WORLD TRADE  
ORGANIZATION  RESTRICTED 
WT/DSB/M/303 
11 November 2011 
 (11-5806) 
Dispute Settlement Body 
27 September 2011  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard 
on 27 September 2011 
 
Chairperson:  Mrs. Elin Østebø Johansen (Norway) 
 
  Prior to the adoption of the proposed Agenda , the item concerning the Panel Reports in the 
case on:  "Philippines – Taxes on Distilled Spirits " (DS396, DS403) was removed from the proposed 
Agenda following the Philippines' decision to appeal the Reports.  Also prior to the adoption of the 
proposed Agenda, the representative of Korea informed  the DSB that, with regard to item 4 of the 
proposed Agenda, his country did not wish to make its  panel request at the present meeting in order to 
continue its consultations with the United States.   In light of Korea's request, the Chairperson 
proposed that item 4 of the proposed Agenda, concer ning the panel request pertaining to the dispute 
on:  "United States – Anti-Dumping Measures on Corrosion-Resistant Carbon Steel Flat Products 
from Korea" (DS420), be removed from the proposed Agenda, as requested by Korea.    The Agenda was adopted as amended. 
 
 
Subjects discussed: Page 
 
1.  Surveillance of implementation of recommendations adopted by the DSB ......................... 2  
(a)  United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States ............................................................................................................. ............ 3 
(b)  United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by the Unite d States ................................................................................... 6 
(c)  United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States ............................................................................................................. ............ 6 
(d)  European Communities1 – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union ......................................................................... 7  
(e)  United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States ............................................................................................................. ............ 7 
(f)  United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States ................................................................................................... ....... 8 
                                                      
1 On 1 December 2009, the Treaty of Lisbon amendi ng the Treaty on Europe an Union and the Treaty 
establishing the European Community (done at Lisbon, 13 December 2007) entered into force.  On 
29 November 2009, the WTO received a verbal note (WT/L/779) from the Council of the European Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 
1 December 2009, the European Union replaces and succeeds the European Community. WT/DSB/M/303 
Page 2  
 
  (g)  United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States .......................................................................... 9  
(h)  China – Measures affecting trading righ ts and distribution services for certain 
publications and audiovisual entertainment products:  Status report by China  ......................... 9  
2.  United States – Anti-dumping measures on certain shrimp from Viet Nam ..................... 10  
(a)  Implementation of the recommendations of the DSB ............................................................... 10  
3.  United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB .......................................... 10  
(a)  Statements by the European Union and Japan .......................................................................... 10  
4.  United States – Measures affecting the pr oduction and sale of clove cigarettes ............... 11  
(a)  Joint request by Indonesia and the United States for a decision by the DSB ........................... 11  
5.  Proposed nomination for the indicative list of governmental and 
non-governmental panelists ................................................................................................... 12 
6.  Statement by the Chairperson regarding  the process for selecting new members 
of the Appella te Body ......................................................................................................... ..... 12 
 
 
1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appr opriations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.106) 
 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.106) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.81) 
 
(d) European Communities – Measures affecting the approval and marketing of  biotech products:  
Status report by the European Union (WT/DS291/37/Add.44) 
 (e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.24) 
 
(f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.21) 
 (g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.15) 
 (h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.8) 
  
1. The Chairperson recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establis hment of the reasonable 
period of time and shall remain on the DSB's Agenda  until the issue was resolv ed.  She proposed that 
the eight sub-items under Agenda item 1 be considered separately.   WT/DSB/M/303 
 Page 3 
 
