RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/254 
22 October 2008 
 (08-5114) 
Dispute Settlement Body 
1 August 2008  
 
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 1 August 2008  
 
Chairman:  Mr. Mario Matus (Chile) 
  
 Prior to the adoption of the Agenda
, the item concerning the adoption of the Panel Report in 
the case on:  "India – Additional and Extra-Additio nal Duties on Imports from the United States" 
(WT/DS360/R) was removed from the proposed Agenda , following the decision of the United States 
to appeal the Report.   
 
Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................5  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........5  
(d) European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Communities..............................................................6  
2. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ............................................7  
(a) Statements by the European Communities and Japan ................................................................7  
3. United States – Measures relating to shrimp from Thailand..............................................10  
(a) Report of the Appellate Body and Report of the Panel.............................................................10  
4. United States – Customs Bond Directive for merchandise subject to anti-
dumping/countervailing duties ..............................................................................................13  
(a) Report of the Appellate Body and Report of the Panel.............................................................13  
5. Expression of views under Article 17.14 of the DSU prior to the adoption of an 
Appellate Body report .......................................................................................................... ..16 
(a) Statement by the Eur opean Communities.................................................................................16  WT/DSB/M/254 
Page 2  
 
 6.
 Proposed nominations for the indicative list of governmental and 
non-governmental panelists ...................................................................................................22  
7. European Communities – Anti-dumping  measure on farmed salmon from 
Norway......................................................................................................................... ............23  
(a) Statement by the Eur opean Communities.................................................................................23  
 
 
1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.68) 
 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.68) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.43) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.6 – WT/DS292/31/Add.6 – WT/DS293/31/Add.6) 
 
1. The Chairman
 recalled that Article 21.6 of the DSU required that:  "unless the DSB decides 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establishment of the reasonable 
period of time pursuant to paragraph 3 and shall remain on the DSB's Agenda until the issue is 
resolved".  He proposed that the four sub-items to which he had just referred be considered separately. 
(a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.68) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.68, 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 18 July 2008, in  accordance with Article 21.6 of the DSU.  As noted in that status 
report, a number of legislative proposals that would implement the DSB's recommendations and rulings in this dispute had been introduced in th e current Congress, in both the US Senate and the US 
House of Representatives.  The US administration co ntinued to work with the Congress to implement 
the DSB's recommendations and rulings. 
4. The representative of th e European Communities
 noted that, at the present meeting, the DSB 
was considering the 68th addendum of the US status report.  In fact, it was now more than six years 
since the United States had been found in breach of  the TRIPS Agreement.  And, yet again this 
month, the United States could not report on any progress in the implementation of the DSB's ruling 
in this dispute.  If the United States wanted to give a signal about how it saw the relevance of its 
commitments under the TRIPS Agreement, that signal was pretty worrying.  The EC hoped that the 
bipartisan bills introduced in the US Congress to repeal Section 211 would finally progress and bring 
the United States into compliance with its TRIPS obligations.  WT/DSB/M/254 
 Page 3 
 
 
 5. The representative of Cuba  said that, as of now, it would be three years since the DSB had 
received notification of an understanding between the EC and the United States pertaining to this 
dispute.  That understanding was based on the assumption that the United States would continue working towards compliance with its WTO oblig ations, and that the EC would not request 
authorization from the DSB to suspend concessions or other obligations under Article 22.2 of the 
DSU.  All were aware what had happened since then.  Some of the bipartisan legislative proposals 
submitted to the US Congress calling for the repeal of Section 211 had not even been considered, 
while others had been defeated.  Nor had the United States made the slightest effort to approve them.  
Not only had the United States been providing the DS B with the same status reports month after 
month, year after year, but now it had replied with  the same arguments, describing its non-compliance 
in this case as an isolated incident.  It was no longer unusual for the DSB Agenda to contain a number 
of cases awaiting compliance by the United States.  Th is merely showed a complete disregard for the 
decisions adopted by all Members.  In the dispute at issue, the United States apparently wanted the 
item to remain on the DSB's Agenda.  This disput e had been dragging on for so long that it would 
seem odd to be demanding that the United States comply  with the principle of prompt settlement of 
disputes set forth in Article 3.3 of the DSU.  In fact, what was being asked of the non-complying 
respondent was that it complied, once and for all, with the rulings and recommendations made more 
than six years ago.  Cuba had a considerable interest  in the repeal by the United States of Section 211.  
There was no need to explain the enormous importance of intellectual property rights. 
6. The United States and other powerful WTO Memb ers had insisted on the TRIPS Agreement 
during the Uruguay Round negotiations.  And indeed, one of the alleged advantages of that Round 
was this perfect dispute settlement system, which w ould put an end to unilateral actions.  The alleged 
balance between rights and obligations to enable the WTO to function efficiently had been forgotten.  
The US well-known attempts to acquire Cuban rum bra nds had been at the origin of more than one 
dispute.  It just happened that in 2002, when the Appellate Body report pertai ning to this dispute had 
been adopted, another dispute had been settled by the WIPO Arbitration and Mediation Centre.  The 
origin of that dispute had been a claim by a co mpany based in Florida against a Cuban owner for 
registration of 11 trade names that included th e Cuban brand name MATUSALEM.  The ruling had 
been in favour of the Cuban owner, and the case ha d brought to light the obvious bad faith of the 
applicant, who had been clearly tryi ng to take over all of the trade names that had been duly registered 
by a Cuban legal person.  Cuba urged the parties in this dispute to take action.  It had been three years 
since the understanding between the EC and the United States had been concluded, and more than six 
years since the Appellate Body Report had been a dopted.  Section 211 was inconsistent with the 
TRIPS Agreement, and yet nothing was being done to  repeal it.  It was paradoxical that such a 
powerful country, the country that had the most in  the way of intangible assets worldwide, should be 
disregarding an agreement that protected its own interests par excellence . 
7. The representative of the Bolivarian Republic of Venezuela
 said that her delegation wished to 
thank Cuba for its statement, which it fully supporte d.  Cuba's statement provi ded delegations with an 
updated picture of the matter at issue.  Her delega tion also noted the status report submitted by the 
United States.  In spite of the US expressions of  goodwill at previous mee tings, delegations were, 
once again, gathered at the present meeting to listen to  a repeated status report on the case in question.  
This situation was not conducive to a prompt conclusion of the matter.  The United States had insisted 
that it had a good record of full compliance with its ob ligations in the vast majority of the disputes in 
which it had been involved.  In this regard, her de legation would recall the old adage that "it is better 
to travel hopefully than to arrive".  Accordingly, in the interests of maintaining that good record, as 
the United States had claimed, her country urged th e United States to put an end to this long-running 
dispute by coming up with a solution mutually satisfactory to the parties concerned. 
8. The representative of Brazil  said that his country thanked the United States for its status 
report.  Brazil wished to renew its concerns about the situation of non-compliance in this dispute, 
where little or no implementing action seemed to have  been taken despite the adoption of the Panel WT/DSB/M/254 
Page 4  
 
 and the Appellate Body Reports by the DSB several years ago.  Brazil, once again, expressed the view 
that full implementation of the DSB's recommendations  in this dispute was necessary for the purposes 
of the case at hand, and also due to systemic consid erations relating to the effectiveness and reliability 
of the WTO dispute settlement system.   
9. The representative of India
 said that her country thanked the United States for its status report 
and the statement made at the present meeting.  Indi a wished to renew its systemic concerns about the 
situation arising out of non-compliance in this di spute.  Despite the adoption of the Panel and the 
Appellate Body Reports by the DSB in this case several years ago, Members were still waiting for 
implementation and compliance by the United States.  India wished to reiterate that to remain 
indifferent to the non-compliance of the recommenda tions and rulings of the DSB by any Member 
undermined the dispute settlement system, one of the main achievements of the Uruguay Round 
Negotiations.  
10. The representative of China  said that his country thanked the United States for its status 
report.  China also supported the statements made  by the EC and Cuba.  The implementation process 
in this dispute had been delayed for too long.   China hoped that the present US Congress would 
realize that it was in the interest of not only other Members, but also in the interest of the 
United States to put an end to th is situation, which damaged the authority of the TRIPS Agreement 
and undermined the creditability of the WTO disput e settlement system.  Therefore, China urged the 
United States to make an extra effort to bring it self into conformity with the decision of the DSB. 
11. The representative of Thailand  said that his country thanked the United States for its status 
report and the statement made at the present meeting.   Like previous speakers, Thailand wished to 
express its concern over the systemic implications of this dispute.  Non-implementation of the DSB's 
rulings and recommendations undermined the rules- based multilateral trading system.  Thailand, 
therefore, called on the United States to take the necessary and urgent steps to comply with its 
obligations under the TRIPS Agreement. 
12. The representative of Viet Nam  said that the non-compliance with the DSB's rulings 
undermined the credibility of the system and Member s' confidence in that system.  Once again, 
Viet Nam called on the United States to take necessary and urgent steps to comply with its obligations. 
13. The representative of Argentina
 said that his delegation thanked the United States for 
presenting its status report, but wished to be associat ed with Cuba's request that the parties to the 
dispute take the necessary action to ensure prompt implementation.  Respecting the prompt 
compliance requirement under Article 21.1 of the DS U was a matter that was not confined to the 
consequences of each particular case only, but had obvious systemic implications.   
14. The representative of Nicaragua  said that various delegations had regularly taken the floor 
under this Agenda item in order to urge the Un ited States to implement the DSB's recommendations 
and to express their concerns about the US failu re to comply with these recommendations.  This 
situation was of genuine concern to Nicaragua, beca use just as the claims and rights of the affected 
parties were being ignored at the present meeting, th e rights of other countries might be disregarded in 
future.  There were only two possible explanations fo r a delay that had lasted for so many years.  
Either there was no will to comply, or implementati on of the rulings in question was beyond the scope 
of the United States, in which case this raised doubts as to the latter's capacity to comply fully with all 
the commitments that membership of the WTO implie d.  Nicaragua was concerned that this situation 
undermined Members' confidence in the WTO disput e settlement system and raised questions about 
the effectiveness of the system.  In spite of the number of years that had gone by, Nicaragua called on 
the United States to comply with the DSB's recommendations without delay.  WT/DSB/M/254 
 Page 5 
 
