RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/287 
5 November 2010 
 (10-5914) 
Dispute Settlement Body 
21 September 2010  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 21 September 2010  
 
Chairman:  Mr. Yonov Frederick Agah (Nigeria) 
 
  Prior to the adoption of the Agenda
, the Chairman made a statement to welcome the new 
Director of the Legal Affairs Division, Ms. Valerie Hughes.   
  Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................5  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........6  
(d) European Communities1 – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union .........................................................................6  
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by the United States .............................................................................................................. ...........7
 
(f) United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States ................................................................................................... ......7  
(g) United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing"):  Status repor t by the Unite d States..........................................................................8  
2. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ............................................8  
(a) Statements by the European Union and Japan ............................................................................8  
                                                      
1 On 1 December 2009, the Treaty of Lisbon amendi ng the Treaty on Europe an Union and the Treaty 
establishing the European Community (done at Lisb on, 13 December 2007) en tered into force.  On 
29 November 2009, the WTO received a verbal note (WT /L/779) from the Council of the European Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 
1 December 2009, the European Union replaces and succeeds the European Community. WT/DSB/M/287 
Page 2  
 
 3.
 United States – Final anti-dumping me asures on stainless steel from Mexico..................10  
(a) Recourse to Article 21.5 of the DSU by Mexico:  Request for the establishment of 
a panel........................................................................................................................ ...............10  
4. European Communities1 and its member States – Tariff treatment of certain 
information technology products...........................................................................................11  
(a) Report of the Panel............................................................................................................ ........11  
(b) Report of the Panel............................................................................................................ ........11  
(c) Report of the Panel............................................................................................................ ........11  
 
 
1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appr opriations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.94) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.94) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.69) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.32) 
 (e) United States – Measures relating to zeroing and sunset reviews:  Status report by the 
United States (WT/DS322/36/Add.12) 
 
(f) United States – Continued existence and app lication of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.9) 
 (g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.3) 
 
 
1. The Chairman
 recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establis hment of the reasonable 
period of time and shall remain on the DSB' s Agenda until the issu e was resolved.   
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.94) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.94, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US Section 211 Omni bus Appropriations Act of 1998. 
3. The representative of the United States  said that his country had provided a status report in 
this dispute on 7 September 2010, in accordance with Article 21.6 of the DSU.  As had been noted, a 
number of legislative proposals that would implem ent the DSB's recommendations and rulings in this 
dispute had been introduced in the First Session of the current, 111th Congress.  The Second Session  WT/DSB/M/287 
 Page 3 
 
 
 of the 111th Congress had begun in  January 2010.  The Committee on the Judiciary of the US House 
of Representatives had held a hearing on certain of those proposals on 3 March 2010.  In addition, the 
US administration was working with Congress to im plement the DSB's recommendations and rulings. 
4. The representative of the European Union  said that, at the present meeting, the United States 
was presenting yet another status report in this di spute.  The EU hoped that the US authorities would 
very soon take steps towards implementing the DSB's ruling and resolve this matter. 
5. The representative of Cuba  said that October 2010 would mark twelve years since 
Section 211 was enacted.  According to the Appella te Body Report issued in 2002, Section 211 was 
inconsistent with national treatment and the most -favoured-nation principles.  Cuba was extremely 
concerned that the United States failed to comply with  what had been agreed at the international level 
and continued to do nothing about this  dispute.  Cuba reiterated that, pursuant to Article XVI:4 of the 
Marrakesh Agreement, each Member was required to ensure the conformity of its laws, regulations 
and administrative procedures with its WTO obligati ons.  At many DSB meetings, the United States 
had reiterated that the concerns raised by Memb ers in relation to the situation of protracted 
non-compliance were unfounded.  But how could Member s possibly be told not to be concerned about 
this dispute which, in spite of the Appellate Body's  ruling dating back more than eight years, had not 
yet been resolved?  This dispute was a matter of concern to many Members not only because it 
involved a developing-country Member, but because the United States continued to push other 
Members to establish and enforce high standards of  intellectual property rights, including criminal 
penalties.  A Member that ignored an Appellate Body ruling, as was the case in this dispute, 
undermined the dispute settlement system.  What w as the point of having recourse to the system in 
order to find a solution if the rulings were not respected?  Pursuant to Article 23 of the DSU, 
Members seeking to redress a violation of oblig ations under the covered agreements shall have 
recourse to the rules and procedures of the DSU.  This would avoid adverse effects of unilateral 
actions on the multilateral trading system.  By choosing not to respect the ruling, the United States, de 
facto , opted for unilateral action, which could, in turn , lead to other actions in response.  The rules 
which all Members, without exception, had undertak en to abide by were, therefore, not being 
observed.  The point was not to comply with th e recommendations and rulings in the majority of 
disputes, but to comply with the Appellate Body 's rulings in all disputes.  The United States 
constantly reminded its trading partners that compliance with intellectual property rules was 
imperative.  The USTR spokesman had recently st ated that the Special 301 Report was an essential 
tool which enabled the US administration to protect  intellectual property rights beyond its borders.  
Cuba asked the United States who was ensuring that  third-party intellectual property rights were 
respected in the United States?  The fact that the United States permitted and facilitated the theft of 
renowned trade marks such as the HAVANA CLUB trade mark was a serious matter.  Cuba, once again, called upon the parties to this dispute to take  urgent action to fully repeal Section 211 as this 
was the only way to end this dispute. 
6. The representative of Ecuador
 said that his country noted the US status report but, once again, 
was compelled to reiterate its previous statemen t on this matter.  Ecuador regretted that the 
United States did not mention when it expected  to comply with the DSB's recommendations and 
rulings.  Ecuador fully supported Cuba 's statement.  At the present meeting, Ecuador did not wish to 
refer to the provisions of Article 21 of the DSU but wi shed to register its regret that a dispute that 
affected the interests of a developing-country Me mber had not been resolved for a long period of 
time.  Cuba's intellectual property rights were usurpe d and, if Cuba were to file its own complaint, it 
would have to engage in a lengthy and costly  litigation.  Ecuador, once again, urged the US 
administration and Congress to repeal Section 211.  Finally, Ecuador, once again, stressed the need 
for the EU to provide detailed information on th e steps being taken to resolve this dispute. 
7. The representative of the Bolivar ian Republic of Venezuela  said that her country, once again, 
supported Cuba on this matter and asked the United St ates to put an end to the economic, trade and WT/DSB/M/287 
Page 4  
 
