RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/279 
31 March 2010 
 (10-1744) 
Dispute Settlement Body 
18 February 2010  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 18 February 2010  
 
Chairman:  Mr. John Gero (Canada) 
 
 Prior to the adoption of Agenda
1 
 
Subjects discussed : Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................3  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........4  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................6  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........7  
(d) European Communities2 – Measures affecting the approval and marketing of biotech 
products:  Status  report by the European Union ........................................................................7  
(e) United states – Laws, regulations and me thodology for calculating dumping margins 
("zeroing"):  Status repor t by the Unite d States..........................................................................8  
(f) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States .............................................................................................................. ...........9  
(g) United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States.................................................................................................... ....10  
(h) China – Measures affecting the protection and enforcement of intellectual property 
rights:  Status report by China ................................................................................................ ..10 
2. China – Measures affecting trading rights and distribution services for certain 
publications and audiovisual entertainment products ........................................................11  
(a) Implementation of the recommendations of the DSB...............................................................11  
                                                      
1 See page 2. 
2 On 1 December 2009, the Treaty of Lisbon amendi ng the Treaty on Europe an Union and the Treaty 
establishing the European Community (done at Lisbon, 13 December 2007) entered into force.  On 
29 November 2009, the WTO received a Verbal Note (WT /L/779) from the Council of  the European Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 
1 December 2009, the European Union replaces and succeeds the European Community. WT/DSB/M/279 
Page 2  
 
  3.
 United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ..........................................11  
(a) Statements by the European Union and Japan ..........................................................................11  
4. European Communities2 – Export subsidies on sugar.........................................................13  
(a) Statements by Australia, Brazil and Thailand...........................................................................13  
5. United States – Laws, regulations and methodology for calculating dumping 
margins ("zeroing")............................................................................................................ ....15  
(a) Recourse to Article 22.2 of the DSU by the European Union ..................................................15  
6. United States – Anti-dumping measures on  polyethylene retail carrier bags from 
Thailand....................................................................................................................... ............17  
(a) Report of the Panel............................................................................................................ ........17  
7. Proposed nominations for the indicative list of governmental and 
non-governmental panelists ...................................................................................................18  
8. Colombia – Indicative prices and restrictions on ports of entry ........................................18  
(a) Statement by Colombia.......................................................................................................... ...18 
9. Proposed amendments to the Working Procedures for Appellate Review........................19  
(a) Statement by the Chairman...................................................................................................... .19 
 
  Prior to the adoption of the Agenda
, the representative of the United States  said that his 
country wished to propose that the Agenda of th e present meeting be adopted without item 5, which 
referred to the EU's request for authorization to  suspend concessions or other obligations in the 
dispute:  "US – Laws, Regulati ons and Methodology for Calculati ng Dumping Margins" (DS294).  
He recalled that on Friday, 12 February 2010, the Unite d States had filed its objection to the level of 
suspension of concessions or other obligations pr oposed by the EU and its claim that the EU's 
proposal did not follow the principles and procedures set forth in Article 22.3 of the DSU.  The US 
document had recently been circulated to Memb ers as WT/DS294/36 and was included with the 
documentation for the present meeting.  In light of the US filing, item 5 was unnecessary, and the 
United States, therefore, proposed that the Agenda be adopted without that item.  The United States 
recalled that an identical situation had been  presented at the 21 January 2008 DSB meeting3.  At that 
time, Japan had requested authorization to suspe nd concessions or other obligations, the United States 
had objected to that request before the meeting, and the DSB had adopted its Agenda without the item 
relating to Japan's recourse to Article 22.2 of th e DSU.  Copies of the minutes of the 21 January 2008 
DSB meeting were available at the present meeting.  Thus the United States proposed that the DSB do 
the same thing as it had done then, and adopt the proposed Agenda without item 5.   The representative of the European Union
 said that it was well known that there were 
differences of views between the EU and the Unite d States on whether or not the DSB should take 
action with regard to a matter to be referred to arbitration.  Th e EU had placed this item on the 
Agenda of the present meeting and would object to th e withdrawal of this item.  The EU disagreed 
with the United States on the interpretation and cons idered that it was for the DSB to refer the matter 
to arbitration.  It was the DSB's action that mark ed the start of the proceedings referred to in 
Article 22.6 of the DSU.  She recalled that the Un ited States had made reference to the minutes of the 
28 January 2008 DSB meeting when Japan and the Un ited States had agreed to withdraw the item 
                                                      
3 WT/DSB/M/245.  WT/DSB/M/279 
 Page 3 
 
 
  from the Agenda.  The EU pointed out to the minutes of the 8 February 2008 DSB meeting4 when the 
GMO request for retaliation had been consider ed and the item had remained on the Agenda. 
  The representative of Japan
 said that, while Article 22.6 of the DSU did provide explicitly 
that the granting of authorization to suspend concessi ons and other obligations was to be made by the 
DSB's decision, the text did not say that the referral of the matter to arbitration must be decided by the 
DSB.  The relevant part of that provision read as follows:  "if the Member concerned objects to the 
level of suspension proposed, or claims that princi ples and procedures set forth in paragraph 3 have 
not been followed …, the matter shall be referred to  arbitration".  Thus, once the condition set forth in 
the "if" clause was met, the matter was, as a con sequence, referred to arbitration and, then, the DSB 
was no longer in a position to grant authorization purs uant to Article 22.6.  In the DS322 case, which 
the United States had mentioned, the matter had prope rly been referred to arbitration, in accordance 
with the text of Article 22.6 without a DSB decision.   This had been done without prejudice to Japan's 
rights under the DSU provisions, as reflected in the minutes of the DSB meeting, to which the United States had referred.
5 
 
 The representative of the United States  said that his country noted the EU's comments, as well 
as the comments made by Japan.  In light of the EU's  position, it appeared that the matter would be 
addressed again later in the course of the meeting.   The DSB took note
 of the statements.  
 
 
1. Surveillance of implementation of recommendations adopted by the DSB 
 
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.87) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.87) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.62) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.25 – WT/DS293/31/Add.25) 
 
(e) United states – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/34/Add.6) 
 (f) United States – Measures relating to zeroing and sunset reviews:  Status report by the 
United States (WT/DS322/36/Add.5) 
 
(g) United States – Continued existence and app lication of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.2) 
 (h) China – Measures affecting the protection and enforcement of intellectual property rights:  
Status report by China (WT/DS362/14/Add.1) 
 
 
                                                     