 
 15. The representative of the United States  said that his country had taken careful note of the 
statements made at the present meeting.  The Unite d States regretted that the EC had returned to 
criticizing the US commitment to intellectual property rights and the TRIPS Agreement.  Not only were the EC's comments regrettable, its criticisms were completely unfounded.  It was, of course, true 
that the United States had been , and remained, a strong advocate of substantial protections for 
intellectual property interna tionally.  The EC, and a number of its member States, were well placed to 
be aware of this.  However, it was equally true – and, once again, the EC knew this very well – that 
the United States was second to no one in providing strong intellectual property protection within its 
own territory.  The United States reiterated that the US administration continued to work with the US 
Congress to implement the DSB's recommenda tions and rulings in this dispute. 
16. 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.68) 
17. The Chairman  drew attention to document WT/DS184/ 15/Add.68, 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. 
18. The representative of the United States  said that his country had provided a status report in 
this dispute on 18 July 2008, in  accordance with Article 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 document  WT/DS184/15/Add.3.  The US administration would 
continue to work with the US Congress with resp ect to the recommendations and rulings of the DSB 
that had not already been addressed by the US authorities by 23 November 2002. 
19. The representative of Japan
 said that his country thanked the United States for its statement 
and its latest status report.  In Japan's view , there had been little tangible progress in this long-
standing dispute since the United States had taken cer tain measures to implement part of the DSB's 
recommendations in November 2002.  A full and prompt implementation of the DSB's 
recommendations and rulings was "essential to the effective functioning of the WTO and the 
maintenance of a proper balance of the rights and obligations of Members".1  Japan wished to call on 
the United States to redouble its effort to this end. 
20. 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.43) 
21. The Chairman  drew attention to document WT/DS160/ 24/Add.43, 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. 
22. The representative of the United States  said that his country had provided a status report in 
this dispute on 18 July 2008, in accordance with Article 21.6 of the DSU.  The US administration 
would work closely with the US Congress and would c ontinue to confer with the EC, in order to reach 
                                                      
1 Article 3.3 of the DSU. WT/DSB/M/254 
Page 6  
 
 a mutually satisfactory resolution of this matter.  In  this regard, the United States shared the EC's goal 
of discussing how a mutually satisfactory solu tion to this dispute could be achieved. 
23. The representative of the European Communities
 said that before the DSB at the present 
meeting was an update number 43 of the TRIPS conti nued non-compliance.  The EC regretted that the 
United States had made no progress.  This was highly frustrating for all Members who placed a great 
deal of importance on the respect of all internationa l obligations, and were spending a great deal of 
time together looking at respect of intellectual property rights.  The EC continued to fail to comprehend why the United States could not do anyt hing to respect its TRIPS obligations and move 
to bring this long-running dispute to a solution. 
24. The representative of the United States
 said that, once again, the EC's comments about the US 
commitment to intellectual property rights and to  compliance with the recommendations and rulings 
of the DSB were as unwarranted and unfounded at the present meeting as they had been at previous 
DSB meetings.  Nonetheless, the United States appr eciated the EC's more constructive statements 
during recent DSB meetings that it was prepared to  work with the United States to seek a mutually 
satisfactory solution to this dispute.  The United States shared the EC's goal of discussing how such a 
solution could be achieved.   
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 Communities (WT/DS291/37/Add.6 – WT/DS292/31/Add.6 – WT/DS293/31/Add.6) 
26. The Chairman
 drew attention to document WT/DS291/37/Add.6 – WT/DS292/31/Add.6 – 
WT/DS293/31/Add.6, which contained the status report by the European Communities on progress in 
the implementation of the DSB's recommendations in  the case concerning the EC's measures affecting 
the approval and marketing of biotech products. 
27. The representative of the European Communities  said that the EC was happy to report once 
more that good faith cooperation between the complainan ts and the EC had continued.  The EC kept a 
regular dialogue with the three complainants and held  regular technical meetings which were aimed at 
addressing all relevant biotech-related issues of their concern.  The last such technical meeting with the United States had been held on 18 and 19 June, but informal contacts with the United States as well as the other complainants had taken place si nce then.  Progress in the processing of pending 
applications continued.  Sixteen authorizations had been granted since the establishment of the WTO 
panel, seven in 2007 only.  One draft authori zation decision on oilseed rape T-45 would be 
transmitted to the Council after the summer and two more draft authorization decisions (LL25 cotton 
and A2704-12 soybean) would be soon adopted.  In terms of progress on national measures covered 
by the panel report, the EC had already reported at the previous DSB meeting on the decision adopted by Austria which had lifted its bans on imports and processing of GM maize MON810 and T-25.  The 
EC believed that given the inevitably sensitive nature  of biotech issues, dialogue was an appropriate 
way forward and remained open to continue  discussions with the three complainants. 
28. The representative of Canada
 said that his country thanked the EC for its status report.  
Canada hoped and expected that further progress would be  made and, for this reason, had agreed to an 
extension of the reasonable period of time until 31 December 2008.  Canada would continue to watch 
this progress carefully.  WT/DSB/M/254 
 Page 7 
 
 
 29. The representative of Argentina  said that his delegation thanked the EC for submitting its 
status report.  As stated by the EC, the parties c ontinued to work towards the final settlement of this 
dispute.  
30. The representative of the United States  said that his country thanked the EC for its written 
status report and for its statement made at th e present meeting.  Unfortunately, however, the 
United States must note a growing concern with what  appeared to be a systemic dysfunction in the 
EC's approval system for biotech products.  The EC  had 50 biotech product applications backed up in 
its approval system.  Yet in calendar year 2008, onl y one product had reached a final decision.  And 
that product application had been filed over 10 year s ago, in May 1998.  In contrast to the one 
application that had reached a final decision in 2008,  during this same period the EC had sent at least 
seven applications back to scientific committees for further review.  These steps had been taken 
despite the fact that those seven products had already received positive safety assessments, and 
despite the fact that no such steps were provided fo r in the EC's legislation.  The United States noted 
that even the EC's own companies were expressi ng extreme frustration with the operation of the EC 
biotech approval system.  In particular, the United States would highlight a product developed by an 
EC-based company especially for use within the EC market.  An application for that product had first 
been filed 12 years ago, in 1996.  When the EC  member State votes had finally been held during 
2007, the votes had been inconclusive.  Under the EC 's own rules, the Commission had been required 
to approve the product in 2007.  But the Commission had refused to do so.  And, it now appeared that 
no action would be taken by the en d of 2008.  As a result, on 24 July, the EC-based company had 
taken the extraordinary step of filing suit in the European Court of First Instance against the EC 
Commission for a failure to act.  In short, the Unite d States had growing concerns with the actions of 
the EC and its member States regarding the a pproval of biotech products.  The United States 
continued to urge the EC to take prompt steps to resolve this dispute so that no further proceedings 
would be required under the DSU.  
31. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
2. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Communities and Japan 
32. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Communities and Japan.  He then invited the respective representatives to speak. 
33. The representative of the European Communities  said that the EC had heard of recent 
congressional efforts to reinstate the WTO-illega l Byrd Amendment.  The EC called on the 
United States to resist taking such course of acti on.  There was little need to stress how damaging this 
would be.  Reintroducing a bill in full knowledge of its WTO-incompatibility, and in direct 
contradiction with a DSB ruling condemning it, woul d show a complete disdain for the rules-based 
nature of the WTO and for the rights of the other Members.  The EC trusted that the United States 
realized how much this would destroy its credibility as a reliable trading partner.  The EC would also 
like to ask again the United States if and what step s it intended to take to stop the transfer of anti-
dumping and countervailing duties to its industry, which continued as a result of the transitional 
provision in the repealing Act.  The EC also renewe d its call on the United States to abide by its clear 
obligation under Article 21.6 of the DSU and to su bmit implementation reports in this dispute. 
34. The representative of Japan  said that the United States had asserted in the previous DSB 
meetings that, because the CDSOA had now been re pealed, no further actions by the United States 
were necessary.  However, in the beginning of June 2008, the United States had publicly initiated WT/DSB/M/254 
Page 8  
 