 
  (a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.106) 
2. The Chairperson drew attention to documen t WT/DS176/11/Add.106, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US Section 211 Om nibus Appropriations Act of 1998. 
3. The representative of the United States said that, in relation to the adoption of the Agenda, the 
United States welcomed Korea's decision to with draw its panel request from the Agenda of the 
present meeting.  The United States considered that Korea had withdrawn its panel request as of right, 
and that Korea's withdrawal of its proposed item wa s not subject to a consensus decision by the DSB.  
4. With regard to Agenda item 1(a), the United States stated that it had provided a status report 
in this dispute on 15 September 2011, in accordance with Article 21.6 of the DSU.  Legislative 
proposals had been introduced in the current  112th Congress that would implement the 
recommendations and rulings of the DSB.  The US  Administration would continue to work on 
solutions to implement the DSB's recommendations and rulings. 
5. The representative of the European Union said that the EU thanked the United States for its 
status report and hoped that the US authorities woul d very soon take steps towards implementing the 
DSB's ruling and resolve this matter. 
6. The representative of Cuba said that, since 2002 , his country had voiced its concerns about 
the application by the United States of Section 211, which violated the DSB's decision that ruled that 
Section 211 was inconsistent with the TRIPS Agreement.  This situation undermined the effective 
functioning of the dispute settlement mechanis m, generated mistrust, encouraged further 
non-compliance and undermined the credibility of the mu ltilateral trading system.  Cuba regretted that 
the most recent US status report showed, once again, the US reluctance to assume its legal 
responsibility to implement the DSB's rulings.  On previous occasions, Cuba had cautioned that US 
non-compliance, which went unpunished, would give rise to new violations, and now Cuba was in a 
position to confirm that this was the case.  New and increasingly serious developments were being 
reported, which pointed out to further misappropria tion in the United States of Cuban trademarks of 
great international prestige and ignored the fact that  those trademarks were protected by international 
conventions and treaties, incl uding under the WTO Agreements. 
7. At the present meeting, Cuba wished to draw Me mbers' attention to three judgments made by 
the US courts.  Two of those judgments were a di rect consequence of Section 211 and demonstrated 
the need to repeal Section 211.  Cuba wished to  recall that, at the April 2011 DSB meeting, it had 
condemned the ruling by a panel of three judges of the Federal Court of Appeals for the District of 
Columbia Circuit.  That ruling had upheld the US Office of Foreign Assets Control's ("OFAC") unjust refusal to allow the renewal of the registration of  the Havana Club trademark by the Cuban company 
Cubaexport, which had owned the right since 1976.  Five months later, on 31 August 2011, that same 
panel had rejected the petition f iled by Cubaexport's lawyers for a review of the ruling issued in 
March 2011, which disregarded the most fundamental principles of both international and intellectual 
property law.  The panel had also denied the review of that ruling by the full Court:  i.e. by all the 
judges on the bench, thus further restrict ing the company's opportunities for defence. 
8. The US courts were continuing to uphold the OFAC's interpretation of Section 211, as OFAC 
had consistently refused to grant Cubaexport a licen ce to renew the registration of the Havana Club 
trademark with the US Patent and Trademark Office .  Moreover, on 4 August 2011, the Federal Court 
of Appeals for the Third Circuit, based in Philadel phia, had rejected the appeal lodged by the French 
company Pernod Ricard on the grounds of misuse  by the Bacardi company of the Havana Club 
trademark stamped on bottles of rum that was not of  Cuban origin.  Thus, a ruling by the Delaware WT/DSB/M/303 
Page 4  
 
