RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/256 
14 November 2008 
 (08-5549) 
Dispute Settlement Body 
23 September 2008  
 
 
    
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 23 September 2008  
 
Chairman:  Mr. Mario Matus (Chile) 
 
 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...................................................................................6  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........6  
(d) European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Communities..............................................................7  
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 Communities and Japan ................................................................9  
3. European Communities and its member States – Tariff treatment of certain 
information technology products...........................................................................................10  
(a) Request for the establishment of a panel by the United States, Japan and the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu .....................................................10  
4. Japan – Countervailing duties on dynami c random access memories from Korea..........12  
(a) Recourse to Article 21.5 of the DSU by Korea:  Request for the establishment of a 
panel.......................................................................................................................... ................12  
 WT/DSB/M/256 
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  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.70) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.70) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.45) 
 
(d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.8 – WT/DS292/31/Add.8 – WT/DS293/31/Add.8) 
 1. The Chairman
 recalled that Article 21.6 of the DSU required that "unless the DSB decides 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establishment of the reasonable 
period of time pursuant to paragraph 3 and shall remain on the DSB's Agenda until the issue is 
resolved".  He proposed that the four sub-items to which he had just referred be considered separately. 
(a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.70) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.70, 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 9 September 2008, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, a number of legislative proposals that would implement the DSB's recommendations and 
rulings in this dispute had been introduced in th e current Congress, in both the US Senate and the US 
House of Representatives.  The US administratio n continued to work with the US Congress to 
implement the DSB's recommendations and rulings. 
4. The representative of the European Communities  said that, for some months, the 
United States had expressed its regret that the EC  had returned to criticizing its commitment to 
intellectual property rights and the TRIPS Agreemen t.  Section 211 had been condemned more than 
six years ago.  In those six years, the United States had failed to take any significant steps to implement the DSB's ruling.  The most recent stat us report, once again, showed no progress and the 
EC was confronted with exactly th e same lack of action in the Sect ion 110 dispute.  The EC could not 
but contrast this with the US assertion that it w as second to none in the protection of intellectual 
property rights and the EC wished that this woul d be evidenced by appropriate action in the two 
disputes in question.  To the EC and no doubt to other WTO Members as well, these were legitimate questions and certainly not regre ttable and unfounded criticism.  To finish on a more positive note, 
she said that bipartisan bills were pending in the US Congress to repeal Section 211.  As had already 
been stated on several occasions, the EC sincerely hoped that the United States would finally progress 
and bring itself into compliance with its TRIPS obligations. 
5. The representative of Cuba
 said that the national treatment obligation was laid down in the 
Paris Convention and the WTO TRIPS Agreement.  It was a fundamental principle of the Paris Convention, which constituted the basis upon which the international intellectual property system had 
developed over the past 125 years.  The most-f avoured-nation treatment obligation, which was  WT/DSB/M/256 
 Page 3 
 