 financial embargo, which had been imposed on Cu ba.  Since the 1960s, the embargo had led to a 
series of actions on the part of the United States.  In this case, the United States failed to comply, for 
more than eight years, with the Appellate Body's ru ling to repeal the legislation that was inconsistent 
with the TRIPS Agreement and the Paris Convention for the Protection of Intellectual Property.  As a 
WTO Member, Venezuela was yet again disappointed w ith the US status report, which remained the 
same for many years, stating that "the US Admini stration will continue to work with the US Congress 
with respect to appropriate statutory measures that would resolve this matter".  In Venezuela's view, 
this constituted "action without results".  Venezuel a, therefore, asked the United States to provide 
further information on the work supposedly being ca rried out with Congress, so that Members would 
know whether there had been any progress, after so  many years, regarding the US compliance with 
the Appellate Body's decision.  In addition to th e prejudice caused to Cuba, Venezuela was concerned 
that the DSB's credibility would be undermined and weakened by the US failure to comply with the 
WTO obligations.  As it had done on previous occasions, Venezuela urged the United States to 
comply with the Appellate Body's rulings.  
8. The representative of Brazil
 said that his country thanked the United States for its status 
report.  Once again, the United States reported no progress in the implementation of the DSB's 
recommendations and rulings in this dispute.  T hus, Brazil joined previous speakers in urging the 
United States to bring its measures into conform ity with the multilateral trade disciplines without 
further delay. 
9. The representative of China  said that her country thanked the United States for its status 
report.  China, once again, regretted that the repor t simply reiterated what had been stated over the 
past several years and that, after more than eight years since the adoption of relevant Reports by the 
DSB, there was no sign of compliance in this dispute.   In China's view, this situation was not in line 
with the principle of prompt implementation stipulated in the DSU provisions, and that it was highly inappropriate for a developed-country Member to  maintain such prolonged non-compliance in a 
dispute that involved the interests of a developing-country Member.  China, therefore, strongly 
supported Cuba and urged the United States to impl ement the DSB's decision without further delay. 
10. The representative of Argentina
 said that his country thanked the United States for its status 
report and reiterated its concern about the lack of  progress on implementation in this dispute.  US 
failure to implement the DSB's recommendations unde rmined the credibility of the system and had an 
impact that went beyond trade implications.  Argentina, once again, urged the parties, and in particular the United States, to take the necessary  measures to ensure full implementation of the 
DSB's ruling. 
11. The representative of Nicaragua
 said that her country regretted that the United States failed to 
implement the DSB's recommendations and rulings .  Nicaragua hoped that the United States was 
working towards putting into pl ace necessary measures in order to bring its legislation into 
compliance with the DSB's rulings in order to end this long-standing dispute.  Once again, Nicaragua 
urged the United States to comply with its obligations  so as to ensure the effective functioning of the 
WTO and to maintain the balance between the rights and obligations of Members. 
12. The representative of Mexico  said that his country thanked the United States for its status 
report.  At each DSB meeting, in the context of the consideration of the present item, Members urged 
the United States to comply with the DSB's rulings  and recommendations.  Mexico noted that one of 
the issues discussed in the ongoing DSU negotiations w as the issue of how to improve compliance.  In 
Mexico's view, the Section 211 dispute c ould be a good case study in this regard.   WT/DSB/M/287 
 Page 5 
 
 
 13. The representative of Chile  said that his country thanked the United States for its status report 
and regretted the lack of progress in the implemen tation of the DSB's rulings and recommendations in 
this dispute.  Chile, once again,  called upon the parties to take all necessary measures to fully 
implement the DSB's recommendations in orde r to resolve this long-standing dispute. 
14. The representative of the Dominican Republic  said that her country thanked the United States 
for its status report, which, however, did not report on any progress.  The Dominican Republic 
supported the statements made by previous speak ers urging the United States to comply with the 
DSB's decisions and to implement the DSB's recommendations as soon as possible. 
15. The representative of the United States  said that, in light of the DSB's rules of procedure that 
encouraged delegations to keep their statements brief and to avoid repetition, the United States noted 
that it had addressed the "systemic" concerns expressed by some Members at previous DSB meetings, 
including the 31 August 2010 DSB meeting.  Thus, th e United States referred Members to its previous 
statements.  
16. The representative of Cuba  said that, once again, her country wished to thank those 
delegations who had urged the parties to resolve this  dispute and to respect Cuba's rights. In Cuba's 
view, the United States was not interested in the concerns raised by Members over the past eight 
years.  This was a mockery of those Members who had expressed concerns over the lack of compliance in this dispute.  The US hegemonic attitude undermined not only the multilateral trading 
system, but also the system of international relations. 
17. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.94) 
18. The Chairman  drew attention to document WT/DS184/ 15/Add.94, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
19. The representative of the United States  said that his country had provided a status report in 
this dispute on 7 September 2010, in accordance with Article 21.6 of the DSU.  As of 23 November 2002, the US authorities had addresse d the DSB's recommendations and rulings with 
respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty investigation at issue in this dispute.  Details were provided in document WT/DS184/15/Add.3.  With 
respect to the DSB's recommendations and rulings that had not already been addressed by the US 
authorities, the US administration would work wi th the US Congress with respect to appropriate 
statutory measures that would resolve this matter. 
20. The representative of Japan
 said that his country thanked the United States for its statement 
and its most recent status report.  Japan took note  of the US report that the United States had taken 
certain measures to implement part of the DSB's recommendations in November 2002.  With respect 
to the remaining part of the DSB's recommendations  and rulings, Japan was still waiting for statutory 
action to be taken by the United States.  Japan ho ped that the United States would soon be in a 
position to report to the DSB on more tangible progress.  Japan noted that full and prompt implementation of the DSB's recommendations and ru lings was "essential to the effective functioning 
of the WTO and the maintenance of a proper bala nce of the rights and obligations of Members".
2  
                                                      