  Federal District Court had been confirmed an d continued to shield the unlawful act of 
misappropriation of the trademark by Bacardi, thus a ffecting the prestige of one of Cuba's leading 
products.  These decisions were part of the US Government's policy of hostility towards Cuba, disregarding the US international obligations a nd exacerbating the illegitimate and unilateral measures 
applied under the economic, commercial and fina ncial embargo against Cuba, which had been 
systematically rejected by almost all of the in ternational community in a succession of UN General 
Assembly resolutions.  In the past few days, the Cuban Foreign Ministry had, once again, publicly 
denounced this unjust embargo and, in October 2011 , the United Nations was due to vote on the 2011 
report on the General Assembly resolution A/ RES/65/6 ("Necessity of ending the economic, 
commercial and financial embargo imposed by the Un ited States of America against Cuba").  That 
report stated that, as of December  2010, the direct economic damage to the Cuban people as a result 
of the embargo had amounted, at current prices,  to over US$104 billion.  The enactment and 
enforcement of Section 211 was intended to cause fu rther damage to Cuba and to affect one of its 
most renowned trademarks worldwide.  Therefore,  WTO Members must ensure that any situations 
with no compliance for a long time be avoided and th at any such situations should not prevent the 
DSB from enforcing its rulings.  This was particul arly important in light of the upcoming Eighth 
Ministerial Conference, in the context of which it wa s still not certain as to what could be achieved, in 
particular with regard to a positive outcome for c ountries' development.  Cuba, once again, urged the 
United States to repeal Section 211 and to comp ly with the DSB's rulings so as to preserve the 
credibility and existence of the multilateral trading system. 
9. The representative of China said that her country  thanked the United States for its status 
report and its statement made at the present meeting.   China regretted that the United States had, once 
again, reported non-compliance.  This prolonged situation of non-compliance was highly incompatible with the prompt and effective im plementation required under the DSU provisions, in 
particular since the interests of a developing-coun try Member were affected.  China, therefore, 
supported Cuba and urged the United States to im plement the DSB's rulings and recommendations 
without any further delay. 
10. The representative of Zimbabwe said that his coun try thanked the United States for its status 
report and wished to be associated with the statem ents made by previous speakers.  Zimbabwe called 
upon the United States to comply with the DSB's rulings and recommendations by bringing the inconsistent measures into confor mity with its obligations under the TRIPS Agreement.  In that 
regard, Zimbabwe urged the United States to take  effective measures immediately and to repeal 
Section 211. 
11. The representative of the Bolivarian Republic of  Venezuela said that her country supported 
Cuba regarding the dispute on Section 211.  Venezuel a noted that the US status report was a repetition 
of the previous reports submitted by the United States.   In Venezuela's view, this amounted to "action 
without results".  The United States had been saying  the same thing for more than nine years.  Not 
only was Section 211 contrary to the TRIPS Agre ement and inconsistent with the principles of 
national and most-favoured-nation-treatment but, wo rse yet, it harmed Cuba and undermined the 
credibility and effectiveness of the DSB.  Venezu ela continued to await some positive signals from 
the United States that it would comply with th e Appellate Body's ruling, as non-compliance only 
weakened the multilateral trading system.  As it had already done on previous occasions, Venezuela 
urged the United States to put an end to the economic, commercial and financial embargo policy 
against Cuba and to comply with the DSB's recommendations. 
12. The representative of Ecuador said that his country supported Cuba's statement and 
underlined, once again, that Article 21 of the DSU re ferred specifically to prompt compliance with the 
DSB's recommendations and rulings, in particular with  regard to matters affecting the interests of 
developing-country Members.  Ecuador regretted that the United Stat es continued to be in violation of  WT/DSB/M/303 
 Page 5 
 
 
  that provision.  Ecuador, therefore, urged the Unite d States to bring its legislation into compliance 
with the DSB's rulings by fully repealing Section 211 as soon as possible. 
13. The representative of Viet Nam said that her count ry thanked the United States for its status 
report and called upon the United States to fully a nd promptly implement the DSB's recommendations 
and rulings in order to ensure that th e credibility of the system was preserved. 
14. The representative of the Dominican Republic said that his country thanked the United States 
for its status report on its implementation of  the DSB's recommendations and rulings of 
February 2003, regarding the non-compatibility of Section 211 with Article 42 of the TRIPS 
Agreement.  The Dominican Republic recognized th at, due to the separation of powers in the US 
system, the United States needed time to repeal Section 211.  Th e Dominican Republic, once again, 
urged the United States to step up its domestic pr ocess in order to fully comply with the DSB's 
recommendations, in particular since this long-te rm non-compliance undermined the credibility of the 
dispute settlement system.  
15. The representative of the Plurinational State of Bolivia said that her country had, once again, 
noted that the US status report was a repetition of previous reports submitted by the United States, and 
that there was no political will to resolve this l ong-standing dispute.  As it had done on previous 
occasions, Bolivia wished to reiterate its call upon the United States to fully resolve this dispute.  As 
Bolivia had repeatedly stated, this non-complian ce undermined the credibility and integrity of the 
multilateral trading system and, due to its systemic implications, caused injury to one WTO Member.  
Bolivia, once again, urged the United States to comply  with the DSB's rulings and to take steps to 
remove the restrictions imposed under Section 211.   Finally, she said that Bolivia supported Cuba's 
concerns regarding this matter.  
16. The representative of Paraguay said that his c ountry supported the concerns raised by Cuba 
and other speakers about the continued delay in implementing the DSB's recommendations and 
rulings.  In Paraguay's view, such a situation of non-compliance raised systemic concerns.  Paraguay, 
therefore, considered that this matter shoul d be taken up in the context of the ongoing DSU 
negotiations.  Paraguay urged the United States to  comply with the DSB's ruling by repealing 
Section 211. 
17. The representative of Mexico said that his count ry thanked the United States for its status 
report.  Mexico urged the parties to solve this  dispute through the legal remedies provided under the 
DSU provisions.  Mexico noted that, if a dispute wa s not resolved, any Member could initiate its own 
dispute if it considered that it was affected by the fa ilure of another Member to resolve a dispute or to 
comply with the DSB's recommendations.  Mexico also noted that the discussion under this Agenda 
item could provide useful input for the ongoing discussions carried out in the context of the DSU negotiations, in particular with regard to effective compliance. 
18. The representative of Argentina said that his c ountry thanked the United States for its status 
report and noted that this report was similar to the previous status reports submitted the United States.  
Argentina, once again, supported the statements  made by previous speakers who had expressed 
concern about systemic implications resulting from th e non-compliance in this dispute.  In Argentina's 
view, both parties to the dispute had the responsibility to seek a solution to this dispute.  
19. The representative of Brazil said that his country thanked the United States for its status 
report and wished to express its concern about the non-compliance with th e DSB's recommendations.  
Brazil hoped that the United States would soon implement the DSB's recommendations. 
20. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. WT/DSB/M/303 
Page 6  
 