 processes for a new round of distributions of collected anti-dumping and countervailing duties under 
the CDSOA.
2  This latest action demonstrated that the CDSOA continued to transfer financial 
resources from the foreign producers/exporte rs to their US domestic competitors.3  Thus the CDSOA 
remained operational with its "essential feature" and "the decisive basis" for the Appellate Body's conclusion
4 still intact.  Under these circumstances, Ja pan failed to understand why the United States 
considered that there was no basis for Japan to state that the CDSOA continued to cause negative 
trade impacts on Japan and other WTO Members.  Japan urged the United States to immediately 
terminate the illegal distributions and to repeal the CDSOA not just in form, but in substance so as to 
resolve this dispute once and for all.  According to Article 21.6 of the DSU, the United States was 
under the obligation to provide the DSB with status repor ts in this dispute "until the issue is resolved". 
35. Finally, Japan would like to share concerns e xpressed by the EC regarding the latest attempt 
in the US Congress to reinstate the CDSOA.  Reviving the already condemned CDSOA would not 
only jeopardize the progress, albeit incomplete, made thus far by the Untied States in implementing the DSB's recommendations and rulings; such defi ant act against the established law by a major 
partner in the system, if materialized, would also  seriously undermine the credibility and effective 
functioning of the WTO dispute settlement system as a mechanism to "secure  a positive solution to a 
dispute".
5  Japan trusted that the United States would not  take such a devastating course of action.  
Japan reserved all its rights under the DSU in this dispute. 
36. The representative of Mexico  said that his country was also concerned by the US initiative.  
The United States seemed to demonstrate little co ncern for the DSB's recommendations that the 
measure in question was not compatible with WTO rules.  
37. The representative of India  said that her country thanked the EC and Japan for maintaining 
this issue on the DSB's Agenda.  India fully shar ed their concerns.  As mentioned by previous 
speakers this latest action demonstrated that th e CDSOA remained operational and the United States 
was still distributing disbursements under the CDSOA to the US domestic industry.  These disbursements made by the United States to its do mestic industry under the Byrd Amendment affected 
the rights of other Members.  India was concer ned that the non-compliance by the United States in 
this dispute would lead to a growing lack of credibility of the WTO dispute settlement system.  India, therefore, urged the United States to cease its WTO- inconsistent disburseme nt.  India supported the 
view that continued surveillance by the DSB was needed. 
38. The representative of Canada
 said that his country agreed with the EC and Japan that the Byrd 
Amendment remained subject to the surveillan ce of the DSB until the Un ited States ceased to 
administer it.  Canada was also concerned by the effo rts of certain parties in the United States to try to 
reinstate the Byrd Amendment.  In 2003, the DSB had ruled against the Byrd Amendment.  A WTO 
Panel had found that the Byrd Amendment was inc onsistent with WTO oblig ations, and this Panel 
ruling had been upheld by the Appellate Body.  Canada was confident that the United States was 
cognizant of the negative effects that the re-instateme nt of this measure would have, both in terms of 
inviting trade retaliation and calling into question th e value of a mutually-ben eficial WTO rules-based 
system. 
                                                      
2 See US Customs and Border Protection's website at: 
http://www.cbp.gov/linkhandler/cgov/trade/priority_trade/a dd_cvd/cont_dump/prelim_repor t08.ctt/prelim_report08.pdf  
3 Appellate Body Report, "US – Offset Act" (Byrd Amendment), paras. 255 and 259. 
4 Ibid. para. 259. 
5 Article 3.7 of the DSU.  WT/DSB/M/254 
 Page 9 
 
 
 39. The representative of Brazil  said that his country wished to express its appreciation to Japan 
and the EC for keeping this matter on the DSB's Ag enda.  Brazil urged the United States to take 
necessary actions to discontinue all disbursement s made to its domestic industry under the Byrd 
Amendment, including those relating to duties on entries of goods made and filed before 1 October 2007 that fell within the scope of th e "Deficit Reduction Omnibus Reconciliation Act of 
2005".  As Brazil had stated in previous DSB meetings, the maintenance of disbursements was 
detrimental to the rights of Members and was in di sagreement with the US ob ligations under the DSU.  
Therefore, it was Brazil's understanding that  the United States should implement the 
recommendations and rulings of the DSB by ceasi ng all disbursements carried under the Byrd 
Amendment.  Brazil also urged the United States to resist any attempt to revive the measure. 
40. The representative of Chile
 said that his delegation thanked the EC and Japan for bringing this 
important issue before the DSB for consideration.  Chile had not made statements under this Agenda 
item for the past few months, but was closely following the process of implementation of the DSB's recommendations by the United States.  Chile  hoped that these recommendations would be 
implemented in full and in a timely fashion.  Ho wever, Chile could not but express concern over the 
reports received from Washington concerning potential legislative moves to re-establish the 
Continued Dumping and Subsidy Off set Act of 2000, or a measure with similar effects.  Not only did 
Chile object to that possibility, bu t also wished to recall that, as a complaining party, Chile had rights 
and it could avail itself of those rights in the event that the legislation in question were to be re-
established. 
41. The representative of China
 said that his country thanked the EC and Japan for, once again, 
raising this item at the DSB meeting.  China shar ed the view expressed by previous speakers, and 
wished to join them in urging the United St ates to comply fully with the DSB's rulings. 
42. The representative of Thailand  said that his country thanked the EC and Japan for bringing 
this item before the DSB once more.  At this time, Thailand would simply like to express its 
continued disappointment at the United States' pers istent maintenance of these WTO-inconsistent 
disbursements.  Thailand thus urged the United St ates to cease the disbursements , to repeal the Byrd 
Amendment with immediate practical effect, and to resume providing status reports until such actions 
had been taken and this matter had been fully resolved. 
43. The representative of the United States  said that, as his country had already explained at 
previous DSB meetings, the US President had signed the Deficit Reduction Act into law on 
8 February 2006.  That Act included a provisio n repealing the Continued Dumping and Subsidy 
Offset Act of 2000.  Thus, the United States had ta ken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes.  The United States recalled, furthermore, that 
Members, including the EC and Japan, had acknowle dged during previous DSB meetings that the 
2006 Deficit Reduction Act did not permit the distribu tion of duties collected on goods entered after 
1 October 2007.  The United States, therefore, did not understand the purpose for which the EC and 
Japan had inscribed this item on the Agenda of the present meeting.  
44. With respect to comments regarding further status  reports in this matter, as the United States 
had already explained at previous DSB meetings, th e United States had taken all steps necessary to 
implement the DSB's recommendations and rulings in th ese disputes.  In this light, the United States 
failed to see what purpose would be served by fu rther submission of status reports repeating the 
progress the United States had made in the implementation of the DSB's recommendations and 
rulings.  Finally, the United States was not aware of any legislative proposals before the Congress that 
sought to re-introduce the CDSOA, which, as the United States had been explaining, had been repealed by the Deficit Reduction Act of 2005. 
45. The DSB took note
 of the statements.  WT/DSB/M/254 
Page 10  
 
 3. United States – Measures relating to shrimp from Thailand 
(a) Report of the Appellate Body (WT/DS343/AB /R) and Report of the Panel (WT/DS343/R) 
46. The Chairman
 drew attention to the communication from the Appellate Body contained in 
document WT/DS343/13 transmitting the Appellate Body Report on:  "United States – Measures Relating to Shrimp from Thailand", which had b een circulated on 16 July 2008 in document 
WT/DS343/AB/R, in accordance with Article 17.5 of  the DSU.  He reminded delegations that the 
Appellate Body Report and the Panel Report pertai ning to this dispute had been circulated as 
unrestricted documents.  As Members were aware, Article 17.14 of the DSU required that:  "An Appellate Body report shall be adopted by the DS B and unconditionally accepted by the parties to the 
dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days 
following its circulation to Members.  This adopti on procedure is without prejudice to the right of 
Members to express their views on an Appellate Body report".  
47. The representative of Thailand
 said that, at the outset, his country wished to thank the 
Members of the Panel and the Appellate Body, as well as the Rules Division, the Legal Affairs Division, and the Appellate Body Secretariat, for their work on this dispute.  Thailand warmly 
welcomed the adoption of the Panel and the Appe llate Body Reports, finding the two measures at 
issue to be inconsistent with US obliga tions under the Anti-Dumping Agreement and the  GATT 1994.  
The two measures were the "Enhanced Continuous  Bond Requirement" (EBR) and the use of zeroing 
to determine the dumping margins for Thai shrimp.  He recalled that since 2005, the United States had 
required importers of Thai subject shrimp not only to pay cash deposits of anti-dumping duties at the 
time of importation, but also to maintain a c ontinuous bond equivalent to 100 per cent of the 
estimated anti-dumping duty liability.  To obta in these bonds, importers had had to post cash 
collateral of at least the full value of the bonds.  As a result, importers of Thai shrimp were effectively 
required to pay a double penalty:  the cash deposits of estimated anti-dumping duties, inflated by the 
use of zeroing, and the significant additional costs to obtain the EBR for each year's imports.  The bonds on each year's imports may have to be maintain ed for up to five years before the bonds were 
released after final liquidation of each year's entries.  It was beyond dispute that the application of the 
EBR was not a supplementary or ancillary action intende d simply to ensure that importers paid in full 
any anti-dumping duties owed on Thai shrimp.  In stead, as US courts had also found, the EBR 
imposed an additional impermissible burden designed to  dissuade imports of Thai shrimp.  In fact, the 
costs of the bonds had been estimated at US$75 m illion per annum in collateral and well over US$20 
million to date in fees.  Given the "stacking" eff ect of the EBR, the overall burden on Thai exports 
currently ranged from US$120 to US$150 million.  Th is was an extremely h eavy cost for the Thai 
shrimp industry, which was a fundamental part of Thailand's rural and impoverished economy.  
48. Although Thailand was disappointed at the finding that the right to impose security 
requirements during the period following the imposition of a US anti-dumping order was found in the Ad Note to Article VI of the GATT 1994 rather th an Article XX(d), Thailand appreciated that the 
Panel and the Appellate Body Reports had articulated  clear limits on the types of additional security 
requirements that may be imposed to secure paym ent of anti-dumping duty liability.  The Reports 
made clear that such additional security may be  required only where existing cash deposits of 
estimated duties and bonds were not sufficient to c over the liability.  The conditions for the imposition 
of additional security were stringent.  They requi red a proper determination, based on a "rational 
basis" and "sufficient evidentiary foundation" of:  (i) a likelihood of a si gnificant increase in the 
margin of dumping for the specific products at issue;  (ii) a likelihood of risk of default for individual 
importers;  and (iii) the specific magnitude of an y liability increase.  In addition, as the Appellate 
Body had made clear, any security requirements that  "impose excessive additional costs ... convert the 
security into an impermissible specific action against dumping".  WT/DSB/M/254 
 Page 11 
 
