RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/284 
27 July 2010 
 (10-4011) 
Dispute Settlement Body 
22 June 2010  
 
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 22 June 2010  
 
Chairman:  Mr. Yonov Frederick Agah (Nigeria) 
  
Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................5  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........6  
(d) European Communities1 – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union .........................................................................6  
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States .............................................................................................................. ...........7  
(f) United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States.................................................................................................... ......8  
(g) United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing"):  Status repor t by the Unite d States..........................................................................8  
2. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ............................................9  
(a) Statements by the European Union and Japan ............................................................................9  
3. European Communities1 – Export subsidies on sugar.........................................................10  
(a) Statements by Australia, Brazil and Thailand...........................................................................10  
                                                 
1 On 1 December 2009, the Treaty of Lisbon ame nding the Treaty on European Union and the Treaty 
establishing the European Community (done at Lisb on, 13 December 2007) en tered 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/284 
Page 2  
 
  4.
 Korea – Anti-dumping duties on imports of certain paper from Indonesia......................11  
(a) Statement by Indonesia......................................................................................................... ....11  
5. United States – Measures affecting the pr oduction and sale of clove cigarettes ...............12  
(a) Request for the establishment of a panel by Indonesia.............................................................12  
6. Proposed nominations for the indicative list of governmental and 
non-governmental panelists ...................................................................................................13  
7. Proposed amendments to the Working Procedures for Appellate Review........................14  
(a) Statement by the Chairman...................................................................................................... .14 
 
 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.91) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.91) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.66) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.29) 
 (e) United States – Measures relating to zeroi ng and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.9) 
 
(f) United States – Continued existence and app lication of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.6) 
 (g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38) 
 
 
1. The Chairman
 recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the DSB's recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months fo llowing the date of establishment of the reasonable 
period of time and shall remain on the DSB' s Agenda until the issu e was resolved.   
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.91) 
2. The Chairman
 drew attention to document WT/DS176/ 11/Add.91, 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 10 June 2010, in accordance with Ar ticle 21.6 of the DSU.  As had been noted, a 
number of legislative proposals that would implem ent the DSB's recommendations and rulings in this 
dispute had been introduced in the First Session of the current (111th) Congress.  The Second Session  WT/DSB/M/284 
 Page 3 
 
 
  of the 111th Congress had begun in January 2010.  Th e Committee on the Judiciary of the House of 
Representatives had held a hearing on certain of t hose proposals on 3 March 2010.  In addition, the 
US administration was working with Congress to im plement the DSB's recommendations and rulings. 
4. The representative of the European Union  noted that, at the present meeting, the United States 
was presenting its ninety-second status report pertaini ng to this dispute.  The EU hoped that the US 
authorities would take steps to finally implem ent the DSB's ruling and resolve this matter. 
5. The representative of Cuba  said that the United States yet had to provide the DSB with any 
new information.  Cuba recalled that at the May DSB meeting the United States had acknowledged, in 
its brief statement, that efforts to resolve this di spute had failed to produce results.  The United States 
could perhaps explain what those efforts had been to  date.  It could no longer keep giving excuses and 
avoid compliance with its obligations.  What was at  stake was the credibility of one of the countries – 
if not the country – that had the greatest interest in the smooth functioning of intellectual property regulations and the WTO dispute settlement system.  Section 211 prohibited, in certain instances, the 
registration and/or renewal of Cuba n trademarks.  This was contrary to the principles of national and 
most-favoured-nation treatment.  Article XVI:4 of th e Marrakesh Agreement was very clear:  each 
Member shall ensure the conformity of its laws, regulations and administrative procedures with its 
obligations, as provided in the Agreements.  What had happened in this case was simply undermining 
the confidence that Members had in the system .  Unfortunately, the WTO Director-General's 
statement made in 2009 to the effect that "all the political muscle-flexing and grandiloquence is 
discarded at the door once the case enters the WTO" had no meaning.  This was a dispute in which 
"might had made right" since the delay in findi ng a solution was closely linked to the economic, 
commercial and financial embargo imposed by Cuba since 1962.  
6. In 2010, in connection with the celebration of World Intellectual Property Day, the US Trade 
Representative had dwelt on the importance of prop er protection of intellectual property for the 
workers and companies of his country.  He had noted  that one of the trade policy tools that could 
contribute to this protection was the right to f ile complaints before the WTO when intellectual 
property rights were infringed.  In this regard , Cuba noted that perhaps the United States should 
review the disputes in which compliance was still pending and in which the United States was the 
infringing party.  The United States would do well by first respecting the rules, and then proposing 
measures to ensure that its rights were respected.  Wh at would happen if one de liberately started using 
US trademarks in violation of their registration and rights of use?  On what grounds the United States 
could demand compliance if it was infringing the trad emarks of other parties.  Although Cuba could 
no longer talk of "prompt compliance" – since in th is case the ruling had been issued more than eight 
years ago – it must demand, once again, that the Un ited States and the EU act urgently to settle this 
dispute.  In the current context – with the pro liferation of TRIPS PLUS agreements and with the 
parties to this case insisting in all internati onal forums that there were serious piracy and 
counterfeiting problems – nothing could justify this  legislative aberration, which favoured acts 
contrary to the laws of inte llectual property and competition. 
7. The representative of China
 said that her country thanked the United States for its status 
report.  China regretted that the status report simply confirmed the continuation of non-compliance 
after more than eight years since the adoption by th e DSB of the reports pertaining to this dispute.  
China believed that the situation of prolonged non-co mpliance was not in line with the principle of 
prompt implementation, as provided for in the DSU provisions.  In addition, it was highly 
inappropriate for a developed-country Member to  maintain such prolonged non-compliance in the 
cases that involved the interests of developing-count ry Members.  China strongly supported Cuba and 
urged the United States to implement the DSB's decision as soon as possible.  
8. The representative of India  said that his country thanked the United States for its status report 
and its statement.  India again noted that there was no substantive change in the situation, as had been WT/DSB/M/284 
Page 4  
 
