RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/268 
13 July 2009 
 (09-3410) 
Dispute Settlement Body 
20 May 2009  
 
 
  
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 20 May 2009  
 
Chairman:  Mr. John Gero (Canada) 
 
 
Prior to the adoption of the Agenda1 
 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 United States...................................................................................6  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........7  
(d) European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Communities .............................................................7  
(e) European Communities – Regime for the importation, sale and distribution of bananas:  Second recourse to Article 21.5 by Ecuador:  Status report by 
the European Communities....................................................................................................... ..9
 
(f) Brazil – Measures affecting imports of retread ed tyres:  Status report by Brazil .....................12  
2. 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 Communities and Japan ..............................................................12  
3. Colombia – Indicative prices and restrictions on ports of entry ........................................14  
(a) Report of the Panel............................................................................................................ ........14  
4. United States – Final anti-dumping me asures on stainless steel from Mexico..................18  
(a) Statement by the United States ................................................................................................. 18 
5. Appointment of Appella te Body members............................................................................18  
(a) Statement by the Chairman...................................................................................................... .18 
                                                      
1 See page 2. WT/DSB/M/268 
Page 2  
 
   Prior to the adoption of the Agenda
, the item concerning the adoption of the Panel Report in 
the case on:  "United States – Measures Relating to  Zeroing and Sunset Reviews:  Recourse to 
Article 21.5 of the DSU by Japan" was remove d from the proposed Agenda, following the US 
decision to appeal the Report.  
 Also, prior to the adoption of the Agenda
, the representative of Uruguay  said that his country 
would like to make a statement, under "Other Bu siness", on the announced ag reement between the EC 
and the United States regarding the Hormones dispute.   The representative of the United States
 said that his country was not aware that Uruguay was 
going to make a statement relating to the Hormones dispute and asked for a short break so that the 
United States and the EC could be informed, informa lly, by Uruguay regarding the issue to be raised 
under "Other Business", pursuant to the DSB rules of procedure.   
  The DSB agreed
 to suspend the meeting. 
 
 Following the resumption of the meeting , the Chairman  said that it was becoming apparent 
that the subject raised by Uruguay might turn out to be a much more substantive discussion than one would have anticipated and that it could not really  be dealt with under "Other Business".  The item 
would, therefore, not be discussed at the present meeting under "Other Business".  However, delegations were free to place this matter on the Agenda of the next re gular DSB meeting for 
discussion.   
  The DSB took note
 of the statements and adopted  the Agenda, as amended. 
  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.78) 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.78) 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.53) 
(d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.16 – WT/DS292/31/Add.16 – WT/DS293/31/Add.16) 
(e) European Communities – Regime for the importation, sale and distribution of bananas:  
Second recourse to Article 21.5 by Ecuador:  Status report by the European Communities 
(WT/DS27/96/Add.4) 
(f) Brazil – Measures affecting imports of retreaded tyres:  Status report by Brazil 
(WT/DS332/19/Add.2) 
1. The Chairman
 recalled that Article 21.6 of the DSU required that, unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establishment of the reasonable 
period of time and shall remain on the DSB's Agenda  until the issue was resolved.  He proposed that 
the six sub-items under Agenda item 1 be considered separately.  WT/DSB/M/268 
 Page 3 
 
 
  (a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.78) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.78, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US Section 211 Omni bus Appropriations Act of 1998. 
3. The representative of the United States  said that his country had provided a status report in 
this dispute on 7 May 2009, in accordance with Article  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, which convened in January 2009.  
The US administration was working with Congr ess 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-eighth st atus report on its lack of progress in the 
implementation of the DSB's ruling in this dispute.  The EC understood that there were now three bills 
before the House of Representatives that could lead to a solution to this long-standing dispute.  The 
EC hoped that the new US authorities would now take steps to finally implement the DSB's ruling. 
5. The representative of Cuba  said that more and more cases had been dealt with under the item 
on surveillance of implementation of recommendati ons adopted by the DSB, and at every DSB 
meeting discussions were longer with  no concrete results.  The fact that in some cases no progress had 
been made for years was a very negative sign.  Ye t the respondent claimed to  be a compliant Member 
stating that it had implemented most of the decisions and was working on complying with the rest.  
Cuba saw no evidence of any action by the United States to implement the DSB's decisions.  The 
United States had not even indicated any time-fram e for implementation.  It was common knowledge 
that those who benefited most from the dispute set tlement system were developed countries.  They 
had the greatest commercial interest and were in a be tter position to participate in the system in terms 
of costs and legal capacity, and they were best placed to detect breaches of the Agreements.  
Furthermore, they could effectively apply retaliatory measures.  It was, therefore, surprising that the 
United States undermined that system even though it was in line with its interests.  The DSU 
provisions were clear and unambiguous:  prompt compliance with the DSB's recommendations was 
the way to ensure effective settlement of disputes to  the benefit of all Members.  In the present case, 
after more than seven years, this principle had b een totally ignored by the infringer.  To undermine 
this principle was to undermine not only the objectiv es pursued by the multilateral trading system, but 
also the effectiveness of the system.  The reasona ble periods of time for implementation in this 
dispute had been extended many times and the la st one had expired years ago, without the US 
administration taking a single step in the right directi on.  The parties to this dispute must realize that 
the status quo set a dangerous precedent that c ould lead to prolonged non-compliance.  The 2008 
Interbrand Report came as no surprise to Cuba.  The respondent Member owned the most valuable 
brands worldwide.  Of the ten most valuable trademarks in the world, eight belonged to US 
companies.  It was no coincidence that the Unite d States was one of the promoters of the TRIPS 
Agreement.  Intense efforts had gone into establishing a multilateral framework of principles, rules 
and disciplines for international property rights.  So  how could that Member had failed for more than 
seven years to implement a decision of the Appella te Body, which had found Section 211 to be in 
breach of the principles of national treatment and most-favoured-nation treatment laid down in the 
WTO Agreement?  In its words and in some of its deeds, the respondent Member purported to be 
concerned at the effects of counterfe it goods on international trade.  But in this case, as elsewhere, it 
applied double standards.  The US authorities allowed B acardi to sell in its territory products with the 
HAVANA CLUB trademark, thus encouraging tr ade in counterfeit goods.  Any doubts about 
Bacardi's intentions could be allayed by consulti ng the database of the US Patent and Trademark 
Office.  Bacardi had applied for the HAVANA CL UB trademark to designate rum and rum-based WT/DSB/M/268 
Page 4  
 