 
 49. In addition, Thailand welcomed the Appellate B ody's rejection of the Panel's interpretation 
that cash deposits of estimated anti-dumping duti es collected by the United States following the 
imposition of definitive anti-dumping measures were not "duties" subject to the disciplines of Article 9 of the Anti-Dumping Agreement.  The Pane l's interpretation raised the possibility that the 
United States could respond to dumping by collecting at the time of importation cash deposits of 
estimated anti-dumping duties in excess of the previously-determined margin of dumping.  
Accordingly, all Members with exports subject to US anti-dumping measures should particularly 
welcome the Appellate Body's statement that it did not  share the Panel's view that cash deposits were 
not anti-dumping duties governed by Article 9.   
50. As Members might recall, Thailand was gravely concerned to see that the Panel's 
interpretation regarding cash deposits and recasti ng anti-dumping duties as security was included in 
the Rules Chair's November 2007 draft text for the Rules negotiations even before the Panel Report 
had been circulated to the Membership in Februa ry 2008.  Subsequently, in May 2008, Thailand, 
along with India and Viet Nam, had circulated a paper (TN/RL/GEN/157/Rev.1)  proposing to delete 
this erroneous recasting.  Now that the Appellate  Body had rejected the Panel's interpretation, 
Thailand hoped that Members would support its efforts to reject these amendments and to prevent any 
erosion of the fundamental discipline that action against anti-dumping might never exceed a previously-determined margin of dumping.  
51. Thailand noted that it had not argued before the Panel or Appellate Body  that it would never 
be permissible to collect additional bonds to secure payment of anti-dumping duties.  Instead, 
Thailand had argued that the legal basis for such su pplemental actions was found in Article XX(d) of 
the GATT 1994, not in the Ad Note to Article VI of  the GATT 1994.  In  Thailand's view, it was clear 
that under Article XX(d), the United States might take  measures necessary to ensu re that all importers 
of all products paid all duties due.  However,  nothing in the Anti-Dumping Agreement or the 
GATT 1994 allowed Members to impose on importers of goods subject to anti-dumping duties security requirements that went beyond those generally  applied to importers of  other goods and that 
served to burden dumped goods.  It was, therefore,  not necessary for the Panel and the Appellate 
Body to strain the ordinary meaning of the Ad Note to find authority to collect such supplemental general bonds.  Thailand was disappointed that th e Panel and the Appellate Body Reports had not 
considered this issue more thoroughly. 
52. In addition, some of Thailand's claims re garding the EBR under the GATT 1994 had not been 
addressed by the Panel on the grounds of judicial economy.  Thailand reserved the right to raise these 
and related claims in any further proceedings under Article 21.5 of the DSU.  Finally, Thailand 
acknowledged the administrative complications cause d by this dispute and DS345 dispute: "United 
States – Customs Bond Directive for Merchandise S ubject to AD/CVD duties", which had proceeded 
simultaneously.  Thailand would thus like to thank the United States, India and the third participants 
for the cooperative manner in which they had particip ated in those proceedings.  Moreover, Thailand 
looked forward to the United States' prompt impl ementation of the Panel and the Appellate Body 
findings in this dispute, and hoped that fu rther proceedings would not become necessary. 
53. The representative of the United States
 said that his country wished to begin by thanking the 
Panel, the Appellate Body and the Secretariat for th eir hard work on this dispute.  The United States 
was pleased that the Panel and the Appellate Body Re ports had confirmed that, consistent with the Ad 
Note to GATT 1994 Article VI:2 and 3, a Member might require reasonable security for anti-dumping 
duties pending final assessment.  As the Panel noted , "the ability to require security is an essential 
element of a retrospective assessment system".  The Ad Note authorized the imposition of security 
requirements during the period following the impositi on of an order for payment of duties ultimately 
owed.  With respect to this important threshold issue, both the Panel and the Appellate Body should 
be commended for their thorough textual analysis of the relevant provisions of the covered WT/DSB/M/254 
Page 12  
 
 agreements, as well as their careful articulati on of the relationship between the GATT 1994 and the 
Anti-Dumping Agreement. 
54. However, the United States regretted that the A ppellate Body had affirmed the Panel's finding 
that the bonding requirement, as applied to importers  of shrimp from Thailand and India, was not 
"reasonable" security.  Importers had failed to pay in excess of US$600 million in anti-dumping 
duties in recent years, and US Customs and Border  Protection applied the enhanced bond directive to 
shrimp to address what it had perceived at the ti me as a significant risk to the revenue.  The 
United States regretted that the Panel and the Appe llate Body had found that the particular evidence 
before it was not sufficient to support the US positi on that additional security was reasonable in this 
case.  More generally, however, the United States wo uld expect that customs authorities might require 
security for anti-dumping duties when evidence availabl e to them at the time the security requirement 
was imposed regarding the likelihood of additiona l liability and risk of default supported their 
decision to do so.  Finally, with regard to zeroing in  the context of average-to-average comparisons in 
investigations, the United States would note that the US Department of Commerce had discontinued 
zeroing in this context as a result of earlier DSB recommendations and rulings. 
55. The representative of India
 said that her country had participated in these proceedings as a 
third party and fully shared the views expressed by Thailand.  India welcomed the adoption of the 
Appellate Body Report and the Panel Report, as modifi ed by the Appellate Body.  As had just been 
mentioned by Thailand, India was a co-sponsor of th e paper regarding the deletion of certain issues 
mentioned in the Chair's Rules text.  India appr eciated Members' cooperation and believed that the 
clarification given by the Appellate Body would f acilitate further appropriate  actions in the on-going 
Rules negotiations.  
56. The representative of Chile  said that, as a third party to this dispute, Chile thanked the Panel, 
the Appellate Body and the Secretariat for their Re ports.  Chile supported the adoption of the Reports.  
Although Chile agreed with the final conclusion th at the Enhanced Continuous Bond Requirement 
was inconsistent with Article 18 of the Anti-Dump ing Agreement, it had serious systemic concerns 
regarding the analysis conducted by the Panel and th e Appellate Body.  The Ad Note to Article V1.2 
of the GATT 1994 referred to measures that might be  imposed prior to a final determination of 
dumping;  i.e. provisional measures, which were s ubsequently referred to in Article 7 of the Anti-
Dumping Agreement.  The Panel and the Appellate Body had reached a different conclusion, namely, 
that the Note permitted the taking of additional security, which both regarded as necessary to cover 
the risk inherent in any retrospective system.  Chile was concerned about  this conclusion on the 
following four counts.  First, the Appellate Body ha d relied on terms that were not in the Note, such 
as "duty assessment", "final liability" or amount of dumping.  Had those terms been important for understanding the scope of the Note, the negotiators would have been more sp ecific and would have 
used the wording such as:  "pending final determin ation of the amount of dumping" instead of "the 
facts", as stated in the Note.  Hence, Chile disagreed with the e nd of paragraph 221 of the Appellate 
Body Report.  Second, although Chile appreciated th e fact that the Appellate Body had reversed the 
Panel's conclusion that the existence of dumping wa s only determined in a review for assessment of 
the importer's final liability, the Appellate Body had made a distinction between dumping and amount 
of dumping, as though these were two separate matters .  Such a distinction had no basis in other 
provisions of the Anti-Dumping Agreement.  All fina l determinations included a determination of the 
facts;  i.e. dumping, injury, and causal link, as well as the amount or magnitude of dumping.  Also, 
any determination resulting from an administrative review under a retrospective system covered both 
elements:  the existence or the absence as well as the amount or magnitude of dumping.  Moreover, 
pursuant to a determination of dumping under a re trospective system, the importer was required to 
pay the specified amount, which might be reassessed afte r a certain period of time.  Third, if all final 
determinations necessarily involved a determination of the existence of dumping (and injury), as the 
Appellate Body had pointed out, then what was it that was suspected according to the terms of the 
Note?  It could not be the amount, as the Appellate Bo dy had appeared to conc lude, since in the case  WT/DSB/M/254 
 Page 13 
 
