RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/257 
5 December 2008 
 (08-6028) 
Dispute Settlement Body 
21 October 2008  
 
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 21 October 2008  
 
Chairman:  Mr. Mario Matus (Chile) 
  
Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................5  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........5  
(d) European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Communities..............................................................6  
(e) Turkey – Measures affecting the importation of rice:  Status report by Turkey.........................7  
2. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ............................................8  
(a) Statements by the European Communities and Japan ................................................................8  
3. Thailand – Customs and fiscal measures on cigarettes from the Philippines......................9  
(a) Request for the establishment of a panel by the Philippines.......................................................9  
4. Mexico – Definitive countervailing measures on olive oil from the European 
Communities.................................................................................................................... ........10  
(a) Report of the Panel............................................................................................................ ........10  
5. Proposed nominations for the indicative list of governmental and non-
governmental panelists ......................................................................................................... ..14 
 WT/DSB/M/257 
Page 2  
 
  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.71) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.71) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.46) 
 
(d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.9 – WT/DS292/31/Add.9 – WT/DS293/31/Add.9) 
 (e) Turkey – Measures affecting the importation of rice:  Status report by Turkey 
(WT/DS334/14) 
 1. The Chairman
 recalled that Article 21.6 of the DSU required that "unless the DSB decides 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establishment of the reasonable 
period of time pursuant to paragraph 3 and shall remain on the DSB's Agenda until the issue is 
resolved".  He proposed that the five sub-items to which he had just referred be considered separately. 
(a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.71) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.71, 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 9 October 2008, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, a number of legislative proposals that would implement the DSB's recommendations and rulings in this dispute had been introduced in th e current Congress, in both the US Senate and the US 
House of Representatives.  The US administratio n continued to work with the US Congress to 
implement the DSB's recommendations and rulings. 
4. The representative of the European Communities
 said that, at the present meeting, the 
United States was presenting its seventy-first status  report on its progress in the implementation of the 
DSB's rulings in this dispute.  And, the EC mu st unfortunately, once again, note that this report 
showed no progress.  Except for the date, it was identical to the previous report submitted in 
September and to every other repor t submitted since March 2007.  In fact, since the condemnation of 
Section 211 in February 2002, the United States ha d failed to take any steps to implement the DSB's 
ruling.  As already stated on several occasions, th e EC sincerely hoped that the current US Congress 
or the next one would finally progress and bring the United States into compliance with its TRIPS 
obligations.  
5. The representative of Cuba  said that his country had examined the status report submitted by 
the United States in relation to this dispute, dated 10 October 2008.  Bearing in mind that a status 
report should inform the DSB of progress in th e implementation of recommendations or rulings, 
Members should be asking themselves what was the point of the US document.  Month after month, for more than six years, the US Government had re peated exactly the same wo rds, with no intention  WT/DSB/M/257 
 Page 3 
 
 
whatsoever of coming close to the truth.  Section 211  remained in effect, and legislative proposals to 
repeal it had been unsuccessful.  Cuba, which, as ev eryone knew, had a significant interest in this 
dispute, had provided regular updates at the DSB mee tings on the bipartisan legislative proposals.  In 
2007, five proposals, based on known bills, had been s ubmitted in relation to Section 211.  Of these 
five, only three had proposed the repeal of Section 2 11.  None of them had yet been approved by the 
US Congress, and the United States had been unable to provide any facts or evidence to demonstrate 
otherwise.  It was astonishing that Cuba should have  to remind the United States of the importance of 
complying with an agreement that safeguarded intell ectual property rights.  These were private rights, 
the main beneficiaries of which were companies in  the United States and in other developed countries, 
since they were the holders of the vast majority of trademarks and patents. 
6. Over the last few days, in the midst of the cris is currently affecting the financial markets, the 
US media had reflected the fact that the protecti on of intellectual property rights was vital (although 
this was pure rhetoric when it came to the intellect ual property rights of others).  Despite this, the 
United States continued to implement legislation th at was inconsistent with the Agreement providing 
the ultimate protection for these rights at the multilate ral level.  Section 211 not only undermined the 
rights of holders of Cuban trademarks, but it also made it possible for the well-known company 
Bacardi to sell products with names such as th e HAVANA CLUB.  This encouraged trade in 
fraudulent goods, creating a negative precedent, above a ll for trading parties that were very serious 
about combating counterfeiting.  Finally, all Member s should, once again, consider the effectiveness 
of the current dispute settlement mechanism, which was in urgent need of considerable reform.  
Section 211 was one of several unresolved cases that  had been on the DSB's Agenda for years now, 
contravening WTO Agreements that were legally binding for all Memb ers.  All were responsible for 
this situation of impunity.  The DSB's inability to enforce its decisions and the legitimate rights of holders, in particular when the non-complying party was a Member of the exclusive club of developed 
countries, had been demonstrated.  Such prolo nged non-compliance would undermine the credibility 
of, and the confidence in, the DSB, the WTO Agreem ents, and the multilateral trading system.  It was 
Members' collective responsibility to preserve the ob jectives and institutions that had taken so much 
time and effort to develop.  Members also had the collective obligation to demand the unconditional 
and immediate implementation of the provisions of the WTO Agreements and the DSB's rulings 
which were relevant to this case. 
7. The representative of the Bolivar ian Republic of Venezuela
 said that her delegation noted the 
status report submitted by the United States and tha nked Cuba for its statement.  Her delegation 
wished to be fully associated with Cuba's statem ent.  She said that the WTO dispute settlement 
mechanism was one of the most important elements of a rules-based multilateral trading system.  That 
mechanism had been devised by Members to ensu re compliance with the WTO Agreements, and to 
guarantee integrity and fairness in the WTO's adjudica tive process.  Cuba had repeatedly highlighted 
the US prolonged non-compliance with the DSB's r ecommendations pertaining to the Reports adopted 
by the DSB more than six years ago.  Venezuela co nsidered the prompt settlement of this dispute to 
be vital in order to continue pr oviding security and ensuring the enforcement of Members' substantive 
rights and obligations within the WTO framework .  The main reason that the DSB had worked 
reasonably well was due to WTO Members themselves – both through their active participation in the 
system, and through their respect for the decisions adopted by the WTO's adjudicating bodies.  This 
was why her country, once again, urged the United States to take the necessary measures to bring 
itself into compliance with its WTO obligations.  
8. The representative of India  said that her country thanked the United States for the status 
report and the statement made at the present meeti ng concerning the surveillance of implementation in 
this dispute and wished to express, once again, befo re the DSB its systemic concerns.  As mentioned 
on earlier occasions, the principle of prompt complian ce was missing in this dispute, despite all the 
endeavours of the US administration in working toge ther with the US Congress.  India, therefore, 
urged the United States to fully implement the DSB's recommendations.  WT/DSB/M/257 
Page 4  
 
