RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/180 
1 February 2005 
 (05-0415) 
Dispute Settlement Body 
17 December 2004  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 17 December 2004  
 
Chairperson:  Ms Amina Mohamed (Kenya) 
  
Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States ............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................3  
(c) United States – Continued Dumping and Subsidy Offset Act of 2000:  Status report 
by the Unite d States ........................................................................................................... .........4  
(d) United States – Section 110(5) of the US Copyright Act:  Status report by the United 
States......................................................................................................................... ..................5  
(e) United States – Final Countervailing duty determination with respect to certain 
softwood lumber from Canada:  Status report by the United States ...........................................6  
(f) Mexico – Measures affecting telecommunications services:  Status report by Mexico .............6  
2. United States – Continued Dumping and Subsidy Offset Act of 2000 .................................7  
(a) Recourse to Article 22.7 of the DSU by Chile............................................................................7  
3. United States – Sunset reviews of anti-dumping measures on oil country tubular 
goods from Argentina........................................................................................................... ....8 
(a) Report of the Appellate Body and Report of the Panel...............................................................8  
4. Proposed nominations for the indicative list of governmental and 
non-governmental panelists ..................................................................................................14  
5. United States – Anti-Dumping Act of 1916...........................................................................14  
(a) Statement by the United States ................................................................................................. 14 
6. United States – Final dumping determin ation on softwood lumber from Canada...........14  
(a) Statement by the United States ................................................................................................. 14 
  
 WT/DSB/M/180 
Page 2  
 
1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.26) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.26) 
 (c) United States – Continued Dumping and Subsid y Offset Act of 2000:  Status report by the 
United States (WT/DS217/16/Add.11 – WT/DS234/24/Add.11) 
 
(d) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.1) 
 (e) United States – Final countervailing duty de termination with respect to certain softwood 
lumber from Canada:  Status report by the United States (WT/DS257/14/Add.1) 
 
(f) Mexico – Measures affecting telecommunications services:  Status report by Mexico 
(WT/DS204/9) 
 1. The Chairperson
 recalled that Article 21.6 of the DSU required that "unless the DSB decides 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
agenda of the DSB meeting after six months follo wing the date of establishment of the reasonable 
period of time pursuant to paragraph 3 and shall remain on the DSB's agenda until the issue is 
resolved".  She proposed that the six sub-items  to which she had just referred be considered 
separately. 
(a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.26) 
2. The Chairperson  drew attention to document WT/DS176/11/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 US Section 211 Om nibus Appropriations Act of 1998. 
3. The representative of the United States  said that her country had provided a status report in 
this dispute on 6 December 2004, in accordance with Ar ticle 21.6 of the DSU.  As noted in the report, 
the US Congress was considering a number of legisl ative proposals to amend or repeal Section 211 
during this past congressional session, and the Senate had held hearings on those proposals in July.  
The US Congress had completed its work for the calendar year.  A new Congress would convene in 
January 2005, and the US administration would work  with that Congress with respect to appropriate 
statutory measures to resolve this matter.  In this  connection, the United States recalled the statement 
made by the EC at the 24 November 2004 DSB me eting. The EC had been emphatic that the US 
administration should support the complete repeal of  Section 211 as the "appropriate solution to this 
dispute".  The United States sought clarification from th e EC on this point. It appeared to be the EC's 
position that Members implementing adverse nationa l treatment and MFN findings should completely 
repeal the measure at issue, at least in the TRIPS context.  The United Stat es wished to know whether 
that was correct.  
4. The representative of the European Communities  said that the period for implementing the 
DSB's recommendations in this dispute would expire at the end of the year.  Considering that action 
by the US Congress was required and that Congress ha d now adjourned, it appeared that the United 
States would not be in position to bring its legisla tion into compliance with the WTO rules within the 
required deadline.  The EC would have to consider wh at next steps to take.  As to the question just 
asked by the United States, the EC would revert to that question in due course.   WT/DSB/M/180 
 Page 3 
 
 
5. The representative of Cuba  said that since this was the last DSB meeting in 2004, it was also 
the last opportunity for the United States to provide  information as to what action it had taken towards 
revoking Section 211 Omnibus Approp riations Act of 1998.  However,  there had been no news nor 
indication that the United States was ready to do so.  Month after month, Cuba had continued to witness the repeated non-compliance by the Unite d States with the DSB's recommendations in 
different disputes as well as the growing scepticism of WTO Members as the United States had failed 
to make any headway in implementing the DSB' s rulings. This undermined the efficiency and 
credibility of the WTO dispute settleme nt mechanism.  In that context, she recalled that at its meeting 
on 24/26 November 2004, the DSB had authorized seven  Members to suspend the application of tariff 
concessions vis-à-vis the United States in the Byrd Amendmen t dispute due to the US failure to 
comply with the DSB's recommendations.  These aut horizations had been added to the list of many 
other cases in which such authorizations had alread y been granted against the United States as a result 
of its non-compliance with the DSB's recommendation and rulings.  Cuba wished to remind Members 
that the WTO dispute settlement mechanism had b een created to achieve, among other things, the 
prompt and satisfactory resolution of situations in  which the rights of Members were nullified or 
impaired.  Consequently, Cuba had to recall the true reason su rrounding the Section 211 dispute, 
which had nothing to do with any misgivings con cerning the nationalization process carried out by the 
Cuban government.  The trade mark "Havana Club", wh ich had been registered in the United States in 
accordance with the relevant legislation by a C uban company in 1974, was not the subject of any 
opposition or cancellation proceedings by its origin al owner.  It was not until foreign business 
partners, together with Cuban entities, had expressed  interest in exploiting the reputation earned by 
the Cuban rum sold under that mark when the or iginal owner and the company Bacardi had suddenly 
become interested in recovering a right, which they had waived from the start.  This was why Cuba 
wished to denounce, once again, th e lack of political will on the part  of the United States to repeal 
Section 211, which was in violation of the US own trademark legislation, not to mention the 
international practice in that area.  As Members were aware, the registration of a trademark that had 
been abandoned by its original owner did not require the original owner's consent.  Any bill to amend 
Section 211 that did not involve the elimination of  this legal aberration could be construed as a 
display of arrogance and provocation running counter to international rules that were scrupulously and 
reciprocally respected. 
6. 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.26) 
7. The Chairperson  drew attention to document WT/DS184/15/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 US anti-dumping measures on certain hot-rolled steel products from Japan. 
8. The representative of the United States  said that her country had provided a status report in 
this dispute on 6 December 2004, in accordance with Article 21.6 of the DSU.  The US Congress had 
completed its work for the calendar year.  A ne w Congress would convene in  January 2005, and the 
US administration would work with that Congress with respect to the recommendations and rulings of the DSB that had not been already addressed by the US authorities by 23 November 2002. 
9. The representative of Japan
 said that since the DSB had adopt ed the Reports of the Panel and 
the Appellate Body in this proceed ing in August 2001, the reasonable period of time had already been 
extended three times, and Japan was yet to see the US implementation of the DSB's recommendations and rulings.  Japan's concern was mounting over th e continued lack of implementation, especially 
over the fact that no single bill had been introduced to the US Congress to address the matter.  Prompt 
and secure implementation was indispensable for the credibility of the dispute settlement mechanism.  
In July 2004, Japan had agreed to yet another extension of the reasonable period of time on the WT/DSB/M/180 
Page 4  
 