 
 of dumping a certain sum would always have to  be paid (although the amount might change as a 
result of a review).  Moreover, if the negotiators had had suspected payment in mind, they would have 
so specified in the Note.  Chile believed that su ch an arbitrary distinction might have significant 
systemic consequences.  Finally, the interpretati on made by the Appellate Body and the Panel had 
chiefly relied on the characteristics of a retrospective system and was, therefore, not neutral, despite 
the Appellate Body's assertion.  This unfortunately reflected how an attempt to adapt to one system 
for the administration of anti-dumping measures led to an interpretation that did not apply to the other systems.  In other words, a significant advantage – or rather an important tool – was granted to a single Member on the sole grounds that it used one system rather than another. 
57. In spite of the foregoing considerations, Chile welcomed the Appellate Body's confirmation in 
paragraph 230 of its Report that there was no fourth  specific action against dumping.  Likewise, Chile 
agreed with the Appellate Body's interpretation of the term "reasonable" in the Note.  Security was 
reasonable only to the extent that the authority had determined, on the basis of concrete evidence, 
both the likelihood of a significant future increase  in the margin of dumping as a result of an 
administrative review – the size of the increase would also have to be determ ined – and the likelihood 
that the importer might default on payment of th e additional liability.  Equally important was the 
Appellate Body's clarification of the elements that  might be taken into consideration for the purposes 
of determining the likelihood of de fault.  The Appellate Body made the further noteworthy statement 
that the risk of default on payment of minor amounts due in respect of duties determined in a review 
was inherent in a retrospective system and hence did not justify the security requirement.  In short, the 
Appellate Body had established a precise and proper t est to guard against the unwarranted taking of 
security which was not permissible under the GATT or the Anti-Dumping Agreement and ultimately 
constituted a double remedy. 
58. The representative of Viet Nam
 said that his country wished to thank the Panel, the Appellate 
Body, and the Secretariat for their enormous wo rk on this case, and welcomed the findings and 
conclusions of the Appellate Body Report.  Viet Na m had participated in this dispute as a third party 
and had claimed that the application of the US E nhanced Bond Requirement w as inconsistent with the 
WTO regulations and thus unfairly affected trade.  Therefore, Viet Nam appreciated the Appellate Body's findings and conclusions and hoped that the parties concerned would implement the DSB's 
recommendations and rulings as soon as possible. 
59. The DSB took note
 of the statements, and adopted  the Appellate Body Report contained in 
WT/DS343/AB/R and the Panel Report contained in WT/DS343/R, as modified by the Appellate 
Body Report. 
4. United States – Customs Bond Directive for merchandise subject to anti-
dumping/countervailing duties 
(a) Report of the Appellate Body (WT/DS345/AB /R) and Report of the Panel (WT/DS345/R) 
60. The Chairman  drew attention to the communication from the Appellate Body contained in 
document WT/DS345/12 transmitting the Appellate Bo dy Report on:  "United States – Customs Bond 
Directive for Merchandise Subject to Anti-Dumpi ng/Countervailing Duties", which was circulated on 
16 July 2008 in document WT/DS345/AB/R, in accordance with Article 17.5 of the DSU.  He 
reminded delegations that the Appe llate Body Report and the Panel Re port pertaining to this dispute 
had been circulated as unrestricted documents.  As Members were aware, Article 17.14 of the DSU required that:  "An Appellate Body report sha ll be adopted by the DSB and unconditionally accepted 
by the parties to the dispute unless the DSB decid es by consensus not to adopt the Appellate Body 
report within 30 days following its circulation to  Members.  This adoption procedure is without 
prejudice to the right of Members to express their views on an Appellate Body report".  WT/DSB/M/254 
Page 14  
 
 61. The representative of India
 said that, at the outset, her country wished to thank the members 
of the Panel, the Appellate Body and the Secretar iat and to express its sincere appreciation for the 
efforts made by them in this matter.  The Panel a nd the Appellate Body in this case had ruled that the 
United States had breached its obligations under the Anti-Dumping Agreement and the GATT 1994 when it had applied the "Enhanced Continuous Bo nd Requirement" (EBR) to imported shrimp from 
India and Thailand.  The central issue in this dispute was the WTO-consistency of the enhanced 
continuous bond requirement imposed  by the United States on importers  of frozen warm water shrimp 
subject to anti-dumping duties from India and certain  other countries in addition to the cash deposits 
of estimated anti-dumping duties from such importe rs.  This EBR had been imposed under certain 
legal instruments, which were referred to toge ther as the Amended Customs Bond Directive.  The 
amount of the continuous bond required from each impor ter would be for an amount equal to the total 
amount of the anti-dumping or countervailing duties th at would have been payable on the total value 
of imports made by each importer during the previous  year.  Further, this continuous bond would not 
be released until an assessment review was comple ted.  With each assessment review, concurrent 
rounds of bonds would have to be given, but previous bonds would not be discharged until the 
assessment review was complete.  This resulted not only in excessive costs, but also in depleting the 
capital of importers.  As the evidence showed, this  EBR had been a heavy burden on Indian exporters. 
62. India warmly welcomed the Panel and the Appella te Body imposing strict limits on the use of 
the additional bonds.  While upholding the Panel's finding that the additional security requirement 
resulting from the application of the EBR to subject shrimp was "not reasonable" within the meaning 
of the Ad Note, the Appellate Body had provided clear criteria on what would constitute "reasonable" 
security, and laid down a two-step approach to assess the "reasonableness" of a security.  
Accordingly, the importer must first determine the likelihood of an increase in the dumping margin, which would result in a "significant additional liabil ity" to be secured.  This determination needed a 
"rational basis" and must be supported by "suffi cient evidence".  The Memb er then must assess the 
likelihood of default by the affected individual impor ter.  The Appellate Body had thus categorically 
mentioned that:  "the risk of default of individual im porters is an important fact or in an analysis of the 
reasonableness of a security".  Hence, the Appellate  Body had reversed the legal interpretation made 
by the Panel that, in the context of the applicati on of the EBR, there was no obligation under the Ad 
Note to assess the risk of default by individual importers. 
63. In addition, India wished to stress another f undamental aspect of the Appellate Body Report, 
namely, the Appellate Body had upheld India's ar gument and had reaffirmed that the Anti-Dumping 
Agreement did not allow a fourth category of specific action against dumping.  Although the 
Appellate Body had found that taking of security was accessory or ancillary to the collection of 
lawfully established duties, it had unequivocally fo und that "an impermissible specific action could 
not be taken in the guise of a "‘security".  This secu rity must be evaluated "in the light of the nature 
and characteristics of the security and the particul ar circumstances in which it was applied (AB Report 
paras. 230-31).  Further, the "security requireme nts that imposed excessive additional costs on the 
importers may convert the security into an impe rmissible specific action against dumping" (AB 
Report para. 258).   
64. Another conclusion reached by the Appellate Body  that merited attention was with regard to 
the Panel's legal characterization of cash deposits.  The Appellate Body had categorically disagreed 
with the Panel's interpretation that  cash deposits of estimated duties were a security, not a duty within 
the meaning of Article 9 of the Anti-Dumping Agreemen t.  This clarification would put an end to the 
controversy that had arisen due to the Panel's err oneous interpretation.  The Panel's approach would 
have had far reaching consequences, since recasti ng of anti-dumping duties as security would possibly 
eliminate any cap on measures that might be impos ed on dumped goods at the time of entry, because 
it would allow authorities to impose measures, ba sed on dumping margins that the imposing Members 
considered were merely likely to occur.  Th is was in complete opposition to the Anti-Dumping 
Agreement, which permitted actions  against dumping that were limited to duties or price undertakings  WT/DSB/M/254 
 Page 15 
 
 
 that offset dumping based on an actual determined margin of dumping.  The Anti-Dumping 
Agreement did not permit action on the basis of fu ture, and as yet undetermined, dumping margins. 
65. India was, however, concerned about the Appe llate Body's findings on the "temporal scope" 
of the Ad Note to Article VI of the GATT 1994.   Although the Appellate Body had agreed that 
Article 7 of the Anti-Dumping Agreement and Artic le 17 of the SCM Agreem ent overlapped with the 
area covered by the Ad Note, the Appellate Body co uld not appreciate the argument that the Ad Note 
could not furnish a legal basis for the Members to take security under its retrospective system.  The 
Appellate Body had held that the temporal scope of  the Ad Note did extend to the taking of security 
after the final determination of the existence of dumping.  According to the Appellate Body, in the 
case of retrospective duty assessment system, the magnitude of dumping, or the amount of final 
liability for the payment of anti-dumping duty, was determined only in assessment reviews.  Thus, 
according to the Appellate Body, dumping remained "s uspected" within the meaning of the Ad Note 
as regards its magnitude.  While rejecting the Pane l's reasoning of "suspected  dumping", the Appellate 
Body had dissected the "suspected dumping" into ex istence of dumping and "magnitude" of dumping.  
The Appellate Body had agreed that the "existen ce" of dumping was established in the original 
investigation, however, the Appellate Body had go ne on saying that the term "dumping" in the Ad 
Note could refer to both the existence and magnitude  of dumping, that while the existence of dumping 
was determined in the investigation, dumping may s till be suspected with respect to the magnitude of 
dumping until the completion of an administrative re view.  The Appellate Body's interpretation of 
"suspected dumping" that might require reasonable s ecurity under the Ad Note raised concerns, since 
the Appellate Body had held that the fact of ex istence of dumping was no longer suspected after the 
imposition of anti-dumping duty order by the Member.  The analysis of the Appellate Body in support 
of suspected dumping as referring to the "magn itude" of dumping was based on a very narrow 
reasoning in so far as it permitted a measure over a nd above the prior objective determination of the 
amount of dumping, driven by the likely increase in dumping analysis. 
66. This analysis by the Appellate Body was a matter of systemic concern to Members.  In the 
light of the carefully developed disciplines in the Agreement on Implementation of Article VI of the 
GATT 1994 (the Anti-Dumping Agreement) and the SC M Agreement, it was clear that, if Members 
had intended to confer the right to take security  under retrospective duty assessment system, they 
would have found a place in the Anti-Dumping Agre ement and the SCM Agreement.  At the same 
time, Members would themselves have negotiated pro cedural and substantive restrictions on the right 
to take security for payment of definitive duti es under the retrospective assessment system, as they 
had done in the provisional measures, price undertakings and definitive duties. 
67. With that limited reservation in mind, India warmly welcomed the Appellate Body Report 
and the Panel Report, as modified by the Appella te Body, expecting prompt and full compliance by 
the United States with the DSB's recommendations and rulings.  In addition, some of India's claims 
regarding the EBR under the GATT 1994 had not b een addressed by the Panel on the grounds of 
judicial economy.  India reserved the right to raise these and related claims in any further proceedings 
under Article 21.5 of the DSU.  Finally, India wish ed to thank the United States, Thailand and the 
third participants for their cooperation during the pr oceedings, especially in the light of administrative 
complications caused by this proceeding.   
68. The representative of the United States  said that his country wished to thank the Panel, the 
Appellate Body and the Secretariat for their hard wo rk on this dispute.  The United States would not 
repeat its comments regarding issues discussed under th e previous item, but would like to add a few 
points regarding certain aspects of the panel and the Appellate Body reports un der consideration here.  
First, the United States commended the Panel and the Appellate Body for rejecting India's request to 
expand the scope of its complaint to include additional measures th at had not been included in its 
consultations request, merely because they had alle gedly provided "aut hority" for application of the 
enhanced bond directive.  This was an issue with  some systemic significance, and the Appellate WT/DSB/M/254 
Page 16  
 