  (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.106) 
21. The Chairperson drew attention to documen t WT/DS184/15/Add.106, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
22. The representative of the United States said that  his country had provided a status report in 
this dispute on 15 September 2011, in accordan ce with Article 21.6 of the DSU.  As of 
November 2002, the US authorities had addressed the DSB's recommendations and rulings with 
respect to the calculation of anti-dumping margin s in the hot-rolled steel anti-dumping duty 
investigation at issue in this dispute.  With r espect to the recommendations and rulings of the DSB 
that had not already been addressed by the US auth orities, the US Administration would work with 
the US Congress with respect to appropriate statutory measures that would resolve this matter. 
23. The representative of Japan said that his country  thanked the United States for its statement 
and its most recent status report.  Japan took note  of the US report that the United States had taken 
certain measures to implement part of the DSB' s recommendations in November 2002.  Japan hoped 
that the United States would soon be in a position to report to the DSB on more tangible progress with 
respect to the implementation of the remaining part  of the DSB's recommendations.  Full and prompt 
implementation of the DSB's recommendations and ru lings was "essential to the effective functioning 
of the WTO and the maintenance of a proper balance of the rights and obligations of Members".2  
Japan called on the United States to fully implement the DSB's recommendations in this long-standing 
dispute without further delay. 
24. 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.81) 
25. The Chairperson drew attention to documen t WT/DS160/24/Add.81, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning Section 110(5)  of the US Copyright Act. 
26. The representative of the United States said that  his country had provided a status report in 
this dispute on 15 September 2011, in accordance with Article 21.6 of the DSU.  The US 
Administration would continue to confer with the EU, and to work closely with the US Congress, in order to reach a mutually satisfactory resolution of this matter. 
27. The representative of the European Union said th at the EU had taken note of, and thanked the 
United States for, its status report.  The EU rema ined keen to work with the US authorities towards 
the complete resolution of this case.  
28. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
                                                      
