RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/244 
29 February 2008 
 (08-0850) 
Dispute Settlement Body 
15 January 2008  
 
 
  
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 15 January 2008  
 
Chairman:  Mr. Bruce Gosper (Australia) 
 
 
Subjects discussed : Page  
 
1. European Communities – Anti-dumping  measure on farmed salmon from 
Norway......................................................................................................................... ..............1  
(a) Report of the Panel............................................................................................................ ..........1  
2. Implementation of the reco mmendations of the DSB............................................................3  
(a) Brazil – Measures affecting impor ts of retreaded tyres ..............................................................3  
(b) Japan – Countervailing duties on dynamic random access memories from Korea.....................4  
 
 1. European Communities – Anti-dumping measure on farmed salmon from Norway 
(a) Report of the Panel (WT/DS337/R) 
1. The Chairman
 recalled that, at its meeting on 22 June 2006, the DSB had established a panel 
to examine the complaint by Norway  pertaining to this matter.  The Report of the Panel, contained in 
document WT/DS337/R, had been circulated on 16 November 2007 as an unrestr icted document.  The 
Panel Report was now before the DSB for adopti on at the request of Norway.  This adoption 
procedure was without prejudice to the right of Members to express their views on the Panel Report. 
2. The representative of Norway  said that, first of all, his country wished to thank the Panel and 
the Secretariat for their hard work they had put into  presenting the Panel Report in this case.  Norway 
welcomed the adoption of the Panel Report at the presen t meeting.  This was an important step in this 
long-standing dispute between Norway and the EC due to a cascade of unjustified measures imposed 
by the EC since the early 1990s.  The Panel Report was long.  It had to be so, because the number of 
violations committed by the EC were so great.  However, his delegation would not go through them 
all at the present meeting.  Suffice it to say that the Panel had found a continuum of violations touching every aspect of the anti-dumping investigation from its inception until the imposition of the measure.  To highlight but a few, Norway said that the Panel had found that the EC had violated its obligations under the Anti-Dumping Ag reement as regards:  (i) the initiation;  (ii) the selection of the 
sample;  (iii) the dumping margin calculations for each and every company;  (iv) the industry 
definition;  (v) the injury analysis;  (vi) the causa tion analysis;  (vii) the level of the minimum import 
prices actually imposed;  as well as (viii) due process obligations. WT/DSB/M/244 
Page 2  
 
  3. At each and every turn, there was a violation co mmitted by the EC.  The violations committed 
by the EC were not just numerous;  perhaps more  numerous than in any previous WTO panel case.  
They were also very significant.  And they had led to the one, inescapable conclusion, namely, that 
the EC had no choice now, but to remove the measure  and lift all restrictions on Norwegian salmon.  
Re-calculations could not remove the violations.  It was Norway's impression that the EC honoured its 
international commitments and abided with the r ecommendations and rulings of the DSB.  Norway, 
therefore, had no doubt that the EC would now do what it had to do, which was to repeal the 
unjustified anti-dumping measure and restore normal trading conditions.  This  could be done very 
quickly.  Indeed, the EC had a specific Regulation allowing it to "fast-track" such repeals after losing 
a WTO-dispute.  Norway expected the EC to make use of that possibility now.  But Norway stood, of 
course, ready to pursue the matter in  the WTO, as and when necessary. 
4. The representative of the European Communities
 said that the EC was grateful for the work 
that the Panel and the Secretariat had done on th is matter.  While the Panel Report had found in 
favour of Norway on certain points, the Panel had likewise found in favour of the EC on numerous of 
the points raised by Norway.  Overall the Report had made clear that the exaggerated claims by 
Norway – both in terms of sheer number, but also accusations – had been often off mark.  The EC 
would not take up the Chair's and Members' time by providing a resumé of the Panel Report.  However, the Panel Report had addressed a particular  feature which investigating authorities might be 
faced with (regardless of the product and sector in  question) and which woul d be of importance to 
Members more broadly on the definition of the "dom estic industry" in trade defence investigations.  
The underlying economic feature in this specific case was that there was an "upstream" activity or 
sector (salmon growing) and a "downstream" activity or sector (filleting), in both Norway and in the 
EC, which activities might or might not be carried out by separate legal entities, and which entities might or might not be related. 
5. The Panel Report had made clear (despite the technical subject matter and hence the dense 
accompanying language) that there were two key concepts relevant for defining the "domestic 
industry":  the higher number of domestic producers (including all domestic production of the like 
product) – generally referred to as "domestic production" – and the lower number (resulting from 
some permissible exclusions) – gene rally referred to as "domestic indus try".  Both Article 4.1 of the 
Anti-Dumping Agreement and Article 4.1 of the EC Basic Regulation had been drafted so as to state 
that "domestic industry" was either "total domest ic production" or "a major proportion" thereof.  
Terminologically, therefore, "domestic industry" coul d mean either "total domestic production" (the 
higher number) or "a major proportion" thereof (t he lower number).  The Panel was of course well 
aware of this important conceptual distinction, which it had set out expressly at the start of its analysis, and on which it had based its assessment.  With respect to fillets, the question which the 
Panel had addressed was whether or not the EC was right, in this case, to exclude the EC filleting-
only firms from the higher number: i.e. before even getting to any consideration of the lower number.  
With respect to silents, i.e. domestic producers no t cooperating in the investigation, the Panel had 
judicially economized, whilst criticizing the EC regula tion for a lack of support or explanation.  The 
Panel had not therefore "equated" the two concepts of "domestic production" and "domestic industry".  
Furthermore, the Panel had expressly and repeated ly acknowledged the possibility that the injury 
assessment could be limited to "a major proporti on" of domestic production (as also argued by the 
EC).  While the Panel had found in favour of Norway on a number of points (predominantly of a 
factual nature), it had also found in favour of the EC on a similar number of points (predominantly of 
a legal nature).  The EC also noted that the Panel had explicitly declined to use its discretionary power 
to recommend the revocation of the measure, despite repeated Norwegian calls for the Panel to do so.  
The EC accepted the findings and recommendations of the Panel and would pay close attention to 
these when implementing the Panel Report's finding s and recommendations following its adoption by 
the DSB.  WT/DSB/M/244 
 Page 3 
 
