 
properly ensures that effects of other known causes ar e not improperly attributed to subject imports 
and do not suggest that subject imports are in fact only a "remote" or "minimal" cause, rather than a 
"significant" cause of material injury to the domestic  industry.  The Appellate Body explained that the 
significance of the effects of rapidly increasing import s must therefore be assessed in the context of 
other known causal factors.  The Appellate Body adde d that the extent of the analysis of other causal 
factors that is required will depend on the impact of  the other factors that are alleged to be relevant 
and the facts and circumstances of the particular case.  In some cases, the investigating authority may 
                                                      
51The COGS/sales ratio expresses the portion of total sales value that is  accounted for by costs directly 
associated with making a particular goo d.  A higher COGS/sale ratio therefor e indicates that such costs make up 
a higher portion of sales value, leaving a smaller margin for selling, general and administrative expenses, and 
profits.  The COGS/sales ratio therefore provides an indi cation of whether the sales value is sufficient to cover 
the production costs to produc e the goods that are sold. WT/AB/17 
Page 58  
 
  need to perform a detailed analysis of other causes of injury to support adequately a conclusion that 
subject imports are nonetheless a "significant cause" of injury.  In other cases, a less extensive 
analysis of other factors may suffice to support ad equately a conclusion that subject imports are a 
"significant cause" of injury. 
China argued that the Panel's focus in this case was on identifying some "residual effect" from 
imports, rather than on assessing how different factor s may be affecting the condition of the domestic 
industry, and whether any remaining effects attri butable to imports from China could properly be 
deemed to be a "significant cause" of material injury .  According to China, u nder the Panel's standard, 
any injurious effects—including "residual effects" —could constitute a "significant cause".  Although 
the Appellate Body agreed with Chin a that certain statements made by the Panel, when considered in 
isolation, might suggest that the Panel was in fact examining whether s ubject imports had "any" 
injurious effects, rather than "significant" effect s, the Appellate Body noted that the Panel had, inter 
alia, rejected the proposition that even a "minimal ca use" of injury might be a "significant cause" of 
injury.  Moreover, in addressing China's claims re garding the USITC's assessment of other causes of 
injury, the Panel had explained that it had "revie wed record evidence indicating that subject imports 
from China had significant  injurious effects, independent  of any injurious effects of other causal 
factors".  In the light of these statements, the A ppellate Body considered that the Panel correctly 
articulated the standard of review appropriate for assessing the USITC's analysis of other possible causes of injury and ensuring that injury caused by those other factors is not improperly attributed to 
subject imports. 
6. The Panel's Findings relating to the USITC's Consideration of Other Causes of Injury 
China attributed the injury suffe red by the US domestic industry, at least in part, to three 
causal factors other than subject imports from Chin a, namely:  (i) the domestic industry's business 
strategy of shifting focus to higher-value products for its US production;  (ii) demand declines in the 
market;  and (iii) non-subject imports.  In China' s view, the Panel erred in finding that the USITC 
properly considered and addressed the effects of these other factors that were allegedly causing injury 
to the industry. 
The Appellate Body found that China failed to establish that the USITC improperly attributed 
injury caused by other factors to subject imports fro m China.  In particular, the Appellate Body found 
that the Panel did not err in its review of the US ITC's analysis of the US industry's business strategy 
and the reasons for US plant closures that occurre d between 2006 and 2008; did not err in concluding 
that the USITC properly found that subject imports had injurious effects independent of changes in 
demand; and did not improperly attri bute to subject imports the effect s of imports from third countries 
other than China.  The Appellate Body further found that the collective injuriou s effects of these other 
causes did not suggest that subject imports were not "a  significant cause" of material injury to the US 
domestic industry.  Finally, the Appellate Body fou nd that the Panel did not act inconsistently with 
Article 11 of the DSU in its review of the USITC's causation analysis. 
Because the United States was not found to have  acted inconsistently with any of its WTO 
obligations, the Appellate Body made no recommendati on to the DSB pursuant to Article 19.1 of the 
DSU. 
 WT/AB/17 
Page 59 
 
 
   Appellate Body Reports, Philippines – Distilled Spirits , WT/DS396/AB/R, 
WT/DS403/AB/R 
This appeal originated from two complain ts brought by the European Union and the 
United States with respect to the WTO-consistenc y of the Philippines excise tax on distilled spirits.  
Under the Philippines' excise tax system, distilled sp irits made from certain designated raw materials 
are subject to a lower specific flat tax rate.  Conversely, distilled spirits made from non-designated 
raw materials are subject to tax rates that are 10 to 40 times higher than th ose applied to distilled 
spirits made from designated raw materials.  De facto , all domestic distilled spirits are made from one 
of the designated raw materials - sugar cane - and are therefore subject to the lower tax rate.  The vast 
majority of imported distilled spirits are made from non-designated raw materials, and are therefore 
subject to the higher taxes. 
Before the Panel, the European Union and th e United States claimed that the Philippines' 
excise tax was inconsistent with Article III:2, first and second sentences, of the GATT 1994.  The 
Panel found that, through its excise tax, the Phili ppines subjects imported distilled spirits made from 
non-designated raw materials to internal taxes in ex cess of those applied to "like" domestic distilled 
spirits made from the designated raw materials, thus  acting in a manner inconsistent with Article III:2, 
first sentence, of the GATT 1994.  The Panel also  found that the European Union's claim under the 
second sentence of Article III:2 was made in the a lternative to its claim under the first sentence 
thereof, and therefore only examined and made findi ngs in relation to the Un ited States' claims under 
Article III:2, second sentence, of the GATT 1994.  In  the complaint by the United States, the Panel 
found that the Philippines acted inconsistently  with Article III:2, second sentence, by applying 
dissimilar taxes on imported distilled spirits and on "directly competitive or substitutable" domestic 
distilled spirits, so as to afford protection to Philippine production of distilled spirits.  
On appeal, the Philippines challenged the following findings by the Panel.  First, the 
Philippines appealed the Panel's interpretation of th e term "like products" under Article III:2, first 
sentence, of the GATT 1994 and argued that the Pane l failed to apply the appropriate standard when 
assessing the products' physical characteristics, cons umer tastes and habits, and the products' tariff 
classification.  Second, the Philippines appealed the Panel's interpretation and application of the terms 
"directly competitive or substitutable" and "so as to afford protection" in respect of Article III:2, 
second sentence, of the GATT 1994 and argued that th e Panel failed to apply the correct standard 
when assessing the competiti on in the Philippines market.  Lastly , the Philippines contended that the 
Panel acted inconsistently with Article 11 of the DSU, because it failed to conduct an objective 
assessment of the matter before it when examining the evidence relating to the physical characteristics 
of the products at issue, their tariff classification, the results of scientific studies, and the segmentation of the market. 
1. Article III:2, First Sentence, of th e GATT 1994 and Article 11 of the DSU 
On appeal, the Appellate Body conducted a sep arate review of the Panel's findings that:  
(i) each type  of imported distilled spirit made from non-d esignated raw materials (i.e. gin, brandy, 
vodka, whisky, and tequila) is "like" the correspondi ng type of domestic spirits made from designated 
raw materials;  and (ii) all distilled spirits at issue in the present dispute are "like" products.  In so 
doing, the Appellate Body reviewed the Panel's as sessment of "likeness" by examining the factors 
considered by the Panel—in particular, th e products' physical characteristics, Philippine 
consumers' tastes and habits, tariff classification, and relevant internal regulations.  The similarity in 
end-uses was not contested. WT/AB/17 
Page 60  
 
  Beginning with the products' physical characteristi cs, the Appellate Body disagreed with the 
Philippines that any physical difference between produc ts, even if not perceptible to consumers, is 
sufficient to disqualify those products from being "like" within the meaning of Article III:2, first sentence, of the GATT 1994.  The Appellate Body reasoned that none of the "likeness" criteria—
physical characteristics, end-uses, consumers' t astes and habits, and tariff classification—plays an 
overarching role, and that even pr oducts that present certain physical differences may still be 
considered "like" if the nature and extent of  their competitive relationship justifies such a 
determination.  The Appellate Body further disagreed  with the Philippines that the Panel applied the 
wrong standard when it relied on a "perceptible diffe rences test" in assessing the products' physical 
characteristics.  The Appellate Body considered that the "perceptibility" of differences was highly 
relevant to the overall analysis of "likeness" under Article III:2 of the GATT 1994.  The 
Appellate Body observed that, while "perceptibility" r eaches beyond the mere physical characteristics 
of the products, and concerns also consumers' tastes and habits, the "likeness" criteria are not mutually 
exclusive, and certain elements, such as the per ceptibility of physical differences, may fall under more 
than one criterion.  The Appellate Body observed that , in spite of differences in chemical composition 
and organoleptic properties be tween "sugar-based" and "non-suga r-based" distilled spirits, every 
effort is made—from the production process to bottli ng and labelling—to ensure that each type of 
domestic spirit made from designated raw materials replicates as closely as po ssible the corresponding 
type of imported distilled spirit made  from non-designated raw materials.   Finally, the Appellate Body 
reviewed the Panel's assessment of evidence submitted by the Philippines and found that, in weighing 
such evidence, the Panel acted within  its discretion as the trier of facts, thus not acting inconsistently 
with its duties under Article 11 of the DSU. 
Turning to the Panel's assessment of consumers'  tastes and habits in the Philippines, the 
Appellate Body observed that, while "likeness" is a narrower category than "direct competitiveness or 
substitutability", that does not mean that only products  that are perfectly substitutable can fall within 
the scope of Article III:2, first sentence, of the GATT 1994.  According to the Appellate Body, the 
fact that each type of domestic distilled spirit made from designated raw materials is produced and 
presented in a manner so as closely to replicate th e same type of imported distilled spirit made from 
non-designated raw materials supported the Panel's conc lusion that, within types, there is a close 
competitive relationship between imported and domes tic distilled spirits.  The Appellate Body also 
found that the fact that imported a nd domestic distilled spirits do not share all channels of distribution 
does not exclude a sufficiently close competitive re lationship between those products.  Finally, the 
Appellate Body found that, in assessing the eviden ce submitted by the Philippines on this point, the 
Panel did not act inconsistently with its duties under Article 11 of the DSU. 
In relation to tariff classification, the Appellate  Body found that the HS four-digit heading, 
which groups together all distilled spirits, as well as other liquors and unflavoured neutral spirits for 
human consumption or for industrial purposes, do es not constitute a tariff classification sufficiently 
detailed to provide an indication of "likeness".  With respect to six-digit subheadings, the 
Appellate Body observed that, while  the Panel improperly found that, at the six-digit level, the HS 
classification did not provide conclusive guidance as to the similarity of brandies and whiskies made 
from designated and non-designated raw materials,  such finding did not undermine its overall 
conclusion that the products at issue are "like" within types.  It therefore found that the Panel did not act inconsistently with Article 11 of the DSU in this respect. 
In light of the above, the Appellate Body upheld  the Panel's overall finding that, within types, 
imported distilled spirits made from non-designated ra w materials are "like" domestic distilled spirits 
made from designated raw materials.  Conversely, th e Appellate Body found th at a "likeness" analysis 
based on the criteria set forth above—in partic ular, the products' physical characteristics, 
consumers' tastes and habits, and tariff classifica tion—did not support the Panel's conclusion that 
all distilled spirits of various types at issue in this  dispute are "like" products within the meaning of 
Article III:2, first sentence, of the GATT 1994, a nd reversed the Panel's finding in this respect. WT/AB/17 
Page 61 
 
 
  Accordingly, the Appellate Body upheld the Pa nel's finding that, by imposing on each type of 
imported distilled spirit at issue in this disput e—gin, brandy, rum, vodka, whisky, and tequila—
internal taxes in excess of those applied to "like" domestic distilled spirits of the same type, the 
Philippines has acted inconsistently with Artic le III:2, first sentence, of the GATT 1994. 
2. Article III:2, Second Sentence, of the GATT 1994 and Article 11 of the DSU 
Before addressing the Philippines' claim that th e Panel erred in its findings under Article III:2, 
second sentence, of the GATT 1994, the Appellate Body  examined the European  Union's claim that 
the Panel erred in characterizing its claim under the second sentence of Article III:2 as made in the 
alternative to its claim under the first sentence thereof.  The Appellate Body found that the 
European Union made two separate and independent  claims under the first and second sentences of 
Article III:2, and that, in failing to examine and in  abstaining from making findings in relation to the 
European Union's claim under the second sentence of Article III:2,  the Panel committed error under 
Article 11 of the DSU.  The Appellate Body also fo und that the factual findings made by the Panel in 
the European Union's and United States' complaints , as well as findings that the Panel did make under 
the second sentence of Article III:2 in the United States ' complaint, provided a sufficient basis for the 
Appellate Body to complete the legal analysis with  respect to the European  Union's claim under the 
second sentence of Article III:2. 
Turning to the Philippines' claim that the Panel erred in finding that all imported and domestic 
distilled spirits at issue are "directly competitive or  substitutable", the Appellate Body disagreed with 
the Philippines that the Panel insufficiently addr essed the degree of competition between imported 
and domestic distilled spirits in the Philippines.   The Appellate Body observed that both in 
articulating the standard, and in applying it to the facts of this dispute, the Panel correctly assessed the 
degree of competitive relationship between imported a nd domestic distilled spirits in the Philippines.  
For the Appellate Body, the Panel's statement that the question was "not so much" the "degree" but 
rather the "nature and quality" of competition referred exclusively to quantitative analyses of 
substitutability. 
Next, the Appellate Body rejected the Philippin es' claim that the Panel erred in finding that 
the Philippine distilled spirits market was not divided into two distinct segments:  one for high-priced 
distilled spirits made from non-designated raw material s, and one for low-priced distilled spirits made 
from designated raw materials.  The Appellate Body ag reed with the Panel that overlaps in the prices 
of imported and domestic distilled spirits, both fo r high- and low-priced products, supported the 
Panel's conclusion that the market is not segment ed, and that in some cases imported and domestic 
products compete with respect to price.  The Appella te Body also agreed with the Panel that actual 
competition in a narrow segment of the Philippine market supported the Panel's finding that imported 
and domestic distilled spirits are directly competitive or substitutable, particularly because extant and 
latent  demand for imported distilled spirits may be unde rstated due to the effects of the excise tax 
system. 
Finally, the Appellate Body rejected the Philippi nes' claim that the Panel acted inconsistently 
with Article 11 of the DSU in its examination of the studies that aimed at evaluating the substitutability between imported and domestic dis tilled spirits in the Philippine market.  The 
Appellate Body considered that the Philippines'  challenge was ultimately directed at the 
Panel's weighing of the evidence contained in the st udies at issue, and that the Panel did not exceed 
the bounds of its discretion under Article 11 of the DSU simply by accord ing to the evidence 
contained in the two studies a weight that is diffe rent than that attributed by the Philippines. WT/AB/17 
Page 62  
 
  On this basis, the Appellate Body upheld the Panel's finding that all the imported and 
domestic distilled spirits at issue are "directly co mpetitive or substitutable" within the meaning of 
Article III:2, second sentence, of the GATT 1994. 
Turning to the Philippines' claim that the Panel erred in finding that the excise tax system was 
applied "so as to afford protection" to Philippine  production of distilled spirits, the Appellate Body 
rejected the Philippines' claim th at, because approximately 50 per cen t of the domestic production of 
distilled spirits is made from imported ethyl alcohol, which is taxed at the lower rate, the Panel erred 
in finding that the vast majority of imported dist illed spirits are subject to higher taxes.  The 
Appellate Body observed that ethyl alcohol is not, in itself, a distilled spirit, and that therefore the taxation applied thereto had no bearing on the Panel' s analysis.  The Appellate Body then reviewed 
the Panel's assessment of the design, architecture and structure of the measure at issue, and upheld the 
Panel's finding that dissimilar taxation imposed by  the Philippine excise tax on imported distilled 
spirits and on directly competitive or substitutable do mestic distilled spirits is applied "so as to afford 
protection" to Philippine production of distilled spirits. 
In the light of the above, the Appellate Body upheld the Panel's finding that the Philippines 
has acted inconsistently with Article III:2, second sentence, of the GATT 1994 by applying dissimilar 
internal taxes to all imported distilled spirits made from non-designated raw materials and to all 
directly competitive or substitutable domestic distille d spirits made from designated raw materials, so 
as to afford protection to Philippi ne production of distilled spirits. 
Accordingly, the Appellate Body recommended th at the DSB request the Philippines to bring 
its measures, found in the Appellate Body Report and in the modified US Panel Report, to be 
inconsistent with the GATT 1994, into conformity  with its obligations under that Agreement. 
V. Participants and Third Participants in Appeals 
Table 5 lists the WTO Members that participat ed in appeals for which an Appellate Body 
report was circulated in 2011.  It distinguishes between a Member that f iled a Notice of Appeal 
pursuant to Rule 20 of the Working Procedures and a Member that filed a Notice of Other Appeal 
pursuant to Rule 23(1) (known as the "other appellant").  Rule 23(1) provides that "a party to the dispute other than the original appellant may join in that appeal, or appeal on the basis of other alleged 
errors in the issues of law covered in the panel report and legal interpreta tions developed by the 
panel".  Under the Working Procedures , parties wishing to appeal a panel report pursuant to 
Rule 23(1) are required to file a Notice of Other Ap peal within 5 days of the filing of the Notice of 
Appeal. 
Table 5 also identifies those Members that par ticipated in appeals as third participants under 
paragraphs (1), (2), or (4) of Rule 24 of the Working Procedures .  Under Rule 24(1), a WTO Member 
that was a third party to the panel proceedings ma y file a written submission as a third participant 
within 21 days of the filing of the Notice of Appeal.  Pursuant to Rule 24(2), a Member that was a 
third party to the panel proceedings that has not f iled a written submission may, within 21 days of the 
filing of the Notice of Appeal, notify its intention to appear at the oral hearing and whether it intends 
to make a statement at the hearing.  Rule 24(4) pr ovides that a Member that was a third party to the 
panel proceedings and has neither filed a written s ubmission in accordance with Rule 24(1), nor given 
notice in accordance with Rule 24(2), may notify its inte ntion to appear at the oral hearing and request 
to make a statement. WT/AB/17 
Page 63 
 
 
  TABLE 5:  PARTICIPANTS AND TH IRD PARTICIPANTS IN APPEALS 
FOR WHICH AN APPELLATE BODY REPORT WAS CIRCULATED IN 2011 
 
Case Appellant  a Other 
appellant  b Appellee(s) cThird participants 
Rule 24(1) Rule 24(2) Rule 24(4) 
US – Anti-dumping and 
Countervailing Duties 
(China) China - - -  United States Argentina 
Australia 
Brazil 
Canada 
European 
Union 
Japan 
Norway 
Saudi Arabia 
Turkey Bahrain 
India 
Kuwait 
Mexico 
Chinese 
Taipei  
EC and certain member 
States – Large Civil 
Aircraft European 
Union United 
States United States 
European 
Union Australia 
Brazil 
Canada 
China 
Japan 
Korea   
Thailand – Cigarettes 
(Philippines) Thailand - - -  Philippines Australia 
European 
Union 
United 
States  China 
India 
Chinese 
Taipei 
EC – Fasteners (China) European 
Union China China 
European 
Union Brazil 
Colombia 
Japan 
United 
States Canada 
Chile 
India 
Norway Chinese 
Taipei 
Thailand Turkey 
US – Tyres (China) China - - -  United States European 
Union 
Japan Chinese 
Taipei 
Turkey 
Viet Nam  
Philippines – Distilled 
Spirits (European Union)  Philippines European 
Union European 
Union 
Philippines Australia 
Mexico China 
India 
Chinese 
Taipei Colombia 
Thailand 
Philippines – Distilled 
Spirits (United States)  Philippines --- United States 
 Australia 
Mexico China 
India 
Chinese 
Taipei Colombia 
Thailand 
a Pursuant to Rule 20 of the Working Procedures . 
b Pursuant to Rule 23(1) of the Working Procedures . 
c Pursuant to Rule 22 or 23(3) of the Working Procedures . WT/AB/17 
Page 64  
 
  A total of 22 WTO Members appeared at least once as appellant, other appellant, appellee, or 
third participant in appeals for which an Appellate  Body report was circulated in 2011.  Of these 
22 WTO Members, 6 were developed country Memb ers, and 16 were developing country Members. 
Figure 3 shows the ratio of developed country  Members to developing country Members in 
terms of appearances made as appella nt, other appellant, appellee, and third participant in appeals for 
which an Appellate Body report was circulated from 1996 through 2011. 
 