 
4 WT/DSB/M/246. 
5 WT/DSB/M/245. WT/DSB/M/279 
Page 4  
 
  1. The Chairman
 recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establis hment of the reasonable 
period of time and shall remain on the DSB' s Agenda until the issu e was resolved.   
(a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.87) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.87, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US Section 211 Omni bus Appropriations Act of 1998. 
3. The representative of the United States  said that his country had provided a status report in 
this dispute on 5 February 2010, in accordance with Article 21.6 of the DSU.  As had been noted, a 
number of legislative proposals that would implem ent the DSB's recommendations and rulings in this 
dispute had been introduced in the First Session of the current (111th) Congress.  The Second Session of the 111th Congress had begun in January 2010.  The US administration was working with 
Congress to implement the DSB's recommendations and rulings. 
4. The representative of the European Union
 said that, at the present meeting, the United States 
was presenting its eighty-eighth status report in this  dispute.  The EU hoped that the US authorities 
would now take steps to finally implement the DSB's ruling and resolve this matter. 
5. The representative of Cuba  said that his country regretted that this case was still on the DSB's 
Agenda and that, at the present meeting, the United States had not provided Members with any 
significant information.  Nor had the EU provided anything new or suggested that it was taking any 
action to end this dispute.  Cuba and other Me mbers had often expressed deep concern about the 
prolonged non-compliance and its impact on the tradi ng system.  He recalled that the Appellate Body, 
which comprised eminent persons with technical expe rtise in the area of law and international trade 
who were not affiliated with any government, had found that Secti on 211 violated the fundamental 
principles of national and most-favoured-nation treatment.  It had been eight years since the DSB had 
adopted the recommendations and rulings in this dis pute.  He recalled that, on 18 February 2002, the 
United States had informed the DSB of its intentio n to implement those recommendations and rulings.  
But, on 18 February 2010, Cuba was still aski ng the United States to comply with those 
recommendations and rulings.  Members must bear in  mind that, in accordance with Article 21.3 of 
the DSU, only if it was impracticable to comply  immediately, the Member concerned could be 
granted a reasonable period of time for implementa tion.  In this connection, the Award of the 
Arbitrator in the case:  "Canada – Patent Protecti on of Pharmaceutical Products" stated that, implicit 
in the wording of Article 21.3 of the DSU was th e assumption that Members would comply with the 
DSB's recommendations and rulings "immediately" .  The United States should explain why it had 
maintained Section 211 in force for eight years, in spite of the DSB's ruling.  Not only the United States continued to apply legislation that was contrary to the TRIPS Agreement and the Paris 
Convention, it was also encouraging companies like Bacardi to engage in unfair competition by 
selling products under the Havana Club trademark and even attempting to register that trademark.  
6. Cuba noted that intellectual property rules, in  economic and political te rms, were now more 
important than ever before.  The matter had be en included on the agenda of G8 meetings, new 
agreements were being ne gotiated in closed session between the most powerful actors in world trade, 
and the debate had now extended to other organiza tions such as the WHO and the WCO.  At the end 
of January 2010, a small group of countries had met to negotiate a new anti-counterfeiting trade 
agreement (known as ACTA), which was expected to be approved by the end of 2010.  The 
negotiations had been secret, and seriously questio ned.  The group of negotiating countries included 
the complainant and the respondent, which had r eaffirmed the concern and commitment to the  WT/DSB/M/279 
 Page 5 
 
 
  strictest rules of intellectual property.  Cuba di d not see how Section 211 c ould be compatible with 
those new rules, which were even stricter in the ar ea of intellectual property rules.  What Bacardi was 
doing when it branded its products "Havana Club" c onstituted a serious infringement of many of the 
provisions of the new agreement.  Cuba, once again, urged the United States and the EC to act swiftly 
to repeal Section 211, which had been in force for 12 years. 
7. The representative of Ecuador  said that his country thanked the United States for its status 
report and endorsed the statement made by Cuba.  Ec uador, once again, recalled that Article 21 of the 
DSU referred expressly to prompt compliance with the DSB's recommendations and rulings, in particular with regard to matters affecting the inte rests of developing countries.  Ecuador, once again, 
urged the US administration and Congress to speed  up compliance with the DSB's recommendations 
and rulings by repealing Section 211. Furthermor e, Ecuador wished to request more detailed 
information from the EU on the steps it had taken to settle this dispute. 
8. The representative of the Bolivarian Republic of Venezuela
 said that her country noted that, 
once more, the US status report was the same as the previous reports submitted by the United States.  
It did not show any progress in the US implemen tation of the DSB's recommendations.  Venezuela 
was concerned about the US unwillingness to rectify this serious situation, which prevented Cuba 
from registering or renewing certain trademarks and the EU's reluctance to ensure compliance with the decision adopted by the DSB eight years ago.   It was unacceptable that the United States 
continued to justify its lack of action by stating that it was taking the necessary steps on the domestic 
front to ensure compliance.  In fact, the results  were non-existent.  Vene zuela was concerned about 
this situation and believed that other Members sh ould also be concerned about it.  The lack of 
compliance suggested that the multilateral trading system could not ensure compliance with the 
agreements, and that Members' rights and obligations  were not respected.  Venezuela, once again, 
urged the United States to comply with the DSB's recommendation without delay, and to start taking effective steps to end the economic, commercial a nd financial embargo, wh ich had been imposed on 
Cuba since 1962. 
9. The representative of China
 said that her country thanked the United States for its status 
report and its statement.  However, the US status report did not contain any new information, but had 
simply confirmed the continuation of non-compliance after more than eight years following the adoption of the relevant reports.  This was inconsis tent with the principle of prompt implementation 
under the DSU provisions and undermined the au thority and credibility of the WTO dispute 
settlement system.  All Members understood that th e United States attached great importance to the 
protection of intellectual property rights worldwide.   China hoped that the United States would set an 
example with regard to a claim from developing countries, in accordance with the DSU provisions.  
China registered its support to Cuba and urged th e United States to implement the DSB's decision as 
soon as possible. 
10. The representative of Viet Nam
 said that his country thanked the United States for its status 
report.  Like previous speakers, Viet Nam s upported the statement made by Cuba and urged the 
United States to comply soon with the DSB's rulings and recommendations.  
11. The representative of Brazil  said that his country thanked the United States for its status 
report.  The United States had, once again, repor ted lack of progress.  Brazil remained concerned 
about this non-compliance with the DSB's recomme ndations and urged the United States to bring its 
measures into conformity with WTO disciplines. 
12. The representative of Chile  said that his country thanked the United States for its status 
report.  Chile, once again, wished to express its syst emic concern about the failure to comply with the 
findings in this long-standing dispute.  Chile urged the parties to this dispute, in particular the United States, to take the necessary measures as soon as possible to ensure full implementation. WT/DSB/M/279 
Page 6  
 