2 Article 3.3 of the DSU. WT/DSB/M/287 
Page 6  
 
 Japan called on the United States to fully implement the DSB's recommendations in this long-standing 
dispute without further delay. 
21. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.69) 
22. The Chairman  drew attention to document WT/DS160/ 24/Add.69, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
23. The representative of the United States  said that his country had provided a status report in 
this dispute on 7 September 2010, in accordance with Article 21.6 of the DSU.  The US 
administration would continue to confer with the EU, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter. 
24. The representative of the European Union  said that his delegation remained disappointed that 
the United States had again reported non-compliance.  As had regularly been stated, the EU remained 
ready to work with the US authorities to wards the resolution of this dispute.  
25. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.32) 
26. The Chairman  drew attention to document WT/DS291/ 37/Add.32, which contained the status 
report by the European Union on progress in the implementation of the DSB's recommendations in 
the case concerning its measures affecting the a pproval and marketing of biotech products. 
27. The representative of the European Union  said that, once again, his delegation noted that the 
EU regulatory procedures on biotech pr oducts continued to work as foreseen in the legislation.  At the 
31 August 2010 DSB meeting, the EU had already referred to the adoption by the Commission, on 
28 July 2010, of five new authorizations for GM maize MON89034xNK603, Bt11xGA21, 
MON88017xMON810, 59122x1507xNK603 and 1507x59122.  Those five authorization decisions raised the number of GMOs authorized since the date of establishment of the Panel to thirty-four.  In 
addition, the Commission had adopted a decision for the renewal of the authorization of another GM 
maize (Bt11).  Progress had also been made on other applications for authorization.  For example, the 
European Food Safety Agency had delivered favour able opinions on four GM events (GM maize 
MIR604xGA21, GM maize Bt11xMIR604 and GM maize Bt11xMIR604xGA21 and GM cotton 281-
24-236 x 3006-210-23).  The EU hoped that the Un ited States and the EU would continue their 
constructive technical dialogue on which they had re-engaged on 20 July 2010.  The EU hoped this 
constructive approach based on dialogue would allow the parties to leave litigation aside. 
28. The representative of the United States
 said that his country thanked the EU for its status 
report and its statement made at the present meeting.   As the United States had explained at previous 
DSB meetings, the EU had not resolved the fundamental problems in the operation of its regulatory system for biotech products.  The United States urged the EU to address those matters and would 
continue to monitor any new developments.  WT/DSB/M/287 
 Page 7 
 
 
 29. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.12) 
30. The Chairman  drew attention to document WT/DS322/ 36/Add.12, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US measures relating to zeroing and sunset reviews. 
31. The representative of the United States  said that his country had provided a status report in 
this dispute on 7 September 2010, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With respect to the outstanding issues, the United States would con tinue to consult with 
interested parties in order to address those issues. 
32. The representative of Japan  said that his country thanked the United States for its statement 
and its most recent status report.  The United States had stated in its status reports that it "will continue to consult with interested parties in orde r to address the findings contained in [the Appellate 
Body and the panel] reports" adopted by the DSB on 31 August 2009.  Japan took this statement as an 
expression of commitment by the United States to fully implement the DSB's recommendations and 
rulings.  Once again, Japan called on the United St ates to meet its commitment by taking immediate 
and concrete action so as to resolve this dispute.  
33. The representative of the European Union
 said that his delegation wished to reiterate its 
disappointment over the lack of any real progress by the United States on compliance with adverse 
rulings on zeroing in this dispute.  The EU recalled that immediate compliance with the DSB's 
recommendations and rulings was not an option, but an obligation under the DSU provisions.  
34. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.9) 
35. The Chairman  drew attention to document WT/DS350/ 18/Add.9, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning the existence and application of zeroing methodology by the United States. 
36. The representative of the United States  said that his country had provided a status report in 
this dispute on 7 September 2010, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With regard to the remaining issues, the United States would continue to consult with interested parties. 
37. The representative of the European Union
 said that the EU's concerns about the US lack of 
implementation in this dispute were well known a nd were recorded in the minutes of past DSB 
meetings. The EU continued to urge the United St ates to reconsider its Section 129 determination 
immediately and to implement the DSB's rulings. 
38. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/287 
Page 8  
 