  9. The representative of China
 said that his country thanked the United States for its status 
report.  China, once again, wished to register its support for the statements made by the EC and Cuba.  
The implementation process in this dispute had be en delayed for too long.  China hoped that the 
present US Congress would realize that it was in the in terest of not only other Members, but also in 
the interest of the United States to put an end to this situation, which damaged the authority of the 
TRIPS Agreement and the creditability of the WTO dispute settlement system.  Therefore, China 
urged the United States to make an extra effort to br ing itself into conformity with the DSB's decision.  
10. The representative of Thailand  said that his country thanked the United States for its status 
report.  Like previous speakers, Thailand remained concerned about the systemic implications of this 
dispute.  The integrity of the rules-based mu ltilateral trading system was undermined by non-
implementation of the DSB's rulings and reco mmendations.  Therefore, Thailand urged the 
United States to take all necessary steps to comply with its obligations under the TRIPS Agreement as 
soon as possible. 
11. The representative of Brazil  said that his country thanked the United States for its status 
report.  As on previous occasions, Brazil ur ged the United States to implement the DSB's 
recommendations in this dispute. 
12. The representative of Viet Nam  said that his country thanked the United States for the status 
report.  Like other Members, Viet Nam wished to  express its concern about the implementation of the 
DSB's rulings and recommendations in this dispute.  Viet Nam urged the United States to comply with the DSB's rulings and recommendations as s oon as possible in order to contribute to the 
strengthening of the effectiveness of th e WTO dispute settlement mechanism.  
13. The representative of Nicaragua
 said that her country wished to thank the United States for its 
status report and Cuba for its statement made at th e present meeting. Nicaragua agreed with previous 
speakers who expressed their concerns about the no n-compliance with the DSB's decisions in this 
dispute.  Nicaragua wished to reiterate its systemic  concerns regarding the functioning of the dispute 
settlement mechanism and requested that the United States take steps to implement the DSB's rulings. 
14. The representative of Bolivia  said that her country wished, once again, to express its concern 
with regard to the status of implementation in this case and the indifference towards implementing the 
WTO decisions.  Once again, there was no progress towa rds lifting of restrictions under Section 211.  
This lack of compliance had a negative impact on the credibility of the multilateral trading system as 
well as on the credibility of the DSB, and could alter the balance between the rights and obligations of 
Members.  Once again, Bolivia asked the United St ates to comply with the DSB's rulings and to 
renew its efforts towards lifting the restrictions under Section 211.  
15. The representative of the United States  said that, in response to the systemic concerns 
expressed at the present meeting, his delegation wished  to reiterate that the record was clear:  the 
United States had come into compliance, fully and prom ptly, in the vast majority of its disputes.  As 
for the remaining few instances where the US effort s to do so had not yet been entirely successful, the 
United States continued to work ac tively towards compliance.  In th at regard, this item remained on 
the DSB's Agenda precisely because of the US commitment to implement the DSB's recommendations and rulings and to report to the DSB its efforts to do so. 
16. The representative of Cuba
 said that under Item 1 of the Agenda of the present meeting, three 
sub-items concerned the implementation by the Unite d States.  No resolution had yet been reached 
regarding those matters since the United States had not yet complied with the DSB's 
recommendations and rulings.  Therefore, the e xpressions of concern by other Members about 
systemic problems were entirely justified.  Although  it was true that, in some cases, the United States  WT/DSB/M/257 
 Page 5 
 