  13. The representative of Argentina
 said that the US failure to implement the DSB's 
recommendations had broader systemic  implications for all Members not just for the parties to the 
dispute.  From the systemic point of view, the most serious consequence was that the failure to 
comply cast doubt on the ability of the system to settle disputes and this should be a source of concern to all Members.  Argentina, therefore, reiterated its  call on the parties, in particular the United States, 
to ensure that the DSB's recommendations  in this case be fully implemented. 
14. The representative of Paraguay
 said that her country wished to express its concern about the 
US persistent failure to implement the DSB's recommendations.  Paraguay supported the statement 
made by Cuba, as well as the statements made by  previous speakers regarding their systemic 
concerns, which went beyond trade issues.  Paraguay urged the United States to repeal Section 211.  
15. The representative of Mexico  said that his delegation wished to reiterate that Articles 3.3 and 
21.1 of the DSU, respectively, stated that prompt settlement of disputes was essential to the effective 
functioning of the WTO and that prompt compliance with the DSB's recommendations and rulings was essential in order to ensure the effective resolu tion of disputes to the benefit of all Members.  
Mexico urged the parties to this dispute to keep  those principles in mind and to take the necessary 
steps to comply with the DSB's recommendations, which would benefit the functioning of the WTO 
as well as its Members. 
16. The representative of Nicaragua
 said that her country noted the statements made by previous 
speakers and was concerned about two issues:  (i) th e violation of two fundamental WTO principles;  
and (ii) the fact that the Member that was required to  take steps to bring its legislation into conformity 
with WTO rules had, for the past eight years, merely  stated that it intended to take those steps.  The 
United States could not justify its eight-year long fa ilure to take action.  Nicaragua reiterated its call 
for speedy compliance. 
17. The representative of India  said that her country thanked the United States for its status report 
and its statement.  However, India noted that there was no substantive change in the situation and that, 
unfortunately, the US status report repeated the patte rn of the previous reports showing complete lack 
of progress.  India felt compelled, yet again, to stress that the principle of prompt compliance was 
missing in this dispute.  India renewed its sy stemic concerns about non-compliance, which 
undermined the credibility and confidence that Memb ers had in the WTO dispute settlement system.  
India urged the United States to fully implement the DSB's recommendations in this dispute. 
18. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.87) 
19. The Chairman  drew attention to document WT/DS184/ 15/Add.87, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
20. The representative of the United States  said that his country had provided a status report in 
this dispute on 5 February 2010, in accordan ce with Article 21.6 of the DSU.  As of 
23 November 2002, the US authorities had addresse d the DSB's recommendations and rulings with 
respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty investigation at issue in this dispute.  Details were provided in document WT/DS184/15/Add.3.  With 
respect to the DSB's recommendations and rulings that had not already been addressed by the US 
authorities, the US administration would work with Congress with respect to appropriate statutory 
measures that would resolve this matter.  WT/DSB/M/279 
 Page 7 
 
 
  21. The representative of Japan  said that his country thanked the United States for its statement 
and its latest status report.  Full and prompt  implementation of the DSB's recommendations and 
rulings was "essential to the effective functioning  of the WTO and the maintenance of a proper 
balance of the rights and obligations of Members".6  Japan called on the United States to fully 
implement the DSB's recommendations in this long-standing dispute without further delay. 
22. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.62) 
23. The Chairman  drew attention to document WT/DS160/ 24/Add.62, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
24. The representative of the United States  said that his country had provided a status report in 
this dispute on 5 February 2010, in accordance with Article 21.6 of the DSU.  The US administration 
would continue to confer with the EU and to work  closely with the US Congress, in order to reach a 
mutually satisfactory resolution of this matter. 
25. The representative of the European Union  said that the United States had again reported non-
compliance and her delegation was again disappointed, especially in light of the importance that the 
United States attached to intellectual property protec tion.  The EU was aware that the United States 
was in favour of strong intellectual property protect ion throughout the world, and thus hoped that it 
would lead by example.  The EU remained read y to work with the US  authorities towards the 
complete resolution of this case, and hoped that th e financial loss suffered by the EU industry could 
be soon brought to an end.   
26. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status  report by the European Union (WT/DS291/37/Add.25 – WT/DS293/31/Add.25) 
27. The Chairman  drew attention to document WT/D S291/37/Add.25 – WT/DS293/31/Add.25, 
which contained the status report by the European  Union on progress in the implementation of the 
DSB's recommendations in the case concerning its measures affecting the approval and marketing of biotech products. 
28. The representative of the European Union
 said that EU regulatory procedures on biotech 
products continued to work as foreseen in the legislati on.  With the most recent authorization of four 
GM maize events, the number of GMOs authorized si nce the date of establishment of the Panel had 
risen to twenty-five.  The EU remained open to dial ogue on issues related to trade in biotech products.  
The EU and Canada had already formalized such di alogue in the mutually agreed solution reached in 
2009 (WT/DS292/40).  The EU welcomed the construc tive dialogue with Argentina, and hoped that 
that would allow the parties to soon notify a similar solution to the DSB. 
29. The representative of Argentina  said that, once again, his country welcomed the EU's status 
report.  As stated by the EU, the constructive dialogue during the implementation phase had enabled 
                                                      
6 Article 3.3 of the DSU. WT/DSB/M/279 
Page 8  
 
  the parties to move further towards a mutually ag reed solution.  Argentina and the EU were still 
working on the solution and hoped to finalize it shortly. 
30. The representative of the United States
 said that his country thanked the EU for its status 
report and its statement.  The United States recalled its concerns that endemic delays in the EU's operation of its biotech approval process had the e ffect of blocking Members' trade in important 
agricultural products.  At the January DSB meeting,  the United States had highlighted its concerns 
regarding the delays at the second step of the EU process, which involved the EU's Standing 
Committee on the Food Chain and Animal Health.  The United States wished to draw Members' 
attention to information which confirmed those conc erns.  EU law provided that within three months 
after the EU's scientific authority completed a positiv e risk assessment – that is a scientific risk 
assessment that supported the approval of a biotech product – the EU Commission must submit a draft 
approval of that product to the Standing Committe e for its consideration.  Although the Standing 
Committee normally met on a monthly basis, its first meeting of 2010 had not been held until the previous week.  Furthermore, the Standing Commit tee did not consider several of the outstanding 
biotech applications that had received positive risk  assessments three (or more) months ago.  For 
example, one product received a positive assessment in November 2007, over two years ago, but still 
had not been submitted for the Standing Committee's c onsideration.  With respect to the three biotech 
applications that the Standing Committee did consid er, the risk assessments fo r each of these products 
had been issued at least seven months ago.  That meant that the EU more than doubled the time set out 
under its law for the period between the scientific opinion and the Standing Committee's consideration.  Furthermore, even though each of th ese three applications had received positive risk 
assessments, the Committee had failed to make a deci sion to approve th e products.  As a result, each 
of those applications would be delayed for additiona l proceedings under the EU system.  In particular, 
the applications would be delayed while the EU subm itted the applications for the consideration of the 
EU Council.  If the Council faile d to make approval decisions in accordance with the scientific 
opinions, there could be yet further delays.  Unfo rtunately, the Standing Committee's failure to make 
decisions in accordance with the EU's own scientific  opinions was the norm, not the exception.  In 
fact, the United States understood that the Standi ng Committee had failed to approve a single biotech 
product for over ten years.  That had resulted in si gnificant delays in the consideration of each biotech 
product.  The United States noted that, the previous week, the new EU Commission had taken office, and that the new Commission had reportedly modi fied the organizational structure for biotech 
approvals.  The United States urged the new Commission, and the EU as a whole, to address the 
ongoing problems with biotech approvals.   
31. The representative of the European Union
 said that the position of the Commission had 
always been very clear.  Following the EFSA opinion, the Commission operated on the basis of the three-month delay for the submission to the Stan ding Committee.  When there had been specific 
issues to clarify, usually related to the scientific assessment, the Commission had taken the 
responsibility, as risk manager, to acquire all the n ecessary information before taking a final decision.  
This had been the case, for instance, for a ge netically modified rice (LLRICE62) for which 
supplementary input had been asked twice to EFSA.  
32. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) United states – Laws, regul ations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/34/Add.6) 
33. The Chairman  drew attention to document WT/DS294/ 34/Add.6, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US laws, regulations and me thodology for calculating dumping margins.  WT/DSB/M/279 
 Page 9 
 