  communicated on previous occasions.  Unfortunate ly, the US status report only confirmed the 
continuation of non-compliance and India felt compelled,  yet again, to stress that the principle of 
prompt compliance was missing in this dispute.  India was concerned that this situation of non-
compliance undermined the credibility and confid ence that Members reposed in the WTO dispute 
settlement system.  India, therefore, urged the United States to fully implement the DSB's 
recommendations in this dispute without further delay. 
9. The representative of the Bolivarian Republic of Venezuela
 said that, once again, her 
delegation wished to make a statement under the Agenda item on surveillan ce of implementation of 
the DSB's recommendations in the case concerning US Section 211, in order to express the support for the Cuban Government and people.  The most recent US status report of 11 June 2010, contained 
in document WT/DS176/11/Add.91, stated, once again, in the last paragraph that "[t]he 
US administration will continue to work with the US Congress with respect to appropriate statutory 
measures that would resolve this matter".  This was clearly a repetition of previous status reports.  As 
Venezuela had pointed out on numerous occasions, th is constituted "action without results", which 
ultimately kept in place legislation contrary to th e TRIPS Agreement, perpetuated inconsistency with 
the principles of national and most-favoured-nation treatment, and prolonged the harm that had been 
caused and was still being caused to Cuba, while fu rther undermining the credibility of the DSB.  
Cuba had been awaiting positive signals on the part of the United States for more than eight years 
now; i.e. in concrete terms, compliance with the Appellate Body's ruling.  WTO Members would very 
much like to see a positive development required u nder the multilateral trading system, which was 
weakened by the lack of compliance on the part of some Members.  As had already been done on 
many occasions, her country called u pon the United States to put an end to this economic, commercial 
and financial embargo policy agai nst Cuba and to respect its commitment towards the DSB by 
complying with the DSB's recommendations. 
10. The representative of Viet Nam
 said that his country thanked the United States for its status 
report and supported the statement made by Cuba.  Like previous speakers, Viet Nam urged the 
United States to bring its measures into complia nce with the DSB's rulings and recommendations as 
soon as possible.  
11. The representative of Ecuador  said that his country noted the US status report and supported 
the statement made by Cuba.  Once again, Ecuador  emphasized that Article 21 of the DSU referred 
expressly to prompt compliance with the DSB's re commendations and rulings, in particular with 
regard to matters affecting the interests of deve loping-country Members.  Ecuador noted that the 
United States closely monitored compliance by other Members with their obliga tions and, in various 
WTO Councils and Committees, it had expressed its trade and systemic concerns with respect of certain commitments undertaken by other Members.  The United States also prepared internal reports 
on other countries' alleged non-compliance with their obligations in the area of intellectual property 
rights.  In light of this, Ecuador hoped that the United States would set a good example.  Ecuador, 
once again, urged the US administration and Congr ess to continue their efforts to ensure prompt 
compliance with the DSB's recommendations and rulings  by repealing Section 211.  Finally, Ecuador, 
once again, wished to stress the need for more detailed information from the EU on the steps being 
taken to resolve this dispute. 
12. The representative of Chile
 said that his country thanked the United States for its status 
report.  Once again, Chile wished  to express its systemic concern a bout the lack of implementation in 
this dispute.  In Chile's view, in order to preserve  the multilateral trading system, and in particular the 
dispute settlement system, Members must implemen t the DSB's decisions.  This was especially 
relevant with regard to long-standing disputes su ch as the Section 211 dispute.  Once again, Chile 
urged the parties to this dispute to take all the n ecessary steps and measures in order to comply in this 
dispute.  WT/DSB/M/284 
 Page 5 
 
