RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/290 
11 February 2011 
 (11-0670) 
Dispute Settlement Body 
17 December 2010  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 17 December 2010  
 
Chairman:  Mr. Yonov Frederick Agah (Nigeria) 
 
 Subjects discussed
: Page  
 
1.  Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a)  United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2 
(b)  United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................5  
(c)  United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........6 
(d)  European Communities1 – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union .........................................................................6  
(e)  United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States .............................................................................................................. ...........7 
(f)  United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States.................................................................................................... ......8 
(g)  United States – Laws, regulations and methodology for calculating dumping margins 
("zeroing"):  Status repor t by the Unite d States..........................................................................8  
2.  United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ............................................9  
(a)  Statements by the European Union and Japan ............................................................................9  
3.  Thailand – Customs and fiscal measures on cigarettes from the Philippines....................10  
(a)  Joint request by Thailand and the Philippines for a decision by the DSB ................................10  
4.  Australia – Measures affecting the importation of apples from New Zealand..................11  
(a)  Report of the Appellate Body and Report of the Panel.............................................................11  
 
 
                                                      
1 On 1 December 2009, the Treaty of Lisbon amendi ng the Treaty on Europe an Union and the Treaty 
establishing the European Community (done at Lisb on, 13 December 2007) en tered into force.  On 
29 November 2009, the WTO received a verbal note (WT /L/779) from the Council of the European Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 
1 December 2009, the European Union replaces and succeeds the European Community. WT/DSB/M/290 
Page 2  
 
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.97) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.97) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.72) 
 
(d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.35) 
 (e) United States – Measures relating to zeroi ng and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.15) 
 
(f) United States – Continued existence and app lication of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.12) 
 (g) United States – Laws, regulations a nd methodology for calculating dumping margins 
("zeroing"):  Status report by the United States (WT/DS294/38/Add.6) 
 
 1. The Chairman
 recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establis hment of the reasonable 
period of time and shall remain on the DSB's Agenda  until the issue was resolved.  He proposed that 
the seven 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.97) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.97, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US Section 211 Omni bus Appropriations Act of 1998. 
3. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 December 2010, in accordance with Article 21.6 of the DSU.  As had been noted, a 
number of legislative proposals that would implem ent the DSB's recommendations and rulings in this 
dispute had been introduced in the First Session of the current (111th) Congress.  The Second Session 
of the 111th Congress had begun in January.  The Committee on the Judiciary of the House of 
Representatives had held a hearing on certain of these proposals earlier in the course of the year.  In 
addition, the US administration was working with Congress to implement the DSB's recommendations and rulings. 
4. The representative of the European Union
 said that, at the present meeting, the United States 
was presenting yet another status report in this di spute.  The EU hoped that the US authorities would 
very soon take steps towards implementing th e DSB's ruling and resolve this dispute.   WT/DSB/M/290 
 Page 3 
 