 
had complied with a number of recommendations, but there had been over 70 statements in the past 
six years regarding this dispute and the case had not yet been settled.  
17. The DSB took note  of the statements and agreed to reve rt 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.71) 
18. The Chairman  drew attention to document WT/DS184/ 15/Add.71, 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. 
19. The representative of the United States  said that his country had provided a status report in 
this dispute on 9 October 2008, in accordance 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.  The 
US administration would continue to work with  the US Congress with respect to the DSB's 
recommendations and rulings that had not alr eady been addressed by the US authorities by 
23 November 2002. 
20. The representative of Japan
 said that his country thanked the United States for its statement 
and the most recent status report.  Since the United States had taken certain measures to implement part of the DSB recommendations in November 2002, as reported by the United States, there had been 
little tangible progress in this long-standing disput e regarding the remaining part of the DSB's 
recommendations and rulings.  A 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".
1  Japan wished to call on the United States to 
redouble its effort to this end. 
21. 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.46) 
22. The Chairman  drew attention to document WT/DS160/ 24/Add.46, 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. 
23. The representative of the United States  said that his country had provided a status report in 
this dispute on 9 October 2008, in accordance with Ar ticle 21.6 of the DSU.  The US administration 
would work closely with the US Congress and conti nue to confer with the EC, in order to reach a 
mutually satisfactory resolution of this matter. 
24. The representative of the European Communities  said that this was the forty-sixth time the 
United States had reported conti nued non-compliance without offeri ng any concrete means to bring 
itself into compliance with its obligations.  The EC thought that spoke for itself. 
25. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
                                                      
1 Article 3.3 of the DSU. WT/DSB/M/257 
Page 6  
 
  (d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.9 – WT/DS292/31/Add.9 – WT/DS293/31/Add.9) 
26. The Chairman
 drew attention to document WT/DS291/37/Add.9 – WT/DS292/31/Add.9 – 
WT/DS293/31/Add.9, which contained the status report by the European Communities on progress in 
the implementation of the DSB's recommendations in  the case concerning the EC's measures affecting 
the approval and marketing of biotech products. 
27. The representative of th e European Communities  said that the EC was happy to report, once 
more, that good faith cooperation between the compla inants and the EC continued.  The EC kept a 
regular dialogue with the three complainants and held  regular technical meetings which were aimed at 
addressing all relevant biotech-related issues of their concern.  The next (seventh) technical meeting 
between the EC and the United States would ta ke place on 22 and 23 October.  Progress in the 
processing of pending applications and on national measures continued.  Seventeen authorizations had 
been granted since the establishment of the WTO pane l, seven in 2007 only.  Two authorizations had 
been granted in 2008 (that referred to GM mai ze GA21 and A2704-12 soybean), and another one was 
expected in the coming days (LL25 cotton).  Two dr aft authorization decisions (oilseed rape T-45 and 
Roundup Ready 2 soybean) would be transmitted to the Council.  Following the clarification by 
EFSA on concerns related to the relevant antibiotic marker gene, expected by mid-December, the EC 
might be in a position to authorize four more GM events (one GM potato and three maize hybrids) 
before the end of the year or in early 2009.  The EC believed that given the inevitably sensitive nature 
of biotech issues, dialogue was the appropriate wa y forward and the EC remained open to continue 
discussions with the three complainants.   
28. The representative of the United States  said that his country thanked the EC for its status 
report as well as for its statement made at the presen t meeting.  As the United States had noted at prior 
DSB meetings, approximately 50 biotech product appli cations were backed up in the EC's approval 
system.  The EC's continuing refrain was that some  decisions on pending applications were to be 
expected in the coming months.  Regrettably, howev er, the facts spoke for themselves.  The situation 
was not promising.  To date in this calendar y ear, the EC had only made decisions on two pending 
biotech applications.  Both of those products had originally been submitted for approval over 10 years 
ago – in 1998.  At the rate of just two products per year, the EC would not reach decisions on the 50 
pending applications for a quarter of a century, or until the year 2033.  Moreover, delays in making 
decisions on pending applications represented more than just problems in the operation of the EC's 
approval system for biotech products.  These delays had real-world implications, resulting in US grain 
producers continuing to be shut out of major market s in the EC.  The United States continued to urge 
the EC to take the steps necessary to make timely d ecisions on pending applica tions, and thus to allow 
the parties to make progress to wards resolving this dispute. 
29. The representative of Canada  said that her country thanked the EC for its statement.  As 
previously mentioned, Canada had agreed to an ex tension of the reasonable period of time for the EC 
to bring itself into compliance with the DSB's fi ndings until 31 December 2008.   Canada had done so 
as it valued the constructive dialogue it had had to date  with the EC.  However, while it believed that 
progress had been made, Canada had significant ongoing  concerns.  First, on the subject of member 
State bans on the cultivation and marketing of appr oved biotech products, Cana da was concerned that 
not only had all the original bans not been remove d, new ones had been put in place.  In particular, 
Canada wished to mention Austria's July 2008 ban on the marketing of the oilseed rape lines Ms8, 
Rf3, and Ms8xRs3.  Second, while Canada was in itially very pleased with what seemed to be an 
improvement in the timeliness of the EC approval system for biotech products, it noted that undue delays in the process appeared to be reappearing.  Canada would continue to monitor the situation 
closely.  WT/DSB/M/257 
 Page 7 
 
