WORLD TRADE  
ORGANIZATION  RESTRICTED 
WT/DSB/M/302 
28 October 2011 
 (11-5425) 
Dispute Settlement Body 
2 September 2011  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard 
on 2 September 2011 
 
Chairperson:  Mrs. Elin Østebø Johansen (Norway) 
 
  Prior to the adoption of the Agenda, the item concerning the adoption of the Panel Reports in 
the case on:  "China – Measures Related to the Exportation of Various Raw Materials" (DS394;  
DS395;  DS398) was removed from the proposed Age nda following China's decision to appeal the 
Reports.   Subjects discussed: Page 
 
1.  Surveillance of implementation of recommendations adopted by the DSB ......................... 2  
(a)  United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States ............................................................................................................. ............ 3 
(b)  United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by the Unite d States ................................................................................... 5 
(c)  United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States ............................................................................................................. ............ 6 
(d)  European Communities1 – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union ......................................................................... 6  
(e)  United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States ............................................................................................................. ............ 7 
(f)  United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States ................................................................................................... ....... 7 
(g)  United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States .......................................................................... 8  
(h)  China – Measures affecting trading righ ts and distribution services for certain 
publications and audiovisual entertainment products:  Status report by China .......................... 8  
(i)  Australia – Measures affecting the importation of apples from New Zealand:  Status 
report by Australia ........................................................................................................... ........... 9 
                                                      
1 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/302 
Page 2  
 
2.  Implementation of the reco mmendations of the DSB .......................................................... 10  
(a)  Thailand – Customs and fiscal measures on cigarettes from the Philippines ........................... 10  
(b)  European Communities
1 – Definitive anti-dumping measures on certain iron or steel 
fasteners fro m China .......................................................................................................... ....... 11 
3.  United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB .......................................... 12  
(a)  Statements by the European Union and Japan .......................................................................... 12  
4.  United States – Anti-dumping measures on certain shrimp from Viet Nam ..................... 13  
(a)  Report of the Panel............................................................................................................ ........ 13 
5.  Proposed nominations for the indicative list of governmental and 
non-governmental panelists  .................................................................................................. 15 
6.  Statement by the Chairperson regarding  the process for selecting new members 
of the Appella te Body ......................................................................................................... ..... 15 
 
 1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appr opriations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.105) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.105) 
 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.80) 
 (d) European Communities – Measures affecting the approval and marketing of  biotech products:  
Status report by the European Union (WT/DS291/37/Add.43) 
 (e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.23) 
 (f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.20) 
 (g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.14) 
 
(h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.7) 
 (i) Australia – Measures affecting the importation of apples from New Zealand:  Status report by 
Australia (WT/DS367/20) 
 
 
1. The Chairperson 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 issue was resolv ed.  She proposed that 
the nine sub-items under Agenda ite m 1 be considered separately.   WT/DSB/M/302 
 Page 3 
 
 
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.105) 
2. The Chairperson drew attention to documen t WT/DS176/11/Add.105, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US Section 211 Om nibus Appropriations Act of 1998. 
3. The representative of the United States said that  his country had provided a status report in 
this dispute on 22 August 2011, in accordance with Article 21.6 of the DSU.  Legislative proposals 
had been introduced in the current 112th Congr ess that would implement the recommendations and 
rulings of the DSB.  The US Administration would continue to work on solutions to implement the 
DSB's recommendations and rulings. 
4. The representative of the European Union said that the EU thanked the United States for its 
status report and hoped that the US authorities woul d very soon take steps towards implementing the 
DSB's ruling and resolve this matter. 
5. The representative of Cuba noted that on its we bsite the WTO stated the following:  "Dispute 
settlement is the central pillar of the multilateral trading system,  and the WTO's unique contribution to 
the stability of the global economy".  It further stated that:  "Without a means of settling disputes, the 
rules-based system would be less effective because th e rules could not be enforced".  Cuba believed 
that the US non-compliance, for the past nine and a half years, in this dispute seriously undermined 
those statements.  Every month, the behaviour of the United States and the US disregard for WTO rules was criticized by other Members, but to no avail.  Cuba recalled that the DSB had adopted the 
Appellate Body's rulings and recommendations that  clearly condemned the violation of two basic 
principles of the WTO, namely national treatment and most-favoured-nation treatment.  In spite of 
this, the current dispute settleme nt mechanism had not succeeded in  enforcing the rules.  Cuba 
wondered whether the international community an d WTO Members actually believed in such an 
"exalted" Dispute Settlement Understanding an d Cuba thought that they did not.   
6. Cuba recalled that paragraph 69 of the Panel Re port pertaining to this dispute clearly stated 
that, as indicated by the United States, Section 211 would not apply to abandoned trademarks  because 
there was no original owner whose consent was requi red under this Section.  Nevertheless, ten years 
later, the facts revealed the falsity of the US r esponse.  Not only Section 211 remained in force, 
violating two fundamental principles of the multilate ral trading system, but it was also applied to 
prevent the renewal of a trademark that had been ab andoned by its first owner.  Furthermore, this was 
in contradiction of the US trademark law, the Lanham Act, which fully recognized the abandonment 
of trademarks and released third parties from all liability  for their use.  On 28 July 2006, the Office of 
Foreign Assets Control (OFAC) of the US Department of the Treasury had refused to issue a specific 
licence for the renewal of the Havana Club tradem ark registration to Cubaexport, the owner since 
1976.  That refusal had been based on the provisions of  Title 31, Part 515, of the US Code of Federal 
Regulations, in accordance with Section 211.  Th e US courts that had heard the petition filed 
subsequently by Cubaexport with OFAC had fa iled to amend that erroneous decision by the 
Department of the Treasury.  The final two-to-one  majority ruling of 29 March 2011 by judges of the 
Court of Appeals of the District of Columbia had stripped Cubaexport of the registration rights to the Havana Club trademark that it had enjoyed for 35 years. 
7. It was clear that Cubaexport would continue to  have recourse to all possible legal procedures 
to appeal that decision, and that  the Cuban Government would continue to call on the United States in 
order to:  (i) amend its rulings;  (ii) issue a licence permitting the renewal of the trademark 
registration;  and (iii) act in accordance with its  own assertions made during the dispute settlement 
proceedings regarding the non-applicability of Sec tion 211 to abandoned trademarks.  Once again, 
Cuba recalled that, in spite of the implementa tion and continued validity of a measure that 
undermined the intellectual property rights that be longed to Cuba, his country had afforded, and WT/DSB/M/302 
Page 4  
 
