WORLD TRADE  
ORGANIZATION  RESTRICTED 
WT/DSB/M/312 
22 May 2012 
 (12-2683) 
Dispute Settlement Body 
22 February 2012  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard 
on 22 February 2012 
 
Chairperson:  Mrs. Elin Østebø Johansen (Norway) 
 
 Subjects discussed: Page 
 
1.  Surveillance of implementation of recommendations adopted by the DSB ......................... 2  
(a)  United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States ............................................................................................................. ............ 3 
(b)  United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by the Unite d States ................................................................................... 5 
(c)  United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States ............................................................................................................. ............ 6 
(d)  European Communities – 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 ................................................................................................... ..... 10 
(g)  United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States ........................................................................ 11  
(h)  China – Measures affecting trading righ ts and distribution services for certain 
publications and audiovisual entertainment products:  Status report by China ........................ 11  
(i)  United States – Anti-dumping administrative reviews and other measures related to 
imports of certain orange juice from Brazil:  Status report by the United States ..................... 12  
(j)  United States – Definitive anti-dumping and countervailing duties on certain products 
from China:  Status report by the United States ........................................................................ 13  
2.  Philippines – Taxes on distilled spirits .................................................................................. 13  
(a)  Implementation of the recommendations of the DSB ............................................................... 13  
3.  United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB .......................................... 14  
(a)  Statements by the European Union and Japan .......................................................................... 14  
4.  United States – Anti-dumping measures on corrosion-resistant carbon steel flat 
products from Korea ........................................................................................................... ... 15 
(a)  Request for the establishment of a panel by  Korea ................................................................... 15  WT/DSB/M/312 
Page 2  
 
  5.  European Union – Anti-dumping measures on certain footwear from China .................. 16  
(a)  Report of the Panel............................................................................................................ ........ 16 
6.  Dominican Republic – Safeguard measures on imports of polypropylene bags 
and tubular fabric ............................................................................................................ ....... 18 
(a)  Report of the Panel............................................................................................................ ........ 18 
7.  China – Measures related to the exportation of various raw materials ............................. 22  
(a)  Report of the Appellate Body and Report of the Panel ............................................................. 22  
(b)  Report of the Appellate Body and Report of the Panel ............................................................. 22  
(c)  Report of the Appellate Body  and Report of the Panel ............................................................ 22  
8.  Appointment of Appellate Body members ............................................................................ 29  
9.  Election of Chairperson ....................................................................................................... ... 30 
 
 
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.111) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.111) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.86) 
 (d) European Communities – Measures affecting the approval and marketing of  biotech products:  
Status report by the European Union (WT/DS291/37/Add.49) 
 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.29) 
 (f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.26) 
 
(g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.20) 
 (h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.13) 
 
(i) United States – Anti-dumping administrative revi ews and other measures related to imports of 
certain orange juice from Brazil:  Status report by the United States (WT/DS382/10/Add.2) 
 (j) United States – Definitive anti-dumping a nd countervailing duties on certain products from 
China:  Status report by the United States (WT/DS379/12/Add.1) 
 
 1. The Chairperson recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establis hment of the reasonable  WT/DSB/M/312 
 Page 3 
 
 
  period of time and shall remain on the DSB's Agenda  until the issue was resolv ed.  She proposed that 
the ten sub-items under Agenda item 1 be considered separately.  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States (WT/DS176/11/Add.111) 
2. The Chairperson drew attention to documen t WT/DS176/11/Add.111, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US Section 211 Om nibus Appropriations Act of 1998. 
3. The representative of the United States said that  his country had provided a status report in 
this dispute on 9 February 2012, in accordance with Article 21.6 of the DSU.  Legislative proposals 
had been introduced in the current 112th Congress to  implement the recommendations and rulings of 
the DSB.  The US Administration would continue to work on solutions to implement the DSB's 
recommendations and rulings.  
4. The representative of the European Union said that the EU thanked the United States for its 
status report and hoped that the US authorities woul d very soon take steps towards implementing the 
DSB's ruling and resolve this matter.   
5. The representative of Cuba said that 2 February  2012 marked ten years since Section 211 had 
been found to be inconsistent with the TRIPS Ag reement and the Paris Convention.  However, as 
demonstrated by the US status reports, the Unite d States had not taken any action to implement the 
DSB's rulings and recommendations in relation to th is dispute.  The US illegal conduct, which could 
not be justified, demonstrated the US lack of respect for the most basic rules and principles of 
international law.  Consistent with the US pos ition, controversial draft US laws, such as the 
well-known Stop Online Piracy Act, proposed strict sanctions to combat digital piracy while the 
United States continued to violate intellectual pr operty rules.  Although complaints about the US 
violations had been made in many forums, the Unite d States failed to comply with its obligations and 
commitments.  The World Radiocommunication Conference, which had recently been held in Geneva, once again, reaffirmed the illegality of th e anti-Cuban broadcasts by the US authorities using 
aircraft.  The Conference had also indicated that, despite numerous requests by the ITU 
Radiocommunication Bureau, the US Administration had not eliminated the prejudicial interference 
caused by its illegal transmissions to Cuban broadcas ting services.  This was a clear demonstration of 
violation of international law by the United Stat es so as to implement its policy of blockade and 
hostility against Cuba.   
6. Section 211 was part of the complex structure of this policy, which not only affected the 
interests of Cuban companies but also the interest s of other Members, such as the French company, 
Pernod Ricard.  The United States remained a perman ent offender of the system of international law 
and, with regard to the Section 211 dispute, th e United States undermined the credibility of the 
dispute settlement system.  As it had done every m onth, Cuba denounced Section 211 as a violation of 
the rights of owners of Cuban trademarks in order to facilitate the fraudulent sale of products called 
"Havana Club" by the company Bacar di, even though those products we re not of Cuban origin.  Cuba 
would continue to defend its sove reign prerogatives and to call upon the United States to comply with 
its obligations as a WTO Member and a member of the international community.  Cuba urged the United States to comply with the DSB's rulings and recommendations and to repeal Section 211, as 
this was the only way to settle this dispute. 
7. The representative of China said that her country  thanked the United States for its status 
report but regretted that the United States, once again, reported non-compliance.  This prolonged 
situation of non-compliance was highly incompatible  with the prompt and effective implementation 
required under the DSU provisions, in particular when the interests of a developing-country Member WT/DSB/M/312 
Page 4  
 
  were affected.  Thus, China urged the Unite d States to implement the DSB's rulings and 
recommendations without further delay. 
8. The representative of the Bolivarian Republic of  Venezuela said that her country regretted 
that, once again, this dispute was on the DSB's Ag enda.  Ten years had passed since the DSB had 
ruled that Section 211 was incompatible with the TRIPS Agreement, but the United States continued 
to report the same.  In Venezuela's view, this qua lified as "action without results".  The unfortunate 
consequence of this was the continued application of  a law that was contrary to the TRIPS Agreement 
and was incompatible with the principles of national and most-favoured-nation treatment, and 
undermined the dispute settlement mechanism whic h was one of the main achievements of the 
Uruguay Round.  Venezuela had, for almost ten year s, observed the US reluctance to comply with the 
Appellate Body's ruling.  As it had done on many  occasions, Venezuela called on the United States to 
put an end to its policy of economic, commercial an d financial blockade ag ainst Cuba and reminded 
the United States of its obligation to co mply with the DSB's recommendations. 
9. The representative of Uruguay said that his country thanked the United States for its status 
report.  As stated on many occasions, Uruguay shared the systemic concerns expressed by previous 
speakers.  Currently, the WTO was going through a critical period as a result of its inability to 
conclude the Doha Round, and the need to preserve the acqui s of the multilateral trading system, 
including its most valuable asset, namely, the dispute settlement system.  It was, therefore, important 
to protect the dispute settlement system by ensuring prompt compliance with the DSB's recommendations.  This was essential in order to  ensure the smooth functioning of the dispute 
settlement system as well as its credibility, legal certain ty and the balance of rights and obligations of 
Members.  Uruguay, once again, urged the parties to th is dispute to make every effort to end ten years 
of non-compliance and to find a solution consistent with the DSU provisions.  
10. The representative of Brazil said that her count ry thanked the United States for its status 
report but, once again, noted that the United Stat es reported lack of progress.  Brazil remained 
concerned with this situation of non-complian ce with the DSB's recommendations and urged the 
United States to bring its measures into conformity with WTO rules. 
11. The representative of Ecuador said that his c ountry supported the statement made by Cuba 
and noted that Article 21 of the DSU referred sp ecifically to prompt compliance with the DSB's 
recommendations and rulings, in particular where th e interests of a developing-country Member were 
affected.  Ecuador hoped that the United States would step up its efforts to ensure prompt compliance 
with the DSB's recommendations and rulings and to fully comply with Article 21 of the DSU. 
12. The representative of the Dominican Republic said that his country thanked the United States 
for its status report.  The Dominican Republic noted that Section 211 had been found to be 
inconsistent with Article 42 of th e TRIPS Agreement.  In that re gard, the Dominican Republic, once 
again, urged the United States to step up its intern al procedures in order to comply with the DSB's 
recommendations and rulings.  The Dominican Repub lic noted that the long period of time of non-
compliance that had passed, almost a decade, underm ined the credibility of the DSB's decisions.  
13. The representative of Paraguay said that his c ountry shared Cuba's concerns regarding the 
continued delay in implementing the DSB's recommenda tions and rulings pertaining to this dispute.  
This was not just a trade concern but also a sy stemic concern given the importance of prompt 
implementation of the DSB's recommendations.  In Pa raguay's view, this issue should be taken up in 
the context of the on-going DSU negotiations, in an effort to improve Members' compliance.  
Paraguay urged the United States to comply with the DSB's recommendations pertaining to 
Section 211.  WT/DSB/M/312 
 Page 5 
 
 
  14. The representative of Nicaragua said that his count ry thanked the United States for its status 
report.  Once again, Nicaragua noted that the status report did not contain any information on 
compliance with the DSB's ruling.  Nicaragua urge d the United States to bring its measures into 
compliance with the DSB's recommendations in orde r to strengthen the dispute settlement system.  
Nicaragua shared the view that trade was necessary for the creation of employment and that this in 
turn would improve welfare of countries, in pa rticular small economies.  Nicaragua urged the 
United States to lift the financial restrictions ag ainst Cuba, which had been maintained for over six 
decades, so as to allow Cuba to bette r integrate into the world economy.  
15. The representative of the Plurinational State of  Bolivia said that her country, once again, 
noted that the US status report did not contain any information on progress in this dispute.  Bolivia, 
therefore, reiterated its concern about the US failure to comply with the DSB's rulings.  This situation 
of non-compliance undermined the credibility of th e multilateral trading system and caused serious 
harm to a developing-country Member.  Once again, Bolivia urged the United States to comply with the DSB's rulings and to take steps to remove the restrictions imposed under Section 211.  Finally, she 
said that Bolivia supported the concerns raised by Cuba at the present meeting.   
16. The representative of Angola said that her count ry thanked the United States for its status 
report.  Once again, Angola regretted that no concrete progress had been made towards the 
implementation of the DSB's recommendations and the Appellate Body's conclusion of 
12 February 2002 pertaining to Secti on 211.  Angola hoped that concrete  actions would be undertaken 
to resolve this matter and send a positive signal of respect for WTO rules. 
17. The representative of Mexico said that his count ry thanked the United States for its status 
report.  Mexico urged both parties to resolve th is dispute through the legal remedies provided under 
the DSU provisions.  Mexico noted that any Member could initiate a dispute if it considered that its 
rights had been nullified or impaired as a result of  non-compliance by another Member.  In Mexico's 
view, the discussion under this Agenda item could pr ovide useful input for the on-going negotiations 
on improvements and clarifications of the DSU, in particular with regard to effective compliance. 
18. 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.111) 
19. The Chairperson drew attention to documen t WT/DS184/15/Add.111, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
20. The representative of the United States said that  his country had provided a status report in 
this dispute on 9 February 2012, in accordance with Article 21.6 of the DSU.  As of November 2002, 
the US authorities had addressed the DSB's recommendations and rulings with respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty inv estigation at issue in 
this dispute.  With respect to the DSB's recomme ndations and rulings that had not already been 
addressed by the US authorities, the US Administ ration would work with the US Congress with 
respect to appropriate statutory measur es that would resolve this dispute. 
21. The representative of Japan said that his country  thanked the United States for its statement 
and its most recent status report.  Japan noted th at the United States had taken certain measures to 
implement part of the DSB's recommendations  in November 2002.  Japan hoped that the 
United States would soon be in a position to report to the DSB on more tangible progress with respect 
to the implementation of the remaining part of the DSB's recommendations.  Full and prompt WT/DSB/M/312 
Page 6  
 