premise that the United States would fully implem ent the DSB's recommendations and rulings during 
that period, at long last.  Japan, therefore, urged the United States to make every effort toward the fully-fledged implementation by 31 July 2005.  He  added that if the United States fell short of 
implementation by that date, Japan would be entitled to the recourse provided for under the DSU 
provisions in order to safeguard its rights and interest. 
10. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(c) United States – Continued Dumping and Subsidy Offset Act of 2000:  Status report by the 
United States (WT/DS217/16/Add.11 – WT/DS234/24/Add.11) 
11. The Chairperson  drew attention to document WT/D S217/16/Add.11 – WT/DS234/24/Add.11, 
which contained the status report by the United St ates on progress in the implementation of the DSB's 
recommendations in the case concerning the US Conti nued Dumping and Subsidy Offset Act of 2000. 
12. The representative of the United States  said that her country had provided a status report on 
6 December 2004, in accordance with Article 21.6 of the DSU.  As noted in the report, on 
19 June 2003, legislation to bring the Continued Dumping and Subsidy Offset Act into conformity 
with US WTO obligations had been introduced in the US Senate (S. 1299).  On 10 March 2004, 
legislation repealing the CDSOA had been intr oduced in the US House of Representatives 
(H.R. 3933).  In addition, on 2 February 2004, the US  administration had, once again, proposed repeal 
of the CDSOA in its budget proposal for fiscal year 2005.  The US Congress had completed its work for the calendar year.  A new Congress would convene in January, and the US administration would work with that Congress to resolve this matter. 
13. The representative of the European Communities
 said that almost one year had elapsed since 
the expiry of the implementation period.  The ad journment of the US Congress meant that the bills 
mentioned in the status report we re now void and the process of impl ementation would have to start 
again from the very beginning when the new C ongress would meet in January 2005.  The EC hoped 
that the new Congress would treat implementation of the WTO ruling as its first priority.  In the 
absence of prompt action, the EC would have no ot her option than to exercise its retaliation rights. 
14. The representative of Canada  said that his country, once again, noted the status report of the 
United States and its continued failure to comply w ith its WTO obligations in regard to the Byrd 
Amendment.  Members were aware that on 23  November 2004, Canada had launched a public 
consultation process with Canadians on its retaliato ry options as a result of the US continued non-
compliance in this dispute.  The public consulta tion would end on Monday, 20 December 2004, after 
which Canada would carefully assess all submissions a nd take decisions on its re taliatory options.  In 
January 2005, two years would have passed since th e DSB had adopted the Appellate Body decision, 
finding the Byrd Amendment inconsistent with US  trade obligations.  Canada's position was clear:  
the path to avoiding retaliation was to repeal th e Byrd Amendment.  Canada again called upon the 
United States to end this dispute and repeal the Byrd Amendment. 
15. The representative of Japan  said that in ten days, one year would lapse since the expiry of the 
reasonable period of time in this proceeding on 27 December 2003.  During the past 12 months, Japan had been calling on the United States for a prompt repeal of the WTO-inconsistent CDSOA.  The 
continued lack of implementation on the part of th e United States, however, made it imperative for the 
eight complaining parties to seek the redress under Ar ticle 22.7 of the DSU.  By the decision of the 
DSB on 26 November 2004, Japan and other six complaining parties had now been authorized to 
suspend concessions or other obligations vis-à-vis  the United States.  To the detriment of the integrity 
of the WTO dispute settlement mechanism, the most  recent status report by the United States again 
contained no tangible progress towa rd the implementation of the DS B's recommendations and rulings. 
That continued to be a very serious situation which Japan and the whole membership could not  WT/DSB/M/180 
 Page 5 
 