  beverages.  The number of the applica tion was 74572667 Y and it had been filed on 
12 September 1994.  To date, the trademark had not been granted and it was to be hoped that it never 
would be.  To grant it would be an unacceptable in fringement amounting to encouragement by the US 
authorities to engage in the most unfair practices in  international trade.  Cuba, once again, urged the 
parties to take immediate steps to find a prope r settlement to this long-standing dispute. 
6. The representative of the Bolivarian Republic of Venezuela
 said that his country noted the US 
status report and echoed what many other delegati ons had been stating over the past four decades 
about the need for an end to the economic, comm ercial and financial blockade imposed by the 
United States on Cuba, including the application of  what was known as the Helms-Burton Act.  In 
politics it was generally thought that any time gain ed for solving a problem could be useful and 
beneficial.  Quite the opposite was true in trad e, where time passing by resulted in losses and 
situations that were adverse to human beings, for whom everyday products grew scarce, more 
expensive and were very difficult to afford.  In  the present case, the United States had, since 2008, 
been citing as grounds for postponing compliance with th e DSB's decision the fact that there were to 
be presidential elections and that the decision would be a matter for the new government.  Seven 
months had elapsed since the elections, and the United States had now changed and argued it was 
awaiting a decision from Congress.  Clearly, in this  case the United States had gained the time and 
Cuba had suffered the commercial losses and thei r consequences.  The situation was the more 
worrying since recently on Monday, 11 May, at the GRULAC meeting with the US Trade Representative, when the Cuban delegation asked hi m what the new US administration would do in 
this case, his only response was that the United St ates had complied with the DSB's decisions in a 
large percentage of cases.  Not only was the re sponse evasive, but furthermore appeared to be 
conveying the message that it was enough to comply with a few decisions in order to fulfil the 
commitment undertaken in the WTO, which was not the case:  all the decisions must be implemented 
and no Member was entitled to choo se which ones to comply with and which ones to ignore.  In a 
financial crisis, which was affecti ng trade and would affect it even more, the US maintenance of its 
stance on Cuba would compound the damage already done if the above-mentioned Act remained in 
force.  Far from strengthening the WTO, which had been given a vote of confidence in the midst of 
the economic turmoil, it would affect the Organi zation systemically, detracting from its image, 
because of a decision by some Members not to co mply with its rules.  Venezuela urged the 
United States to immediately take the necessary step s to comply with its obl igations under the TRIPS 
Agreement and to repeal Section 211. 
7. The representative of Ecuador
 said that his country thanked the United States for its status 
report and supported the statements ma de by Cuba and other Members on this issue.  Article 21 of the 
DSU expressly referred to prompt compliance wi th the DSB's recommendations or rulings, in 
particular with regard to the issues of interest to  developing countries.  Ecuador recalled that the 
United States closely monitored compliance by al l WTO Members with their obligations and had 
expressed, in the different WTO C ouncils and Committees, its system ic concerns with regard to 
certain commitments undertaken by Members.  Thus, if the United Stat es wished to promote 
coherence in this Organization, it should be se tting an example.  Ecuador, once again, urged the 
United States to comply with the DSB's recomme ndations and rulings and to promptly repeal 
Section 211. 
8. The representative of Bolivia  said that her country was again concerned that no progress had 
been made in the case under consideration and w as concerned about consequences of non-compliance 
with the DSB's recommendations for the Organizati on.  The United States must comply with the 
DSB's rulings and recommendations and lift the re strictions imposed under Section 211, which was 
contrary to the rules of international law.  In so  doing, the United States would ensure the integrity of 
the WTO system.  Bolivia thanked Cuba for its stat ement and supported all the other statements made 
by previous speakers.  WT/DSB/M/268 
 Page 5 
 
 
  9. The representative of Brazil  said that his country thanked the United States for its status 
report.  Brazil believed that full implementation had not yet been achieved and encouraged the 
United States to continue to pursue the necessary ac tions in this regard, so as to bring its measures 
into conformity with the DSB's recommendations. 
10. The representative of China  said that his country thanked the United States for the status 
report and its statement, but was, once again, c oncerned that the US Congress had not adopted any 
concrete implementation ac tion pertinent to this case despite th e endeavours of the US administration 
and the appeals of other WTO Members.  As China had stated many times, the situation of non-compliance was seriously damaging the authority of  the TRIPS Agreement and the credibility of the 
WTO dispute settlement system.  China, therefore,  supported the statements made by the EC and 
Cuba, and urged the United States to implemen t the DSB's decision without further delay. 
11. The representative of Thailand
 said that his country joined previous speakers in thanking the 
United States for its status report.  Thailand remained positive on this item, and urged the 
United States to take all necessary steps to comply w ith its obligations applicable to this dispute as 
soon as possible.   
12. The representative of Costa Rica  said that his country thanked the United States for its status 
report.  As had been stated by Costa Rica at the pr evious meeting, Costa Rica considered that it was 
important to comply with the first paragraph of Ar ticle 21 of the DSU, which emphasized that prompt 
compliance with the DSB's recommendations and ru lings was essential.  Costa Rica hoped that the 
United States would rapidly find a solution to this  issue with the Congress, as indicated in the US 
status report. 
13. The representative of India  said that her country thanked the United States for its status report 
and its statement.  India continued to be concerned about the non-compliance situation in this dispute.  
The situation undermined the credibility of the WTO dispute settlement system.  India, therefore, 
urged the United States to fully implement the DSB's recommendations in this dispute. 
14. The representative of Viet Nam  said that his country thanked the United States for its status 
report.  Like in previous meetings, Viet Nam wanted to express its concern about the  implementation 
of the DSB's rulings and recommendations in this dis pute.  Viet Nam believed that the United States 
would comply with the DSB's rulings and recommendations soon. 
15. The representative of Chile  said that his country thanked the United States for the status 
report and its statement.  Chile wanted to express its systemic concern and discouragement with the 
lack of compliance in this dispute.  Just as it ha ppened with the two following disputes on this item of 
the Agenda, Chile thought that a long period of time without full implementation was a very bad sign.  
Once again, Chile appealed to the United States to promptly comply with the DSB's rulings and 
recommendations.  
16. The representative of Argentina  said that his country joined the request made by previous 
speakers for a definitive solution to this matter.  The lack of effective implementation of the 
recommendations adopted by the DSB had a negative  impact on the system and should be closely 
monitored by all Members.  Argentina encouraged the parties, especially the United States, to take the 
necessary steps to ensure that this matter would be  definitively solved and that it be consequently 
removed from the DSB's Agenda. 
17. The representative of Nicaragua  said that, at the 17 November 2008 DSB meeting, her 
country had stated that it had hoped that the ne w administration would take effective measures to 
bring its legislation into conformity with the WTO Agreements.  However, that had not happened, and 
when questioned on this subject during his recent visit to Geneva, the US Trade Representative had WT/DSB/M/268 
Page 6  
 
  given no signal to this effect.  Members could not simply choose whether or not to comply with the 
DSB's rulings depending on the case.  Non-compliance should not be tolerated.   Any prolonged and 
unjustified non-compliance undermined the credibility  of the dispute settlement system.  Nicaragua 
believed that all the cases considered under Agenda  item 1 of the present meeting had to be monitored 
closely by Members, and all must redouble efforts to find a solution. 
18. The representative of the United States
 said that in response to the statements by some 
Members that this dispute raised concerns for th e credibility of the dispute settlement system, the 
United States did not believe that those concerns  were well-founded.  He said that first, the 
United States reiterated its intention to implemen t the DSB's recommendations and rulings and made 
monthly status reports to this end.  This show ed a commitment to the di spute settlement system.  
Second, the United States would expect assertions of systemic concerns would be grounded in the 
facts;  however, the facts were that the record of compliance for WTO Members generally, and for the 
United States in particular, was good.  For exam ple, the United States had announced compliance in 
two disputes at the last DSB meeting.  Third, if the situation in this par ticular dispute was having 
systemic consequences, one would expect WTO Members to be demonstrating less interest in 
bringing disputes to the WTO, but the facts did not b ear this out.  In fact, since last summer, Members 
had filed 15 consultation requests, which would not seem to reflect a weakening in the confidence that 
Members had in the dispute settlement system. 
19. The representative of Cuba  said that his delegation wished to make some comments on the 
US statement.  First, Cuba was wondering how ma ny more years one would have to wait before the 
United States understood that the concerns of the ma jority of Members had to be respected.  Seven 
years had already passed.  The United States had stated  that the status reports demonstrated the US 
commitment to comply with the DSB's recommendations, but this did not seem to be the case.  In practice over the past seven years, the United St ates had presented status reports on non-compliance 
with the DSB's recommendations.  The new US admi nistration was now dealing with this case and 
nothing had happened.  The draft bills had not b een adopted, but had been discarded.  As other 
Members had stated, the DSB's decisions were not  like a shopping list.  If, as stated by the 
United States, 15 new cases had been submitted to the DSB in the recent past, it was because there 
were many problems in international trade.  It w as clear that there was a concern shared by many 
Members of the WTO, which had been repeated over the past years, about the non-compliance in this 
case, which undermined the TRIPS Agreement and the credibility of the WTO as well as the DSB. 
20. The representative of the Bolivarian Republic of Venezuela
 said that his country was very 
concerned that the United States placed quantity an d credibility on the same footing.  Quantity had 
nothing to do with credibility so this was not necessarily a perfect equation.   
21. 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.78) 
22. The Chairman  drew attention to document WT/DS184/ 15/Add.78, 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. 
23. The representative of the United States  said that his country had provided a status report in 
this dispute on 7 May 2009, in accordance with Ar ticle 21.6 of the DSU.  As of 23 November 2002, 
the US authorities had addressed the DSB's recommendations and rulings with respect to the 
calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty inv estigation at issue in 
this dispute.  Details were provided in the docum ent numbered WT/DS184/15/Add.3.  With respect to  WT/DSB/M/268 
 Page 7 
 