2 Article 3.3 of the DSU.  WT/DSB/M/303 
 Page 7 
 
 
  (d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.44) 
29. The Chairperson drew attention to documen t WT/DS291/37/Add.44, which contained the 
status report by the European Union on progress in the implementation of the DSB's 
recommendations in the case concerning its measures a ffecting the approval and marketing of biotech 
products. 
30. The representative of the European Union said th at, as had been mentioned at the previous 
DSB meeting, the EU welcomed the continuation of  the technical dialogue with the United States.  
The dialogue gave both parties an opportunity to discuss directly issues of their concern regarding biotechnology.  The EU hoped that this construc tive approach, based on dialogue, would allow the 
parties to leave litigation aside.  He said that EU  and US officials were scheduled to meet on 
27 September in Brussels for further discussions.  Once again, the EU noted that its regulatory 
procedures on biotech products continued to work as foreseen in the legislation.  The number of 
GMOs authorized since the date of establishment of the Panel was thirty-four.  Only in 2010, 11 applications had been authorized, more than doubl e the number of authorizations in 2009, including 
one authorization for cultivation.  On 17 J une 2011, the Commission had adopted two more 
authorization decisions
3, together with the decision on the renewa l of the authorization of maize 1507.  
Progress had also been made on other applications for authorization.  Four more draft applications had 
been voted in the Standing Committee in February 2011.4  The Council would examine those 
applications in the coming weeks.  In April and July 2011, EFSA had adopted other scientific 
opinions on three GM soybean.5  On 7 September 2011, EFSA had a dopted a scientific opinion on the 
renewal of an authorization (MON531). 
31. The representative of the United States said that  his country thanked the EU for its status 
report and its statement made at the present meeting.   The United States remained concerned with 
delays in the EU's approval system for biotech products, and the resulting effects on trade.  The 
United States was likewise concerned with bans a dopted by EU member States on biotech products 
that had been approved at the EU level.  As noted  by the EU, the US delegation would shortly meet 
with EU officials in Brussels to  discuss these matters and relate d issues.  The United States looked 
forward to a constructive discussion with the EU. 
32. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.24) 
33. The Chairperson drew attention to documen t WT/DS322/36/Add.24, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US measures relating to zeroing and sunset reviews. 
34. The representative of the United States said that  his country had provided a status report in 
this dispute on 15 September 2011, in accordance with  Article 21.6 of the DSU.  In December 2010, 
the Arbitrator in the proceeding under Article 22.6 of the DSU in this dispute had issued a 
communication stating that it had accepted a joint request  by the parties to the dispute to suspend its 
work.  On 13 September 2011, in response to a jo int request of the United States and Japan, the 
                                                      
3 Maize MON89034xMON88017 and cotton GHB614. 
4 MIR604×GA21 maize, BT11×MIR604 maize, Bt11×MIR604×GA21 maize, 281-24-236/3006-210-
23 cotton. 
5 A5547-127, 356043 and MON87701. WT/DSB/M/303 
Page 8  
 
  Arbitrator had issued a communication stating that it had decided to continue the suspension.  The 
communication of the Arbitrator had been circulat ed to the DSB in document WT/DS322/39.  As the 
United States had explained in its status report,  in December 2010 the US Department of Commerce 
had announced a proposal to change the calculati on of weighted-average dumping margins and 
assessment rates in certain anti-dumping proceedings .  At the present time, the US Department of 
Commerce was continuing with its ongoing work on the December proposal. 
35. The representative of Japan said that his country  thanked the United States for its statement 
and its most recent status report.  Japan took note of the report that "the United States is continuing its 
ongoing work on the December proposal" by the US Depa rtment of Commerce.  As had been stated at 
previous DSB meetings, while Japan took the US im plementation efforts as a positive step forward, it 
continued to seek prompt and full compliance by the United States with respect to all of the measures 
at issue that were subject to the DSB's recommenda tions in this dispute.  As the United States had 
explained, upon request by the parties, the Article 22.6 arbitrator "decided to continue the suspension 
of its work"6 until 8 November 2011.  Japan called on the Unite d States to fully comply by this date.  
Japan looked forward to a continued dialogue with  the United States and would closely monitor any 
developments on this matter.  Japan reserved its right under the DSU to take appropriate action, if 
necessary. 
36. The representative of China said that her country  thanked the United States for its status 
report and its statement.  China welcomed th e steps taken by the United States towards the 
implementation of the DSB's rulings and recommenda tions on "zeroing" matters.  However, China's 
concerns about how the United States would im plement the DSB's decision on "zeroing" matters 
remained high.  China would follow the US implem entation steps closely and urged the United States 
to take actions to fully comply with the DSB's rulings and recommendations without further delay. 
37. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.21) 
38. The Chairperson drew attention to documen t WT/DS350/18/Add.21, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning the existence and application of zeroing methodology by the United States. 
39. The representative of the United States said th at his country had addressed the issue of 
compliance with the findings in this dispute in the status report provided on 15 September 2011, and 
earlier in the discussion under Agenda item 1(e) of  the present meeting.  The United States referred 
Members to that report and that statement for further details. 
40. The representative of the European Union said that the EU thanked the United States for its 
most recent status report.  Since the United Stat es had not reported on any steps taken to address the 
concerns raised by the EU in the DSB, the EU re ferred Members to its statements made at the DSB 
meetings in January and February 2011.  The EU re mained ready to engage with the United States in 
discussions, under the WTO and bilaterally, in order to  ensure that its concerns raised in the DSB 
were addressed by the United States.  The EU looked forward to further information from the 
United States on its intentions. 
41. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
                                                      