 
overlook.  Japan strongly hoped that the United St ates, especially the US Congress, would take 
Japan's decision seriously and that it would make ev ery effort to have the CDSOA repealed as soon as 
possible. 
16. The representative of Hong Kong, China  said that her delegation had participated as a third 
party in this dispute. Although Hong Kong, China was not among those Members requesting 
authorization from the DSB to retaliate, it was greatly  disappointed with the persistent failure by the 
United States to bring its measures, found to be inco nsistent with WTO rules, into prompt compliance 
with DSB's rulings, not only in the present case but  also in other instances.  To state that that 
undermined the credibility of the WTO dispute settle ment system, would be an understatement.  The 
present dispute settlement system w as the result of the concerted efforts made by the negotiators in 
the Uruguay Round to strengthen GATT dispute settlemen t into an effective, multilateral, rules-based 
system.  It underwrote the rights and benefits secured by Members under the WTO Agreements, and 
was fundamental to the multilateral trading system.  As negotiations under the current round step up, 
it was especially important that the dispute settle ment system should have the support of all WTO 
Members.  Hong Kong, China would, therefore, ur ge the United States to immediately bring its 
inconsistent measures into compliance with th e dispute settlement rulings, thereby clearly 
demonstrating its commitment to stand by nego tiated rules and its credibility as a negotiator. 
17. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.1) 
18. The Chairperson  drew attention to document WT/DS160/24/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 Section 110(5)  of the US Copyright Act. 
19. The representative of the United States  said that her country had provided a status report in 
this dispute on 6 December 2004, in accordance with Ar ticle 21.6 of the DSU.  As noted in the report, 
the US administration had been consulting with th e US Congress on this matter.  The US Congress 
had completed its work for the calendar year.  A new Congress would convene in January 2005, and 
the US administration would work with that Congr ess and confer with the EC in order to reach a 
mutually satisfactory resolution of the matter. 
20. The representative of the European Communities  said that, once again, the United States had 
presented a status report that showed no progress whatsoever in the implementation of the DSB's 
recommendations and rulings.  There was even an ironic reference to the willingness of the United 
States to continue to confer with the EC with a view  to finding a mutually sa tisfactory solution.  This 
was ironic since the EC had consistently receive d the opposite message from the United States.  The 
inability of the United States to abide by its obligat ions in this dispute was extremely damaging for 
the WTO system.  He recalled that the Panel Repor t in relation to the US Copyright Act had been 
adopted in July 2001, and, thus far, the United States had apparently decided to ignore the DSB's 
rulings.  It seemed clear that the US interest in the protection of intellectual property did not extend to its own territory, to the dismay of other WTO Member s and, above all, of creators of musical works 
who were penalized by the TRIPS-inconsistent provi sions of the US Copyright Act.  Every day that 
had gone by, the United States was losing a bit more of its credit with regard to the fight against 
counterfeiting and piracy – a credit that very soon w ould be over if the United States did not remedy a 
legislative situation, which amounted in effect to institutionalized music piracy. 
21. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/180 
Page 6  
 
(e) United States – Final Countervailing duty dete rmination with respect to certain softwood 
lumber from Canada:  Status report by the United States (WT/DS257/14/Add.1) 
22. The Chairperson
 drew attention to document WT/DS257/14/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 final countervailing duty determina tion with respect to certain softwood lumber 
from Canada. 
23. The representative of the United States  said that her country had provided a status report on 
6 December 2004, in accordance with Article 21.6 of the DSU.  The United States was pleased to 
report that, subsequent to that status report,  the US Department of Commerce had issued a 
determination in the Canadian softwood lumb er countervailing duty investigation that had 
implemented the recommendations and rulings of the DSB, and that a public notice of the 
determination had been signed on 10 December 2004.  In the determination, the US Commerce had 
conducted a pass-through analysis, had found that certain subsidies did not pass through and had 
revised the subsidy rate accordingly. 
24. The representative of Canada  said that at its meeting on 17 February 2004, the DSB had 
adopted the Reports of the Panel and the Appellate Body in the case: "United States - Final 
Countervailing Duty Determination With Respect to  Certain Softwood Lumber from Canada".  The 
DSB had ruled that the United States was in violation of its WTO obligations in respect of the alleged 
"pass-through" of subsidies and had recommended th at the United States bring its measures into 
conformity with its obligations under the SCM Ag reement.  Canada was currently reviewing the 
results of the US implementation and was aware of the time-lines going forward in that case.  Canada 
would inform the DSB of its response to the US st atement that the United States had implemented the 
DSB's rulings and recommendations in due course. 
25. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(f) Mexico – Measures affecting telecommunications services:  Status report by Mexico 
(WT/DS204/9) 
26. The Chairperson  drew attention to document WT/DS204/ 9, which contained the status report 
by Mexico on progress in the implementation of  the DSB's recommendations in the case concerning 
Mexico's measures affecting telecommunications services. 
27. The representative of Mexico  said that on 6 December 2004, in accordance with Article 21.6 
of the DSU, Mexico had submitted its first status report regarding implementation in the case "Mexico 
- Measures Affecting Telecommunications Services" (WT/DS204).  In that status report, Mexico 
provided information regarding the notification of  an agreement on implementation between Mexico 
and the United States.  Pursuant to that agreement a reasonable period of time of 13 months had been granted to Mexico for implementation, which would expire in July 2005.  Mexico had complied with 
the first phase of the agreement by publis hing, on 11 August 2004, its new international 
telecommunication rules.  These rules had eliminated the uniform settlement rate system, the 
proportional return system and the right of the carri er with the greatest proportion of outgoing traffic 
to negotiate the settlement rates.  The new system would enable all Mexico's long-distance carriers to 
negotiate their rates freely, not only with US ca rriers, but with carriers worldwide.  This would 
undoubtedly make the Mexican telecommunications ma rket even more competitive.  Mexico  was 
also drafting regulations for the establishment of commercial agencies.  Once that process was 
completed, Mexico would fully comply with the DSB's recommendations and rulings.  WT/DSB/M/180 
 Page 7 
 