 
 
Annex 6 provides a statistical summary and details on WTO Members' participation as 
appellant, other appellant, appellee,  and third participant in appeal s for which an Appellate Body 
report was circulated from 1996 through 2011. 
VI. Working Procedures for Appellate Review 
A. Amendments to the Working Procedures  
The latest amendments to the Working Procedures  came into effect on 15 September 2010 
and are applicable to appeals initiated on or af ter that date.  A consolidated version of the Working 
Procedures incorporating these amendments was circ ulated on 16 August 2010 as WTO document 
WT/AB/WP/6.  No amendments were made to the Working Procedures during 2011. 
B. Procedural Issues Arising from Appeals  
 Treatment of sensitive information 
In EC and certain member States – Large Civil Aircraft , the European Union and the 
United States jointly requested that the Appellate Body Division hearing this appeal adopt additional 
procedures to protect business confidential in formation ("BCI") and highly sensitive business 
information ("HSBI").  They argued that disclosure of this information could be "severely prejudicial" 
to the originators of the information, that is, to the manufacturers of large civil aircraft ("LCA") that 
were at the heart of this dispute, and possibly to the manufacturers' customers and suppliers.  The 
European Union and the United States attached to their request proposed additional working 
procedures for the protection of BCI and HSBI.  The Division invited the third participants to 
comment in writing on the participants' request to  adopt additional procedures to protect BCI and Figure 3: WTO Member partici pation in a ppeals 1996–2011 WT/AB/17 
Page 65 
 
 
  HSBI.  The third participants who submitted comment s expressed their general support for the request 
of the participants, and suggested certain modificati ons to the procedures proposed by the participants 
in order to ensure that the rights of third particip ants to participate meaningfully in the proceedings 
would be fully protected.   
The Division declined the participants' request th at it ask the panel to delay the transmittal to 
the Appellate Body of any information on the pane l record classified as BCI or HSBI until after the 
Appellate Body had adopted additional measures re garding BCI and HSBI.  The Division noted that 
Rule 25 of the Working Procedures  requires that the panel record be transmitted to the 
Appellate Body upon the filing of a Notice of Appeal.  Nevertheless, the Division, taking into consideration the participants' con cern with regard to the protection of BCI and HSBI contained in the 
panel record, decided, on a provisional basis, to provide additional protection to all BCI and HSBI 
transmitted to the Appellate Body during the pe riod leading up to the definitive ruling on the 
participants' request for additional procedures.  Furthermore, noting that consideration of the 
participants' joint request required modification to the timelines for filing submissions provided in the 
Working Procedures , the Division decided to extend the d eadlines for filing submissions in this 
appeal. 
A special oral hearing was held by the Divisi on to explore further the issues raised in the 
participants' joint request to adopt additional pro cedures to protect BCI and HSBI and in the third 
participants' comments concerning the request.  Subse quent to this, the Division issued a Procedural 
Ruling in response to the joint request, and a dopted Additional Procedures to Protect Sensitive 
Information.
52 
After the participants and third participants ha d submitted their lists of persons authorized to 
have access to BCI and/or HSBI, the European Unio n objected to one of the persons designated by a 
third participant.  The Division was subsequent ly informed that the European Union and the 
third participant had reached a "bilateral resolution of the issue" and that the European Union would 
withdraw its objection.53   
During the appellate proceedings, the participan ts and several of the third participants 
requested authorization to amend their lists of pe rsons designated as BCI- and/or HSBI-approved.  In 
each case, the Division provided the participants an d the third participants with the opportunity to 
comment in writing on the requests.  No objections were made by the participants or the third 
participants.  The Division authori zed all of the changes requested.54 
The Division also adopted a Procedural Ruling and Additional Procedures concerning the 
conduct of the oral hearing, which included pr ocedures on the protection of certain sensitive 
information during the hearing.55 
In Philippines – Distilled Spirits , the Philippines provided the third participants with copies of 
its appellant's submission that did not contain certa in information that was considered BCI in the 
panel proceedings (pursuant to the Additional Work ing Procedures Concerning Business Confidential 
Information, adopted by the panel).  This inform ation was, however, included in the copies of the 
Philippines' appellant's submissi on filed with the Appellate Body and served on the appellees.  
Following an enquiry from the Appellate Body Se cretariat, the Philippines provided copies of its 
appellant's submission containing the BCI to the th ird participants.  The Philippines requested the 
third participants to treat such information as conf idential.  In response to questioning at the oral 
                                                      
52Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 19 and Annex III. 
53Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 20. 
54Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 20. 
55Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 22. WT/AB/17 
Page 66  
 
  hearing, the participants and the third particip ants confirmed to the Appellate Body that the 
information the Philippines had designated as BCI in  its appellant's submission was governed by the 
confidentiality rules of Article 18.2 of the DSU.
56 
In Thailand – Cigarettes (Philippines) , the panel adopted additional working procedures for 
the protection of BCI57, but the Division hearing this appeal did not do so in the appellate proceedings.  
Neither participant requested the Division to adop t additional procedures for the protection of BCI, 
although the Philippines made a conditional request for th e Division to consult with the participants in 
the event that the Division consider ed it necessary to refer to informa tion that was considered BCI in 
the panel proceedings.  The Division did not refe r to any such information in its final report.58 
 Oral hearings 
In EC and certain member States – Large Civil Aircraft , the Division held a special oral 
hearing on 3 August 2010 to explore further the issues ra ised in the participants ' joint request to adopt 
additional procedures to protect sensitive inform ation and in the third participants' comments 
concerning the request.59 
The substantive oral hearing in this appeal took place in two sessions.  The first session lasted 
seven days and the second session lasted six days.60  The participants requested that certain parts of 
the substantive oral hearing—the opening and clos ing statements—be open to public observation to 
the extent that this would be possible given the existence of sensitive information.  The Division 
asked the participants to clarify th e extent to which they requested that the oral hearing be open to 
public observation, and to propose specific modalities in  this respect.  The Division invited the third 
participants to comment thereafter on the partic ipants' request and proposed modalities.  The 
participants submitted a joint letter to the Presiding Member of the Division with their clarifications 
and proposals concerning modalities for the oral hearings and suggested that the Division adopt a further Procedural Ruling pursuant to Rule 16(1) of the Working Procedures  to regulate the conduct 
of the oral hearing in the light of the request for public observation and the existence of sensitive 
information.  Comments were received from some of the third participants.  The Division issued a 
Procedural Ruling authorizing the participants' joint request for opening the hearing to public 
observation, and adopted Additional Procedures on the Conduct of the Oral Hearings including the 
protection of certain sensitive information during the oral hearing.
61 
Pursuant to the Procedural Ruling, the participan ts did not refer to any BCI or HSBI in their 
opening and closing statements, and the third participants did not re fer to any BCI in their opening 
and closing statements.  The opening and closing statements of the participants and the third 
participants were videotaped, with the exception of those by the third participants who had indicated 
that they wished to maintain the confidentiality of their submissions and statements.  After the 
participants reviewed the videotapes and confirme d that no BCI or HSBI had been inadvertently 
mentioned, the recording of the opening and cl osing statements was broadcast to the public.62 
                                                      
56Appellate Body Report, Philippines – Distilled Spirits , footnote 12 to para. 5. 
57See Panel Report, Thailand – Cigarettes (Philippines) , paras. 2.3 and 2.4, and Annex A-1, at pp. 399 
and 400. 
58Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 10. 
59Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 19. 
60Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 26. 
61Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 22.  The 
Procedural Ruling is contained in Annex IV to the report. 
62Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 26. WT/AB/17 
Page 67 
 
 
   Amendment of the Notice of Appeal 
In EC and certain member States – Large Civil Aircraft , the European Union requested 
authorization to amend its Notice of Appeal pursuant to Rule 23 bis of the Working Procedures  in 
order to correct certain discrepancies in the referen ces to paragraph numbers of  the Panel Report.  The 
Division provided the United States and the third pa rticipants with an opportunity to comment in 
writing on the request.  No objections to the request were received.  The Division authorized the 
European Union to amend its Notice of Appeal.63 
 Additional memoranda 
At the Division's invitation, the par ticipants and third participants in EC and certain member 
States – Large Civil Aircraft  filed additional memoranda pursuant to Rule 28 of the Working 
Procedures  regarding issues discussed during the firs t session of the substantive oral hearing.64 
 Timeliness and adequacy of notifications and submissions 
 
In US – Anti-Dumping and Countervailing Duties (China) , Argentina submitted the executive 
summary of its third participant's submission one da y after the deadline for filing a third participant's 
submission.  The Division hearing this appeal in formed Argentina that the executive summary would 
not be accepted because it had been submitted after this deadline.65 
In the same dispute, Turkey's third participan t's submission, while received on the day of the 
deadline for filing, was not received before  17:00 as required under Rule 18(1) of the Working 
Procedures .  The Division hearing the appeal accepted Tu rkey's submission.  The Division took into 
account that this was the first a ppeal following amendments to the Working Procedures , including to 
Rule 18(1).  The Division nevertheless emphasized th e importance of timely filing of documents in 
appeals.66 
In Philippines – Distilled Spirits and in Thailand – Cigarettes (Philippines) , notifications 
pursuant to Rule 24(2) of the Working Procedures  of third participants' intention to attend the oral 
hearing were received after the deadline.  In the fo rmer case, three days after the 21-day time-limit set 
out in Rule 24(2) of the Working Procedures  and, in the latter case, after the 17:00 deadline specified 
in Rule 18(1).  The Divisions hearing these appeals d ecided to accept the notifications as notifications 
made pursuant to Rule 24(4) of the Working Procedures .67 
In Philippines – Distilled Spirits, a third party, which had not filed a submission or 
notification, submitted its delegation list for the oral hearing to the Appellate Body Secretariat, as well 
as to the participants and other third participants.  The Division interpreted this action as a notification 
expressing an intention to attend the oral hearing pursuant to Rule 24(4) of the Working Procedures .  
However, the Division mentioned that this decision was without prejudice to rulings that the Appellate Body may make in future appeals, and emphasized that strict compliance with this Rule 
requires a written notification to the Secretariat that  expresses an intention to appear at the oral 
                                                      
63Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 16.  See 
WT/DS316/12/Rev.1 (attached as Annex I to the report). 
64Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 27. 
65Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , footnote 33 to 
para. 17. 
66Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , footnote 35 to 
para. 17. 
67Appellate Body Report, Philippines – Distilled Spirits , footnote 18 to para. 6;  Appellate Body 
Report, Thailand – Cigarettes (Philippines) , footnote 18 to para. 8. WT/AB/17 
Page 68  
 
  hearing.  The Division also noted that it was satisfied  that, in this case, the lack of strict compliance 
with Rule 24(4) did not raise any due process concerns.
68 
 Unsolicited amicus curiae  briefs 
 
An unsolicited amicus curiae  brief was received in the US – Anti-Dumping and 
Countervailing Duties (China)  appellate proceedings.  After giving the participants and the third 
participants an opportunity to express their views, th e Division did not find it necessary to rely on this 
brief in rendering its decision.69 
 Extension of the 60-day appeal period  
 
In a number of cases, the parties jointly requ ested the DSB to take a decision extending the 
60-day deadline in Article 16.4 of the DSU for adoption or appeal of a panel report.  These requests were made, inter alia , in the light of the "workload of the A ppellate Body" and in order to "provide 
greater flexibility in scheduling any possible appeal ".  The DSB extended the deadline in relation to 
the following panel reports circulated in 2010:  Thailand – Cigarettes (Philippines)
70;  EC – Fasteners 
(China)71;  and US – Tyres (China) .72  The deadline was similarly extended for the following panel 
reports circulated in 2011:  US – Clove Cigarettes73;  US – Tuna II (Mexico)74;  EU – Footwear 
(China)75;  US – COOL (Canada)76;  and US – COOL (Mexico) .77 
 Extension of time period for circulation of reports 
 
The 90-day time period was exceeded in 5 out of the 7 appeals for which Appellate Body 
reports were circulated in 2011:  US – Anti-Dumping and Countervailing Duties (China)78;  EC and 
certain member States – Large Civil Aircraft79;  Thailand – Cigarettes (Philippines)80;   
EC – Fasteners (China)81;  and US – Tyres (China) .82  The Appellate Body reports in  
Philippines – Distilled Spirits  were circulated within the 90-day time period. 
The Appellate Body communicated to the DSB Ch air the reasons for its inability to circulate 
an Appellate Body report within the 90-day time period in each of the appeals for which the 90-day 
time period was not met in 2011.  These reasons include d:  the numerous issues raised on appeal and 
their complexity;  the considerable size of the pa nel record;  the heavy workload of the Appellate 
Body;  difficulties with scheduling parallel appeals;   and the time required for the completion and 
translation of the report.  In a letter to the Ch air of the DSB, the Chair of the Appellate Body 
explained that the workload of the Appellate Body "reflects an overall trend of a greater number of 
increasingly complex appeals, with longer submission s by parties and more issues being appealed, all 
                                                      
68Appellate Body Report, Philippines – Distilled Spirits , footnote 18 to para. 6. 
69Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 18. 
70WT/DS371/7 and WT/DSB/M/290, p. 11. 
71WT/DS397/6 and WT/DSB/M/291, p. 15. 
72WT/DS399/5 and WT/DSB/M/292, p. 4. 
73WT/DS406/5 and WT/DSB/M/303, pp. 11-12. 
74WT/DS381/9 and WT/DSB/M/306, pp. 1-2. 
75WT/DS405/5 and WT/DSB/M/308, pp. 18-19.  This panel report ultimately was not appealed. 
76WT/DS384/11 and WT/DSB/M/310, pp. 1-3. 
77WT/DS386/10 and WT/DSB/M/310, pp. 1-3. 
78In this appeal, the 90-day time pe riod was exceeded by 10 days. 
79In this appeal, the 90-day time period was exceeded by 211 days. 
80In this appeal, the 90-day time pe riod was exceeded by 30 days. 
81In this appeal, the 90-day time period was exceeded by 22 days.  
82In this appeal, the 90-day time pe riod was exceeded by 14 days. WT/AB/17 
Page 69 
 
 
  at a time when the resources available to the Appellate Body remain unchanged."83  The Chair of the 
Appellate Body also stressed that, while the A ppellate Body was under an obligation pursuant to 
Article 17.5 of the DSU to circulate Appellate Bo dy reports within 90 days, it was also under an 
obligation to "address each of the issues" raised on appeal pursuant to Article 17.12 of the DSU. 
 Correction of clerical errors 
 
In Thailand – Cigarettes (Philippines) , the Philippines requested, pursuant to Rule 18(5) of 
the Working Procedures , authorization from the Appellate Body  Division hearing this appeal to 
correct a clerical error in its appellee's submission.   The Division invited the appellant, Thailand, and 
the third participants to comment on this request .  No comments were received and the Division 
authorized the Philippines to correct the clerical error.84  
VII. Arbitrations under Article 21.3(c) of the DSU 
No Article 21.3(c) arbitration proceedings were carried out in 2011. 
VIII.  Technical Assistance 
Appellate Body Secretariat staff participated in the WTO Biennial Technical Assistance and 
Training Plan:  2010-201185, particularly in activities relati ng to training in dispute settlement 
procedures.  Overall, Appellate Body Secretaria t staff participated in nine technical assistance 
activities during the course of 2011. 
Annex 7 provides further information about th e activities carried out by Appellate Body 
Secretariat staff in 2011 falling under the WTO Technical Assistance and Training Plan. 
IX. Other Activities 
The Appellate Body Secretariat participates in  the WTO internship programme, which allows 
post-graduate university students to gain practical  experience and a deeper knowledge of the global 
multilateral trading system in general, and WTO disp ute settlement procedures in particular.  Interns 
in the Appellate Body Secretariat obtain first-ha nd experience of the procedural and substantive 
aspects of WTO dispute settlement and, in partic ular, appellate proceedings.  The internship 
programme is open to nationals of WTO Member s and to nationals of countries and customs 
territories engaged in accession negotiations.  Each inte rnship is generally for a three-month period.  
During 2011, the Appellate Body Secretariat welcom ed interns from Australia, China, India, Ireland, 
Italy, Mexico, Nepal, Nigeria, Spain, and Swed en.  A total of 100 post-graduate students, of 
46 nationalities, have completed internships with th e Appellate Body Secretariat since 1998.  Further 
information about the WTO internship programme, including eligibility requirements and application 
instructions, may be obtained online at:  
<https://erecruitment.wto.org/public/hrd-cl- vac-view.asp?jobinfo_ uid_c=3475&vaclng=en> 
                                                      
83Communication from the Chair of the Appellate Body, 5 September 2011, WT/DS399/8. 
84Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 9. 
85WT/COMTD/W/170/Rev.1. WT/AB/17 
Page 70  
 
  Appellate Body Secretariat staff participates in  briefings organized for groups visiting the 
WTO, including students.  In these briefings, Appellate  Body Secretariat staff speaks to visitors about 
the WTO dispute settlement system in general,  and appellate proceedings in particular.  
Appellate Body Secretariat staff also participates as judges in moot court competitions.  A summary 
of these activities carried out by Appellate Body Secretariat staff during the course of 2011 can be 
found in Annex 7. 
 WT/AB/17 
Page 71 
 
 
  ANNEX 1A 
 
 
MEMBERS OF THE APPELLATE BODY 
(1 JANUARY TO 31 DECEMBER 2011) 
 
BIOGRAPHICAL NOTES 
  
Lilia R. Bautista   (Philippines) (2007–2011) 
Born in the Philippines on 16 August 1935, Lilia Bautista was consultant to the Philippine 
Judicial Academy, which is the training school for Philippine justices, judges, and lawyers.  She is also a member of several corporate boards. 
Ms. Bautista was the Chairperson of the Securities and Exchange Commission of the 
Philippines from 2000 to 2004.  Between 1999 and 2000 , she served as Senior Undersecretary and 
Special Trade Negotiator at the Department of Trad e and Industry in Manila.  From 1992 to 1999, she 
was the Philippine Permanent Representative in Ge neva to the United Nations, the WTO, the World 
Health Organization, the International Labour Orga nization, and other intern ational organizations.  
During her assignment in Geneva, she chaired several bodies, including the WTO Council for Trade in Services.  Her long career in the Philippine Gove rnment also included posts as Legal Officer in the 
Office of the President, Chief Legal Officer of the Board of Investments, and acting Trade Minister 
from February to June 1992.  Ms . Bautista earned her Bachelor of Laws Degree and a Masters Degree 
in Business Administration from the University of the Philippines.  She was conferred the degree of 
Master of Laws by the University of Michigan as a Dewitt Fellow.  
Jennifer Hillman   (United States) (2007–2011) 
Born in the United States on 29 January 1957, Jennifer Hillman is a Senior Transatlantic 
Fellow at the German Marshall Fund for the United States.  She served as a Distinguished Visiting 
Fellow and Adjunct Professor of Law at the George town University Law Center's Institute of 
International Economic Law. 
From 1998 to 2007, she served as a member of the United States International Trade 
Commission—an independent agency responsible fo r making injury determinations in anti-dumping 
and countervailing proceedings, an d conducting safeguard investiga tions.  From 1995 to 1997, she 
served as Chief Legal Counsel to the United States Trade Representative, overseeing the legal 
developments necessary to complete the implemen tation of the Uruguay Round Agreement.  From 
1993 to 1995, she was responsible for negotiating Unite d States bilateral textil e agreements prior to 
the adoption of the Agreement on Textiles and Clothing .  Ms. Hillman has a Bachelor of Arts and 
Master of Education from Duke University, North Carolina, and a Juris Doctor degree from Harvard 
Law School in Cambridge, Massachusetts.  
Shotaro Oshima   (Japan) (2008–2012) 
Born in Japan on 20 September 1943, Shotaro Oshi ma is a law graduate from the University 
of Tokyo.  Since April 2008, he is Visiting Professo r at the Graduate School of Public Policy, the 
University of Tokyo.  He was a diplomat in the Japanese Foreign Service until March 2008, when he 
retired after 40 years of service, his last overseas posting being Ambassador to the Republic of Korea. 
From 2002 to 2005, Mr. Oshima was Japan's Pe rmanent Representative to the WTO, during 
which time he served as Chair of the General C ouncil and of the Dispute Settlement Body.  Prior to WT/AB/17 
Page 72  
 
  his time in Geneva, he served as Deputy Foreign Mi nister responsible for economic matters and was 
designated as Prime Minister Koizumi's Personal Representative to the G-8 Summit in Canada in June 2002.  In the same year, he served as the Prime Minister's Personal Representative to the 
United Nations World Summit on Sustainable Devel opment in South Africa.  From 1997 to 2000, he 
served as Director-Gener al for Economic Affairs in the Ministry  of Foreign Affairs, responsible for 
formulating and implementing major policy initiativ es in Japan's external economic relations.  
Ricardo Ramírez-Hernández   (Mexico) (2009–2013) 
Born in Mexico on 17 October 1968, Ricar do Ramírez-Hernández holds the Chair of 
International Trade Law at the Mexican National Un iversity (UNAM) in Mexico City.  He was Head 
of the International Trade Practice for Latin America of  an international law firm in Mexico City.  His 
practice focused on issues related to NAFTA and trad e across Latin America, including international 
trade dispute resolution. 
Prior to practicing with a law firm, Mr. Ramírez-Hernández was Deputy General Counsel for 
Trade Negotiations of the Ministry of Economy in Mexi co for more than a decade.  In this capacity, 
he provided advice on trade and competition policy ma tters related to 11 free trade agreements signed 
by Mexico, as well as with respect to multilateral agreements, including those related to the WTO, the 
Free Trade Area of the Americas (FTAA), and the Latin American Integration Association (ALADI). 
Mr. Ramírez-Hernández also repr esented Mexico in complex in ternational trade litigation and 
investment arbitration proceedings.  He acted as lead counsel to the Mexican government in several 
WTO disputes.  He has also served on NAFTA panels. 
Mr. Ramírez-Hernández holds an LL.M. degree in International Business Law from the 
Washington College of Law of the American Un iversity, and a law degree from the Universidad 
Autónoma Metropolitana. 
David Unterhalter   (South Africa) (2006–2013) 
Born in South Africa on 18 November 1958, David Unterhalter holds degrees from Trinity 
College, Cambridge, the University of the Witw atersrand, and University College, Oxford.  
Mr. Unterhalter has been a Professor of Law at the University of the Witwatersrand in South Africa 
since 1998, and from 2000 to 2006, he was the Direct or of the Mandela Institute, University of the 
Witwatersrand, an institute focusing on global law.   He was Visiting Professor of Law at Columbia 
Law School in 2008. 
Mr. Unterhalter is a member of the Johannes burg Bar.  As a practising advocate, he has 
appeared in a large number of cases in the fields of  trade law, competition law, constitutional law, and 
commercial law.  His experience includes repr esenting different parties in anti-dumping and 
countervailing duty cases.  He has acted as an advisor to the South African Department of Trade and 
Industry.  In addition, he has served on a number of WTO dispute settlement panels.  Mr. Unterhalter 
has published widely in the fields of  public law and competition law.  
Peter Van den Bossche   (European Union; Belgium) (2009–2013) 
Born in Belgium on 31 March 1959, Peter Van den Bossche is Professor of International 
Economic Law at Maastricht University, the Netherlands .  He is a visiting professor at the College of 
Europe in Bruges, Belgium.  Mr. Van den Bossche is a Member of the Board of Editors of the Journal 
of International Economic Law . WT/AB/17 
Page 73 
 