continued to afford, extensive protection to the approximately 5,000 US trademarks registered 
in Cuba.  Cuba, therefore, urged that the United Stat es, in a spirit of reciprocity, repeal Section 211 
without further delay. 
8. The representative of Ecuador said that his c ountry supported the statement made by Cuba 
and, once again, wished to stress that Article 21 of the DSU referred specifically to prompt 
compliance with the DSB's recommendations and rulings, in particular with regard to issues affecting 
the interests of a developing-country Member.  Ecua dor hoped that the United States would step up its 
efforts to ensure prompt compliance with the DSB's recommendations and rulings by repealing 
Section 211. 
9. The representative of China said that her country  thanked the United States for its status 
report and its statement made at the present meeting.   China regretted that the United States had, once 
again, reported non-compliance.  This prolonged situation of non-compliance was highly incompatible with the prompt and effective implem entation as required under the DSU, in particular 
since the interests of a developing-country Member were affected.  China, therefore, supported Cuba 
and joined other speakers in urging the United St ates to implement the DSB's recommendations and 
rulings without any further delay. 
10. The representative of Viet Nam said that his co untry thanked the United States for its status 
report and called upon the United States to fully a nd promptly implement the DSB's recommendations 
and rulings so as to ensure that the cr edibility of the system was preserved.  
11. The representative of Brazil said that his country thanked the United States for its status 
report pertaining to this dispute.  As at previ ous meetings, Brazil remain ed concerned about the non-
compliance with the DSB's recommendations and ru lings in this dispute.  Brazil urged the 
United States to take immediate steps to remedy this prolonged situation of  non-compliance without 
further delay. 
12. The representative of the Plurinational State of Bolivia said that his country had, once again, 
noted that the US status report did not contain any information on progress in this dispute.  Bolivia, 
therefore, wished to reiterate its concern about the US failure to comply with the DSB's rulings.  Such 
non-compliance caused serious harm to a developing c ountry and affected the efficient functioning of 
the WTO.  As Bolivia had repeated ly stated, this situation undermined the credibility and integrity of 
the multilateral trading system.  Bolivia, once again,  urged the United States to comply with the 
DSB's rulings and to take steps to remove the r estrictions imposed under Section 211.  Like other 
delegations, Bolivia supported the concerns raised by Cuba at the present meeting.   
13. The representative of Nicaragua said that her count ry had taken note of the statements made 
by the parties to this dispute, as well as of the concerns raised by Cuba about the US non-compliance 
with the DSB's recommendations and rulings.  In its statements made at previews DSB meetings, Nicaragua had noted how much time had elapsed si nce the adoption of the DSB's recommendations in 
this dispute.  On several occasions, Nicaragua had re quested the United States to provide more details 
on US efforts towards implementation and had raised sy stemic concerns about the lack of compliance.  
Once again, Nicaragua wished to reiterate its ca ll upon the United States to promptly comply and 
resolve this matter, which had been on the DSB's Agenda for more than eight years. 
14. The representative of the Bolivarian Republic of  Venezuela said that her country supported 
Cuba's statement.  Venezuela welcomed the US status  report, but regretted that this report was merely 
a repetition of previous status reports submitted by the United States.  The US failure to comply in 
this dispute had resulted in legislation which was contrary to the TRIPS Ag reement and inconsistent 
with the principles of national and most-favoured-na tion treatment.  Furthermore, that legislation 
injured Cuba and undermined the credibility of the WTO and its dispute settlement mechanism.  
Venezuela hoped that the United States would co mply with the DSB's recommendations.  As had  WT/DSB/M/302 
 Page 5 
 