 
28. The representative of the United States  said that her country appreciated Mexico's status 
report to the DSB and looked forward to continui ng consultations with Mexico as it worked to 
complete its implementation of the DSB's recommendations. 
29. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
2. United States – Continued Dumping and Subsidy Offset Act of 2000 
(a) Recourse to Article 22.7 of the DSU by Chile (WT/DS217/43) 
30. The Chairperson  said that this item was on the agenda of today's meeting at the request of 
Chile and drew attention to the communication fro m Chile contained in document WT/DS217/43. She 
then invited the representati ve of Chile to speak.   
31. The representative of Chile  noted that the present meeting of the DSB was one of the last 
formal WTO meetings before the holiday break.  Af ter looking at the agenda of the present meeting, 
he had realized that, once again, all items but one  were disputes in which the United States was the 
defending party, and what was most troubling w as that in most cases the United States had not 
implemented the DSB's recommendations.  That caused serious concern, especially for small 
countries like Chile.  It undermined the security and predictability of the multilateral trading system of 
which the dispute settlement mechan ism was a central element.  In that scenario, Chile could not but 
ask the DSB to authorize it to make use of its rights under the DSU.  The continuing lack of 
implementation by the United States had important systemic consequences as well as direct trade effects for Chilean exporters.  Despite the good inte ntions signalled by the US administration, almost 
two years had passed since the adoption of the Panel and Appellate Body Reports and almost one year 
from the end of the reasonable period of time, and still the US Congress had taken no meaningful 
action.  On the contrary, a majority of Senators had strongly rejected the decision of the Appellate 
Body.  In addition, the Senate Appropriations  Committee had included language in the Omnibus 
Appropriations Legislation for Fiscal Year 2005 that directed US trade negotiators to seek acceptance 
by the WTO of the principle underlying the "CDSOA".  Notwithstanding that a concrete proposal had 
already been introduced in the ru les negotiations to discuss schemes like the Byrd Amendment and to 
recognize the rights of Members to do exactly what the Panel and the Appellate Body had concluded 
was against the WTO.  Finally, a US Senator had recently introduced a bill to make things even 
worse, requiring a direct transfer of Federal funds to a single industry while the AD/CVD collected were still in an escrow account waiting the final outc ome of the determination.  Chile was requesting 
authorization from the DSB to impose additional duti es on certain US exports up to a total value of 
trade equivalent to the level of nullification or impa irment in a particular year as determined by the 
Decision by the Arbitrator.  Chile hoped that in th e new year with a new Congress and renewed spirit, 
the repeal of the Byrd Amendment would allow Chile to avoid the need to use the rights to be granted 
to it at the present meeting.  If th at was not the case, Chile shall no tify to the DSB the products subject 
to the additional tariff and the rate of the additional tariff. 
32. The representative of Japan
 said that his country welcomed Chile’s request.  With Chile 
joining other complaining parties in the Byrd Amen dment dispute, Japan wished to renew its call on 
the United States to comply with the DSB's reco mmendations and rulings. Japan hoped that the DSB 
would endorse Chile’s right to susp end concessions and other obligations vis-à-vis  the United States, 
as it had done so on 26 November 2004 in relation to similar requests by seven other Members,  
including Japan.  
33. The representative of the United States  said that her country wished to reiterate that it 
intended to comply with the DSB's recommendations and rulings in this dispute.  Thus, while the 
United States understood that the DSB would, at the present meeting, be authorizing the suspension of 
concessions or other obligations, it  did not believe it w ould be necessary for Chile to exercise that WT/DSB/M/180 
Page 8  
 
authorization.  The United States would also like to thank the Arbitrator and the Secretariat for their 
hard work in these proceedings.  The United States had commented on the other Article 22.6 
arbitrations on the CDSOA at the 24/26 November DSB meeting.  Most of those comments also applied to the arbitration between Chile and the United States, and her delegation would not repeat 
them at the present meeting.   As stated previ ously, a new Congress would c onvene in January 2005, 
and the US administration would work with  that Congress to resolve this matter. 
34. The representative of the European Communities
 said that the EC welcomed Chile's request.  
He recalled that at the 24/26 November meeting, the DSB had already authorized seven Members, 
including the EC to suspend the application of con cessions and other obligations to the United States.  
All together the WTO Members that could now re taliate at any time against the United States 
represented 71 per cent of total US exports and 64 pe r cent  of total US imports.  That evidenced the 
widespread concerns raised by a legislation, whic h benefited  only a handful of companies.  The EC 
renewed its calls on the United States to res pond without further delay to those concerns. 
35. The DSB took note  of the statements and, pursuant to the request by Chile under Article 22.7 
of the DSU contained in document WT/DS217/43, agreed  to grant authorization to suspend the 
application to the United States of tariff concessi ons or other obligations consistent with the 
Arbitrator's decision contained in document WT/DS217/ARB/CHL. 
3. United States – Sunset reviews of anti-dumpi ng measures on oil country tubular goods 
from Argentina 
(a) Report of the Appellate Body (WT/DS268/AB/R ) and Report of the Panel (WT/DS268/R and 
Corr.1) 
36. The Chairperson  drew attention to the communication from the Appellate Body contained in 
document WT/DS268/7 transmitting the Appellate Bo dy Report on "United States – Sunset Reviews 
of Anti-Dumping Measures on Oil Country Tubula r Goods from Argentina" which had been 
circulated on 29 November 2004 in document WT/DS 268/AB/R, in accordance with Article 17.5 of 
the DSU.  She reminded delegations that, in accordance with the Decision on Procedures for the 
Circulation and Derestriction of WTO Documents contained in document WT/L/452, the Appellate 
Body Report and the Panel Report pertaining to this case had been circulated as unrestricted 
documents.  As Members were aware, Article 17.14 of the DSU required that:  "An Appellate Body 
report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days following its circulation to Members.  This adoption procedure is without prejudice to the right of Members to 
express their views on an Appellate Body report".  Sh e then invited the representatives of the parties 
to the dispute to present their views on the Reports before the DSB.  
37. The representative of Argentina
 expressed his country's gratitude to the Appellate Body, the 
Panel and the Secretariat for their work in this dispute.  Four years ago, Argentina had witnessed 
impairment of its rights under the WTO Agreement when the United States had decided, after five 
years, to renew the anti-dumping measures on oil country tubular goods (OCTG) from Argentina for 
another five years.  Thereafter, Argentina had had to invest considerable human and material 
resources in asserting its rights in the WTO disput e settlement system.  That was why his country 
welcomed the Report of the Appellate Body, which ha d taken into considerati on a substantial number 
of Argentina's claims and had confirmed that the US  sunset reviews were not consistent with the US 
obligations under the WTO.  He noted that this assertion had been shared by several WTO Members, 
which had not only participated in the dispute initia ted by Argentina as third parties, but had also 
brought their own separate proceedings  under the DSU in this regard.  
38. Throughout the two phases of the proceedings, Ar gentina had held that a determination of 
recurrence or continuation of dumping consistent with Article 11.3 of the Anti-Dumping Agreement  WT/DSB/M/180 
 Page 9 
 