 
5. The representative of Cuba  said that her country noted the br ief status report submitted by the 
United States and said that that report was identical to  the US status report submitted in January 2010.  
In other words, nothing had changed in the course of  the year, just as nothing had changed for almost 
a decade.  For the past ten years, Cuba had been fo rced to condemn the US disregard for the rules of 
international law.  Cuba recalled that the purpose of  status reports was to inform the DSB of progress 
being made in the implementation of  recommendations or rulings.  In this regard, Cuba questioned the 
purpose of the US status reports which, year after year and month after month, simply repeated the 
same words and indicated no intention on the part of  the United States to come into compliance with 
its obligations.  The legislative pr oposals referred to by the United States remained at the standstill, 
including those proposing to repeal Section 211 because they were not considered to be a priority for 
either the US administration or the US Congress.  Th is situation helped to maintain the pressure from 
a small group of Cuban-Americans who had made the political dispute between Cuba and the United 
States the centre of their political careers and mean s of economic subsistence.  The United States did 
not seem to be fully aware of its international disre pute into which it had fallen as a result of its policy 
against Cuba.  The US conduct was not only unlawfu l and immoral, but totally inappropriate from the 
point of view of intellectual property rights.  Inte llectual property rights were private rights, the main 
beneficiaries of which were companies from the United States and other developed countries, which 
monopolized ownership of the vast majo rity of trademarks and patents. 
6. Cuba noted that the United States had always maintained that intellectual property rights 
protection was its priority issue.  However, it conti nued to implement legislation that was inconsistent 
with the TRIPS Agreement, which provided the ulti mate protection for those rights at the multilateral 
level.  It was well known that Section 211 undermined  the rights of holders of Cuban trademarks and 
enabled Bacardi to engage in the fraudulent u se and sale of the HAVANA CLUB trademark, which 
was a renowned trademark of Cuban origin.  Th is only encouraged commercial crime and set a 
negative pattern, in particular for those tradi ng partners that were serious about combating 
counterfeiting.  The effectiveness and usefulness of the dispute settlement mechanism, in particular 
for developing countries, which constituted the major ity of the WTO Membership, should be analysed 
in some depth, as the facts demonstrated that the system required urgent substantial changes.  The 
Section 211 dispute was among those unresolved disputes that had remained on the DSB's Agenda for years.  Cuba could not remain silent in the face of  the current situation that undermined the credibility 
of the multilateral trading system.  In Cuba's  view, Members had a collective responsibility to 
preserve the effectiveness and credibility of the institutions and mechanisms, which had taken so 
much time and effort to be put into place.  Unde r international law, the United States was responsible 
for ensuring that its laws, regulations and judici al as well as administrative procedures were in line 
with its obligations under the WTO Agreements and other international agreements to which it was 
party.  Thus, Members had an obligation to uncondi tionally comply with their commitments, and in 
this particular case, the solution to resolving this dispute was to repeal Section 211. 
7. The representative of Bolivia
 said that her delegation, once again, wished to express its 
concern about the status of this dispute and the US failure to comply with its WTO obligations.  
Bolivia, reiterated that the failure to achieve progr ess had a negative impact on the credibility of the 
multilateral trading system and the dispute settlement  mechanism.  It also undermined the balance 
between the rights and obligations of Members.  Once again, Bolivia urged the United States to 
comply with the DSB's rulings and recommendations  and to make efforts to ensure that the 
restrictions imposed under Section 211 were removed.  
8. The representative of China  said that her country thanked the United States for its status 
report and the statement made at the present meeting.  However, China regretted that the United States had again reported non-compliance.  Eight years had passed since the adoption of the 
rulings and recommendations by the DSB in this dis pute.  In China's view, such a situation was in 
violation of the principle of prompt implementa tion contained in the DSU provisions and raised 
systematic concerns.  In addition, it was highly inappropriate for a developed-country Member to 
maintain, for such a long period of time, a WTO-incons istent measure that affected the interest of a WT/DSB/M/290 
Page 4  
 
developing-country Member.  China, therefore, stro ngly supported Cuba and urged the United States 
to implement the DSB's rulings without any further delay. 
9. The representative of Angola
 said that her country thanked the United States for providing 
information on the implementation of the DSB's d ecision and the Appellate Body's recommendations 
of 12 February 2002 on Section 211.  Nonetheless, Angola recalled that prompt compliance with the 
DSB's rulings and the recommendations was fundame ntal to ensuring an effective resolution of 
disputes to the benefit of all Members.  She reca lled that the Appellate Body Report adopted by the 
DSB in February 2002 had proved the inconsistenc y of Section 211 with WTO rules and principles 
and had requested the United States to bring its measure into conformity with the DSB's recommendations.  The delay in the implementation of  the DSB decision affected the efficiency and 
the predictability of the multilateral trading system  and set a negative precedent for similar cases.  
Angola was confident that concrete  will and actions by the parties in this dispute would send an 
encouraging signal of respect for WTO rules. 
10. The representative of Ecuador
 said that his country fully supported Cuba's statement and 
underlined, once again, that Article 21 of the DSU expressly referred to prompt compliance with the 
DSB's recommendations, in particular with regard to  matters affecting the interests of developing 
countries.  Ecuador hoped that the United States would accelerate its work to ensure immediate compliance with the DSB's recommendations and ruli ngs.  This dispute pointed out the weakness of 
the dispute settlement mechanism, namely, that th ere was an imbalance at the compliance stage, 
which affected the interests of developing countries.  
11. The representative of Nicaragua
 said that her country thanked the United States for the status 
report and noted with regret that the report did not provide any information regarding substantive 
changes.  Once again, Nicaragua wished to unde rline that the United States continued to fail to 
comply with the DSB's rulings.  This situation was not in line with the principle of prompt compliance contained in the DSU provisions.  The United States had to comply as soon as possible to ensure the 
efficient functioning of the system.  Nicaragua urged the United States to act as soon as possible so as 
to comply with the DSB's recommendations in this dispute.  
12. The representative of the Dominican Republic
 said that his country wished to thank the 
United States for its status report on its implem entation of the DSB's recommendations regarding 
Section 211, which was incompatible with Article 42 of the TRIPS Agreement.  In this regard, the 
Dominican Republic, once again, urged the United Stat es to step up its domestic procedures to ensure 
compliance with the DSB's recommendations, given that  a long-period of time had elapsed and that 
this situation undermined the credibility of the dispute settlement mechanism.  
13. The representative of the Bolivarian Republic of Venezuela  said that her country noted that 
the present meeting was the last meeting held in 2010, and regretted that, in the context of the 
discussion under the Agenda item on surveillance of implementation of recommendations adopted by 
the DSB, no progress had been made in the Section 211 dispute.  Venezuela thanked the United States 
for its status report, but was disappointed that the re port merely repeated the same information that the 
United States had already provided in its previous ( 96) status reports.  Venezuela hoped that in 2011, 
once the new US Congress was convened, some pr ogress would be made towards implementation in 
this dispute.  Venezuela was concerned that, in spite of the DSB's recommendations made more than 
eight years ago, the United States continued to maintain its legislation that was in violation of the TRIPS Agreement.  This situation had not only unde rmined and continued to undermine Cuba, it also 
adversely affected the credibility of the disput e settlement mechanism.  Venezuela supported the 
statement made by Cuba and called upon the United States to comply with the DSB's recommendations.  As Venezuela had pointed out on many occasions, such "action without achievement" had continued for a long period of time, and the "reasonable period of time" for 
implementation also seemed to be excessively long.  This situation, namely the failure by certain 
Members to comply with their obligations, ques tioned the effectiveness of the dispute settlement  WT/DSB/M/290 
 Page 5 
 