 
  the recommendations and rulings of the DSB that had not already been addressed by the 
US authorities by 23 November 2002, the US administration would work with the US Congress with respect to appropriate statutory measures that would resolve this matter.  
24. The representative of Japan
 said that his country thanked the United States for its statement 
and its latest status report.  Japan noted in the re port that the United States had taken certain measures 
to implement part of the DSB's recommendations in November 2002.  Japan was hopeful that the 
United States would soon be in a position to also report to the DSB more tangible progress for the 
remaining part of the DSB's recommendations and ru lings.  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 th e 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.  
25. 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.53) 
26. The Chairman  drew attention to document WT/DS160/ 24/Add.53, 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. 
27. The representative of the United States  said that his country had provided a status report in 
this dispute on 7 May 2009, in accordance with Ar ticle 21.6 of the DSU.  The US administration 
would work closely with the US Congress and continue  to confer with the European Communities, in 
order to reach a mutually satisfactory resolution of this matter. 
28. The representative of the European Communities  said that the United States had, once again, 
reported non-compliance in this dispute.  The United States had continually failed over many years to 
bring itself into compliance.  The EC hoped that the new US authorities, who had indicated that 
Intellectual Property enforcement was a priority fo r them, would solve this dispute expeditiously. 
29. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.16 – WT/DS292/31/Add.16 – WT/DS293/31/Add.16) 
30. The Chairman
 drew attention to document WT/D S291/37/Add.16 – WT/DS292/31/Add.16 – 
WT/DS293/31/Add.16, 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 mark eting of biotech products. 
31. The representative of the European Communities
 said that his delegation welcomed the 
continuing constructive discussions with the compla inants, which had allowe d yet another extension 
of the reasonable period of time by Canada until 30 J une 2009.  Recent developm ents showed that the 
EC regulatory procedures on biotech products continued to work as foreseen in the legislation.  With 
two authorizations in March 2009 (T-45 and a GM carnation), the number of authorizations since the 
                                                      
2 Article 3.3 of the DSU. WT/DSB/M/268 
Page 8  
 
  establishment of the panel had increased to 21.  Dr aft decisions on authorization of cultivation of GM 
maize 1507 and Bt11 were being pr ocessed in accordance with the app licable law.  The EC believed 
that further progress in such a sensitive area could only be achieved through dialogue and cooperation.  The EC remained open to conti nue discussions with the three complainants. 
32. The representative of Argentina
 said that his delegation thanked the EC for its status report.  
As on previous occasions, Argentina expressed its satisfaction with the progress achieved through 
open dialogue with the EC.  The willingness to dial ogue, and the flexibility that Argentina had shown, 
had allowed the parties to make progress in solving certain important issues.  Argentina noted that it 
was continuing to monitor both the process for approva ls and the status of prohibitions in the EC 
member States.  Both situations continued to be a source of concern for Argentina.  Nevertheless, 
Argentina would continue working with the EC and th e other parties, in the same constructive spirit as 
always, with a view to achieving full implementa tion of the recommendations adopted by the DSB. 
33. The representative of Canada  said that her country thanked the EC for its statement.  Canada 
valued the constructive dialogue that had taken place to date with the EC to reso lve the issues that had 
affected, and continued to affect the approval and ma rketing of biotech products in the EU.  However, 
Canada continued to be partic ularly concerned about continuing member State actions on the 
cultivation and marketing of EU-wide approved biotech  products.  Canada woul d continue to monitor 
the situation closely and hoped to continue the di alogue with the EC to address trade in biotech 
products in a constructive manner.  
34. The representative of the United States  said that his country thanked the EC for its status 
report and its statement.  Unfortunately, the EC had again reported its non-compliance in this dispute.  
The United States regretted to report that since the April DSB meeting, the EC had failed to reach a 
final decision on any one of the approximately 50 biotech applications backed up in the EC approval system.  As a result of the backlog, US producers were completely shut out of what historically had been major US export markets for maize and other ag ricultural products.  To put the US concerns in 
some perspective, he recalled that exactly one  year ago, at the 20 May 2008 meeting, the 
United States had reported on what appeared to be  an important development in the operation of the 
EC biotech approval system.  In particular, on 7 May 2008, the EC College of Commissioners had 
met for an "orientation debate" on biotech approvals.  The Commission had explained that the purpose of the debate was "to take stock of the curr ent situation and to set out how to move forward 
on pending authorization cases and longer-term issues".   Although the ostensible purpose was to find 
a way to "move forward", the result of the orientatio n debate was to take seven of the most advanced 
biotech applications and to move them backwards in the approval process.  As the United States had 
noted with concern at the 20 May 2008 DSB meeting, one of those applications – for BT-11 maize – had first been filed in May 1996, which was now 13 years ago.  Because the EC had failed to move 
the product forward in its approval process, the DSB had found that the EC's consideration of BT-11 
was subject to undue delay, in breach of the EC's obligations under the SPS Agreement.
3    
35. Even though seven products ha d been pushed back in the a pproval process, in May 2008, 
Commission officials had assured the United States th at the result of the "orientation debate" was in 
fact a positive development.  It was explained to  the United States that further review of these 
products was a political compromise, and that on ce the products had been moved back and re-
reviewed, the EC would finally allow these products to  reach a final decision.  A full year had passed 
since the May 2008 orientation debate.  Yet, not one of the seven products affected by the orientation 
debate had reached a final decision.  Unfortunate ly, these results indicated that, regardless of the 
original intentions, the Commission in its May 200 8 orientation debate had not found a way to "move 
forward" on reaching final decisi ons on biotech applications.   
                                                      
3 Panel Report, "EC – Measures Affecting the Approval and Marketing of Biotech Products", 
WT/DS291/R, para. 7.1964.  WT/DSB/M/268 
 Page 9 
 