  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".
1  
Japan called on the United States to fully implement the DSB's recommendations in this long-standing 
dispute without further delay. 
22. 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.86) 
23. The Chairperson drew attention to documen t WT/DS160/24/Add.86, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning Section 110(5)  of the US Copyright Act. 
24. The representative of the United States said that  his country had provided a status report in 
this dispute on 9 February 2012, 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.  
25. The representative of the European Union said that the EU noted and thanked the 
United States for its status report.  As it had stated  many times in the past, the EU remained keen to 
resolve this case. 
26. 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.49) 
27. The Chairperson drew attention to documen t WT/DS291/37/Add.49, which contained the 
status report by the European Union on progress in the implementation of the DSB's 
recommendations in the case concerning its measures a ffecting the approval and marketing of biotech 
products. 
28. The representative of the European Union said that the EU hoped that it would continue on 
the constructive path of dialogue with the United St ates.  Two technical meetings had taken place in 
2011.  The meetings had offered a good opportunity to discuss directly issues of concern to both sides and to follow up closely on developments in the bi otech field.  The EU would be happy to have 
another technical meeting in the course of 2012, if there was interest on the US side.  In 2011, the Commission had authorized six more GMOs, and ha d renewed the authorization of a seventh one.
2  In 
2012, the Commission had already authorized three more GMOs3 and had renewed the authorization 
of a fourth one.4  As had been mentioned at the previous DSB meeting, these four decisions had been 
submitted to the Appeal Committee on 17 January 2012,  which had not delivered an opinion.  They 
had been adopted by the Commission on 10 February 2012.  Regarding the concerns expressed by the 
United States on the backlog of approvals, the EU recalled that its approval system was not covered 
by the DSB's recommendations and rulings.  The EU underlined that the GMO regulatory regime was 
working normally.  The functioning of the GM O regime should not be rigidly assessed purely 
                                                      
1 Article 3.3 of the DSU. 
2 Maize. 
3 A5547-127 soybean, 356043 soybean, MON87701 soybean. 
4 40-3-2 soybean.  WT/DSB/M/312 
 Page 7 
 
 
  quantitatively and in the abstract, in terms of the nu mber of authorizations per year, since this was 
dependent on various product and case-specific el ements and in particular on the quality of 
applications and on the time needed by appli cants to answer requests from EFSA on additional 
scientific information. 
29. 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 past 
meetings of the DSB, the United States said that it continued to have substa ntial concerns regarding 
EU measures affecting the approval of biotech products .  Delays in the consideration of approvals for 
biotech products had resulted in a lengthy b acklog of pending applications, including many 
applications for products that had been approve d by, and were in use in, major markets around the 
world.  The United States took note of the EU st atement that the EU had recently approved certain 
varieties of biotech soybeans.  While this devel opment was welcomed, a handf ul of approvals was not 
sufficient to address the backlog of pending applica tions and the resulting barriers to trade.  For 
example, EU imports of US maize and maize products  were substantially restricted due to delays in 
approvals of biotech varieties of maize.  The Un ited States looked forward to EU actions to address 
the effects on trade resulting from the EU's measure s affecting the approval of biotech products.  
30. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.29) 
31. The Chairperson drew attention to documen t WT/DS322/36/Add.29, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US measures relating to zeroing and sunset reviews. 
32. The representative of the United States said that his country was pleased to report to Members 
at the present meeting that the United States and Japan had reached an agreement to resolve this 
dispute involving "zeroing".  The United States said that Members would recall that in 
December 2010, the US Department of Commerc e had announced a proposal to implement DSB 
recommendations and rulings regarding "zeroing" by , among other things, changing the calculation of 
weighted-average dumping margins and assessment ra tes in certain anti-dumping proceedings.  At the 
present meeting, the United States could inform th e DSB that the US Department of Commerce had 
finalized that proposal, and that the final modi fication had been published the previous Tuesday, 
14 February 2012, in the US Federal Register.5  The final modification applied to all reviews initiated 
after publication, as well as to on-going reviews fo r which the preliminary determination was issued 
60 days or more after publication.  The final modification provided that the United States would 
calculate weighted-average margins of dumping and anti-dumping duty assessment rates in a manner 
that provided offsets for non-dumped comparisons.  Th e notice also modified US practice in five-year 
"sunset" reviews such that the Department of  Commerce would not rely on weighted-average 
dumping margins that had been calculated using a methodology found to be in consistent with WTO 
rules.  In connection with the final modification,  on 6 February 2012, the United States and Japan had 
signed a Memorandum of Understandi ng regarding this dispute, and the parties had circulated the 
Memorandum to the DSB in document WT/DS322/44.  The Memorandum provided that the United States would take actions to meet Japan's concerns, including by revising US calculation methodologies through issuance of the final modifica tion, and that Japan would withdraw its requests 
made pursuant to Article 22.2 of the DSU by 6 A ugust 2012.  At that time, the United States and 
Japan would submit a joint letter requesting the Arbitr ator to notify the DSB that the issuance of an 
                                                      
5 Anti-dumping Proceedings:  Calculation of the Weighted-Average Dumping Margin and Assessment 
Rate in Certain Anti-dumping Duty Proceedings;  Final Modification, 77 FR 8101 (14 February 2012). WT/DSB/M/312 
Page 8  
 
  award was not necessary.  Accordingly, and in response to a joint request of the parties, the Arbitrator 
had continued the suspension of its work thro ugh 20 August 2012.  The communication of the 
Arbitrator had been circulated to the DSB in document WT/DS322/45.  The United States had repeatedly explained that the Appellate Body, in  making its findings on zeroing, had adopted an 
unsupportable analysis;  had departed from the text  of the Anti-dumping Agreement;  and, therefore, 
had exceeded its mandate.  The United States had pr esented these explanations in submissions to 
panels and the Appellate Body;  in  statements at meetings of the DSB;  and in detailed, written 
communications to the DSB.  Rather than repeati ng those explanations at the present meeting, the 
United States said that it would refer Members to its prior written communications to the DSB.
6  The 
United States said that it would also emphasize that it would continue to press in on-going WTO 
negotiations for affirmation that "zeroing" was c onsistent with WTO rules.  The United States 
nonetheless welcomed the agreement to end this diffi cult and long-standing dispute with an important 
trading partner.  The United States had also reached  a similar agreement in relation to the disputes 
with the EU, which it would discuss under the next item on the Agenda.  Resolution of these disputes, 
notwithstanding the US deep disagreement with the Appellate Body's findings on "zeroing", together 
with its determination to press for correction of  these decisions through on-going negotiations, 
demonstrated the US commitment to strengthening the rules-based trading system.   
33. The representative of Japan said that, as explained by the United States, Japan and the 
United States had concluded a Memorandum of Unde rstanding in this dispute on 6 February 2012.  
That Memorandum had been notified to the DSB in document WT/DS322/44.  The Memorandum set 
forth parameters and time-frames that must be fulf illed, including a number of steps the United States 
must take, so as to allow the parties to consult with  a view to finding a mutually agreed solution to 
this dispute.  As foreseen by the Memorandum, the United States had, as the first step, completed the 
Section 123 process under the Uruguay Round Agreem ent Act by signing the Final Rule, and Final 
Modification for Reviews had been published in th e US Federal Register, dated 14 February 2012.7  
Japan wished to highlight some of the key features of  the final modification.  First, the United States 
had adopted the changes to the dumping margin calculation methodology "to provide offsets for non-
dumped comparisons when using monthly A-A comparis ons in reviews, in a manner that parallel the 
WTO-consistent methodology the Department [of Commerce] currently applied in original anti-
dumping duty investigations".  Japan understood that  this would mean that, in its administrative 
review, new shipper review, a nd expedited anti-dumping review, the United States would normally 
use weighted-average to weighted-a verage comparisons, instead of weighted-average to transactions, 
on a monthly basis and, in aggregating such comp arison results, no negative comparison results would 
be disregarded.  Japan understood that, in case of  administrative review, this new, modified 
methodology would apply to both cash deposits and ass essment rates.  Second, the Final Rule and 
Final Modification stated that the United Stat es withdrew its practice of using the zeroing 
methodology in original investigations in which transaction-to-transaction comparisons was used for 
calculating the margin of dumping.  Again, the Un ited States also made a commitment that it would 
not use zeroing methodology when it used transaction-to-transaction comparisons.   
34. Third, according to the Final Rule and Final Modification, the United States "will modify its 
practice in five-year sunset reviews, such that it would not rely on weight ed-average dumping margins 
that had been calculated using methodology determined by the Appellate Body to be WTO-
                                                      
6 Communication by the United States, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing"), WT/DS294/16 (17 May 2006);  Communication from the 
United States, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/18 (19 June 2006);  Communicatio n from the United States, United States – Measures 
Relating to Zeroing and Sunset Reviews, WT/DS322/16 (26 February 2007);  Communication by the 
United States, United States – Final Anti-dumping Meas ures on Stainless Steel fr om Mexico, WT/DS344/11 
(20 May 2008). 
7 77 FR 8101 (14 February 2012).  WT/DSB/M/312 
 Page 9 
 
 
  inconsistent in US - Zeroing (EC), US - Zeroing (Japan), and US - Continued Zeroing (EC)".  To 
translate, unlike its past practi ce, the United States undertook that it would no longer rely on dumping 
margins calculated with zeroing found to be WT O-inconsistent in its likelihood of dumping 
determination in sunset reviews.  This was also a distinct feature included in the Final Rule and Final 
Modification for Reviews.  This commitment, together with the modified methodology for 
administrative review, would apply "to all sun set reviews pending before the Department [of 
Commerce] for which either the preliminary results or expedited final results of sunset review are 
issued after 16 April 2012".  Fourth, the Final Ru le and Final Modification appeared to apply to 
certain entries of goods that had entered into the Un ited States but were still not liquidated.  The Final 
Rule and Final Modification for Reviews stated  that the new revised methodology would be 
applicable to (i) "all reviews pending before the De partment [of Commerce] for which the preliminary 
results are issued after 16 April 2012", and (ii) "a ny reviews currently discontinued by the Department 
[of Commerce] if such reviews are continued afte r 16 April 2012 by reason of a final and conclusive 
judgment of a US Court".  These were important steps and features for the implementation by the 
United States of the DSB's recommendations and ruli ngs and the resolution of this dispute.  Japan 
thanked the United States for those steps and its efforts.    
35. There were also other steps contemplated by the Memorandum, some of which had been 
already initiated by the United States.  Japan expect ed that all steps or actions set forth in the 
Memorandum would be fulfilled and executed by the United States as foreseen in the Memorandum.  
Japan would continue to monitor the situation and a ny developments closely to that end.  In that 
respect, Japan wished to note that, under the te rms of the Memorandum of Understanding, Japan 
reserved its right to invoke Article 21.5 compliance proceedings with respect to the Final Rule and 
Final Modification adopted by the United States under Section 123 and its app lication, although it was 
Japan's hope that recourse to such further pro ceedings would be proven to be unnecessary.  This 
dispute was one of the longest outstanding disput es which was currently under surveillance of the 
DSB.  In fact, more than seven years had passed since Japan had initiated this dispute by requesting 
consultations with the United States on 24 November  2004.  Throughout the history of this dispute, 
the parties had been vigorously litigating the matte r in the original proceedings, in the compliance 
proceedings and in the Article 22.6 arbitration.  Th erefore, Japan wished to congratulate and to pay 
tribute to the Appellate Body, the compliance panel a nd their respective secretariats for their work in 
this dispute.  Japan also wished to express its a ppreciation to the Article 22.6 Arbitrator for its time 
and efforts devoted to this matter.  This dispute demonstrated that the WTO dispute settlement system 
worked and served its very objective of achieving a resolution to a dispute. 
36. The representative of the European Union said that  although the EU had not intended to speak 
under this Agenda item, it was forced to do so in or der to respond to the statement just made by the 
United States.  The EU representative wished to note that a roadmap between the European 
Commission and the United States had been notified to the DSB and not an agreement between the 
EU and the United States.  The EU urged the United States to refer to those documents correctly as 
those references were legally a nd institutionally relevant.   
37. The representative of Canada said that his country welcomed the announcement by the 
United States, the European Union and Japan with regard to DS322, DS350 and DS294 of their 
agreement on a way forward in resolving their disput es.  Canada also noted the US announcement, as 
part of these efforts at resolution, of a Final Modification relating to the methodology it would use for 
calculating weighted-average margins of dumping.  The use of "zeroing" by the United States when 
calculating dumping margins was an important trade issu e.  In that regard, Canada was pleased to see 
that, pursuant to its 14 February 2012 Final Modification, the United States would abandon the general use of zeroing in anti-dumping duty proceed ings.  Canada noted, however, that under the 
Final Modification the United States may use, in limited circumstances, a method other than the 
standard monthly average-to-average comparison.  Ca nada joined others in conveying its expectation WT/DSB/M/312 
Page 10  
 