 
mechanism.  Thus, Venezuela condemned the US economic, comme rcial and fina ncial embargo 
policy vis-à-vis Cuba, and urged the United States to end it.  
14. The representative of Brazil  said that his country thanked the United States for its status 
report.  Once again, the United States reported lack of progress in its efforts to achieve compliance with the DSB's rulings and recommendations in this  dispute.  Brazil remained concerned about this 
situation and urged the United States to bring its  measures into conformity with WTO disciplines. 
15. The representative of Mexico
 said that his country thanked the United States for its status 
report and urged the parties to resolve this disput e through the legal remedies provided for in the 
DSU.  Mexico noted that any Member that considered  that its rights were being impaired or nullified 
could initiate its own dispute.  Mexico also not ed that the discussion under this Agenda item could 
provide useful input for the ongoing discussions carri ed out in the context of the DSU negotiations. 
16. The representative of Paraguay  said that her country thanked the United States for its status 
report and regretted that, after several years, no pr ogress had been made to resolve this dispute.  
Paraguay, therefore, urged the United States to comply promptly with its WTO obligations.  
17. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.97) 
18. The Chairman  drew attention to document WT/DS184/ 15/Add.97, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
19. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 December 2010, 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.  Details were provided in document WT/DS184/15/Add.3.  With respect to the 
recommendations and rulings of the DSB that were  not already addressed by the US authorities, the 
US administration would work with the US Congress with respect to appropriate statutory measures 
that would resolve this matter. 
20. The representative of Japan
 said that his country thanked the United States for its statement 
and its most recent status report.  Japan noted th at the United States had taken certain measures to 
implement part of the DSB's recommendations in November 2002.  As for the remaining part of the 
DSB's recommendations, Japan hoped that the United States would soon be in a position to report to 
the DSB a tangible progress.  Full and prompt implementation of the DSB's recommendations and 
rulings was "essential to the effective functioning  of the WTO and the maintenance of a proper 
balance of the rights and obligations of Members"  (Article 3.3 of the DSU).  Japan called on the 
United States to fully implement the DSB's recommendations in this long-standing dispute without 
further delay. 
21. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/290 
Page 6  
 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.72) 
22. The Chairman
 drew attention to document WT/DS160/ 24/Add.72, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
23. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 December 2010, in accordance with Article 21.6 of the DSU.  The US administration 
would continue to confer with the EU, and to work  closely with the US Congress, in order to reach a 
mutually satisfactory resolution of this matter. 
24. The representative of the European Union  said that the EU noted that the United States was 
again reporting non-compliance.  The EU remained k een to work with the US authorities towards the 
complete resolution of this dispute. 
25. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.35) 
26. The Chairman  drew attention to document WT/DS291/ 37/Add.35, which contained the status 
report by the European Union on progress in the implementation of the DSB's recommendations in 
the case concerning its measures affecting the a pproval and marketing of biotech products. 
27. The representative of the European Union  said that, once more, the EU noted that its 
regulatory procedures on biotech prod ucts continued to work as foreseen in the legislation.  The 
number of GMOs authorized since the date of establishment of the Panel was thirty-four.  Progress 
had also been made on other applications for au thorization or renewal.  Draft decisions on two 
applications (cotton GHB614, maize MON89034×MON 88017) and a draft decision on the renewal of 
a GM maize (1057) would be sent soon to the Counc il following the vote in the Standing Committee.  
Four more draft applications were expected to  be discussed in the Standing Committee in January 
(MIR604×GA21 maize, BT11×MIR604 ma ize, 281-24-236/3006-210-23 cotton, 
Bt11×MIR604×GA21 maize).  Furthermore, the Eur opean Food Safety Agency had delivered a 
favourable opinion on the renewal of a GM soy bean (MON Ø4Ø32-6).  The EU hoped that the United States and the EU would continue their constructive technical dialogue on which they re-engaged on 20 July.  The EU hoped that this cons tructive approach based on dialogue would allow the 
parties to leave litigation aside. 
28. The representative of the United States
 said that his country thanked the EU for its status 
report and its statement made at the present meeting.  The United States was growing increasingly concerned with the current operation of the EU's regulatory system for biotech products.  At the 
present meeting, the United States would like to highli ght the fact that, since August 2010, the EU had 
not approved even a single one of the dozens of pending biotech product applications.  This absence 
of approvals over the past several months appeared  to be unwarranted, given that a number of the 
pending applications had received positive opinions fro m the EU's scientific food safety authority, and 
simply needed to be allowed to proceed through th e remaining steps in the EU process.  Several of 
those applications were far behind the EU's own time frames for decision-making on biotech 
products.  The United States would also emphasize that those delays resulted in substantial barriers to 
  WT/DSB/M/290 
 Page 7 
 