 Body's analysis had reaffirmed the role of consulta tions in defining the scope of a dispute, consistent 
with Articles 4 and 6 of the DSU.  The United States was also pleased that the Panel and the Appellate Body had rejected India's "as such" claims regardi ng the enhanced bond directive.  As the Appellate 
Body had found, a bond was not a "duty" and, therefor e, did not fall within the scope of Article 9.  
Furthermore, the Ad Note permitted "reasonable" sec urity after imposition of an  order and, therefore, 
whether the enhanced bond directive was properly app lied in a particular case depended on the facts.  
69. Finally, the United States wished to make one last observation.  The document being 
discussed under this item was the same document as the one discussed under the previous item, 
despite the fact that the items related to two separat e appeals of two separate panel reports;  the parties 
and third parties to the two disputes were different; and there were several issues in each dispute that 
were not present in the other.  In the view of th e United States, the Appellate Body should have issued 
two separate reports.  In fact, the United States had asked the Appellate Body to do so, and very much 
regretted that its request had not even been discu ssed during the oral hearing or in the Report.   
70. The DSB took note
 of the statements, and adopted  the Appellate Body Report contained in 
WT/DS345/AB/R and the Panel Report contained in WT/DS345/R, as modified by the Appellate 
Body Report. 
5. Expression of views under Article 17.14 of the DSU prior to the adoption of an Appellate 
Body report 
(a) Statement by the European Communities 
71. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Communities, and he invited the repr esentative of the Europ ean Communities to speak. 
72. The representative of the European Communities  said that delegations would recall the 
meeting of the DSB during which the Appellate Body report on: "United States – Stainless Steel" (DS344), concerning zeroing, had been adopted.  On that occasion, the United States had again requested the circulation of a communicati on criticizing the Appellate Body's decision.
6  With respect 
to zeroing, the EC considered that the clarification by the Appellate Body of the Anti-Dumping 
Agreement necessarily flowed from an objective applica tion of the agreed rules of interpretation.  The 
EC also considered that in this and other zeroing case s, the Appellate Body had correctly restricted its 
analysis to the particular issues in dispute.  Ho wever, the purpose of the statement under this Agenda 
item was not to reiterate selected arguments relating to zeroing, which were set out at length in the 
relevant pleadings and had fully been dealt with in the reports.  Rather, the sole purpose of the 
statement was to raise the general question of e xpressions of views in the DSB and the subsequent 
circulation of documents containing such comments. 
73. The EC recalled that the issue of the circulati on of documents had first arisen when the DSB 
had adopted the panel report on:  "Japan – Apples" (Article 21.5;  DS245).  Japan had made a short 
statement, but it had also had a longer version of that statement, which had been circulated "as a 
relevant DS document", with the agreement of other WTO Members in that particular case.7  T hi s  
approach had been adopted at the same meeting in relation to Korea's statement on the Appellate 
Body report (DS296) "US – DRAMs".8  The circulation had subsequently occurred in the WT/DS-
series of the disputes in question.  Since then, in  four cases, the United States had requested and had 
                                                      
6 WT/DS344/11. 
7 20 July 2005 DSB, WT/DSB/M/194, paras. 70 to 76;  WT/DS245/19 (2 pages). 
8 20 July 2005 DSB, WT/DSB/M/194, paras. 84 to 85;  WT/DS296/9 (11 pages).  WT/DSB/M/254 
 Page 17 
 
 
 obtained the subsequent circulation of such statements.9  The EC was concerned about the 
proliferation of these cases and felt compelled to make the following observations.  Any Member had 
the right, at any time, to express its views on an y panel and Appellate B ody reports.  However, 
Articles 16.4 and 17.14 of the DSU10 did not create such right, but merely provided that the adoption 
procedure for panel and Appellate  Body reports was "without prejudice" to such right.  Members 
should ideally moderate the length of such statemen ts.  Repetition (and subseque nt re-translation) of 
legal arguments already set out in the report before  the DSB for adoption was not an efficient use of 
Members' time and resources.  A succinct oral stat ement should be sufficient.  Regarding the content 
of such statements, the EC understood also from its own experience, that a Member who lost dispute 
proceedings, might continue to have strongly held  views and might wish to express such views.  
However, nothing in the expression of such view s should call into question the losing Member's 
mandatory and unconditional acceptance of the report.  The WTO Agreement was a single 
undertaking, and the Appellate B ody consisted of persons of rec ognized authority and expertise, 
whom all Members had appointed, and whose judgm ent all Members had agreed to accept.  The 
adoption of an Appellate Body report marked the re solution of the dispute.  The DSU did not foresee 
potentially interminable further exchanges, with one  or other Member's intent upon having the "last 
word".   
74. However, the main point that the EC wished to make related less to the length and content of 
such statements, and more to their form.  In WT O dispute settlement practice such statements were 
recorded in the minutes of the DSB meetings, which was logical given that WTO Members made these statements in the course of the DSB meetings.  That being so, the EC was of the view that, 
regardless of whether or not, in any particular  case, any Member objected to the subsequent 
circulation of a longer document, such document should not be designated as a WT/DS document.  
WT/DS documents related to specific procedural st eps occurring on the basis of the DSU, of which 
the Members needed to be informed in order to know what the law was, or in order to know what was 
the state of the dispute, or in order to be in a position to exercise their rights under the DSU should 
they wish to do so.  Documents containing a statem ent of views by one party to the dispute or one 
Member did not fall into this category, and shoul d not be circulated as a WT/DS document and the 
number of the dispute in question, any more than any other Member's expression of views, recorded 
in the DSB minutes, should be so designated and/or  subsequently circulated.  Clearly, the separate 
circulation of each and every statement by Memb ers in the DSB, without limitation, would be 
undesirable, and at odds with the practice.  Taking a ll of these matters into account, and in the light of 
experience, the EC was considering that, in any par ticular case in the future, the EC might object at 
the relevant DSB meeting to any attempt to subseq uently circulate a longer statement with the WT/DS 
designation.  The EC would welcome the support and comments of other Members on this matter, 
either at the present meeting, or at a subse quent one, once Members had had sufficient time for 
considered reflection. 
                                                     
 
9 AB report in DS294 "US – Zeroing" (EC), 9 May 2006 DSB, WT/DSB/M/211, para. 37;  
WT/DS294/16 (9 pages) (the DSB minutes merely record the statement by the United States that it intended to 
request the subsequent circulation as a WT/DS document);  AB report in DS322 "US – Zeroing" (Japan), 23 January 2007 DSB, WT/DSB/M/241, paras. 74 and 76;  WT/DS322/16 (7 pages) (the DSB minutes merely 
record the statement by the United States that it intended to request subsequent circulation, but not as a WT/DS 
document); panel report in DS241 "Turkey – Rice", 22 October 2007 DSB, WT/DSB/M/241, paras. 42 to 45;  WT/DS334/9 (2 pages) (the DSB minutes do not record the intended subsequent circulation);  AB report in 
DS344 "US – Stainless Steel", 20 May 2008 DSB, WT/DSB/M/250, para. 49;  WT/DS344/11 (13 pages) (the 
DSB minutes merely record the statement by the United States that it intended to request subsequent circulation, but not as a WT/DS document). 
10 "An Appellate Body report sha ll be adopted by the DSB and unco nditionally accepted by the parties 
to the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days following its circulation to the Members.  This adoptio n procedure is without prejudice to the right of Members 
to express their views on an Appellate Body report." WT/DSB/M/254 
Page 18  
 