  that the United States would, when calculating dumpi ng margins in the future, respect its obligations 
under the Anti-Dumping Agreement. 
38. The representative of Mexico said that his count ry thanked the United States for its status 
report.  Mexico would closely monitor the implementa tion in this dispute since it was also involved in 
another dispute with the United States on zeroing (DS344).  
39. The representative of China said that her count ry echoed the views expressed by previous 
speakers. 
40. 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.26) 
41. The Chairperson drew attention to documen t WT/DS350/18/Add.26, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning the existence and application of zeroing methodology by the United States. 
42. The representative of the United States said that his country was pleased to report to Members 
that it had reached an agreement to resolve both of the on-going disputes, DS350 and DS294, 
involving "zeroing" for which the EU was a complain ing party.  Under the prior Agenda item, the 
United States had discussed the final modification changing the calculation of weighted-average dumping margins and assessment rates in certain an ti-dumping proceedings that had been adopted by 
the United States in order to respond to the DSB re commendations and rulings in this dispute.  In 
connection with the final modification, on 6 Febr uary 2012, the United States and the European 
Commission had agreed to a Memorandum regarding this dispute and dispute DS294.  The 
Memorandum had been circulated to the DSB in document numbers WT/DS294/43 and WT/DS350/20.  The Memorandum provided that the United States would take actions to address EU 
concerns, including by revising US calculation methodologies through issuance of the final modification, and that the EU would withdraw its  request in DS294 under Article 22.2 of the DSU 
and would take no further actions under the DSU with respect to DS350 or DS294.  Despite the 
fundamental disagreement of the United States with  the Appellate Body's findings on "zeroing", the 
United States welcomed the agreement to end this difficult and long-standing dispute.  
43. The representative of the European Union said that the EU thanked the United States for its 
status report.  As Members were aware, the Eur opean Commission and the United States had signed a 
roadmap which set out the steps the United States w ould take in order to ensure full compliance for 
the future in the two long-standing zeroing disputes.  On 14 February 2012, the United States had 
published a Notice by which it abolished the use of  zeroing in review investigations.  The new 
methodology would also apply to on-going revi ew investigations for which preliminary 
determinations were expected no less than 60 days from the publication of the Notice.  The EU welcomed the adoption of the new methodology and trusted that the United States would apply it in 
accordance with its WTO obligations .  The United States had also committed to conduct Section 129 
reviews of certain anti-dumping orders that would not be covered by the new methodology.  The EU 
expected those reviews to be completed by mi d-June 2012 and zeroing to be removed from all 
dumping margin calculations.  The EU pointed out that the roadmap reflected a spirit of compromise and a pragmatic approach on the European side.  The EU continued to maintain that, in its view, the 
United States was required to do more in order to bring itself into full conformity with the DSB's 
recommendations and rulings.  In particular, the Un ited States had continued to collect anti-dumping 
duties with zeroing for several years after the end of the reasonable period of time in both DS294 and 
DS350, in contradiction with the specific findings of  the Appellate Body, and had not been willing to  WT/DSB/M/312 
 Page 11 
 
 
  address this issue which, to the EU's understanding, would have been part of the US implementation 
obligations in order to achieve full compliance.  The EU recognized that significant progress had been 
made and it hoped and expected that the satisfactor y completion of all steps under the roadmap would 
effectively bring the zeroing disputes to an end. 
44. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(g) United States – Laws, regul ations and methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.20) 
45. The Chairperson drew attention to documen t WT/DS294/38/Add.20, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US laws, regulations and me thodology for calculating dumping margins. 
46. The representative of the United States said th at, under Agenda item 1(e), the United States 
had discussed the final modification adopted by the United States in order to respond to the DSB's 
recommendations and rulings in this dispute.  And under the previous Agenda item, the United States 
had discussed the Memorandum with the European Commission regarding this dispute and dispute 
DS350.  Under that Memorandum, following the completion of steps to be undertaken by the 
United States, the EU would withdraw its request under Article 22.2 of the DSU, and the United States and the EU would submit a joint lette r to the Arbitrator requesting notification to the 
DSB that the issuance of an award was not necessary.  Until that time, the arbitration was to remain 
suspended.  Accordingly, and in response to a jo int request, the Arbitrator in this dispute had 
continued the suspension of its work through 28 June  2012.  The communication of the Arbitrator had 
been circulated to the DSB in document WT/DS294/ 44.  Again, despite the fundamental disagreement 
of the United States with the Appellate Body find ings on "zeroing", the United States welcomed the 
agreement to end this difficult and long-standing di spute.  The United States noted that, under Agenda 
item 1(a), certain Members had expressed so-called "s ystemic" concerns relating to the situation of 
non-compliance in that dispute.  The United States assumed that all those Members intervening under 
Agenda item 1(a) felt equally strongly, and system ically, that the US announcements under this item 
and the previous two items contributed to stre ngthening the WTO dispute settlement system.   
47. The representative of the European Union said that the EU thanked the United States for its 
status report and referred Members to its stat ement made under Agenda item 1(f) of the present 
meeting. 
48. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(h) China – Measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products:  Status report by China (WT/DS363/17/Add.13) 
49. The Chairperson drew attention to documen t WT/DS363/17/Add.13, which contained the 
status report by China on progress in the implemen tation of the DSB's recommendations in the case 
concerning China's measures affecting trading rights and distribution services for certain publications 
and audiovisual entertainment products. 
50. The representative of China said that her country had provided a status report in this dispute 
on 9 February 2012, in accordance with Article 21.6 of the DSU.  China had made tremendous efforts 
to implement the DSB's rulings and recommendati ons, and had completed amendments to most 
measures at issue.  With regard to the measures c oncerning film for theatrical release, China had been WT/DSB/M/312 
Page 12  
 
  discussing with the United States and had recen tly reached agreement on a Memorandum of 
Understanding. 
51. The representative of the United States said that his country thanked China for its status report 
and its statement made at the present meeting.  As  Members may have been aware, the United States 
and China had very recently reached agreement on a Memorandum of Unders tanding regarding films 
for theatrical release.  The United States looked fo rward to the formal signing of the Memorandum of 
Understanding in the following days.  The United States continued to review China's measures 
relating to reading materials, audiovisual home ente rtainment products, and sound recordings in light 
of the DSB rulings and recommendations.    
52. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(i) United States – Anti-dumping administrative review s and other measures related to imports of 
certain orange juice from Brazil:  Status report by the United States (WT/DS382/10/Add.2) 
53. The Chairperson drew attention to document WT/DS382/10/Add.2, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US anti-dumping administrative revi ews and other measures related to imports of 
certain orange juice from Brazil. 
54. The representative of the United States said th at, as discussed under Agenda item 1(e) of the 
present meeting, on 14 February 2012, the US Department of Commerce had published a 
modification to its procedures in order to implem ent DSB recommendations and rulings regarding the 
use of "zeroing" in anti-dumping reviews.  The United States understood that this modification would 
address the findings in this dispute, as well as the "zeroing" disputes discussed in the prior Agenda 
items.  The United States said that it was currently in the process of arranging discussions with Brazil 
regarding the final modification pu blished on 14 February 2012.   
55. The representative of Brazil said that her count ry thanked the United States for its status 
report pertaining to this dispute.  Brazil was still analyzing the new legislation published on 
14 February 2012 as to whether it would be sufficien t to comply with the DSB's recommendations.  
As mentioned on previous occasions, Brazil remained  concerned about the temporal applicability of 
the changes brought about by the new legislation.  As Brazil understood, the legislation indicated that 
the change in calculation would apply only in rela tion to new entries of merchandise occurring on or 
after the date of the Section 129 determination.  In order to im plement the DSB's recommendations 
and rulings in the "Orange Juice" dispute, the United States would also be required to revise its 
calculations, without "zeroing", in relation to past en tries that remained unliquidated at the end of the 
reasonable period of time.  Furthermore, the US De partment of Commerce had retained the possibility 
to use a different approach in reviews besides th e weighted-average to weighted-average method in 
some instances.  The United States still had some days to meet its WTO obligations in the "Orange 
Juice" dispute and Brazil hoped that the United States would be able to do so.  
56. The representative of the United States said that  Brazil had made a number of detailed 
comments, and the United States looked forward to discu ssing those issues bilaterally with Brazil.  At 
this point, however, the United States wished to briefly clarify certain issues.  The change in 
methodology applied to all reviews that had been in itiated after publication of the final modification.  
In addition, the change would be applied in on-go ing reviews for which the preliminary determination 
was issued 60 days or more after publication of the final modification.  Brazil's intervention had 
appeared to suggest that the United States should go back in time and reopen previously completed 
reviews so as to refund duties on past entries.  As  it had noted in several previous DSB meetings, the  WT/DSB/M/312 
 Page 13 
 
 
  United States was not aware of any other inst ances in which a Member had refunded duties in 
response to an adverse finding in a WTO dispute.   
57. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
(j) United States – Definitive anti-dumping and countervailing duties on certain products from 
China:  Status report by the United States (WT/DS379/12/Add.1) 
58. The Chairperson drew attention to document WT/DS379/12/Add.1, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US definitive anti-dumping and countervailing duties on certain products from China. 
59. The representative of the United States said that  his country had provided a status report in 
this dispute on 9 February 2012, in accordance with  Article 21.6 of the DSU.  The United States 
would continue to work on solutions to implemen t the DSB's recommendations and rulings in this 
dispute.  
60. The representative of China said that her country  thanked the United States for its status 
report and statement made at the present meeting.  As almost 11 months had lapsed since the adoption 
of the Appellate Body Report a nd Panel Report pertaining to th is dispute, China urged the 
United States to expedite its work and to fully implement the DSB's rulings and recommendations by 
the end of the reasonable period of time.   
61. The DSB took note of the statements and agreed to revert to this matter at its next regular 
meeting. 
2. Philippines – Taxes on distilled spirits 
(a) Implementation of the recommendations of the DSB 
62. The Chairperson recalled that, in accordance w ith the DSU provisions, the DSB was required 
to keep under surveillance the implementation of r ecommendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Members.  In this respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  She reca lled that, at its meeting on 20 January 2012, the 
DSB had adopted the Appellate Body Reports and th e Panel Reports, as modified by the Appellate 
Body Reports, pertaining to the disputes on:  "Phi lippines – Taxes on Distilled Spirits".  The 30-day 
time-period in this case had expired on 19 Februa ry 2012 and, on 17 February 2012, the Philippines 
had informed the DSB in writing of their intentions in respect of implementation.  The relevant 
communication was contained in document WT/DS 396/12 – WT/DS403/12.  She then invited the 
representative of the Philippines to make a statement. 
63. The representative of the Philippines said th at his country thanked the DSB for the 
opportunity to make a statement concerning im plementation of the DSB's recommendations and 
rulings pertaining to this dispute.  The Philippin es reiterated its commitment to the multilateral trading 
system and said that, in a letter dated 15 February 2012 and circulated to the DSB on 20 February 2012, the Philippines had already stat ed that it intended to implement the DSB's 
recommendations and rulings in this dispute, in  a manner that respected the Philippines' WTO 
obligations.  However, it would be impracticable for the Philippines to comply immediately with the 
DSB's recommendations and rulings.  The Philippines not ed that implementation in this dispute raised WT/DSB/M/312 
Page 14  
 