 
  13. The representative of Brazil  said that his country thanked the United States for its status 
report pertaining to this dispute.  Brazil remained concerned about the US lack of compliance with the 
DSB's recommendations and rulings.  Brazil urged the United States to expedite its efforts and bring 
its measures into conformity w ith its multilateral obligations. 
14. The representative of Mexico  said that his country supported a solution to this dispute either 
through compliance or via some other legal remedies provided for in the DSU.  Mexico noted that, if 
a Member considered that an outcome in a particul ar dispute was not satisfactory, it could initiate a 
fresh dispute on the same matter.  Mexico pointed ou t that, in the week of 21 June 2010, the issue of 
"effective compliance" was being discussed in the DS U negotiations.  Thus, Mexico believed that the 
information regarding the disputes considered under item 1 of the Agenda of regular DSB meetings 
could be useful with regard to the assessment on effective compliance in the context of the DSU 
negotiations.  For example, the defendant in th e Section 211 dispute had reported 90 times, once a 
month since 2002, on its steps to implement the DSB's recommendations and rulings.   
15. The representative of the United States  said that, in response to the statements made by some 
Members that this dispute raised concerns for th e dispute settlement system, as the United States had 
noted at several previous DSB meetings, it did not be lieve that those concerns were well-founded.  In 
addition, as the United States had noted, in Marc h 2010 the Committee on the Judiciary of the US 
House of Representatives had held a hearing on certain proposals to implement the DSB's 
recommendations and rulings in this dispute. 
16. The representative of Cuba  said that, once again, Cuba wished to thank those delegations who 
had urged the parties to settle this dispute and ha d called for Cuba's rights to be respected.  Cuba 
noted the statement that had just been made by the United States.  While Cuba recognized that 
delegations had the right of reply, it considered that there was no point in doing so unless there was a 
chance that those who listened to those statements be lieved what they heard.  Cuba noted that, from a 
technical or legislative point of view, this disput e was not as complex to settle like the other disputes 
that had already been settled, and yet it had dr agged on for so long.  In addition, what the 
United States had stated was devoid of merit, unl ess it would decide one day to announce that it had 
complied with the DSB's rulings.  
17. 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.91) 
18. The Chairman  drew attention to document WT/DS184/ 15/Add.91, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
19. The representative of the United States  said that his country had provided a status report in 
this dispute on 10 June 2010, 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 documen t WT/DS184/15/Add.3.  With respect to the DSB's 
recommendations and rulings that had not already been addressed by the US authorities, the US 
administration would work with the US Congress with respect to appropriate statutory measures that would resolve this matter. 
20. 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 WT/DSB/M/284 
Page 6  
 
  certain measures to implement part of the DSB's recommendations in November 2002.  With respect 
to the remaining part of the DSB's recommendations and rulings, Japan hoped that the United States would soon be in a position to report to the DSB ta ngible progress.  A full and prompt implementation 
of the DSB's recommendations and rulings was "essen tial 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. 
21. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.66) 
22. The Chairman  drew attention to document WT/DS160/ 24/Add.66, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
23. The representative of the United States  said that his country had provided a status report in 
this dispute on 10 June 2010, 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. 
24. The representative of the European Union  said that the United States had again reported non-
compliance.  The EU was again disappointed and re mained ready to work with the US authorities 
towards the complete resolution of this case. 
25. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.29) 
26. The Chairman  drew attention to document WT/DS291/ 37/Add.29, 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 affecting the a pproval and marketing of biotech products. 
27. The representative of the European Union  said that, once more, her delegation noted that EU 
regulatory procedures on biot ech products continued to work as for eseen in the legislation.  The five 
authorizations decisions on GMOs, issued on 2 Ma rch 2010, including one for cultivation, had raised 
the number of GMOs authorized since the date of est ablishment of the Panel to twenty-nine.  Progress 
had also been made on other applications for au thorization and the Agriculture Council would, on 
29 June 2010, vote on six new authoriza tions (GM maize events: (i) MON89034xNK603; 
(ii) Bt11xGA21; (iii) MON88017xMON810; (iv) 59122x1507xNK603; (v) 1507x59122 and 
(vi) renewal of the authorization for Bt11 maize) .  The EU, once again, thanked both Argentina and 
Canada for their constructive appr oach on this matter and reiterated its  invitation to the United States 
to re-engage in dialogue.  The EU noted that ther e had recently been some positive signals in that 
respect, which the EU hoped would soon be confirmed. 
28. The representative of the United States  said that his country thanked the EU for its status 
report and its statement.  As the United States had noted at the May DSB meeting, the EU had been 
                                                 