 
been done on previous occasions, Venezuela urged th e United States to put an end to its policy of 
economic, commercial and financial blockade agai nst Cuba and recalled the US commitment to 
respect the DSB by complying with the recommendations and rulings.  
15. The representative of Argentina said that his c ountry thanked the United States for its status 
report and joined previous speakers who had ca lled for prompt implementation of the DSB's 
recommendations pertaining to this dispute.  Like  Cuba, Argentina was also concerned about the 
effect of non-compliance on other Members and the multilateral trading system.  Once again, 
Argentina reiterated its call upon the parties, in particular on the United States, to take all the 
necessary steps to finally remove this item from the DSB's Agenda. 
16. The representative of Paraguay said that his count ry thanked the United States for its status 
report.  Paraguay supported the statements made by Cuba and other speakers.  It urged the 
United States to comply with the DSB's recomme ndations and rulings by repealing Section 211. 
17. The representative of Mexico said that his country  thanked the United States for its report.  
Mexico urged the parties to solve this dispute through the legal remedies provided under the DSU 
provisions.  Mexico noted that, if a dispute was not resolved, any Member could initiate its own 
dispute if it considered that its rights were being nullified or impaired.  Mexico also noted that the 
discussion under this Agenda item could provide usef ul input for the on-going discussions carried out 
in the context of the DSU negotiations, in particular w ith regard to the issue of effective compliance.   
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.105) 
19. The Chairperson drew attention to documen t WT/DS184/15/Add.105, which contained the 
status report by the United States on progress in th e implementation 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 22 August 2011, in accordance with Article 21.6 of the DSU.  As of November 2002, 
the US authorities had addressed the DSB's recommendations and rulings with respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty inv estigation at issue in 
this dispute.  With respect to the recommendations and rulings of the DSB that had not already been 
addressed by the US authorities, the US Administ ration would work with the US Congress with 
respect to appropriate statutory measures that would resolve this matter. 
21. The representative of Japan said that his country  thanked the United States for its statement 
and its most recent status report.  Japan noted th at the United States had taken certain measures to 
implement part of the DSB's recommendations  in November 2002.  Japan hoped that the 
United States would soon be in a position to report to the DSB on more tangible progress with respect 
to the implementation of the remaining part of the DSB's recommendations. Full and prompt 
implementation of the DSB's recommendations and ru lings was "essential to the effective functioning 
of the WTO and the maintenance of a proper bala nce of the rights and obligations of Members".2  
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. 
                                                      
2 Article 3.3 of the DSU. WT/DSB/M/302 
Page 6  
 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.80) 
23. The Chairperson drew attention to documen t WT/DS160/24/Add.80, which contained the 
status report by the United States on progress in th e implementation 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 22 August 2011, 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 th at the EU had taken note of and thanked the 
United States for its status report.  The EU remained  keen to work with the US authorities towards the 
complete resolution of this case. 
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.43) 
27. The Chairperson drew attention to documen t WT/DS291/37/Add.43, 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 a ffecting the approval and marketing of biotech 
products. 
28. The representative of the European Union said that, as mentioned at the 20 July 2011 DSB 
meeting, the EU welcomed the continuation of th e technical dialogue with the United States which 
gave both parties an opportunity to discuss directly issues of their concern regarding biotechnology.  The EU hoped that this constructive approach based  on dialogue would allow the parties to leave 
litigation aside.  Once again, the EU noted that its regulatory procedures on biotech products continued to work as foreseen in the legislation.  The number of GMOs authorized since the date of 
establishment of the Panel was thirty-four.  In 2010,  11 applications had been authorized, more than 
double the number of authorizations in 2009, in cluding one authorization for cultivation.  On 
17 June 2011, the Commission had adopted two more authorization decisions
3, together with the 
decision on the renewal of the authorization of ma ize 1507.  Progress had also been made on other 
applications for authorization.  Four more dr aft applications had been voted in the Standing 
Committee in February 2011.4  The Council would examine those a pplications in the coming weeks.  
In April and July 2011, EFSA had adopted other scientific opinions on three GM soybean.5  
29. The representative of the United States said that  his country thanked the EU for its status 
report and its statement made at the present meeting.  As noted in prior meetings, the United States 
was concerned with delays in the EU approval system for biotech products.  Some product applications were subject to long delays even after receiving favourable assessments from the EU's 
own scientific authority.  Unfortunately, those de lays continued to constrain access to the EU for 
biotech products.  In the first eight months of 20 11, the EU had reached a final decision on only two 
                                                      
3 Maize MON89034xMON88017 and cotton GHB614. 
4 MIR604×GA21 maize, BT11×MIR604 maize, Bt11×MIR604×GA21 maize, 281-24-236/3006-210-
23 cotton. 
5 A5547-127, 356043 and MON87701.  WT/DSB/M/302 
 Page 7 
 