 
international trade in biotech products. The Un ited States urged the EU to address the ongoing 
problems in the operation of its approval system for biotech products. 
29. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States (WT/DS322/36/Add.15) 
30. The Chairman  drew attention to document WT/DS322/ 36/Add.15, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US measures relating to zeroing and sunset reviews. 
31. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 December 2010, in accordance with Article 21.6 of th e DSU.  As noted in the status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With respect to the outstanding issues, the United States would con tinue to consult with 
interested parties in order to address those issues.   As Members were aware, Japan had requested 
authorization from the DSB to suspend concessions or  other obligations in this dispute, and the 
United States had objected to Japan's request.  Ther efore, pursuant to Article 22.6 of the DSU, the 
matter had been referred to arbitration.  In respon se to a joint request of the United States and Japan, 
on 13 December, the Arbitrator had issued a communication stating that it had decided to suspend its work.  The communication of the Arbitrator ha d been circulated to the DSB as document 
WT/DS322/38.   
32. The representative of Japan
 said that his country thanked the United States for its statement 
and most recent status report.  The United States st ated in its status report that it "will continue to 
consult with interested parties in order to address the [findings contained in [the Appellate Body and 
the panel] reports" adopted by the DSB on 31 Au gust 2009.  Japan took this statement as an 
expression of commitment by the United States to fully implement the DSB's recommendations and 
rulings.  The United States referred to the Article 22.6 Arbitrator's decision to suspend its proceeding 
contained in document WT/DS322/38.  As stated in th e joint request by the parties attached to that 
document, the United States had sought informal  discussions with Japan with respect to 
implementation.  In light of that, Japan had agreed , in good faith, to join the United States in making 
such a request.  Japan understood that the Unite d States was in a process of seriously examining 
possible implementing measures that would address the DSB's recommendations and rulings in this dispute.  Obviously, Japan was closely monitoring  the situation and implementation efforts by the 
United States and was hopeful that full implementa tion would be imminent.  However, it should be 
noted that, as the terms of the suspension of arb itral proceeding made clear, the suspension may be 
terminated at any time at the request of Japan without any precondition.  Once again, Japan called on the United States to meet its commitment by taking  immediate and concrete action so as to resolve 
this dispute.  
33. The representative of the European Union
 said that, despite the recent information provided 
by the United States, the EU would like to reiterate  its disappointment over the lack of progress by the 
United States on compliance with adverse rulings on zeroing in this dispute. 
34. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/290 
Page 8  
 