2 Article 3.3 of the DSU.  WT/DSB/M/284 
 Page 7 
 
 
  considering substantial modifica tions to its biotech approval procedures.  The United States 
understood that the modifications were intended to address problems that were linked both to delays 
in the approval of biotech applications, and to the adoption by EU member States of bans on products 
approved at the EU level.  The United States furthe r understood that earlier this month, the EU had 
begun discussing a concrete proposal with stakeholders .  The United States had been working with the 
EU to schedule discussions to address these developm ents and other matters relating to trade in 
biotech products.  The United States looked forwar d to holding constructive discussions with the EU 
regarding these matters. 
29. The representative of the European Union  said that her delegation wished to note that this 
issue was unrelated to the Panel's findings and recomm endations in this dispute.   Nevertheless, the EU 
was ready to reply to the question as a matter of  transparency.  As announced by both President 
Barroso and Commissioner Dalli, the Commission wa s currently reflecting on the most effective 
approach to the issue of cultivation of GM crops w ithin the current EU legislative framework.  Such 
legislative framework provided for an EU system of authorization that was science-based.  However, 
the EU regime, as much as the WTO Agreements, ack nowledged that there were other relevant factors 
that may have to be taken into consideration.  Some EU member States had expressed for some time 
certain concerns regarding the issue of cultivatio n of GM crops in their territory.  For the EU 
authorization system to be effective, those c oncerns needed to be a ddressed adequately.  The 
Commission expected to announce the outco me of its reflection in July 2010. 
30. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by the 
United States (WT/DS322/36/Add.9) 
31. The Chairman  drew attention to document WT/DS322/ 36/Add.9, 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 measures relating to zeroing and sunset reviews. 
32. The representative of the United States  said that his country had provided a status report in 
this dispute on 10 June 2010, in accordance with Ar ticle 21.6 of the DSU.  As noted in the status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With respect to the outstanding issues, the United States would con tinue to consult with 
interested parties in order to address those issues. 
33. The representative of Japan  said that his country thanked the United States for its statement 
and its most recent status report.  The United States ha d stated in its status report that it "will continue 
to consult with interested parties in order to address the findings contained in [the Appellate Body and 
the panel] reports" adopted by the DSB on 31 Au gust 2009.  Japan took this statement as an 
expression of commitment by the United States to fully implement the DSB's recommendations and 
rulings.  Once again, Japan called on the United St ates to meet its commitment by taking immediate 
and concrete action so as to resolve this dispute. 
34. The representative of the European Union  said that her delegation wished to reiterate its 
disappointment over the lack of any real progress by the United States on compliance with adverse rulings on zeroing in this dispute, and reca lled that immediate compliance with the DSB's 
recommendations and rulings was not an option, but an obligation under the DSU. 
35. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/284 
Page 8  
 
  (f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.6) 
36. The Chairman
 drew attention to document WT/DS350/ 18/Add.6, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning the existence and application of zeroing methodology by the United States. 
37. The representative of the United States  said that his country had provided a status report in 
this dispute on 10 June 2010, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With regard to the remaining issues, the United States would continue to consult with interested parties. 
38. The representative of the European Union
 said that EU's concerns about the lack of 
implementation by the United States in this dis pute were well-known and were recorded in the 
minutes of past DSB meetings.  Despite encouragi ng political statements, the final determination in 
the Section 129 proceeding (12 March 2010) left th e EU perplexed as to the US intentions on 
compliance with the ruling in this dispute.  The EU , therefore, urged the United States to reconsider 
its Section 129 determination immediately and to implement. 
39. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(g) United States – Laws, regul ations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38) 
40. The Chairman  drew attention to document WT/DS294/ 38, which contained the status report 
by the United States on progress in the implementa tion of the DSB's recommendations in the case 
concerning US laws, regulations and me thodology for calculating dumping margins. 
41. The representative of the United States  said that his country had provided a status report in 
this dispute on 10 June 2010, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, the United States had already taken a number of steps to implement the DSB's 
recommendations and rulings in this dispute, and it would continue to consult with interested parties 
with regard to the remaining issues.  Finally,  as Members were aware, the EU had requested 
authorization from the DSB to suspend concessions or  other obligations in this dispute, and the 
United States had objected to the EU's request.  Th erefore, pursuant to Article 22.6 of the DSU, the 
matter had been referred to arbitration. 
42. The representative of the European Union  said that her delegation thanked the United States 
for its status report.  At the same time, as th e EU had already stated, it wished to express its 
disappointment over the lack of any real progress by the United States on compliance with adverse rulings on zeroing in this dispute.  The EU recalled that immediate compliance with the DSB's recommendations and rulings was not an option, but an obligation under the DSU. 
43. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting.  WT/DSB/M/284 
 Page 9 
 