 75. The representative of the United States
 said that it might be useful to begin by recalling the 
context in which Members had circulated their writte n statements with respect to certain panel and 
Appellate Body reports.  Members would recall that Rule 23 of the Rules of Procedure for DSB meetings provided as follows:  "Representatives shall endeavour, to the extent that a situation permits, 
to keep their oral statements brief.  Representativ es wishing to develop their position on a particular 
matter in fuller detail may circulate a written statem ent for distribution to Members, the summary of 
which, at the representative's request, may be reflect ed in the records of the [DSB]."  Members would 
no doubt also recall that Members often had extensiv e views on panel and Appella te Body reports.  It 
would appear to the United States that those Member s who had circulated statements were mindful of 
the admonition that they should endeavour to keep their oral statements brief, and so had taken 
advantage of the procedure foreseen in Rule 23:  th ey had prepared a written statement for circulation 
by the Secretariat.  In this connection, the Unite d States wished to  recall that a number of Members 
had done the same thing.  In the Apples dispute, Jap an had made a brief statement at a DSB meeting, 
but had then circulated a longer written statem ent on 22 July 2005, in document WT/DS245/19.  
Korea had followed the same pro cedures in the DRAMs dispute;  its longer written statement had 
been circulated on 28 July 2005, in document WT/D S296/9.  A similar situation had arisen in the 
1916 Act dispute, when Mexico had circulated a written communication to the DSB setting out its 
views with respect to a particular issue in the pa nel report.  That communication had been circulated 
on 26 July 2000, in document WT/DS162/8. 
76. With respect to the EC's comments about the re lationship between the content of a Member's 
statements and the Appellate Body reports, the Un ited States recognized the important contribution 
made by the Appellate Body to the dispute settlement  system.  It was true that when the Appellate 
Body issued a report, the parties must unconditionall y accept the findings in that dispute, regardless of 
any views they might have about imperfections in the analysis.  Yet, given the importance of the 
dispute settlement system to the WTO, it would do a disservice to the system in general, and to the 
Appellate Body in particular, to let such matter s go unremarked.  Indeed, Article 17.14 of the DSU 
provided that the Appellate Body report adoption procedure "is without prejudice to the right of 
Members to express their views on an Appellate Body report".  And, of course, it was well known that 
many Members had taken advantage of their right to  make DSB statements criticizing an Appellate 
Body report or a panel report, or suggesting that the outcome of such a report was wrong.  Delegations that had any question in their mind ab out that may wish to review the minutes of the 
meetings at which the DSB had adopted the Appella te Body reports in the "Sugar" and "Chicken 
Cuts" disputes.  However, the fact that Members ma de such statements did not in any way call into 
question their acceptance of the results in the partic ular dispute.  In addition, one should not overlook 
the possibility that discussion of such matters may fu rnish cogent reasons that would ultimately lead 
to further clarification of the issues in question. 
77. In addition, the United States did not really follow the EC's asserted concern about document 
symbols that the Secretariat assigned to these statem ents.  In the first place, these document symbols 
did not themselves have any legal effects.  Docu ment symbols and document series existed for the 
purposes of convenience, to allow Members and the S ecretariat to group documents in useful ways 
and to locate them easily.  Document symbols c ould not and did not change Members' rights and 
obligations.  In any case, the EC's suggestion that  the Secretariat abandon its current practice of 
issuing these statements in the relevant WT/DS-ser ies – that is, the document series created for the 
specific dispute – seemed to make very little sense.  Every other document relating to a particular 
dispute bore a number in that series.  It was entirely sensible that a written statement relating to a particular dispute should also carry a number in th at series.  In conclusion, the United States failed to 
see how the current practice – which was contempl ated by both the DSU and the DSB's Rules of 
Procedure, and which had been followed for many  years – raised any concerns or difficulties.  WT/DSB/M/254 
 Page 19 
 
 
 78. The representative of Japan  said that his delegation thanked the EC for its statement.  Japan 
understood that the thrust of the statement was the EC's concern that the authority of adopted 
Appellate Body reports, and the mandatory nature  of unconditional acceptance of reports by the 
parties, should not be undermined by particular ways or forms in which Members expressed their 
views on those reports.  Japan agreed with this general proposition.  Based on Article 17.14 of the 
DSU that provided:  "[a]n Appellate Body repor t shall be adopted by the DSB and unconditionally 
accepted by the parties to the dispute ...", the Appe llate Body had concluded that its reports adopted 
by the DSB "must be treated by the parties to a particular dispute as a final resolution to that 
dispute".11  Thus the parties must treat an adopted Appe llate Body report as final and comply with the 
findings and rulings in the report in their entirety without any condition, regardless of their views.  
Japan agreed with the EC that Members had th e right to express their views on Appellate Body 
reports and were free to do so at any time.  Japan noted also that nothing in the DSU expressly circumscribed the length or content of views that  Members wished to express.  The practice of 
circulating a longer written statement or document as a WT/DS document had been developed as a 
way to exercise Members' legitimate right.  Japan be lieved that this practice had never been intended 
or designed to diminish the authority, and manda tory nature of parties' unconditional acceptance of 
adopted Appellate Body report.  
79. That being said, should the WT/DS designation of such longer documents call into question 
the status of an adopted Appellate Body report as a final resolution to the dispute or unconditional 
acceptance of the report by parties to the dispute, th e practice must be scrutinized by the Membership 
and any shortcoming must be rectified.  In this  respect, relevant consideration might include:  
(i) whether giving the same WT/DS designation to a document in which Members expressed their 
view as was given to an Appellate Body report would elevate the status of such document and 
somehow gave legitimacy or credit to its contents to  the detriment of the status of adopted report;  
(ii) whether the designation would give a false impr ession that party's acceptance of the report was not 
unconditional;  (iii) whether an unilateral expr ession of views criticizing the Appellate Body's 
decision could be properly characterized as a step in the process contemplated under the DSU toward 
the end of resolving the dispute;  and (iv) what th e alternative way would be, for instance, whether it 
would be acceptable that a longer document containi ng Member's view be reflected in the minutes of 
the meeting as a statement of that Member, or whethe r there would be any other relevant designations.  
Since this practice of designating a longer stat ement as a WT/DS document might have originated 
from Japan's action when it had circulated a longer version of its statement in the context of the 
dispute to which Japan had been party, Japan wa s willing to engage in the discussion with other 
interested Members to address the issue and concerns raised by the EC.  
80. The representative of Norway
 said that her delegation had listened with interest to the EC's 
statement.  Norway had no fixed position on this ye t, but had some preliminary observations.  Norway 
considered that the question before the DSB at th e present meeting was not related to the right to 
express views under Article 17.14 of the DSU, and th at the only issue was the appropriate format for 
recording all such statements and the document symbol when a Member desired to make its 
observations not only orally at the meeting – but also in writing.  The WTO had a long history of Members making interventions at meetings, and then requesting that their statements – including their 
longer versions – be recorded and circulated to th e Membership.  Previously, in the DSB, statements 
by Members had been circulated with a special doc ument symbol.  This had been the case with the 
statements relating in pa rticular to two disputes:  (i) "US – Section 211 Omnibus A ppropriations Act", 
and (ii) the Bananas dispute.  Statements regard ing these two disputes had been circulated in the 
WT/DSB/COM-series.  Other bodies of the WTO had adopted slightly different practices.  In the General Council, written statements by  Members had either been circul ated as annexes to the minutes 
of the relevant meeting, as could be seen from the minutes in document WT/GC/M/109;  or as 
                                                     
 
11 Appellate Body Report, "US – Shri mp" (Article 21.5 – Malaysia), pa ra. 97.  See also Appellate Body 
Report, "EC – Bed Linen" (Article 21.5 – India), paras. 90 – 91. WT/DSB/M/254 
Page 20  
 
 separate documents in the WT/GC series (WT/GC /81).  While the WT/GC/COM-series had been 
prevalent until 1999, that practice had been term inated after 1999 when the WT/GC-series had taken 
over.  In the area of Services, there seemed to be a practice to circulate such statements as JOB-
documents (i.e. JOB(07)/214).  This very brief, and incomplete list of examples from other WTO 
bodies demonstrated that there were many tools ava ilable to Members, and that there was no uniform 
practice.  However, such statements – it seemed – had never been circulated as addenda to a particular 
working document treated under the agenda item to whic h the statement related.  When a statement in 
the General Council related for example to a budgeta ry matter, such a statement was not circulated 
with a "BFA-symbol".  The relationship created seem ed generally to be to the minutes of the meeting 
where the statement had been delivered.  While this  was not a final position of Norway on this issue, 
it would seem that the EC did have a point, and that  statements upon the adoption of panels and the 
Appellate Body reports should have a link to the re levant minutes of the DSB meeting adopting that 
report – and not be circulated with a document sy mbol linking it to the particular report.  Using 
WT/DSB – and a number or WT/DSB/COM would seem more appropriate – or simply annexing them 
to the minutes of the relevant DSB meeting as the General Council had done.  Norway looked forward 
to hearing views of other delegations on this issue,  and to working with them  in order to find an 
appropriate solution. 
81. The representative of Australia
 said that her delegation thanke d the EC and other delegations 
who had commented under this Agenda item.  Austra lia noted, as a preliminary matter, that the EC 
had not circulated its written statement prior to  the present meeting and,  consequently, other 
Members, including Australia, had not had an opport unity to consider the issues raised by the EC.  
Australia's comments were, therefore, necessarily brief and preliminary.  However, having listened 
carefully to the intervention by the EC and others, her delegation would refer to Rule 23 of the Rules 
of Procedure, which specifically directed Members to develop positions thr ough a written statement.  
Therefore, Australia found it diffi cult to understand the criticism being directed at Members who were 
following the practice set out in Rule 23.  Australia wondered whether the EC was proposing to 
amend that Rule, if it had concerns regarding the ci rculation of written statements.  Australia felt that 
it was important to distinguish between the right of Members to make comments and the manner in 
which those comments were subsequently distribut ed as a document.  Australia would find it of 
concern if the right of Members to make comment s on reports was being questioned in any way.  
Australia did not find convincing the assertion that  by making comments critical of the Appellate 
Body in some way affected the unconditional acceptan ce of the report, as referred to in Article 17.14 
of the DSU.  There could not be a legal distinc tion between a short oral statement that was highly 
critical of an Appellate Body report, a longer statement that was moderately critical or a written statement circulated in accordance with Rule 23 that took a longer time to make  a criticism.  Australia 
found this distinction quite confus ing and would welcome reassurance that this was not intended.  
Australia also did not find convincing the comment s by Japan that a status or a document symbol 
assigned to a written statement circulated to Memb ers under Rule 23 could in some way affect the 
unconditional acceptance of reports by Members under Article 17.14 of the DSU.  It was also of 
concern to Australia if that was being implied.  So her delegation felt that while these were some 
preliminary comments, it was something that Australia  would need to carefully consider.  That having 
been said, her delegation listened with interest to Norway's statement, but admitted that it didn't fully 
follow everything that had been stated regardi ng document symbols and that was something that 
Australia had not fully examined. 
82. The representative of Chile
 said that his country wished to thank the EC for its statement.  
Chile understood that Members had the right to express their views on the content of panel or 
Appellate Body reports upon their adoption.  It was understood that such views did not affect the 
obligation to fully implement the DSB's recommenda tions and rulings.  However, Chile considered 
important that objections or views concerning reports  should be circulated a few days prior to the 
DSB meetings so that other Members would have time to react to them.    WT/DSB/M/254 
 Page 21 
 