  numerous technical and legal issues in the context of a long-standing fiscal regime that for many 
decades had been fundamentally integrated into the Philippines' domestic policies.  Moreover, 
implementation required extensive c onsultations and coordination within the Philippines Congress, as 
well as amongst several governmental agencies and non-governmental stakeholders.  Those 
circumstances were also compounded by particul ar challenges that the Philippines faced as a 
developing-country Member.  For those and other reasons, the Phili ppines would need a reasonable 
period of time in which to comply with the DSB' s recommendations and rulings.  The Philippines was 
already engaged in discussions on this matter with the EU and the United States, in accordance with 
Article 21.3(b) of the DSU.  The Philippines would k eep the DSB fully apprised of the results of the 
discussions.  
64. The representative of the European Union said th at the EU thanked the Philippines for stating 
its intention to comply.  The EU stood ready to discuss with the Philippines a reasonable period of 
time that they would need to bring themselves into compliance.  
65. The representative of the United States said that his country was pleased to receive the letter 
from the Philippines to the DSB on 15 February 20 12 indicating that it intended to implement the 
recommendations and rulings of the DSB in this dis pute, which had been adopted on 20 January 2012.  
The Philippines had indicated that it would need a re asonable period of time for implementation.  The 
United States said that it stood ready to discuss with the Philippines, t ogether with the EU, what that 
period of time should be.  The excise taxes at issu e in this dispute had been a barrier to imported 
distilled spirits for decades.  The United States hope d that the DSB's recommendations and rulings 
provided the impetus for the Philippines to end quickly the discrimination and open its markets. 
66. The DSB took note of the statements, and of the information provided by the Philippines 
regarding its intentions in respect of implementation of the DSB's recommendations. 
3. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Union and Japan 
67. The Chairperson said that this item was on the Agen da of the present meeting at the request of 
the European Union and Japan.  She then invited the respective representatives to speak. 
68. The representative of the European Union said th at, as it had done many times before, the EU 
asked the United States to stop transferring anti-dumping and countervailing duties to the US industry.  
Every disbursement that still took place was clearly an act of non-compliance with the DSB's recommendations and rulings.  The EU, once again, re newed its call on the United States to abide by 
its clear obligation under Article 21.6 of the DSU and to submit status reports pertaining to this 
dispute. 
69. The representative of Japan said that the lat est distributions for FY 2011 announced last 
December8 showed that the CDSOA remained operationa l.  As US Customs and Border Protection 
explained, "the distribution process will continue for an undetermined period".9  Japan urged the 
United States to stop the illegal distributions and rep eal the CDSOA, not just in form but in substance, 
so as to resolve this dispute.  According to Article 21.6 of the DSU, the United States was under 
obligation to provide the DSB with a status report pertaining to this dispute. 
                                                      
8 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trade/ priority_trade/add_cvd/cont_dum p/cdsoa_11/2011_annual_report/  
9 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/312 
 Page 15 
 
 
  70. The representative of Brazil said that her country  thanked the EU and Japan for keeping this 
item on the DSB's Agenda.  As it had expressed in previous DSB meetings, Brazil was of the view 
that the United States was under obligation to submit status reports in this dispute until such time as 
no more disbursements were made pursuant to the By rd Amendment.  Only th en would the issue be 
"resolved" within the meaning of the DSU and the United States would be released from its obligation 
to provide status reports in this dispute. 
71. The representative of India said that his count ry thanked the EU and Japan for regularly 
keeping this item on the DSB's Agenda.  India re newed its systemic concerns about continuous non-
compliance by Members and the resulting growing lack  of credibility and confidence in the dispute 
settlement system.  India urged the United States to  report full compliance without any further delay. 
72. The representative of Canada said that his country  thanked the EU and Japan for, once again, 
putting this item on the DSB's Agenda.  Canada shar ed the views of the EU and Japan that the Byrd 
Amendment remained subject to the DSB's surve illance until the United States ceased to apply it. 
73. The representative of Thailand said that his count ry thanked the EU and Japan for continuing 
to bring this item before the DSB.  Thailand supp orted the statements made by previous speakers and 
urged the United States to cease the disbursements and fully implement the DSB's rulings and 
recommendations in this dispute.   
74. The representative of the United States said that, as his country had explained at previous 
DSB meetings, the US President ha d signed the Deficit Reduction Act into law on 8 February 2006.  
That Act included a provision repealing the Contin ued Dumping and Subsidy Offset Act of 2000.  
Thus, the United States had taken all actions necessary to implement the DSB's recommendations and 
rulings in these disputes.  The United States re called furthermore that Members had acknowledged 
during previous DSB meetings that the 2006 Defic it Reduction Act did not permit the distribution of 
duties collected on goods entered after 1 October 2007.  The United States said th at it, therefore, did 
not understand the purpose for which the EU and Jap an had inscribed this item on the Agenda of the 
present meeting.  With respect to comments regard ing further status reports, the United States failed 
to see what purpose would be served by further submissi on of status reports rep eating, again, that the 
United States had taken all actions necessary to im plement the DSB's recommendations and rulings in 
these disputes.   
75. The DSB took note of the statements. 
4. United States – Anti-dumping measures on corrosion-resistant carbon steel flat products 
from Korea 
(a) Request for the establishment of a panel by Korea (WT/DS420/5) 
76. The Chairperson drew attention to the comm unication from Korea contained in document 
WT/DS420/5, and invited the representative of Korea to speak. 
77. The representative of Korea said that, on 31 January 2011, his country had requested 
consultations with the United States regarding the practice called "zeroing" in anti-dumping measures 
imposed by the United States on imports of corrosion -resistant carbon steel flat products from Korea.  
Korea and the United States had held consultations aimed at finding a mutually satisfactory settlement 
of the matter.  The consultations allowed a better und erstanding of the positions of the parties, but had 
failed to resolve the dispute.  Korea noted that, in the meantime, the Unite d States had announced on 
14 February 2012 that it would no longer utilize " zeroing" practice in annual reviews in order to 
comply with the DSB's rulings and recommendations in past WTO disputes.  Korea welcomed the US 
efforts but regretted, however, that the announced  US plan did not go far enough to fully address WT/DSB/M/312 
Page 16  
 
  Korea's legitimate concerns in this dispute, whic h Korea had made clear to the United States during 
the consultations.  Korea noted that zeroing in admini strative reviews had repeatedly been found to be 
inconsistent with the Anti-Dumping Agreement a nd the United States was expected to amend the 
methodology accordingly.  In that regard, Korea and the United States had agreed to expedite 
proceedings with a view to a prompt settlement a nd implementation envisioned in Article 3.3 of the 
DSU.  Korea believed that the dispute at hand could be settled in a constructive and time-saving 
manner.  Accordingly, Korea requested that the DSB establish a panel pursuant to Article 6 of the 
DSU, to examine the matter set out in Korea's panel request. 
78. The representative of the United States said th at, as discussed under Agenda item 1(e) of the 
present meeting, on 14 February 2012, the US  Department of Commerce had published a 
modification to its procedures in order to implem ent the DSB recommendations and rulings regarding 
the use of "zeroing" in anti-dumping reviews.  Th is modification would address the matter covered in 
Korea's panel request as well as the "zeroing" disput es that had been discussed in the prior Agenda 
items.  Korea had circulated a procedural agreem ent reached during the previous year between the 
United States and Korea.  Pursuant to that agre ement, the United States would not object to Korea's 
first request for the establishment of a panel.  None theless, the United States was concerned that just 
two days after the publication of the final modification, Korea had elected to put this panel request on the DSB's Agenda.  Now that the process of modifying US methodologies to respond to the DSB recommendations and rulings on "zeroing" had been completed, moving forward with this dispute 
would serve no purpose.  To the contrary, a Member that continued to litigate over a methodology that 
had been terminated was, in the US view, not stre ngthening the dispute settlement system but instead 
was squandering both its own resources and the resources of the dispute settlement system.  
79. The DSB took note of the statements and agreed  to establish a panel in accordance with the 
provisions of Article 6 of the DSU w ith standard terms of reference. 
80. The representatives of China, th e European Union, Japan, Mexi co and Norway reserved their 
third-party rights to participate in the Panel's proceedings. 
5. European Union – Anti-dumping measu res on certain footwear from China 
(a) Report of the Panel (WT/DS405/R) 
81. The Chairperson recalled that, at its mee ting on 18 May 2010, the DSB had established a 
Panel to examine the complaint by China, pertaini ng to this dispute.  The Report of the Panel, 
contained in document WT/DS405/R, had been circulated on 28 October 2011 as an unrestricted 
document.  Subsequently, at its meeting on 19 December 2011 the DSB had adopted a draft decision, 
set out in document WT/DS405/5, with regard to the time-period for adoption or appeal in this 
dispute.  The Panel Report was before the DSB for adoption at the request of China.  The adoption 
procedure was without prejudice to the right of Members to express their views on the Panel Report. 
82. The representative of China said that her country thanked the Panel and the Secretariat for 
their time and effort devoted to the resolution of th is dispute.  China also wished to thank the third 
parties for their constructive participation in the proceedings.  China welcomed the Panel's conclusion 
that Article 9(5) of the EU's Basic Anti-Dumping Re gulation was "as such" inconsistent with the EU's 
obligations under Articles 6.10, 9.2 and 18.4 of th e Anti-Dumping Agreement, Article I:1 of the 
GATT 1994, and Article XVI:4 of the WTO Agreement, and that the app lication of Article 9(5) of the 
Basic Anti-Dumping Regulation in the footwear or iginal investigation was inconsistent with 
Articles 6.10 and 9.2 of the Anti-Dumping Agreemen t.  The Panel had also found that the EU had 
acted inconsistently with Article 2.2.2(iii) of the Anti-Dumping Agreemen t with respect to the 
determination of the amounts for administrative, selli ng and general costs and profit, and that the EU 
had acted inconsistently with its obligations under Articles 6.5 and 6.5.1 of the Anti-Dumping  WT/DSB/M/312 
 Page 17 
 
 
  Agreement with respect to the confidential treatment, or the non- confidential summarization, of 
certain information in the original in vestigation and the expiry review.   
83. While China was pleased that the anti-dumpi ng measures challenged were no longer in force 
and that it had prevailed on several key legal claims  raised in the dispute, China remained deeply 
dissatisfied with some aspects of the EU's anti-dum ping practice that the Panel had not considered to 
amount to violations of the provisions cited by Chin a in this dispute.  Following the adoption of the 
Report at the present meeting, this dispute would mo ve on to the implementation stage.  With respect 
to the findings regarding Article 9(5) of the EU 's Basic Anti-Dumping Regulation, China urged the 
EU to take the necessary positive steps to ensure prompt and full compliance with the Report's 
findings and recommendations.  China emphasized that  any amendment to Article 9(5) should not fall 
foul of the universal MFN obligation contained in Article I:1 of the GATT 1994, as the Panel in this 
dispute had judged to be the case with regard to Ar ticle 9(5).  In that respect, China recalled the 
consistent jurisprudence of the A ppellate Body, which had clarified that while "[n]either the words 'de 
jure' nor 'de facto ' appear in Article I:1… Article I:1 covers also 'in fact', or de facto , 
discrimination".10  Therefore, China urged that any amendment to Article 9(5), as well as any 
investigative procedure undertaken pursuant to the amended article, not only avoid explicitly targeting 
China vis-à-vis  other WTO Members, but also be neither written nor implemented in such a way that 
the intent or effect of the article would be to affo rd China a treatment unequal to that afforded to other 
WTO Members.  China hoped that the EU's termin ation of the anti-dumping duties on footwear that 
had been challenged in this dispute would mark, on ce and for all, the permanent end of over 16 years 
of trade-distorting protection of its footwear industr y at the expense of Chinese producers.  China also 
urged the EU to modify its anti-dumping practice ac cordingly so as to avoid similar violations in 
future investigations.  China, ther efore, requested that the DSB adopt  the Report of the Panel in this 
dispute and called upon the EU to implement the findings and recommendations promptly. 
84. The representative of the European  Union said that the EU wished to thank the Panel and the 
Secretariat for their work, time and efforts dedicat ed to this dispute.  The EU regretted that 
Article 9(5) of its Basic Anti-Dumping Regula tion had been found by the Panel to be WTO-
inconsistent "as such" and "as applied" in the orig inal investigation.  The EU noted that China had 
challenged this provision by advancing the same clai ms both in the "EC - Fasteners" and in the "EC - 
Footwear" disputes.  The EU also noted that the two Panels had applied th e same reasoning and had 
made the same findings with respect to the WTO-c onsistency of this provision.  However, the EU 
wished to make two remarks.   
85. First, the EU regretted that the Panel had d ecided to base its reasoning and its findings on 
Article 9(5) of the EU Basic Anti-Dumping Regulation entirely on the reasoning and on the findings contained in the Report of the Panel in the "EC - F asteners" dispute, a Report that, at that time, had 
not been adopted and was under appella te review.  Second, the EU wished  to bring to the attention of 
the DSB that the findings of the Panel in the "EC - Fasteners" dispute on Article 9(5) had been 
reviewed on appeal.  Although the Appellate Body had upheld those findings except for one, the legal 
argumentation of the Appellate Body had been different  in some important respects.  Furthermore, the 
finding of the "EC - Fasteners" Panel that Article 9( 5) was in breach of the MFN obligation enshrined 
in Article I:1 of the GATT 1994 had been declared m oot and of no legal effect.  The Panel's findings 
in the "EC - Footwear" dispute on Article I:1 of the GATT were based on the same factual circumstances and legal reasoning as in the "EC - Fasteners" dispute and consequently the EU 
considered that this finding was at least de facto  moot.  Therefore, and in view of the Appellate 
Body's current workload, the EU had decided not to appeal this finding.  However, having heard 
China insisting on the findings under Article I:1 of the GATT 1994, the EU wondered whether it had 
made the right choice and it seemed that the EU might have to come back to this particular issue.  
With regard to the other findings in the "EC - F ootwear" dispute, the EU was pleased with the fact 
                                                      