 
of the dozens of pending applications.  The Unite d States hoped that the EU would allow additional 
product applications to reach a final deci sion in the remaining months of 2011. 
30. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.23) 
31. The Chairperson drew attention to documen t WT/DS322/36/Add.23, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US measures relating to zeroing and sunset reviews. 
32. The representative of the United States said that  his country had provided a status report in 
this dispute on 22 August 2011, in accordance with Ar ticle 21.6 of the DSU.  As the United States had 
explained in its status report, in December 2010  the US Department of Commerce had announced a 
proposal to change the calculation of weighted  average dumping margins and assessment rates in 
certain anti-dumping proceedings.  At the present time, the US Department of Commerce was continuing with its ongoing work on the December proposal.  
33. The representative of Japan said that his country  thanked the United States for its statement 
and its most recent status report.  Japan took note of the report that the internal consultation process 
and ongoing work was under way, based on the pr oposal announced by the US Department of 
Commerce on 28 December 2010.  While taking th e US implementation efforts as a positive step 
forward, Japan continued to seek prompt and full co mpliance by the United States with respect to all 
of the measures at issue that were subject to th e recommendations in this dispute.  Japan looked 
forward to a continued dialogue with the United St ates and would closely monitor any developments 
on this matter.  Japan reserved its right under the DSU to take appropriate action, if necessary. 
34. The representative of China said that her country  thanked the United States for its status 
report and its statement.  China welcomed th e steps taken by the United States towards the 
implementation of the DSB's rulings and recomme ndations on zeroing matters.  However, China's 
concerns as to how the United States would implement the DSB's decision on zeroing matters 
remained high.  China would follow the US implem entation steps closely and urged the United States 
to take actions to fully comply with the DSB's recommendations and rulings without further delay.  
35. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.20) 
36. The Chairperson drew attention to documen t WT/DS350/18/Add.20, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning the existence and application of zeroing methodology by the United States. 
37. The representative of the United States said th at his country had addressed the issue of 
compliance with the findings in this dispute in the status report provided on 22 August 2011, and 
earlier in the present meeting's discussion of Agenda item 1(e).  The United States referred Members to that report and statement for further details. 
38. The representative of the European Union said that the EU thanked the United States for its 
most recent status report.  Since the United Stat es had not reported on any steps taken to address the 
concerns raised by the EU in the DSB, the EU re ferred Members to its statements made at the DSB WT/DSB/M/302 
Page 8  
 
meetings in January and February 2011.  The EU re mained ready to engage with the United States in 
discussions in the WTO and bilaterally in order to ensure that its concerns were addressed by the 
United States.  The EU looked forward to further information from the United States on its intentions. 
39. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(g) United States – Laws, regul ations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.14) 
40. The Chairperson drew attention to documen t WT/DS294/38/Add.14, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US laws, regulations and me thodology for calculating dumping margins. 
41. The representative of the United States said th at his country had addressed the issue of 
compliance with the findings in this dispute in the status report provided on 22 August 2011, and 
earlier in the present meeting's discussion of Agenda item 1(e).  The United States referred Members to that report and that statement for further details. 
42. The representative of the European Union said that the EU thanked the United States for its 
status report and referred Members to its stat ement made under Agenda item 1(f) of the present 
meeting. 
43. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.7) 
44. The Chairperson drew attention to document WT/DS363/17/Add.7, which contained the 
status report by China on progress in the implemen tation of the DSB's recommendations in the case 
concerning China's measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products. 
45. The representative of China said that her country  had provided its status report in this dispute 
on 22 August 2011, in accordance with Article 21.6 of the DSU.  China had made tremendous efforts 
to implement the DSB's rulings and recommendations and had, thus far, co mpleted amendments to 
most measures at issue.  China believed that th is matter would be properly resolved through joint 
efforts and mutual cooperation by relevant parties. 
46. The representative of the United States said that his country thanked China for its status report 
and its statement made at the present meeting.  As it had previously noted, the United States remained 
concerned about the lack of progress by China in br inging its measures relating to films for theatrical 
release into compliance with the DSB's recommenda tions and rulings.  The United States also had 
significant concerns about the incomplete progress re lative to China's measures relating to audiovisual 
home entertainment products, reading materials,  and sound recordings.  The United States was 
conferring with China on these matters and hoped that China would take steps to resolve this matter 
soon.     
47. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting.  WT/DSB/M/302 
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(i) Australia – Measures affecting the importation of apples from New Zealand:  Status report by 
Australia (WT/DS367/20) 
48. The Chairperson drew attention to document WT/DS367/20, which contained the status 
report by Australia on progress in the implementation of the DSB's recommendations in the case 
concerning Australia's measures affecting th e importation of apples from New Zealand. 
49. The representative of Australia said that with respect to the adoption on 17 December 2010 of 
the DSB's recommendations and rulings pertaining to the dispute:  "Australia – Measures Affecting 
the Importation of Apples from New Zealand", Australia wished to inform the DSB that it had adopted the measures necessary to co mply with those recommendations and rulings.  In particular, as 
foreshadowed at the 17 December 2010 DSB mee ting, Australia had undertaken a science-based 
review of its pre-existing import policy for New Zeala nd apples with respect to the three pests at issue 
in the dispute (fire blight, European canker, and appl e leaf curling midge).  A draft of the review had 
been released for a 60 day public comment period on  4 May 2011.  The Governments of New Zealand 
and the United States, as well as other stakeholders, had made submissions on the draft review during 
the comment period.  Their submissions, along with those of the other stakeholders, had been taken 
into account in finalizing the review.  On 17 A ugust 2011, the Australian Government had announced 
that Australia's Director of Animal and Plant Qu arantine had determined a policy for the import of 
apples from New Zealand based on the review.  Finally, on 17 August 2011, Australia had commenced issuing import permits for apples from New Zealand on the basis of this policy, 
consistent with the joint notification of the ag reed reasonable period of time by Australia and 
New Zealand to the DSB on 31 January 2011.  Im port of New Zealand apples into Australia had 
commenced as of 19 August 2011.  The adoption of these measures ensured the full implementation 
of the DSB's recommendations and rulings pertaining to this dispute.  Australia, therefore, considered 
that it was in full compliance with those recommendations and rulings. 
50. The representative of New Zeal and said that his country appreciated the opportunity to 
comment on Australia's status report.  In August 2011, New Zealand had welcomed the release of a 
new Determination for the importation of New Z ealand apples to Australia.  New Zealand also 
recognized that since issuance of the Determinati on, import permits had been  granted and trade had 
commenced.  New Zealand expected the main flow of exports to begin early in 2012 with the new season harvest.  This marked a momentous step al ong the road in this process:  it ended what was 
effectively a 90-year prohibition on the impor tation of New Zealand apples to Australia.  
New Zealand recognized the efforts of Australian officials and the Commonwealth Government of 
Australia to ensure that the new measures were put in place within th e agreed time-frames.  Ministers 
and officials on both sides had worked together cl osely and had maintained clear and open lines of 
communication.  New Zealand appreciated the pos itive and constructive re lationship it had with 
Australia throughout the implementation process and looked forward to this continuing, as they 
moved towards durable and commercially viable trade.  
51. New Zealand noted that, in its status report a nd statement at the present meeting, Australia 
had stated that it had "fully" implemented the DSB's recommendations and rulings in this dispute.  In 
that regard, New Zealand recalled that the Panel's and the Appellate Body's findings in this dispute 
had confirmed New Zealand's long-standing view th at Australia's previous quarantine measures 
applied to New Zealand apples were neither based on an appropriate risk assessment nor supported by 
sufficient scientific evidence.  The findings ha d supported New Zealand's position throughout this 
process:  that mature and symptomless apples, subject  to a standard border inspection, did not pose 
sufficient phytosanitary risk to require additional measures.  Aust ralia's "Final Report for the Non-
Regulated Analysis of Existing Policy for Apples fro m New Zealand" recognized that the risk posed 
by the three quarantine pests and diseases at issue in this dispute was lower than that arrived at in 
Australia's 2006 Import Risk Analysis (IRA).  The Fi nal Report also stated that, as a result of this 
level of risk, "additional" quarantine measures were  not required to achieve Australia's appropriate 
level of protection.  However, the Final Report nevertheless required New Zealand to ensure that WT/DSB/M/302 
Page 10  
 