 
  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 Union and Japan 
44. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Union and Japan.  He then i nvited the respective representatives to speak. 
45. The representative of Japan  said that, according to the CDSOA 2009 Annual Reports issued 
on 10 December 2009, some US$248 million had been distributed for FY2009.3  Those latest annual 
distributions showed that the CDSOA remained oper ational.  In fact, as US Customs and Border 
Protection had explained, "the distribution pr ocess will continue for an undetermined period".4  Japan 
urged the United States to stop illegal distributions and repeal the CDSOA, not just in form but in 
substance, so as to resolve this dispute once and fo r all.  According to Article 21.6 of the DSU, the 
United States was under obligation to provide the DSB with a status report in this dispute.  
46. The representative of the European Union  said that, as Members were aware, as of 
1 May 2010, the EU had brought up to US$95.38 milli on the level of retaliatory measures applied in 
this dispute.  This reflected the proportionate incr ease of the amount disbursed to US companies from 
anti-dumping and countervailing duties collected on EU products, as published in the latest distribution of October 2009.  This showed that duties continued to be distributed to the US industry.  Once again, the EU wished to ask the United States  when it would effectively stop the transfer of 
those duties to the US industry and hence, put an end to the condemned measure.  The EU, once 
again, 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 on implementation in this dispute. 
47. The representative of Brazil
 said that his country thanked the EU and Japan for keeping this 
item on the DSB's Agenda.  As had been stated at previous DSB meetings, Brazil was of the view that non-compliance in this dispute would continue until the United States ceased all disbursements made 
pursuant to the Byrd Amendment.  Before that, th e issue would not be "resolved" within the meaning 
of Article 21.6 of the DSU and the submission of stat us reports would continue to be required.    
48. The representative of India
 said that his country thanked the EU and Japan for, once again, 
bringing this issue before the DSB's Agenda.  Indi a shared their concerns and remained disappointed 
at the US maintenance of those WTO-inconsiste nt disbursements.  As mentioned by previous 
speakers, the CDSOA remained fully operationa l and allowed for disbursements by the US 
administration to its domestic industry.  This fact continued to raise concerns to WTO Members.  As 
reiterated in the past, India was concerned that non-compliance by Members would lead to the erosion 
of credibility of the WTO dispute settlement system. 
49. The representative of China  thanked the EU and Japan for, on ce again, raising this item on the 
Agenda of the DSB meeting.  China shared the c oncerns expressed by previous speakers and joined 
them in urging the United States to fully comply with the DSB's rulings.  
                                                 
3 See US Customs and Border Protection's   website at:  
http://www.cbp.gov/xp/cgov/trade/prio rity trade/add cvd/cont dump/cdsoa 09/report/fy 09 annual report.xml  
4 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/284 
Page 10  
 
  50. The representative of Thailand
 said that his country thanked Japan and the EU for bringing 
this issue before the DSB and supported the stat ements made by previous speakers.  Thailand 
continued to urge the United States to cease the disbursements, repeal the Byrd Amendment with 
immediate practical effect, and resume providing the status reports until such actions were taken and 
this matter was completely resolved. 
51. The representative of Canada  said that her country thanked the EU and Japan for raising this 
issue in the DSB and agreed with them that the By rd Amendment remained subject to the surveillance 
of the DSB until the United Stat es ceased to administer it. 
52. The representative of the United States  said that, as his country had explained at previous 
DSB meetings, the US President had signed the Defi cit Reduction Act into law on 8 February 2006.  
That Act included a provision repealing the Contin ued Dumping and Subsidy Offset Act of 2000.  
Thus, the United States had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes.  Furthermore, the Un ited States recalled that Members had acknowledged 
during previous DSB meetings that the 2006 Defic it Reduction Act did not permit the distribution of 
duties collected on goods entered after 1 October 2007.  The United States, therefore, did not 
understand the purpose for which the EU and Japan had inscribed this item on the Agenda of the 
present meeting.  With respect to comments regardi ng 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 re peating the progress the United States had made in the 
implementation of the DSB's recommendations and rulings. 
53. The DSB took note
 of the statements. 
3. European Communities – Export subsidies on sugar 
(a) Statements by Australia, Brazil and Thailand 
54. The Chairman  said that the item was on the Agenda of the present meeting at the request of 
Australia, Brazil and Thailand.  He then inv ited the respective representatives to speak.  
55. The representative of Australia , speaking also on behalf of Brazil and Thailand, said that 
Australia, Brazil and Thailand recalled their statements  made at the previous four meetings of the 
DSB, and at the meeting of the Committee on Agriculture held on 10 March 2010, expressing their concern at the January 2010 decision of the EU to  export out-of-quota sugar in excess of its annual 
scheduled quantity commitment level of 1.2735 million tonnes.  Australia, Brazil and Thailand 
continued to be concerned by the EU's action a nd urged the EU to provide the necessary technical 
information underpinning its decision to export add itional sugar and to jus tify the WTO-consistency 
of its decision to export additional sugar.  Austra lia, Brazil and Thailand remain ed ready to engage in 
a dialogue. 
56. The representative of the European Union
 said that this was the fifth time that her delegation 
highlighted that the EU's decision to export 0.5 million tonnes of sugar was a temporary measure, 
which had been adopted in view of the exceptional market conditions at both the EU and world level;  
i.e. world prices being at a record high level crea ting a shortage of sugar, which affected importing 
developing countries.  The EU did not expect t hose market conditions to last beyond the season 2009-
2010.  The export of 0.5 million tonnes was now exhausted and the EU had not renewed that 
temporary decision.  The decision fully respected the EU's international obligations.  The quantities 
on sale were not subsidized and happened at a time  when world sugar prices were higher than EU 
production costs and EU producers had become much more competitive following the drastic 
overhaul of the EU Common Market Organisation for s ugar.  Once again, the EU continued to respect 
its WTO commitments and reiterated its insistence on its right to engage in international trade, even if  WT/DSB/M/284 
 Page 11 
 