 
 83. The representative of Canada  said that his country did not yet have a view on how to 
approach this matter.  His delegation had listened car efully to the EC's statement and wished to make 
some preliminary comments.  Canada was not convinced that the content and the length of views on reports was something that Members should seek to limit.  Members had a right to make criticisms, if they so wished, on an Appellate Body report.  They had the right to state their views.  In addition, 
Members had the right, under Rule 23 of the Rules of Procedure, to make comments in writing, if they 
so wished.  However, even if they made such comments, this did not necessarily mean that the 
Appellate Body reports were not unconditionally accepted by the DSB and all parties.  Canada had 
not seen an example where a criticism of an Appellate  Body report had actually been stated and that 
party had not unconditionally accepted the report as adopted by the DSB.  However, at a later date, 
Canada might wish to consider the point raised by the EC, namely, the form of these comments and 
how they should be circulated.  In this regard, Norway had suggested a number of examples used by 
other WTO bodies, and certain Members had expressed  views about the form in which criticisms 
were reported.  This was something that Members mi ght wish to consider.  Canada was not convinced 
that what the EC had stated at the present meeting about the circulation of these documents as DS 
documents somehow gave it a different status that at  a later date might actually affect the adoption of 
an Appellate Body report.  However, in order to ha ve a more consistent appr oach with the circulation 
of these documents, interested Members could discu ss this matter and convey their considered views 
back to the Secretariat. 
84. The representative of Argentina
 said that his country wished to thank the EC for raising this 
issue at the present meeting.  Argentina's comments would be preliminary, since his delegation did 
not have an opportunity to see the EC's statement prio r to the present meeting.  First of all, Argentina 
was glad to note that none of the delegations who had spoken at the present meeting had contested the 
right of Members to express their views on the Appe llate Body or panel repor ts under Article 17.14 of 
the DSU.  It was his country's understanding that Article 17.14 of the DSU left no room for doubt as to the definitive and unconditional nature of Appella te Body reports;  nor, however, did it leave room 
for doubt as to the right of Members to express their views on them.  It was no coincidence, nor was it 
irrelevant, that this particular provision was cont ained in Article 17.14 of the DSU.  The problem at 
hand was related to the question of how to circul ate those written statements, but there was no 
question regarding the unconditional acceptance of Appe llate Body reports.  Argentina noted in this 
connection the ideas put forward by Norway and woul d be looking at them more closely.  Finally, 
regarding symbols under which those documents should be circulated, Argentina noted the 
importance of ensuring that any such symbols shoul d be closely linked to panel and the Appellate 
Body reports.  
85. The representative of Mexico
 said that the issue under discussion could be considered in the 
context of the DSU negotiations.  At the present m eeting, he would only make some preliminary 
comments in light of what had just been stated by other delegations, in particular the United States 
and Norway.  First of all, he wished to know whether any Member had ever imposed any condition 
regarding the acceptance of reports when expressing its views in accordance with Articles 16.4 and 
17.14 of the DSU.  Perhaps one could look at prev ious statements circulated in writing after the 
adoption of reports.  He believed that the issue of  the link between statements and a specific dispute 
nomenclature or an attachment to the minutes of th e DSB meetings, when such statements were not 
read out during the meeting, was in the hands of the Secretariat.  It was not up to Members to decide 
on this.  The rules and criteria used by the Secret ariat determined how docum ents should be grouped.  
Perhaps, this issue should rather be looked at by th e Secretariat, which could shed some light on the 
criteria for inclusion of certain documents under rele vant symbols.  While in other WTO Bodies links 
between statements and specific nomenclatures did not  exist, in the DSB there were specific links to 
the Rules of Procedure and the text of the DSU.  Therefore, it might be correct to include such 
statements under the nomenclature used in the sp ecific dispute it addressed, which would not change 
the legal value of such statements.  It might, theref ore, be useful for Members to reflect on whether a WT/DSB/M/254 
Page 22  
 
 link to each DS case or to the DSB minutes should be maintained so as to enable delegations to locate 
documents easily, as mentioned by the United States.  
86. The representative of the European Communities
 said that her delegation wished to react to 
the interventions that had just been made.  She thanked those delegations who had intervened, in 
particular those who shared the EC's systemic concerns or who had signalled their openness towards 
finding a more appropriate and acceptable solution to  the matter at hand.  She would just like to 
quickly react to the concerns that had been voiced.  She wished to make clear that the EC did not call 
into question, and certainly accepted that any Memb er could, at any time, express its views on any 
Appellate Body report.  That was best expressed by Chile who had stated that all had recognized that 
there was unconditional acceptance of reports as stipulat ed in Article 17.14 of the DSU and, therefore, 
if one made a statement to express views, this s hould not affect the integrity of an Appellate Body 
report.  The EC would agree with this.  But the EC's concern at the present meeting was related to 
form and was really the specific issue of the designation of documents as WT/DS-number and some Members had stated that they did not quite understa nd "what the big deal was about".  Therefore, she 
would wish to explain briefly the EC's view on this.  The EC considered that WT/DS documents, 
which were translated, were those necessary to allow Members to know what the law was or to decide 
whether or not to exercise their rights under the DS U.  The EC believed that unilateral expressions of 
views by the losing party did not fit into that category and badly fit as a document following the Appellate Body's final ruling and enjoying the same  documentary status.  The EC was not aware of 
any other court or tribunal, which had its judgeme nts published, to be followed immediately by a 
lengthy unilateral statement by the losing party explaining what was wrong with the judgement and 
the court that had delivered it.  And in that regard , the EC did not agree with Mexico's view that it 
would be up to the Secretariat to decide on the desi gnation of such documents.  The EC believed that 
it was up to the DSB and that this was a decision to be taken by consensus.  The point had been made 
that if it was not a DS designation, the document would not be found anymore.  The EC felt that interested Members or persons could easily find th e DSB minutes via the date of adoption.  That was 
where one looked up what a Member had to say when a report was adopted.  The DSB minutes 
reflected what all Members, who had spoken, said about the report and not exclusively the statement 
of one individual Member.  The DSB minutes were the place where one looked up if one wanted to read how a particular report had been received by Members.  The EC was very grateful for Norway's intervention suggesting alternative solutions and agreed  that other options could be considered:  i.e. a 
possibility to annex to the DSB minutes a statem ent that would be too lengthy or subsequent 
circulation of WTO documents under, for example as Norway had suggested, a DS/COM-number or a 
DSB/W-number or a JOB number.  The EC was ready to engage in any further discussions on finding a solution to which all WTO Members would agree a nd believed that this should be possible in light 
of all available options.  At the same time, she would already take stock of the fact that, from now on, the circulation of such statements in the WT/D S document series did not enjoy the DSB consensus. 
87. The representative of Mexico
 said that, in response to the comments made by the EC, he 
wished to note that he had not stated that it was up to the Secretariat to decide on this issue, but rather 
that it was up to the Secretariat to assign symbols to  documents, and, therefore, the Secretariat should 
clarify this issue.  He was not aware of any rules in  this regard.  Perhaps the Secretariat could explain 
the criteria for circulating written statements as DS  documents.  He would also welcome if the EC 
could shed some light on this matter.  
88. The DSB took note  of the statements. 
6. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/382) 
89. The Chairman  drew attention to document WT/DSB /W/382, which contained additional 
names proposed for inclusion on the indicative list of governmental and non-g overnmental panelists,  WT/DSB/M/254 
 Page 23 
 
 
 in accordance with Article 8.4 of the DSU.  Unless there was any objection, he would propose that the 
DSB approve the names contained in document WT/DSB/W/382. 
90. The DSB so agreed .  
7. European Communities – Anti-dumping measure on farmed salmon from Norway  
(a) Statement by the European Communities 
91. The representative of the European Communities , speaking under "Other Business", recalled 
that at its meeting on 15 January 2008, the DSB ha d adopted the Panel Report in the dispute between 
Norway and the EC.  As Members recalled the ru lings and recommendations of that report had not 
called for the repeal of the measure.  Norway and th e EC had managed to arrive at a mutually agreed 
reasonable period of time and the EC had stated  its firm intention to duly implement the 
recommendations by the expiry of the reasonable peri od of time.  In pursuance of implementation, the 
EC had already undertaken a number of steps, in cluding a Note Verbale to the Norwegian authorities 
and questionnaires to the EC producers.  Unrelated to the WTO proceedings, and in fact well before 
the adoption of the panel report, five EC member States, on 20 February 2007, had made a request for 
an interim partial review of the measure challenged by Norway.  This request had been made pursuant 
to the EC Basic Regulation.  The partial interim review had now been conc luded and had resulted in 
the withdrawal of the measure effective 20 July 2008 .  As the measure challenged by Norway in the 
panel proceedings before the WTO was no longer in force, there would consequently be no further 
action required by the EC in terms of compliance. 
92. The representative of Norway  said that her country appreciated that the EC had now repealed 
the anti-dumping measures against farmed Norweg ian salmon imposed in 2006.  Norway had, 
however, noted with some surprise that the re peal was coupled with a "special surveillance 
mechanism", and that the Commission had been  expressly permitted to "self-initiate" a new 
investigation as it deemed fit at any time over the ne xt two and a half years.  It was difficult for 
Norway to see the justification for subjecting sal mon to such a special mechanism.  Norwegian 
salmon had been the subject of trade restrictive meas ures in the EC, or threats thereof, for almost 20 
years.  The repeal of the latest  measures, effective 20 July, had th e potential of bringing this long-
standing dispute to an end.  It was, indeed, Norway's hope that this marked the beginning of permanent and normal trading conditions for salmon trade between two good neighbours. 
93. The DSB took note
 of the statements.  
__________