 
  6. In closing, the EC noted that – unlike Norway – the EC had refrained from publicly 
commenting on the Panel Report prior to its circ ulation to Members, and fully respected the 
confidentiality with which reports were to be treated  prior to circulation.  The Panel had correctly 
noted that it had the discretion, but was not obliged , to recommend the revocation of a measure.  In 
this dispute, perhaps also given the relatively mi nor and more technical points on which the Panel had 
ruled in favour of Norway, the Panel had exp licitly rejected Norway's repeated calls for a 
recommendation that the measure be revoked.  
7. The representative of Hong Kong, China  said that, being a third party to these proceedings, 
Hong Kong, China wished to thank the Panel for its efforts in considering the case and preparing the 
Report.  This case raised a wide range of important  issues, and the comments and rulings of the Panel 
merited careful scrutiny and reflection.  Among th em, Hong Kong, China wished to refer to two 
particular issues, over which Hong Kong, China's view s and reading of the relevant provisions of the 
Anti-Dumping Agreement were at variance with the Pa nel's.  The first one concerned whether the use 
of sampling in injury determination was perm itted under the Anti-Dumping Agreement, and the 
second one related to the legality of excluding en bloc  non-producing exporters in sampling under 
dumping determination.  Both issues carried importa nt systemic implications, and Hong Kong, China 
was disappointed with the reasoning and the rulings of  the Panel.  In this connection, Hong Kong, 
China looked forward to opportunities for clarif ication by the Appellate Body on appropriate 
occasions. 
8. The DSB took note  of the statements and adopted  the Panel Report contained in 
WT/DS337/R. 
2. Implementation of the recommendations of the DSB 
(a) Brazil – Measures affecting imports of retreaded tyres 
 (b) Japan – Countervailing duties on dynamic random access memories from Korea   
9. The Chairman
 recalled that, in accordance with the DS U provisions, the DSB was required to 
keep under surveillance the implementation of reco mmendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Members.  In this respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  He propo sed that the two sub-items to which he had just 
referred be considered separately. 
(a) Brazil – Measures affecting imports of retreaded tyres 
10. The Chairman  recalled that, at its meeting on 17 December 2007, the DSB had adopted the 
Appellate Body Report in the case on "Brazil – Measures Affecting Imports of Retreaded Tyres" and the Panel Report on the same mater, as modified by the Appellate Body Report.  He invited Brazil to 
inform the DSB of its intentions in respect of implementation of the DSB's recommendations. 
11. The representative of Brazil
 said that, on 17 December 2007, the DSB had adopted the 
Appellate Body and the Panel Reports in the di spute "Brazil – Measures Affecting Imports of 
Retreaded Tyres (DS332)".  Brazil wished to inform  the DSB that it intended to fully implement the 
recommendations and rulings of the DSB in a manne r consistent with Brazil's obligations under the 
WTO Agreements.  Since the issuance of the Appe llate Body Report, Brazil's authorities had been 
evaluating the options available and the time frame in which such implementation could take place.  
However, owing to the complexity of the case and to the number of official agencies involved, Brazil 
anticipated that it would need a reasonable period of  time to comply with the DSB's recommendations WT/DSB/M/244 
Page 4  
 