 
  34. The representative of the United States  said that his country had provided a status report in 
this dispute on 5 February 2010, in accordance with Ar ticle 21.6 of the DSU.  As noted in that status 
report, the United States had already taken a number of steps to implement the DSB's 
recommendations and rulings in this dispute, and w ould continue to consult with interested parties 
with regard to the remaining issues.  As Member s were aware, the EU had requested authorization 
from the DSB to suspend concessions or other obliga tions in this dispute, and the United States had 
objected to the EU's request.  Therefore, pursuant to Article 22.6 of the DSU, the matter had been 
referred to arbitration. 
35. The representative of the European Union  said that her delegation had recurrently been asking 
the United States when it intended to put an end to zer oing.  In reply, the United States had chosen not 
to take any action whatsoever to correct the shortc omings in its implementation.  The Appellate Body 
had made the legal situation on zeroing crystal cl ear.  Zeroing was prohibited in both original 
investigations and reviews.  In addition, any anti-dumping duties collected after the end of the 
implementation period must be calculated without  zeroing, whenever the goods in question were 
imported or the review determin ation made.  The EU could not but encourage, once again, the 
United States to bring itself into full compliance and without delay. 
36. The DSB took note  of the statements.  
(f) United States – Measures relating to zeroing and sunset reviews:  Status report by the 
United States (WT/DS322/36/Add.5) 
37. The Chairman  drew attention to document WT/DS322/ 36/Add.5, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US measures relating to zeroing and sunset reviews. 
38. The representative of the United States  said that his country had provided a status report in 
this dispute on 5 February 2010, in accordance with Ar ticle 21.6 of the DSU.  As noted in the status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With respect to the outstanding issues, the United States would con tinue to consult with 
interested parties in order to address those issues. 
39. The representative of Japan  said that his country thanked the United States for its statement 
and its status report.  The United States had stated in  its status reports that it "will continue to consult 
with interested parties in order to address the finding s contained in [the Appellate Body and the panel] 
reports" adopted by the DSB on 31 August 2009.  Japan understood that statement as an expression of 
commitment by the United States to fully implement the DSB's recommendations and rulings.  Japan 
called on the United States to fulfil its commitment by taking immediate and c oncrete action to that 
end so as to resolve this dispute. 
40. The representative of the European Union  said that her delegation wished to reiterate its 
disappointment over the lack of any progress by the United States on compliance with adverse rulings on zeroing in yet another dispute, and reca lled that immediate compliance with DSB's 
recommendations and rulings was not an option, but an obligation under the DSU provisions.  
41. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/279 
Page 10  
 
  (g) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.2) 
42. The Chairman
 drew attention to document WT/DS350/ 18/Add.2, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning the existence and application of zeroing methodology by the United States. 
43. The representative of the United States  said that his country had provided a status report in 
this dispute on 5 February 2010, in accordance with Ar ticle 21.6 of the DSU.  As noted in that status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With regard to the remaining issues, the United States would continue to consult with interested parties. 
44. The representative of the European Union
 said that it was the third time that the issue of US 
zeroing was on the Agenda of the present meeti ng under the item on surveillance of implementation 
of recommendations adopted by the DSB.  Once again, the reasonable period of time for implementation had expired and, once again, despit e a clear legal obligation to the contrary, the 
United States had not brought itself into compliance.  In previous meetings the EU had explained in 
detail why it considered that there were a numb er of glaring substantive failures in what the 
United States portrayed as implementation in this  case.  The EU did not wish to repeat those 
explanations at the present meeting.  The US appa rent systematic refusal to abolish zeroing was a 
matter of great concern to the EU , both on a substantive and on a syst emic level.  That was why the 
EU had taken matters one step further in the case on:  "US – Laws, Regulations and Methodology for 
Calculating Dumping Margins" (DS294) as it would explain under Agenda item 5.  
45. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(h) China – Measures affecting the protection and en forcement of intellectual property rights:  
Status report by China (WT/DS362/14/Add.1) 
46. The Chairman  drew attention to document WT/DS362/ 14/Add.1, which contained the status 
report by China on progress in the implementation of the DSB's recommendations in the case 
concerning China's measures affecting the protection and enforcement of intellectual property rights. 
47. The representative of China  said that, on 20 March 2009, the DSB had adopted the Panel 
Report in this dispute.  On 29 June 2009, Chin a and the United States had agreed and notified the 
DSB that the reasonable period of time for implemen tation shall be 12 months  and would expire on 
20 March 2010.  Thus far, a lot of work related to implementation had been undertaken by China.  
The legislative proposals relating to the amendm ent of the Copyright Law of China and the 
Regulations for Customs Protection of Intellectual Pr operty Rights had already been submitted to the 
State Council for due examination.  China woul d continue working on the amendment of the 
measures, according to its domestic legislative proce dures that would lead to a final resolution of this 
matter. 
48. The representative of the United States  said that his country thanked China for its status report 
and its statement.  The United States was very much  interested in whether China would complete its 
implementation by 20 March 2010, which was the date of expiry of the reasonable period of time for 
China to comply in this dispute.  Given that 20 March was only about a month away, the United States would welcome receiving further info rmation from China, including bilaterally, on its 
progress towards implementation.  WT/DSB/M/279 
 Page 11 
 
 
  49. The representative of the European Union  said that her delegation was glad that China had 
already submitted the relevant legislative proposal s to the State Council and that work was ongoing on 
the necessary amendments to China's Copyright La w and Customs measures.  The EU looked forward 
to the improvements in China's intellectual propert y rights framework that the faithful implementation 
of the recommendations would bring about. 
50. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
2. China – Measures affecting trading rights and distribution services for certain 
publications and audiovisual entertainment products 
(a) Implementation of the recommendations of the DSB 
51. The Chairman  recalled that in accordance with the DSU provisions, the DSB was required to 
keep under surveillance the implementation of reco mmendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Members.  In this respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
DSB's recommendations and rulings.  He recalled th at at its meeting on 19 January 2010, the DSB 
had adopted the Appellate Body Report pertaining to  the dispute on:  "China – Measures Affecting 
Trading Rights and Distribution Services for Cert ain Publications and Audiovisual Entertainment 
Products" and the Panel Report on the same matter, as modified by the Appellate Body Report.  He 
invited China to inform the DSB of its intentio ns in respect of implementation of the DSB's 
recommendations. 
52. The representative of China  said that, at its meeting on 19 January 2010, the DSB had 
adopted the recommendations and rulings in this disp ute.  In accordance with Article 21.3 of the DSU, 
China wished to inform the DSB of its inten tion to implement the DSB's recommendations and 
rulings.  This dispute involved many important re gulations on culture products.  China, therefore, 
would need a reasonable period of time to implem ent the DSB's recommendations and rulings.  China 
stood ready to discuss this matter with the United St ates, in accordance with Article 21.3(b) of the 
DSU. 
53. The representative of the United States  said that his country thanked China for its statement 
indicating that it intended to implement the DSB's recommendations and rulings in this dispute.  
China's measures imposed significan t market access barriers for importers and distributors of books, 
music, movies and other products subject to this dispute.  The United States, therefore, looked 
forward to China moving promptly to bring its measures into compliance with its obligations.  The 
United States stood ready to discuss with China, under Article 21.3(b) of the DSU, a reasonable period of time for its implementation. 
54. The DSB took note
 of the statements, and of the inform ation provided by China regarding its 
intentions in respect of implementation of the DSB's recommendations. 
3. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Union and Japan 
55. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Union and Japan.  He then i nvited the respective representatives to speak. WT/DSB/M/279 
Page 12  
 