 
  Mr. Van den Bossche holds a Doctorate in Law fr om the European University Institute in 
Florence, an LL.M. from the University of Michigan Law School, and a Licence en Droit magna cum 
laude  from the University of Antwerp.  From 1990 to  1992, he served as a Référendaire of Advocate 
General W. van Gerven at the European Court of Justice in Luxembourg.  From 1997 to 2001, 
Mr. Van den Bossche was Counsellor and subsequently  Acting Director of the WTO Appellate Body 
Secretariat.  In 2001, he returned to academia and from 2002 to 2009 frequently acted as a consultant 
to international organisations and developing coun tries on issues of international economic law.  He 
also served on the faculty of the World Trade Institute  in Berne, Switzerland;  the China EU School of 
Law (CESL) in Beijing, China;  the IELPO programme  of the University of Barcelona, Spain;  the 
Trade Policy Training Centre in Africa (trapca) in  Arusha, Tanzania;  and the IEEM Academy of 
International Trade and Investment Law in Macau, China. 
Mr. Van den Bossche has published extensively in the field of international economic law.  
The second edition of his textbook The Law and Policy of the World Trade Organization  was 
published by Cambridge University Press in 2008. 
Yuejiao Zhang   (China) (2008–2012) 
Yuejiao Zhang is Professor of International Economic Law at Tsinghua University and at 
Shantou University in China.  She is an arbitrat or at the International Chamber of Commerce (ICC) 
and China's International Trade and Economic Ar bitration Commission (CIETAC).  She served as 
Vice-President of China's International Economic Law So ciety.  She is also a member of the Advisory 
Board of the International Deve lopment Law Organization (IDLO). 
Ms. Zhang served as a Board Director to the West African Development Bank from 2005 to 
2007.  Between 1998 and 2004, she he ld various senior positions at the Asian Development Bank 
(ADB), including as Assistant General Counsel, Co-Chair of the Appeal Committee, and Director-General.  She was the h ead of the ADB experts group on international trade and the ADB 
contact point to the WTO.  Prior to this, she he ld several positions in gove rnment and academia in 
China, including as Director-General of Law and Treaties at the Ministry of Foreign Trade and 
Economic Cooperation (1984–1997).  From 1987 to 1996, she was one of China's chief negotiators on 
intellectual property and was involved in the prepara tion of China's patent law, trademark law, and 
copyright law.  She also served as the chief le gal counsel for China's GATT resumption.  Between 
1982 and 1985, Ms. Zhang worked as legal counsel at the World Bank.  She was a Member of the Governing Council of UNIDROIT (In ternational Institute for the Unification of Private Law) from 
1987 to 1999 and a Board Member of IDLO from 1988 to 1999.  Ms. Zhang was member to the 
drafting committees of UNIDROIT and UNCITRAL on several international trade and economic 
conventions, such as the General Principles of Comme rcial Contract and the International Financial 
Leasing Convention. 
Ms. Zhang has authored several books and articles on international economic law and 
international dispute settlement.  Ms. Zhang has a Bachelor of Arts from China High Education 
College, a BA from Rennes University, France, and a Master of Laws from Georgetown University. 
Ujal Singh Bhatia  (India) (2011–2015) 
Ujal Singh Bhatia was born in India on 15 April 1950 and was, most recently, an independent 
consultant and academic engage d in developing a policy framework for Indian agricultural 
investments overseas, while at the same time working with the Commonwealth Secretariat on multilateral trade issues. 
Mr. Bhatia was India's Permanent Representative to the WTO from 2004 to 2010.  During his 
tenure as Permanent Representative, he was an activ e participant in the dispute settlement process, WT/AB/17 
Page 74  
 
  representing India in a number of dispute settlement  cases both as a complainant and respondent in 
disputes relating to anti-dumping, as well as taxation and import duty issues.  He also has adjudicatory 
experience having served as a WTO dispute settlement panelist. 
Mr. Bhatia previously served as Joint Secretary in the Indian Ministry of Commerce, where 
he focused on the legal aspects of international trad e.  During this period, he was also a Member of 
the Appellate Committee under the Foreign Trad e (Development and Regulation) Act.  The 
Committee heard appeals of exporters and importers  against the orders of the Director General 
Foreign Trade.  Mr. Bhatia was also Joint Secretar y of the Ministry of Information and Broadcasting 
and held various pos itions in the government of the Indian state of Orissa. 
Mr. Bhatia's legal and adjudicatory experien ce spans three decades.  He has focused on 
addressing domestic and internationa l legal/jurisprudence issues, negotiating trade agreements and 
policy issues at the bilateral, regional and multilate ral levels, and formulati ng and implementing trade 
and development policies for a range of agri culture, industry and service sector activities. 
Mr. Bhatia has lectured on international trade issues , and has published numerous  papers and 
articles in Indian and foreign journals on a wide ra nge of trade and economic is sues.  Mr. Bhatia holds 
an M.A. in Economics from the University of Ma nchester and from Delhi University, as well as a 
B.A. (Hons.) in Economics, also from Delhi University. 
Thomas R. Graham  (United States) (2011–2015) 
Born in the United States on 23 November 1942,  Tom Graham is the former head of the 
international trade practice at a large international law firm, and the founder of the international trade 
practice at another large international law firm.  He was one of the first US lawyers to represent 
respondents in trade remedy cases in various coun tries around the world, and he innovated the 
incorporation of economists, accountants, and other non-lawyer professionals into the international 
trade practices of private law firms.  Most recently , Mr. Graham also headed his international trade 
practice group's committee on long-term  planning and development. 
In private law practice, Mr. Graham often collaborated with local counsel and national 
authorities in various countries to develop legal interp retations of laws and regul ations consistent with 
GATT/WTO agreements, and in negotiating the r esolution of international trade disputes. 
Mr. Graham served as Deputy General Counsel in the Office of the US Trade Representative, 
where he was instrumental in the negotiation of the Tokyo Round Agreement on Technical Barriers to 
Trade and where he represented the US Governme nt in dispute settlement proceedings under the 
GATT.  Earlier in his career, Mr. Graham served for three years in Geneva as a Legal Officer at the 
United Nations Conference on Trad e and Development (UNCTAD). 
Mr. Graham was the first chairman of the American Society of International Law's 
Committee on International Economic Law, and th e chair of the American Bar Association's 
Subcommittee on Exports.  He has been a visiting professor at the University of North Carolina Law 
School and an adjunct professor at the Georgeto wn Law Center and the American University 
Washington College of Law.  He has edited books on international trade policy, and international 
trade and environment, and he has written many articles and monographs on international trade law 
and policy as a Guest Scholar at the Brookings Instit ution, and as a Senior Associate at the Carnegie 
Endowment for International Peace. 
Mr. Graham holds a BA in International Re lations and Economics from Indiana University 
and a J.D. from Harvard Law School. WT/AB/17 
Page 75 
 
 
  *** 
Director of the Appellate Body Secretariat 
Werner Zdouc 
 
Director of the WTO Appellate Body Secretariat since 2006, Werner Zdouc obtained a law 
degree from the University of Graz in Austria.  He  then went on to earn an LL.M. from Michigan Law 
School and a Ph.D. from the University of St. Ga llen in Switzerland.  Dr. Zdouc joined the WTO 
Legal Affairs Division in 1995, advised many di spute settlement panels, and conducted technical 
cooperation missions in many developing countr ies.  He became legal counsellor at the 
Appellate Body Secretariat in 2001.  He has been  a lecturer and Visiting Professor for international 
trade law at Vienna Economic University, the Un iversities of Zurich and Barcelona.  From 1987 
to 1989, he worked for governmental and non-govern mental development aid organizations in Austria 
and Latin America.  Dr. Zdouc has authored various  publications on international economic law and is 
a member of the Trade Law Committee of  the International Law Association. WT/AB/17 
Page 76  
 
   
ANNEX 1B 
 
 
FAREWELL SPEECHES OF FORMER APPELLATE BODY MEMBERS 
 
 
Farewell remarks of Jennifer Hillman to the Dispute Settlement Body of the WTO 
Geneva, 8 December 2011 
 The Director-General, Chairs of the WTO c ouncils, Excellencies, Ladies and Gentlemen: 
 
Serving on the Appellate Body has been a true  pleasure and deep honour for me and I would 
like to thank all of those who made it possible fo r me to be part of this unique institution. 
 It has been an extraordinary privilege to wo rk alongside the dedicated, talented and wise 
individuals that I have come to know both as coll eagues and as friends as well as the extremely hard-
working and truly gifted members of the Appellate  Body's Secretariat, who are among the finest 
lawyers and staff that I have ever known. 
 It has become traditional for those Members leaving the Appellate Body to offer a few 
reflections on their way out the door and so I too join in that tradition. 
 I have been fortunate to have been a part of th e dispute settlement system at an important time 
in its evolution from the old GATT dispute settlement  mechanism into the much more purely legal or 
juridical WTO system that we have before us today.  The transformati on into this new system, with its 
two step approach of a panel system and a standi ng Appellate Body, with a broadened scope of rules 
to be applied and binding resolution of the disput es, has occurred quite quickly, and has at times 
suffered some growing pains from the pace of that change.  While many of the essential elements of 
WTO member control—with the Dispute Settleme nt Body still controlli ng the establishment of 
panels, the adoption of panel and Appellate Body reports and the su rveillance of implementation of 
recommendations and rulings—remain firmly in place, much of the rest of the process has become 
much more purely legal. 
 With that consolidation of the legal order has come the need for the dispute settlement system 
in general and the Appellate Body  in particular to establish its own credibility, both within the 
membership of the WTO itself and among the wider public at large—both no small achievements in 
today's world of great scepticism about multilatera lism in general and multilateral institutions in 
particular. 
 I leave at a time when I believe that the WT O's dispute settlement system and the Appellate 
Body have achieved that goal of widespread credib ility and with it the belief in a rules-based system 
and fundamentally in the rule of law.  But I thought I would offer comments tonight on a few 
challenges that I see for a rules-based trading syst em.  These concerns stem from my concern that 
belief in and a willingness to be bound by the rule of law is a precious commodity that cannot be 
taken for granted.  It takes work and it takes cons tant reaffirmation by those who wish to play by 
those rules. 
 
For me, at the core of any rules-based system are well-reasoned and well-understood 
decisions. 
 The challenge for the dispute settlement system  today is finding the right balance between 
swift yet sound decisions.  For the Appellate Body, the struggle lies between the rule that decisions WT/AB/17 
Page 77 
 
 
  must be issued, in 3 languages, within 90 days of th e date an appeal is filed and the mandate that the 
Appellate Body address every issue raised on appeal.  In today's increasingly legal system, more issues are being raised in every dispute, the i ssues themselves are increasi ngly complex, and the 
parties' submissions are growing longer and l onger, while the manpower available to address the 
increased load has remained fundamentally unchanged.  Certainly it is clear to me that writing shorter, 
crisper and easier to read opinions takes much mo re time than writing long and occasionally hard-to-
follow opinions. 
 For you, the members, some thought might be given to the tradeoffs that would be involved in 
disciplining parties' submissions, at least in terms of their length; whether the current practice of 
having all decisions start with summaries of the arguments made by all the parties continues to 
provide a sufficient benefit to the members to jus tify their costs—both in terms of the time available 
to the Appellate Body for drafting the summaries and co st of translation—particularly in these days 
when many members post their submissions on the internet;  and whether the 90-day time period for 
appeals should be extended on a regular basis rather than  worked out in the current ad hoc fashion.  In 
addition, while the level of understanding of the dis pute settlement system at large and its individual 
decisions is fairly high within these walls, additiona l outreach efforts to explain both the system and 
the decisions in specific cases might help to in crease the understanding for these rules-based decisions 
in the community at large and would be an important step in the direction of reaffirming support for a 
rule-of-law system. 
 
My second comment would be that the willingness to accept the decisions of the system stems 
in large part from a belief that the decisions have been made by adjudicators who are truly impartial 
and independent. 
 That independence and impartiality stems fro m both the individual qualities of the people 
who are appointed and the process by which they reach their decisions.  And it also stems from an 
institutional guarantee of independence.  It is on this front that I see a possible cloud on the horizon 
and that cloud stems from the mere fact that Appellate Body Members are subject to a reappointment process if they are to serve a second four-year term .  Most courts, both national and international, 
typically set much longer terms for their members a nd many, in order to protect the independence of 
their judges, do not permit reappointment. 
 
The mere fact that Appellate Body Members must go through a reappointment process can 
invite scepticism on all sides—and raises the possib ility that decisions an Appellate Body Member 
made during his or her first four years have so mehow crept into the reappointment process—thereby 
casting a shadow on the principle of independence and on the support for the rule-of-law system. 
 
Moreover, I believe that four years is simply too short a time to master the processes and 
intricacies of the dispute settlement system, with its growing body of past decisions and its increasingly complex cases. 
 Now might be a good time for members to reflect on whether one single term of longer 
duration might better achieve a more independent Appellate Body and a more efficient one.  If 
members served one longer term and the appointment s were appropriately staggered, there would be 
greater stability and expertise among the members, al ong with a more even distribution of experience. 
 Despite these concerns, I leave the Appellate  Body with greater confidence than when I 
arrived that the system is sound, that it can handl e large, sensitive and complex matters and that it is 
serving an increasingly diverse set of needs and a la rger membership.  I hope you can agree with me 
on that. 
 WT/AB/17 
Page 78  
 
  I thank you from the bottom of my heart for giving me the opportunity to serve as Member of 
the Appellate Body and for the time  to share these reflections.  I know  I am leaving with the Appellate 
Body in very capable hands with those of my colle agues that remain and with the addition of two 
deeply knowledgeable and well-respected new Member s.  Thank you all and my best wishes to you. 
 
 
Farewell remarks of Lilia Bautista to the Dispute Settlement Body of the WTO 
Geneva, 8 December 2011 
 
The Director-General, Chairs of the WTO c ouncils, Excellencies, Ladies and Gentlemen: 
 
 Truly, when God closes a door, He opens a window.  After I retired as Chair of the Philippine Securities and Exchange Commission, I was suppo sed to assume an ambassadorship in Europe.  
Unfortunately, and to my disappointment, it did not push through.  On hindsight, it was a blessing in 
disguise for, afterwards, I was nominated by my government both to a United Nations (UN) post and 
to the Appellate Body.  Having been an Ambassa dor to the UN and the World Trade Organization for 
seven years, I chose to accept the nomination to th e Appellate Body.  And being elected as Member of 
the Appellate Body of the WTO, the crown jewel of the Uruguay Round, was a signal honour aspired to by many but given to a few.  It was a rare opportunity to be part of a body responsible for interpreting and applying the various  WTO agreements to real case situations.  My decision not to 
seek another term and to resign as Appellate Body Chair is personal and has nothing to do with any 
government.  The fact is, my government wants me  to run for another term but early on, I had 
informed my colleagues that I didn't intend to seek  another term.  I appreciate that my colleague, 
Jennifer, has taken over the Appellate Body Chairman ship.  I would not have the heart to equip the 
new Appellate Body offices with furniture and high- tech equipment when the Appellate Body moves 
to its new office when I am gone. 
 
 To me, personally, my election to the Appe llate Body was a testing ground of how the 
Uruguay Round agreements work in the practical arena.   When disputes arise, this is an opportunity to 
see how effective and how workable the covered agreemen ts are.  I was very interested to be involved 
in the process because I participat ed in the Uruguay Round negotiations and when called upon by the 
Philippine Senate to testify in the course of my country's ratification, I explained the various Uruguay 
Round agreements and declared my confidence in th e WTO system.  I was also asked to submit an 
amicus curiae  brief before the Philippine Supreme Cour t when its ratification was questioned as 
unconstitutional.   And so with the excitement of being elect ed to this august body, there was a certain 
trepidation as to how well the WTO agreements wo rk in the event of disputes.  I know these 
agreements are not expected to be perfect for otherwise there would be no need for the 
Appellate Body.  But will the flaws be too much to make the agreements untenable? 
  And now that I am here, I am glad to say that I was vindicated in my defence of the WTO agreements.  These agreements prove  workable and disputes arising therefrom are capable of being 
settled without trade wars.  Of course, in hindsight, we could have been clearer on the wording of the 
various agreements and, in this regard, I have a wish list:  (1),  a longer term for Appellate Body 
Members without re-election;  (2) no 90-day limit on Appellate Body decisions considering the fact 
that the complexity of a case may require a longer ti meframe;  (3) more explicit provisions on special 
and differential treatment for developing countries to allow the Appellate Body to consider the 
solutions for disadvantaged countries involved in a dispute;  (4), a more effective sanction provision;  
and (5) an appropriate title for Members of the Appellate Body.   Let me, therefore, take this opportunity to thank the membership for their support—my 
colleagues for whom I have great respect, and the Appellate Body Secretariat for smoothing my way WT/AB/17 
Page 79 
 
 
  in the labyrinth of precedents and office necessities.   They, together with my Geneva friends, have 
been my family for the last four years.  I thank every one of you for making my four years here fulfilling and gratifying.  You are the icing on my cake.   Let me also congratulate the new Member s of the Appellate Body, Mr. Bhatia and 
Mr. Graham, and transmit to them some "prof ound" observations from the inner sanctum of the 
Appellate Body:  1. Saturdays and Sundays are not holidays in the Appellate Body world.  Working hours do not end at 5 or 6 p.m. 
 
2. In Appellate Body sessions and exchanges of views, everyone has a lot to contribute and 
often speaks at the same time;  an umpire may be necessary to enable all views to be heard, or one 
must be fast on the draw.  
3. Hot "munchies" are Philippine dried mangoes, Am erican bagels, and Thai food.  Next year, 
the bagels will remain American, but the mangoes will be Indian.   In closing, all my life I have been blesse d with so many good things along the way—a good 
education, executive positions in government that I did not seek but which were nonetheless offered 
to me, good friends, and a supportive family.  All these and more, more than the little crosses that are 
a part of life.  I thank God for His munificence and thank all the people who believed in me and who 
helped me along the way.  All of them share in whatever I have accomplished. 
  I thank all of you for making my stay in the Appellate Body a truly memorable ending to my career.  I was given a second time around in Geneva but I don't expect a third time around.  But who 
knows? 
  Thank you and good evening to all. WT/AB/17 
Page 80  
 
  ANNEX 2 
 
 
I.  FORMER APPELLATE BODY MEMBERS 
 
Name Nationality Term(s) of office 
Said El-Naggar Egypt    1995–2000 * 
Mitsuo Matsushita Japan    1995–2000 * 
Christopher Beeby New Zealand 1995–1999 
1999–2000 
Claus-Dieter Ehlermann Germany 1995–1997 
1997–2001 
Florentino Feliciano Philippines 1995–1997 
1997–2001 
Julio Lacarte-Muró Uruguay 1995–1997 
1997–2001 
James Bacchus United States 1995–1999 
1999–2003 
John Lockhart Australia 2001–2005 
2005–2006 
Yasuhei Taniguchi Japan 2000–2003 
2003–2007 
Merit E. Janow United States      2003–2007 ** 
Arumugamangalam 
Venkatatchalam Ganesan India 2000–2004 
2004–2008 
Georges Michel Abi-Saab Egypt 2000–2004 
2004–2008 
Luiz Olavo Baptista Brazil 2001–2005 
2005–2009 
Giorgio Sacerdoti Italy 2001–2005 
2005–2009 
Jennifer Hillman United States 2007–2011 
Lilia Bautista Philippines 2007–2011 
 
* Messrs El-Naggar and Matsushita decided not to seek a second term of office.  Howe ver, the DSB extended their 
terms until the end of March 2000 in order to allow th e Selection Committee and the DSB the time necessary to 
complete the selection process of re placing the outgoing Appe llate Body Members. (S ee WT/DSB/M70, pp. 32-35) 
** Ms. Janow decided not to seek a second term of office.  Her term ended on 11 December 2007. 
 