 
  36. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) European Communities – Regime for the importation, sale and distribution of bananas:  
Second recourse to Article 21.5 by Ecuador:  Status report by the European Communities (WT/DS27/96/Add.4) 
37. The Chairman
 drew attention to document WT/DS27/ 96/Add.4, which contained the status 
report by the European Communities on progr ess in the implementation of the DSB's 
recommendations and rulings in the case concerni ng the European Communities' regime for the 
importation, sale and distribution of bananas. 
38. The representative of the European Communities  said that, as had been indicated at previous 
DSB meetings, the EC stood ready to implement the recommendation made in the Panel Report by 
means of modifying its bound duty.  The EC still hoped that this rebinding could be made in the 
context of a comprehensive agreement with Latin American suppliers, an agreement that had been 
sought since the EC initiated GATT Article XXVIII negotiations back in 2004.  The EC was fully 
committed to finding very soon a final solution to th is long-standing "banana saga".  As indicated in 
the status report, the EC was fully engaged in negotiations with all Latin American supplying 
countries with the view of concluding promptly such  a comprehensive agreement.  The EC hoped that 
these negotiations could soon lead to a satisfactory agre ement.  The requests made to the EC to simply 
sign tel quel  the draft agreement established in the marg ins of the July Ministerial 2008 simply 
disregarded the fact that the signature of that agreement was subject to the successful adoption of 
DDA Agriculture modalities.  Having said that, th e EC was engaged in negotiations to discuss the 
possibility of concluding a draft agreement with a number of elements based on the July 2008 text, 
subject to necessary adjustments to the current situ ation.  The EC hoped that all banana suppliers 
would constructively engage in the necessary discuss ions.  This was a unique opportunity to put an 
end to this long-standing dispute and bring to  economic operators long-awaited legal certainty. 
39. The representative of Honduras  said that the Bananas case had become a "saga," as the EC 
had called it, for one important reason:  it had ha d more reoccurring instances of non-compliance than 
any other dispute in the history of the WTO.  The EC's latest episode of non-compliance had lasted for nearly three and a half years.  There was no jus tification for these continuing violations.  The EC's 
reasonable period of time to comply with the Banan as III rulings had been terminated a decade ago.  
The EC had been claiming for several months that it was interested in a "prompt" solution, but its 
actions and time-tables suggested otherwise.  Rath er than promptly and unconditionally lowering its 
tariff, as required by the Article 21.5 rulings, the EC was asking that its compliance obligations be 
turned into a complicated Doha exercise under wh ich bananas and tropical products would also be 
negotiated.  Furthermore, the EC was asking that  various procedures and joint undertakings, well 
beyond the framework of the DSU compliance, be accep ted.  If the EC was genuinely interested in a 
prompt solution, it should be defining that solutio n by how fast it could reduce its illegal banana tariff, 
not by how far the affected Latin American par ties must bend to accomm odate other products and 
procedures outside of this dispute.  As Honduras ha d previously stated, the July 2008 Agreement was 
the proper settlement framework.  If the EC was committed to resolvi ng this long-running saga, that 
Agreement offered the clearest, fastest means of doing so.  Until Members could come to a 
satisfactory resolution, Honduras would continue to reserve all rights in this dispute.  
40. The representative of Ecuador
 said that his country thanked the EC for its status report.  Once 
again, Ecuador was surprised that in its status repor t, the EC had failed to give any indication of the 
date by which it would comply with the DSB's r ecommendations and rulings in this case.  Ecuador 
had accepted to seek a negotiated solution to this enduring deadlock on bananas, and had thought that 
the matter was solved with the 27 July 2008 Agreemen t.  However, the EC had refused to accept that 
Agreement.  In contrast to the July 2008 Agreemen t, the EC's recent proposal to Latin American MFN WT/DSB/M/268 
Page 10  
 
  suppliers had introduced new conditions, such as linki ng tariff cuts to the uncertain conclusion of the 
Doha Round modalities;  linking it to an "early  harvest" of the Doha Round modalities and prior 
agreement with the ACP countries in  the negotiations on tropical products and preference erosion;  
and making the proposed agreement subject to th e conclusion of a parallel agreement with the 
United States.  All of these conditionalities clearl y complicated the negotiations.  These issues had 
nothing to do with compliance with the DSB's re commendations and rulings and the compensation for 
the EC's enlargement.  Ecuador also noted th at, when it came to compliance with the DSB's 
recommendations and rulings, the EC differentiated between countries and set its priorities according 
to whether they were developing or developed countries.  For example, there was a recent fast-track 
resolution by the Council of Europe authorizing the European Commission to initial a Memorandum 
of Understanding with the United States in the Ho rmones dispute.  The EC should show the same 
diligence in the Bananas dispute by signing an ag reement that was not linked to the Doha Round 
modalities agreement and to end this longest-standi ng dispute still pending in the history of the GATT 
and the WTO. 
41. The representative of Panama
 said that his country noted with satisfaction the EC's interest in 
reaching a settlement "soon", but shared Ecuador's c oncern regarding the conditions to which the EC 
continued to subject this prompt compliance.  Th e Appellate Body had confirmed the EC's lack of 
compliance.  Prompt compliance was not a matter of discretion, nor could it be  subordinated to other 
trade objectives or developments.  If the EC refused  to bring itself into conformity because it could 
not settle negotiations that had not hing to do with bananas, it was mistakenly treating compliance as 
something different from the DSB's recommendations.  If the EC failed to comply because the 
proceedings in another WTO body were not turning out as the EC would have liked, once again, it 
was unjustifiably rewriting the DSU provisions.  When the EC had stated that it was interested in 
finding a solution to this dispute very soon, Pana ma hoped that it was taking account of all of the 
DSU provisions and obligations, which did not allow prompt compliance to be affected by external 
events, procedural complexities or insufficient ta riff reductions.  Panama recalled that an acceptable 
solution to this dispute was available, which had been  approved by the EC in July 2008, and could be 
signed at any time.  Thus, if the EC was really committed to finding a solution very soon, the July Agreement provided such a solution. 
42. The representative of the Dominican Republic
, speaking on behalf of the ACP countries, said 
that at the four DSB meetings held on 11 December 2008 and 19 Fe bruary, 20 March and 
20 April 2009, the ACP Group had registered its respect  for the need to implement final decisions of 
the Reports despite its continued disagreement with certain conclusions reached by the Panel and the 
Appellate Body in this dispute.  She recalled th at the Panel and the Appellate Body had concluded 
that the EC's Schedule at this time still committed th e EC to a TRQ at a tariff of €75/metric tons and 
an out-of-quota tariff of €680/metric tons.  As pr eviously mentioned, the ACP countries could resign 
itself to live with a literal implementation of those conclusions.  The EC, however, aimed to achieve 
compliance and implementation by changing the st ructure of its tariff commitments through 
negotiations with the MFN banana suppliers.  It a ppeared that this process would likely lead to a 
reduction of applied (and bound) duty rates.  She re iterated that the DSB's recommendations in this 
dispute did not require any overall reduction of aver age tariffs, but just a rearrangement.  Thus, a 
decision to reduce the EC's average banana tariffs  would find its rationale exclusively in the DDA 
context.  She stressed again that  the ACP countries remained committed to supporting their partners in 
finding an effective solution to the "Banana issue".  That said, it should be ensured that the steps 
eventually agreed upon with respect to the EC's ba nana tariff were taken for the right reasons and 
anchored and balanced out in the right context. 
43. The representative of Colombia  said that his country thanked the EC for its status report and 
noted the EC's proposal to bring itself into comp liance with the DSB's recommendations and rulings 
by modifying its scheduled tariff commitments on ba nanas.  Colombia hoped that the EC would act 
promptly in that respect.  Colombia, together with the other MFN banana-exporting countries, had  WT/DSB/M/268 
 Page 11 
 