  56. The representative of Japan
 said that the latest annual distributions for FY20097 showed that 
the CDSOA still remained operational.8  Japan urged the United States to stop illegal distributions and 
repeal the CDSOA, not just in form but in substan ce, so as to resolve this dispute once and for all.  
According to Article 21.6 of the DSU, the Unite d States was under obligation to provide the DSB 
with a status report in this dispute "until the issu e is resolved".  Japan reserved all its rights under the 
DSU until the United States ca me into full compliance. 
57. The representative of the European Union  said that, as in many previous meetings, the EU 
wished to ask the United States when it would e ffectively stop the transfer of anti-dumping and 
countervailing duties to its industry and finally put an  end to the condemned measure.  The EU also 
renewed its call on the United States to abide by its  clear obligation under Article 21.6 of the DSU 
and to submit implementation reports in this dispute. 
58. The representative of Canada  said that her country agreed with the EU and Japan that the 
Byrd Amendment remained subject  to the surveillance of the DS B until the United States ceased to 
administer it. 
59. The representative of China  said that her country thanked th e EU and Japan for, once again, 
raising this matter at the DSB meeting.  China sh ared the concerns expressed by previous speakers 
and joined them in urging the United States to comply fully with the DSB's rulings and recommendations. 
60. The representative of Brazil
 said that his country thanked the EU and Japan for keeping this 
item on the DSB's Agenda.  As it had expressed in previous meetings, Brazil was of the view that the United States was under obligation to submit status re ports in this dispute until such time as no more 
disbursements were made pursuant to the Byrd Amendm ent.  Only then the issue would be "resolved" 
within the meaning of the DSU and the United States  would be released from its obligation to provide 
status reports in this dispute. 
61. The representative of India
 said that her country thanked the EU and Japan for bringing this 
issue, once again, before the DSB and shared their concerns.  India remained disappointed at the US 
maintenance of those WTO-inconsistent disburseme nts.  As mentioned by previous speakers, the 
CDSOA remained fully operational and allowed for disbursement by the US administration to its 
domestic industry.  This fact continued to raise concerns to WTO Members.  As reiterated earlier, 
India was concerned that non-compliance by Members led to a growing lack of credibility of the WTO dispute settlement system.  India agreed wi th the EU and Japan that the Byrd Amendment 
remained subject to the surveilla nce of the DSB until the United St ates ceased to administer it. 
62. The representative of Thailand
 said that his country thanked the EU and Japan for, once 
again, bringing this item before the DSB.  Thaila nd expressed its continued disappointment at the US 
persistent maintenance of the WTO-inconsistent di sbursements.  Thailand urged the United States to 
cease the disbursements, to repeal the Byrd Ame ndment with immediate practical effect, and to 
resume providing status reports until such actions we re taken and this matter had been fully resolved. 
63. The representative of the United States  said that, as his country had explained at previous 
DSB meetings, the US President had signed the Defi cit Reduction Act into law on 8 February 2006.  
                                                      
7 CDSOA 2009 Annual Reports dated 10 December 2009.  According to the reports, some US$248 
million have been distributed for FY2009.  See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trade/prio rity_trade/add_cvd/cont_dump/cdsoa _09/report/fy09_a nnual_report.xml  
8 In the words of the US Customs, "the distribution process will continue for an undetermined period".  
See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/tr ade/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml   WT/DSB/M/279 
 Page 13 
 
 
  That Act included a provision repealing the Contin ued Dumping and Subsidy Offset Act of 2000.  
Thus, the United States had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes.  Furthermore, the Un ited States recalled that Members had acknowledged 
that the 2006 Deficit Reduction Act did not permit the distribution of duties collected on goods entered after 1 October 2007.  With respect to co mments regarding further status reports in this 
matter, as it had already been explained at previ ous DSB meetings, the United States failed to see 
what purpose would be served by further submissi on of status reports repeating the progress the 
United States had made in the implementati on of the DSB's recommendations and rulings. 
64. The DSB took note
 of the statements. 
4. European Communities – Export subsidies on sugar 
(a) Statements by Australia, Brazil and Thailand 
65. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
Australia, Brazil and Thailand.  He then i nvited the respective representatives to speak. 
66. The representative of Australia  said that, on 19 May 2005, following complaints by Australia, 
Brazil and Thailand, the DSB had adopted the Reports  of the Panel and the Appellate Body in the 
"EC - Sugar" dispute, which had found that the EU had subsidized the export of sugar in excess of its 
annual WTO quantity commitment level of 1.2735 milli on tonnes.  The Panel and the Appellate Body 
in the "EC - Sugar" dispute had found that all s ugar exported from the EU was in receipt of export 
subsidies.  As a result of the DSB's rulings and recommendations, the EU  was required, and had 
undertaken, to reduce its subsidized sugar exports to  its WTO scheduled commitment level of 1.2735 
million tonnes.  In that context, Australia was th erefore extremely concerned with the EU's recent 
decision to authorize the export of an additional ha lf a million tonnes of out-of-quota sugar.  The EU 
was now forecasting that it would export almost tw o million tonnes of out-of-quota sugar in 2009/10.  
That was a 146 per cent increase over the 2008/9 expor t figures, and was significantly above the EU's 
export subsidy quantity commitment levels.  Th e decision by the EU to increase exports was 
inconsistent with previous EU assurances that all out-of-quota sugar exports would be counted against 
the EU's WTO export subsidy commit ment levels and had been made  without any consultation with 
the complainants in the "EC - Sugar" dispute, wh ich were Australia, Brazil and Thailand.  The EU 
sought to justify its action by asserting that the worl d price for sugar currently exceeded the EU's cost 
of production, but the EU had not released any da ta that would enable WTO Members to make an 
assessment of the cost of producing sugar in the EU .  Furthermore, the EU could not simply take a 
snapshot of the global and EU sugar markets at an  opportune time and unilaterally decide that it was 
no longer subsidizing its sugar e xports.  In any event, increased EU exports could only negatively 
affect market sentiment and drive world prices back down.   
67. In Commission Regulation 94/2010 announcing th e additional export, the Commission had 
argued that "exceptionally favourab le weather conditions in 2009" had resulted in 500,000 tonnes of 
out-of-quota sugar being available for export.  Yet the Commission's own figures forecasted that beet 
yields in 2009/10 would be only 3.9 per cent higher than those in 2008/9.  A 3.9 per cent increase in 
yield could not justify a 146 per cent increase in ex ports compared with 2008/9.  Commission figures 
had also shown that the EU held stocks of 525,000 tonnes of out-of-quota sugar at the end of 2006/7;  
693,000 tonnes at the end of 2007/8;  and 412,000 tonn es at the end of 2008/9.  Yet the EU planned to 
have no out-of-quota sugar stocks at all at the end of  2009/10.  It appeared to Australia that, as at the 
time of the "EC - Sugar" dispute, the EU had decide d to export its overproduction rather than absorb it 
internally.  She said that Australia had raised its concerns with similar behaviour at the DSB meeting 
on 27 September 2005, following the decision by th e EU to export an additional 2 million tonnes of 
sugar on the world market during the "EC - Sugar" di spute implementation period.  It appeared that 
the EU had again taken the opportunity to dispo se of its excess sugar production on to the world WT/DSB/M/279 
Page 14  
 