 
could be the outcome of what the Appellate Body described as "... a rigorous process ... involving a 
number of procedural steps, and requiring an appr opriate degree of diligence on the part of the 
national authorities".1  Consequently, such a determination c ould not be based on presumptions nor on 
conclusions predetermined by the law or any other le gal or administrative instrument.  Both the Panel 
and the Appellate Body had shared Argentina's view  on this matter.  In the case of the OCTG from 
Argentina specifically, the Panel had found that  the determination of dumping made by the US 
Department of Commerce (USDOC) not only lacked a proper factual basis2, but was also invalid 
because the deemed waivers provisions had been  applied to exporters other than Siderca3, the only 
Argentine company to be party to the original inv estigation.  The Panel had, therefore, found the 
determination to be inconsiste nt with Articles 11.3 and 6.2 of the Anti-Dumping Agreement.4  The 
United States had not challenged that conclusion.   
39. Because it had been found that one of the tw o elements that had to exist in order for 
anti-dumping duties to be imposed or maintained was lacking, the anti-dumping duties maintained 
pursuant to the sunset reviews concerning OCTG fro m Argentina, were not based on a determination 
of dumping shown to be warranted, and must, therefor e, be revoked. This was exactly what Argentina 
had held since the November 2002 consultations.  The United States had refrained from challenging 
this point.  Therefore, Argentina hoped that the Un ited States would now meet its obligations in good 
faith and revoke the anti-dumping duties found to be  inconsistent, thus sparing the Argentine 
exporters further costly procedures. Argentina also  welcomed the fact that the Appellate Body had 
upheld the finding that some of the waiver provision s in US laws and regula tions were inconsistent 
"as such" with Articles 6.1, 6.2 and 11.3 of the Anti-Dumping Agreement.  These provisions could, 
potentially, affect all anti-dumping investig ations carried out by the United States. 
40. With regard to the claims pertaining to the Sunset Policy Bulletin (SPB), Argentina deeply 
regretted that the Appellate Body had reversed the Panel's finding of inconsistency of the virtually 
irrefutable presumptions of continuation or recurrence of dumping that the USDOC had made in all sunset reviews on the basis of automatic app lication of the three scenarios established in 
Section II.A.3 of the SPB.  In particular, Argen tina regretted what in its view was a somewhat 
ambiguous conclusion.  On the one hand, the Ap pellate Body had found that although the three 
scenarios of the SPB were relied on consistently , as had clearly emerged from the information 
submitted by Argentina in the proceedings, this was not sufficient to uphold the finding of 
inconsistency of the USDOC' s determinations in the sunset reviews.  At the same time, the Appellate 
Body shared Argentina's view in its assertion that "[t]he fact that affirmative determinations were 
made in reliance on one of the three scenarios in all the sunset reviews of anti-dumping duty orders 
where domestic interested parties took part strongl y suggests that these scenar ios are mechanistically 
applied".
5  Despite that ambiguity, Argentina was aw are that the Appellate Body had based its 
reversal of the Panel's finding solely on the fact that the Panel's analysis was not a safe basis for 
concluding that the USDOC's dete rmination was WTO-inconsistent.  As the Appellate Body had 
emphasized, the reversal had not implied that S ection II.A.3 of the SPB was consistent with WTO 
rules, so there was a possibility that it might be found inconsistent in future proceedings.  Such a 
possibility was the more plausible as the Appellate Bo dy had appropriately considered the SPB to be a 
measure which "as  such, is subject to WTO dispute settlement".6 
41. Finally, Argentina also regretted that neither  the Panel nor the Appellate Body had endorsed 
the claim that the injury determination made by the US International Trade Commission (USITC) was 
WTO-inconsistent in this case. Nor had they accepte d Argentina's argument that the USITC had failed 
                                                      
1 WT/DS244/AB/R, paragraph 113. 
2 WT/DS268/R, paragraph 7.221. 
3 Idem . paragraph 7.222. 
4 Idem . paragraph 8.1(d)(i). 
5 WT/DS268/AB/R, paragraph 212. 
6 Idem . paragraph 187. WT/DSB/M/180 
Page 10  
 