 
  contained in Article I of the GA TT 1994, and was considered fundamental in a rules-based system for 
trade in goods, had been extended under the TRIPS Agreement to the area of intellectual property 
rights.  As the body of final instance that review ed the legal aspects of pa nel reports, the Appellate 
Body had concluded in 2002 that Section 211, whic h would have been in force for ten years in 
October 2008, was inconsistent with the principl es of national and most-favoured-nation treatment, 
which were the cornerstones of the global trading sy stem.  As it had done so many times already, the 
United States continued to disregard the obliga tions it had undertaken.  The principle of pacta sunt 
servanda , which provided that every treaty was binding up on the parties to it and must be considered 
inviolable, was systematically ignored by the resp ondent in this and in other cases under the DSB's 
consideration.   
6. Pursuant to Article 23 of the DSU, Members s eeking the redress of a violation of obligations 
under the covered agreements shall have recourse to the rules and procedures of the DSU.  That 
provision was not optional and was a way of avoi ding the damaging consequences that unilateral 
action entailed for the multilateral trading system .  A Member's non-complia nce, like in the case 
under consideration, called into question the obligati on of resorting to the Understanding in order to 
resolve a dispute.  One must not forget that the settlement of disp utes and the implementation of the 
DSB's rulings were essential to maintaining the balance between the rights and obligations of 
Members.  The system was weakened and eroded by an accumulation of unresolved conflicts and non-implemented decisions.  The Section 211 case was not the only unresolved case, as demonstrated by the Agenda of the present meeting.  
7. Cuba recalled that the issue of intellectual property rights had been, once again, on the 
Agenda of the G-8 Summit held in July 2008 in Jap an.  That matter had been discussed along with 
other issues of critical importance, such as the global economic crisis, food security, and global 
warming.  A call had been made to conclude the Anti-Counterfeiting Trade Agreement in 2008, and 
to accelerate the discussions on the Substantive Pate nt Law Treaty.  The leaders of the richest 
countries were highly concerned about the non-enforcement of these rights by other countries, but 
they were not when some of the Members of that exclusive club repeatedly failed to abide by their 
commitments.  According to experts on the subject, intellectual property rights were the latest and the 
greatest competitive advantage enjoyed by the top i ndustrialized countries.  Therefore, it was not 
unusual to find the issue at the heart of their curre nt debates.  The United States, on the other hand, 
had opted for the violation of fundamental principl es of the TRIPS Agreement, as the WTO Appellate 
Body noted in this particular case more than si x years ago.  However, that Member not only 
demanded high levels of protection in the international arena, but also continued to make claims in the 
WTO.  This clearly reflected an offensive and unacceptable double standard.  Prolonged lacked of 
compliance, repetitive and false status reports, stat ements in which the United States continued to 
maintain that it was the most compliant Member, and turning of a deaf ear to the claims of many other 
Members and to irrefutable facts were actions whic h affected not only one Member in particular, but 
also the system itself, by undermining its credibility .  Cuba reiterated how im portant it was that to 
take appropriate action to ensure that the DS B's recommendations and ru lings were implemented 
through the immediate repeal of Section 211 by the United States. 
8. The representative of China
 said that his country believed that full implementation of the 
adopted DSB's rulings and recommendations, namely the withdrawal of the illegal measures, was of 
most importance for the effective functioning of the WTO.  China noted that the measure taken by the 
United States in this dispute nullified not only the interests of the EC under the TRIPS Agreement, but 
also the interests of other WTO Me mbers.  Although every Member of the WTO had the right to take 
recourse to the dispute settlement system, it was defi nitely a heavy burden for developing countries to 
do so due to the lack of human and financial res ources.  Therefore, it was quite understandable that 
Cuba expected to benefit from the full and faithful implementation of the DSB's ruling in this dispute, 
and to pay a lot of attention to the status of pending disputes.  China noted that the United States had, 
on various occasions, asked other WTO Members to im plement and improve protection of intellectual WT/DSB/M/256 
Page 4  
 
  property rights.  However, as this case had demons trated, the laws of the United States seriously 
violated the TRIPS Agreement, which represented minimum standards of IPR protection.  In this regard, China wished to join the EC and Cuba in  urging the United States to take proper measures 
faithfully to enforce the intellectual property ri ghts according to the TRIPS Agreement and to 
implement the decision of the DSB in this dispute as soon as possible.  
9. The representative of India
 said that her country thanked the United States for its status report 
and the statement made at the present meeting.  In dia appreciated the steps taken by the United States 
thus far to repeal Section 211 as steps in the positive direction, however, India noted that there was no 
substantive change in the situation.   India felt compelled, yet again, to stress that the principle of 
prompt compliance was missing in this dispute.  I ndia, therefore, wished to renew its systemic 
concerns about this situation of non-compliance as this continuous non-compliance situation by WTO 
Members clearly undermined the credibility and co nfidence that Members reposed in the system. 
10. The representative of Viet Nam  said that his country wished to thank the United States for its 
status report and noted that this item had remained  on the DSB's Agenda for a long time.  Viet Nam 
called on the United States to take necessary and urgent steps to fully comply with its WTO 
obligations. 
11. The representative of Thailand  said that his country thanked the United States for its status 
report.  Like previous speakers, Thailand was con cerned about the systemic implications of this 
dispute.  Non-implementation of the DSB's rulings  and recommendations undermined the rules-based 
multilateral trading system.  Thailand, therefore, ca lled on the United States to take the necessary and 
urgent steps to comply with its obligations under the TRIPS Agreement.   
12. The representative of Brazil  said that his country thanked the United States for its status 
report concerning the surveillance of implementati on in this dispute and expressed, once again, its 
concerns about this case.  As stated before, it was Brazil's understanding that, despite all the 
endeavours of the US administration in working together with the US Congress, the non-compliance 
situation remained.  As a general remark, it was most unfortunate that pr oviding detailed and up-to-
date information in status reports had become a cu stom that was honoured more in breach than in the 
observance.  Perhaps the United States and other delegations could remind the DSB of specific 
actions or initiatives that they were undertaking in  their respective status reports.  Now, without 
prejudice to the suggestion, Brazil strongly urged the United States to fully implement the DSB's recommendations in this dispute. 
13. The representative of the Bolivar ian Republic of Venezuela
 said that her delegation noted the 
status report submitted by the United States, and unde rlined the critical importance of prompt and 
satisfactory compliance with the DSB's recommendati ons for the proper functioning of the dispute 
settlement system.  It was necessary for the United Stat es to provide redress to the affected parties.  
This was the only way for the United States to sh ow its commitment to fully abide by its WTO 
obligations.  Her delegation, once again, requested th e parties to find the appropriate means to put an 
end to this dispute. 
14. The representative of Nicaragua  said that her delegation wished to support previous speakers 
and noted the lack of compliance with the DSB's re commendations and rulings in this dispute.  Being 
a WTO Member did not just imply benefiting from multilateral trade, but it also implied respecting and implementing the DSB's recommendations and rulings.  Under the DSU, Members had 
undertaken to fully comply with all the DSB's r ecommendations and rulings.  Her delegation wished 
to reiterate its systemic concerns regarding the proper functioning of the multilateral dispute 
settlement system, and called for urgent measures to be taken towards the implementation of the 
recommendations and rulings of this case.  WT/DSB/M/256 
 Page 5 
 