10 See for example para. 78, AB Report in Canada - Autos . WT/DSB/M/312 
Page 18  
 
  that the Panel had rejected almost the entirety of the great number of claims of WTO-inconsistency 
that had been advanced by China.  The EU was also pleased that the Panel had refrained from making 
any implementation-related recommendations, as the measures at issue had expired on 31 March 2011.  The EU took note of the fact that  the Panel had taken issue with a detail of the 
dumping calculation of one producer and with th e completeness of the non-confidential file.  
However, it considered that these circumscribed vi olations had not affected  the overall soundness of 
the measures. 
86. The representative of China said that her country took note of the EU's comments on the 
relationship between the Panel's findings in this dispute and the Appellate Body's findings in the 
"EC - Fasteners" dispute.  Although there was some overlap in the claims in these two disputes, those 
two disputes were independent with  independent Reports.  Once the Panel Report in this dispute was 
adopted, the legal effect of the Panel Report and its  rulings in this dispute was independent of the 
Appellate Body Report in the "EC - Fasteners" dispute.  The EU should, de jure , implement the DSB's 
rulings and recommendations respectively, and the EU's implementation in this dispute should be 
consistent with all the Panel' s findings and the WTO rules. 
87. The DSB took note of the statements and adopted the Panel Report contained in document 
WT/DS405/R. 
6. Dominican Republic – Safeguard measures on  imports of polypropylene bags and 
tubular fabric 
(a) Report of the Panel (WT/DS415/R – WT/DS416/R – WT/DS417/R – WT/DS418/R and 
Add.1) 
88. The Chairperson recalled that, at its meeting on 7 February 2011, the DSB had established a 
single Panel to examine the complaints by Cost a Rica, Guatemala, Honduras and El Salvador, 
pertaining to this dispute.  The Report of the Panel, contained in document WT/DS415/R – WT/DS416/R – WT/DS417/R – WT/DS418/R and Add. 1 had been circulated on 31 January 2012 as 
an unrestricted document.  The Panel Report was before the DSB for adoption at the request of 
Costa Rica, Guatemala, Honduras and El Salvador.  This adoption procedure was without prejudice to 
the right of Members to express their views on the Panel Report.   
89. The representative of Costa Rica said that his country thanked the Panel for the excellent 
work it had done and the WTO Secretariat for its dedication and efforts.  Costa Rica expressed 
satisfaction that the Panel's proceedings had been co nducted entirely in Spanish.  As the complainants 
had stated since the beginning of this dispute, th e Panel had found that the preliminary and definitive 
safeguard measures imposed by the Dominican Repub lic on polypropylene bags  and tubular fabric 
were inconsistent with its WTO obligations.  These measures had serious consequences for 
Costa Rican exporters of these products and had sy stemic implications that went far beyond this 
dispute.  In the first place, the Panel had found that Article XIX of the GATT 1994 and the Agreement 
on Safeguards applied to the measures contested.  Indeed, these measures were not simply a tariff 
increase, rather they were measures other than ordina ry customs duties.  Their aim was to suspend the 
Dominican Republic's obligations in light of Ar ticles I and II of the GATT 1994.  They had been 
notified to the relevant Committee as safeguard meas ures and were justified as safeguard measures 
under Article XIX of the GATT 1994 and the Agreemen t on Safeguards.  As pointed out before the 
Panel, Costa Rica believed that the only reasonable explanation of why the Dominican Republic had 
decided to apply safeguard measures pursuant to  Article XIX of the GATT 1994 and the Agreement 
on Safeguards at that time, and not simply impose a tariff increase, was because a straightforward 
tariff increase would not have allowed the Domi nican Republic to exclude the complainants from 
application of such measures given the existence of  preferential bilateral commitments.  The Panel 
Report had clearly determined the Dominican Republic 's abusive use of the safeguards provisions in  WT/DSB/M/312 
 Page 19 
 
 
  this case, for highly protectionist purposes and in an unjustifiable manner.  The Panel, like the 
Appellate Body in previous disputes11, had reaffirmed the mandatory nature of the unforeseen 
developments criterion mentioned in Article XI X:1(a) of the GATT 1994 and had found that the 
Dominican Republic had acted inconsistently wi th that provision and with the Agreement on 
Safeguards.   
90. The Panel had also found that the Domini can Republic defined the domestic industry 
arbitrarily, adapting it to the features of one enterp rise alone, so the definition used was inconsistent 
with the obligations under the Agreement on Safegu ards and Article XIX of the GATT 1994 in this 
respect.  The Panel had also found that the determin ations of serious injury, both in the preliminary 
and the definitive measures, were contrary to th e criteria and definitions in Article XIX of the 
GATT 1994 and the Agreement on Safeguards.  In additio n, the Panel had considered that, in as much 
as it had already found that the Dominican Republic had acted inconsistently with its obligations 
under the Agreement on Safeguards and Article XIX of  the GATT 1994, in respect of the finding of 
serious injury, it was not necessary to issue a finding on whether the Dominican Republic had determined a causal relationship with the serious in jury (paragraph 7.328).  Moreover, the Panel had 
also recognized that the Dominican Republic's investigating commission had not provided any 
explanation on this point (paragraph 7.354).  A lthough Costa Rica respected the Panel's decision not 
to issue any finding on the causal relationship and u nderstood that it would be difficult to show the 
existence of a causal link between the increased impor ts and serious injury that had not been proved, 
Costa Rica considered that a finding on this point woul d have helped to prevent such a situation in the 
future.  The measures imposed by  the Dominican Republic had led to a total halt of imports of 
polypropylene bags and tubular fabric from Cost a Rica, following their imposition in March 2010.  
This had a disastrous impact on Costa Rica's industr y.  Moreover, Costa Rica was concerned that, in 
October 2011, the Dominican Republic had suspende d liberalization of the definitive safeguard 
measure, contrary to what was indicated in its ow n time-table for liberalization, as could be seen from 
paragraph 2.24 of the Panel Report.  In light of that  and in view of the conc lusions and findings in the 
Panel Report to be adopted at the present meetin g, Costa Rica considered that the Dominican 
Republic should remove the measure immediately and fully.  
91. The representative of Guatemala said that his country wished to express its satisfaction with 
the Panel Report to be adopted by the DSB at the present meeting.  Guatemala thanked the Panel and 
the WTO Secretariat for their work in this dispute.   In particular, Guatemala was pleased that the 
Panel's proceedings had been comple ted very rapidly and that they had been conducted in Spanish.  
As the administrative file and the measures contested  were only available in Spanish, this not only 
reduced the high cost of translation, but had also enabled the parties to put forward their arguments 
effectively.  Moreover, the Panel had had the oppo rtunity to form its opinion on the basis of the 
original documents and did not have to rely on tran slations.  Guatemala noted that the earlier a report 
was adopted, the earlier a positive solution to the di spute would be found.  Guatemala hoped that the 
adoption of the Report would result in the prompt restoration of stable trade relations, without 
barriers, between Guatemala and the Dominican Re public.  Guatemala considered that the Panel's 
decision that the measures in question were gove rned by Article XIX of the GATT 1994 and the 
Agreement on Safeguards was the right one.  In pa rticular, the Panel's finding that the measures 
suspended the Dominican Republic's obligations und er the GATT 1994, notably those in Articles I:1 
and II:1(b), second sentence, was relevant.  This su spension of obligations, combined with the fact 
that the Dominican Republic had adopted the m easures contested with the aim of remedying a 
situation of serious injury to the domestic industr y brought about by an increase in imports, and that 
such measures had been notified to the Committe e on Safeguards, citing both Article XIX of the 
GATT 1994 and other provisions in the Agreement on Safeguards, could not ha ve allowed any other 
interpretation. 
                                                      
11 Argentina - Footwear (EC) and Korea - Dairy. WT/DSB/M/312 
Page 20  
 
  92. In light of those conclusions and findings by  the Panel, it was clear that when Members 
decided to increase tariffs to a level lower than the bound tariffs, they had a number of options.  
Nevertheless, once the Member had decided to initiate  an investigation to impose a measure with the 
aim of remedying an increase in imports that was causing, or threatening to cause, injury to its 
domestic industry, that Member must necessarily comp ly with its obligations under Article XIX of the 
GATT 1994 and the Agreement on Safeguards.  Furthermor e, in light of the various violations found 
by the Panel, Guatemala regretted that the Panel had not used its power to make suggestions for 
compliance, in conformity with Article 19.1 of the DS U.  Given the shortcomings  of the investigation, 
noted by the Panel, Guatemala considered that th e immediate withdrawal of the definitive safeguard 
measure would be the only realistic option for comp liance.  In that regard, Guatemala hoped that the 
Dominican Republic would promptly withdraw th e definitive safeguard measure and thus fully 
comply with its obligation to bring the measure into  conformity with its oblig ations under the covered 
Agreements. 
93. The representative of Honduras said that his country thanked the members of the Panel for 
their excellent work on this dispute.  Honduras also  welcomed the flexibility shown by the Panel and 
the WTO Secretariat in conducting the Panel's pro ceedings in Spanish.  The Panel had reached 
important legal findings whose significance went far be yond the particular facts in this dispute.  In 
particular, the Panel had agreed with the compla inants that the measur es contested constituted a 
safeguard measure and not a tariff increase, as c ontended by the Dominican Republic.  Consequently, 
the Panel had found that the provisions under Ar ticle XIX of the GATT 1994 and the Agreement on 
Safeguards applied to these measures.  The Pane l had also found that, in imposing the safeguard 
measures, the Dominican Republic had failed to comply  with the basic obligations in Article XIX of 
the GATT 1994 in as much as it had made no dete rmination regarding unforeseen developments.  
Likewise, the Panel had concluded that the determinations on the domestic industry and the serious 
injury by the investigating authority were incons istent with Articles 4.1(c) and 4.2(a) of the 
Agreement on Safeguards.  For those reasons, the Panel had recommended that the Dominican 
Republic bring its measures into conformity w ith its obligations under the GATT 1994 and the 
Agreement on Safeguards.  In order to comply  with the DSB's recommendations, Honduras requested 
that the Dominican Republic withdraw its safeguard measure as rapidly as possible.  
94. The representative of El Salvador said that his country thanked the Panel and the Secretariat 
for their work in this dispute.  El Salvador was sa tisfied that the Panel had found that the complainants 
had managed to successfully challenge the following key issues that were very important in this 
dispute.  First, the measure at issue was a safe guard measure, to which Article XIX of the GATT 1994 
and the Agreement on Safeguards were applicable, and not a tariff increase, contrary to what the 
Dominican Republic had argued in its defence.  Second,  in light of this, the Panel had concluded that 
the Dominican Republic acted inconsistently with  Article XIX of the GATT 1994 and the Agreement 
on Safeguards, with respect to the provisi onal and definitive safeguards in dispute, inter alia , in the 
following ways:  (i) the Dominican Republic had acted  in a manner inconsistent with its obligations 
under Article XIX:1(a) of the GATT 1994 and Articles 3.1, last sentence, and 4.2(c) and 11.1(a) of 
the Agreement on Safeguards, according to the findings, in the preliminary and definitive 
determinations, on unforeseen devel opments and the effect of the obligations incurred under the 
GATT 1994 that were alleged to have resulted in in creased imports causing serious injury;  (ii) the 
Dominican Republic had acted in a manner inconsiste nt with its obligations under Articles 2.1 and 
4.1(c) of the Agreement on Safeguards and Articl e XIX:1(a) of the GATT 1994, according to the 
findings on the definition of the domestic industry;  and (iii) the Dominican Republic had acted in a 
manner inconsistent with its obligati ons under Articles 2.1, 3.1, last sentence, 4.1(a), 4.2(a) and 4.2(c) 
of the Agreement on Safeguards and Article XIX:1( a) of the GATT 1994, according to the findings on 
the existence of a serious injury.  The Dominican Republic had also acted inconsistently with its 
obligations under Article 9.1 of  the Agreement on Safeguards, by  failing to take all reasonable 
measures available to exclude Thailand from the ap plication of preliminary and definitive safeguard 
measures.    WT/DSB/M/312 
 Page 21 
 