Mr. Christopher Beeby passed  away on 19 March 2000. 
Mr. Said El-Naggar passed away on 11 April 2004. Mr. John Lockhart passed away on 13 January 2006. WT/AB/17 
Page 81 
 
 
  II.  FORMER CHAIRPERSONS OF THE APPELLATE BODY 
 
Name Nationality Term(s) as Chairperson 
Julio Lacarte-Muró Uruguay 7 February 1996 – 
6 February 1997 
7 February 1997 – 
6 February 1998 
Christopher Beeby New Zealand 7 February 1998 – 
6 February 1999 
Said El-Naggar Egypt 7 February 1999 – 
6 February 2000 
Florentino Feliciano Philippines 7 February 2000 – 
6 February 2001 
Claus-Dieter Ehlermann Germany 7 February 2001 – 
10 December 2001 
James Bacchus United States 15 December 2001 – 
14 December 2002 
15 December 2002 – 
10 December 2003 
Georges Abi-Saab Egypt 13 December 2003 – 
12 December 2004 
Yasuhei Taniguchi Japan 17 December 2004 –  
16 December 2005 
Arumugamangalam Venkatachalam Ganesan India 17 December 2005 –  
16 December 2006 
Giorgio Sacerdoti Italy 17 December 2006 –  
16 December 2007 
Luiz Olavo Baptista Brazil 17 December 2007 –  
16 December 2008 
David Unterhalter South Africa 18 December 2008 – 
11 December 2009 
12 December 2009 – 
16 December 2010 
Lilia Bautista Philippines  17 December 2010 –  
14 June 2011 
Jennifer Hillman United States 15 June 2011 –  
10 December 2011 WT/AB/17 
Page 82  
 
  ANNEX 3 
 
 
APPEALS FILED: 1995–2011 
 
Year Notices of Appeal 
filed Appeals in original 
proceedings Appeals in 
Article 21.5 
proceedings 
1995   0 0 0 
1996   4 4 0 
1997   6 a 6 0 
1998   8 8 0 
1999   9 b 9 0 
2000  13 c 11 2 
2001   9 d 5 4 
2002   7 e 6 1 
2003   6 f 5 1 
2004   5 5 0 
2005  10 8 2 
2006   5 3 2 
2007   4 2 2 
2008 13 10 3 
2009 3 1 2 
2010 3 3 0 
2011 9 9 0 
Total  114 95 19 
 
a This number includes two Notices of Appeal that were filed at the same time in related matters, 
counted separately:  EC – Hormones (Canada)  and EC – Hormones (US).   A single Appellate Body report was 
circulated in relation to those appeals. 
b This number excludes one Notice of Appeal that was withdrawn by the United States, which 
subsequently filed another Notice of Appeal in relation to the same panel report:  US – FSC . 
c This number includes two Notices of Appeal that were filed at the same time in related matters, 
counted separately: US – 1916 Act (EC)  and US – 1916 Act (Japan).   A single Appellate Body report was 
circulated in relation to those appeals. 
d This number excludes one Notice of Appeal that was withdrawn by the United States, which 
subsequently filed another Notice of Appeal in relation to the same panel report:  US – Line Pipe . 
e This number includes one Notice of Appeal that was subsequently withdrawn:  India – Autos ; and 
excludes one Notice of Appeal that was withdrawn by the European Communities, which subsequently filed 
another Notice of Appeal in relation to the same panel report:  EC – Sardines . 
f This number excludes one Notice of Appeal th at was withdrawn by the United States, which 
subsequently filed another Notice of Appeal in relation to the same panel report:  US – Softwood Lumber IV . 
 
 WT/AB/17 
Page 83 
 
 
  ANNEX 4 
 
 
PERCENTAGE OF PANEL REPORTS APPEALED 
BY YEAR OF ADOPTION: 1995–2011  a 
 
 All panel reports Panel reports other than  
Article 21.5 reports b Article 21.5 panel reports 
Year of 
adoption Panel 
reports 
adopted c Panel 
reports 
appealed d Percentage 
appealed ePanel 
reports 
adopted Panel 
reports 
appealed Percentage 
appealed Panel 
reports 
adopted Panel 
reports 
appealed Percentage 
appealed 
1996 2 2 100% 2 2 100% 0 0 – 
1997 5 5 100% 5 5 100% 0 0 – 
1998 12 9 75% 12 9 75% 0 0 – 
1999 10 7 70% 9 7 78% 1 0 0% 
2000 19 11 58% 15 9 60% 4 2 50% 
2001 17 12 71% 13 9 69% 4 3 75% 
2002 12 6 50% 11 5 45% 1 1 100% 
2003 10 7 70% 8 5 63% 2 2 100% 
2004 8 6 75% 8 6 75% 0 0 – 
2005 20 12 60% 17 11 65% 3 1 33% 
2006 7 6 86% 4 3 75% 3 3 100% 
2007 10 5 50% 6 3 50% 4 2 50% 
2008 11 9 82% 8 6 75% 3 3 100% 
2009 8 6 75% 6 4 67% 2 2 100% 
2010 5 2 40% 5 2 40% 0 0 – 
2011 8 5 63% 8 5 63% 0 0      – 
Total 164 110 67% 137 91 66% 27 19 70% 
 
a No panel reports were adopted in 1995. 
b Under Article 21.5 of the DSU, a panel may be established to hear a "disagreement as to the 
existence or consistency with a covered agreement of measures taken to comply with the recommendations and 
rulings" of the DSB upon the adoption of a previous panel or Appellate Body report. 
c The Panel Reports in EC – Bananas III (Ecuador) , EC – Bananas III (Guatemala and Honduras) ,  
EC – Bananas III (Mexico) , and EC – Bananas III (US)  are counted as a single pane l report.  The Panel Reports 
in US – Steel Safeguards , in EC – Export Subsidies on Sugar , and in EC – Chicken Cuts , are also counted as 
single panel reports in each  of those disputes.  
d Panel reports are counted as having been appealed where they are adopted as upheld, modified, or 
reversed by an Appellate Body report.  The number of panel reports appealed may differ from the number of 
Appellate Body reports because some Appellate Body reports address more than one panel report. 
e Percentages are rounded to the nearest whole number.   
  WT/AB/17 
Page 84 ANNEX 5 
 
WTO AGREEMENTS ADDRESSED IN APPELLATE BODY REPORT S CIRCULATED THROUGH 2011 a 
 
Year of 
circulation DSU WTO 
Agmt GATT 
1994 Agriculture SPS ATC TBT TRIMs Anti- 
Dumping Import 
Licensing SCM Safeguards GATS TRIPS 
1996 0 0 2 0 0 0 0 0 0 0 0 0 0 0 
1997 4 1 5 1 0 2 0 0 0 1 1 0 1 1 
1998 7 1 4 1 2 0 0 0 1 1 0 0 0 0 
1999 7 1 6 1 1 0 0 0 0 0 2 1 0 0 
2000 8 1 7 2 0 0 0 0 2 0 5 2 1 1 
2001 7 1 3 1 0 1 1 0 4 0 1 2 0 0 
2002 8 2 4 3 0 0 1 0 1 0 3 1 1 1 
2003 4 2 3 0 1 0 0 0 4 0 1 1 0 0 
2004 2 0 5 0 0 0 0 0 2 0 1 0 0 0 
2005 9 0 5 2 0 0 0 0 2 0 4 0 1 0 
2006 5 0 3 0 0 0 0 0 3 0 2 0 0 0 
2007 5 0 2 1 0 0 0 0 2 0 1 0 0 0 
2008 8 1 9 1 2 0 0 0 3 0 3 0 0 0 
2009 3 0 4 0 0 0 0 0 3 0 0 0 1 0 
2010 1 0 0 0 1 0 0 0 0 0 0 0 0 0 
2011 7 1 6 0 0 0 0 0 1 0 2 0 0 0 
Total 85 11 68 13 7 3 2 0 28 2 26 7 5 3 
a No appeals were filed in 1995. 
  WT/AB/17 
 Page 85 
 
 
  ANNEX 6 
 
 
PARTICIPANTS AND THIRD PARTIC IPANTS IN APPEALS:  1995–2011 
 
 As of the end of 2011, there were 153 WTO Members, of which 70 have participated in 
appeals in which Appellate Body reports  were circulated between 1996 and 2011.1  
 
 The rules pursuant to which Members particip ate in appeals as appellant, other appellant, 
appellee, and third participant are describ ed in section V of this Annual Report.   
 
  I.  STATISTICAL SUMMARY 
 
WTO Member Appellant Other 
appellant Appellee Third 
participant Total 
Antigua & Barbuda 1 0 1 0 2 
Argentina 2 3 5 13 23 
Australia 3 1 6 28 38 
Bahrain 0 0 0 1 1 
Barbados 0 0 0 1 1 
Belize 0 0 0 4 4 
Benin 0 0 0 1 1 
Bolivarian Republic of 
Venezuela 0 0 1 6 7 
Bolivia, Plurinational 
State of 0 0 0 1 1 
Brazil 8 4 12 26 50 
Cameroon 0 0 0 3 3 
Canada 10 7 16 18 51 
Chad 0 0 0 2 2 
Chile 3 0 2 9 14 
China 6 2 3 30 41 
Colombia 0 0 0 10 10 
Costa Rica 1 0 0 3 4 
Côte d'Ivoire 0 0 0 4 4 
Cuba 0 0 0 4 4 
Dominica 0 0 0 4 4 
Dominican Republic 1 0 1 3 5 
Ecuador 0 2 2 6 10 
                                                      
1No appeals were filed and no Appellate Body report s were circulated in 1995, the year the Appellate 
Body was established. WT/AB/17 
Page 86  
 
  WTO Member Appellant Other 
appellant Appellee Third 
participant Total 
Egypt 0 0 0 2 2 
El Salvador 0 0 0 2 2 
European Union 20 14 38 51 123 
Fiji 0 0 0 1 1 
Ghana 0 0 0 2 2 
Grenada 0 0 0 1 1 
Guatemala 1 1 1 4 7 
Guyana 0 0 0 1 1 
Honduras 1 1 2 1 5 
Hong Kong, China 0 0 0 8 8 
India 6 2 7 28 43 
Indonesia 0 0 1 1 2 
Israel 0 0 0 1 1 
Jamaica 0 0 0 5 5 
Japan 6 4 11 43 64 
Kenya 0 0 0 1 1 
Korea 4 3 6 17 30 
Kuwait 0 0 0 1 1 
Madagascar 0 0 0 1 1 
Malaysia 1 0 1 0 2 
Malawi 0 0 0 1 1 
Mauritius 0 0 0 2 2 
Mexico 5 1 4 30 40 
New Zealand 0 3 6 11 20 
Nicaragua 0 0 0 4 4 
Nigeria 0 0 0 1 1 
Norway 0 1 1 15 17 
Pakistan 0 0 2 3 5 
Panama 0 0 0 3 3 
Paraguay 0 0 0 5 5 
Peru 0 0 1 2 3 
Philippines 3 0 3 1 7 
Poland 0 0 1 0 1 
Senegal 0 0 0 1 1 
Saint Lucia 0 0 0 4 4  WT/AB/17 
 Page 87 
 
 
  WTO Member Appellant Other 
appellant Appellee Third 
participant Total 
Saudi Arabia 0 0 0 1 1 
St Kitts & Nevis 0 0 0 1 1 
St Vincent &  
the Grenadines 0 0 0 3 3 
Suriname 0 0 0 3 3 
Swaziland 0 0 0 1 1 
Switzerland 0 1 1 0 2 
Chinese Taipei 0 0 0 26 26 
Tanzania 0 0 0 1 1 
Thailand 5 0 5 19 29 
Trinidad &Tobago  0 0 0 1 1 
Turkey 1 0 0 4 5 
United States 29 17 64 30 140 
Viet Nam 0 0 0 3 3 
Total 117 67 204 524 912 
 
 
 
II.  DETAILS BY YEAR OF CIRCULATION 
 
1996  
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Gasoline 
WT/DS2/AB/R  United States - - - Brazil 
Venezuela European 
Communities 
Norway 
Japan – Alcoholic Beverages II 
WT/DS8/AB/R, WT/DS10/AB/R 
WT/DS11/AB/R Japan United States Canada 
European 
Communities 
Japan 
United States - - - 
 WT/AB/17 
Page 88  
 
  1997  
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Underwear 
WT/DS24/AB/R Costa Rica - - - United States India 
Brazil –  Desiccated Coconut 
WT/DS22/AB/R  Philippines Brazil Brazil 
Philippines European 
Communities 
United States 
US – Wool Shirts and Blouses  
WT/DS33/AB/R and Corr.1  India - - - United States - - - 
Canada – Periodicals 
WT/DS31/AB/R  Canada United States Canada 
United States - - - 
EC – Bananas III 
WT/DS27/AB/R  European 
Communities Ecuador 
Guatemala 
Honduras 
Mexico 
United States Ecuador 
European 
Communities 
Guatemala 
Honduras 
Mexico 
United States Belize 
Cameroon 
Colombia 
Costa Rica 
Côte d'Ivoire 
Dominica 
Dominican 
Republic 
Ghana 
Grenada 
Jamaica 
Japan 
Nicaragua 
St Lucia 
St Vincent & 
the Grenadines 
Senegal 
Suriname 
Venezuela 
India – Patents (US) 
WT/DS50/AB/R  India - - - United States European 
Communities  WT/AB/17 
 Page 89 
 
 
  1998  
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Hormones 
WT/DS26/AB/R, WT/DS48/AB/R  European 
Communities Canada 
United States Canada 
European 
Communities 
United States Australia 
New Zealand 
Norway 
Argentina – Textiles and Apparel  
WT/DS56/AB/R and Corr.1  Argentina - - - United States European 
Communities 
EC – Computer Equipment 
WT/DS62/AB/R, WT/DS67/AB/R 
WT/DS68/AB/R  European 
Communities - - - United States Japan 
EC – Poultry  
WT/DS69/AB/R  Brazil European 
Communities Brazil 
European 
Communities Thailand 
United States 
US – Shrimp  WT/DS58/AB/R  United States - - - India 
Malaysia 
Pakistan 
Thailand Australia 
Ecuador 
European 
Communities 
Hong Kong, 
China 
Mexico 
Nigeria 
Australia – Salmon WT/DS18/AB/R  Australia Canada Australia 
Canada European 
Communities 
India 
Norway 
United States 
Guatemala – Cement I 
WT/DS60/AB/R  Guatemala - - - Mexico United States 
 WT/AB/17 
Page 90  
 
  1999  
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
Korea – Alcoholic Beverages 
WT/DS75/AB/R, WT/DS84/AB/R  Korea - - - European 
Communities 
United States Mexico 
Japan – Agricultural Products II 
WT/DS76/AB/R  Japan United States Japan 
United States Brazil 
European 
Communities 
Brazil – Aircraft 
WT/DS46/AB/R  Brazil Canada Brazil 
Canada European 
Communities 
United States 
Canada – Aircraft WT/DS70/AB/R  Canada Brazil Brazil 
Canada European 
Communities 
United States 
India – Quantitative Restrictions  
WT/DS90/AB/R  India - - - United States - - - 
Canada – Dairy  
WT/DS103/AB/R, WT/DS113/AB/R and 
Corr.1  Canada - - - New Zealand 
United States - - - 
Turkey –Textiles 
WT/DS34/AB/R  Turkey - - - India Hong Kong, 
China 
Japan 
Philippines 
Chile – Alcoholic Beverages 
WT/DS87/AB/R, WT/DS110/AB/R  Chile - - - European 
Communities Mexico 
United States 
Argentina – Footwear (EC) WT/DS121/AB/R  Argentina European 
Communities Argentina 
European 
Communities Indonesia 
United States 
Korea – Dairy  WT/DS98/AB/R  Korea European 
Communities Korea 
European 
Communities United States 
  WT/AB/17 
 Page 91 
 
 
  2000  
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – FSC  
WT/DS108/AB/R  United States European 
Communities European 
Communities 
United States Canada 
Japan 
US – Lead and Bismuth II 
WT/DS138/AB/R  United States - - - European 
Communities Brazil 
Mexico 
Canada –  Autos 
WT/DS139/AB/R  Canada European 
Communities 
Japan Canada 
European 
Communities 
Japan Korea 
United States 
Brazil – Aircraft  
(Article 21.5 – Canada) 
WT/DS46/AB/RW  Brazil - - - Canada European 
Communities 
United States 
Canada – Aircraft 
(Article 21.5 – Brazil) 
WT/DS70/AB/RW  Brazil - - - Canada European 
Communities 
United States 
US – 1916 Act WT/DS136/AB/R, WT/DS162/AB/R  United States European 
Communities 
Japan European 
Communities 
Japan 
United States European 
Communities
 a 
India 
Japan b 
Mexico 
Canada – Term of Patent Protection 
WT/DS170/AB/R  Canada - - - United States - - - 
Korea – Various Measures on Beef 
WT/DS161/AB/R, WT/DS169/AB/R  Korea - - - Australia 
United States Canada 
New Zealand 
US – Certain EC Products  
WT/DS165/AB/R European 
Communities United States European 
Communities 
United States Dominica 
Ecuador 
India 
Jamaica 
Japan 
St Lucia 
US – Wheat Gluten 
WT/DS166/AB/R  United States European 
Communities European 
Communities 
United States Australia 
Canada 
New Zealand 
a In complaint brought by Japan. 
b In complaint brought by the European Communities. WT/AB/17 
Page 92  
 
  2001  
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Bed Linen 
WT/DS141/AB/R  European 
Communities India European 
Communities 
India Egypt 
Japan 
United States 
EC – Asbestos  WT/DS135/AB/R  Canada European 
Communities Canada 
European 
Communities Brazil 
United States 
Thailand – H-Beams WT/DS122/AB/R  Thailand - - - Poland European 
Communities 
Japan 
United States 
US – Lamb  WT/DS177/AB/R, WT/DS178/AB/R  United States Australia 
New Zealand Australia 
New Zealand 
United States European 
Communities 
US – Hot-Rolled Steel 
WT/DS184/AB/R  United States Japan Japan 
United States Brazil 
Canada 
Chile 
European 
Communities 
Korea 
US – Cotton Yarn WT/DS192/AB/R  United States - - - Pakistan European 
Communities 
India 
US – Shrimp 
(Article 21.5 – Malaysia) 
WT/DS58/AB/RW  Malaysia - - - United States Australia 
European 
Communities 
Hong Kong, 
China 
India 
Japan 
Mexico 
Thailand 
Mexico – Corn Syrup 
(Article 21.5 – US) 
WT/DS132/AB/RW  Mexico - - - United States European 
Communities 
Canada – Dairy (Article 21.5 – New Zealand and US) 
WT/DS103/AB/RW, WT/DS113/AB/RW  Canada - - - New Zealand 
United States European 
Communities 
  WT/AB/17 
 Page 93 
 
 
  2002  
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Section 211 Appropriations Act  
WT/DS176/AB/R  European 
Communities United States European 
Communities 
United States - - - 
US – FSC 
(Article 21.5 – EC) 
WT/DS108/AB/RW  United States European 
Communities European 
Communities 
United States Australia 
Canada 
India 
Japan 
US – Line Pipe 
WT/DS202/AB/R  United States Korea Korea 
United States Australia 
Canada 
European 
Communities 
Japan 
Mexico 
India – Autos  c 
WT/DS146/AB/R, WT/DS175/AB/R India - - - European 
Communities 
United States Korea 
Chile – Price Band System  
WT/DS207/AB/R and Corr.1 Chile - - - Argentina Australia 
Brazil 
Colombia 
Ecuador 
European 
Communities 
Paraguay 
United States 
Venezuela 
EC – Sardines  WT/DS231/AB/R  European 
Communities - - - Peru Canada 
Chile 
Ecuador 
United States 
Venezuela 
US – Carbon Steel 
WT/DS213/AB/R and Corr.1  United States European 
Communities European 
Communities 
United States Japan 
Norway 
US – Countervailing Measures on Certain  
EC Products 
WT/DS212/AB/R  United States - - - European 
Communities Brazil 
India 
Mexico 
Canada – Dairy 
(Article 21.5 – New Zealand and US II) 
WT/DS103/AB/RW2, WT/DS113/AB/RW2  Canada - - - New Zealand 
United States Argentina 
Australia 
European 
Communities 
c India withdrew its appeal the day before the oral hearing was scheduled to proceed. WT/AB/17 
Page 94  
 
  2003 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Offset Act (Byrd Amendment ) 
WT/DS217/AB/R, WT/DS234/AB/R United States - - - Australia 
Brazil 
Canada 
Chile 
European 
Communities 
India 
Indonesia 
Japan 
Korea 
Mexico 
Thailand Argentina 
Costa Rica 
Hong Kong, 
China 
Israel 
Norway 
EC – Bed Linen 
(Article 21.5 – India ) 
WT/DS141/AB/RW India - - - European 
Communities Japan 
Korea 
United States 
EC – Tube or Pipe Fittings 
WT/DS219/AB/R Brazil - - - European 
Communities Chile 
Japan 
Mexico 
United States 
US – Steel Safeguards 
WT/DS248/AB/R, WT/DS249/AB/R  
WT/DS251/AB/R, WT/DS252/AB/R  
WT/DS253/AB/R, WT/DS254/AB/R  
WT/DS258/AB/R, WT/DS259/AB/R  United States Brazil 
China 
European 
Communities 
Japan 
Korea 
New Zealand 
Norway 
Switzerland Brazil 
China 
European 
Communities 
Japan 
Korea 
New Zealand 
Norway 
Switzerland 
United States Canada 
Cuba 
Mexico 
Chinese Taipei 
Thailand 
Turkey 
Venezuela 
Japan – Apples 
WT/DS245/AB/R Japan United States Japan 
United States Australia 
Brazil 
European 
Communities 
New Zealand 
Chinese Taipei 
US – Corrosion-Resistant Steel Sunset Review 
WT/DS244/AB/R Japan - - - United States Brazil 
Chile 
European 
Communities 
India 
Korea 
Norway 
  WT/AB/17 
 Page 95 
 