 (g) United States – Laws, regul ations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.3) 
39. The Chairman
 drew attention to document WT/DS294/ 38/Add.3, 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 laws, regulations and me thodology for calculating dumping margins. 
40. The representative of the United States  said that his country had provided a status report in 
this dispute on 7 September 2010, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, the United States had already taken a number of steps to implement the DSB's 
recommendations and rulings in this dispute.  Th e United States would continue to consult with 
interested parties, including with the EU, with re gard to the remaining issues.  As Members were 
aware, the EU had requested authorization from th e DSB to suspend concessions or other obligations 
in this dispute, and the United States had objected  to the EU's request.  Therefore, pursuant to 
Article 22.6 of the DSU, the matter had been referred to arbitration.  Furthermore, the United States 
was pleased to announce that, in response to a jo int request by the United States and the EU, on 
8 September 2010, the Arbitrator had issued a communication stating that it had decided to suspend 
its work.  The communication of the Arbitrator had been circulated as document WT/DS294/39. 
41. The representative of the European Union  said that his delegation thanked the United States 
for its status report.  The EU would continue c onsulting with the United States concerning the next 
steps in the implementation.  The EU welcomed  US reassurances that it was taking the necessary 
steps to bring itself into compliance and that the imposition of sanctions would not be necessary.  The 
EU was confident that the United States would end eavour to fully meet its WTO obligations and had, 
therefore, made a joint request to the Article 22.6 DSU Arbitration Panel in this dispute to suspend the 
arbitration proceedings.  On 8 September 2010, the Arbitrator accepted the request.  Having said that, 
the EU wished to stress that its position on the issue of US zeroing remained unaltered, and there should be no doubt that the EU woul d not hesitate to resume the arbitration proceedings should there 
be no progress or insufficient progress on the side of the United States in the foreseeable future. 
42. 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 Union and Japan 
43. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Union and Japan.  He then i nvited the respective representatives to speak. 
44. The representative of the European Union  said that, as it had done many times before, the EU 
wished to ask the United States when it would e ffectively stop the transfer of anti-dumping and 
countervailing duties to the US industry and, hence, put an en end to the c ondemned measure.  The 
EU, once again, renewed its call on the United States to abide by its clear obligation under 
Article 21.6 of the DSU and to submit status reports in this dispute. 
45. The representative of Japan  said that the US Customs and Border Protection had published in 
June 2010, "FY2010 Preliminary CDSOA Amount Available" and in September 2010, "FY 2010 
Certifications Received", which was a list of the claims filed by US domestic industries for FY2010  WT/DSB/M/287 
 Page 9 
 
 
 distributions.3  Thus, a new round of distributions under the CDSOA appeared to be underway.  Those 
latest actions showed that the CDSOA remained operational.  As US Customs and Border Protection had explained, "the distribution process will continue for an undetermined period".
4  Japan urged the 
United States to stop the illegal distributions and rep eal the CDSOA, not just in form but in substance, 
so as to resolve this dispute once and for all.  Ac cording to Article 21.6 of the DSU, the United States 
was under obligation to provide the DSB with a status report pertaining to this dispute.  
46. The representative of India  said that his country thanked the EU and Japan for regularly 
including this issue on the DSB's Agenda.  India wish ed to reiterate that disbursements made by the 
United States under the Byrd Amendment continued to be in force, thus affecting the rights of other WTO Members.  India was concerned that Members' non-compliance would lead to a growing lack of 
credibility of the WTO dispute settlement system.  I ndia, therefore, urged the United States to cease 
its WTO-inconsistent disbursements. 
47. The representative of Thailand
 said that his country thanked Japan and the EU for continuing 
to bring this item before the DSB and supported the statements made by previous speakers.  Thailand 
continued to urge the United States to cease the disbursements, repeal the Byrd Amendment with 
immediate practical effect, and resume the submissi on of status reports until such actions had been 
taken and this matter was fully resolved. 
48. The representative of Brazil  said that his country thanked the EU and Japan for keeping this 
item on the DSB's Agenda.  Since the United States c ontinued to make disbursements pursuant to the 
Byrd Amendment, it was clear that this dispute had not been resolved.  Once again, Brazil urged the 
United States to fully implement the DSB's reco mmendations and rulings in this dispute and to 
provide regular status reports, as required by Artic le 21.6 of the DSU.  One purpose of such reports 
would be, for example, to indicate to Members the st eps the United States was taking or would take to 
cease its illegal disbursements. 
49. The representative of Canada  said that her country thanked Japan and the EU for placing this 
item on the DSB's Agenda once again.  As had previ ously been stated many times, Canada reiterated 
that it agreed with the EU and Jap an that the CDSOA remained subject  to the surveillance of the DSB 
until the United States ceased to administer it. 
50. The representative of China  said that her country thanked the EU and Japan for raising this 
item at the DSB meeting.  China shared the concer ns expressed by previous speakers and joined them 
in urging the United States to fully comply with the DSB's rulings. 
51. 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 those disputes.  Furthermore, the United States recalled that 
Members, including the EU and Japan, had acknowl edged 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, nearly three years ago.  The United States, therefore, did not understand the purpose for which the EU and Japan had inscribed this ite m on the Agenda of the present meeting.  With 
respect to comments regarding further status reports in this matter, as it had already been explained at 
previous DSB meetings, the United States failed to see what purpose would be served by further 
                                                     