 
  95. Third, in view of the foregoing, the Panel, in conformity with Article 3.8 of the DSU, had 
concluded that the Dominican Republic failed to meet its obligations under the afore-mentioned 
Agreements, therefore nullifying or impairing the be nefits accruing to the complainants under these 
provisions.  As a result of the conclusions reached in its Report, and having found that the Dominican 
Republic had acted inconsistently with provisions of the GATT 1994 and the Agreement on 
Safeguards, the Panel had recommended that th e Dominican Republic bring its measures into 
conformity with its obligations under these Agreements.   
96. With regard to the implementation of th e Panel's findings and recommendations, as 
El Salvador had pointed out in various forums , including other WTO committees and bodies, as well 
as during the Panel's proceedings, the Dominican Re public should withdraw this measure as soon as 
possible so as to stop unduly affecting Salvadoran  imports of polypropylene bags and tubular fabric, 
as determined by the Panel.  The industry had incurred substantial losses ev er since the Dominican 
Republic imposed these measures.  Furthermore, given that the Panel found that the Dominican 
Republic had failed to comply with the basic re quirements contained in the provisions of the 
GATT 1994 and the Agreement on Safeguards, ther e was no reason why this safeguard measure 
should remain in force. 
97. The representative of the Dominican Republic said that, in accordance with Article 16.4 of 
the DSU, his country wished to express its views on the Panel Report, which was before the DSB for 
adoption at the present meeting.  The Dominican Re public thanked the Panel and the Secretariat for 
their work in this dispute and expressed satisfacti on that the Panel's procee dings had been conducted 
in Spanish, bearing in mind the limited resource s of the Secretariat.  The Dominican Republic 
expressed its regret at the Panel's conclusion that the safeguard measures on imports of tubular fabric 
and polypropylene bags were inc onsistent with Article XIX of the GATT 1994 and the Agreement on 
Safeguards.  The Dominican Republic was, in pa rticular, concerned about  the Panel's findings 
regarding the relationship between Articles I:1 a nd XIX:1(a) of the GATT 1994 and the qualification 
of the measures in light of Article II:1(b) of the GATT 1994.  With regard to the relationship between 
Article I:1 and Article XIX:1(a) of the GATT 1994, the Dominican Republic understood that there 
may be conflicting opinions regarding the scope of the word " obligation " at the end of 
Article XIX:1(a) of the GATT 1994.  Nevertheless, the interpretation that had been adopted by the 
Panel, according to which this word also applied to Article I:1 of the GATT 1994, despite what was 
stated in Article 2.2 of the Agreement on Safeguard s, allowed for the possibility of applying selective 
safeguard measures.  For that reason, no Member should accept the approach adopted by the Panel in 
this dispute.   
98. With regard to the findings concerning the qualification of the measures as " other duties and 
charges " within the meaning of the second sentence of Article II:1(b) of the GATT 1994, the 
Dominican Republic believed that serious questions ar ose in relation to the need to justify measures 
that had neither been adopted under the WTO Agreement on Safeguards nor exceeded the bound 
tariff.  The Panel's findings appeared to indicate that, even though such measures did not exceed the 
WTO bound tariff and had been adopted according to domestic or regional rules, they nevertheless 
had to be justified according to another provision in the GA TT 1994 because they constituted " other 
duties and charges ".  This was another aspect of the Pa nel Report which the Dominican Republic 
regretted.   
99. On the other hand, the Dominican Republic welc omed the fact that the Panel had reached the 
conclusion that there was an increase in imports in ab solute terms in conformity with Article 2.1 of 
the Agreement on Safeguards.  In that regard, the Dominican Republic wished to point out that the 
contested measures had helped to enable the domest ic industry to carry out its modernization plan, 
precisely in order to face up to this increase in im ports.  Taking into account the foregoing, as well as 
the limited resources of both the Dominican Re public and the multilateral trading system, the 
Dominican Republic would not exercise its right to appeal.  In conformity with Article 21.3 of the WT/DSB/M/312 
Page 22  
 
  DSU, the Dominican Republic would continue to ex amine the Panel Report within the next 30 days in 
order to inform the DSB of its intentions rega rding implementation of the DSB's recommendations. 
 
100. The DSB took note of the statements and adopted the Panel Report contained in 
WT/DS415/R – WT/DS416/R – WT/DS417/R – WT/DS418/R and Add.1. 
7. China – Measures related to the expo rtation of various raw materials 
(a) Report of the Appellate Body (WT/DS394/AB/R ) and Report of the Panel (WT/DS394/R and 
Corr.1 and Add.1) 
(b) Report of the Appellate Body (WT/DS395/AB/R ) and Report of the Panel (WT/DS395/R and 
Corr.1 and Add.1) 
(c) Report of the Appellate Body (WT/DS398/AB/R ) and Report of the Panel (WT/DS398/R and 
Corr.1 and Add.1) 
101. The Chairperson proposed that the three sub-ite ms be taken up together.  She drew attention 
to the communication from the Appellate Body contained in document WT/DS394/15 – 
WT/DS395/14 – WT/DS398/13 transmitting the Appe llate Body Reports on:  "China – Measures 
Related to the Exportation of Various Raw Material s", which had been circulated on 30 January 2012 
in document WT/DS394/AB/R – WT/DS395/AB /R – WT/DS398/AB/R, in accordance with 
Article 17.5 of the DSU.  She reminded delegations  that the Appellate Body  Reports and the Panel 
Reports pertaining to these disputes had been circulated as unrestricted documents.  As Members were aware, Article 17.14 of the DSU required that:  "A n Appellate Body report shall be adopted by the 
DSB and unconditionally accepted by th e parties to the dispute unless the DSB decides by consensus 
not to adopt the Appellate Body report within 30 da ys 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".  
102. The representative of the United States said that his country would like to begin by thanking 
the Panel, the Appellate Body and the Secretariat assi sting them for their hard work on this important 
and economically significant dispute.  The United States would also like to give credit to its co-
complainants, the EU and Mexico, for the excelle nt cooperation they had enjoyed throughout this 
dispute.  That cooperation, as well as the active support of a number of third parties, had proved 
invaluable in confronting the pervasive WTO-inconsis tent measures at issue in this dispute.  China's 
export restraints (such as export duties and quotas) on th e industrial raw material inputs at issue in this 
dispute had created significant unfair advantages fo r Chinese users of these in puts over their foreign 
competitors.  These Chinese export restraints had also put economic pressure on foreign downstream 
producers to move their operations and their technol ogies to China.  The United States had repeatedly 
raised its concerns regarding these export restra ints through bilateral and multilateral engagement, 
including in China's annual Transitional Review Me chanism.  The United States would have preferred 
to resolve its concerns through bilateral cooperati on.  However, when China had proved unwilling to 
address US concerns and remove its export restraints, the United States did not hesitate to initiate this 
dispute.  The Panel and the Appellate Body Reports  being adopted at the present meeting had sided 
with the United States and its co-complainants on the ma jor issues in this dispute.  The Reports were 
significant for a number of reasons.  First, the Re ports had confirmed that China's imposition of 
export duties on these raw materials was not consiste nt with its WTO obligations.  The Reports had 
further made clear that such duties may not be justified pursuant to the exceptions provided in 
Article XX of the GATT 1994.  The United States welcomed these findings, which affirmed a clear 
and critical commitment that China had made to a ll WTO Members when acceding to the WTO.  In  WT/DSB/M/312 
 Page 23 
 
 
  addition to the products covered in this dispute,  China currently maintained export duties on over 350 
products.  The United States looked forward to China's elimination of these duties.  
103. Second, the Reports had also agreed with the US position that China's export quotas on the 
raw materials at issue were not justified under WTO rules as environmental protection measures 
under Article XX(b) of the GATT 1994;  con servation measures under Article XX(g) of the 
GATT 1994;  or as short supply measures under Article  XI:2(a) of the GATT 1994.  The Reports had 
made clear that any measures sought to be justif ied pursuant to Article XX(b) and XX(g) must be 
measures legitimately aimed at protecting health and the environment and conserving exhaustible 
natural resources, rather than measures aimed at providing economic advantages to domestic users of 
raw materials.  In relation to Article XI:2(a), the Reports had confirmed that this Article was available 
to justify the temporary imposition of export restraints  in cases of crisis.  Importantly, the Panel had 
rejected China's approach that would have allowed Article XI:2(a) to exempt export restrictions in a 
much broader range of circumstances from the disciplines of Article XI:1.   
104. The Reports were also significant for confirming that the DSU was effective and would 
provide complaining parties with findings and recommendations on measures maintained through 
legal instruments that may expire or recur in the course of a dispute.  China had attempted to evade 
DSB recommendations, and, therefore, any implem entation obligation, by arguing that the legal 
instruments maintaining its quotas and duties had e xpired after the Panel had been established.  
China's argument would have permitted it to creat e a "moving target", evading its obligations by 
withdrawing and later reintroducing its measures.  Both the Panel a nd Appellate Body had decisively 
rejected this approach.   
105. The United States said that it did note two areas of  concern with the Appellate Body Report.  
First, the Appellate Body had conc luded that one part of the pane l requests, covering a number of 
other types of Chinese export restraints, had not dr awn sufficiently "clear connections" for purposes 
of Article 6.2 of the DSU between legal instruments (t hat were set out in the requests) and claims (that 
were also set out in the requests).  The United States believed this approach amounted to a new 
standard, which was not reflected in the text of th e DSU, nor had been applied in prior reports or 
followed in other Members' panel requests.  Unfo rtunately, as a result of adopting and applying the 
new standard in this dispute, a number of potentially distortive trade problems that had been identified 
in the Panel Report remained unaddressed.   
106. Finally, as for several Appellate Body Reports that had been considered by the DSB in 2011, 
the United States wished to draw the DSB's attention to a procedural issue in relation to Article 17.5 
of the DSU.  In the Appellate Body's 60-day noti ce pursuant to Article 17.5 of the DSU, the Appellate 
Body had provided an estimated circulation date of  31 January 2012, or, if the US representative had 
counted correctly, 153 days after initiation of the appeal.12  However, contrary to past practice13, the 
Appellate Body had not mentioned in its notification th at the parties had agreed at the outset that the 
appeal would exceed 90 days.  Further, the agreemen t by the parties had not been reflected in the 
Report of the Appellate Body, as had also been the practice of the Appellate Body in prior disputes.14  
In order to provide transparency to  the DSB, the United States and Ch ina had circulated their letter to 
the Appellate Body Division confirming that they w ould each deem a report in this proceeding, issued 
no later than 31 January 2012, to be  an Appellate Body report pursuant to Article 17.5 of the DSU.  
While the United States welcomed the cooperation of China in providing transparency to the DSB, the 
United States did not consider that it was desi rable for the Appellate Body to provide less 
                                                      