(f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.12) 
35. The Chairman
 drew attention to document WT/DS350/ 18/Add.12, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning the existence and application of zeroing methodology by the United States. 
36. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 December 2010, in accordance with Ar ticle 21.6 of the DSU.  As noted in that status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With regard to the remaining issues, the United States would continue to consult with interested parties.  
37. The representative of the European Union
 said that the reasonable period of time agreed 
between the parties to this dispute had expired on 19 December 2009.  Currently, two days before the 
one-year anniversary of its expiry, the United Stat es was, once again, reporting non-compliance.  The 
EU noted with concern and disappointment that  no progress toward compliance with the DSB's 
recommendations and rulings in this dispute had been made by the United States.  On the contrary, the 
United States continued zeroing in reviews, which involved products and me asures covered by this 
dispute, as if nothing had happened.  Once again, the EU hoped that its patience and trust were not 
misplaced and continued to urge the United Stat es to reconsider its Section 129 determination 
immediately and to implement without further delay. 
38. 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.6) 
39. The Chairman  drew attention to document WT/DS294/ 38/Add.6, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US laws, regulations and me thodology for calculating dumping margins. 
40. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 December 2010, in accordance with Ar ticle 21.6 of the DSU.  As noted in that status 
report, the United States had already taken a number of steps to implement the DSB's 
recommendations and rulings in this dispute, and w ould continue to consult with interested parties 
with regard to the remaining issues. 
41. The representative of the European Union  said that, not unlike its statements made under the 
previous Agenda items regarding the DS322 and DS350 cases, also under this Agenda item, the EU 
wished to express its disappointment over the lack of progress on the US side – progress overdue since 9 April 2007 – and stressed that it expected nothing more or less than full compliance with the 
DSB's rulings and recommendations.  The EU hoped th at the lengthy internal consultations would 
soon lead to concrete results and that the impos ition of sanctions in this dispute would not be 
necessary. 
42. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting.  WT/DSB/M/290 
 Page 9 
 
 
2. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Union and Japan 
43. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Union and Japan.  He then i nvited the respective representatives to speak. 
44. The representative of the European Union  said that, as had been done many times on previous 
occasions, the EU wished to ask the United States when it would effectively stop to transfer anti-
dumping and countervailing duties to the US industry and hence, put an end to the condemned measure.  The EU clarified that the fact that the United States had stopped disbursing duties collected 
after a certain point in time did not achieve full compliance.  Every disbursement that still took place 
was clearly an act of non-compliance with the DS B's recommendations.  And, once again, the EU 
renewed its call on the United States to abide by its  clear obligation under Article 21.6 of the DSU 
and to submit status reports on im plementation in this dispute. 
45. The representative of Japan
 said that, on 6 December 2010, US Customs and Border 
Protection had published its CDSOA Annual Report for FY 2010 which contained information on 
disbursements made under the CDSOA for FY 2010.2  This demonstrated that the CDSOA remained 
operational.  As US Customs and Border Protection explained, "the distribution process will continue 
for an undetermined period".3  Japan urged the United States to stop illegal distributions and repeal 
the CDSOA, not just in form but in substance, so as to resolve this dispute once and for all.  
According to Article 21.6 of the DSU, the Unite d States was under obligation to provide the DSB 
with a status report in this dispute. 
46. The representative of Brazil  said that his country thanked Japan and the EU for keeping this 
item on the DSB's Agenda.  Brazil urged the United States to stop making disbursements pursuant to the CDSOA, in order to comply with the DSB's re commendations and ruling in this dispute.  As long 
as the United States remained in non-compliance in this  dispute, it was required by Article 21.6 of the 
DSU to provide status reports, the purpose of  which was to keep under surveillance the 
implementation of recommendations and rulings adopted by the DSB. 
47. The representative of Canada
 said that her country wished to thank the EU and Japan for 
placing this item on the Agenda of the present meeting.   As Canada had stated at past meetings, and 
would like to reiterate at the present meeting, Ca nada was of the view that the CDSOA remained 
under surveillance of the DSB until the Un ited States ceased to administer it. 
48. The representative of India  said that his country thanked the EU and Japan for continuously 
bringing this issue before the DSB.  India shar ed their concerns and endorsed their views.  As 
mentioned by previous speakers, the CDSOA remain ed fully operational, allowing for disbursements 
by the US administration to its domestic industry.  This fact affected the rights of WTO Members and 
undermined the credibility of the dispute settlement  mechanism.  India, therefore, urged the 
United States to cease its WTO-inconsistent di sbursements, and fully implement the DSB's 
recommendations and rulings.   
                                                      
2 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/tr ade/priority_trade/add_cvd/cont_dump/annual_report/ 
3 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trad e/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml WT/DSB/M/290 
Page 10  
 