 
  been discussing with the EC the basis for negotia tions.  A long confidence-building process had been 
under way since the EC had refused to recognize th e Agreement reached in July 2008.  Colombia 
hoped that, in the process of negotiations, the EC  would not seek to impose any conditions.  Both 
parties would have to be willing to reach a nego tiated settlement, which required an understanding of 
their mutual trade interests, and to show the necessary flexibility regarding this matter. 
44. The representative of the United States  said that his country thanked the EC for its status 
report and its statement and noted that the EC, on ce again, had provided no information regarding 
how the EC was in compliance with its obligations  under Articles I and XIII of the GATT 1994.  The 
United States noted, once again, that the DSB had not adopted any panel or Appellate Body reports finding that the EC was in compliance with its WTO obligations with respect to any of the original 
co-complainants in this dispute, including the United  States.  It would certainly be good if the EC's 
effort to "conclude promptly a comprehensive ag reement on bananas" was concluded promptly, as the 
EC's reasonable period of time for compliance in this dispute had expired more than ten years ago, on 
1 January 1999.  The commercial impact of the EC 's non-compliance over this very long period was 
undeniably large and damaging to a number of WT O Members.  The United States called on the EC 
to resolve this dispute and, until then, to provide a comprehensive explanation of how the EC intended 
to come into substantive compliance with a ll of the DSB's recommendations and rulings. 
45. The representative of Nicaragua
 said that her country wished to refer Members to the 
statements it had made at previous DSB meetings.  Nicaragua noted the status report by the EC, which 
was identical in every way to the brief report recei ved the previous month.  Once again, the EC had 
merely asserted that it had the intention to "bring itself into compliance".  Yet again, the EC had 
refrained from sharing the underlying truth with the DSB.  In fact, the EC was prepared to comply 
subject to a number of conditions that it had impo sed unilaterally, which had nothing to do with this 
dispute.  According to these conditions, for exampl e, Members must find a solution under the Doha 
Round for tropical products before the EC would accep t to reduce its illegal tariff on bananas.  Its 
novel idea of "compliance" involved so many cases that  were outside the scope of Article 21 of the 
DSU that it was impossible to see how, if at all, the EC would ever bring its violations of Articles I 
and II of the GATT 1994, into conformity with WT O rules.  Nicaragua pointed out that under the 
DSU provision, the EC had an unconditional obligatio n to bring itself into compliance with the DSB's 
recommendations.  Nothing in those provisions entit led the EC to introduce illegal conditions and 
then blame others for not complying with them.  On ce again, Nicaragua asked the EC to recognize its 
unconditional compliance obligation in this dispute a nd to explain to the DSB when and how it would 
bring itself into conformity with the WTO rules, without subjecting such action to any conditions.  
After so many years of non-compliance by the EC , Members had the right to such clarification. 
46. The representative of Saint Lucia  said that her country supported the statement made by the 
Dominican Republic on behalf of the ACP countries. 
47. The representative of the European Communities  said that the EC wished to state, in response 
to Ecuador's comment that the EC had been able to  come to a settlement with the United States in the 
Hormones dispute, but seemed to be unable to settle th e Bananas dispute, that to come to a mutually 
satisfactory solution would take more than one:  "I t takes two to dance tango and the EC would like to 
dance tango with all MFN suppliers."  In respons e to comments made on Articles I and XIII of the 
GATT 1994, the EC said that the Appellate Body had confirmed that no recommendation (as opposed 
to findings) was warranted with respect to the measur e at issue in this dispute, since it was no longer 
in existence (para. 479 of the AB Report).  The Appe llate Body had referred generally to the principle 
that, in Article 21.5 DSU procedures, original DS B recommendations and ruli ngs "remain in effect 
until the EC brings itself into substantive complia nce".  However, there was no longer a compliance 
issue, since the measure at fault ha d ceased to exist in 2007.  The curre nt tariff treatment of bananas of 
ACP origin was a completely different measure, based on the negotiation of Free Trade Agreements WT/DSB/M/268 
Page 12  
 
  (FTAs) with the ACP countries concerned.  Ta riff preferences could equally result from FTAs 
negotiations with Latin American suppliers. 
48. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(f) Brazil – Measures affecting imports of retreaded tyres:  Status report by Brazil 
(WT/DS332/19/Add.2) 
49. The Chairman  drew attention to document WT/DS332/ 19/Add.2, which contained the status 
report by Brazil on progress in the implementation of the DSB's recommendations and rulings in the case concerning Brazil's measures affecting imports of retreaded tyres. 
50. The representative of Brazil
 said that, on 7 May 2009, his country had provided the DSB with 
a further status report in this dispute, in accordan ce with Article 21.6 of the DSU.  Brazil firmly 
believed that the actions pursued by the Governme nt constituted not only a fundamental step in 
strengthening Brazil's environmental policy, but w ould also bring full implementation of the DSB's 
recommendations and rulings in this dispute. 
51. The representative of th e European Communities  said that his delegation noted Brazil's third 
status report and that, again, Brazil had admitted not having achieved compliance to date, and this 
despite the expiry of the reasonable period of time on 17 December 2008.  As regards Brazil's efforts 
towards implementation, the EC maintained its po sition expressed at the 20 Ap ril 2009 DSB meeting.  
The EC was neither convinced nor satisfied with Braz il's actions.  As stated at previous meetings, the 
fastest and best way to remove the ongoing and WT O-incompatible discrimination would consist of 
lifting the import ban on retreaded tyres.  This w ould at the same time allow Brazil to respect its 
MERCOSUR obligations, confirmed by binding arbitral rulings.  The EC could not see that Brazil had 
satisfactorily answered its repeated question of what  exactly Brazil intended to set up when it referred 
to a "common trade regime for tyres with its MERCOS UR partners".  The EC stressed again that the 
DSB's rulings and recommendations in this case di d not permit keeping the import ban in place while 
maintaining the possibility for intr a-MERCOSUR trade in retreads.  The EC continued to express its 
understanding and support for measures aiming at e nvironmental and public health protection.  It 
would, therefore, by no means discourage Brazil from doing more for the protection of its citizens against diseases spread by mosquitoes that bred in abandoned waste tyres.  For that purpose, however, 
much better and more effective measures were avai lable as compared to the selective targeting of 
certain imported products that did not  actually contribute to the problem.  The EC rejected unjustified 
insinuations that it intended to export its waste to Brazil.  The EC recalled that it managed, recycled 
and recovered waste tyres without relying on exporta tion.  Moreover, like the overwhelming majority 
of WTO Members, the EC did not ban the importation of retreaded tyres.  On the contrary, the EC 
imported retreaded tyres from other countries, including from Brazil.  The EC, therefore, called upon Brazil to end, without further delay, its arbitr ary and discriminatory practices regarding retreaded 
tyres, and to do so by removing its import ban. 
52. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
2. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Communities and Japan 
53. The Chairman  said that the item was on the Agenda of the present meeting at the request of 
the European Communities and Japan.  He then invited the respective representatives to speak.  WT/DSB/M/268 
 Page 13 
 