 
  15. The representative of Mexico  said that the DSU required prompt compliance with the DSB's 
recommendations and rulings in order to ensure the e ffective solution of disputes to the benefit of all 
Members, as provided for in Article 3.3 of the DSU.  In this respect, Mexico urged the parties to this 
dispute to adopt necessary measures to ensure compliance with the DSB's recommendations and 
rulings, which would benefit all Members. 
16. The representative of the United States  said that his country regretted that the EC was again 
suggesting that US actions in this dispute ha d somehow undermined the authority of the TRIPS 
Agreement.  The United States failed to unders tand how its commitment to implement the DSB's 
recommendations and rulings in this dispute and its efforts to comply could undermine the "authority" 
of the TRIPS Agreement.  To the contrary, these af firmed its commitment to the TRIPS Agreement.  
The United States would imagine that the EC felt sim ilarly about its many years of efforts to comply 
with its obligations under the SPS Agreement and the GATT 1994.  On the other hand, the 
United States welcomed the EC's recognition of the bipa rtisan bills that had been introduced in the US 
Congress.  The United States reiterated that the US administration continued to work with the US Congress to implement the DSB's recommendations and rulings in this dispute.  The United States 
also regretted very much that some Members – in cluding some whose record of protecting intellectual 
property rights appeared less than robust – continue d to criticize the US commitment to intellectual 
property rights.  These criticisms were completely  unfounded.  It was of course true that the 
United States remained a strong advocate of s ubstantial protections fo r intellectual property 
internationally.  However, the United States was al so second to no one in providing strong intellectual 
property protection within its own territory.  The United States also looked forward to continuing to 
work with all Members to secure the protection of  intellectual property rights around the world.  
Finally, the United States regretted that one Memb er had suggested that the US administration was 
not providing sufficient details of how it was working with the US Congress to implement the recommendations and rulings in this dispute.  The United States recalled again that it was not always 
possible or appropriate to recount internal governme ntal efforts to pass legislation.  And, as the 
United States had stated previously, the United Stat es had heard similar criticisms about the level of 
detail of US status reports in other disputes in which the US Congress ultimately had passed legislation. 
17. The representative of Cuba
 said that his delegation wished to respond to the comments made 
by the United States.  First, it was difficult to believe that the United States was fully committed to 
compliance with the obligations under the TR IPS Agreement and the DSU provisions since 
Section 211 had been in force for more than 10 ye ars.  More than six years had now past since the 
DSB had adopted the recommendations and rulings in this dispute.  Furthermore, on the Agenda of 
the present meeting, several items relating to comp liance involved the United States.  There was not 
much to report with regard to pending legislations in the US Congress.  Over the past 10 years, there 
had been different draft bills – some intended to amend or modify Section 211 and others to cover up 
Section 211.  Those draft bills, like those currently under consideration by the US Congress aimed at 
repealing or modifying Section 211 to bring it into compliance with the WTO rules, had not been supported by the US administration.  The successive US administrations, together with the Republican leadership of some Congressional Committees, had manoe uvred in order to hinder the approval of any 
drafts which would put the US legislation into compliance with the WTO rules and intellectual property rights, thereby complying with the legal obl igation under the DSU.  Cuba believed that this 
matter must not continue indefinitely without a so lution because this lack of compliance undermined 
the credibility of the TRIPS Agreement, the DS U provisions and the DSB.  Furthermore, it 
undermined the credibility of the WTO Agreemen ts and the principles upon which the WTO was 
based.  Large and small, poor and rich countries, wh atever their status, they all benefited from the 
same rights and all had the same obligations.  
18. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/256 
Page 6  
 