 
30. The representative of Argentina  said that his country welcomed the status report submitted by 
the EC and recognized that certain progress had been  made.  However, a number of concerns still 
remained with regard to the approval process for GM O events within the EC, in particular concerning 
time-frames.  The attitude of some EC member States  was another matter of concern, as were the bans 
which were still in force.  Argentina would continue  to work with the parties to this dispute, in 
particular the EC, with a view to achieving the final implementation of the DSB's recommendations. 
31. The representative of th e European Communities  said that the GMO regulatory regime was 
not the subject of the original Panel's findings, and neither its "operation" nor the status of specific 
applications not dealt with in the original Panel, we re covered by this Agenda item.  In any event, the 
GMO regulatory regime was working normally.  Its functioning should not be rigidly assessed purely 
quantitatively and in abstract, in terms of number of  authorization per year, since this was dependent 
on various product and case specific elements and, in particular, on the quality of applications and on 
the time needed by applicants to answer request s from EFSA on additional scientific information.  
Currently, only 38 complete applications were pending assessment by EFSA (four of them submitted 
very recently).  The EC estimated that the 2008 year ly rate of authorization was roughly the same as 
in 2007.  The EC had acted upon all the various  national measures covered by the WTO Panel's 
ruling.  All those measures had become obsolete, with the only exception being the Austrian measures 
on GM maize MON810 and T-25.  Concerning the Aust rian measures, Austria had lifted the bans on 
import and processing of GM maize MON810 and T25 (decisions of 27 May, published on 30 May).  
EFSA had been requested to issue an opinion on the scientific info rmation provided by Austria on 
cultivation of these GMO events.  An opinion woul d be issued following a meeting between EFSA's 
experts and Austrian scientists.  These measures we re not related to the implementation of the WTO 
Panel Report, as they were not c overed by it.  If the United Stat es had questions on these measures, 
the DSB was not the appropriate forum.  The Austrian safeguard measure on Ms8 Rf3 and MON863 had been notified to the Commission on 10 July and 16 July, respectively.  The Commission had 
already requested EFSA to review these measures. 
32. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) Turkey – Measures affecting the importation of rice:  Status report by Turkey 
(WT/DS334/14) 
33. The Chairman  drew attention to document WT/DS334/ 14, which contained the status report 
by Turkey on progress in the implementation of the DSB's recommendations in the case concerning 
Turkey's measures affecting the importation of rice. 
34. The representative of Turkey  said that, on 22 October 2007, the DSB had adopted the 
recommendations and rulings in this dispute.  In  a communication, dated 20 November 2007, Turkey 
had informed the DSB of its intention to impl ement the DSB's recommendations and rulings.  On 
9 April 2008, Turkey and the United States informed the DSB that, pursuant to Article 21.3(b) of the 
DSU, they had agreed that the reasonable period of time for Turkey's implementation of the DSB's 
recommendations and rulings would be six months, e xpiring on 22 April 2008.  By communication of 
7 May 2008, Turkey and the United States had info rmed the DSB about the agreement between the 
parties regarding the procedures under Articles 21 a nd 22 of the DSU.  He said that Turkey had 
complied with the DSB's recommendations.  Therefore,  this was the only status report that Turkey 
would present on this dispute.  The importation of rice was thoroughly unfettered now with no 
exceptions.  Constructive discussions aimed at conc luding a Memorandum of Understanding with the 
United States were still in progress.  In that rega rd, a technical meeting had been held on 20 October 
and the parties were engaged to continue those discussions. 
35. The representative of the United States  said that his country thanked Turkey for providing its 
report on the status of Turkey's implementation of the recommendations adopted by the DSB in this WT/DSB/M/257 
Page 8  
 
  dispute.  The United States noted Turkey's statemen t in its status report, and at the present meeting, 
that it had already complied with the DSB's recommendations.  The United States was not in a 
position to share that assessment at this time.  Inst ead, as Turkey noted in its report, the United States 
was currently involved with Turkey in discussi ons about those issues.  The United States looked 
forward to further constructive engagement by Turk ey in those discussions, and hoped that the parties 
would come to a successful conclusion promptly. 
36. The DSB took note
 of the statements. 
2. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Communities and Japan 
37. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the EC and Japan.  He then invited the respective representatives to speak. 
38. The representative of Japan  said that the distribution process for the fiscal year of 2008 under 
the CDSOA appeared to be well unde rway, as shown most recently by the US Customs' publication of 
the list of the claims by the US domestic producers for the fiscal year of 2008 distributions.2  Thus the 
CDSOA remained operational or, in the words of the US Customs, "the distribution process will 
continue for an undetermined period".3  Japan urged the United States to immediately terminate the 
illegal distributions and repeal the CDSOA not just in  form but in substance so as to resolve this 
dispute once and for all.  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 "until the issue is resolved".  Japan 
reserved all its rights under the DSU until the Unite d States came into full compliance with its 
obligations.  
39. The representative of the European Communities  said that on 1 October, the United States 
had started the distribution of the anti-dumping and c ountervailing duties collected in the latest fiscal 
year on imports made prior to 1 October 2007.  This would be the eighth distribution under the 
Continued Dumping and Subsidy Offset Act.  Su ch illegal distributions would continue for an 
undetermined number of years as the transitional cl ause preserved the distribution of duties collected 
on imports made prior to 1 October 2007 and such du ties were progressively collected.  Therefore, the 
EC would like to ask again the United States if, and what  steps, it intended to take in order to stop the 
transfer of those anti-dumping and countervailing duti es to its industry and finally put an end to the 
condemned measure.  The EC also renewed its call on the United States to abide by its clear 
obligation under Article 21.6 of the DSU and to  submit status reports in this dispute. 
40. The representative of Thailand  said that his country thanked the EC and Japan for bringing 
this item before the DSB.  As it had repeatedly st ated, Thailand was disappointed at the United States' 
maintenance of these WTO-inconsistent disburseme nts.  Thailand thus urged the United States to 
cease the disbursements, repeal the Byrd Amendmen t with immediate practical effect, and resume 
providing status reports until such actions were  taken and this matter was fully resolved. 
41. The representative of India  said that her country wished to thank the EC and Japan for 
bringing, once again, this issue before the DSB.  I ndia wished to reiterate that the disbursements made 
by the United States under the Byrd Amendment continue d to be in force affecting the rights of other 
                                                      