 
  54. The representative of the European Communities  said that, as in many previous meetings, his 
delegation wanted to ask the United States when it would effectively stop the transfer of anti-dumping and countervailing duties 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. 
55. The representative of Japan
 said that, as the latest distributions4 showed, the CDSOA still 
remained operational.5  Japan, once again, called on the United States to stop illegal distributions and 
repeal the CDSOA not just in form, but in substan ce so as to resolve this dispute once and for all.  
According to Article 21.6 of the DSU, the Unite d States was under obligation to provide the DSB 
with a status report in this dispute "until the issu e is resolved".  Japan reserved all its rights under the 
DSU until the United States ca me into full compliance. 
56. The representative of China  said that his country thanked the EC and Japan for, once again, 
raising this matter at the DSB meeting.  China sh ared the concerns expressed by previous speakers, 
and wished to join them in urging the United States to comply fully with the DSB's rulings. 
57. The representative of Thailand  said that his country continued to urge the United States to 
cease WTO-inconsistent disbursements under the Con tinued Dumping and Subsidy Offset Act, repeal 
the Byrd Amendment with immediate practical eff ect, and resume providing status reports until such 
actions were taken and this matter was fully resolved. 
58. 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. 
59. The representative of Brazil  said that his country wished to thank Japan and the EC for raising 
this important issue in the DSB once again.  Br azil was of the view that, since the CDSOA still 
allowed for disbursements by the US administrati on to its domestic industry,  full implementation of 
the DSB's recommendations and rulings in this dispute could not be claimed. 
60. The representative of India  said that her country thanked the EC and Japan for bringing this 
issue, once again, before the DSB.  India was of the view that CDSOA still allowed for disbursements 
by the US administration to its domestic industry.  This fact continued to raise concerns to WTO 
Members. India, therefore, urged the United Stat es to cease its WTO inconsistent disbursements, and 
fully implement the DSB's recommendations and rulings.   
61. The representative of the United States  said that, as his country had already explained at many 
previous DSB meetings, the US President had signed the Deficit Reduction Act into law on 
8 February 2006.  That Act included a provisio n repealing the Continued Dumping and Subsidy 
Offset Act of 2000.  Thus, the United States had ta ken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes.  He recalled, furthermore, that Members, including 
the EC and Japan, had acknowledged during previous  DSB meetings that the 2006 Deficit Reduction 
Act did not permit the distribution of duties coll ected on goods entered after 1 October 2007.  The 
United States, therefore, did not understand the purpo se for which the EC and Japan had inscribed the 
item on the Agenda of the present meeting.  With resp ect to comments regarding further status reports 
                                                      
4 According to Updated FY2008 Annual Disbursement Report published by US Customs  on 
3Apri1 009, some US$198 million have been disbursed for FY 2008.  See US Customs and Border Protection's  
website  at:  http://www.cbp.gov/xp/cgov/trade/priority_trade/add_cvd/cont_dump/cdsoa_08/fy08_annual_rep/  
 5 In the words of the US Customs,  "the distribution process will continue for an undetermined period". 
See US Customs and Border Protection's website  at:  
http://www.cbp.gov/xp/cgov/tr ade/priority_trade/add_cvd/cont_dump/cont_dump_faq.xm l WT/DSB/M/268 
Page 14  
 
  in this matter, as the United States had already explai ned at previous DSB meetings, the United States 
failed to see what purpose would be served by further submission of status reports repeating, again, 
that the United States had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes. 
62. The DSB took note
 of the statements. 
3. Colombia – Indicative prices and restrictions on ports of entry 
(a) Report of the Panel (WT/DS366/R and Corr.1) 
63. The Chairman  recalled that, at its meeting on 22 October 2007, the DSB had established a 
panel to examine the complaint by Panama pertai ning to this matter.  The Report of the Panel 
contained in WT/DS366/R had been circulated on 27 April 2009 as an unrestricted document.  The 
Report of the Panel was before the DSB for adop tion at the request of Panama.  The adoption 
procedure was without prejudice to the right of Members to express their views on the Report. 
64. The representative of Colombia  said that his country wished to  thank the Panel for its analysis 
and its work in this dispute as well as the Secretar iat for its support throughout the process.  At the 
present meeting, his country wished to make a few general comments concerning the various elements 
and arguments on which the Panel had based its conc lusions.  With regard to the valuation of the  
imported goods for customs purposes, Colombia regre tted that the Panel's analysis had been based 
exclusively on the terminology u sed by the Colombian customs regime which, in the Panel's view, 
was clear, when in fact, throughout the proceedings it had been evident that there were a number of 
ambiguities in the regime and that it needed to be  interpreted in order to resolve certain obvious 
inconsistencies.  On the one hand, when the valu e declared by the importer was below the indicative 
price, a cash guarantee was required, a guarantee which consisted in the difference between the 
declared value and the indicative price for the pu rposes of duty payment.  However, the official 
responsible for the importation, upon the releas e of the goods, must automatically pass the 
corresponding file to the office in charge of post- importation control where the customs value of the 
goods in question was determined.  This aspect of the Colombian customs regime, the sending of the 
file to another office for determination of the cust oms value, had completely been disregarded by the 
Panel, which meant that the Panel had interpreted the terms of the customs regime out of context.  In 
other words, although the wording in one part of Colombia's legislation referred to derechos y pagos  
(duties and payments), the phrase " revisión de valor " in another part suggested that a different 
functional meaning should be given to the term "duties and payments ".  Unfortunately, this literal 
analysis by the Panel of Colombia's legisla tion had prevented it from determining whether the 
additional disbursement required of the importer was effectively a cash guarantee, or whether in fact it 
amounted to payment of the customs taxes.  It  was also disconcerting that the Panel had not 
considered the functioning of the indicative price sy stem in the general context of the practice and 
application of customs control mechanisms estab lished by the Colombian and Andean Community 
regimes, in particular the other types of reference prices.  At the same time, the Panel had ignored the 
argument that an "as such" violation could not be established unless it was determined that the 
legislation in question resulted in an action that  was openly inconsistent with WTO rules.  The 
evidence showed that Colombia's legislation estab lished a process of automatic valuation after the 
release of the goods.  In addition, Colombia had provided ample evidence in this connection showing 
that the Colombian authorities applied the Customs Va luation Agreement to that stage.  Nevertheless, 
the Panel had ignored the existence of this " estudio de valor " (study of value) during the 
post-importation control stage which resulted, where applicable, in the importer being refunded.  
Colombia did not consider that receiving a "payment sensu strictu " at a particular moment in time 
implied that it had collected a levy and that custom s valuation had, therefore, already taken place.  
The concept of "payment sensu strictu " did not exist in the Agreement on Customs Valuation.  The 
question of whether these payments were called "duti es" or "deposits" was irrelevant.  The Panel had  WT/DSB/M/268 
 Page 15 
 