  market.  That action undermined the reform to the EU sugar regime that had been undertaken by the 
EU in response to the outcomes of the "EC - Suga r" dispute.  The Australian sugar industry had 
conveyed to the Australian Government its concerns about the increased exports, and the signal that it 
would send to European producers.  Australia not ed that to date the EU had not provided any 
evidence to demonstrate that the situation had changed in such a way as to allow it to ignore the 
Panel's and the Appellate Body's findings in the "E C - Sugar" dispute.  Australia looked forward to 
continuing its dialogue with the EU on this importa nt issue, and to receiving the data and legal 
argumentation upon which the EU sought to rely for this action. 
68. The representative of Brazil
 said that his country fully supported Australia's statement.  Brazil 
was concerned about the EU's decision to put in th e world market more than 500,000 tonnes of sugar 
in excess of the quantitative limits bound in the Uruguay Round.  The measure had been adopted 
without prior consultations with Australia, Thaila nd and Brazil, the co-complainants in the "EC - 
Sugar" dispute.  International markets had quick ly computed the impact of the additional sugar 
exports, and the sugar prices' previous upward trend had been reverted in late January 2010, after the 
Commission had recommended the EU's Management  Committee to authorize those exports.  The 
immediate economic prejudice suffered by Brazil's s ugar exporters was estimated in millions of 
dollars.  However, it was the mid- to long-term im plications of the EU's decision that preoccupied 
Brazil and Brazilian producers most.  First, Eur opean sugar producers would be encouraged to 
produce more surplus sugar in the following marketi ng years.  Second, markets would – in fact they 
had already done so – factor the EU's new polic y of export surplus sugar in excess of its WTO 
commitments in future prices' expectations.  That situation was not only detrimental to Brazil's trade 
interests.  It was also a violation of WTO disciplin es, as clarified by the Panel and the Appellate Body 
in the "EC - Sugar" dispute.  The EU had not pr ovided Brazil with evidence that its sugar exports no 
longer benefited from subsidies.  The mere asse rtion that sugar beet costs of production were 
circumstantially below out-of-quota sugar beet prices , or that sugar costs of production were likewise 
below international prices, fell far short of the EU's  burden of establishing that its sugar regime now 
operated in such a fashion that European sugar expor ts did not enjoy artificial competitive advantages.  
Brazil valued its constructive dialogue with the EU on those issues since the adoption of Commission 
Regulation 94/2010.  Nevertheless, time was of  the essence if further damage to sugar producers 
outside the EU were to be prevented. 
69. The representative of Thailand  said that his country joined Australia and Brazil in expressing 
deep disappointment at the EU's recent authorizatio n of the export of out-of-quota sugar set out in 
Commission Regulation No 94/2010.  Like Australi a and Brazil, Thailand believed that the out-of-
quota sugar exports exceeded the EU's WTO commitments, causing it to breach its WTO annual quantity commitment level of 1.2735 million tonnes by more than half a million tonnes, or more than 
50 per cent, in marketing year 2009/10.  Thailand regr etted that the EU had failed to consult with the 
co-complainants in advance of authorizing th e measure.  The EU had claimed in Regulation 
No 94/2010 that "the export of out-of-quota sugar cannot be considered as being subsidized".  
However, the EU had not provided concrete data in support of its assertion.  Statements in the 
Regulation referencing "current economic conditions", the "most recent ... exceptionally favourable 
weather conditions", and "exceptionally high world mark et prices ... at this time" were not persuasive 
in light of Commission figures showing sugar overs tock of several hundred thousand tonnes per year 
from marketing year 2006/7 onwards.  Thailand wa s concerned that Regulation No 94/2010 signalled 
to EU sugar producers that excess out-of-quota sugar c ould be exported, which could possibly lead to 
a continuous cycle of overproductio n and artificially depressed global pr ices.  Regrettably, Thailand 
had expressed the same concern to the DSB when th e EU had authorized the exportation of 2 million 
tonnes of excess subsidized sugar in September 2005.   As Thailand had mentioned then, the flooding 
of illegally subsidized exports of sugar from the EU  to the world market posed serious consequences 
for the Thai sugar industry.  Depressed sugar prices detrimentally affected the livelihood of 
1.5 million farmers' and sugar workers' households, mo st of whom lived in some of Thailand's lowest 
income areas.  Thailand looked forward to the EU's  explanation of its measure and joined Australia  WT/DSB/M/279 
 Page 15 
 
 
  and Brazil in calling on the EU to engage in frank  and forthcoming discussions with all the co-
complainants in the near future. 
70. The representative of the European Union  said that her delegation wished to stress that its 
decision to export 0.5 million tonnes of sugar w as a temporary measure, adopted in view of 
exceptional market conditions at both the EU and worl d level.  World prices were at a record high 
level and there was a shortage of sugar which was affecting importing developing countries.  The EU 
did not expect those market conditions to l ast beyond the season 2009-2010.  The decision fully 
respected the EU's international obligations as the quantities on sale were not subsidized.  World 
sugar prices were at the moment higher than EU production costs and EU producers had become 
much more competitive following the drastic overh aul of the EU Common Market Organisation for 
sugar.  The EU continued to respect its WTO commi tments and insisted on its right to engage in 
international trade – even if competing exporters  of other WTO Members would, for rather obvious 
reasons of commercial interest, have preferred othe rwise.  To help dispel the doubts of other WTO 
Members, the EU was ready to provide any necess ary technical information underpinning the EU's 
temporary decision to export sugar.   
71. The DSB took note  of the statements. 
5. United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing") 
(a) Recourse to Article 22.2 of the DSU by the European Union (WT/DS294/35) 
72. The Chairman  drew attention to the communication from the European Union contained in 
document WT/DS294/35, and invited the represen tative of the European Union to speak. 
73. The representative of the European Union  said that, nearly three years after the expiry of the 
reasonable period of time for implementation (9  April 2007), the United States had failed to 
implement the WTO rulings, to cease zeroing and to  stop collecting anti-dumping duties created by 
zeroing.  The United States had had ample opportuniti es to comply with the WTO findings.  It had the 
opportunity to do so both in the present dispute, the EU's first "Zeroing" dispute with the 
United States, as well as in the EU second "Zeroing" dispute, where the deadline for implementation, 
19 December 2009, had also come and gone without an y real action on the part of the United States.  
Instead of focusing its efforts on complying with  past unfavourable rulings, the United States was 
engaging in new disputes on zeroing with eight other WTO Members.  The EU hoped that its first step 
towards retaliation in the present case would lead  the Unites States to finally bring itself into 
compliance.  The continued use of zeroing by th e United States in its dumping calculations was 
having a significant adverse economic impact on EU e xporters in various sectors such as steel, ball 
bearings, chemicals and pasta.  Since the entry in to force of the WTO Agreements, the United States 
had collected hundreds of millions of dollars in ex cess of anti-dumping duties, not to mention the far 
greater economic harm that such measures had been cau sing in terms of lost trade.  In view of the 
persistent refusal by the United States to comp ly with its WTO obligations, and the significant 
adverse economic impact of US zeroing on EU expor ters in various sectors, the EU considered it 
appropriate to make a request for the DSB's au thorization to suspend the application to the 
United States of concessions or other obligations under the covered agreements.  The request was 
only the first step towards the actual imposition of sanctions.  The United States still had the possibility to take action before countermeasures we re actually applied.  Ho wever, any action would 
have to be expedient and fully compatible with WTO rules.  The EU would continue to closely 
monitor the US implementing action and would not hesitate to exercise its rights should full 
compliance not be achieved. WT/DSB/M/279 
Page 16  
 