2 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trade/prior ity_trade/add_cvd/cont_dump/cdsoa_08/  
3 Idem  
http://www.cbp.gov/xp/cgov/tr ade/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml   WT/DSB/M/257 
 Page 9 
 
 
WTO Members.  It was India's concern that non-co mpliance by Members led to a growing lack of 
credibility of the WTO dispute settlement system.  I ndia, therefore, urged the United States to cease 
its WTO-inconsistent disbursements.  India agreed  with previous speakers that the Byrd Amendment 
remained subject to the surveilla nce of the DSB until the United St ates ceased to administer it. 
42. The representative of Canada  said that her country agreed with the EC and Japan that the 
Byrd Amendment remained subject  to the surveillance of the DS B until the United States ceased to 
administer it. 
43. The representative of Brazil  said that his country wished to thank Japan and the EC for 
bringing, once again, this issue to the attention of the DSB.  As Brazil had repeatedly pointed out, the disbursements made by the United States to its  domestic industry under the Byrd Amendment 
continued to affect the rights of WTO Members.  Mo reover, attempts at reintroducing this legislation 
were a cause of serious concern.  Brazil reiterated th e need for the United States to bring this situation 
to an end and thus to fully implement the DSB's recommendations and rulings.  
44. The representative of China
 said that his country thanked the EC and Japan for raising, once 
again, this item at the DSB meeting.  China shared  the view of the previous speakers and wished to 
join them in urging the United States to comply fully with the DSB's rulings. 
45. The representative of the United States  said that, as his country had already explained at prior 
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 welcomed Members' recognition that the 2006 Deficit 
Reduction Act did not permit the distribution of  duties collected on goods entered after 
1 October 2007.  As stated at previous meetings , the United States therefore did not understand the 
purpose for which the EC and Japan had yet again inscribed this item on the DSB's Agenda.  With 
respect to comments regarding further status reports  in this matter, as the United States had already 
explained at previous DSB meetings, the United St ates had taken all steps necessary to implement the 
DSB's recommendations and rulings.  In this light, the United States failed to see what purpose would 
be served by further submission of status reports repeating the progress the United States had made in the implementation of the DSB's recommendations and rulings.  Finally, with respect to one comment 
on the re-introduction of the CDSOA, the United St ates was not aware of any legislative proposals 
before the US Congress that sought to re-introduce the CDSOA, which, as the United States had explained, was repealed by the Deficit Reduction Act. 
46. The DSB took note
 of the statements.  
3. Thailand – Customs and fiscal measures on cigarettes from the Philippines  
(a) Request for the establishment of a panel by the Philippines (WT/DS371/3) 
47. The Chairman  drew attention to the communication from the Philippines contained in 
document WT/DS371/3, and invited the representative of the Philippines to speak. 
48. The representative of the Philippines  said that, on 7 February 2008, the Philippines had 
requested consultations with Thailand with rega rd to certain measures imposed on imports of 
cigarettes from the Philippines.  The Philippines had held consultations with  Thailand under Article 4 
of the DSU on 23 April 2008 and on 9 September 2008.  The Philippines had approached these 
consultations in a constructive spirit and with genu ine efforts to find a solution.  The Philippines 
wished to take this opportunity to express its a ppreciation for the open and constructive manner with 
which the dialogue with the Thai delegation had been conducted during these consultations.  
Regrettably, despite extra efforts lasting more th an six months beyond the 60-day deadline required WT/DSB/M/257 
Page 10  
 