12 WT/DS394/13 (8 December 2011). 
13 See, e.g., communication from the Appellate Body, US - Continued Suspension/Canada - Continued 
Suspension, WT/DS320/14, WT/DS321/14 (24 July 2008). 
14 See, e.g., Canada - Continued Suspension, WT/DS321/AB/R, at para. 29; EC - Export Subsidies on 
Sugar, WT/DS265/AB/R, at para. 7. 17. WT/DSB/M/312 
Page 24  
 
  transparency for Members on the circumstances leadi ng to consideration by the DSB of a report that 
had been circulated outside the 90-day period.  The United States said that it continues to believe that 
Members should be provided with the level of tran sparency that had been provided by the Appellate 
Body in all proceedings exceeding 90 days prior to 2 011.  Setting this issue of procedure to one side, 
in conclusion, the United States was extremely please d to propose that the DSB adopt these important 
Reports.  The United States said that all WT O Members are bound together through a global 
interdependence in the trade of raw materials.  Th e policies of China, as had been reflected in the 
measures covered in this dispute, had caused massi ve distortions and harmful disruptions in supply 
chains throughout the global marketplace.  The Un ited States looked forward to action by China to 
address its export restraints on the raw materials at issu e in this dispute and, more broadly, to meet its 
WTO obligations in light of these Reports.  
107. The representative of the European Union said th at the EU thanked the Appellate Body, the 
Panel, and their respective Secretariats for the work in this dispute.  The EU welcomed the findings of 
the Panel and of the Appellate Body, according to which China's export restrictions on the raw 
materials at issue were in breach of China's WTO obligations and had not be en justified under the 
exceptions foreseen in the GATT.  The EU believed that these rulings were of systemic importance 
and in the interest of all WTO Members, as all c ountries were interdependent in terms of their raw 
materials supplies and global production chains.  Th e EU particularly welcomed that the Appellate 
Body had confirmed that China had committed uncond itionally in its Accession Protocol to the WTO 
not to levy export duties, and that this commitment  could not be reduced by reverting to the general 
exceptions of the GATT.  The language used in this  Protocol made it clear that the commitment had 
not been intended to be subject to any exceptions  apart from those specifically listed.  Applying 
exceptions to these specific obligations would si gnificantly distort the balance of rights and 
obligations negotiated between Ch ina and the WTO when China acc eded to the WTO.  The EU 
recalled that the Chinese export restrictions at issue had significantly distorted the market and had created competitive advantages of the Chinese manuf acturing industry to the detriment of foreign 
competitors.  Furthermore, these policies had put  pressure on foreign producers to move their 
operations and technologies to China, as companies out side China were either cut off supplies or had 
access only at much higher prices than companies in  China.  The EU supported and encouraged all 
countries to promote a cleaner and sustainable produc tion of raw materials.  Environmental protection 
and sustainable resource management were legitima te aims, recognized and fully achievable within 
WTO rules.  However, the EU strongly believed that export restrictions were not the appropriate tool 
to promote these aims.   
108. The EU, therefore, welcomed the clear findings that these aims could not be used as a pretext 
to pursue protectionist industrial policies that aimed at protecting domestic industry from foreign 
competition, or to force foreign firms to relocate th eir businesses.  In light of the clear findings of the 
Panel and the Appellate Body, the EU trusted that China would promptly take the necessary step to 
remedy this long-standing discrimination and thus  provide for WTO compatibility.  Furthermore, the 
EU believed that these clear findings had an effect beyond the products at issue in this dispute and 
expected China to revisit its overall expor t restrictions regime in this light. 
109. The representative of Mexico said that his c ountry welcomed the opportunity to express its 
views regarding this matter.  Mexico thanked the Pa nel and the Appellate Body for their work on this 
dispute, as well as the WTO Secretariat and the Appellate Body Secretariat.  Mexico welcomed the 
adoption of the Reports of the Panel and the Appella te Body in this dispute regarding the exportation 
of various raw materials.  Mexico had initiated th is case, with the support of its co-complainants 
because the restrictions improperly imposed by China on Mexican raw materials were seriously 
affecting the competitiveness of Mexican steel producer s, making it difficult for them to compete with 
Chinese steel producers.  Chinese steel producers be nefitted unfairly from China's industrialization 
policies, whose effect was to raise the price of ra w materials from abroad and to lower the price in 
China so that Chinese producers could export fini shed products at prices which Mexican-finished  WT/DSB/M/312 
 Page 25 
 
 
  products found hard to compete with.  During the negotiations on China's accession to the WTO, 
some Members had, at the Working Party, expr essed their concern about the various taxes and 
charges imposed then by China on exports.  Consequently, as one of  the conditions for its accession to 
the WTO, in its Protocol of Accession, China had un dertaken to abolish all export taxes and charges, 
except export duties on 84 products listed in A nnex VI to its Protocol of Accession.   
110. Nonetheless, disregarding that commitment, China had imposed export duties on a large 
number of products that were not lis ted in Annex VI when it had acceded to the WTO.  The Panel had 
concluded, and the Appellate B ody had confirmed, that China had acted inconsistently with 
paragraph 11.3 of its Protocol of Accession by main taining export duties on the raw materials that 
were the subject of this dispute and that the gene ral exceptions in the GATT 1994 did not apply to this 
paragraph in its Protocol of Accession.  In  view of those conclusions and the relevant 
recommendations, Mexico hoped that China would respect the commitment made following its accession to the WTO and would lift the export duties imposed on the products that were the subject 
of this dispute.  Furthermore, Mexico hoped th at, with the adoption of the Reports, China would 
review its tariff policy, under which it conti nued to impose export duties on a large number of 
products, the majority of which we re not listed among the 84 products exempted from this obligation.  
In addition, during its negotiations on accession to the WTO, some Members had also expressed their 
concern about the restrictions then being imposed by  China on the export of several raw materials.  In 
light of those concerns, China had confirmed that it would comply with the WTO rules with regard to 
non-automatic export licences and export restrictions .  The Panel had concluded, and the Appellate 
Body had confirmed, however, that China had acted inconsistently with Article XI of the GATT 1994 
by maintaining export quotas for the raw materials that were the subject of this dispute, which were 
not shown to be justified either in terms of environmental measures,  for the conservation of natural 
resources or for preventing or remedying acute s carcity of essential goods.  In view of these 
conclusions and the relevant recommendations, Mexico hoped that China would respect the 
commitment made upon its accession to the WTO and abolish the export quotas imposed on the 
products that were the subject of this dispute.   
111. Finally, Mexico regretted that, because of a decision on procedural issues, the co-
complainants had remained without any conclu sions or recommendations on various aspects of 
China's administration of quotas, the administration of export licences or its scheme applying minimum prices.  The fact that there were many cl aims regarding a large number of measures to be 
found in numerous legal instruments should not lay an additional burden on the complainant as far as 
the requirements of Article 6.2 of the DSU were c oncerned.  What was certain was that, even though 
there were no recommendations on these claims, there were various aspects of China's administration of export restrictions on raw materials that were in consistent with WTO rules.  That should suffice for 
China to take into account the Panel's conclusions on these measures and to modify its policy on the 
administration of quotas, licences and minimum prices.  Mexico expressed its concern that, because of 
preliminary objections concerning Article 6.2 of th e DSU, some claims could be eliminated from the 
Panel's mandate right up to the appeal stage even  though both the co complainants and the respondent 
had invested a considerable amount of time in examining and explaining them throughout the whole 
proceedings.  This was perhaps an important point to be considered when improving the WTO dispute 
settlement system.  Moreover, Mexico considered that preliminary objections should not become a 
mere dispute strategy intended to avoid going into  the substance of a matter instead of being a 
legitimate recourse to ensure that the defence in  a case could be put forward properly.  Mexico 
reaffirmed its confidence in the rul es-based international trading system. 
112. The representative of China said that her country  thanked the Appellate Body, the Panel and 
the Secretariat for their time and efforts devoted to this dispute.  China welcomed the fact that the 
Appellate Body had found that Section III of th e complainants' panel requests did not meet the 
requirements of Article 6.2 of the DSU to "provide a brief summary of the legal basis of the complaint 
sufficient to present the problem clearly", and, therefor e, had declared moot and of no legal effect the WT/DSB/M/312 
Page 26  
 
  Panel's findings regarding claims alleged on ex port quota administration and allocation, export 
licensing requirements, minimum export price requirement, and quota bidding.  In fact, China had made a number of legal and factual arguments on these issues, and most of them had been supported 
by the Panel.  The Appellate Body had also found that the Panel had erred in interpreting the phrase 
"made effective in conjunction with" in Article XX (g) of the GATT 1994, and consequently reversed 
the interpretation by the Panel.  However, China deeply regretted that the Panel and the Appellate 
Body had concluded that the exceptions under Artic le XX of the GATT 1994 could not be available to 
China to defend its export duties obligation under Para graph 11.3 of China's Accession Protocol.  This 
finding related to a Member's fundamental ri ght under the WTO Agreement, and some of its 
interpretation had an impact not only on China but also on other WTO Members.  Thus, China wished 
to raise a number of systemic concerns.  First, Members had the right to promote "fundamental 
societal interests" besides trade liberalization under the WTO Agreement.  In th at regard, the resort to 
exceptions was important to allow Members to bala nce trade commitments with the right to pursue 
non-trade interests, such as the protection of human health and the conservati on of exhaustible natural 
resources.  China had not, in acceding to the WTO, gi ven up its right to promote these interests when 
regulating trade in goods.  It was not proper for the Appellate Body and the Panel to arrive at its 
finding based on the fact that Paragraph 11.3 of  China's Accession Protocol did not include a 
reference to Article XX of the GATT.  Given the fundamental importance of Article XX to the rules 
governing the trade in goods, it could not be light ly concluded that a Member had abandoned its 
inherent right to pursue "fundamental societal interests" other than trade, unless the Member 
concerned had given up such right th rough explicit and specific language. 
113. Second, the accession of China should apply to the WTO Agreement and the Multilateral 
Trade Agreement annexed thereto, and China's Accessi on Protocol should be an integral part of the 
WTO Agreement, which included GATT 1994.  Theref ore, China's Protocol of Accession and the 
multilateral agreement, including the GATT 1994, fo rmed an organic single body of rules that 
underlay China's rights and obligations under the WTO Membership.  Some provisions in China's 
Accession Protocol and Working Party Report also de monstrated the links between China's Accession 
Protocol and the GATT 1994.  In the "China - Audiovisual" dispute, the Appellate Body had stated that "…bearing in mind that treaty interpretations is an integrated operation, where interpretative rules 
and principles must be understood and applied as co nnected and mutually reinforcing components of 
a holistic exercise…".  Unfortunately, the Appella te Body and the Panel had not accomplished the 
"holistic exercise" in this dispute.  The reasoni ng of the Appellate Body and the Panel was mainly 
based on the text of Paragraph 11.3 of China's Acc ession Protocol and "so-called" context, but it was 
quite weaker than it seemed.  Furthermore, it ha d not deepened the "objective and purpose", despite 
citing Article 31 of the Vienna Convention.   
114. Third, China recalled that "new" WTO Members should be placed on equal footing with "old" 
WTO Members in this regard.  The accession protoc ols of Members that had acceded prior to the 
WTO Agreement's entry into force were part of the GATT 1994, automatically allowing these 
Members to rely on Article XX with respect to  goods-related obligations assumed in the accession 
protocols.  The same principle must apply to Members acceding after the WTO Agreement's entry into force.  Hence, newly acceding Members may al so rely on Article XX with respect to the goods-
related obligations they had assumed in their accessi on protocols.  Otherwise, there would be a two-
tier membership, which was neither legally sustainable,  nor systemically desirable.  For the purpose of 
protecting the environment and e xhaustible natural resources, the Chinese government had, in recent 
years, reinforced its administration on certain re source products, especially the "high-pollution, high-
energy-consuming and resource-depende nt" products.  In China's view, th e WTO rules, at the time of 
liberalizing trade, allowed a Member to take n ecessary means to realize its policy objectives such as 
protection of the exhaustible res ources and the environment.  China would further assess the rulings 
of the Panel and the Appellate Body in this disp ute, and apply reasonable policies to administer 
resource products in accordance with the WTO rules,  so as to realize sustainable development.  WT/DSB/M/312 
 Page 27 
 