to apply the "likelihood" standard properly, as pr obability not possibility, in the determination on 
recurrence or continuation of injury.  It would have been relevant for all WTO Members to have 
confirmation, in the form of a specific case, that proba bility was the standard that must be applied.  As 
indicated above, only duties that had been estab lished and/or maintained pursuant to dumping and 
injury determinations that were made in a manner consistent with the provisions of the Anti-Dumping 
Agreement might be maintained as a result of sunset  reviews.  In this case, although one of the two 
elements was lacking, the United States had ma intained anti-dumping duties on these products from 
Argentina for nine and a half years.  Consequent ly, in Argentina's view, the only way to implement 
properly the conclusions and recommendations of th e Reports of the Appellate Body and the Panel, 
was to terminate immediately the anti-dumping duti es and to make the necessary amendments to the 
legislation which had been found WTO-inconsistent and had allowe d such a situation to arise. 
42. The representative of the United States
 said that while her country was disappointed that the 
Panel and the Appellate Bo dy had not found all aspects of the measures at issue to be consistent with 
the Anti-Dumping Agreement, the United States was pleased that they had concluded that many were. 
The United States commended the analyses and findi ngs of both the Appellate Body and the Panel 
with respect to all injury-relat ed issues. In a well-reasoned analysis, the Appellate Body, like the 
Panel, had found that there was no requirement that a Member apply the provisions of Article 3 in a 
sunset review. They had also correctly found that the US statutory provisions related to the determination of likelihood of continuation or recu rrence of injury were not inconsistent with US 
WTO obligations.  Further, they applied the correct  standard of review in finding that the United 
States had complied with its obligations in determ ining likelihood of continuation or recurrence of 
injury in this review. 
43. The United States was also pleased that the Appe llate Body had reversed the Panel's finding 
that the Sunset Policy Bulletin was inconsistent with Article 11.3 of the Anti-Dumping Agreement.  
This was an important finding.  It reinforced th e bedrock principle that complaining parties had to 
demonstrate their case, based on material and relevant facts.  It was not sufficient merely to draw 
conclusions without also providing sufficient f acts and analysis to support those conclusions.  
Regrettably, the Appellate Body had not held the Pa nel to a similarly rigorous standard regarding the 
Panel's finding that the Sunset Policy Bulletin was a "measure," based solely on the Panel's reading of 
the Appellate Body report in "US – Sunset Japan".  The Appellate Body correctly noted in paragraph 
215 of its Report that conclusions must be suppor ted by qualitative and rigorous analysis.  Yet the 
Panel here had offered none.  Th e Appellate Body's description of the Panel's analysis as "concise" 
was something of an understatement. The United Stat es was also confused as to  whether the Appellate 
Body was now suggesting for the first time that stare decisis existed in WTO dispute settlement. 
44. Moreover, the Appellate Body's statement that it  had found the Sunset Policy Bulletin to be a 
measure in "Sunset Japan"  was difficult to reconcile with the language of that Report. While the 
Appellate Body in "Sunset Japan"  had outlined considerations for deciding whether something was a 
measure, and had noted that the Panel there had not applied these considerations, the Appellate Body 
had not itself appeared to complete the analysis to conclude that the Sunset Policy Bulletin was a 
"measure".  Indeed, in paragr aph 186 of the "Sunset Argentina"  Report, the Appellate Body had cited 
no finding from its earlier Report that the Sunset Policy Bulletin was a measure.  Instead, it had 
inferred from other aspects of its "Sunset Japan" anal ysis that, "This suggests that the Appellate Body 
treated the SPB as a measure".  This was a thin re ed on which to conclude that the Panel in this 
dispute did not need to analyze the question, and the United States hoped that this unfortunate 
approach would not be followed in the future. 
45. The United States also had fundamental systemic  concerns relating to the analysis of "as 
such" claims against measures such as the Sunset  Policy Bulletin. One such concern was the proper 
approach to determining, as a matter of fact, wh at a measure did. This was the first step in 
determining whether the measure was consistent wi th WTO rules, and was the foundation of a correct 
legal analysis.  If a panel mischaracterized the measure, its ultimate findings on that measure would  WT/DSB/M/180 
 Page 11 
 
 
be flawed.  In examining the Sunset Policy Bulleti n, the Panel had followed the Appellate Body's 
suggestion in "Sunset Japan"  that panels should begin by examining the face of the measure. 
However, this suggestion could not be applied m echanistically in all disputes. To do so would 
disregard differences among Members' municipal legal systems.  For example, in the US legal system, 
court interpretations governed a statute's meaning.  A panel could easily make incorrect findings 
about what a statute did if it were simply to look at the face of the statute and ignore court 
interpretations. 
46. Another systemic concern related to the Panel's statement that it based its finding on what US 
authorities allegedly "perceive" the Sunset Policy Bulletin as requiring – rather than on what the 
Sunset Policy Bulletin actually required. This was a very dangerous approach. The credibility of the 
dispute settlement system depended on accurate and obj ective descriptions of the measures at issue.  
A finding based merely on a panel's conclusion on how a Member "perceives" a measure was the 
opposite of that.  Panels must not apply artificial a nd subjective interpretive tools to determine what a 
measure did – they needed to look at what the Member's own legal system stated the measure did.  The United States wished to emphasi ze that it raised these issues out of systemic concerns that were 
relevant in every dispute, and not just in tho se involving the Sunset Policy Bulletin.  The United 
States asked that Members consider  these questions in that light, for they were fundamental to the 
continued credibility of the system. Finally, the United States was disappointed that the Report seemed to relieve complaining Members of their obl igation to draft clear panel requests.  Although 
the Appellate Body had reiterate d the importance of clarity in such requests, the Report had 
nevertheless placed the burden on the United St ates to guess what Argentina had intended to 
challenge.  This was not the standard found in Artic le 6.2 of the DSU.  The United States wished to 
conclude by thanking the members of the Appellate Body, the Panel, and the Secretariat for their hard 
work throughout the course of this dispute. 
47. The representative of Mexico
 said that, at the present meeting, his country wished to 
comment on the Appellate Body report in the case unde r consideration.  This was the third report to 
examine the sunset reviews carried out by the US authorities.  In relation to those reports, and in 
particular the Report to be adopted at the present meeting, Mexico considered that progress had been 
made in clarifying the disciplines applicable to su ch review.  However, Mexico did not agree with 
some of the Appellate Body's interpretations on th is matter.  He said that for the United States  
Article 11.3 of the Anti-Dumping Agreement was to all intents and purposes meaningless:  to comply 
with it a Member needed only to determine the ex istence of dumping and injury in the original 
investigation in order to replicate that determinati on in the sunset review.  In other words, for the 
United States, the instruments that regulated that type of review served no purpose;  nor were there 
any rules for carrying out such revi ews.  Therefore, it was hardly su rprising that in sunset reviews, 
whenever the US industry had intervened, an affirm ative determination of c ontinuation or recurrence 
of dumping had been made. 
48. At the present meeting, Mexico also wished to  comment on some specific issues contained in  
the Report. With regard to the Sunset Policy Bu lletin (SPB), Mexico was pleased that, after three 
panels and three Appellate Body reports, it had fi nally been made clear that this US instrument 
constituted a measure that could be challenged in the WTO.  Mexico regretted, however, that the 
Appellate Body had not confirmed that the SPB was inconsistent "as such", finding that the Panel had 
not carried out a "qualitative analysis" of all the cases in which the instru ment had been used, as 
required under Article 11 of the DSU.  In spite of  this, Mexico trusted that the Panel currently 
analysing this instrument in the ongoing case relate d to the OCTG from Mexico would conclude, once 
the qualitative analysis had been carried out, that th e SPB was an instrument that the US authority 
applied mechanistically in such review. 
49. With regard to the determination of injury in  sunset reviews, Mexico disagreed with the 
decision and reasoning of the Appellate Body on this matter.  Concerning the implementation of 
Article 3, the Report raised more questions than it answered on determination of injury in sunset WT/DSB/M/180 
Page 12  
 