 
  2004 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Softwood Lumber IV 
WT/DS257/AB/R  United States Canada Canada 
United States European 
Communities 
India 
Japan 
EC – Tariff Preferences WT/DS246/AB/R  European 
Communities - - - India Bolivia 
Brazil 
Colombia 
Costa Rica 
Cuba 
Ecuador 
El Salvador 
Guatemala 
Honduras 
Mauritius 
Nicaragua 
Pakistan 
Panama 
Paraguay 
Peru 
United States 
Venezuela 
US – Softwood Lumber V WT/DS264/AB/R  United States Canada Canada 
United States European 
Communities 
India 
Japan 
Canada – Wheat Exports and Grain Imports 
WT/DS276/AB/R  United States Canada Canada 
United States Australia 
China 
European 
Communities 
Mexico 
Chinese Taipei 
US – Oil Country Tubular Goods Sunset 
Reviews 
WT/DS268/AB/R  United States Argentina Argentina 
United States European 
Communities 
Japan 
Korea 
Mexico 
Chinese Taipei 
 WT/AB/17 
Page 96  
 
  2005 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Upland Cotton 
WT/DS267/AB/R  United States Brazil Brazil 
United States Argentina 
Australia 
Benin 
Canada 
Chad 
China 
European 
Communities 
India 
New Zealand 
Pakistan 
Paraguay 
Chinese Taipei 
Venezuela 
US – Gambling 
WT/DS285/AB/R and Corr.1  United States Antigua & 
Barbuda Antigua & 
Barbuda 
United States Canada 
European 
Communities 
Japan 
Mexico 
Chinese Taipei 
EC – Export Subsidies on Sugar WT/DS265/AB/R, WT/DS266/AB/R 
WT/DS283/AB/R  European 
Communities Australia 
Brazil 
Thailand Australia 
Brazil 
European 
Communities 
Thailand 
 Barbados 
Belize 
Canada 
China 
Colombia 
Côte d'Ivoire 
Cuba 
Fiji 
Guyana 
India 
Jamaica 
Kenya 
Madagascar 
Malawi 
Mauritius 
New Zealand 
Paraguay 
St Kitts & 
Nevis 
Swaziland 
Tanzania 
Trinidad & 
Tobago 
United States 
  WT/AB/17 
 Page 97 
 
 
  2005 (cont'd) 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
Dominican Republic – Import and Sale of 
Cigarettes 
WT/DS302/AB/R  Dominican 
Republic Honduras Dominican 
Republic 
Honduras China 
El Salvador 
European 
Communities 
Guatemala 
United States 
US – Countervailing Duty Investigation on 
DRAMS 
WT/DS296/AB/R  United States Korea Korea 
United States China 
European 
Communities 
Japan 
Chinese Taipei 
EC – Chicken Cuts 
WT/DS269/AB/R, WT/DS286/AB/R  
and Corr.1  European 
Communities Brazil 
Thailand Brazil 
European 
Communities 
Thailand China 
United States 
Mexico – Anti-Dumpi ng Measures on Rice 
WT/DS295/AB/R  Mexico - - - United States China 
European 
Communities 
US – Anti-Dumping Measures on Oil Country 
Tubular Goods 
WT/DS282/AB/R  Mexico United States Mexico 
United States Argentina 
Canada 
China 
European 
Communities 
Japan 
Chinese Taipei 
US – Softwood Lumber IV 
(Article 21.5 – Canada) 
WT/DS257/AB/RW  United States Canada Canada 
United States China 
European 
Communities 
 WT/AB/17 
Page 98  
 
  2006 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – FSC 
(Article 21.5 – EC II) 
WT/DS108/AB/RW2 United States European 
Communities European 
Communities 
United States Australia 
Brazil 
China 
Mexico ‒ Taxes on Soft Drinks 
WT/DS308/AB/R Mexico - - - United States Canada 
China 
European 
Communities 
Guatemala 
Japan 
US – Softwood Lumber VI 
(Article 21.5 – Canada) 
WT/DS277/AB/RW and Corr.1 Canada - - - United States China 
European 
Communities 
US – Zeroing (EC) 
WT/DS294/AB/R and Corr.1 European 
Communities United States United States 
European 
Communities Argentina 
Brazil 
China 
Hong Kong, 
China 
India 
Japan 
Korea 
Mexico 
Norway 
Chinese Taipei 
US – Softwood Lumber V 
(Article 21.5 – Canada) 
WT/DS264/AB/RW Canada - - - United States China 
European 
Communities 
India 
Japan 
New Zealand 
Thailand 
EC – Selected Customs Matters 
WT/DS315/AB/R United States European 
Communities European 
Communities 
United States Argentina 
Australia 
Brazil 
China 
Hong Kong, 
China 
India 
Japan 
Korea 
Chinese Taipei 
  WT/AB/17 
 Page 99 
 
 
  2007 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Zeroing (Japan) 
WT/DS322/AB/R Japan United States United States 
Japan Argentina 
China 
European 
Communities 
Hong Kong, 
China 
India 
Korea 
Mexico 
New Zealand 
Norway 
Thailand 
US – Oil Country Tubular Goods Sunset 
Reviews (Article 21.5 – Argentina) 
WT/DS268/AB/RW United States Argentina Argentina 
United States China 
European 
Communities 
Japan 
Korea 
Mexico 
Chile – Price Band System 
(Article 21.5 – Argentina)  
WT/DS207/AB/RW  Chile Argentina Argentina 
Chile Australia 
Brazil 
Canada 
China 
Colombia 
European 
Communities 
Peru 
Thailand 
United States 
Japan – DRAMs (Korea) 
WT/DS336/AB/R and Corr.1 Japan Korea Korea 
Japan European 
Communities 
United States 
Brazil – Retreaded Tyres WT/DS332/AB/R European 
Communities - - - Brazil Argentina 
Australia 
China 
Cuba 
Guatemala 
Japan 
Korea 
Mexico 
Paraguay 
Chinese Taipei 
Thailand 
United States 
 WT/AB/17 
Page 100  
 
  2008 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Stainless Steel (Mexico) 
WT/DS344/AB/R Mexico - - - United States Chile 
China 
European 
Communities 
Japan  
Thailand 
US – Upland Cotton 
(Article 21.5 – Brazil) 
WT/DS267/AB/RW  United States Brazil Brazil 
United States Argentina 
Australia 
Canada 
Chad 
China 
European 
Communities 
India 
Japan 
New Zealand 
Thailand 
US – Shrimp (Thailand)  WT/DS343/AB/R  
 Thailand 
 United States 
 United States 
Thailand 
 Brazil 
Chile 
China 
European 
Communities 
India 
Japan 
Korea 
Mexico 
Viet Nam 
US – Customs Bond Directive 
WT/DS345/AB/R  
 India United States United States 
India Brazil 
China 
European 
Communities 
Japan 
Thailand 
  WT/AB/17 
 Page 101 
 
 
  2008 (cont'd) 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Continued Suspension 
WT/DS320/AB/R 
 European 
Communities 
 United States 
 United States 
European 
Communities 
 Australia 
Brazil 
China 
India 
Mexico 
New Zealand 
Norway 
Chinese Taipei 
Canada – Continued Suspension 
WT/DS321/AB/R 
 
 European 
Communities Canada Canada 
European 
Communities Australia 
Brazil 
China 
India 
Mexico 
New Zealand 
Norway 
Chinese Taipei 
India – Additional Import Duties WT/DS360/AB/R United States India India 
United States Australia 
Chile 
European 
Communities 
Japan 
Viet Nam 
EC – Bananas III 
(Article 21.5 – Ecuador II) 
WT/DS27/AB/RW2/ECU and Corr.1 
 
 European 
Communities 
 Ecuador 
 
 Ecuador 
European 
Communities 
 Belize 
Brazil 
Cameroon 
Colombia 
Côte d'Ivoire 
Dominica 
Dominican 
Republic 
Ghana 
Jamaica 
Japan 
Nicaragua 
Panama 
St Lucia 
St Vincent & 
the Grenadines 
Suriname 
United States WT/AB/17 
Page 102  
 
  2008 (cont'd) 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Bananas III 
(Article 21.5 – US) 
WT/DS27/AB/RW/USA and Corr.1 
 European 
Communities - - - United States Belize 
Brazil 
Cameroon 
Colombia 
Côte d'Ivoire 
Dominica 
Dominican 
Republic 
Ecuador 
Jamaica 
Japan 
Mexico 
Nicaragua 
Panama 
St Lucia 
St Vincent & 
the Grenadines 
Suriname 
China – Auto Parts (EC) 
WT/DS339/AB/R  China - - - European 
Communities 
 Argentina 
Australia 
Brazil 
Japan 
Mexico 
Chinese Taipei 
Thailand 
China – Auto Parts (US) WT/DS340/AB/R  China - - - United States 
 Argentina 
Australia 
Brazil 
Japan 
Mexico 
Chinese Taipei 
Thailand 
China – Auto Parts (Canada) 
WT/DS342/AB/R  China - - - Canada Argentina 
Australia 
Brazil 
Japan 
Mexico 
Chinese Taipei 
Thailand 
 
  WT/AB/17 
 Page 103 
 
 
 2009 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Continued Zeroing 
WT/DS350/AB/R  European 
Communities United States European 
Communities 
United States Brazil 
China 
Egypt 
India 
Japan 
Korea 
Mexico 
Norway 
Chinese Taipei 
Thailand 
US – Zeroing (EC) 
(Article 21.5 – EC) 
WT/DS294/AB/RW and Corr.1 European 
Communities United States European 
Communities 
United States India 
Japan 
Korea 
Mexico 
Norway 
Chinese Taipei 
Thailand 
US – Zeroing (Japan)  
(Article 21.5 – Japan) 
WT/DS322/AB/RW United States - - - Japan China 
European 
Communities 
Hong Kong, 
China 
Korea 
Mexico 
Norway 
Chinese Taipei 
Thailand 
China – Publications and Audiovisual Products 
WT/DS363/AB/R China United States China 
United States Australia 
European 
Communities 
Japan 
Korea 
Chinese Taipei 
 
 WT/AB/17 
Page 104  
 
 2010 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
Australia – Apples 
WT/DS367/AB/R Australia New Zeal and New Zealand 
Australia Chile 
European 
Union 
Japan 
Pakistan 
Chinese Taipei 
United States 
 
 
2011 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
US – Anti-Dumping and Countervailing Duties 
(China) 
WT/DS379/AB/R China - - -  United States Argentina 
Australia 
Bahrain 
Brazil 
Canada 
European 
Union 
India 
Japan 
Kuwait 
Mexico 
Norway 
Saudi Arabia 
Chinese Taipei 
Turkey 
EC and certain member States – Large Civil 
Aircraft 
WT/DS316/AB/R European 
Union United States United States 
European 
Union Australia 
Brazil 
Canada 
China 
Japan 
Korea 
Thailand – Cigarettes (Philippines) 
WT/DS371/AB/R Thailand - - -  Philippines Australia 
China 
European 
Union 
India 
Chinese Taipei 
United States 
 
 
 
  WT/AB/17 
 Page 105 
 
 
 2011 (cont'd) 
 
Case Appellant Other 
appellant(s) Appellee(s) Third 
participant(s) 
EC – Fasteners (China) 
WT/DS397/AB/R European 
Union China China  
European 
Union Brazil 
Canada 
Chile 
Colombia 
India 
Japan 
Norway 
Chinese Taipei 
Thailand 
Turkey 
United States 
US – Tyres (China) 
WT/DS399/AB/R China - - -  United States European 
Union 
Japan 
Chinese Taipei 
Turkey 
Viet Nam 
Philippines – Distilled Spirits 
(European Union) 
WT/DS396/AB/R Philippines European 
Union European 
Union 
Philippines 
 Australia 
China 
Colombia 
India 
Mexico 
Chinese Taipei 
Thailand 
Philippines – Distilled Spirits (United States) 
WT/DS403/AB/R  Philippines - - - United States Australia 
China 
Colombia 
India 
Mexico 
Chinese Taipei 
Thailand 
 
 
 
 WT/AB/17 
Page 106  
 
 ANNEX 7 
 
 
APPELLATE BODY SECRETARIAT PARTICIPATION IN  
TECHNICAL ASSISTANCE, TRAINING , AND OTHER ACTIVITIES IN 2011 
 
I.  WTO BIENNIAL TE CHNICAL ASSISTANCE AND TRAINING PLAN: 2010–2011 
 
APPELLATE BODY SECRETARIAT  
MISSIONS - 2011  
 
Course / Seminar Location Dates 
National Seminar on the Multilateral Trading 
System  Riyadh, Dammam, 
and Jeddah, Saudi Arabia 8-10 January 2011 
National DSU Seminar  Manila, Philippines 22-24 March 2011 
Regional Dispute Settlement Seminar for 
CEECAC Vienna, Austria 18-22 April 2011 
OAS Course for Senior Officials on Trade 
Negotiations and Dispute Settlement  Washington, USA 29 June-3 July 2011 
National Seminar on Dispute Settlement  Asuncion, Paraguay 23-26 August 2011 
Seminar on WTO Dispute Settlement  Taip ei, Chinese Taipei 13-15 September 2011 
Regional Trade Policy Course - Basic 
Principles New Delhi, India 15-16 September 2011 
Regional Workshop on Dispute Settlement Bue nos Aires, Argentina 20-23 September 2011 
Seminar on WTO Dispute Settlement  Pret oria, Johannesburg 21-24 November 2011 
 
  WT/AB/17 
 Page 107 
 
 
  
II.  OTHER ACTIVITIES – 2011 
 
Activity Location Dates 
ELSA Moot Court Competition (Regional Round)  Mexico City, Mexico 22-25 March 2011 
ELSA Moot Court Competition (Final Round) Evian, France, and 
Geneva, Switzerland 23-30 May 2011 
IELPO  Moot Court Competition Ba rcelona, Spain 21-22 June 2011 
Joint IELPO – WTI Moot Court Competiti on  Barcelona, Spain  28 June 2011 
 
 
 
 WT/AB/17 
Page 108  
 
 ANNEX 8 
 
 
WTO DISPUTE SETTLEMENT REPORT S AND ARBITRATION AWARDS: 1995–2011 
 
WTO DISPUTE SETTLEMENT REPORTS AND ARBITRATION AWARDS 
 
Short Title Full Case Title and Citation 
Argentina – Ceramic Tiles Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of 
Ceramic Floor Tiles from Italy , WT/DS189/R, adopted 5 November 2001, 
DSR 2001:XII, 6241 
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515 
Argentina – Footwear (EC) Panel Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/R, adopted 12 January 2000, as modified by Appellate Body 
Report WT/DS121/AB/R, DSR 2000:II, 575 
Argentina – Hides and 
Leather Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and 
Import of Finished Leather , WT/DS155/R and Corr.1, adopted 16 February 
2001, DSR 2001:V, 1779 
Argentina – Hides and 
Leather (Article 21.3(c)) Award of the Arbitrator, Argentina – Measures Affecting the Export of Bovine 
Hides and Import of Finished Leather – Arbitration under Article 21.3(c) of 
the DSU , WT/DS155/10, 31 August 2001, DSR 2001:XII, 6013 
Argentina – Poultry 
Anti-Dumping Duties Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from 
Brazil , WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727 
Argentina – Preserved 
Peaches Panel Report, Argentina – Definitive Safeguard Measure on Imports of 
Preserved Peaches , WT/DS238/R, adopted 15 April 2003, DSR 2003:III, 
1037 
Argentina – Textiles and 
Apparel Appellate Body Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/AB/R and Corr.1, adopted  
22 April 1998, DSR 1998:III, 1003 
Argentina – Textiles and Apparel Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles, 
Apparel and Other Items , WT/DS56/R, adopted 22 April 1998, as modified by 
Appellate Body Report WT/DS56/AB/R, DSR 1998:III, 1033 
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of 
Apples from New Zealand , WT/DS367/AB/R, adopted 17 December 2010, 
DSR 2010:V, 2175 
Australia – Apples Panel Report, Australia – Measures Affecting the Importation of Apples from 
New Zealand , WT/DS367/R, adopted 17 December 2010, as modified by 
Appellate Body Report WT/DS367/AB/R, DSR 2010:VI, 2371 
Australia – Automotive Leather II Panel Report, Australia – Subsidies Provided to Producers and Exporters of 
Automotive Leather , WT/DS126/R, adopted 16 June 1999, DSR 1999:III, 951 
Australia – Automotive 
Leather II (Article 21.5 – US) Panel Report, Australia – Subsidies Provided to Producers and Exporters of 
Automotive Leather – Recourse to Article 21.5 of the DSU by the United 
States , WT/DS126/RW and Corr.1, adopted 11 February 2000, DSR 2000:III, 
1189 
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of 
Salmon , WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327  WT/AB/17 
 Page 109 
 
 
 Short Title Full Case Title and Citation 
Australia – Salmon Panel Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/R and Corr.1, adopted 6 November 1998, as modified by Appellate 
Body Report WT/DS18/AB/R, DSR 1998:VIII, 3407 
Australia – Salmon  
(Article 21.3(c)) Award of the Arbitrator, Australia – Measures Affecting Importation of 
Salmon – Arbitration under Article 21.3(c) of the DSU , WT/DS18/9,  
23 February 1999, DSR 1999:I, 267 
Australia – Salmon 
(Article 21.5 – Canada) Panel Report, Australia – Measures Affecting Importation of Salmon – 
Recourse to Article 21.5 of the DSU by Canada , WT/DS18/RW, adopted  
20 March 2000, DSR 2000:IV, 2031 
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161 
Brazil – Aircraft Panel Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report 
WT/DS46/AB/R, DSR 1999:III, 1221 
Brazil – Aircraft (Article 21.5 – Canada) Appellate Body Report, Brazil – Export Financing Programme for Aircraft – 
Recourse by Canada to Article 21.5 of the DSU , WT/DS46/AB/RW, adopted 
4 August 2000, DSR 2000:VIII, 4067 
Brazil – Aircraft (Article 21.5 – Canada) Panel Report, Brazil – Export Financing Programme for Aircraft – Recourse 
by Canada to Article 21.5 of the DSU , WT/DS46/RW, adopted 4 August 
2000, as modified by Appellate Body Report WT/DS46/AB/RW, DSR 
2000:IX, 4093 
Brazil – Aircraft (Article 21.5 – Canada II) Panel Report, Brazil – Export Financing Programme for Aircraft – Second 
Recourse by Canada to Article 21.5 of the DSU , WT/DS46/RW/2, adopted  
23 August 2001, DSR 2001:X, 5481 
Brazil – Aircraft (Article 22.6 – Brazil) Decision by th e Arbitrators, Brazil – Export Financing Programme for 
Aircraft – Recourse to Arbitration by Brazil under Article 22.6 of the DSU and 
Article 4.11 of the SCM Agreement , WT/DS46/ARB, 28 August 2000, DSR 
2002:I, 19 
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167 
Brazil – Desiccated Coconut Panel Report, Brazil – Measures Affecting Desiccated Coconut , WT/DS22/R, 
adopted 20 March 1997, upheld by Appellate Body Report WT/DS22/AB/R, DSR 1997:I, 189 
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/AB/R, adopted 17 D ecember 2007, DSR 2007:IV, 1527 
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body 
Report WT/DS332/AB/R, DSR 2007:V, 1649 
Brazil – Retreaded Tyres (Article 21.3(c)) Award of the Arbitrator, Brazil – Measures Affecting Imports of Retreaded 
Tyres – Arbitration under Article 21.3(c) of the DSU , WT/DS332/16,  
29 August 2008, DSR 2008:XX, 8581 
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377 
Canada – Aircraft Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft , 
WT/DS70/R, adopted 20 August 1999, upheld by Appellate Body Report WT/DS70/AB/R, DSR 1999:IV, 1443 WT/AB/17 
Page 110  
 