 
  competing exporters of other WT O Members would have, for rather  obvious reasons of commercial 
interest, preferred otherwise.  The EU continued to offer its readines s to continue a dialogue regarding 
the background underpinning its temporary decision to export sugar. 
57. The DSB took note  of the statements. 
4. Korea – Anti-dumping duties on imports of certain paper from Indonesia 
(a) Statement by Indonesia 
58. The Chairman  said that the item was on the Agenda of the present meeting at the request of 
Indonesia and invited the representative of Indonesia to speak.  
59. The representative of Indonesia  said that her country was very disappointed with Korea's 
statement on this matter, made at the 18 May 2010  DSB meeting, and regretted Korea's continued 
lack of cooperation in this dispute.  Korea claime d that it had taken steps to correct the violations 
identified by the Article 21.5 Panel on "Korea - Pa per" (DS312).  Korea had attempted to classify 
those violations as "procedural" rather than "substa ntive" ones and had suggested that it had corrected 
those faults.  Indonesia was not aware of any formal distinction between "substantive" and 
"procedural" obligations under the Anti-Dumping Agreem ent.  In fact, the main issue in this dispute 
involved Korea's failure to comply with the requirements of the Anti-Dumping Agreement in 
selecting the information to be used to calculate  the dumping margin for the Indonesian exporters.  
This was a very substantive issue.  Had Korea co mplied with its obligations , it would have calculated 
de minimis  margins for the Indonesian exporter.  Moreover, nothing in the DSU granted a Member, 
which had been found by an Article 21.5 Panel not to have properly implemented the DSB's 
recommendations and rulings, unlimited opportuniti es to attempt compliance solely because it 
characterized its violations as "procedural".   
60. In this case, Korea's position appeared to be that Korea could repeatedly make cosmetic 
changes to the wording of its determination, with out ever addressing the substance of the problem.  
This was very different from Korea's standard towa rds other WTO Members, even with respect to the 
so-called "procedural" violations.  For example, in its third-party submission in the dispute:  "US – 
Oil Country Tubular Goods Sunset Reviews" (A rticle 21.5 - Argentina), Korea had described 
Article 6 of the Anti-Dumping Agreement – the same provision it had been found to have violated in the "Korea - Paper" Article 21.5 proceeding – as invo lving "fundamental due process rights that must 
be ensured at all times" and that if a de fending Member failed to implement the DSB's 
recommendations and rulings with respect to Article 6 rights, "the only way to bring the measure into conformity with the relevant provisions of the c overed agreements is to revoke it".  Indonesia saw no 
reason why Korea should itself be subject to a different  standard than the standard that Korea applied 
to other WTO Members.  Korea's failure to implement the DSB's recommendations and rulings was now relevant because Korea had recently initiated a sun set review that may lead to the continuation of 
this WTO-inconsistent measure for several more y ears.  Indonesia regretted that despite the findings 
of the two Panels in this dispute, and repeated requests from Indonesia to resolve this dispute in a 
cooperative manner, Korea seemed to maintain th is WTO-inconsistent measure no matter what.  
Indonesia, once again, requested Korea to make seri ous efforts to resolve this dispute.  Meanwhile, 
Indonesia preserved its rights under the DSU deriving from the Article 21.5 Panel Report. 
61. The representative of Korea
 said that his country wished to express its deep disappointment 
with Indonesia's statement made at the present meeting reiterating its assertions, which had already 
been made at the 18 May 2010 DSB meeting.  At that meeting, Korea had confirmed its 
implementation of the October 2007 DSB decision.  Ko rea wished to confirm again that it had fully 
implemented the recommendation of the compliance Pa nel and had duly delivered its implementation WT/DSB/M/284 
Page 12  
 