reviews.  On the one hand, it adopted the position that  the authorities "are not mandated to follow the 
provisions of Article 3 when making a likelihood-of-injury determination".
7  However, a few 
paragraphs further on, it stated, "this is not to say, ho wever, that in a sunset review determination, an 
investigating authority is never required to examin e any of the factors listed in the paragraphs of 
Article 3 ... .  It seems to us that factors such as the volume, price effects and the impact on the 
domestic industry of dumped imports, taking in to account the conditions of competition, may be  
relevant to varying degrees in a given likelihood-of-i njury determination.  An investigating authority 
may also, in its own judgement, consider other factors contained in Article 3 ... ".8  In Mexico's view, 
this reasoning did not clarify the rules that applied to  injury determination, but  did give the authority a 
large measure of discretion to determine, "in its  own judgement", when or how it should implement 
the disciplines of Article 3. 
50. With regard to the determination of the "likely"  standard used by the US International Trade 
Commission (USITC), Mexico was extremely surpri sed that the Appellate Body had upheld the 
finding that the statements made by the United States in dispute settlement proceedings under NAFTA were not relevant.  Both the Panel and the Appellate Body had overlooked the fact that those 
statements were:  (i) made with respect to the sa me challenged measure;  (ii) made on the basis of 
exactly the same standard as the one provided for by the WTO and;  (iii) statements in which the USITC had admitted that, with regard to the same  review, the authority had not applied the likely 
standard required by Article  11.3.  This was not a question of se mantics nor was it a play on words;  it 
meant that the US authority had not determined the likelihood of injury, but something quite different. 
51. With regard to cumulation, Mexico also disag reed with the finding that there were no 
applicable disciplines for cumulation in sunset reviews.  Members had negotiated a series of 
disciplines in order to allow cumulation.  However,  it now turned out that a Member could cumulate, 
without rules, in order to continue an anti-dum ping measure beyond five years.  This was entirely 
contrary to the extraordinary and strict nature of the obligation to terminate the measure laid down in 
Article 11.3.  The Appellate Body had made it very clear that the obligation contained in Article 11.3 
of the Anti-Dumping Agreement was to terminate an anti-dumping measure after five years.  
Continuation of such a measure was an exception, and,  as such, must be monitored very closely.  To 
that end, it was essential that the Appellate Body adopt a rigorous approach when analysing such 
measure with clear and strict rules for the conduct of such reviews.  It had taken three sets of 
proceedings before panels and three before the A ppellate Body merely to determine that a measure 
subject to this type of review was challengeab le within the WTO framework.  The Appellate Body 
could not allow the United Stat es to transform the exception de facto  into a rule. 
52. The representative of th e European Communities
 said that the EC particularly welcomed the 
Appellate Body's confirmation that the Sunset Polic y Bulletin was a measure that might be challenged 
within the WTO system, and its find ings that the issue of whether or not the Sunset Policy Bulletin 
was a "legal instrument" or "binding" in the US municipal law was irrelevant (para. 187 of the AB 
Report).  The United States had argued that certain provisions of United States  laws, regulations and 
administrative procedures were not "as such" incons istent with the Anti-Dumping Agreement because 
the USDOC had some "discretion" when applying th em. The Appellate Body had found that, in order 
to succeed with such a defense, th e United States would, at least, have to demonstrate that such 
"discretion" permitted the USDOC in all cases, to avoid acting inconsistently  with WTO obligations 
(paras. 247 and 265 to 269 of the AB Report).  The EC agreed with the Appellate Body that, when 
municipal laws, regulations or administrative proc edures that were intende d to have general or 
prospective application permitted WT O-inconsistent actions in some cases, they were inconsistent 
with the Anti-Dumping Agreement. 
                                                      