 
  erred in failing to consider that when the customs ad ministration questions a price, this was the direct 
consequence of the alteration of the taxable base.  Thus, the Panel had disregarded the fact that 
customs valuation was a process involving payments which led to the release of the goods.  To the extent that the function of these payments was re lated solely to the release of the goods, customs 
valuation had not yet taken place, since the value was determined through a separate process based on 
the principles of the Agreement on Customs Valua tion.  Finally, as regards the indicative prices 
system, Colombia did not agree that the interpre tation of the Customs Valuation Agreement should 
rely on the definition of concepts as important as valuation and value found in English language 
dictionaries rather than in the general context of the technique of valuation as developed by the World 
Customs Organization. 
65. With regard to the defence under Article XX of the GATT 1994, he said that in the Panel's 
opinion, the evidence submitted showed that Colombia had problems with smuggling and under-invoicing, particularly in relation to goods from the Colón Free Zone (CFZ), and with the black 
market Colombian peso exchange (paragraph 7.56 4).  Panama had not called into question the 
incidence of money laundering or contraband in rela tion to goods arriving to Colombia.  However, it 
called into question Colombia's attribution of the seve rity of the problem in light of the fact that the 
anti-fraud and anti-money laundering steps had not been imposed at all ports of entry 
(paragraph 7.561).  Despite reservations by Panama concerning the general nature of evidence to 
demonstrate problems with money laundering a nd contraband goods in the region and the link 
between these phenomena and drug trafficking, it nevertheless had ac knowledged the problem 
through its own participation in a Customs Coopera tion Protocol with Colombia in an attempt to 
address these problems.  Moreover, evidence s ubmitted by Colombia in ongoing and completed 
investigations shed light on its broad efforts to  address these problems (paragraph 7.565).  On the 
basis of the evidence submitted and the circum stances surrounding the implementation of the 
ports-of-entry measure, and in light of the fact th at the measure had been imposed with a view to 
addressing the need to strengthen and improve customs controls related to the importation of textiles, 
apparel and footwear arriving from Panama, the Panel considered that Colombia had demonstrated to 
its satisfaction that the ports-of-entry measure  had been designed to secure compliance with 
Colombia's customs laws and regulatio ns.  In spite of this, the Panel had determined that it was not in 
a position to conclude that the ports-of-entry rest riction measure had contributed in the past or 
currently contributed to combating customs fraud and contraband in Colomb ia.  The Panel qualified 
Colombia's qualitative analysis as purely speculative, rejecting the argument that the limitation in the 
number of ports of entry had made it possible to exercise more effective control.  The Panel stated that 
it had weighed and balanced various factors to establish whether the ports-of-entry measure was 
necessary to secure compliance with Colombia's cust oms laws and regulations.  In Colombia's view, 
the Panel's analysis neither weighed nor balanced the different factors involved in proving necessity.  
For example, it was particularly disconcerting that th e Panel should have based  its conclusions on the 
evaluation of certain textile trade indicators without  giving equal weight to the evaluation of those 
same indicators in respect of footwear and apparel, which were also affected by the measures.  For the necessity test, the Panel had required a correlation reflecting almost mathematical certainty and demonstrable precision, thereby imposing on Colombia  a standard that was simply too high to be 
realistic.  Regarding the weighing and balancing process, the Panel had found that Colombia had 
managed to demonstrate that it fa ced a serious problem of smuggli ng.  This public acknowledgement 
supported by the complete review of the facts in the course of these proceedings was of great 
importance to Colombia.  Consequently, it could be hoped that the Panel would take this finding into 
consideration in weighing and balanc ing the different factors.  However, the Report showed that in 
this process, the Panel had not taken account of the seriousness of the problem.  This was evidenced 
by the Panel's assertion that it had been unable to conclude whether the imposition of the measure had 
had a suppressing effect on trade volumes, in terms of  value or volume.  Nor had Panama presented a 
reasonable alternative measure.  WT/DSB/M/268 
Page 16  
 
  66. In conclusion, Colombia said that it wished to  point out that the problem it had been facing 
with goods arriving from Panama highlighted the need  to implement one of the measures proposed in 
the context of the Doha Ministerial Decision on Implementation-Related Issues and Concerns, in 
particular as regards the implementation of Article  VII of the GATT 1994.  That decision underlined 
the importance of strengthening effective coopera tion between the customs administrations of 
Members in preventing, detecting and combating cust oms fraud and illegal activities that affect trade.  
The Ministerial Decision of 1994 stated that when the customs administration of an importing Member had reasonable grounds to doubt the truth or  accuracy of the declared value, it might seek 
assistance from the customs administration of an exporting Member on the value of the good concerned.  In such cases, the exporting Member shall offer cooperation and assistance, consistent 
with its domestic laws and procedures, including furnishing information on the export value of the 
goods concerned.  On the basis of this considerati on, Colombia had entered into contact with Panama 
to agree on joint action that would enable them to deal with the problems that they faced.  Colombia 
would seek agreement with Panama on the reasonable period of time in order to comply with the DSB's recommendations and rulings, and would inform the DSB to this effect accordingly. 
67. The representative of Panama
 said that his country wished to  thank the members of the Panel, 
as well as the WTO Secretariat.  Panama was satisfi ed with their performance and was impressed by 
the professionalism with which the case had been ma naged.  He recalled that on 22 October 2007, at 
Panama's request, the DSB had established a panel to  settle this dispute.  The Report of the Panel, 
issued on 15 April 2009, had concluded that the cu stoms measures adopted by Colombia with respect 
to indicative prices and restrictions on ports of entry were inconsistent with va rious provisions of the 
WTO Agreement on Customs Valuation and the GA TT 1994.  The customs measures introduced by 
Colombia, that were at issue in this dispute, aff ected certain textiles, apparel and footwear re-exported 
or exported from the Colón Free Zone (CFZ) and Pa nama to Colombia.  Specifically, these measures 
consisted, on the one hand, of the use of indicativ e prices to determine the customs value of certain 
goods, and on the other hand, restrictions on ports of  entry for textiles, apparel and clothing coming 
from Panama, including the requirement that they  only entered at Bogotá or Barranquilla, the 
restriction of transit through the territory of Co lombia to certain specific transit modes, and the 
requirement to present an advance import declaration. 
68. With regard to indicative prices, the Panel had accepted Panama's claims that the legal 
provisions introduced by Colombia establishing indica tive prices were inconsistent "as such" with the 
obligation established in the Agreement on Customs Va luation to apply, in a sequential manner, the 
methods of valuation provided in Articles 1, 2, 3,  5 and 6 of the Agreement, since the structure and 
design of the system of indicative prices prevented that sequential order from being applied, and also 
because the Colombian customs authorities were required to systematically apply a methodology that did not reflect any of the methods provided for in  those provisions, unless the transactional value was 
higher than the indicative price.  The Panel had al so accepted Panama's allegations that the measures 
were inconsistent "as such" with Article 7.2(b) a nd (f) of the Agreement on Customs Valuation, since 
the regulations in question imposed "a system  which provided for the acceptance for customs 
purposes of the higher of two alternative values" and a system of "minimum prices" which had to be used for the goods in question to be imported into Co lombia.  Regarding the restrictions on ports of 
entry, the Panel had accepted Panama's claims that  the ports of entry measure was inconsistent with 
Article XI:1 of the GATT 1994 because it had a lim iting effect on imports arriving from Panama and 
hence constituted a restriction under Article XI:1 of the GATT 1994.  It had also accepted that the 
ports of entry measure was inconsistent with Ar ticle V:2, first and second sentences, because by 
requiring that goods undergo transhipment in order to proceed in international transit, Colombia had 
failed to extend freedom of transit via the most convenient routes to goods arriving from Panama, and 
because by subjecting only goods arriving from Pa nama or the CFZ to the requirements under the 
exemption from the regulations in question while goods originating in or departing from a member 
other than Panama were permitted to proceed in  international transit.  Colombia also made  WT/DSB/M/268 
 Page 17 
 