several commercial practices (in the orchard and packhouse) were used for production of apples.  While those measures may reflect current industr y practice, New Zealand considered that the 
imposition of those measures was not supported by su fficient scientific evidence.  They went beyond 
a requirement for mature, symptomless apples subject  only to standard border inspection procedures.  
New Zealand had raised these and other concerns with Australia in its submission on the "Draft 
Report for the Non-Regulated Analysis of Existin g Policy for Apples from New Zealand".  However, 
New Zealand had agreed to provide the assurances re quired by Australia in its  final determination on 
the basis that they may result in  commercially meaningful access.  For those reasons, and despite 
trade commencing, New Zealand questioned whethe r Australia had fully complied with the DSB's 
recommendations and rulings in this case.  New Zeala nd also noted that efforts continued to be made 
at both state and Federal levels to change the current measures.  For example, New Zealand was 
aware of a proposal to introduce a Private Members Bill in the Austra lian Senate that would prevent 
the importation of New Zealand apples.  Some states had also indicated that they would seek to prevent the entry of New Zealand apples.  The state of Tasmania had indicated that it was considering 
imposing an import ban on New Zealand apples and S outh Australia had also indicated that it would 
declare its own quarantine zones to restrict the pr esence of New Zealand apples in its apple growing 
regions.  New Zealand acknowledged that tho se were clearly not measures sought by the 
Commonwealth Government of Australia, and urged the Commonwealth Government to continue to 
resist strongly such proposals. 
52. The representative of Australia said that, in response to some comments made by 
New Zealand in its statement, Australia noted that wi th regard to the Private Member's Bill referred to 
by New Zealand, the Australian Government was st rongly opposed to the Bill and would be working 
hard to prevent its passage.  There had been no i ndication that the Bill was supported by any of the 
major political parties in Australia.  With regard to possible State measures restricting the movement 
of New Zealand apples, Australia noted that the Commonwealth was in discussions with the State 
Governments to ensure that all SPS measures in Austra lia were consistent with Australia's obligations 
under the SPS Agreement. 
53. The DSB took note of the statements. 
2. Implementation of the recommendations of the DSB 
(a) Thailand – Customs and fiscal measures on cigarettes from the Philippines 
 (b) European Communities – Definitive anti-dumpi ng measures on certain iron or steel fasteners 
from China 
 54. The Chairperson recalled that in accordance w ith the DSU provisions, the DSB was required 
to keep under surveillance the implementation of r ecommendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Members.  In that 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 
recommendations and rulings of the DSB.  She prop osed that the two sub-items under Agenda item 2 
be considered separately. 
(a) Thailand – Customs and fiscal measures on cigarettes from the Philippines 
55. The Chairperson recalled that, at its meeting on 15 July 2011, the DSB had adopted the 
Appellate Body Report pertaining to the disput e:  "Thailand – Customs and Fiscal Measures on 
Cigarettes from the Philippines" and the Panel Re port on the same matter, as modified by the 
Appellate Body Report.  She noted that the 30- day time-period under Article 21.3 of the DSU 
pertaining to this dispute had expired on 14 August 2011 and, on 11 August 2011, Thailand had 
informed the DSB in writing of its intentions in respect of implementation.  The relevant  WT/DSB/M/302 
 Page 11 
 