  results to Indonesia.  With resp ect to the sunset review mentioned by Indonesia, the review process 
was ongoing in a manner consistent with bot h the WTO Agreements and Korean laws. 
62. The DSB took note
 of the statements. 
5. United States – Measures affecting the production and sale of clove cigarettes 
(a) Request for the establishment of a panel by Indonesia (WT/DS406/2) 
63. The Chairman  drew attention to the communicati on from Indonesia contained in document 
WT/DS406/2, and invited the representative of Indonesia to speak. 
64. The representative of Indonesia  said that she was pleased to present her country's concerns 
regarding the dispute:  "US – Measures Affec ting the Production and Sales of Clove Cigarettes" .  She 
recalled that, on 7 April 2010, Indonesia had request ed consultations with the United States pursuant 
to Articles 1 and 4 of the DSU;  Article XXII of  GATT 1994;  Article 11 of the SPS Agreement;  and 
Article 14 of the TBT Agreement with respect to the measure adopted by the United States banning flavoured cigarettes, including clove cigarettes.  Indonesia had held those consultations with the 
United States on 13 May 2010.  Unfortunately, those consultations had not resolved the dispute.  The subject of the consultations and the panel request  concerned the prohibition on the production or sale 
of so-called "clove cigarettes" in the United St ates, pursuant to Section 907(a)(1) of the Family 
Smoking Prevention and Tobacco Control Act of  2009.  This law had taken effect on 
22 September 2009.  Pursuant to the Act, clove cigarettes produced in Indonesia may no longer be 
imported into the United States.   
65. Indonesia was a developing country with a relatively large population.  It struggled to keep its 
people employed, fed, and educated.  In many part s of Indonesia, the main source of income and 
employment was the production of tobacco, clove,  and cigarettes.  Indeed, well over 6 million 
Indonesians
5 depended directly or indirectly on clove ci garette production to put food on the table, 
clothes on their children's backs, and a day's wages in their pocket.  Prior to the Act, Indonesia had 
produced 99 per cent of the clove cigarettes sold in the United States.  Now, those sales were down to 
zero.  No one, least of all Indonesia, questioned the serious health risks asso ciated with the use of 
tobacco products.  In this regard, Indonesia was partic ularly mindful of the need in many countries to 
adopt reasonable measures aimed at restricting the sa le, use, and marketing of  cigarettes to underage 
smokers.  At the same time, Indonesia did not un derstand the rationale a nd justification for the 
complete ban on clove cigarettes resulting from Secti on 907(a)(1) of the Act, while menthol cigarettes 
were excluded from the ban.  The Act stated that its primary purpose was to reduce the incidence of 
youth smoking.  It sought to accomplish this purpo se by prohibiting the production or sale in the 
United States of any cigarette that contained a natu ral or artificial flavour, herb or spice that was a 
"characterizing flavour" of the tobacco product or smoke, including strawberry, grape, orange, 
cinnamon, pineapple, vanilla, coconut, liquorice, cocoa, chocolate, cherry, coffee, and last, but not least, clove.  However, not all flavours, herbs, an d spices were covered by the Act.  Specifically 
excluded from Section 907 was menthol.  Menthol w as an artificial flavour derived from mint, which 
was a herb or spice.  The menthol flavour was adde d to the cigarette in order to hide or "mask" the 
otherwise harsh taste of the tobacco.  Not surprisingl y, this fact made menthol cigarettes particularly 
appealing to first-time smokers, including under-aged ones.  Almost all of the menthol cigarettes sold 
in the United States were produced domestically.   
66. According to surveys and studies conducted by  the US Government, menthol cigarettes 
accounted for approximately 44 per cent of the cigarettes consumed by youth smokers and 
approximately 28 per cent of the cigarettes consum ed in the United States.  By contrast, clove 
                                                