49. The representative of China
 said that her country thanked the EU and Japan for placing this 
item on the Agenda of the present meeting.  Ch ina shared the concerns expressed by previous 
speakers and wished to join them in urging the Unite d States to comply fully with the DSB's rulings in 
this dispute.  
50. The representative of Thailand  said that his country thanked Japan and the EU for continuing 
to bring this matter before the DSB and supporte d the statements made by previous speakers.  
Thailand continued to urge the United States to ce ase the disbursements, repeal the Byrd Amendment 
with immediate practical effect, and resume providing  status reports until such actions were taken and 
this matter was fully resolved. 
51. The representative of the United States  said that, as his delegation had explained at previous 
DSB meetings, the US President had signed the Defi cit Reduction Act into law on 8 February 2006.  
That Act included a provision repealing the Contin ued Dumping and Subsidy Offset Act of 2000.  
Thus, the United States had taken all actions necessary to implement the DSB's recommendations and rulings in these disputes.  The United States reca lled, 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.  With respect to comments regarding further 
status reports in this matter, as the United States had already explained at previous DSB meetings, the 
United States failed to see what purpose would be served by further submission of status reports 
repeating the progress the United States made in th e implementation of the DSB's recommendations 
and rulings. 
52. The DSB took note
 of the statements. 
3. Thailand – Customs and fiscal measures on cigarettes from the Philippines 
(a) Joint request by Thailand and the Philippines for a decision by the DSB (WT/DS371/7) 
53. The Chairman  drew attention to the communication from Thailand and the Philippines 
contained in document WT/DS371/7 and invited th e representative of the Philippines to speak. 
54. The representative of the Philippines  noted that, at the present meeting, the DSB had before it 
a draft decision extending the 60-day time-period in Article 16.4 of the DSU, as applicable to the 
DS371 dispute, until 24 February 2011.  The Philippines recalled that it had taken this course of action for systemic and economic reasons.  While fu lly respecting Thailand's sovereign prerogative to 
regulate its tobacco market, what was at stake for the Philippines in this c ase was very simple.  
Namely, that within whatever regulatory framewo rk Thailand chose for itself, imported cigarettes 
should be treated fairly, both at the border and in the internal market, and in a non-discriminatory and 
transparent manner.  The Philippines' exporting ciga rette manufacturing industry depended on it.  For 
the same reasons, his country would certainly like to see the speedy conclusion of this dispute.  
However, the Philippines were aware of the constrai nts currently faced by the Appellate Body.  As a 
responsible Member, the Philippines were supportive of  the system and, therefore, wished to show 
flexibility.  For that reason, the Philippines had agreed , together with Thailand, to postpone the date of 
adoption or the starting date of any appeal of the Pane l Report in this dispute.  In that respect, he drew 
Members' attention to the procedural agreement atta ched to the draft Decision from which it could be 
inferred that the Philippines would not appeal this Re port.  Finally, he said that the Philippines would 
provide its views and comments on the Report when th at Report would eventually be submitted to the 
DSB for adoption. 
55. The representative of Thailand
 said that the Panel in this dispute had circulated its final 
Report on 15 November 2010.  The 60-day period  within which the DSB was normally obliged to 
decide on the adoption of panel reports that were not appealed, under Article 16.4 of the DSU, would 
expire on 15 January 2011.  Taking into account th e current workload of the Appellate Body, the  WT/DSB/M/290 
 Page 11 
 