 
communication was contained in document WT/DS371/ 12.  She then invited the representative of 
Thailand to make a statement. 
56. The representative of Thailand said that his country thanked the DSB for the opportunity to 
comment on the implementation of the DSB's recomme ndations pertaining to this dispute.  Thailand 
confirmed that it intended to implement the DSB's recommendations and rulings in this dispute and 
that it would need a reasonable period of time to do so.  Thailand had indicated its intentions in 
writing to the Chairperson of the DSB by letter, da ted 11 August 2011, which had subsequently been 
circulated to Members in document WT/DS371/ 12 on 15 August 2011.  Thailand had submitted its 
statement of intentions in writing to the DSB in order to avoid holding a special meeting of the DSB solely for that purpose during the summer break.  Thailand was currently in discussions with the 
Philippines in order to reach an agreement on a reas onable period of time for implementation in this 
dispute.  In order to allow sufficient time for the parties to discuss a mutually agreed period, the 
Philippines and Thailand had agreed that any agr eement between the parties on a reasonable period of 
time shall be considered to be an agreement under Ar ticle 21.3(b) of the DSU even if it was concluded 
outside of the 45-day period referred to therein.  Thailand looked forward to continuing to work 
cooperatively with the Philippines in th e implementation phase of this dispute. 
57. The representative of the Philippines said that her country thanked Thailand for its written 
notification of its intentions to fully implement the DSB's rulings and recommendations, as well as for 
its statement made at the present meeting.  As noted  by Thailand, the parties were currently engaged 
in consultations to determine the duration of the r easonable period of time.  The Philippines were in 
agreement with Thailand that this may go beyond th e 45-day period set out in Article 21.3(b) of the 
DSU.  Further to that agreement, Thaila nd and the Philippines would be making a joint 
communication to the DSB of an agreement to extend the 90-day period provided for under Article 21.3(c) of the DSU shortly after the pr esent meeting.  The Philippines hoped that those 
discussions would soon bear fruit.  The Philippines looked forward to Thaila nd's full implementation 
of the DSB's recommendations.  
58. The DSB took note of the statements, and of th e information provided by Thailand regarding 
its intentions in respect of implementation of the DSB's recommendations. 
(b) European Communities – Definitive anti-dumping measures on certain iron or steel fasteners 
from China 
59. The Chairperson recalled that, at its meeting on 28 July 2011, the DSB had adopted the 
Appellate Body Report pertaining to the dis pute:  "European Communities – Definitive Anti-
Dumping Measures on Certain Iron or Steel Fasteners from China" and the Panel Report on the same 
matter, as modified by the Appellate Body Re port.  She noted that the 30-day time-period under 
Article 21.3 of the DSU pertaining to this dispute had expired on 27 August 2011 and, on 
18 August 2011, the European Union had informed the DSB in writing of its intentions in respect of 
implementation.  The relevant communication was contained in document WT/DS397/12.  She then 
invited the representative of the European Union to make a statement. 
60. The representative of the European Union sai d that, as had been indicated in writing on 
18 August 2011, the EU wished to reconfir m that it intended to implement the DSB's 
recommendations and rulings pertaining to this dispute in a manner that respected its WTO 
obligations.  The EU would need a reasonable period of  time in order to do so.  The EU stood ready to 
discuss this matter with China in due course, in  accordance with Article 21.3(b) of the DSU. 
61. The representative of China said that her country  thanked the EU for its statement at the 
present meeting, informing the DSB of its intent ions to implement the DSB's recommendations and 
rulings pertaining to this dispute.  With regard to the EU's communication of 18 August 2011, China 
was pleased to confirm that, as stated in that lette r, China had agreed with the EU in the spirit of WT/DSB/M/302 
Page 12  
 