  74. The representative of the United States
 said that, as an initial matter, his country failed to see 
why this Agenda item was proceeding at the present meeting.  As the United States had mentioned at 
the outset of the present meeting, on 12 February 201 0, the United States had filed its objection to the 
level of suspension of concessions or other obligations  requested by the EU and its claim that the EU's 
request did not follow the principles and procedures set  forth in Article 22.3 of the DSU.  Under the 
second sentence of Article 22.6 of the DSU, if the Me mber concerned (in this case, the United States) 
made the objection or claim set out in the US filing,  "the matter shall be re ferred to arbitration".  
There was no decision for the DSB to take at the present meeting, and no action was required of the 
DSB.  In fact, as Japan had noted earlier, Article 22. 6 did not refer to any decision by the DSB.  As 
the United States had explained, the better course would have been the one that the DSB had followed 
in January 2008, when the DSB had adopted its Age nda without the item relating to Japan's recourse 
to Article 22.2 of the DSU.  The minutes of the meeting could be found in document WT/DSB/M/245.  Regrettably, the EU had chosen not to follow the common-sense approach of that 
precedent.  The United States, therefore, had no objec tion if the DSB wished, under this Agenda item, 
to confirm that it may not consider the EU's reque st for authorization, since the matter had been 
referred to arbitration.   
75. In addition, the United States had a few reactions  to the EU's request and statement.  To 
begin, the United States regretted that the EU had decided to escalate this dispute by requesting authorization to suspend concessions or other obliga tions in connection with this dispute.  As had 
been explained earlier in the present meeting, the United States was conducting consultations with all 
interested parties in order to address the findings in  this dispute.  In addition, the United States 
strongly disagreed with the EU's specific proposal for the suspension of concessions and other 
obligations.  Those issues would be taken up in th e arbitration that was currently underway.   
76. There were certain elements of the EU's re quest, however, on which the United States wished 
to comment.  First, the United States was puzzled by the lengthy reference in the EU's request to the 
dispute brought by Japan (DS322).  The EU did not  have any right to suspend concessions or other 
obligations with respect to the rulings in that dis pute.  Second, the United St ates noted that the EU's 
request referred to Article 6 of the DSU.  However, Article 6 did not apply in the present case.  Article 6 dealt with the establishment of panels.  Despite the fact that the EU referred to an 
"Article 22.6 DSU arbitration panel", that was incorr ect.  Article 22 made it clear that the arbitration 
was conducted by an "arbitrator", not a panel.  Of  course, the United States had not placed a request 
for a panel on the Agenda of the present DSB meeti ng, so no panel was being established nor had the 
EU requested the establishment of a panel.  On a related point, the United States noted that in its 
request for authorization, the EU discussed at some length possible arbitration under Article 22.6 of the DSU.  The EU had even gone so far as to pu rport to specify the terms of reference of the 
arbitration.  The EU was not in any position to do so .  Its request was not made under Article 22.6, but 
rather under Article 22.2.  In fact, the EU was requ esting authorization to suspend the application to 
the United States of concessions or other obliga tions.  The EU was not seeking nor initiating any 
arbitration.  Indeed, presumably the EU would have  preferred that its request be granted without 
arbitration.  Those aspects of the EU's request had no procedural basis, nor did they have any basis in 
the text of the DSU, and they did not affect the arbitration. 
77. The representative of Japan
 said that, as an interested third party, his country had been 
actively involved in the dispute settlement procee dings in this dispute, as it concerned the same 
"zeroing" methodology used by the United States, wh ich Japan had challenged in the parallel dispute 
"US – Measures Relating to Zeroing and Sunset Revi ews" (DS322).  There was a substantial overlap 
between the matter referred to arbitration in this  dispute and the one in the DS322 case, because both 
requests by Japan and the EU, which formed part of the matters in the respective proceedings, had 
addressed the US failure to bring into compliance the same measure, the "zeroing" methodology, that 
had been found to be WTO-inconsistent in both disp utes.  Therefore, Japan had a substantial interest 
in the matter before the arbitration proceeding in th is dispute.  Japan recalled that, in the DS322 case,  WT/DSB/M/279 
 Page 17 
 