  and rulings, in accordance with Ar ticle 21.3 of the DSU.  In this  respect, Brazil was ready to hold 
discussions with the EC on the appropriate du ration of the reasonable period of time for 
implementation. 
12. The representative of the European Communities
 said that the EC noted with satisfaction 
Brazil's statement that it intended to comply with the DSB's recommendation and ruling on Brazil's 
import ban on retreaded tyres, which had been f ound incompatible with the WTO Agreement.  The 
EC also stood ready to discuss with Brazil the question of the reasonable period of time, namely, the shortest possible time-period for achieving complia nce.  As regards Brazil's intended steps of 
implementation, the EC reiterated that it expected Brazil to lift the import ban on retreaded tyres.  
This was the fastest and the best way to do away wi th the current discrimination, the continuation of 
which the DSB's ruling did not permit.  This would also ensure that Brazil respected its Mercosur 
obligations, confirmed by binding arbitration rulings .  In these dispute settle ment proceedings, Brazil 
had strongly insisted that it absolutely needed to  comply with these obligations.  There was no reason 
for Brazil now to change its course of action, to be lie its own words and to work in the direction of 
completely stopping the importation of Mercosur retr eads.  The Appellate Body's ruling certainly did 
not require any such thing.  Brazil should also consider that stopping the importation of Mercosur 
retreads as well as the importation of casings would destroy worthy industries engaged in the retreading of tyres in Brazil and other Mercosur c ountries, and would further reduce the overall rate of 
retreading in the world.  The EC stressed again that it was strongly in favour of environmental and public health protection.  It would, therefore, by  no means want to discourage Brazil from doing more 
for the protection of its citizens against diseases spre ad by mosquitoes that breed in abandoned waste 
tyres.  For that purpose, however, much better, more effective measures were available as compared 
with the selective targeting of certain imported pr oducts that did not actually contribute to the 
problem.   
13. The DSB took note
 of the statements, and of the inform ation provided by Brazil regarding its 
intentions in respect of implementation of the DSB's recommendations. 
(b) Japan – Countervailing duties on dynamic random access memories from Korea 
14. The Chairman  recalled that, at its meeting on 17 December 2007, the DSB had adopted the 
Appellate Body Report in the case on "Japan – Countervailing Duties on Dynamic Random Access 
Memories from Korea" and the Panel Report on the sa me matter, as modified by the Appellate Body 
Report.  He invited Japan to inform the DSB of its  intentions in respect of implementation of the 
DSB's recommendations. 
15. The representative of Japan  said that at the meeting on 17 December 2007, the DSB had 
adopted the recommendations and rulings in this disput e.  As stated at that DSB meeting, Japan was 
not entirely satisfied with the findings and conclusi ons of the Appellate Body's Report and the Panel 
Report.  However, pursuant to Article 21.3 of th e DSU, Japan wished to inform the DSB of its 
intention to implement the recommendations and ru lings of the DSB in this dispute in a manner 
consistent with its WTO obligations.  Japan was currently examining possible courses of actions.  
Japan would need a reasonable period of time to bring the measure into conformity with its obligations under the WTO Agreement, in accordan ce with the recommendations and rulings of the 
DSB.  Japan stood ready to consult with Korea in or der to reach an agreement with regard to such a 
period, in accordance with Article 21.3(b) of the DSU. 
16. The representative of Korea
 said that his country thanked Japan for its statement and 
welcomed the opportunity to comment upon the steps required to implement the Report of the Panel, 
as modified by the Appellate Body, in the dis pute concerning Japan's imposition of countervailing 
duties on imports of dynamic random access memories (or "DRAMS") from Korea.  As Korea had explained in December 2007 when it had presented the Reports for adoption by the DSB, the adoption  WT/DSB/M/244 
 Page 5 
 
 
  of the Reports had eliminated any basis for the continuation of countervailing duties on DRAMS 
exported by Hynix Semiconductor, Inc.  The Panel and the Appellate Body had found that neither the 
October 2001 or December 2002 restructurings ju stified the imposition of countervailing duties.  
Korea noted that, under Article 21.3 of the DSU,  Members' compliance with recommendations and 
rulings of the DSB should be immediate, whenever "practicable".1  Given that the rulings of the Panel 
and the Appellate Body had confirmed the absence of fundamental legal bases, implementation of 
these rulings did not require any further investigati on or evaluation of factual information by Japan.  
All it required was a  ministerial step of publis hing a notice rescinding the countervailing measures 
that Japan improperly imposed.  In these circum stances, Korea called upon Japan to immediately 
rescind the countervailing measures imposed on im ports of DRAMS from Korea.  The Korean 
exporter had been subjected to unlawful countervailin g duties for almost two years now as a result of 
Japan's flawed decision.  There was no justifica tion for allowing those duties to continue even one 
more day.  Korea would welcome any opportunity to discuss these matters with Japan without delay. 
17. The DSB took note  of the statements, and of the inform ation provided by Japan regarding its 
intentions in respect of implementation of the DSB's recommendations. 
__________ 
 
                                                      
1 See  Article 21.3 of the DSU: "If it is impracticable to comply immediately with the recommendations 
and rulings, the Member concerned shall have a r easonable period of time in which to do so."