collaboration and mutual support that the EU would in form the DSB of its intentions in writing rather 
than at a special DSB meeting held in August.  China noted that Article 21 of the DSU provided 
clearly that "prompt compliance with recommendations  or rulings of the DSB is essential in order to 
ensure effective resolution of disputes to the bene fit of all Members".  China looked forward to the 
EU taking steps towards bringing its measures into compliance with the DSB's rulings and 
recommendations pertaining to this dispute.  China took note that the EU would need a reasonable 
period of time for implementation, and was ready to  discuss with the EU a reasonable period of time 
for implementation at the earliest convenience for both parties.  
62. The DSB took note of the statements, and of the information provided by the European Union 
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 
63. The Chairperson said that this item was on the Agen da of the present meeting at the request of 
the European Union and Japan.  She then invited the respective representatives to speak. 
64. The representative of the European Union said that the EU had alr eady informed the DSB 
about the annual adjustment in the level of duties applied by the EU in this case in a document 
circulated on 12 April 2011.  At the present meeting, and as it had done many times before, the EU wished to ask the United States when it would e ffectively stop the transfer of anti-dumping and 
countervailing duties to the US industry and, hence, put an end to the condemned measure.  The fact 
that the United States had stopped disbursing duties collected after a certain point in time did not 
achieve full compliance.  Every disbursement that still took place was clearly an act of non-
compliance with the DSB's recommendations.  The EU  renewed its call on the United States to abide 
by its clear obligation under Article 21.6 of the DS U and to submit status reports pertaining to this 
dispute. 
65. The representative of Japan said that a new round of distributions under the CDSOA appeared 
to be underway6 and thus the CDSOA remained operationa l.  As the US Customs and Border 
Protection had explained, "the distribution pr ocess will continue for an undetermined period".7  Under 
those circumstances, Japan had decided to exte nd, as from 1 September 2011, its suspension of 
concessions and related obligations under the GATT 1994 on certain US imports for another one year.  
Details of this decision were provided in documen t WT/DS217/60.  Japan urged the United States to 
stop the illegal distributions and repeal the CDSOA, not  just in form but in su bstance, so as to resolve 
this dispute.  According to Article 21.6 of the DSU, the United States was under obligation to provide 
the DSB with a status report in this dispute. 
66. The representative of Brazil said that his country  thanked the EU and Japan for keeping this 
item on the DSB's Agenda.  Brazil was of the view that, in order to comply with the DSB's 
recommendations and rulings pertaining to this dispute, the United States was required to discontinue 
all disbursements pursuant to the CDSOA.  Until then, the United States should resume the regular 
submission of status reports to the DSB pursuant to Article 21.6 of the DSU.  
67. The representative of India said that his country  thanked the EU and Japan for keeping this 
issue under the surveillance of the DS B.  India shared their concerns and endorsed their views.  The 
                                                      
6 See US Customs and Border Protection' s website at :  
http://www .cbp.gov/xp/cgov/trad e/priority_trade/add _cvd/cont_dump/  
7 See US Customs and Border Protection' s website at:  
http://www.cbp.gov/xp /cgov/trade/priority _trade/add _cvd/cont _dump/cont _dump_faq.xm   WT/DSB/M/302 
 Page 13 
 
 
CDSOA remained operational allowing for the di sbursements by the US Administration to its 
domestic industry, thereby affecting the rights of ot her WTO Members.  India agreed with previous 
speakers that this item should continue to re main under the surveillance of the DSB until full 
compliance was achieved. 
68. The representative of Canada said that her count ry 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. 
69. The representative of Thailand said that his count ry thanked the EU and Japan for continuing 
to bring this item before the DSB.  Thailand ur ged the United States to cease disbursement and to 
fully implement the DSB's rulings and recommendations on this matter. 
70. 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.  
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.  The United States re called furthermore that Members had acknowledged 
during previous DSB meetings that the 2006 Defic it Reduction Act did not permit the distribution of 
duties collected on goods entered after 1 October 2007.  With respect to comments regarding further 
status reports in this matter, as it had already expl ained at previous DSB meetings, the United States 
failed to see what purpose would be served by fu rther submission of status reports repeating the 
progress the United States had made in the implementation of the DSB's recommendations and rulings.  Finally, the United States noted that the EU and Japan had referred, at the present meeting, to 
their renewed measures relating to this dispute.  Th e United States would be reviewing carefully those 
measures.  As the United States had observed previ ously, the DSB had only authorized the suspension 
of concessions or other obligati ons as had been provided in the Awards of the Arbitrators.  
71. The DSB took note of the statements. 
4. United States – Anti-dumping measures on certain shrimp from Viet Nam 
(a) Report of the Panel (WT/DS404/R) 
72. The Chairperson recalled that at its meeting on 18 May 2010, the DSB had established a panel 
to examine the complaint by Viet Nam pertaining to this dispute.  The Report of the Panel contained 
in document WT/DS404/R had been circulated on 11 July 2011as an unrestricted document.  The Report of the Panel was before the DSB for adopti on at the request of Viet Nam.  The adoption 
procedure was without prejudice to the right of Members to express their views on the Report. 
73. The representative of Viet Nam said that his country welcomed the adoption of the Panel 
Report at the present meeting and thanked the Panel and the Secretariat for their work on this dispute.  
Viet Nam also appreciated the cooperation of th e United States and expected the United States to 
promptly and fully implement the DSB's recommenda tions.  Viet Nam hoped that the parties would 
continue to cooperate and discuss any issue during the implementation process. 
74. The representative of the United States said that his country would like to begin by thanking 
the Panel and the Secretariat assisting them for th eir work on this dispute.  The United States 
appreciated the Panel's thorough review of the facts and the legal claims in this dispute.  In particular, 
the United States welcomed the Panel's finding that  Viet Nam had failed to identify any so-called 
"continued use" claim in its panel request and, acco rdingly, no such claim was within the Panel's 
terms of reference.  It was essential for panels to ma ke findings only with respect to claims that were 
properly part of the matter referred to them by th e DSB.  The United States also appreciated the 
Panel's recognition that Members' investigating authorities had the right to limit the number of WT/DSB/M/302 
Page 14  
 