  by Article 4 of the DSU, the consultations had failed to bring about a satisfactory solution.  
Consequently, on 29 September 2008, the Philippines ha d submitted a request to establish a panel to 
examine the WTO-consistency of Thailand's measures, which had been circulated as document 
WT/DS371/3, in order to see its concerns addressed, and to safeguard the benefits to which it was 
entitled under the WTO Agreement.  He did not  inte nd to repeat at the present meeting the claims 
being made by the Philippines because these were already clearly detailed in WT/DS371/3.  He 
simply wished to make two points.  First, the Phili ppines would like to highlight what was not at issue 
in this dispute.  The Philippines did not, in th e least, question Thailand's sovereign prerogative to 
regulate its tobacco market.  The Philippines also did not, in the least, question Thailand's prerogative 
to lay down the public health policies it deemed fit.   What the Philippines sought was very simple:  
that within whatever regulatory framework Thailand  chose for itself, imported cigarettes be treated 
fairly, both at the border and in the internal ma rket, and in a non-discriminatory and transparent 
manner.  Currently, these basic requirements were  not fulfilled because the playing field on which 
imported and domestic cigarettes competed was uneven.  Second, notwithstanding the request it was making at the present meeting, the Philippines remain ed ready to continue all efforts to resolve its 
differences with Thailand – an important ASEAN pa rtner – in a fair and mutually acceptable way.  
This was, after all, the primary objective of the DS U.  To conclude, the Philippines requested that a 
Panel be established at the present meeting to addr ess the matter with standard terms of reference. 
49. The representative of Thailand
 said that his country was deeply disappointed at the 
Philippines' request to establish a panel on this ma tter.  Thailand and the Philippines were ASEAN 
partners, and Thai authorities had been working hard to resolve this dispute on a bilateral basis in the 
spirit of ASEAN cooperation.  To that end, the par ties had held several rounds of consultations both in 
Geneva and Bangkok.  Thailand appr eciated the Philippines' acknowledge ment of its efforts in this 
regard.  Thailand believed that Thai customs and fi scal laws were fully co nsistent with Thailand's 
obligations.  Thailand also believed th at this matter could be resolved bilaterally and remained open to 
further consultations with the Philippines.  Theref ore, in Thailand's view, establishing a panel at the 
present meeting would be premature, and as a result, it was not able to agree to the establishment of a 
panel at this time. 
50. The DSB took note  of the statements and agreed to revert to this matter. 
4. Mexico – Definitive countervailing measur es on olive oil from the European 
Communities 
(a) Report of the Panel (WT/DS341/R) 
51. The Chairman  recalled that at its meeting on 23 January 2007, the DSB had established a 
panel to examine the complaint by the EC pertai ning to this matter.  The Report of the Panel, 
contained in document WT/DS341/R had been circ ulated on 4 September 2008 as an unrestricted 
document.  The Panel Report was now before the DS B for adoption at the request of Mexico and the 
EC.  This adoption procedure was without prejudice to  the right of Members to express their views on 
the Panel Report. 
52. The representative of the European Communities  said that the EC had started this dispute 
because it had serious concerns about the WTO-co mpatibility of Mexico's CVD investigation on 
imports of olive oil from the EC.  The EC welcom ed the Panel Report, which had confirmed that 
Mexico breached several of its obligations unde r the SCM Agreement.  The Panel had found that 
Mexico's choice of the injury period could not allo w an objective examination of the facts, in breach 
of Article 15.1 of the SCM Agreement:  indeed, Mexi co had excluded from its injury analysis the only 
periods in which olive oil, a seasonal commodity , was normally produced.  The Panel had also 
confirmed the EC's claim on the lack of sufficient disclosure of confidential information:  blanking 
out numbers and long sections of  confidential documents without providing any summary did not  WT/DSB/M/257 
 Page 11 
 
 
satisfy the requirements of Article 12.4 of the SCM Agreement.  The Panel had also confirmed that 
Mexico breached its obligations by taking more than  25 months for concluding its investigation, while 
Article 11.11 of the SCM Agreement stated that i nvestigations should normally  be concluded within 
one year, and that "in no case" an investigation coul d last more than 18 months, in order to provide 
some degree of certainty to the parties.  That rule made profound sense also if one considered that 
CVDs investigations were based on the analysis of  a situation that preceded the time at which the 
investigation had been carried out:  this meant that , by its own nature, the Mexican investigation was 
based on old data.  By creating an "absolute" deadli ne of 18 months, the drafters of this Agreement 
wanted to ensure that the situati on analysed in the investigation wa s not too remote from the duties it 
should justify.  The EC considered that the viola tions identified by the Panel were so serious that 
Mexico should comply as soon as possible by repealing the measure.  As explained, the EC 
considered that the Panel Report was sufficient to ensu re a prompt settlement of this dispute.  The EC 
was, however, concerned with the systemic implicat ions of certain findings made by the Panel.  The 
EC had decided not to appeal these findings because of the very special factual circumstances of the 
Mexican investigation, but as a general matter the EC would not consider such practices to be 
consistent with the obligations of an  objective investigating authority. 
53. One finding that the EC was particularly con cerned with was the very literal interpretation 
given by the Panel to the provisions on pre-in itiation consultations (Article 13.1 of the SCM 
Agreement).  That Article stated that exporting Me mbers "shall be invited for consultations" "before 
the initiation of any investigation".  In this cas e, the Mexican Minister had signed the notice of 
initiation, the notice had been sent for publication in the official journal and, after the Minister's 
signature and before the notice of initiation had been published in the official journal, the 
investigating authority had sent a letter to the EC inviting it to consultations .  While the Panel had 
considered that in this case this conduct was not  in breach of Article 13.1, because "initiation" had 
taken place with the publication in the official jour nal, the EC was deeply concerned that the Panel's 
interpretation, if applied to othe r situations, would render the provis ions of Article 13.1 meaningless.  
In the EC's experience, pre-initiation consultations we re extremely useful in clarifying the situation, 
and very often resulted in a CVD investigation with a scope narrower than initially intended.  
Sometimes they had even resulted in no initiation at all.  The EC's reading of Article 13.1, as put in practice by the EC, was that, in inviting the exporti ng Member, the investigating authority should also 
grant a good faith, reasonable opportunity to hold cons ultations.  Sending out a letter of invitation a 
few days before initiation, when it was already irre vocably decided that the authority would open an 
investigation, was not a good-faith implementation of  the Agreement, and it was difficult to reconcile 
that interpretation with the other provisions on cons ultations.  For example, Article 13.2 talked about 
the continuation of consultations after initiation – how could one continue so mething that had never 
started?  Unfortunately, the Panel had not addressed this issue. 
54. Another finding that the EC had found particul arly worrying was the Panel's definition of 
"domestic industry" of Article 16 of the SCM Ag reement as not requiring actual production "around 
the date of filing of an application" or during the period of investigation for subsidy.  The EC was mindful of the very special circumstances of th is case, where the domestic industry was supposedly 
composed of a single producer, which did produce some output in what should have been an appropriate period of investigation for injury.  Ho wever, the EC could not see how it was possible to 
perform a standing test under Article 11 of the SC M Agreement, or an objective injury analysis under 
Article 15 of the SCM Agreement, in the absence not only of production, but also of sales, stocks, 
employment, or any other relevant injury factor.  Neither had the Panel, probably, since it had not 
addressed those issues in its findings on Ar ticles 11 and 15 of the SCM Agreement.  
55. Finally, the EC wished  to express its disappointme nt with this Panel, which in the EC's view 
could have done a better job in assisting the DSB on sever al fronts.  First of all, in terms of timing:  
the Panel had taken 16 months from its composition to  issue its interim report, 18 months for the final 
report to the parties, 19 months for circulation to all Members.  While the EC understood that certain 
disputes required more time than the six months a nd nine months foreseen by  Article 12.8 and 12.9 of WT/DSB/M/257 
Page 12  
 