6 WT/DS322/39.  WT/DSB/M/303 
 Page 9 
 
 
  (g) United States – Laws, regul ations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.15) 
42. The Chairperson drew attention to documen t WT/DS294/38/Add.15, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US laws, regulations and me thodology for calculating dumping margins. 
43. The representative of the United States said th at his country had addressed the issue of 
compliance with the findings in this dispute in the status report provided on 15 September 2011, and 
earlier in the discussion under Agenda item 1(e) of  the present meeting.  The United States referred 
Members to that report and that statement for furthe r details.  In September 2010, the Arbitrator in the 
proceeding under Article 22.6 of the DSU in this di spute had issued a communication stating that it 
had accepted a joint request by the parties to the di spute to suspend the work.  On 16 September 2011, 
in response to a joint request of the United St ates and the EU, the Arbitrator had issued a 
communication stating that it had decided to continue the suspension.  The communication of the Arbitrator had been circulated to the DSB in document WT/DS294/40. 
44. The representative of the European Union said that the EU thanked the United States for its 
status report and referred Members to its statement under Agenda item 1(f). 
45. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.8) 
46. The Chairperson drew attention to document WT/DS363/17/Add.8, which contained the 
status report by China on progress in the implemen tation of the DSB's recommendations in the case 
concerning China's measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products. 
47. The representative of China said that her country  had provided its status report in this dispute 
on 14 September 2011, in accordance with Article 21.6 of the DSU.  China had made tremendous 
efforts to implement the DSB's rulings and re commendations and had, thus far, completed 
amendments to most measures at issue.  China be lieved that this matter would be properly resolved 
through joint efforts and mutual cooperation by relevant parties. 
48. The representative of the United States said that his country thanked China for its status report 
and its statement made at the present meeting.  As it had previously noted, the United States remained 
concerned by the lack of progress by China in br inging its measures relating to films for theatrical 
release into compliance with the DSB's recommenda tions and rulings.  The United States also had 
significant concerns about the incomplete progress re lative to China's measures relating to audiovisual 
home entertainment products, reading materials,  and sound recordings.  The United States was 
conferring with China on these matters and hoped that China would take steps to resolve this matter 
soon. 
49. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. WT/DSB/M/303 
Page 10  
 
  2. United States – Anti-dumping measures on certain shrimp from Viet Nam 
(a) Implementation of the recommendations of the DSB 
50. The Chairperson recalled that in accordance w ith the DSU provisions, the DSB was required 
to keep under surveillance the implementation of r ecommendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Members.  In that respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  She recal led that, at its meeting on 2 September 2011, the 
DSB had adopted the Panel Report pertaining to the dispute on:  "United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam".  She i nvited the United States to inform the DSB of its 
intentions in respect of implementation of the DSB's recommendations. 
51. The representative of the United States said th at, as had been noted by the Chair, on 
2 September 2011, the DSB had adopted the Panel Report in the dispute:  "United States – Anti-
Dumping Measures on Certain Products from Viet Nam"  (WT/DS404/R).  At the present meeting, as 
provided in the first sentence of Article 21.3 of th e DSU, the United States wished to state that it 
intended to implement the recommendations and ruli ngs of the DSB in a manner that respected its 
WTO obligations.  The United States would need a reasonable period of time in which to implement. 
52. The representative of Viet Nam said that he r country thanked the United States for its 
statement regarding its intentions to implemen t the DSB's recommendations and rulings in this 
dispute.  Viet Nam understood that the United States would need a reasonable period of time for 
implementation.  Viet Nam was ready to discuss with the United States a reasonable period of time 
for implementation of the DSB's rulings a nd recommendations in this dispute.  
53. The DSB took note of the statements, and of the information provided by the United States 
regarding its intentions in respect of implementation of the DSB's recommendations. 
3. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Union and Japan 
54. The Chairperson said that this item was on the Agen da of the present meeting at the request of 
the European Union and Japan.  She then invited the respective representatives to speak. 
55. The representative of Japan said that FY 2011 distributions appeared to be well underway7, 
which showed that the CDSOA remained operationa l.  As US Customs and Border Protection had 
explained, "the distribution process will continue for an undetermined period".8  Japan urged the 
United States to stop the illegal distributions and rep eal the CDSOA, not just in form but in substance, 
so as to resolve this dispute.  According to Article 21.6 of the DSU, the United States was under 
obligation to provide the DSB with a status report in this dispute. 
56. The representative of the European Union said th at the EU had already informed the DSB of 
the annual adjustment in the level of duties applied by the EU in this case in a document circulated on 
12 April 2011.  At the present meeting, and as it had done many times before, the EU wished to ask 
                                                      