 
  it had, on 10 January 2008, requested the aut horization for suspension of concession and other 
obligations9, and as a result of the United States' objection,10 the matter had been referred to 
arbitration.  The arbitration proceeding was being suspended11 but, after the DSB adopted the 
Appellate Body Report and complia nce Panel Report on 31 August 200 9, the arbitration could be 
resumed upon a request by either party, in accord ance with the Confirmed Procedures decided by 
Japan and the United States.12  With respect to the issue of whether a DSB decision was required for 
the referral of the matter to arbitration under Article  22.6, Japan would not repeat its position on this 
issue but wished to simply refer to its statement made prior to the adoption of the Agenda of the 
present meeting. 
78. The representative of the European Union  said that on the procedural point raised by the 
United States, her delegation wished to reiterate wh at it had stated previously, namely that it 
considered that referral to Article 22.6 arbitration was an important procedural step that should be 
subjected to the DSB's action.  Such action was automatic.  The DSB's action would serve as a basis 
for subsequent action by the DSB under Article 22.7 of  the DSU;  i.e. the authorization of suspension 
of concessions at the level determined by the Arbitrat or, pursuant to Article 22.6 of the DSU.  On the 
substantive points, this matter sha ll now be referred to arbitration, so it was therefore not appropriate 
to discuss it in the DSB. 
79. The DSB took note  of the statements, and it was agreed that the matter raised by the 
United States in document WT/DS294/36 is referred to arbitration, as required by Article 22.6 of the 
DSU. 
6. United States – Anti-dumping measures on polyethylene retail carrier bags from 
Thailand 
(a) Report of the Panel (WT/DS383/R) 
80. The Chairman  recalled that, at its meeting on 20 March 2009, the DSB had established a 
Panel to examine the complaint by Thailand pertai ning to this matter.  The Report of the Panel 
contained in document WT/DS383/R had been ci rculated on 22 January 2010 as an unrestricted 
document.  The Report of the Panel was before the DSB for adoption at the request of Thailand.  The 
adoption procedure was without prejudice to the right of Members to express their views on the 
Report. 
81. The representative of Thailand  said that his country thanked the Members of the Panel as well 
as the Secretariat (Rules Division) for their work on this dispute.  He said that Members would recall 
that this dispute involved Thailand's challenge of the use by the United States of "zeroing" in 
weighted-average to weighted-average price comparis ons in an original anti-dumping investigation.  
Thailand welcomed the adoption of the Panel Re port finding that the measures at issue were 
inconsistent with the first sentence of Article 2. 4.2 of the Anti-Dumping Agreement.  Thailand noted 
that the DSB had adopted recommendations and rulings fi nding the use of this type of "zeroing" to be 
WTO-inconsistent on several occasions, including the case "US – Measures Relating to Shrimp from 
Thailand" (DS343).  Thailand further noted its l ong-standing concern about the use of the zeroing 
methodology in all stages of anti-dumping proceedings, and its consistent position that all forms of 
zeroing should be eliminated.  In addition, Thailand wished to draw Members' attention to the fact 
that the proceedings in this dispute had invol ved novel and time-saving procedures, including the 
foregoing of a panel meeting, as provided for in  the procedural agreement concluded between 
                                                      
9 WT/DS322/23 and WT/DS322/24. 
10 WT/DS322/25. 
11 WT/DS322/30. 
12 WT/DS322/26. WT/DSB/M/279 
Page 18  
 
  Thailand and the United States circulated in docum ent WT/DS383/4 on 12 January 2010.  Thailand 
expressed its appreciation to the United States, as well as to the third parties, for the cooperative 
manner in which they had participated in these pr oceedings.  As a developing country, Thailand did 
not have unlimited resources to e xpend on dispute settlement, and the procedural agreement had 
enabled it to expedite those proceedings in an effi cient manner.  Thailand looked forward to the US 
prompt implementation of the Pane l's findings in this dispute within a reasonable period of no more 
than six months, in accordance with the procedural  agreement, and to continuing the good cooperation 
that the parties had enjoyed throughout the proceedings. 
82. The representative of the United States
 said that his country thanked the members of the Panel 
and the Secretariat for their work on this dispute.  As it had indicated in its statements on zeroing in 
the past, the US concerns with findings on the topi c had been principally directed at those findings 
relating to zeroing outside the context of average to average comparisons in investigations.  With 
regard to zeroing in the context of average to average comparisons in investigations, the US 
Department of Commerce had announced years ago th at it would discontinue zeroing in this context 
as a result of earlier DSB recommendations and rulings .  Accordingly, in the present dispute, the 
United States and Thailand had sought an efficien t means of addressing Thailand's claims with a 
minimal burden on the resources of the parties and th e dispute settlement system.  The United States 
believed the procedural agreement reached achiev ed that goal.  The United States appreciated 
Thailand's cooperation during this dispute and looked  forward to continuing that cooperation going 
forward. 
83. The DSB took note  of the statements and adopted  the Panel Report contained in 
WT/DS383/R. 
7. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/421) 
84. The Chairman  drew attention to document WT/DSB /W/421, which contained additional 
names proposed for inclusion on the indicative list of governmental and non-g overnmental panelists, 
in accordance with Article 8.4 of the DSU.  He proposed that the DSB approve the names contained 
in document WT/DSB/W/421. 
85. The DSB so agreed . 
8. Colombia – Indicative prices and restrictions on ports of entry 
(a) Statement by Colombia 
86. The representative of Colombia , speaking under "Other Business", said that, pursuant to the 
Award of the Arbitrator, which had been circul ated on 2 October 2009 in document WT/DS366/13, 
Colombia had been granted a reasonable period of time for implementation of the DSB's recommendations and rulings in the dispute:  "Colombia – Indicative Prices and Restrictions  on Ports 
of Entry".  Although it was too soon for the DSB to  start its monitoring function under Article 21.6 of 
the DSU, Colombia, in a gesture of goodwill, wished  to inform Members that it had put into place 
implementing measures before the end of the reas onable period of time.  Those measures were as 
follows:  (i) Customs Authority Resolution No. 01 3518 of 11 December 2009, re pealing the measures 
that had restricted the entry of products fro m Panama at customs in Bogotá and Barranquilla, 
authorizing the release of goods where there were  doubts as to the declared value, and establishing 
mechanisms to ensure the payment of customs taxe s following a dispute over value;  (ii) Government 
Decree No. 111 of 21 January 2010, establishing va rious measures, including a new risk control 
system for customs, and amending Article 128.5 of the Colombian Customs Statute in order to make 
it consistent with the DSB's recommendations;  an d (iii) Customs Authority Resolutions Nos. 545,  WT/DSB/M/279 
 Page 19 
 
 
  546, 547 and 548 of 2010, which had given effect to the other DSB recommendations.  Colombia 
would provide the DSB with a status report in writing regarding this matter prior to the expiry of the 
time-period for reporting on implementation in this dis pute, as stipulated in  Article 21.6 of the DSU. 
87. The DSB took note  of the statement. 
9. Proposed amendments to the Working Procedures for Appellate Review 
(a) Statement by the Chairman 
88. The Chairman , speaking under "Other Business", said that, as he had announced at the outset 
of the present meeting, he would now make a stat ement concerning the amendments proposed by the 
Appellate Body to the Working Procedures for Ap pellate Review, which had been circulated in 
document WT/AB/WP/W/10.  He recalled that he had first raised this matter at the DSB meeting of 
January 2010.  At that time, he had referred to the procedures for consultations between the 
Chairperson of the DSB and the WTO Members in re lation to amendments to the Working Procedures 
for Appellate Review.  He had also indicated that before placing this matter on the DSB's Agenda, it 
would seem appropriate to allow time  for reflection and, as appropriate , informal consultations.  Since 
then, he had made informal contacts with a numb er of Ambassadors regarding this matter.  The 
consensus view was that, given the complexity of  these proposed amendments, Members needed more 
time to consult with their capitals.  They believed that  it would, therefore, not be beneficial to try to 
rush this matter and that further informal consulta tions were still needed.  In  addition, he understood 
that a number of Members had met to begin such informal consultations.  In light of this, once 
Members had indicated that they were ready for c onsideration by the DSB, he or his successor would 
conduct informal consultations and then place this  matter on the DSB's Agenda so that Members 
would be able to express their views on the propo sed amendments for the record.  These views would 
then be conveyed to the Appellate Body with the request that the Appellate Body take them into 
account.  
89. The DSB took note  of the statement. 
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