 Short Title Full Case Title and Citation 
Canada – Aircraft 
(Article 21.5 – Brazil) Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft – Recourse by Brazil to Article 21.5 of the DSU , WT/DS70/AB/RW, 
adopted 4 August 2000, DSR 2000:IX, 4299 
Canada – Aircraft 
(Article 21.5 – Brazil) Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft – 
Recourse by Brazil to Article 21.5 of the DSU , WT/DS70/RW, adopted 4 
August 2000, as modified by Appellate Body Report WT/DS70/AB/RW,  
DSR 2000:IX, 4315 
Canada – Aircraft Credits and 
Guarantees Panel Report, Canada – Export Credits and Loan Guarantees for Regional 
Aircraft , WT/DS222/R and Corr.1, adopted 19 February 2002, DSR 2002:III, 
849 
Canada – Aircraft Credits and Guarantees 
(Article 22.6 – Canada) Decision by th e Arbitrator, Canada – Export Credits and Loan Guarantees for 
Regional Aircraft – Recourse to Arbitration by Canada under Article 22.6 of 
the DSU and Article 4.11 of the SCM Agreement , WT/DS222/ARB, 17 
February 2003, DSR 2003:III, 1187 
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, DSR 
2000:VI, 2985 
Canada – Autos Panel Report, Canada – Certain Measures Affecting the Automotive Industry , 
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, 3043 
Canada – Autos  (Article 21.3(c)) Award of the Arbitrator, Canada – Certain Measures Affecting the Automotive 
Industry – Arbitration under Article 21.3(c) of the DSU , WT/DS139/12, 
WT/DS142/12, 4 October 2000, DSR 2000:X, 5079 
Canada – Continued 
Suspension Appellate Body Report, Canada – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS321/AB/R, adopted 14 November 2008, 
DSR 2008:XIV, 5373 
Canada – Continued 
Suspension Panel Report, Canada – Continued Suspension of Obligations in the EC – 
Hormones Dispute , WT/DS321/R, adopted 14 November 2008, as modified 
by Appellate Body Report WT/DS321/AB/R, DSR 2008:XV, 5757-DSR 2008:XVII, 6717 
Canada – Dairy Appellate Body Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products , WT/DS103/AB/R, WT/DS113/AB/R 
and Corr.1, adopted 27 October 1999, DSR 1999:V, 2057 
Canada – Dairy Panel Report, Canada – Measures Affecting the Importation of Milk and the 
Exportation of Dairy Products , WT/DS103/R, WT/DS113/R, adopted 
27 October 1999, as modified by Appellate Body Report WT/DS103/AB/R, 
WT/DS113/AB/R, DSR 1999:VI, 2097 
Canada – Dairy 
(Article 21.5 – New Zealand and US) Appellate Body Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products – Recourse to Article 21.5 of the DSU by New Zealand and the United States , WT/DS103/AB/RW, 
WT/DS113/AB/RW, adopted 18 D ecember 2001, DSR 2001:XIII, 6829 
Canada – Dairy 
(Article 21.5 – New Zealand 
and US) Panel Report, Canada – Measures Affecting the Importation of Milk and the 
Exportation of Dairy Products – Recourse to Article 21.5 of the DSU by New 
Zealand and the United States , WT/DS103/RW, WT/DS113/RW, adopted  
18 December 2001, as reversed by Appellate Body Report 
WT/DS103/AB/RW, WT/DS113/AB/RW, DSR 2001:XIII, 6865  WT/AB/17 
 Page 111 
 
 
 Short Title Full Case Title and Citation 
Canada – Dairy 
(Article 21.5 – New Zealand 
and US II) Appellate Body Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products – Second Recourse to Article 21.5 of 
the DSU by New Zealand and the United States , WT/DS103/AB/RW2, 
WT/DS113/AB/RW2, adopted 17 January 2003, DSR 2003:I, 213 
Canada – Dairy (Article 21.5 – New Zealand 
and US II) Panel Report, Canada – Measures Affecting the Importation of Milk and the 
Exportation of Dairy Products – Second Recourse to Article 21.5 of the DSU 
by New Zealand and the United States , WT/DS103/RW2, WT/DS113/RW2, 
adopted 17 January 2003, as modified by Appellate Body Report WT/DS103/AB/RW2, WT/DS113/AB/RW2, DSR 2003:I, 255 
Canada – Patent Term Appellate Body Report, Canada – Term of Patent Protection , 
WT/DS170/AB/R, adopted 12 October 2000, DSR 2000:X, 5093 
Canada – Patent Term Panel Report, Canada – Term of Patent Protection , WT/DS170/R, adopted  
12 October 2000, upheld by Appellate Body Report WT/DS170/AB/R, DSR 
2000:XI, 5121 
Canada – Patent Term (Article 21.3(c)) Award of the Arbitrator, Canada – Term of Patent Protection – Arbitration 
under Article 21.3(c) of the DSU , WT/DS170/10, 28 February 2001, DSR 
2001:V, 2031 
Canada – Periodicals Appellate Body Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, 449 
Canada – Periodicals Panel Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/R and Corr.1, adopted 30 July 1997, as modified by Appellate Body Report WT/DS31/AB/R, DSR 1997:I, 481 
Canada – Pharmaceutical 
Patents Panel Report, Canada – Patent Protection of Pharmaceutical Products , 
WT/DS114/R, adopted 7 April 2000, DSR 2000:V, 2289 
Canada – Pharmaceutical Patents (Article 21.3(c)) Award of the Arbitrator, Canada – Patent Protection of Pharmaceutical 
Products – Arbitration under Article 21.3(c) of the DSU , WT/DS114/13,  
18 August 2000, DSR 2002:I, 3 
Canada – Wheat Exports and Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R, adopted 27 September 2004, 
DSR 2004:VI, 2739 
Canada – Wheat Exports and 
Grain Imports Panel Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/R, adopted 27 September 2004, 
upheld by Appellate Body Report WT/DS276/AB/R, DSR 2004:VI, 2817 
Chile – Alcoholic Beverages Appellate Body Report, Chile – Taxes on Alcoholic Beverages , 
WT/DS87/AB/R, WT/DS110/AB/R, adopted 12 January 2000, DSR 2000:I, 
281 
Chile – Alcoholic Beverages Panel Report, Chile – Taxes on Alcoholic Beverages , WT/DS87/R, 
WT/DS110/R, adopted 12 January 2000, as modified by Appellate Body Report WT/DS87/AB/R, WT/DS1 10/AB/R, DSR 2000:I, 303 
Chile – Alcoholic Beverages 
(Article 21.3(c)) Award of the Arbitrator, Chile – Taxes on Alcoholic Beverages – Arbitration 
under Article 21.3(c) of the DSU , WT/DS87/15, WT/DS110/14, 23 May 2000, 
DSR 2000:V, 2583 
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted  
23 October 2002, DSR 2002:VIII, 3045 (Corr.1, DSR 2006:XII, 5473) WT/AB/17 
Page 112  
 
 Short Title Full Case Title and Citation 
Chile – Price Band System Panel Report, Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products , WT/DS207/R, adopted 23 October 2002, as 
modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, 3127 
Chile – Price Band System 
(Article 21.3(c)) Award of the Arbitrator, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Arbitration under Article 21.3(c) of the DSU , WT/DS207/13, 17 March 2003, DSR 2003:III, 1237 
Chile – Price Band System 
(Article 21.5 – Argentina) Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Recourse to Article 21.5 of the 
DSU by Argentina , WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, 
513 
Chile – Price Band System (Article 21.5 – Argentina) Panel Report, Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products – Recourse to Article 21.5 of the DSU by 
Argentina , WT/DS207/RW and Corr.1, adopted 22 May 2007, upheld by 
Appellate Body Report WT/DS207/AB/RW, DSR 2007:II-III, 613 
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile 
Parts , WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted  
12 January 2009, DSR 2009:I, 3 
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile Parts , 
WT/DS339/R / WT/DS340/R / WT/DS342/R / and Add.1 and Add.2,  adopted 12 January 2009, upheld (WT/DS339/R) and as modified 
(WT/DS340/R / WT/DS342/R) by Appellate Body Reports WT/DS339/AB/R 
/ WT/DS340/AB/R / WT/DS342/AB/R, DSR 2009:I, 119- DSR 2009:II, 625 
China – Intellectual Property Rights Panel Report, China – Measures Affecting the Protection and Enforcement of 
Intellectual Property Rights , WT/DS362/R, adopted 20 March 2009, DSR 
2009:V, 2097 
China – Publications and 
Audiovisual Products Appellate Body Report, China –  Measures Affecting Trading Rights and 
Distribution Services for Certain Publications and Audiovisual Entertainment 
Products , WT/DS363/AB/R, adopted 19 January 2010, DSR 2010:I, 3 
China – Publications and 
Audiovisual Products Panel Report, China –  Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertainment Products , 
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate 
Body Report WT/DS363/AB/R, DSR 2010:II, 261 
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R / WT/DS395/AB/R / 
WT/DS398/AB/R, adopted 22 February 2012 
China – Raw Materials  Panel Reports, China – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R / WT/DS395/R / WT /DS398/R / and Corr.1, adopted 
22 February 2012, as modified by Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R 
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of 
Entry , WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, 2535 
Colombia – Ports of Entry 
(Article 21.3(c)) Award of the Arbitrator, Colombia – Indicative Prices and Restrictions on 
Ports of Entry – Arbitration under Article 21.3(c) of the DSU , WT/DS366/13, 
2 October 2009, DSR 2009:IX, 3819 
Dominican Republic – Import and Sale of Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, adopted  
19 May 2005, DSR 2005:XV, 7367  WT/AB/17 
 Page 113 
 
 
 Short Title Full Case Title and Citation 
Dominican Republic – Import 
and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the Importation and 
Internal Sale of Cigarettes , WT/DS302/R, adopted 19 May 2005, as modified 
by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, 7425 
Dominican Republic – Import 
and Sale of Cigarettes  (Article 21.3(c)) Report of the Arbitrator, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes  – Arbitration under Article 
21.3(c) of the DSU , WT/DS302/17, 29 August 2005, DSR 2005:XXIII, 11665 
Dominican Republic – 
Safeguard Measures Panel Report, Dominican Republic – Safeguard Measures on Imports of 
Polypropylene Bags and Tubular Fabric , WT/DS415/R, WT/DS416/R, 
WT/DS417/R, WT/DS418/R, adopted 22 February 2012 
EC – The ACP-EC Partnership Agreement Award of the Arbitrator, European Communities – The ACP-EC Partnership 
Agreement – Recourse to Arbitration Pursuant to the Decision of 14 November 2001 , WT/L/616, 1 August 2005, DSR 2005:XXIII, 11669 
EC – The ACP-EC 
Partnership Agreement II Award of the Arbitrator, European Communities – The ACP-EC Partnership 
Agreement – Second Recourse to Arbitration Pursuant to the Decision of 14 
November 2001 , WT/L/625, 27 October 2005, DSR 2005:XXIII, 11703 
EC – Approval and Marketing 
of Biotech Products Panel Report, European Communities – Measures Affecting the Approval and 
Marketing of Biotech Products , WT/DS291/R, WT/DS292/R, WT/DS293/R, 
Add.1 to Add.9, and Corr.1, adopted 21 November 2006, DSR 2006:III-VIII, 
847 
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting 
Asbestos and Asbestos-Containing Products , WT/DS135/AB/R, adopted  
5 April 2001, DSR 2001:VII, 3243 
EC – Asbestos Panel Report, European Communities – Measures Affecting Asbestos and 
Asbestos-Containing Products , WT/DS135/R and Add.1, adopted 5 April 
2001, as modified by Appellate Body Report WT/DS135/AB/R, DSR 2001:VIII, 3305 
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 
1997, DSR 1997:II, 591 
EC – Bananas III (Ecuador) Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas, Complaint by Ecuador , WT/DS27/R/ECU, adopted 
25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, 
DSR 1997:III, 1085 
EC – Bananas III (Guatemala 
and Honduras) Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas, Complaint by Guatemala and Honduras , 
WT/DS27/R/GTM, WT/DS27/R/HND, adopted 25 September 1997, as 
modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, 695 
EC – Bananas III (Mexico) Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Banana s, Complaint by Mexico , WT/DS27/R/MEX, adopted 
25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, 
DSR 1997:II, 803 
EC – Bananas III (US) Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas, Complaint by the United States , WT/DS27/R/USA, 
adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, 943 
EC – Bananas III  
(Article 21.3(c)) Award of the Arbitrator, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Arbitration under Article 
21.3(c) of the DSU , WT/DS27/15, 7 January 1998, DSR 1998:I, 3 WT/AB/17 
Page 114  
 
 Short Title Full Case Title and Citation 
EC – Bananas III 
(Article 21.5 – EC) Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Recourse to Article 21.5 of the DSU by the 
European Communities , WT/DS27/RW/EEC, 12 April 1999, and Corr.1, 
unadopted, DSR 1999:II, 783 
EC – Bananas III (Article 21.5 – Ecuador) Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Recourse to Article 21.5 of the DSU by Ecuador , 
WT/DS27/RW/ECU, adopted 6 May 1999, DSR 1999:II, 803 
EC – Bananas III 
(Article 21.5 – Ecuador II) / EC – Bananas III 
(Article 21.5 – US) Appellate Body Reports, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU, adopted 
11 December 2008, and Corr.1 / European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by the United States , WT/DS27/AB/RW/USA and Corr.1, adopted 
22 December 2008, DSR 2008:XVIII, 7165 
EC – Bananas III (Article 21.5 – Ecuador II) Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by 
Ecuador , WT/DS27/RW2/ECU, adopted 11 December 2008, as modified by 
Appellate Body Report WT/DS27/AB/RW2/ECU, DSR 2008:XVIII, 7329 
EC – Bananas III (Article 21.5 – US) Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Recourse to Article 21.5 of the DSU by the United 
States , WT/DS27/RW/USA and Corr.1, ad opted 22 December 2008, upheld 
by Appellate Body Report WT/DS27/AB/RW/USA, DSR 2008:XIX, 7761 
EC – Bananas III (Ecuador) 
(Article 22.6 – EC) Decision by th e Arbitrators, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Arbitration by 
the European Communities under Article 22.6 of the DSU , 
WT/DS27/ARB/ECU, 24 March 2000, DSR 2000:V, 2237 
EC – Bananas III (US) 
(Article 22.6 – EC) Decision by th e Arbitrators, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Arbitration by 
the European Communities under Article 22.6 of the DSU , WT/DS27/ARB,  
9 April 1999, DSR 1999:II, 725 
EC – Bed Linen Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted  
12 March 2001, DSR 2001:V, 2049 
EC – Bed Linen Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton-Type Bed Linen from India , WT/DS141/R, adopted 12 March 2001, as 
modified by Appellate Body Report WT/DS141/AB/R, DSR 2001:VI, 2077 
EC – Bed Linen 
(Article 21.5 – India) Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the 
DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 
965 
EC – Bed Linen 
(Article 21.5 – India) Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU  by 
India , WT/DS141/RW, adopted 24 April 2003, as modified by Appellate 
Body Report WT/DS141/AB/RW, DSR 2003:IV, 1269  
EC – Butter Panel Report, European Communities – Measures Affecting Butter Products , 
WT/DS72/R, 24 November 1999, unadopted 
EC – Chicken Cuts Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R, WT/DS286/AB/R, adopted 
27 September 2005, and Corr.1, DSR 2005:XIX, 9157  WT/AB/17 
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EC – Chicken Cuts (Brazil) Panel Report, European  Communities – Customs Classification of Frozen 
Boneless Chicken Cuts, Complaint by Brazil , WT/DS269/R, adopted 27 
September 2005, as modified by Appellate Body Report WT/DS269/AB/R, 
WT/DS286/AB/R, DSR 2005:XIX, 9295 
EC – Chicken Cuts (Thailand) Panel Report, European  Communities – Customs Classification of Frozen 
Boneless Chicken Cuts, Complaint by Thailand , WT/DS286/R, adopted  
27 September 2005, as modified by Appellate Body Report WT/DS269/AB/R, 
WT/DS286/AB/R, DSR 2005:XX, 9721 
EC – Chicken Cuts  (Article 21.3(c)) Award of the Arbitrator, European Communities – Customs Classification of 
Frozen Boneless Chicken Cuts – Arbitration under Article 21.3(c) of the DSU , 
WT/DS269/13, WT/DS286/15, 20 February 2006 
EC – Commercial Vessels Panel Report, European Communities – Measures Affecting Trade in 
Commercial Vessels , WT/DS301/R, adopted 20 June 2005, DSR 2005:XV, 
7713 
EC – Computer Equipment Appellate Body Report, European Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/AB/R, WT/DS67/AB/R, 
WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, 1851 
EC – Computer Equipment Panel Report, European Communities – Customs Classification of Certain 
Computer Equipment , WT/DS62/R, WT/DS67/R, WT/DS68/R, adopted  
22 June 1998, as modified by Appellate Body Report WT/DS62/AB/R, 
WT/DS67/AB/R, WT/DS68/AB/R, DSR 1998:V, 1891 
EC – Countervailing Measures on DRAM Chips Panel Report, European Communities – Countervailing Measures on Dynamic 
Random Access Memory Chips from Korea , WT/DS299/R, adopted 3 August 
2005, DSR 2005:XVIII, 8671 
EC – Export Subsidies on Sugar Appellate Body Report, European Communities – Export Subsidies on Sugar , 
WT/DS265/AB/R, WT/DS266/AB/R, WT /DS283/AB/R, adopted 19 May 
2005, DSR 2005:XIII, 6365 
EC – Export Subsidies on 
Sugar (Australia) Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Australia , WT/DS265/R, adopted 19 May 2005, as modified by Appellate 
Body Report WT/DS265/AB/R, WT /DS266/AB/R, WT/DS283/AB/R, DSR 
2005:XIII, 6499 
EC – Export Subsidies on Sugar (Brazil) Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Brazil , WT/DS266/R, adopted 19 May 2005, as modified by Appellate 
Body Report WT/DS265/AB/R, WT /DS266/AB/R, WT/DS283/AB/R, DSR 
2005:XIV, 6793 
EC – Export Subsidies on 
Sugar (Thailand) Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Thailand , WT/DS283/R, adopted 19 May 2005, as modified by Appellate 
Body Report WT/DS265/AB/R, WT /DS266/AB/R, WT/DS283/AB/R, DSR 
2005:XIV, 7071 
EC – Export Subsidies on 
Sugar (Article 21.3(c)) Award of the Arbitrator, European Communities – Export Subsidies on Sugar 
– Arbitration under Article 21.3(c) of the DSU , WT/DS265/33, 
WT/DS266/33, WT/DS283/14, 28 October 2005, DSR 2005:XXIII, 11581 
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R, 
adopted 28 July 2011 WT/AB/17 
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EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R and Corr.1, 
adopted 28 July 2011, as modified by Appellate Body Report 
WT/DS397/AB/R 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Hormones (Canada) Panel Report, EC Measures Concerning Meat and Meat Products 
(Hormones), Complaint by Canada , WT/DS48/R/CAN, adopted 13 February 
1998, as modified by Appellate Body Report WT/DS26/AB/R, 
WT/DS48/AB/R, DSR 1998:II, 235 
EC – Hormones (US) Panel Report, EC Measures Concerning Meat and Meat Products 
(Hormones), Complaint by the United States , WT/DS26/R/USA, adopted  
13 February 1998, as modified by Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:III, 699 
EC – Hormones  
(Article 21.3(c)) Award of the Arbitrator, EC Measures Concerning Meat and Meat Products 
(Hormones) – Arbitration under Article 21.3(c) of the DSU , WT/DS26/15, 
WT/DS48/13, 29 May 1998, DSR 1998:V, 1833 
EC – Hormones (Canada) (Article 22.6 – EC) Decision by th e Arbitrators, European Communities – Measures Concerning 
Meat and Meat Products (Hormones), Original Complaint by Canada – 
Recourse to Arbitration by the European Communities under Article 22.6 of 
the DSU , WT/DS48/ARB, 12 July 1999, DSR 1999:III, 1135 
EC – Hormones (US) 
(Article 22.6 – EC) Decision by th e Arbitrators, European Communities – Measures Concerning 
Meat and Meat Products (Hormones), Original Complaint by the United States – Recourse to Arbitration by the European Communities under Article 
22.6 of the DSU , WT/DS26/ARB, 12 July 1999, DSR 1999:III, 1105 
EC – IT Products Panel Reports, European Communities and its member States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R / 
WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III, 
933-DSR 2010:IV, 1567 
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 
1998, DSR 1998:V, 2031 
EC – Poultry Panel Report, European Communities – Measures Affecting the Importation of 
Certain Poultry Products , WT/DS69/R, adopted 23 July 1998, as modified by 
Appellate Body Report WT/DS69/AB/R, DSR 1998:V, 2089 
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R, adopted 15 January 2008, and Corr.1, 
DSR 2008:I, 3 
EC – Sardines Appellate Body Report, European Communities – Trade Description of 
Sardines , WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3359 
EC – Sardines Panel Report, European Communities – Trade Description of Sardines , 
WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by Appellate 
Body Report WT/DS231/AB/R, DSR 2002:VIII, 3451 
EC – Scallops (Canada) Panel Report, European Communities – Trade Description of Scallops – 
Request by Canada , WT/DS7/R, 5 August 1996, unadopted, DSR 1996:I, 89  WT/AB/17 
 Page 117 
 