 
parties to this dispute had agreed that the 60-day period, as applicable to this dispute, would be 
extended to 24 February 2011.  The parties had al so reached the understanding that a decision of the 
DSB on this extension would be sought at the pr esent meeting.  Thailand would like to express its 
appreciation for the kind cooperation of the Philippines and the Appellate Body in  this dispute.  The 
extension had been agreed between the parties on the understanding that the rights of the parties to the 
dispute with respect to the adoption or appeal of the Panel Report are preserved, as if such an adoption 
or appeal had been requested within the 60 days specified in Article 16.4 of the DSU.  Thailand 
would, therefore, be grateful if the DSB could acced e to the joint request of the parties to extend the 
60-day period. 
56. The DSB took note  of the statements.  
57. The Chairman  proposed that:  "The DSB agree that, upon a request by Thailand or the 
Philippines, the DSB shall no later than 24 Februa ry 2011, adopt the Report of the Panel in the 
dispute:  Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines , contained in 
document WT/DS371/R, unless (i) the DSB decides by c onsensus not to do so or (ii) Thailand or the 
Philippines notifies the DSB of its decision to appeal pursuant to Article 16.4 of the DSU". 
58. The DSB so agreed . 
4. Australia – Measures affecting the importation of apples from New Zealand 
(a) Report of the Appellate Body (WT/DS367/AB /R) and Report of the Panel (WT/DS367/R) 
59. The Chairman  drew attention to the communication from the Appellate Body contained in 
document WT/DS367/16 transmitting the Appellate Body Report on:  "Australia – Measures 
Affecting the Importation of Apples from New Zealand", which had been circulated on 
29 November 2010 in document WT/DS367/AB/R, in acco rdance with Article 17.5 of the DSU.  He 
reminded delegations that the Appe llate Body Report and the Panel Re port pertaining to this dispute 
had been circulated as unrestricted documents.  As Members were aware, Article 17.14 of the DSU required that:  "An Appellate Body report sha ll be adopted by the DSB and unconditionally accepted 
by the parties to the dispute unless the DSB decid es by consensus not to adopt the Appellate Body 
report within 30 days following its circulation to  Members.  This adoption procedure is without 
prejudice to the right of Members to express their views on an Appellate Body report".  
60. The representative of New Zealand
 said that her country welcomed the adoption of the Panel 
and the Appellate Body Reports in the case:  "Aus tralia – Measures Affecting the Importation of 
Apples from New Zealand", and thanked the Panel, the Appellate Body and their respective Secretariats for their hard work.  The findings of the Panel and of the Appe llate Body had confirmed 
New Zealand's long-standing view that Australia 's quarantine measures applied to New Zealand 
apples were neither based on an appropriate risk assessment nor supported by sufficient scientific 
evidence.  The findings supported New Zealand's position throughout this process:  namely, that 
mature and symptomless apples, subject to a sta ndard border inspection, did not pose a phytosanitary 
risk.  All 16 of Australia's measures at issue had b een found to be inconsiste nt with its obligations 
under Articles 5.1, 5.2 and 2.2 of the SPS Agreemen t.  Following adoption of the Reports at the 
present meeting, Australia would be under an obligati on to bring its measures into conformity with its 
WTO obligations.  New Zealand would be working w ith Australian officials to find an effective, 
durable and WTO-consistent solution within a reas onable period of time.  New Zealand hoped that 
consultations would lead quickly to agreement on a reasonable period of time for Australia to bring its 
measures into conformity.  
61. New Zealand welcomed warmly the media rel ease issued jointly by Australian Ministers 
immediately following the release of the Appellate Body Report, in which Ministers had noted the 
Australian Government's acceptance of the outcome of  the case.  Ministers had also indicated that WT/DSB/M/290 
Page 12  
 
Australia would now proceed with a science-based revi ew of the import risk analysis for New Zealand 
apples.  New Zealand looked forward to hearing more  from Australia in this forum about its intentions 
with respect to timely implementation. 
62. The representative of Australia
 said that his country wished to  thank the Panel, the Appellate 
Body and the Secretariat for their work.  Australia  acknowledged the time and efforts dedicated to this 
legally and technically complex dispute.  He said that on 30 November 2010, the Australian 
Government had announced its intentions to impl ement the DSB's recommendations and rulings in a 
manner consistent with Australia 's WTO obligations.  Australia acknowledged that the Appellate 
Body had reversed the Panel's findings on Artic le 5.6 of the SPS Agreement, as Australia had 
requested it to do.  However, Australia consider ed there were aspects of the Appellate Body's 
reasoning on Article 5.6 that appeared problematic, a nd in particular in relation to the standard of 
review to be applied by panels in dealing with an Article 5.6 claim.  
63. Australia recalled that in the "EC - Hormones" dispute, the Appellate Body had clarified that 
Article 11 of the DSU "bears directly" on the standard  of review to be applied by panels in the 
assessment of facts in proceedings under the SPS Agreement.4  The Appellate Body had stated that:  
"So far as fact-finding by panels is concerned, thei r activities are always constrained by the mandate 
of Article 11 of the DSU:  the applicable standard is neither de novo  review as such, nor 'total 
deference', but rather the 'objective assessment of the facts'."5  The Appellate Body had recalled its 
statement in relation to Article 11 of the DSU in subsequent reports, including "US/Canada - 
Continued Suspension".6  In doing so, the Appellate Body ha d not suggested that its guidance was 
limited to particular provisions of the SPS Agreemen t, such as Article 5.1.  However, in its Report on 
"Australia - Apples", the Appellate Body ha d now stated:  "Caution not to conduct a de novo  review is 
appropriate where a panel reviews a risk assessme nt conducted by the importing Member's authorities 
in the context of Article 5.1.  However, the situation is different in the context of an Article 5.6 claim.  
The legal question under Article 5.6 is not whether the authorities of the importing Member have, in 
conducting the risk assessment, acted in accordance with the obligations of the SPS Agreement.  
Rather, the legal question is whether the importing Me mber could have adopted a less trade-restrictive 
measure.  This requires the panel itself to obj ectively assess, inter alia, whether the alternative 
measure proposed by the complainant would achieve  the importing Member's appropriate level of 
protection."7  In this statement, the Appellate Body had indicated that, while it was appropriate not to 
conduct a de novo  review in the context of Article 5.1, th e "situation is different" in relation to an 
Article 5.6 claim.  The Appellate Body appeared to have suggested that a panel could conduct a de 
novo  review in relation to an Article 5.6 claim.  This would constitute a significant departure from the 
Appellate Body's long-standing guidance that Ar ticle 11 of the DSU precluded such a review. 
64. Australia was concerned that the reasoning of th e Appellate Body in this part of its Report 
would create difficulty for a panel in applying Articl es 5.1 and 5.6 where a complainant brings claims 
under both provisions.  In such a case, it may be th at the importing party had in its risk assessment 
considered the alternative measure proposed by th e complainant in its Article 5.6 claim, and found 
that the alternative would not meet its appropriate  level of protection.  Applying the standard of 
review relevant to Article 5.1, the panel may find the risk assessment "objectively justifiable"8, and 
find no breach of Article 5.1.  However, following what the Appellate Body had now said, the panel 
would need to take a different approach in applying  Article 5.6.  Rather than determining whether the 
importing Member's consideration of whether the a lternative measure met its appropriate level of 
protection was objectively justifiable, the panel woul d need to answer that question based on its own 
judgement.  In exercising its own judgement, the panel might find that the proposed alternative 
                                                      