  the DSU, in this case Mexico and the EC had had to wait three times the normal deadline for a panel 
report of 90 pages that dealt with relatively simple  questions (e.g. whether 25 months is longer than 
18 months) but shied away from complex system ic issues (i.e. the relation between output 
requirements under the definition of domestic industr y, and its practical application under Articles 11 
and 15 of the SCM Agreement).  Second, the Panel's legal and factual analysis was very superficial, 
was limited to a very cursory reading of the evid ence and on an exceedingly literal interpretation of 
the SCM Agreement provisions under dispute, without  taking any account of the reality of the SCM 
Agreement investigations.  An example of the Pane l's less than rigorous approach can be found in its 
analysis of the issue of whether or not th ere were producers other than the applicant:
4  the Panel listed 
several letters included in the record, described how  these letters referred to olive oil producers other 
than the applicant, sometimes even specifying pr oduction capacity, but then one paragraph later the 
Panel, without explanation, concl uded that there was no indication in the record that there were other 
producers.  All were rather surprised to find that footnote 407 in the final Report, which had been distributed to the Parties, contained pictures of car toon characters – notably Ms. Olive Oyl, girlfriend 
of Popeye the Sailor Man.  To conclude, the EC welcomed the Panel's condemnation of the Mexican 
duties, urged Mexico to withdraw them as soon as po ssible, and hoped that future panel reports would 
be of a better quality and issued without undue delays. 
56. The representative of Mexico
 noted that the EC had made a long statement at the present 
meeting and wondered if the EC considered that it w as appropriate to reflect such a long statement in 
the minutes of the meeting.  He recalled that, at  previous meetings, the EC had questioned the 
methodology of circulating long statements, such as th e one made by the EC at the present meeting, as 
DS documents.  He said that, at the present mee ting, his delegation would make a much shorter 
statement regarding the Panel Report before the DS B.  He said that his country accepted the DSB's 
decision to adopt the Panel Report in the dispute betw een the EC and Mexico concerning olive oil.  In 
general terms, Mexico agreed with the Panel's ru lings and recommendations.  Mexico considered the 
Report to be an important precedent, in terms of both the aspects examined and the quality of the 
Panel's findings.  As examples of this, Mexico not ed the following:  The Panel had correctly found 
that even where there was an arms-length tran saction between unrelated companies, it might be 
necessary to conduct a pass-through analysis.  The Pa nel had also clarified that the bases for the 
obligation to conduct a pass-through analysis were Article VI:3 of the GATT 1994 and Article 10 of 
the SCM Agreement, and not Articles 1 and 14 of the SCM Agreement, as alleged by the EC.  
Furthermore, the Panel had found that, in this sp ecific case, the applicant could be considered a 
domestic producer, even though it was not engaged in production at the time of initiation of the 
investigation, since the information gathered by the Mexican authority properly supported the Panel's 
determination that the applicant was a domestic pr oducer.  That information included details of the 
olive oil production history of the applicant (and its predecessor), three year's worth of monthly data 
on its economic indicators, information on the state of  its production facilities, details of its business 
plan for resuming operations, as well the applicant's notification to the authority that it had resumed 
olive oil production after the imposition of provisional  measures, all of which had been confirmed by 
the on-the-spot investigation conducted by the Mexi can authority.  Furthermore, the applicant had 
halted production for only one productio n season and had produced olive oil in two of the three years 
under examination for the determination of inju ry, maintaining its olive groves and production 
facilities during all this time and creating a new bra nd name and label, in addition to preparing its 
application for the initiation of the investigation. 
57. The reasoning set forth in the Report provided valuable guidance on issues that were 
important for the multilateral system.  It was also cl ear that despite the complexity of a subsidization 
system such as that of the EC, the outcome of th is dispute provided important guidelines for the 
proper application of countervailing duties.  In Mexico's view, all of  this benefited both the Members' 
mechanisms to counter unfair international trade practices and the WTO dispute settlement system.  
                                                      