 
  115. The representative of Colombia said that his count ry thanked the Appellate Body for its work 
in this dispute.  In particular, Colombia wished to thank the Appellate Body  for its conclusion with 
respect to Section III of the complainants' panel requ ests.  In this regard, Colombia noted there were 
two issues:  one was the identification of the speci fic measures in the dispute and the other one the 
legal claims.  In Colombia's view, the Panel had erred by finding that the complainants, in their 
requests, had not made a clear link between th e challenged measures and the WTO obligations 
claimed to have been in breach.  Fortunately, th e Appellate Body had corrected that finding.  
Colombia also thanked the Appellate Body for its cl arification that measures aimed at conservation of 
exhaustible natural resources c ould be covered by the exceptions under Article XX(g) of the 
GATT 1994.   
116. The representative of Canada said that hi s country welcomed the Appellate Body's 
confirmation of the Panel's main findings in this di spute, as had been described in some detail by the 
parties to the dispute.  Canada encouraged Chin a to take prompt action in bringing the export 
measures in question into conformity with its WT O obligations.  This would improve fairness in 
international trade and strengthen certainty in the marketplace for the materials in question.  From a 
more systemic perspective, and without making a comment on the consequences in this dispute, 
Canada also appreciated the additional guidance provided by the Appellate Body on how panels 
should address requests for preliminary rulings.  This guidance would help bring about more 
consistent and predictable practice.  Canada wa s disappointed with the Panel's refusal to grant 
extended third-party rights in this dispute.  Cana da was a strong proponent of providing third parties 
greater access to dispute proceedings, and had worked  with many others in the DSU negotiations to 
extend existing rights.  The Panel's decision in this dispute was a reminder that Members could not 
continue to count on ad hoc solutions to acco mplish widely-shared objectives for systemic 
improvements to the dispute settlement system.  On  a procedural matter, Canada supported the US 
concern about inconsistencies in the transparency practices regarding extensions to the time-lines for 
the circulation of Appellate Body reports and looked forward to return to the regularized practice.   
117. The representative of Japan said that his country  thanked the Appellate Body and the Panel 
for the time and effort they had devoted in these di sputes and for their respective Reports.  As a third 
party, Japan had actively participated in these proceedings.  Even though these disputes had presented 
complex issues of facts and had raised difficult legal questions over export restrictions, the Panel's and 
the Appellate Body's analyses were thorough,  and their overall findi ngs were sound and well-
reasoned.  In the wake of the increasing trend of the export restrictions being observed, these Reports 
would not only provide a useful guidance for the future implementation efforts by China and for the 
ultimate resolution of this dispute, but woul d also send Members a clear message against the 
proliferation of export restrictions.  In that re gard, Japan wished to note two important points 
contained in the Reports of the Panel and Appe llate Body.  First, the Panel had noted that 
"Article XX(g) cannot be invoked for GATT-incons istent measures whose goal or effects is to 
insulate domestic producers from foreign co mpetition in the name of conservation".15  China had not 
appealed this finding.  This finding, among others , had effectively established the principle of non-
discrimination between products sold for domestic u sers and those exported for foreign users for non-
tariff export restrictions that were introduced for th e resource conservation objective.  In Japan's view, 
not only China but also all Members were require d to respect this non-discrimination principle 
immediately.   
118. Second, Japan understood that the Appellate Body had endorsed the unconditional nature of 
China's commitment on export duty elimination or re duction undertaken in Paragraph 11.3 of China's 
Accession Protocol by finding that the proper interp retation of that paragra ph did not make available 
to China the exceptions under Article XX of the GA TT 1994.  There appeared to be no reason to deny 
that this was also valid with respect to products othe r than the raw materials at  issue in these cases.  
                                                      
15 Panel Report, para. 7.408. WT/DSB/M/312 
Page 28  
 
  Having interest in regulating export duties, Japan hoped that China would fully and promptly 
implement this commitment, which it had promised  to undertake as a condition to its accession to the 
WTO.  Furthermore, Japan hoped that this findi ng would give the opportunity for the Members who 
implement export duties to reflect on their practice. 
119. Japan wished to briefly touch upon two questions of a procedural but systemic nature that had 
been addressed in the Reports of the Appellate Body and the Panel.  First, the Appellate Body and the 
Panel had opened the door for future panels to issue recommendations on a measure at issue found to 
be WTO-inconsistent when it existed at the time of the panel establishment, but had been removed 
before the issuance of the final report.  If a me asure at issue was found to be WTO-inconsistent 
without recommendations, the complaining Member  had no way to pursue the claim in the 
compliance proceedings, but to endlessly initiate a new case.  This potential loophole for the 
"moving-target" tactics, which would render the WT O dispute settlement process useless, had been 
examined and addressed by the Appellate Body and th e Panel.  Specifically:  (i) the Appellate Body 
had squarely rejected China's argument that, b ecause the subsequent measures replacing the measures 
that had existed at the time of the panel establis hment, the recommendations on the latter should have 
no consequences for the former replacement measures.   While recognizing the problem of "a moving 
target" China's approach would create, the Appella te Body had found "[t]he fact that the Panel 
directed its findings and recommendations at the lega l situation prevailing in 2009 does not mean that 
China has no compliance obligations w ith respect to the Panel's findings".
16  As the Appellate Body 
further explained, "a recommendation is prospective in  nature in the sense that it has an effect on, or 
consequences for, a WTO Member's implementa tion obligations that arise after the adoption"17 of the 
DSB;  and (ii) the Appellate Body also made it clear  that its previous reports "did not suggest that a 
panel was precluded from making a recommendation on 'expired measures'".18  The Appellate Body 
had acknowledged that "[t]he ab sence of a recommendation […] would effectively mean that a 
finding of inconsistency involving such measures would not result in  implementation obligations for a 
responding member, and in that sense would merely be declaratory".19  Although Japan had certain 
reservations as to whether the notio n of the "series of measures" w as needed in order for challenged 
measures to be the subject of recommendations, Japan was of the view that the Appellate Body's finding in these disputes was a good step forward in the right direction.   
120. Second, with respect to the issue of the suffi ciency of the complainants' panel request under 
Article 6.2 of the DSU, Japan duly noted that the A ppellate Body reaffirmed its previous finding that 
due process "is not constitutive of, but rather follo ws from, the proper establishment of a panel's 
jurisdiction"
20, indicating that due process claim or analysis had no place in the examination of 
whether a panel request was defective under Article 6.2 of the DSU.  In any event, Japan would 
carefully examine the possible implication of the A ppellate Body's findings for the extent of "clear 
linkages" that a panel request must provide under Article 6.2 between the challenged measure and the 
WTO obligations claimed to have been breached.  Fina lly, with respect to the issue relating to Article 
17.5 of the DSU which the United States had referre d to, Japan agreed that , for the purpose of full 
transparency, parties' consents should have been me ntioned in the Appellate Body Report, as had been 
the customary practice of the Appellate Body in the past. 
121. The representative of Costa Rica said that his country had not participated as a third party to 
this dispute and would, therefore, not comment on th e substance of the matter.  However, he wished 
to state that Costa Rica supported the concerns raised by Canada, the United States and Japan 
                                                      
16 Appellate Body Report, para. 262. 
17 Appellate Body Report, para. 260. 
18 Appellate Body Report, para. 264. 
19 Appellate Body Report, para. 264. 
20 Appellate Body Report, para. 233 (quoting the Appellate Body Report, EC and Certain member 
States – Large Civil Aircraft, para. 640).  WT/DSB/M/312 
 Page 29 
 
 
  regarding the circulation of the Appellate Body Re port outside of the 90-day period and the need for 
transparency for all Members when such delays were to take place.  
122. The representative of Norway said that her country  had participated in this dispute as a third 
party and wished to thank the Panel, the Appellate  Body and the Secretariat for their work on this 
dispute.  Norway had no comments with regard to the findings of the Appellate Body but noted that 
the Report had been circulated outside the 90-day period stipulated in Article 17.5 of the DSU.  In 
Norway's view, it was of systemic importance that the Appellate Body ensured transparency regarding 
this issue.  As had been pointed out by previous sp eakers, the proceedings in this case had raised some 
concerns about the lack of such transparency. 
123. The representative of Australia said that her count ry was not a third party in this dispute but 
noted that this was in fact a dispute of fundamental  systemic importance.  Australia looked forward to 
examining the findings in greater detail and to Ch ina's status reports on implementation.  Australia 
supported the statements made by the United States, Japan, Canada, Norway and Costa Rica on the issue of transparency.  Australia had made interventions  in the past on this issue, in particular where a 
report was circulated outside the normal 60 or 90-da y time period provided for appeals.  It was of 
fundamental importance that Members were made aw are of the circumstances, including that the 
consent of the parties had been provided for the circulation of the report outside the normal time-
frames.  Australia urged the Appellate Body to rec onsider its more recent practice of not providing the 
necessary level of transparency.  That level of tr ansparency was in the interest of not only the 
Members but the Appellate Body and the Secretariat as a whole. 
124. The representative of Guatemala said that his country had not participated as a third party in 
this dispute and, therefore, it would not comment on the substance.  However, Guatemala wished to 
comment on the procedural issues regarding Article 17.5 of the DSU.  First, for the well-known reasons, the Appellate Body require d more time than the 90-day period provided for in Article 17.5 of 
the DSU in order to complete its reports.  S econd, the Appellate Body had changed its practice 
regarding transparency in cases where it was necessary to go beyond that 90-day period.  In 
Guatemala's view, this matter should be discussed by  Members so as to ensure that the Appellate 
Body had sufficient time to produce high-quality repor ts and that disputes were resolved promptly.  
Finally, Guatemala did not understand why the Appellate Body had changed its practice on 
transparency.  Guatemala hoped that, in future cases, the Appellate Body would be able to ensure full 
transparency in matters related to the pro cedural issues under Article 17.5 of the DSU. 
125. The DSB took note of the statements, and adopte d the Appellate Body Reports contained in 
WT/DS394/AB/R; WT/DS395/AB/R; WT/DS398/AB/ R and the Panel Reports contained in 
WT/DS394/R and Corr.1 and Add.1;  WT/DS395/R and Corr.1 and Add.1;  WT/DS398/R and Corr.1 
and Add.1, as modified by the Appellate Body Reports. 
8. Appointment of Appellate Body members 
126. The Chairperson recalled that, at the 20 Ja nuary 2012 DSB meeting, she had made a 
statement under "Other Business" informing delegations  about certain matters related to the Appellate 
Body.  She had drawn attention to the communication from the Appellate Body that was circulated in 
document WT/DSB/56 containing the letter of resi gnation of Mr. Shotaro Oshima, Appellate Body 
member.  In that regard, she had informed delega tions that, pursuant to Rule 14 of the Working 
Procedures for Appellate Review, Mr. Oshima's resi gnation would take effect 90 days from the date 
of his letter, which would mean that effectively af ter 6 April 2012 there w ould be a vacancy in the 
Appellate Body, which would have to be filled.  She had also indicated that the first four-year term of 
office of Mr. Oshima was to expire on 31 May 2012.  At the January meeting, she had also informed 
delegations that the first four-year term of office of Ms. Yuejiao Zhang woul d expire on 31 May 2012 
and that Ms. Zhang had expressed her interest a nd willingness to be reappointed for a second four-WT/DSB/M/312 
Page 30  
 
  year term.  The Chairperson recalled that, at th e DSB meeting on 20 January 2012, she had announced 
her proposal with regard to the selection process for appointment of a new Appellate Body member to 
replace Mr. Oshima and the process of consultations  on the possible reappointment of Ms. Zhang.  
She had also indicated to delegations that her door was open to discuss these matt ers, if necessary, and 
that, if there had been no objection, she would submit her proposal to the DSB for action at the regular 
DSB meeting in February 2012.  In light of this, it was her intention at the present meeting to propose 
that the DSB agree to six elements along the lines pr oposed at the January 2012 meeting:  (i) to agree 
to launch as from 22 February 2012 the selection pr ocess for appointment of a new member of the 
Appellate Body for the position currently held by Mr. Shotaro Oshima;  (ii) to agree that the new 
member be appointed for a four year term beginning  1 June 2012 or as soon thereafter as possible;  
(iii) to agree to set a deadline of 30 March 2012 for Members' nominations of candidates for 
Mr. Oshima's position;  (iv) to agree to establish a Selection Committee based on the procedures set forth in document WT/DSB/1, which would consist of the Director-General and the 2012 Chairpersons of the General Council, Goods Counc il, Services Council, TRIPS Council and the DSB, 
and would be chaired by the 2012 Chair of the DSB;  (v) to request the Selection Committee to 
conduct interviews with candidates in April 2012, to hear the views of WTO Members in the first half 
of May 2012, and to make its recommendation to the DSB by 11 May 2012, if possible, so that the DSB could take a decision at its regular meeting on 24 May 2012;  and (vi) to ask the DSB Chair to carry out consultations on the possible reappointme nt of Ms. Yuejiao Zhang, who was eligible for 
reappointment for a second four-year term begi nning on 1 June 2012, and who had expressed her 
interest and willingness to be reappointed.  
127. The DSB took note of the statement and agreed to the Chairperson's proposal. 
128. The Chairperson said that, as it had been done in the past, nominations of candidates, together 
with their Curricula Vitae, should be addressed to the Chair of the DSB in care of the Council and 
TNC Division.  Subsequently, the CVs would be circulated as Job documents to all Members. 
129. The DSB took note of the statement. 
9. Election of Chairperson 
130. The Chairperson said that the consultations on a slate of names for the appointment of 
Chairpersons to WTO Bodies, including the DSB, were on-going.  As Members were aware, at its 
meeting on 14 February 2012, the Ge neral Council had agreed to rec onvene at an appropriate time 
once a consensus was reached on a slate of names following the consultations.  It was her hope that the consultations would be concl uded shortly and that a new DSB Chair would be elected at the 
regular meeting of the DSB to be held in March 2012. 
131. The DSB took note of the statement. 
__________