7 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trade/prior ity_trade/add_cvd/cont_dump/cdsoa_11/ 
8 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trad e/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml  WT/DSB/M/303 
 Page 11 
 
 
  the United States when it would effectively stop the transfer of anti-dumping and countervailing 
duties to the US industry and, hence, put an e nd to the condemned measure.  The fact that the 
United States had stopped disbursing duties collected af ter a certain point in time did not achieve full 
compliance.  Every disbursement that still took pl ace was clearly an act of non-compliance with the 
DSB's recommendations and rulings.  The EU renewe d its call on the United States to abide by its 
clear obligation under Article 21.6 of the DSU and to  submit implementation repor ts in this dispute. 
57. The representative of India said that his count ry thanked Japan and the EU for regularly 
bringing this issue before the DSB.   India shared the concerns of previous speakers and agreed that 
this issue should continue to remain under the surveillance of the DSB until full compliance was 
achieved. 
58. The representative of Canada said that his country thanked Japan and the EU for bringing this 
issue before the DSB.  Canada agreed with Japan  and the EU that the Byrd Amendment remained 
subject to the surveillance of the DSB until the United States ceased to administer it. 
59. The representative of Thailand said that her count ry thanked Japan and the EU for continuing 
to bring this matter before the DSB and supporte d the statements made by previous speakers.  
Thailand continued to urge the United States to  cease the disbursements and fully implement the 
DSB's rulings and recommendations on this matter. 
60. The representative of the United States said that, as his country had already explained at 
previous DSB meetings, the President had signed th e Deficit Reduction Act into law on 8 February 
2006.  That Act included a provision repealing the Continued Dumping and Subsidy Offset Act of 
2000.  Thus, the United States had taken al l actions necessary to implement the DSB's 
recommendations and rulings in these disputes.  The United States welcomed Members' recognition 
that the 2006 Deficit Reduction Act did not permit the distribution of duties collected on goods entered after 1 October 2007, some four years ago.  The United States, therefore, did not understand 
the purpose for which the EU and Japan had inscribed this item at the present meeting.  With respect 
to comments regarding further status reports in this  matter, as it had already explained 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 St ates had taken all actions necessary to implement the 
DSB's recommendations and rulings in these disputes. 
61. The DSB took note of the statements. 
4. United States – Measures affecting the production and sale of clove cigarettes 
(a) Joint request by Indonesia and the United St ates for a decision by the DSB (WT/DS406/5) 
62. The Chairperson drew attention to the joint communication from Indonesia and the 
United States contained in document WT/DS406/5 and invited the representative of Indonesia to 
speak. 
63. The representative of Indonesia said that his count ry appreciated the work  that had been done 
thus far regarding the dispute:  "United States – Measures Affecting the Production and Sale of Clove 
Cigarettes".  While Indonesia was interested in conc luding this dispute as swiftly as possible, it was 
also sympathetic to the workload of the Appellate Body .  In that regard, at the request of the Appellate 
Body and in consultation with the United States, I ndonesia believed that the most reasonable approach 
was to seek an extension of the deadline for the DSB to adopt th e Panel Report.  Consequently, 
Indonesia requested that the DSB adopt the draft de cision proposed jointly by the United States and 
Indonesia extending the deadline for the DSB to adopt the Panel Report in this dispute until 
20 January 2012.  WT/DSB/M/303 
Page 12  
 