 
3 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trade/prior ity_trade/add_cvd/cont_dump/cdsoa_l0/  
4 See US Customs and Border Protection's website at:  
http://www.cbp.gov/xp/cgov/tr ade/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml  WT/DSB/M/287 
Page 10  
 
 submission of status reports repeating, yet again, that the United States had taken all actions necessary 
to implement the DSB's recommendations and rulings in these disputes. 
52. The DSB took note
 of the statements. 
3. United States – Final anti-dumping measures on stainless steel from Mexico 
(a) Recourse to Article 21.5 of the DSU by Mexico:  Request for the establishment of a panel 
(WT/DS344/20) 
53. The Chairman  drew attention to the communicati on from Mexico contained in document 
WT/DS344/20, and invited the representative of Mexico to speak.  
54. The representative of Mexico  said that, pursuant to Article 21.5 of the DSU, his country 
wished to request the establishment of a panel in  the dispute:  "US – Final Anti-dumping Measures on 
Stainless Steel from Mexico" (DS344).  Mexico  patiently expected full compliance by the 
United States with the recommendations adopted by the DSB, and was disappointed that nothing close 
to full compliance had taken place.  The DSB had issued multiple binding rulings, including those 
issued and adopted in the dispute under considerati on, declaring that the use by the United States of 
"simple zeroing" to determine margins of dumpi ng in periodic reviews was contrary to the US 
obligation under Article VI:2 of the GATT 199 4 and Article 9.3 of the WTO Anti-Dumping 
Agreement, both "as such" and "as applied" in the various measures that we re brought before dispute 
settlement panels.  Despite past cases of coopera tion in resolving anti-dumping and other issues 
amicably between Mexico and the United States, it had not been possible to find a positive solution 
during the Article 21.5 consultations.  It was unfortu nate that Mexico had to request the establishment 
of an Article 21.5 panel at the present meeting, but the continued lack of full compliance by the 
United States in this dispute had left Mexico with  no other option.  Mexico highlighted that pursuant 
to the sequencing agreement between Mexico and th e United States, the United States had agreed that 
at " ... the first DSB meeting at which Mexico's re quest for the establishment of a compliance panel 
appears as an item on the Agenda, the United Stat es will accept the establishment of that panel"5.  
55. The representative of the United States  said that his country was disappointed that Mexico 
had requested the establishment of a compliance pa nel in this dispute.  In accordance with the 
sequencing agreement between the United States and Me xico in this dispute, the United States would 
not object to the establishment of the panel at the present meeting.  However, the United States 
remained open to discussions with  Mexico, as with some other Me mbers, for a more productive way 
of addressing issues of concern to Mexico.  The United States continued to recommend that Mexico 
take this course and, therefore, disagreed that there was no option available other than a compliance 
panel. 
56. The representative of Mexico  said that his country would be happy to continue discussions 
with the United States, but wished to note the follo wing facts regarding this dispute:  (i) the Panel 
Report had been circulated on 20 December 2007;  ( ii) the Appellate Body Report had been circulated 
on 30 April 2008;  (iii) those Reports had been a dopted by the DSB on 20 May 2008;  (iv) the Award 
of the Arbitrator under Article 21.3(c) of the DSU regarding the reasonable period of time for 
implementation had been circulated on 31 October 2 008;  and (v) the reasonable period of time had 
expired on 30 April 2009.  This meant that the Un ited States had 11 months and ten days from the 
date of adoption of the Panel and Appellate Body Reports as a reasonable period of time for 
compliance.  Furthermore, the United States had 16 months and 21 days be yond the reasonable period 
of time before the Article 21.5 panel request was filed.  Hence, time had been available to the 
                                                      
5 WT/DS344/17, para. 3.  WT/DSB/M/287 
 Page 11 
 
 
 United States to comply in this dispute.  In addition, during that period of time, Mexico had been 
closely negotiating with the United States. 
57. The DSB took note  of the statements and agreed , pursuant to Article 21.5 of the DSU, to refer 
to the original Panel, if possible, the matter rai sed by Mexico in document WT/DS344/20.  The Panel 
would have standard terms of reference. 
58. The representatives of China , the European Union , Japan  and Korea  reserved their third-party 
rights to participate in the Panel's proceedings. 
4. European Communities and its member States – Tariff treatment of certain information 
technology products  
(a) Report of the Panel (WT/DS375/R) 
(b) Report of the Panel (WT/DS376/R) 
(c) Report of the Panel (WT/DS377/R) 
59. The Chairman  proposed that the three sub-items be cons idered together.  He then recalled that 
at its meeting on 23 September 2008, the DSB had established a single Panel to examine the joint complaint by the United States, Japan and the Se parate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu ("Chinese Taipei") pertaining to  these disputes.  The Reports of the Panel, 
contained in document WT/DS375/R;  WT/DS3 76/R;  WT/DS377/R had been circulated on 
16 August 2010 as an unrestricted document.  He said that the Panel Reports were before the DSB for 
adoption at the request of the United States, Japan  and Chinese Taipei.  The adoption procedure was 
without prejudice to the right of Members to express their views on the Panel Reports. 
60. The representative of the United States
 said that his country thanked the panelists and the 
Secretariat for their work in this matter.  The Un ited States also wished to thank its co-complainants 
for the very close cooperation throughout this pr oceeding and was pleased to propose the adoption of 
the Panel Report in the dispute brought by the United States (WT/DS375/R).  The Report was thorough and generally well reasoned,  and represented a strong affirmation of key commitments that 
Members had undertaken in their WTO Schedul es pursuant to the WTO Information Technology 
Agreement (ITA).  The ITA was widely regarded as creating important new opportunities for trade 
and economic growth for developed and developing Members alike.  Th is dispute related to duties the 
EU had imposed on three technology products.  The first product was set top boxes with a 
communication function, in other words, cable and satellite boxes that could access the internet.  The 
second product was flat panel computer monitors .  The third product was certain multifunctional 
digital machines, in other words, computer periphera ls that could scan, print, copy and/or fax.  All 
three products were covered by the ITA.  For all three products, the EU relied on arbitrary technical 
characteristics to disqualify products from receivi ng duty-free treatment, characteristics such as the 
number of pages per minute that a multifunctional digital machine could produce, or the specific interfaces installed on a flat panel computer monito r, or the specific type of technology a set top box 
used to communicate with the internet.  For al l three products, the Panel had found that the EU 
measures were inconsistent w ith its obligations under GATT Article II:1(a) and (b).   
61. This Report had major systemic importance in at least two respects.  First, the Report 
affirmed that the scope of those tariff concessions were not dictated by classification technicalities.  
Both in its findings with respect to products covere d by so-called "Attachment A" of the ITA, as well 
as for products covered by "Attachment B", the Pa nel had interpreted the terms of the Schedules 
based on their ordinary meaning in context, in light of the object and purpose of the GATT 1994.  The 
Panel had not accepted EU arguments suggesting that its WTO tariff concessions were circumscribed WT/DSB/M/287 
Page 12  
 