exporters and producers individually examined when  the number of exporters or producers was so 
large that investigating each individually would be  impracticable.  The United States said that the 
flexibility to limit the examination is critical in li ght of the resource constraints that all Members 
faced.   
75. With respect to the "zeroing" claims at issue in  this dispute, the United States noted that in 
one context the Panel had simply adopted the r easoning of the Appellate Body in some prior 
disputes
8, and in another context had relied on diffe rent reasoning that was also problematic.9  
Although the Panel had quoted the text of  the relevant Agreement provisions10, the Panel had not 
undertaken any assessment of the ordinary meaning of that text, in its context, and in light of the 
object and purpose of the Anti-Dumping Agreement,  as provided for in the DSU.  The United States 
had made very clear its significant concerns with th e Appellate Body's evaluation of "zeroing" in past 
disputes.  The United States said that it would not re peat those concerns at the present meeting.  The 
United States believed that those reports, as well as the current Panel Report, went beyond what the text of the agreements provided and what nego tiators had agreed to in the Uruguay Round. 
76. Notwithstanding its systemic concerns about the findings in this Report and in earlier 
Appellate Body reports involving the use of "zer oing", the United States recognized the systemic 
importance of compliance with dispute settlement findings.  To that end, the United States had 
devoted significant resources to complying with the DSB's recommendations and rulings in these 
disputes.  As the United States had previously explained to the DSB, the US Department of 
Commerce had announced a proposal to change the calculation of weighted average dumping margins and assessment rates in certain anti-dumping proceedi ngs.  With respect to other issues, while the 
Panel's findings that some US measures had not been  consistent with certain obligations in the Anti-
Dumping Agreement were disappointing, in general,  the United States appreciat ed the Panel's careful 
overall examination of the arguments that had been presented by the parties and third parties to this 
dispute.  The US representative thanked the Chairper son and fellow delegates for their attention to the 
US statement. 
77. The representative of the European  Union said that the EU welcom ed the Panel's findings that 
the use of zeroing by the United States in administra tive reviews was inconsistent with Article 2.4 of 
the Anti-Dumping Agreement and that the zeroing me thodology of the United States, which was still 
applied in every case, was in breach of Article 9. 3 of the Anti-Dumping Agreement and Article VI:2 
of the GATT 1994.  The EU particularly welcomed  the Panel's conclusion that the Appellate Body 
had previously found that zeroing was "inherently  inconsistent" with the "fair comparison" 
requirement of Article 2.4 of the Anti-Dumping Agre ement and its decision to adopt this reasoning as 
its own.  This was yet another demonstration th at the WTO-inconsistency of zeroing had now been 
definitively decided and that the United States shoul d take immediate steps to abandon this practice 
and to bring itself into conformity with its WTO ob ligations.  With regard to the Panel's findings on 
the rate applied to the Viet Nam-wide entity, th e EU understood that this was a difficult issue but 
continued to believe that, as the Appellate Body had stated in the "EU - Fasteners" dispute, 
investigating authorities should have the possibility to impose an appropriate level of duty with regard 
to exporters which were controlled by the state in non-market economies. 
78. The DSB took note of the statements and adopted the Panel Report contained in 
WT/DS404/R. 
                                                      
8 Panel Report, para. 7.93. 
9 Panel Report, para. 7.141. 
10 Panel Report, paras. 7.90, 7.131 and 7.132.  WT/DSB/M/302 
 Page 15 
 
 
5. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/458) 
79. The Chairperson drew attention to document  WT/DSB/W/458, 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.  She proposed that the DSB approve the names contained 
in document WT/DSB/W/458. 
80. The DSB so agreed. 
6. Statement by the Chairperson regarding the process for selecting new members of the 
Appellate Body 
81. The Chairperson, speaking under "Other Busin ess", said that, as had been announced at the 
outset of the meeting, she wished to make a stat ement concerning the process for the appointment of 
two Appellate Body members.  She said that, as Me mbers were aware, after the expiry of the 
31 August 2011 deadline for Members' nominations, f our candidates had been nominated for the two 
positions in the Appellate Body by the followi ng three countries:  Pakistan, India and the 
United States.  She recalled that a Selection Co mmittee had been established by the DSB at its 
meeting on 24 May 2011 to carry out the process.  Sh e further recalled that this Selection Committee, 
as provided in the procedures set out in document WT/DSB/1, was composed of the Chairs of the 
General Council, the Goods Council, the Services  Council and the TRIPS Council, the Director 
General and the Chair of the DSB.  She further recalled that the DSB had agreed to request the 
Selection Committee to conduct inte rviews with candidates and to hear views of delegations in 
September/October 2011 and to make its recommend ations by no later than 10 November 2011 so 
that the DSB could take a decision on appointments at its meeting on 21 November 2011.   
82. She informed delegations that, in accordance with  the decision of the DSB, she would hold an 
organizational meeting of the Selection Committee in the week of 12 September 2011 to discuss the 
process and to agree on a time-table for interviews as well as to set aside some time to hear views of delegations before the final recommendations were made.  As soon as the time-table for the process 
was agreed, she would send a fax to all delega tions regarding this matter and would ask the 
Secretariat to make the necessary arrangements to se t up appointments.  As in the past, delegations 
were also free to make their views known to th e Selection Committee in writing.  Any such written 
communications should be sent to the Chairper son of the DSB in care of the Council and TNC 
Division.  A deadline for written comments would be communicated to delegations accordingly by 
fax.  Finally, she noted that, consistent with p ast practice, delegations wishing to meet with the 
candidates were invited to contact directly the Missions of the respective nominating Members in 
order to make appropriate arrangements.   
83. The DSB took note of the statement. 
__________