 
5 NSDUH – National Survey on Drug Us e and Health (for the year 2007).  WT/DSB/M/284 
 Page 13 
 
 
  cigarettes, before the ban, were believed to acc ount for less than 0.05 per cent of the cigarettes 
consumed by youth smokers in the United States and just 0.09 per cent of the cigarettes consumed in 
the United States.  Given those facts, Indonesia could not understand why menthol cigarettes could continue to be sold while clove cigarettes were  banned.  Indonesia was not aware of any science, 
"sound" or otherwise, that showed clove cigarettes to be more harmful than regular cigarettes and 
certainly none that distinguished clove from menthol cigarettes in this respect.  Indonesia also did not 
know any science that would support the conclusion that clove cigarettes were more appealing to youth smokers than menthol cigarettes.  In fact, quite the opposite was true.  On many occasions, including most recently during the consultations, Indonesia had asked the United States to share any 
surveys or studies that demonstrated why clove cigarettes should be banned but not menthol.  
Indonesia still had not received any written response fro m the United States, which had been agreed to 
be delivered by 10 June 2010.  Indonesia belie ved that Section 907(a)(1) of the Act and its 
implementation by the United States was inconsistent  with various rules and principles of the WTO, 
including, but not limited to, the GATT 1994 and the TBT Agreement.  The specif ic legal claims were 
outlined in Indonesia's written request for a panel.  In conclusion, Indonesia had been trying to avoid 
the present situation since 2004.  Indonesia had written letters, spoken to Members of the US 
Congress and their staff, and had repeatedly met with US administration officials.  Indonesia had even held informal, bilateral consultations  with the United States in Geneva in August 2009, all in an effort 
to avoid formal, WTO dispute settlement proceedi ngs.  Unfortunately, howe ver, no resolution had 
proven possible.  Therefore, Indonesia respectfully re quested that, pursuant to Article 6 of the DSU, 
the DSB establish a panel to examine the matter, w ith standard terms of reference, as set out in 
Article 7.1 of the DSU. 
67. The representative of the United States
 said that his country was disappointed that Indonesia 
had chosen to move forward with its request for panel establishment.  The Family Smoking 
Prevention and Tobacco Control Act did not target Indonesian clove cigarettes.  Indeed, the law did 
not single out any country.  The United States was conf ident that the Act was fully consistent with its 
WTO obligations, and it intended to defend its positi on vigorously.  In addition, the Food and Drug 
Administration's Tobacco Products Scientific Adviso ry Committee, which had been established by the 
Family Smoking Prevention and Tobacco Control Ac t, was currently meeting and carrying out the 
tasks assigned to it by Congress.  As required under the Act, the Committee would report its findings to the FDA by 18 March 2011.  In light of the fact  that the required report of the Tobacco Products 
Scientific Advisory Committee was pending, Indonesi a's request for a panel was, in the US view, 
premature, and the United States would encourage Indonesia to reconsider its request.  For those 
reasons, the United States was not in a position to ag ree to the establishment of a panel at the present 
meeting. 
68. The DSB took note
 of the statements and agreed  to revert to this matter. 
6. Proposed nominations for the indicative list of governmental and non-governmental 
panellists (WT/DSB/W/427) 
69. The Chairman  draw attention to document WT/DSB /W/427, which contained additional 
names proposed for inclusion on the indicative list of governmental and non-g overnmental panelists, 
in accordance with Article 8.4 of the DSU.  He proposed that the DSB approve the names contained 
in document WT/DSB/W/427. 
70. The DSB so agreed . WT/DSB/M/284 
Page 14  
 
  7. Proposed amendments to the Working Procedures for Appellate Review  
(a) Statement by the Chairman 
71. The Chairman
, speaking under "Other Business", said that, as he had announced at the 
beginning of the meeting, he wished to make a statement concerning the amendments proposed by the 
Appellate Body to the Working Procedures for Ap pellate Review, which had been circulated in 
document WT/AB/WP/W/10.  He informed delegations  that, on 27 May 2010, in accordance with the 
Decision of the DSB of 19 December 2002, he ha d conveyed to the Appellate Body the views 
expressed by Members at the 18 May DSB meeting on  the proposed amendments, by forwarding to 
them the record of that meeting.  In addition, as had been agreed by the DSB regarding the submission 
of written comments sent by the deadline of 26 May,  he had also conveyed to the Appellate Body 
written comments submitted by Australia, Chile, China, Guatemala, Japan, Korea, Mexico, 
New Zealand, Singapore, Chinese Taipei, Thailand, Turk ey and the United States.  In this regard, he 
wished to confirm that, as had been agreed, these writte n comments would be annexed to the minutes 
of the 18 May DSB meeting.  Finally, in accordan ce with paragraph 4 of the 2002 DSB Decision, he 
had requested that Members' views and written co mments be taken into account by the Appellate 
Body.  It was his understanding that the Appellate Body was currently in the process of reviewing the 
views and comments received from Members.    
72. The DSB took note  of the statement. 
__________