 by customs classification matters, whether classification decisions of individual Members, or 
technical characteristics of a product nowhere refere nced in the concession.  Likewise, the Panel had 
rejected the EU's position that the head note in its  Schedule implementing Attachment B was, in the 
EU's words, "exhausted" by the particular tariff h eadings listed in that head note.  Attachment B 
required participants to provide duty-free treatment  "wherever...classified".  The Panel had agreed 
with the co-complainants on the interpretation of the EU head note implementing this concession and 
had found that the Attachment B product descriptions – not particular tariff headings – determined the 
scope of the products for which the EU was requi red to provide duty-free treatment "wherever ... 
classified".  In so finding, the Report recognized A ttachment B as an important innovation of the ITA, 
critical to preserving the value of tariff concessions on key products. 
62. Second, the Report affirmed that the product coverage of a tariff concession was not, as the 
EU had argued, circumscribed by the state of tec hnology at the time the concession was made.  Tariff 
concessions were defined by the ordinary meaning of  the concession, in context, and in light of the 
object and purpose of the GATT 1994.  The Panel had recognized this fact and had declined to accept 
an EU theory suggesting that, the moment the ITA had been concluded, technological change began 
undoing the negotiators' hard work.  The Report thus represented a strong affirmation of ITA 
participants' achievement in 1996.  In cementing the value of the tariff concessions resulting from 
ITA, including for products entitled to duty-free treatment "wherever...classified", the Report 
confirmed the breadth of existing duty-free commitm ents for information technology products and 
provided an important foundation for the Doha ne gotiations on duty-free treatment for additional 
electronics products.  As the United States had explained to the DSB when it had requested the 
establishment of the Panel, this dispute had begun after extensive discussions, over the course of two 
years, which had failed to resolve the dispute.  The United States welcomed the adoption of the Panel 
Reports at the present meeting and looked forward to the EU moving promptly to bring its measures 
into compliance with its obligations.   
63. The representative of Japan
 said that his country wished to thank the Panel and the Secretariat 
for the time and efforts devoted to these proceed ings.  The thorough, rigorous and well-reasoned 
analyses in the Report testified that the Panel had taken its task very seri ously and had faithfully 
discharged its duty to "make an objective assessment of the matter before it" and to make necessary findings "as will assist the DSB in making the recomme ndations or in giving the rulings provided for 
in the covered agreements".
6  As Japan had argued throughout the proceedings, this dispute was about 
the scope of the tariff concessions on certain inform ation technology products assumed by the EU and 
its member States in their Schedules of Concessions  to the GATT 1994, as a result of the Ministerial 
Declaration on Trade in Information Technology Products7.  In simpler terms, the issue before the 
Panel was whether technological innovations in tho se products would remove them out of the scope 
of the EU's tariff concessions.  The Panel had said no and had found that the EU had acted inconsistently with Article II:1(a) and (b) of the GATT 1994.  In so finding, the Panel had left little 
doubt as to the scope and meaning of the relevant  concessions, making it clear that the information 
technology products should not be tr eated less favourably nor be penalized as out of the scope of 
duty-free commitments simply because, with addi tional features and functions, they had become 
smarter, more sophisticated a nd more advanced.  Japan welcomed the Panel's findings and 
conclusions as they would provide a clear basis for "achieving a satisfactory settlement of the 
matter".
8  Japan, therefore, asked that the DSB adopt th e Report of the Panel at the present meeting.   
64. Japan considered that the Panel Report was also  a significant victory from the perspective of 
the world economy at large.  Information technology  industry was one of the key sectors that had 
increased the productivity in the world econo my, and had facilitated rapid expansion of 
                                                      