7 Appellate Body Report, paragraph 280. 
8 Idem . paragraph 284.  WT/DSB/M/180 
 Page 13 
 
 
53. The representative of Norway  said that her country had taken note of the decision of the Panel 
and the Appellate Body in this case and wished to make some remarks concerning one of the findings 
of the Appellate Body.  With respect to the con tinuation of anti-dumping duties by the United States, 
Argentina had put forward evidence showing that the USDOC in 217 out of 217 cases had found that 
dumping was likely to continue based on certain mandated assumptions.  In the present case, the 
Panel had found that Argentina had demonstrated th at the USDOC regarded the assumptions in the 
Sunset Policy Bulletin (SPB) as conclusive, and th at the relevant provisions of the SPB were 
inconsistent with Article 11.3 of the Anti-Dumping Agreement and in particular with the requirement 
that the investigating authorities had to conduct an  "rigorous examination" and to base itself on a 
"sufficient factual basis" in making its decision.  To Norway's surprise, the Appellate Body had 
reversed the Panel's finding regardi ng that point and had found that th e Panel could not solely rely "on 
the overall statistics or aggregated results", even though the USDOC "rolled over" the measure in 100 
per cent of the cases referred to.  Rather, it should have relied on a "qualitative assessment" in at least 
some of the cases, to prove that the USDOC rega rded the assumptions in the SPB as conclusive.  
Norway was certain that that point would be raised  in future cases and expected that the findings in 
that respect would differ somewhat from the conclu sion in the case at hand. Norway drew Members' 
attention to the paper on sunset reviews submitted in the context of the negotiations on rules by a 
group of countries, including Norway.  In document TN/RL/W/76, a permanent solution to this problem had been suggested by abolishing the possib ility of extensions through "sunset reviews" and 
introducing a "grace period" before a new measure  could be introduced.  The case before the DSB 
was a strong affirmation of the need for such a proposal. 
54. The representative of Hong Kong, China
 said that her delegation thanked the Panel and the 
Appellate Body for their work on this case.  On the whole, Hong Kong, China welcomed the 
Appellate Body and the Panel Reports as useful in clarifying the conduct of sunset reviews, although 
it had some comments and reservations with regard  to parts of the findings.  Hong Kong, China 
welcomed the confirmation that authorities could not simply assume that dumping was likely to 
continue or recur because a respondent made an inco mplete submission.  However, it had reservations 
on the finding that non-participation in a review c ould automatically lead to a determination that 
dumping was likely to continue or recur for that exporter.  The Panel and the Appellate Body had 
confirmed that Article 11.3 of the Anti-Dumping Agreement required investigating authorities to 
make a determination supported by  reasoned and adequate conclu sions based on positive evidence, 
and not on assumptions or conjectures.  To Hong K ong, China, therefore, investigating authorities 
could not simply assume that dumping was likely to continue or recur for that exporter simply 
because it chose not to participate in the review. 
55. Hong Kong, China welcomed the clarification by  the Panel, as endorsed by the Appellate 
Body, of standard for determining whether a partic ular measure was consistent with Article 11.3 of 
the Anti-Dumping Agreement, namely, "a scheme that attributes a 'determinative'/'conclusive' value to 
certain factors in sunset determinations – as opposed to  only an indicative value – is 'likely to violate' 
Article 11.3".  It also noted the Appellate Body 's statement that a qualitative assessment of the 
likelihood determinations in individual cases was re quired. Regrettably, such a qualitative assessment 
was not performed and no conclusion was made as to the WTO-consistenc y of the relevant sections of 
the Sunset Policy Bulletin.  Likewise, Hong Kong, Ch ina regretted that there was insufficient factual 
basis for the Appellate Body to complete the analysis  of Argentina's conditional appeal with respect to 
the "practice" of the USDOC regarding the likelihood  determination in sunset reviews.  With the 
foregoing observations, Hong Kong, China urged the Unite d States to take prompt action to bring its 
inconsistent measures into conformity  with the Anti-Dumping Agreement. 
56. The DSB took note  of the statements, and adopted  the Appellate Body Report contained in 
WT/DS268/AB/R and the Panel Report contained in  WT/DS268/R and Corr.1, as modified by the 
Appellate Body Report. 
 WT/DSB/M/180 
Page 14  
 
4. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/272) 
57. The Chairperson
 drew attention to document WT/D SB/W/272 which contained additional 
names proposed for inclusion on the indicative list in accordance with Article 8.4 of the DSU.  Unless 
there was any objection, she proposed that the DSB approve the names contained in document 
WT/DSB/W/272. 
58. The DSB so agreed . 
5. United States – Anti-Dumping Act of 1916 
(a) Statement by the United States  
59. The representative of the United States , speaking under "Other Business", said that  in 
connection with the dispute "United Stat es – Anti-Dumping Act of 1916", she was ple ased to 
inform the DSB that on 3 December 2004, President Bush had signed into law the Miscellaneous Trade and Technical Corrections Act of 2004.  That  Act included a provision that repealed the 1916 
Act.  As stated at the November DSB meeting,  that action had brought the United States into 
compliance with the DSB's recommendati ons and rulings in this dispute. 
60. The representative of Japan
 thanked the US delegation for reporting on the development on 
this matter since the November DSB meeting: i.e. that the US President had signed the Miscellaneous 
Tariff Act which contained the bill H.R. 1049 repealing the 1916 Anti-Dumping Act.  Japan welcomed the enactment of the bill, and acknowledge d the effort made by the US administration as 
well as the US Congress.  However, Japan wished to report to the DSB with regret that on 
23 November 2004, just days before the President  signed legislation repealing the 1916 Act, a new 
lawsuit had been filed against several Japanese companies under the 1916 Anti-Dumping Act.  At 
previous DSB meetings, Japan had been calling on the United States to take appropriate action so that 
these instances would not occur and so that no fu rther damage would be inflicted upon the Japanese 
companies under the 1916 Anti-Dumping Act.  Along with the US$30 million case now being pursued before the Federal Circuit Court, such in stances raised much concern to Japan.  His country 
regretted that the United States had failed to address Japan's concerns.  Without retroactive effect, the 
bill repealing the 1916 Anti-Dumping Act would not a ffect the pending cases, as mentioned above.  In 
that light, Japan again strongly urged the United States to do its utmost in order to effectively prevent 
damages being inflicted upon Japanese companies.  In  conclusion, Japan wished to state that as long 
as these pending cases threatened to inflict damages on Japanese companies, its position vis-à-vis  the 
United States regarding these cases remained the same, notwithstanding Japan's expression of 
welcome concerning the repeal of the 1916 Anti-Dumpi ng Act.  Also in this regard, Japan would like 
to reserve all its rights under the DSU. 
61. The representative of th e European Communities
 said that the EC would simply like to refer 
to its statement made at the 24 November DSB meeting regarding this matter.  
62. The DSB took note  of the statements. 
6. United States – Final dumping determin ation on softwood lumber from Canada  
(a) Statement by the United States 
63. The representative of the United States , speaking under "Other Business", said that her 
country was pleased to announce that the United States and Canada had agreed on a reasonable period 
of time for the United States to implement the rulings and recommendations of the DSB in the 
Lumber (Dumping)  dispute (DS264).  Pursuant to Article 21.3(b) of the DSU, the parties had agreed  WT/DSB/M/180 
 Page 15 
 
 
on a reasonable period of time of seven and one-hal f months. Accordingly, the reasonable period of 
time would expire on 15 April 2005.  The United St ates wished to thank the Arbitrator and the 
Secretariat for their efforts in connection with the arbitration proceedings that  Canada had terminated 
when it had withdrawn its request for arbitration. 
64. The representative of Canada  said that his country wished to  thank the Secretariat and the 
Arbitrator for their efforts and hard work.  Unfort unately, the notification to the Arbitrator regarding 
this matter had been issued when he wa s already on his way from Australia.   
65. The DSB took note  of the statements. 
__________