 
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EC – Scallops (Peru and 
Chile) Panel Report, European Communities – Trade Description of Scallops – 
Requests by Peru  and Chile , WT/DS12/R, WT/DS14/R, 5 August 1996, 
unadopted, DSR 1996:I, 93 
EC – Selected Customs 
Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adop ted 11 December 2006,  DSR 2006:IX, 3791 
EC – Selected Customs 
Matters Panel Report, European Communities – Selected Customs Matters , 
WT/DS315/R, adopted 11 December 2006, as modified by Appellate Body 
Report WT/DS315/AB/R, DSR 2006:IX-X, 3915 
EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the Granting 
of Tariff Preferences to Developing Countries , WT/DS246/AB/R, adopted 20 
April 2004, DSR 2004:III, 925 
EC – Tariff Preferences Panel Report, European Communities – Conditions for the Granting of Tariff 
Preferences to Developing Countries , WT/DS246/R, adopted 20 April 2004, 
as modified by Appellate Body Report WT/DS/246/AB/R, DSR 2004:III, 
1009 
EC – Tariff Preferences (Article 21.3(c)) Award of the Arbitrator, European Communities – Conditions for the 
Granting of Tariff Preference s to Developing Countries  – Arbitration under 
Article 21.3(c) of the DSU , WT/DS246/14, 20 September 2004, DSR 2004:IX, 
4313 
EC – Trademarks and Geographical Indications (Australia) Panel Report,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs, Complaint by Australia , WT/DS290/R, adopted 20 April 2005, DSR 2005:X, 
4603 
EC – Trademarks and 
Geographical Indications (US) Panel Report,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs, Complaint by the United States , WT/DS174/R, adopted 20 April 2005, DSR 
2005:VIII, 3499 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003, DSR 2003:VI, 2613 
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-Dumping Duties on Malleable 
Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/R, adopted 18 
August 2003, as modified by Appellate Body Report WT/DS219/AB/R, DSR 
2003:VII, 2701 
EC and certain member States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R, adopted 
1 June 2011 
EC and certain member States 
– Large Civil Aircraft Panel Report, European Communities and Certain Member States – Measures 
Affecting Trade in Large Civil Aircraft , WT/DS316/R, adopted 1 June 2011, 
as modified by Appellate Body Report, WT/DS316/AB/R 
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from 
Turkey , WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, 2667 
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain 
Footwear from China , WT/DS405/R, adopted 22 February 2012 
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 November 1998, 
DSR 1998:IX, 3767 WT/AB/17 
Page 118  
 
 Short Title Full Case Title and Citation 
Guatemala – Cement I Panel Report, Guatemala – Anti-Dumping Investigation Regarding Portland 
Cement from Mexico , WT/DS60/R, adopted 25 November 1998, as reversed 
by Appellate Body Report WT/DS60/AB/R, DSR 1998:IX, 3797 
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R, adopted 17 November 2000, 
DSR 2000:XI, 5295 
India – Additional Import 
Duties Appellate Body Report, India – Additional and Extra-Additional Duties on 
Imports from the United States , WT/DS360/AB/R, adopted 17 November 
2008, DSR 2008:XX, 8223 
India – Additional Import Duties Panel Report, India – Additional and Extra-Add itional Duties on Imports from 
the United States , WT/DS360/R, adopted 17 November 2008, as reversed by 
Appellate Body Report WT/DS360/AB/R, DSR 2008:XX, 8317 
India – Autos Appellate Body Report, India – Measures Affecting the Automotive Sector , 
WT/DS146/AB/R, WT/DS175/AB/R, adopted 5 April 2002, DSR 2002:V, 
1821 
India – Autos Panel Report, India – Measures Affecting the Automotive Sector , 
WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, 
1827 
India – Patents (EC) Panel Report, India – Patent Protection for Pharmaceutical and Agricultural 
Chemical Products, Complaint by the European Communities and their 
member States , WT/DS79/R, adopted 22 September 1998, DSR 1998:VI, 2661
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, 9 
India – Patents (US) Panel Report, India – Patent Protection for Pharmaceutical and Agricultural 
Chemical Products, Complaint by the United States , WT/DS50/R, adopted  
16 January 1998, as modified by Appellate Body Report WT/DS50/AB/R, 
DSR 1998:I, 41 
India – Quantitative Restrictions Appellate Body Report, India – Quantitative Restrictions on Imports of 
Agricultural, Textile and Industrial Products , WT/DS90/AB/R, adopted  
22 September 1999, DSR 1999:IV, 1763 
India – Quantitative Restrictions Panel Report, India – Quantitative Restrictions on Imports of Agricultural, 
Textile and Industrial Products , WT/DS90/R, adopted 22 September 1999, 
upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, 1799 
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile 
Industry , WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and Corr.1 
and 2, adopted 23 July 1998, and Corr. 3 and 4, DSR 1998:VI, 2201 
Indonesia – Autos  (Article 21.3(c)) Award of the Arbitrator, Indonesia – Certain Measures Affecting the 
Automobile Industry – Arbitration under Article 21.3(c) of the DSU , 
WT/DS54/15, WT/DS55/14, WT/DS59/ 13, WT/DS64/12, 7 December 1998, 
DSR 1998:IX, 4029 
Japan – Agricultural  Products II Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277 
Japan – Agricultural  Products II Panel Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/R, adopted 19 March 1999, as modified by Appellate Body Report 
WT/DS76/AB/R, DSR 1999:I, 315  WT/AB/17 
 Page 119 
 
 
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Japan – Alcoholic  
Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 
1996, DSR 1996:I, 97 
Japan – Alcoholic  
Beverages II Panel Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/R, 
WT/DS10/R, WT/DS11/R, adopted 1 November 1996, as modified by Appellate Body Report WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 
DSR 1996:I, 125 
Japan – Alcoholic  
Beverages II  (Article 21.3(c)) Award of the Arbitrator, Japan – Taxes on Alcoholic Beverages – Arbitration 
under Article 21.3(c) of the DSU , WT/DS8/15, WT/DS10/15, WT/DS11/13, 
14 February 1997, DSR 1997:I, 3 
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of 
Apples , WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 4391 
Japan – Apples Panel Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/R, adopted 10 December 2003, upheld by Appellate Body Report 
WT/DS245/AB/R, DSR 2003:IX, 4481  
Japan – Apples 
(Article 21.5 – US) Panel Report, Japan – Measures Affecting the Importation of Apples – 
Recourse to Article 21.5 of the DSU by the United States , WT/DS245/RW, 
adopted 20 July 2005, DSR 2005:XVI, 7911 
Japan – DRAMs (Korea) Appellate Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R and Corr.1, adopted  
17 December 2007, DSR 2007:VII, 2703 
Japan – DRAMs (Korea) Panel Report, Japan – Countervailing Dutie s on Dynamic Random Access 
Memories from Korea , WT/DS336/R, adopted 17 December 2007, as 
modified by Appellate Body Report WT/DS336/AB/R, DSR 2007:VII, 2805 
Japan – DRAMs (Korea) (Article 21.3(c)) Award of the Arbitrator, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea – Arbitration under Article 21.3(c) of the DSU , 
WT/DS336/16, 5 May 2008, DSR 2008:XX, 8553 
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and 
Paper , WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179 
Japan – Quotas on Laver Panel Report, Japan – Import Quotas on Dried Laver and Seasoned Laver , 
WT/DS323/R, 1 February 2006, unadopted 
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages , 
WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, 3 
Korea – Alcoholic Beverages Panel Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/R, 
WT/DS84/R, adopted 17 February 1999, as modified by Appellate Body Report WT/DS75/AB/R, WT/DS84/AB/R, DSR 1999:I, 44 
Korea – Alcoholic Beverages 
(Article 21.3(c)) Award of the Arbitrator, Korea – Taxes on Alcoholic Beverages – Arbitration 
under Article 21.3(c) of the DSU , WT/DS75/16, WT/DS84/14, 4 June 1999, 
DSR 1999:II, 937 
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from 
Indonesia , WT/DS312/R, adopted 28 November 2005, DSR 2005:XXII, 
10637 
Korea – Certain Paper 
(Article 21.5 – Indonesia) Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from 
Indonesia – Recourse to Article 21.5 of the DSU by Indonesia , 
WT/DS312/RW, adopted 22 October 2007, DSR 2007:VIII, 3369 WT/AB/17 
Page 120  
 
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Korea – Commercial Vessels Panel Report, Korea – Measures Affecting Trade in Commercial Vessels , 
WT/DS273/R, adopted 11 April 2005, DSR 2005:VII, 2749 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, DSR 
2000:I, 3 
Korea – Dairy Panel Report, Korea – Definitive Safeguard Measure on Imports of Certain 
Dairy Products , WT/DS98/R and Corr.1, adopted 12 January 2000, as 
modified by Appellate Body Report WT/DS98/AB/R, DSR 2000:I, 49 
Korea – Procurement Panel Report, Korea – Measures Affecting Government Procurement , 
WT/DS163/R, adopted 19 June 2000, DSR 2000:VIII, 3541 
Korea – Various Measures on 
Beef Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 
2001, DSR 2001:I, 5 
Korea – Various Measures on Beef Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled and 
Frozen Beef , WT/DS161/R, WT/DS169/R, adopted 10 January 2001, as 
modified by Appellate Body Report  WT/DS161/AB/R, WT/DS169/AB/R, 
DSR 2001:I, 59 
Mexico – Anti-Dumping Measures on Rice Appellate Body Report, Mexico – Definitive Anti-Dump ing Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted  
20 December 2005, DSR 2005:XXII, 10853 
Mexico – Anti-Dumping 
Measures on Rice Panel Report, Mexico – Definitive Anti-Dumping Me asures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R, adopted 20 December 2005,  
as modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, 
11007 
Mexico – Corn Syrup Panel Report, Mexico – Anti-Dumping Investigatio n of High Fructose Corn 
Syrup (HFCS) from the United States , WT/DS132/R, adopted 24 February 
2000, and Corr.1, DSR 2000:III, 1345 
Mexico – Corn Syrup (Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United States – Recourse to Article 
21.5 of the DSU  by the United States , WT/DS132/AB/RW, adopted 21 
November 2001, DSR 2001:XIII, 6675 
Mexico – Corn Syrup (Article 21.5 – US) Panel Report, Mexico – Anti-Dumping Investigatio n of High Fructose Corn 
Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU  
by the United States , WT/DS132/RW, adopted 21 November 2001, upheld by 
Appellate Body Report WT/DS132/AB/RW, DSR 2001:XIII, 6717 
Mexico – Olive Oil Panel Report, Mexico – Definitive Countervailing Measures on Olive Oil from 
the European Communities , WT/DS341/R, adopted 21 October 2008, DSR 
2008:IX, 3179 
Mexico – Steel Pipes and Tubes Panel Report, Mexico – Anti-Dumping Duties on  Steel Pipes and Tubes from 
Guatemala , WT/DS331/R, adopted 24 July 2007, DSR 2007:IV, 1207 
Mexico – Taxes on Soft Drinks Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other 
Beverages , WT/DS308/AB/R, adopted 24 March 2006, DSR 2006:I, 3 
Mexico – Taxes on Soft Drinks Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages , 
WT/DS308/R, adopted 24 March 2006, as modified by Appellate Body Report WT/DS308/AB/R, DSR 2006:I, 43 
Mexico – Telecoms Panel Report, Mexico – Measures Affecting Telecommunications Services , 
WT/DS204/R, adopted 1 June 2004, DSR 2004:IV, 1537  WT/AB/17 
 Page 121 
 
 
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Philippines – Distilled Spirits Appellate Body Reports, Philippines – Taxes on Distilled Spirits , 
WT/DS396/AB/R / WT/DS403/AB/R, adopted 20 January 2012 
Philippines – Distilled Spirits Panel Reports, Philippines – Taxes on Distilled Spirits , WT/DS396/R / 
WT/DS403/R, adopted 20 January 2012, as modified by Appellate Body 
Reports WT/DS396/AB/R / WT/DS403/AB/R 
Thailand – Cigarettes (Philippines) Appellate Body Report, Thailand – Customs and Fiscal Measures on 
Cigarettes from the Philippines , WT/DS371/AB/R, adopted 15 July 2011 
Thailand – Cigarettes 
(Philippines) Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the 
Philippines , WT/DS371/R, adopted 15 July 2011, as modified by Appellate 
Body Report WT/DS371/AB/R 
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes 
and Sections of Iron or Non-Alloy Steel and H-Beams from Poland , 
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, 2701 
Thailand – H-Beams Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non-Alloy Steel and H-Beams from Poland , WT/DS122/R, 
adopted 5 April 2001, as modified by Appellate Body Report 
WT/DS122/AB/R, DSR 2001:VII, 2741 
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice , 
WT/DS334/R, adopted 22 October 2007, DSR 2007:VI, 2151 
Turkey – Textiles Appellate Body Report, Turkey – Restrictions on Imports of Textile and 
Clothing Products , WT/DS34/AB/R, adopted 19 November 1999, DSR 
1999:VI, 2345 
Turkey – Textiles Panel Report, Turkey – Restrictions on Imports of Textile and Clothing 
Products , WT/DS34/R, adopted 19 November 1999, as modified by Appellate 
Body Report WT/DS34/AB/R, DSR 1999:VI, 2363 
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 
2000:X, 4793 
US – 1916 Act (EC) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by the 
European Communities , WT/DS136/R and Corr.1, adopted 26 September 
2000, upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, 
DSR 2000:X, 4593 
US – 1916 Act (Japan) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by Japan , 
WT/DS162/R and Add.1, adopted 26 September 2000, upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4831 
US – 1916 Act  
(Article 21.3(c)) Award of the Arbitrator, United States – Anti-Dumping Act of 1916 – 
Arbitration under Article 21.3(c) of the DSU , WT/DS136/11, WT/DS162/14, 
28 February 2001, DSR 2001:V, 2017 
US – 1916 Act (EC) (Article 22.6 – US) Decision by th e Arbitrators, United States – Anti-Dumping Act of 1916, 
Original Complaint by the European Communities – Recourse to Arbitration 
by the United States under Article 22.6 of the DSU , WT/DS136/ARB,  
24 February 2004, DSR 2004:IX, 4269 
US – Anti-Dumping and Countervailing Duties (China) Appellate Body Report, United States – Definitive Anti-Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R, 
adopted 25 March 2011 WT/AB/17 
Page 122  
 
 Short Title Full Case Title and Citation 
US – Anti-Dumping and 
Countervailing Duties (China) Panel Report, United States – Definitive Anti-Dumping and Countervailing 
Duties on Certain Products from China , WT/DS379/R, adopted 25 March 2011, 
as modified by Appellate Body Report WT/DS379/AB/R 
US – Anti-Dumping Measures 
on Oil Country Tubular Goods Appellate Body Report, United States – Anti-Dumping Measures on Oil 
Country Tubular Goods (OCTG) from Mexico , WT/DS282/AB/R, adopted  
28 November 2005, DSR 2005:XX, 10127 
US – Anti-Dumping Measures 
on Oil Country Tubular Goods Panel Report, United States – Anti-Dumping Measures on Oil Country 
Tubular Goods (OCTG) from Mexico , WT/DS282/R, adopted 28 November 
2005, as modified by Appellate Body Report WT/DS282/AB/R, DSR 2005:XXI, 10225 
US – Anti-Dumping Measures on PET Bags Panel Report, United States – Anti-Dumping Measures on Polyethylene Retail 
Carrier Bags from Thailand , WT/DS383/R, adopted 18 February 2010, DSR 
2010:IV, 1841 
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 
3779 
US – Carbon Steel Panel Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , WT/DS213/R 
and Corr.1, adopted 19 December 2002, as modified by Appellate Body 
Report WT/DS213/AB/R, DSR 2002:IX, 3833 
US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain Products 
from the European Communities , WT/DS165/AB/R, adopted 10 January 
2001, DSR 2001:I, 373 
US – Certain EC Products Panel Report, United States – Import Measures on Certain Products from the 
European Communities , WT/DS165/R and Add.1, adopted 10 January 2001, 
as modified by Appellate Body Report WT/DS165/AB/R, DSR 2001:II, 413 
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production 
and Sale of Clove Cigarettes , WT/DS406/AB/R, adopted 24 April 2012 
US – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and Sale of 
Clove Cigarettes , WT/DS406/R, adopted 24 April 2012, as modified by 
Appellate Body Report WT/DS406/AB/R 
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of Obligations 
in the EC – Hormones Dispute , WT/DS320/AB/R, adopted 14 November 
2008, DSR 2008:X, 3507 
US – Continued Suspension Panel Report, United States – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS320/R, adopted 14 November 2008, as 
modified by Appellate Body Report WT/DS320/AB/R, DSR 2008:XI, 3891-
DSR 2008:XIII, 4913 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009, DSR 
2009:III, 1291 
US – Continued Zeroing Panel Report, United States – Continued Existence and Application of Zeroing 
Methodology , WT/DS350/R, adopted 19 February 2009, as modified as 
Appellate Body Report WT/DS350/AB/R, DSR 2009:III, 1481- DSR 2009:IV, 1619  WT/AB/17 
 Page 123 
 
 
 Short Title Full Case Title and Citation 
US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R / WT/DS386/R, circulated to WTO Members 
18 November 2011 [appeal in progress] 
US – Corrosion-Resistant 
Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti-Dumping 
Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3  
US – Corrosion-Resistant 
Steel Sunset Review Panel Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244/R, 
adopted 9 January 2004, as modified by Appellate Body Report WTDS244/AB/R, DSR 2004:I, 85  
US – Cotton Yarn Appellate Body Report, United States – Transitional Safeguard Measure on 
Combed Cotton Yarn from Pakistan , WT/DS192/AB/R, adopted 5 November 
2001, DSR 2001:XII, 6027 
US – Cotton Yarn Panel Report, United States – Transitional Safeguard Measure on Combed 
Cotton Yarn from Pakistan , WT/DS192/R, adopted 5 November 2001, as 
modified by Appellate Body Report WT/DS192/AB/R, DSR 2001:XII, 6067 
US – Countervailing Duty 
Investigation on DRAMS Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, 8131 
US – Countervailing Duty Investigation on DRAMS Panel Report, United States – Countervailing Duty Investigation on Dynamic 
Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/R, adopted 20 July 2005, as modified by Appellate Body Report 
WT/DS296/AB/R, DSR 2005:XVII, 8243 
US – Countervailing Measures 
on Certain EC Products Appellate Body Report, United States – Countervailing Measures Concerning 
Certain Products from the European Communities , WT/DS212/AB/R, 
adopted 8 January 2003, DSR 2003:I, 5 
US – Countervailing Measures 
on Certain EC Products Panel Report, United States – Countervailing Measures Concerning Certain 
Products from the European Communities , WT/DS212/R, adopted 8 January 
2003, as modified by Appellate Body Report WT/DS212/AB/R, DSR 2003:I, 73 
US – Countervailing Measures on Certain EC Products 
(Article 21.5 – EC) Panel Report, United States – Countervailing Measures Concerning Certain 
Products from the European Communities – Recourse to Article 21.5 of the 
DSU by the European Communities , WT/DS212/RW, adopted 27 September 
2005, DSR 2005:XVIII, 8950 
US – Customs Bond Directive Panel Report, United States – Customs Bond Directive for Merchandise 
Subject to Anti-Dumping/Countervailing Duties , WT/DS345/R, adopted  
1 August 2008, as modified by Appellate Body Report WT/DS343/AB/R / 
WT/DS345/AB/R, DSR 2008:VIII, 2925 
US – DRAMS Panel Report, United States – Anti-Dumping Duty on Dynamic Random 
Access Memory Semiconductors (DRAMS) of One Megabit or Above from 
Korea , WT/DS99/R, adopted 19 March 1999, DSR 1999:II, 521 
US – DRAMS 
(Article 21.5 – Korea) Panel Report, United States – Anti-Dumping Duty on Dynamic Random 
Access Memory Semiconductors (DRAMS) of One Megabit or Above from 
Korea – Recourse to Article 21.5 of the DSU by Korea , WT/DS99/RW,  
7 November 2000, unadopted 
US – Export Restraints Panel Report, United States – Measures Treating Exports Restraints as 
Subsidies , WT/DS194/R and Corr.2, adopted 23 August 2001, DSR 2001:XI, 
5767 WT/AB/17 
Page 124  
 
 Short Title Full Case Title and Citation 
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/AB/R, adopted 20 March 2000, DSR 2000:III, 
1619 
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/R, adopted 20 March 2000, as modified by 
Appellate Body Report WT/DS108/AB/R, DSR 2000:IV, 1675 
US – FSC 
(Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Article 21.5 of the DSU by the European 
Communities , WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, 55 
US – FSC 
(Article 21.5 – EC) Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Article 21.5 of the DSU by the European Communities , WT/DS108/RW, adopted 29 January 2002, as modified by 
Appellate Body Report WT/DS108/AB/RW, DSR 2002:I, 119 
US – FSC 
(Article 21.5 – EC II) Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Second Recourse to Article 21.5 of the DSU by the European Communities , WT/DS108/AB/RW2, adopted 14 March 2006, DSR 2006:XI, 
4721 
US – FSC 
(Article 21.5 – EC II) Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Second Recourse to Article 21.5 of the DSU by the European Communities , WT/DS108/RW2, adopted 14 March 2006, upheld by Appellate 
Body Report WT/DS108/AB/RW2, DSR 2006:XI, 4761 
US – FSC (Article 22.6 – US) Decision by th e Arbitrator, United States – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Arbitration by the United States under Article 
22.6 of the DSU and Article 4.11 of the SCM Agreement , WT/DS108/ARB,  
30 August 2002, DSR 2002:VI, 2517 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 20 April 
2005, DSR 2005:XII, 5663 (Corr.1, DSR 2006:XII, 5475) 
US – Gambling Panel Report, United States – Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services , WT/DS285/R, adopted 20 April 2005, as 
modified by Appellate Body Report WT/DS285/AB/R, DSR 2005:XII, 5797 
US – Gambling  (Article 21.3(c)) Award of the Arbitrator, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services – Arbitration under Article 21.3(c) 
of the DSU , WT/DS285/13, 19 August 2005, DSR 2005:XXIII, 11639 
US – Gambling 
(Article 21.5 – Antigua 
and Barbuda) Panel Report, United States – Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services – Recourse to Article 21.5 of the DSU by 
Antigua and Barbuda , WT/DS285/RW, adopted 22 May 2007, DSR 
2007:VIII, 3105 
US – Gambling (Article 22.6 – US) Decision by th e Arbitrator, United States – Measures Affecting the 
Cross-Border Supply of Gambling and Betting Services – Recourse to 
Arbitration by the United States under Article 22.6 of the DSU , 
WT/DS285/ARB, 21 Decembe r 2007, DSR 2007:X, 4163 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3
US – Gasoline Panel Report, United States – Standards for Reformulated and Conventional 
Gasoline , WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body 
Report WT/DS2/AB/ R, DSR 1996:I, 29  WT/AB/17 
 Page 125 
 