6 Article 11 of the DSU.  
7 WT/MIN(96)/16. 
8 DSU Article 3.5.  WT/DSB/M/287 
 Page 13 
 
 
 communication network on a global scale.  The partic ipants in the ITA nego tiations, including Japan, 
the United States, Chinese Taipei and the EU, had recognized the enormous "contribution information 
technology makes to global economic growth and welfare"9 and had adopted the ITA in December 
1996.  As had been noted by the Ministers then, trad e in information technology products played "the 
key role ... in the development of information indus tries and in the dynamic expansion of the world 
economy".10  By ruling in favour of Japan and other co -complainants, the Panel had reaffirmed the 
very objective of the ITA which was to "achieve  maximum freedom of world trade in information 
technology products".11  The Panel's message was clear, the scope of the duty-free tariff commitments 
as a result of the ITA was broad enough and trade liberalization of information technology products was irreversible.    
65. Following the DSB's adoption of the Panel Report, this dispute would move on to the 
implementation stage.  As the DSU provided, "[p] rompt compliance with recommendations or rulings 
of the DSB is essential in order to en sure effective resolution of disputes"
12 and, as a general rule, the 
Member concerned must "comply immediately with the recommendations and rulings".13  I n  t h a t  
regard, Japan applauded the EU for its honourable decision not to appeal, which would certainly 
contribute to the prompt resolution of this dispute.   Japan took this decision as a clear expression of 
the EU's commitment to the prompt resolution of  this dispute and stood ready to engage in 
constructive dialogue with the EU to this end.  Fi nally, Japan thanked the other co-complainants for 
their cooperation and coordination. 
66. The representative of Chinese Taipei  said that his delegation wished to thank the Panel and 
the Secretariat for the time and great efforts they  had devoted throughout the proceedings of this 
dispute.  Chinese Taipei also thanked the other parties and the third parties for their useful 
participation in the proceedings.  Chinese Taipei welcomed the Panel's findings that the tariff 
measures imposed by the EU on all three products at issue, namely, certain Flat Panel Displays (FPDs), set-top boxes which had a communication function and multifunctional digital machines, 
violated Article II:1(a) and (b) of the GATT 1994, a nd that the EU violated Articles X:1 and X:2 of 
the same Agreement in terms of, inter alia,  the publication and enforc ement of certain measures 
relating to set-top boxes which had a communicati on function.  Trade in information technology 
products was of vital importance to Chinese Taipei , as such products made up a very significant 
portion of its international trade.  The potential exclusion of important categories of information 
technology products from the tariff concessions as agr eed in the ITA was, therefore, of fundamental 
concern to Chinese Taipei's traders and economy.  Th e Panel had correctly rejected the arguments put 
forward by the EU whereby it had sought to ju stify inconsistency of its measures with WTO 
obligations.  As the DSB would adopt the Panel Re port at the present meeting, Chinese Taipei wished 
to highlight a few valuable points made by the Pane l.  Chinese Taipei was pleased that the Panel had 
confirmed that the complainants were not obliged to identify all aspects of the products at issue in 
order to succeed with their "as such" claims, but th at the identification of certain characteristics which 
automatically excluded the products concerned from duty-free treatment was sufficient.  The issue 
was, therefore, whether it was pe rmissible to exclude certain produc ts from duty-free treatment simply 
because they had certain identified characteristics.  Furthermore, Chinese Taipei welcomed the Panel's 
conclusion in relation to the produc ts described in or for Attachment B of the ITA that it was the 
product description that determined the scope of th e products for which the EU was required to grant 
duty-free treatment but not the tariff item numbers listed next to each of the product descriptions in 
the EU's Schedule.  
                                                     
 
9  ITA, 6th preambular paragraph. 
10 ITA, 2nd preambular paragraph. 
11 ITA, 4th preambular paragraph. 
12 DSU Article 21.1. 
13 DSU Article 21.3. WT/DSB/M/287 
Page 14  
 
 67. Chinese Taipei was also pleased that the Pane l had found that on FPDs narrative description 
that "there is no express limitation on technical characteristics, such as screen size, dimension, refresh rate, dot-pixel ratio, or other technical character istics, including no express limitation on the type of 
connection or sockets it may possess, such as DVI" and that "there is no requirement for exclusivity, 
such that the FPDs concession would be limited to apparatus that may only display or reproduce 
signals from products falling within the ITA."
14  The Panel's conclusion a nd findings were important 
and had clarified several issues concerning interp retation of the concessions made pursuant to the 
ITA.  Chinese Taipei believed that the Panel's findings would have a significant impact on the development of information technology as well as world trade in information technology products.  
Chinese Taipei welcomed the adoption of the Panel Report and urged the EU to promptly bring its 
measures into conformity with its obligations  under the GATT 1994.  Chinese Taipei stood ready to 
work with the EU to resolve this dispute and looked forward to hearing from the EU what positive 
steps the EU, together with its member States, inte nded to take to ensure prompt and full compliance 
with the DSB's rulings and recommendations.  
68. The representative of the European Union
 said that first his delegation wished to thank the 
Panel and the Secretariat for their work.  While disag reeing with some aspects of the findings reached, 
the EU agreed with other aspects of the Pa nel Report and acknowledged the time and efforts 
dedicated to this legally and technically complex dispute.  The EU wished to commend the Panel on 
rejecting the over-simplistic reading of the EU's co mmitments pursuant to the ITA, advanced by the 
complainants and confirming that not all multifuncti onal copy machines, television set-top boxes and 
flat panel display devices necessarily fell within th e scope of the EU's concessions, pursuant to the 
ITA.  Whether or not a product fell within the scope of a particular concessi on had to be determined 
on a case-by-case basis, taking into account all the objective characteristics of a particular product.15  
This reasoning of the Panel was of  crucial importance.  On the other hand, the EU was disappointed 
that the Panel had adopted an overbroad reading of  certain commitments.  Extending commitments in 
such a way may tend to blur the scope of commi tments and hence may make it more difficult for 
negotiators to agree on new commitments because of the risk that those commitments may be 
understood in a manner which at least some of the pa rties had not intended.  The EU remained of the 
view that, it was by negotiation, not by litigation, th at the scope of the ITA n eeded to be extended, and 
renewed its call for an update of the ITA.  Litiga tion on a small set of produc ts should never divert 
attention from negotiations on a broad set of products , not to mention all the other issues that still 
needed to be agreed behind the negotiating table to  further liberalize trade in information technology 
products.  As a result, and despite its reservations concerning certain conclusions of the Panel, the EU 
had decided not to appeal and would instead focus its  efforts on implementation and, in the hope other 
WTO Members would now engage, negotiations of an updated ITA which would be fit for the 
twenty-first century.  The EU hoped that its decision not to appeal would also help to avoid overburdening the Appellate Body and the dispute settlement mechanism.   
69. In the context of this matter, the EU wished to  express its serious concern with the fact that 
the issuance of panel reports, including the presen t one, was subject to considerable delays in a 
number of disputes recently, without any proper jus tification having been advanced.  Speeding up the 
translation work, as in the present dispute, could not make up for inordinate delays at earlier procedural stages.  On the contrary, it could cr eate additional uncertainty and strain the parties' 
internal decision-making process.  The EU, therefor e, urged the actors involved in panel proceedings 
to make serious efforts with measurable results in  the direction of better respecting the mandatory 
DSU deadlines and to avoid such inordinate delays  in the future.  The average duration of panel 
proceedings had kept increasing over the years and the trend must not continue but, on the contrary, it 
needed to be reversed as a matter of urgency.  Me mbers must quickly move towards a situation that 
was in line with the binding rules of the DSU. 
                                                     