 
  distinctions based on place of origin or departur e of textiles, apparel and footwear arriving from 
Panama or the CFZ. 
69. The Panel had accepted Panama's claims that the ports of entry measure was inconsistent with 
the first sentence of Article V:6 by not extending  "treatment no less favourable" to goods arriving 
from Panama and the CFZ in comparison to the same goods had they been transported from their 
place of origin to Colombia without circulating th rough Panama and the CFZ.  It had also found that 
the requirement to submit an advance import declar ation was inconsistent w ith Article I:1 of the 
GATT 1994 because it involved conferring advantages to like products from all other WTO Members 
and third countries that were not extended imme diately and unconditionally to textile, apparel and 
footwear imports from Panama.  The Panel had furthe r rejected Colombia's defence that the ports of 
entry measure was justified under Article XX(d) of  the GATT 1994, concluding that the measure was 
not provisionally justified under that provision since Colombia had failed to demonstrate the need for 
the measure.  The measures that had been found c ontrary to WTO rules, negatively affected the 
shipping of goods from Panama to Colombia and caused serious economic prejudice to Panama's 
exporters and re-exporters, chiefly from the CFZ.  Because this was the case, and because the 
conclusions of the Panel were perfectly clear, Pa nama hoped that Colombia would rapidly bring its 
measures into conformity with the relevant  WTO Agreements.  This would ensure the 
re-establishment of a normal trade flow between th e two countries to the benefit of all of the 
economic operators. 
70. The representative of the United States  said that his country thanked the Panel and the 
Secretariat for their work in these proceedings.  The United States had been a third party in this 
dispute and, in view of the limited time available,  would like to take the opportunity to comment on 
just two points in the Panel Report.  First, the Panel had found that Colombia's measures that had 
established a regime of indicative prices for the pur pose of customs valuation were inconsistent with 
Colombia's obligation to conduct customs valua tion based on the sequential application of the 
methods established by Articles 1, 2, 3, 5 and 6 of  the Customs Valuation Agreement.  Moreover, the 
Panel had found that Colombia's use of indi cative prices had breached its obligations under 
Article 7.2(b) and (f) of the Customs Valuation Agreement, respectively, because it involved taking 
the higher of two alternative values for customs purposes and also functioned as a "minimum customs value[]".  The United States had been troubled for some  time by reports of the use of indicative prices 
(or database prices) in connection with customs va luation.  The use of these prices was a pressing 
issue in the customs valuation area, as such prici ng was often trade-distorting and non-transparent.  
Further, serious concerns had been voiced about  the reliability and veracity of these prices.  
Accordingly, the United States was pleased that th e Panel had found the use of indicative prices or 
database prices was no substitute for following the customs valuation process prescribed by the 
Customs Valuation Agreement.  The Panel's finding s could provide helpful guidance to those facing 
some of these same issues.  Second, the Panel's ap proach to the obligations in Articles V:1, V:2 and 
V:6 of the GATT 1994, and the Panel's application of th ese obligations to the m easures at issue in this 
dispute, raised some interpretive and analytical questions.  The United States believed that Members 
would need to reflect on the analytical approach taken by this Panel's Report. 
71. The representative of Ecuador
 said that his country had participated as a third party in this 
dispute, and wished to join others in thanking th e members of the Panel and the WTO Secretariat for 
their work and their commitment in  this case.  He said that Ecuador had taken the opportunity to 
repeat, in the course of this dispute, its con cern regarding the negative effects of contraband, 
smuggling, under-invoicing and circumvention by expor ting through a third country (triangulation) on 
the economies of all WTO Members, especially deve loping countries, effects which were aggravated 
if the goods came from free-zones or special customs regimes in which export subsidies were applied.  
Unfortunately, many developing countries did not have  the resources nor the capacity to put into place 
an adequate mechanism to tackle these issues in all their ports of entry. WT/DSB/M/268 
Page 18  
 
  72. The representative of the European Communities
 said that his delegation had participated as 
third party in this dispute because of its systemic interest in the correct interpretation of various WTO 
legal provisions, which had never been interpreted by GATT/WTO pa nels or the Appellate Body.  
The EC was pleased with the Panel's interpretation of the CVA which had imposed an obligation on 
the national authorities to determine the custom s value of imported goods based on the transaction 
value and, if it was not possible, to sequentially apply the customs valuation methods contemplated by 
the CVA.  The EC also found the Panel's legal analysis of Article V of the GATT 1994 clear and straightforward. 
73. The DSB took note
 of the statements and adopted  the Panel Report contained in 
WT/DS366/R and Corr.1. 
4. United States – Final anti-dumping measures on stainless steel from Mexico 
(a) Statement by the United States 
74. The representative of the United States , speaking under "Other Business", said that in the 
dispute "United States – Final Anti-Dumping Measu res on Stainless Steel from Mexico" (DS344) an 
arbitrator had awarded the United States a reasonabl e period of time of 11 months and 10 days.  That 
reasonable period of time had expire d on 30 April 2009.  On 18 May 20 09, to facilitate resolution in 
the event of any further proceedings in this dis pute, the United States and Mexico had concluded a 
sequencing agreement.  That agreement had been no tified to the DSB, and it would soon be circulated 
to all Members.  The United States had also been conferring with Mexico about the steps that the 
United States had taken to comply with the DSB's recommendations and rulings.  These steps 
included the following.  First, on 23 April 2009, the US Department of Commerce had issued a new 
final determination in the stainless steel anti-dumpi ng duty investigation that had implemented the 
DSB's recommendations and rulings with respect to the calculation of dumping margins in that 
investigation.  That determination had been published in the Federal Register on 29 April 2009 
(74 Fed. Reg. 19527).  In addition, with respect to model zeroing in investigations "as such", the panel 
in this dispute had concluded that the meas ure at issue had expired on 22 February 2007.6  Since then, 
the United States was no longer performing averag e-to-average comparisons in anti-dumping 
investigations without providing offsets.  With r espect to the administrative reviews that had been 
challenged "as applied", any prospective effect of t hose reviews had been eliminated and all entries of 
merchandise under the five reviews had been liquida ted for customs purposes.  As noted previously, 
the United States had been conferring with Mexico and would continue to do so. 
75. The representative of Mexico  said that his country thanked th e United States for its statement 
and its willingness to continue discu ssions with Mexico on this matter since there were still some 
issues to be settled. 
5. Appointment of Appellate Body members 
(a) Statement by the Chairman 
76. The Chairman , speaking under "Other Business", said th at as he had indicated at the outset of 
the present meeting, he wished to make a st atement regarding the ongoing process for selecting 
Appellate Body members.  He said that first, the Selection Committee had completed its interviews 
with all six candidates nominated for two positions  on the Appellate Body.  These interviews had 
been held on 20, 21 and 22 of April 2009.  Second, the Selection Committee had also held 
consultations with interested delegations to hear their views on the candidates.  Those consultations 
                                                      
6 Panel Report, "US – Final Anti-Dumping Measures on Stainless Steel from Mexico", WT/DS344/R, 
adopted as modified by the Appellate Body on 20 May 2008, para. 7.45.  WT/DSB/M/268 
 Page 19 
 
 
  had been held on 12 and 13 of May 2009 during whic h time 46 delegations had met with the Selection 
Committee.  In addition, written comments from those delegations who had chosen not to meet with the Committee had so far been received from eight  delegations.  The deadline for written comments 
was 20 May 2009.  Therefore, those Members who still wished to submit written comments could do so by close of business.  Third, pursuant to th e procedures agreed by the DSB on 22 December 2008, 
the Selection Committee was supposed  to make its recommendation to the DSB by no later than the 
end of May 2009 so that a decision on this matter coul d be taken by the DSB at its regular meeting on 
19 June 2009.  However, he said th at he had noticed that the airgra m for the 19 June DSB meeting did 
not close until 8 June.  Thus, in theory, the Committe e could have a few additional days available to it 
as long as its recommendation was communicated to Memb ers by no later than 8 June.  Should there 
be any delay as to the Committee's recommendation beyond the end of May, something that he 
certainly did not anticipate, he would communicate this to  all Members by fax.  Finally, he said that in 
accordance with the DSB decision of 22 December 2008,  he had been consulting and would continue 
to consult on the possible reappointment of Mr. David Unterhalter.     
77. The DSB took note
 of the statement. 
__________