 
 Short Title Full Case Title and Citation 
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 23 August 
2001, DSR 2001:X, 4697 
US – Hot-Rolled Steel Panel Report, United States – Anti-Dumping Measures on Certain Hot-Rolled 
Steel Products from Japan , WT/DS184/R, adopted 23 August 2001 modified 
by Appellate Body Report WT/DS184/AB/R, DSR 2001:X, 4769 
US – Hot-Rolled Steel  
(Article 21.3(c)) Award of the Arbitrator, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan – Arbitration under Article 21.3(c) of 
the DSU , WT/DS184/13, 19 February 2002, DSR 2002:IV, 1389 
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX, 
4051 
US – Lamb Panel Report, United States – Safeguard Measures on Imports of Fresh, 
Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/R, WT/DS178/R, adopted 16 May 2001, as modified by Appellate 
Body Report WT/DS177/AB/R, WT/DS178/AB/R, DSR 2001:IX, 4107 
US – Large Civil Aircraft  
(2nd complaint) Appellate Body Report, United States – Measures Affecting Trade in Large 
Civil Aircraft (Second Complaint) , WT/DS353/AB/R, adopted 23 March 2012
US – Large Civil Aircraft  
(2nd complaint) Panel Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/R, adopted 23 March 2012, as 
modified by Appellate Body Report WT/DS353/AB/R 
US – Lead and Bismuth II Appellate Body Report, United States – Imposition of Countervailing Duties 
on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating 
in the United Kingdom , WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, 
2595 
US – Lead and Bismuth II Panel Report, United States – Imposition of Countervailing Duties on Certain 
Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the 
United Kingdom , WT/DS138/R and Corr.2, adopted 7 June 2000, upheld by 
Appellate Body Report WT/DS138/AB/R, DSR 2000:VI, 2623 
US – Line Pipe Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Circular Welded Carbon Quality Line Pipe from Korea , 
WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, 1403 
US – Line Pipe Panel Report, United States – Definitive Safeguard Measures on Imports of 
Circular Welded Carbon Quality Line Pipe from Korea , WT/DS202/R, 
adopted 8 March 2002, as modified by Appellate Body Report 
WT/DS202/AB/, DSR 2002:IV, 1473 
US – Line Pipe  
(Article 21.3(c)) Report of the Arbitrator, United States – Definitive Safeguard Measures on 
Imports of Circular Welded Carbon Quality Line Pipe from Korea – Arbitration under Article 21.3(c) of the DSU , WT/DS202/17, 26 July 2002, 
DSR 2002:V, 2061 
US – Offset Act (Byrd Amendment) Appellate Body Report, United States – Continued Dumping and Subsidy 
Offset Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 
2003, DSR 2003:I, 375 
US – Offset Act (Byrd Amendment) Panel Report, United States – Continued Dumping and Subsidy Offset Act of 
2000 , WT/DS217/R, WT/DS234/R, adopted 27 January 2003, as modified by 
Appellate Body Report WT/DS217/AB/R, WT/DS234/AB/R, DSR 2003:II, 
489 WT/AB/17 
Page 126  
 
 Short Title Full Case Title and Citation 
US – Offset Act 
(Byrd Amendment)  
(Article 21.3(c)) Award of the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000 – Arbitration under Article 21.3(c) of the DSU , 
WT/DS217/14, WT/DS234/22, 13 June 2003, DSR 2003:III, 1163 
US – Offset Act 
(Byrd Amendment) (Brazil) (Article 22.6 – US) Decision by th e Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by Brazil – Recourse to Arbitration by the United States under Article 22.6 of the DSU , WT/DS217/ARB/BRA,  
31 August 2004, DSR 2004:IX, 4341 
US – Offset Act 
(Byrd Amendment) (Canada) (Article 22.6 – US) Decision by th e Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by Canada – Recourse to Arbitration by the United States under Article 22.6 of the DSU , WT/DS234/ARB/CAN, 
31 August 2004, DSR 2004:IX, 4425 
US – Offset Act (Byrd Amendment) (Chile) 
(Article 22.6 – US) Decision by th e Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by Chile – Recourse to Arbitration by 
the United States under Article 22.6 of the DSU , WT/DS217/ARB/CHL,  
31 August 2004, DSR 2004:IX, 4511 
US – Offset Act 
(Byrd Amendment) (EC) 
(Article 22.6 – US) Decision by th e Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by the European Communities – 
Recourse to Arbitration by the United States under Article 22.6 of the DSU , 
WT/DS217/ARB/EEC, 31 August 2004, DSR 2004:IX, 4591 
US – Offset Act 
(Byrd Amendment) (India) 
(Article 22.6 – US) Decision by th e Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by India – Recourse to Arbitration by 
the United States under Article 22.6 of the DSU , WT/DS217/ARB/IND,  
31 August 2004, DSR 2004:X, 4691 
US – Offset Act (Byrd Amendment) (Japan) 
(Article 22.6 – US) Decision by th e Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by Japan – Recourse to Arbitration by 
the United States under Article 22.6 of the DSU , WT/DS217/ARB/JPN,  
31 August 2004, DSR 2004:X, 4771 
US – Offset Act (Byrd Amendment) (Korea) 
(Article 22.6 – US) Decision by th e Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by Korea – Recourse to Arbitration by 
the United States under Article 22.6 of the DSU , WT/DS217/ARB/KOR,  
31 August 2004, DSR 2004:X, 4851 
US – Offset Act (Byrd Amendment) (Mexico) 
(Article 22.6 – US) Decision by th e Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Origin al Complaint by Mexico – Recourse to Arbitration 
by the United States under Article 22.6 of the DSU , WT/DS234/ARB/MEX, 
31 August 2004, DSR 2004:X, 4931 
US – Oil Country Tubular Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, 3257 
US – Oil Country Tubular Goods Sunset Reviews Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on 
Oil Country Tubular Goods from Argentina , WT/DS268/R and Corr.1, 
adopted 17 December 2004, as modified by Appellate Body Report W/DS/268/AB/R, DSR 2004:VIII, 3421 
US – Oil Country Tubular 
Goods Sunset Reviews  
(Article 21.3(c)) Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina – Arbitration under 
Article 21.3(c) of the DSU , WT/DS268/12, 7 June 2005, DSR 2005:XXIII, 
11619  WT/AB/17 
 Page 127 
 
 
 Short Title Full Case Title and Citation 
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article 21.5 – Argentina) Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina – Recourse to 
Article 21.5 of the DSU by Argentina , WT/DS268/AB/RW, adopted 11 May 
2007, DSR 2007:IX, 3523 
US – Oil Country Tubular Goods Sunset Reviews 
(Article 21.5 – Argentina) Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on 
Oil Country Tubular Goods from Argentina – Recourse to Article 21.5 of the 
DSU by Argentina , WT/DS268/RW, adopted 11 May 2007, as modified by 
Appellate Body Report WT/DS268/AB/RW, DSR 2007:IX-X, 3609 
US – Orange Juice (Brazil) Panel Report, United States – Anti-Dumping Administrative Reviews and 
Other Measures Related to Imports of  Certain Orange Juice from Brazil , 
WT/DS382/R, adopted 17 June 2011 
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry 
from China , WT/DS392/R, adopted 25 October 2010, DSR 2010:V, 1909 
US – Section 110(5) Copyright 
Act Panel Report, United States – Section 110(5) of the US Copyright Act , 
WT/DS160/R, adopted 27 July 2000, DSR 2000:VIII, 3769 
US – Section 110(5) Copyright Act  
(Article 21.3(c)) Award of the Arbitrator, United States – Section 110(5) of the US Copyright 
Act – Arbitration under Article 21.3(c) of the DSU , WT/DS160/12, 15 January 
2001, DSR 2001:II, 657 
US – Section 110(5) Copyright Act  
(Article 25) Award of the Arbitrators, United States – Section 110(5) of the US Copyright 
Act – Recourse to Arbitration under Article 25 of the DSU , 
WT/DS160/ARB25/1, 9 November 2001, DSR 2001:II, 667 
US – Section 129(c)(1) URAA Panel Report, United States – Section 129(c)(1) of the Uruguay Round 
Agreements Act , WT/DS221/R, adopted 30 August 2002, DSR 2002:VII, 2581
US – Section 211 
Appropriations Act Appellate Body Report, United States – Section 211 Omnibus Appropriations 
Act of 1998 , WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, 589 
US – Section 211 
Appropriations Act Panel Report, United States – Section 211 Omnibus Appropriations Act of 
1998 , WT/DS176/R, adopted 1 February 2002, as modified by Appellate 
Body Report WT/DS176/AB/R, DSR 2002:II, 683 
US – Section 301 Trade Act Panel Report, United States – Sections 301-310 of the Trade Act of 1974 , 
WT/DS152/R, adopted 27 January 2000, DSR 2000:II, 815 
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, DSR 
1998:VII, 2755 
US – Shrimp Panel Report, United States – Import Prohibition of Certain Shrimp and 
Shrimp Products , WT/DS58/R and Corr.1, adopted 6 November 1998, as 
modified by Appellate Body Report WT/DS58/AB/R, DSR 1998:VII, 2821 
US – Shrimp 
(Article 21.5 – Malaysia) Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6481 
US – Shrimp (Article 21.5 – Malaysia) Panel Report, United States – Import Prohibition of Certain Shrimp and 
Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia , 
WT/DS58/RW, adopted 21 November 2001, upheld by Appellate Body 
Report WT/DS58/AB/RW, DSR 2001:XIII, 6529 
US – Shrimp (Ecuador) Panel Report, United States – Anti-Dumping Measure on Shrimp from 
Ecuador , WT/DS335/R, adopted on 20 February 2007, DSR 2007:II, 425 WT/AB/17 
Page 128  
 
 Short Title Full Case Title and Citation 
US – Shrimp (Thailand) / 
US – Customs Bond Directive Appellate Body Report, United States – Measures Relating to Shrimp from 
Thailand / United States – Customs Bond Directive for Merchandise Subject 
to Anti-Dumping/Countervailing Duties , WT/DS343/AB/R / 
WT/DS345/AB/R, adopted 1 August 2008, DSR 2008:VII, 2385 / DSR 2008:VIII, 2773 
US – Shrimp (Thailand) Panel Report, United States – Measures Relating to Shrimp from Thailand , 
WT/DS343/R, adopted 1 August 2008, as modified by Appellate Body Report 
WT/DS343/AB/R / WT/DS345/AB/R, DSR 2008:VII, 2539 
US – Shrimp (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from 
Viet Nam , WT/DS404/R, adopted 2 September 2011 
US – Softwood Lumber III Panel Report, United States – Preliminary Determinations with Respect to 
Certain Softwood Lumber from Canada , WT/DS236/R, adopted 1 November 
2002, DSR 2002:IX, 3597 
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada , 
WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, 571 
US – Softwood Lumber IV Panel Report, United States – Final Countervailing Duty Determination with 
Respect to Certain Softwood Lumber from Canada , WT/DS257/R and Corr.1, 
adopted 17 February 2004, as modified by Appellate Body Report WT/DS257/AB/R, DSR 2004:II, 641  
US – Softwood Lumber IV 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada – 
Recourse by Canada to Article 21.5 of the DSU , WT/DS257/AB/RW, adopted 
20 December 2005, DSR 2005:XXIII, 11357 
US – Softwood Lumber IV (Article 21.5 – Canada) Panel Report, United States – Final Countervailing Duty Determination with 
Respect to Certain Softwood Lumber from Canada – Recourse by Canada to 
Article 21.5 [of the DSU] , WT/DS257/RW, adopted 20 December 2005, 
upheld by Appellate Body Report WT/DS257/AB/RW, DSR 2005:XXIII, 11401 
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/AB/R, adopted 31 August 2004, 
DSR 2004:V, 1875 
US – Softwood Lumber V Panel Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada , WT/DS264/R, adopted 31 August 2004, as modified by 
Appellate Body Report WT/DS264/AB/R, DSR 2004:V, 1937 
US – Softwood Lumber V  
(Article 21.3(c))  Report of the Arbitrator, United States – Final Dumping Determination on 
Softwood Lumber from Canada – Arbitration under Article 21.3(c) of the 
DSU , WT/DS264/13, 13 December 2004, DSR 2004:X, 5011 
US – Softwood Lumber V 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by 
Canada , WT/DS264/AB/RW, adopted 1 September 2006, DSR 2006:XII, 
5087 
US – Softwood Lumber V (Article 21.5 – Canada) Panel Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada , 
WT/DS264/RW, adopted 1 September 2006, as reversed by Appellate Body 
Report WT/DS264/AB/RW, DSR 2006:XII, 5147  WT/AB/17 
 Page 129 
 
 
 Short Title Full Case Title and Citation 
US – Softwood Lumber VI Panel Report, United States – Investigation of the International Trade 
Commission in Softwood Lumber from Canada , WT/DS277/R, adopted  
26 April 2004, DSR 2004:VI, 2485 
US – Softwood Lumber VI 
(Article 21.5 – Canada) Appellate Body Report, United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada , WT/DS277/AB/RW, adopted 9 May 2006, and 
Corr.1, DSR 2006:XI, 4865 
US – Softwood Lumber VI 
(Article 21.5 – Canada) Panel Report, United States – Investigation of the International Trade 
Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada , WT/DS277/RW, adopted 9 May 2006, as modified by 
Appellate Body Report WT/DS277/AB/RW, DSR 2006:XI, 4935 
US – Stainless Steel (Korea) Panel Report, United States – Anti-Dumping Measures on Stainless Steel Plate 
in Coils and Stainless Steel Sheet and Strip from Korea , WT/DS179/R, 
adopted 1 February 2001, DSR 2001:IV, 1295 
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/AB/R, adopted 20 May 2008, DSR 
2008:II, 513 
US – Stainless Steel (Mexico) Panel Report, United States – Final Anti-Dumping Measures on Stainless 
Steel from Mexico , WT/DS344/R, adopted 20 May 2008, as modified by 
Appellate Body Report WT/DS344/AB/R, DSR 2008:II, 599 
US – Stainless Steel (Mexico) (Article 21.3(c)) Award of the Arbitrator, United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico – Arbitra tion under Article 21.3(c) of the DSU , 
WT/DS344/15, 31 October 2008, DSR 2008:XX, 8619 
US – Steel Plate Panel Report, United States – Anti-Dumping and Countervailing Measures on 
Steel Plate from India , WT/DS206/R and Corr.1, adopted 29 July 2002, DSR 
2002:VI, 2073 
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R, WT/DS249/AB/R, 
WT/DS251/AB/R, WT/DS252/AB/R, WT /DS253/AB/R, WT/DS254/AB/R, 
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 
2003:VII, 3117  
US – Steel Safeguards Panel Reports, United States – Definitive Safeguard Measures on Imports of 
Certain Steel Products , WT/DS248/R / WT/DS249/R / WT/DS251/R / 
WT/DS252/R / WT/DS253/R / WT/DS254/R / WT/DS258/R / WT/DS259/R / and Corr.1, adopted 10 December 2003, as modified by Appellate Body 
Report WT/DS248/AB/R, WT/D S249/AB/R, WT/DS251/AB/R, 
WT/DS252/AB/R, WT/DS253/AB/R, WT /DS254/AB/R, WT/DS258/AB/R, 
WT/DS259/AB/R, DSR 2003:VIII, 3273  
US – Textiles Rules of Origin Panel Report, United States – Rules of Origin for Textiles and Apparel 
Products , WT/DS243/R and Corr.1, adopted 23 July 2003, DSR 2003:VI, 
2309 
US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the 
Importation, Marketing and Sale of Tuna and Tuna Products , 
WT/DS381/AB/R, circulated to WTO Members 16 May 2012 [adoption 
pending] 
US – Tuna II (Mexico) Panel Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/R, circulated to 
WTO Members 15 September 2011 [appealed/adoption pending] WT/AB/17 
Page 130  
 
 Short Title Full Case Title and Citation 
US – Tyres (China) Appellate Body Report, United States – Measures Affecting Imports of Certain 
Passenger Vehicle and Light Truck Tyres from China , WT/DS399/AB/R, 
adopted 5 October 2011 
US – Tyres (China) Panel Report, United States – Measures Affecting Imports of Certain 
Passenger Vehicle and Light Truck Tyres from China , WT/DS399/R, adopted 
5 October 2011, upheld by Appellate Body Report WT/DS399/AB/R  
US – Underwear Appellate Body Report, United States – Restrictions on Imports of Cotton and 
Man-made Fibre Underwear , WT/DS24/AB/R, adopted 25 February 1997, 
DSR 1997:I, 11 
US – Underwear Panel Report, United States – Restrictions on Imports of Cotton and 
Man-made Fibre Underwear , WT/DS24/R, adopted 25 February 1997, as 
modified by Appellate Body Report WT/DS24/AB/R, DSR 1997:I, 31 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3 
US – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton , WT/DS267/R, 
Corr.1, and Add.1 to Add.3, adopted 21 March 2005, as modified by 
Appellate Body Report WT/DS267/AB/R, DSR 2005:II, 299 
US – Upland Cotton  (Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – 
Recourse to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 
20 June 2008, DSR 2008:III, 809 
US – Upland Cotton  
(Article 21.5 – Brazil) Panel Report, United States – Subsidies on Upland Cotton – Recourse to 
Article 21.5 of the DSU by Brazil , WT/DS267/RW and Corr.1, adopted 20 
June 2008, as modified by Appellate Body Report WT/DS267/AB/RW, DSR 
2008:III, 997-DSR 2008:VI, 2013 
US – Upland Cotton  (Article 22.6 – US I) Decision by th e Arbitrator, United States – Subsidies on Upland Cotton – 
Recourse to Arbitration by the United States under Article 22.6 of the DSU 
and Article 4.11 of the SCM Agreement , WT/DS267/ARB/1, 31 August 2009, 
DSR 2009:IX, 3871 
US – Upland Cotton  (Article 22.6 – US II) Decision by th e Arbitrator, United States – Subsidies on Upland Cotton – 
Recourse to Arbitration by the United States under Article 22.6 of the DSU 
and Article 7.10 of the SCM Agreement , WT/DS267/ARB/2 and Corr.1,  
31 August 2009, DSR 2009:IX, 4083 
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , WT/DS166/AB/R, 
adopted 19 January 2001, DSR 2001:II, 717 
US – Wheat Gluten Panel Report, United States – Definitive Safeguard Measures on Imports of 
Wheat Gluten from the European Communities , WT/DS166/R, adopted  
19 January 2001, as modified by Appellate Body Report WT/DS166/AB/R, 
DSR 2001:III, 779 
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R, adopted 23 May 1997, 
and Corr.1, DSR 1997:I, 323 
US – Wool Shirts and Blouses Panel Report, United States – Measure Affecting Imports of Woven Wool 
Shirts and Blouses from India , WT/DS33/R, adopted 23 May 1997, upheld by 
Appellate Body Report WT/DS33/AB/R, DSR 1997:I, 343  WT/AB/17 
 Page 131 
 
 
 Short Title Full Case Title and Citation 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted  
9 May 2006, and Corr.1, DSR 2006:II, 417 
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R, adopted 9 May 
2006, as modified by Appellate Body Report WT/DS294/AB/R, DSR 2006:II, 
521 
US – Zeroing (EC)  
(Article 21.5 – EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU by the European Communities , WT/DS294/AB/RW and Corr.1, 
adopted 11 June 2009, DSR 2009:VII, 2911 
US – Zeroing (EC)  (Article 21.5 – EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the 
DSU by the European Communities , WT/DS294/RW, adopted 11 June 2009, 
as modified by Appellate Body Report WT/DS294/AB/RW, DSR 2009:VII, 
3117 
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, 3 
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews , WT/DS322/R, adopted 23 January 2007, as modified by Appellate 
Body Report WT/DS322/AB/R, DSR 2007:I, 97 
US – Zeroing (Japan) (Article 21.3(c)) Report of the Arbitrator, United States – Measures Relating to Zeroing and 
Sunset Reviews – Arbitration under Article 21.3(c) of the DSU , 
WT/DS322/21, 11 May 2007, DSR 2007:X, 4160 
US – Zeroing (Japan)  (Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, 3441 
US – Zeroing (Japan)  
(Article 21.5 – Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews – Recourse to Article 21.5 of the DSU by Japan , WT/DS322/RW, 
adopted 31 August 2009, upheld by Appellate Body Report 
WT/DS322/AB/RW, DSR 2009:VIII, 3553 
US – Zeroing (Korea) Panel Report, United States – Use of Zeroing in Anti-Dumping Measures 
Involving Products from Korea , WT/DS402/R, adopted 24 February 2011 
 
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