 
14 Panel Reports para. 7.728. 
15 See Panel Report at, for example, paras 7.734, 7.986, etc.  WT/DSB/M/287 
 Page 15 
 
 
 70. The representative of Hong Kong, China  said that, being a third party to these proceedings, 
her delegation wished to thank the Panel for its efforts in considering the case and preparing the 
Report.  Hong Kong, China was encouraged by th e decision of the Panel that certain information 
technology products in this dispute, which were subject to the EU's dutiable treatment, should fall 
within the scope of the duty-free concessions provide d for those products under the EC's Schedule of 
Concessions to the GATT 1994.  The Panel had al so reaffirmed the understanding that products 
described in or for Attachment B to the Annex of the Ministerial Declaration on Trade in Information 
Technology Products should be granted duty-free treat ment irrespective of where they were classified 
in a Member's Schedule of Concessions.  Both issues carried important systemic implications and the rulings of the Panel would certainly provide guidance to ITA particip ants in the faithful 
implementation of the ITA.  Hong Kong, China supported the adoption of the Panel Reports and 
looked forward to a smooth and expeditious implementation of the DSB's recommendations. 
71. The representative of Costa Rica
 said that his country thanked the Panel and the Secretariat 
for the Report.  Costa Rica had participated in this  dispute as a third party, due to its systemic and 
commercial interests in the proper interpretation of the tariff concessions made by WTO Members 
pursuant to the ITA.  As a developing country, Cost a Rica had greatly benefited from its participation 
in the ITA.  In the past year, information t echnology products had acc ounted for approximately 
18.5 per cent of all imports to Costa Rica and appr oximately 25 per cent of Costa Rica's total exports.  
Costa Rica supported the views expressed by the comp laining parties and was pleased that the Panel 
had adopted an interpretation cons istent with the objectives of the ITA, which sought to create new 
market opportunities for all WTO Members.  The Mi nisterial Declaration on the ITA reflected the 
participants' intention to have a broad interpretati on of the product coverage of the Agreement.  Had 
this not have been the case, any technological ch ange in a covered product would have led to that 
product being excluded from the scope of the ITA, and the number of products that would benefit 
from duty-free treatment pursuant to ITA obligations would decrease irremediably in the light of the 
rapid technological developments that occurre d in the field of information technology. 
72. The representative of China  said that her country welcomed  the Panel Reports and thanked 
the Panel and the Secretariat for their hard work on these cases.  China wished to highlight one issue, 
the so-called evolutionary interpretation on co mmitments made by Members either upon their 
accession or when they joined certa in WTO Agreements.  This had ha ppened not only in this case, but 
in several other cases before the Pa nel.  China shared the EU's c oncerns that the commitments of 
WTO Members was determined by WTO ne gotiations and not by litigation.  
73. The representative of the United States  said that his country noted that the EU had mentioned 
concerns regarding the delay in the completion of this Panel Report and others.  The United States 
also wished that this Panel Report finding that th e EU had breached its WTO obligations could have 
been adopted sooner.  The United States recognized th at the EU was also raisin g a systemic issue that 
could be discussed at another time, including in the DSU negotiations, where the important issue of 
time-savings in dispute settlement had been raised .  The United States noted that the interests of 
Members and the dispute settlement system as a whole were well served by reports that were 
completed as soon as possible but were also of high quality.  The United States, therefore, reiterated 
its appreciation to the Panel for the high quality Reports being adopted at the present meeting.   
74. The representative of Japan  said that the issue of delays in the issuance of panel reports 
needed to be addressed by Members and Japan was read y to engage in such discussions.  At the same 
time, Japan agreed with the statement made by the United States regarding the importance of the 
quality of panel reports.  The Panel in this case had taken longer than expected but, at the same time, 
this dispute involved quite technical and factual is sues that needed to be addressed by the Panel.  
Japan considered that the Panel's analysis and assess ment in this dispute had been very thorough, 
rigorous and well-reasoned, and that the quality of the Panel Report outweighed a delay in the 
issuance of this Report. WT/DSB/M/287 
Page 16  
 
 75. The representative of Chinese Taipei
 said that his delegation supported the statements made 
by the United States and Japan and agreed that th e high quality of panel reports was of significant 
importance to the dispute settlement system. 
76. The DSB took note  of the statements and adopted  the Panel Reports contained in 
WT/DS375/R;  WT/DS376/R and WT/DS377/R. 
__________