4 Panel Report, paras. 7.245-247.  WT/DSB/M/257 
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The EC had argued that the Mexican investigating au thority's resolution was inconsistent with certain 
provisions of the SCM and Agriculture Agreements.  In its report, however, the Panel had established 
that Mexico had acted in a manner consistent with the WTO Agreements in respect of nine of the 12 
claims made.  Moreover, the Panel's conclusions in  respect of these claims constituted the substantive 
part of the dispute.  These conclusions include d the following:  (i) Mexico had complied with 
Article 13.1 of the SCM Agreement by inviting the EC  for consultations prior to the initiation of the 
investigation;  (ii) due restrain t had been shown in the initiation of the investigation, in accordance 
with Article 13 of the Agreement on Agriculture;  ( iii) the "essential facts" had been reported, as 
required under Article 12.8 of the SCM Agreemen t;  (iv) a pass-through analysis had not been 
necessary;  (v) the domestic olive oil industry ha d been properly defined and material injury 
determined in a manner consistent with the SC M Agreement, and  the investigation had been 
requested by or on behalf of the domestic industry;   and (vi) the other known factors were not those 
that were causing injury to the domestic industry. 
58. With regard to the aspects concerning which the Panel had found that Mexico had acted in a 
manner inconsistent with the SCM Agreement, Mexico  only wished to state its disagreement with the 
conclusion relating to it having used 9-month period s of each year in its in jury examination.  The 
Panel had erred in its findings of fact, because the in jury analysis covered all the months of the three 
years examined, as had been explained at the substa ntive meetings and in Mexico's replies to Panel 
questions 78 and 84.  Mexico did not dispute, a nd had decided not to appeal, the Panel's other 
conclusions, for the benefit of the WTO dispute settlement system.  Mexico stated that it would comply with the DSB's recommendations and would bring its measure into conformity with the 
relevant provisions of the SCM Agreement. 
59. The representative of the European Communities
 said that she wished to reply to Mexico's 
question regarding the EC's statement made at th e present meeting.  She recalled that the EC's 
statement made at the 1 August DSB meeting was ab out the right of Members to express their views 
under Article 17.14 of the DSU.  The EC had never contested this right, quite to the contrary.  The 
EC's statement was about the importance of putting such expressions of views in the official and 
appropriate record;  i.e. in the minutes of the DSB.  That was the reason why all Members had to listen to a rather lengthy statement of the EC at th e present meeting.  What the EC objected to was the 
circulation of such statements as documents, instead of making them orally at a DSB meeting, and in addition to circulate them under a DS number to be part of the record of the case.   
60. The representative of Canada
 said that her country wished to thank the Panel and the 
Secretariat for their work in these proceedings.  Canada  had been a third party in this matter as it had a 
systemic concern with the legal interpretations of  various provisions of the SCM Agreement that had 
been considered in this case.  Therefore, Canada t ook this opportunity to co mment on a couple of the 
issues that the Panel had considered in this case.  Fi rst, with respect to the Panel's analysis concerning 
the necessity for a Member to demonstrate the pa ss-through of a subsidy, Canada welcomed the 
Panel's acknowledgement that the Appellate Body's decision in Softwood Lumber IV required such an 
analysis under certain circumstances.  As indicated  by the Panel, the Appellate Body had found in 
Softwood Lumber IV that a pass-through analysis  was required where a subsidy was provided in 
respect of a product that was an input into the processed, imported product that was the subject of the countervail obligation and the producer of the input  product and the producer of the imported product 
subject to the countervail investigation were unr elated.  However, Canada found incomplete the 
Panel's explanation as to how the Appellate Body 's decision in Softwood Lumber IV supported the 
remainder of the Panel's analysis as to the extent of the obligation to conduct a pass-through analysis.  
Second, with respect to the obligation found in Artic le 13.1 of the SCM Agreem ent, Canada disagreed 
with the Panel's statement that this Article did not require a Member considering whether to initiate an 
investigation to allow a sufficient time interval be tween its invitation to cons ultations was issued and 
the initiation of investigation, so that consultatio ns could be held.  Canada considered that the 
obligation to "invite" interested Members for cons ultations in Article 13.1 of the SCM Agreement 
referred to an invitation that was sent sufficien tly early to afford a reasonable opportunity for WT/DSB/M/257 
Page 14  
 
  meaningful consultations between the exporting Members and the importing Member before the 
investigation was formally initiated. 
61. The DSB took note
 of the statements and adopted  the Panel Report contained in 
WT/DS341/R. 
5. Proposed nominations for the indicative list of governmental and non-governmental 
panelists 
62. The Chairman  drew attention to document WT/DSB /W/387, 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/387. 
63. The DSB so agreed . 
__________