4 Appellate Body Report, "EC - Hormones", para. 116. 
5 Appellate Body Report, "EC - Hormones", para. 117. 
6 Appellate Body Report, "US/Canada - Continued Suspension", para. 589. 
7 Appellate Body Report, "Australia - Apples", para. 356. 
8 Appellate Body Report, "US/Canada - Continued Suspension", para. 590.  WT/DSB/M/290 
 Page 13 
 
 
measure would meet the importing Member's appropriate  level of protection, and thus find a breach of 
Article 5.6.  In Australia's view, such an outcome  would be incongruous:  the finding on Article 5.6 
would completely undermine the finding on Artic le 5.1, in the process rendering meaningless the 
Appellate Body's clear guidance on the interpretati on of that provision.  In sum, Australia was 
concerned that the Appellate Body had introduced a significant element of uncertainty on standard of 
review which would make the task of panels more  difficult in reviewing Members' compliance with 
key provisions of the SPS Agreement.  Finally a nd notwithstanding those concerns, he wished to 
reiterate that Australia would proceed to implem ent the DSB's recommendations and rulings in this 
dispute. 
65. The representative of the United States  said that his country had followed this dispute very 
closely as a third party.  As Members were awar e, the United States had previously brought a WTO 
dispute (DS245) relating to apple import restrictions  adopted by a Member other than Australia.  The 
United States also had an application pending before Australia to allow market access for US apples.  
The key finding in this dispute was that Australia's measures restricting imports of apples were inconsistent with Australia's obligations under Artic les 2.2, 5.1 and 5.2 of the SPS Agreement.  The 
United States appreciated the comprehensive and t houghtful analysis of the Panel and the Appellate 
Body in making those findings.  The United States also noted that the Appellate Body had not upheld the Panel's findings under Article 5.6 of the SPS Agre ement, including the finding that a limitation of 
apple imports to mature symptomless apples would ac hieve Australia's appropriate level of protection 
with regard to fire blight.   
66. With regard to this finding, the United Stat es emphasized that the Appellate Body had not 
reached the merits of the issue.  Rather, the Appe llate Body had found that the Panel had adopted an 
improper approach to its Article 5.6 analysis, an d that the Panel's findings were not sufficiently 
detailed to permit the Appellate Body to complete th e Article 5.6 analysis.  Based on a review of the 
scientific evidence, as well as the findings by this Pa nel and by the Panel in DS245, it appeared that a 
measure restricting imports to mature symptomless apples would in fact meet Australia's appropriate 
level of protection. 
67. Finally, as a technical note, the United States noted that the Appellate Body had stated (in 
paragraph 170 of its Report) that a "unique" feature of the SPS Ag reement was that it defined the 
measures that were subject to its disciplines.  Howe ver, there were other covered agreements that also 
defined the measures subject to their disciplines.  The United States looked forward to implementation 
by Australia of the DSB's recommendations and rulings. 
68. The DSB took note
 of the statements, and adopted  the Appellate Body Report contained in 
WT/DS367/AB/R and the Panel Report contained in WT/DS367/R, as modified by the Appellate 
Body Report. 
__________