  64. The representative of the United States said that  his country was joining Indonesia in asking 
that the DSB agree to provide a dditional time for adoption or appeal of the Panel Report in this 
dispute by adopting the draft decision set forth in document WT/DS406/5.  The Appellate Body had informally requested the parties to delay any appeal in this di spute until January 2012.  After 
discussions with Indonesia, the Unite d States agreed to join Indonesi a in making this request.  The 
draft decision would provide for DSB adoption of the Panel Report by negative consensus until 
20 January 2012, upon request by a party to the dispute.  The United States also expected that the greater flexibility in scheduling any appeal would en able the Appellate Body to complete its work 
within the time periods set out in Article 17.5 of the DSU.  The United States would appreciate the 
DSB's support for the draft decision. 
65. The representative of Japan said that his country wished to refer to its statement made at the 
21 April 2011 DSB meeting where the DSB had taken a similar decision with respect to the dispute:  
"United States – Anti-Dumping Administrative Reviews and Other Measures Relating to Imports of 
Certain Orange Juice from Brazil".9  Japan wished to emphasize that:  (i) the decision would give 
greater transparency and legal certainty as to the a doption and appeal of the panel reports subject to 
the decision;  and that (ii) the circumstances that  the DSB would address by the decision at the present 
meeting were exceptional in nature and a decisi on of this kind must remain as an exception. 
66. The DSB took note of the statements. 
67. The Chairperson proposed that:  " the DSB ag ree that, upon a request by Indonesia or the 
United States, the DSB shall, no later than 20 Janua ry 2012, adopt the Report of the Panel in the 
dispute :  United States – Measures Affecting the  Production and Sale of Clove Cigarettes , contained 
in document WT/DS406/R, unless (i) the DSB decides by consensus not to do so or (ii) either party to 
the dispute notifies the DSB of its decision to appeal pursuant to Article 16.4 of the DSU". 
68. The DSB so agreed. 
5. Proposed nomination for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/461) 
69. The Chairperson drew attention to document WT/DSB/W/461, which c ontained an additional 
name proposed for inclusion on the indicative list of  governmental and non-governmental panelists, in 
accordance with Article 8.4 of the DSU.  She propos ed that the DSB approve the name contained in 
document WT/DSB/W/461. 
70. The DSB so agreed. 
6. Statement by the Chairperson regarding the process for selecting new members of the 
Appellate Body 
71. The Chairperson, speaking under "Other Busin ess", said that, as announced at the outset of 
the present meeting, she wished to make a statem ent concerning the process for the appointment of 
Appellate Body members.  In that regard, she re ferred to a fax, dated 14 September 2011, which had 
been sent out to delegations outlining the arrangement s concerning this matter.  She recalled that, as 
had been foreshadowed, the Selection Committee w as in the process of interviewing the candidates 
proposed for the Appellate Body.  Two interviews  had taken place the previous day and two more 
would take place that afternoon.  Since the ca ndidates were currently in town, she reminded 
delegations that, in accordance with past practice, delegations wishing to meet with candidates were 
invited to contact directly the respective missions of India, Pakistan and the United States.  With 
                                                      
9 WT/DSB/M/295, paras.81-83.  WT/DSB/M/303 
 Page 13 
 
 
  regard to the process for consultations with inter ested delegations who would wish to express their 
views on the candidates to the Selection Commi ttee, she said that the arrangements had been 
announced by fax.  She recalled that those cons ultations would take place on 31 October, 1 and 
2 November 2011 in Room X.  She said that some de legations had already contacted the Secretariat to 
make appointments.  Those delegati ons who still wished to do so were  invited to contact the Council 
and TNC Division.  Alternatively,  delegations could send their comments in writing addressed to her, 
in her capacity as Chair of the DSB, in care of  the Council and TNC Division, no later than 
31 October 2011.  After completing its consulta tion process with delegations, the Selection 
Committee would meet for final deliberations in orde r to arrive at a consensus decision regarding its 
recommendations to fill the two positions in the Appe llate Body.  As had been agreed by the DSB in 
May 2011, recommendations should be made no late r than 10 November 2011, so that a decision on 
this matter could be taken by the DSB at its meeting on 21 November 2011.  
72. The DSB took note of the statement. 
__________