  (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.70) 
19. The Chairman
 drew attention to document WT/DS184/ 15/Add.70, 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. 
20. The representative of the United States  said that his country had provided a status report in 
this dispute on 9 September 2008, in accordance with Article 21.6 of the DSU.  As of 23 November 2002, the US authorities had addresse d the DSB's recommendations and rulings with 
respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty investigation at issue in this dispute.  Details  were provided in document WT/DS184/15/Add.3.  The 
US administration would continue to work with the US Congress with respect to the 
recommendations and rulings of the DSB that had not already been addressed by the US authorities 
by 23 November 2002. 
21. The representative of Japan
 said that his country thanked the United States for its statement 
and the most recent status report.  Since the United States had taken certain measures to implement 
part of the DSB's recommendations in November 2002, as reported by the United States, there had 
been little tangible progress in this long-standing di spute regarding the remaining part of the DSB's 
recommendations and rulings.  A full and prompt implementation of the DSB's recommendations and 
rulings was "essential to the effective functioning  of the WTO and the maintenance of a proper 
balance of the rights and obligations of Members".1  Japan called on the United States to redouble its 
efforts to this end. 
22. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.45) 
23. The Chairman  drew attention to document WT/DS160/ 24/Add.45, 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. 
24. The representative of the United States  said that his country had provided a status report in 
this dispute on 9 September 2008, in accordance with Article 21.6 of the DSU.  The US administration would work closely with the US C ongress and would continue to confer with the EC, 
in order to reach a mutually satisfactory resolution of  this matter.  In this regard, the United States 
shared the EC's goal of discussing how a mutually satisfactory solution to this dispute could be 
achieved. 
25. The representative of the European Communities
 noted that at the present meeting before the 
DSB was the 45th status report by the United Stat es on continued non-compliance.  As the EC had 
made clear many times, the EC was always ready to be constructive.  However, the EC could not be 
constructive on its own.  The EC was left, once mo re, to express its frustration that it was not getting 
closer to the settlement of this case.   
26. The representative of China  said that, once again, this case demonstrated that the 
United States did not provide effective and adequate  protection of intellectual property rights.  China 
wished to join others in urging the United States to take proper m easures to enforce the intellectual 
                                                      
1 Article 3.3 of the DSU.  WT/DSB/M/256 
 Page 7 
 
 
  property rights in good faith according to the TRIPS Agreement, and to implement the decision of the 
DSB in this dispute as soon as possible.  
27. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.8 – WT/DS292/31/Add.8 – 
WT/DS293/31/Add.8) 
28. The Chairman  drew attention to document WT/DS291/37/Add.8 – WT/DS292/31/Add.8 – 
WT/DS293/31/Add.8, which contained the status report by the European Communities on progress in 
the implementation of the DSB's recommendations in  the case concerning the EC's measures affecting 
the approval and marketing of biotech products. 
29. The representative of th e European Communities  said that the EC was happy to report, once 
more, that good faith cooperation between the compla inants and the EC continued.  The EC kept a 
regular dialogue with the three complainants and held  regular technical meetings which were aimed at 
addressing all relevant biotech-related issues of thei r concern.  Progress in the processing of pending 
applications and on national measure s continued.  Sixteen authorizations had been granted since the 
establishment of the WTO panel, seven in 2007 only.  One authorization (A2704-12 soybean) had been granted on 8 September 2008 and another one was expected in the coming days/weeks (LL25 
cotton).  One draft authorization decision on oilseed  rape T-45 would be tran smitted to the Council.  
Following the clarification by EFSA on concerns re lated to the relevant antibiotic marker gene, 
expected by mid-December, the EC might be in th e position to authorize four more GM events (one 
GM potato and three maize hybrids) before the end of the year or in early 2009.  The EC believed that 
given the inevitably sensitive nature of biotech i ssues, dialogue was the appropriate way forward and 
remained open to continue discussions with the th ree complainants.  The seventh technical meeting 
between the EC and the United States had already been  tentatively scheduled for October.  Finally, 
with regard to the statement made by Brazil, under Item 1(a) of the Agenda of the present meeting, 
concerning the specificity of status reports, she hoped that she had given sufficient detail in her 
intervention, but would also be happy to deve lop individual aspects of product applications or 
authorizations covered by the Panel Reports. 
30. The representative of Canada
 said that her country thanked the EC for its statement.  As 
mentioned at the previous meeting, Canada had ag reed to an extension of the reasonable period of 
time for the EC to bring itself into compliance with the DSB's findings until 31 December 2008.  
While Canada believed that progress was being ma de, it continued to have concerns about the 
ongoing timeliness and the predictability of the EC's approval system for biotech products, as well as 
continuing, and new member State bans on the cultiv ation and marketing of bi otech products.  Canada 
would continue to monitor the situation closely. 
31. The representative of Argentina  said that his country, as mentioned by the EC, had continued 
to work on solving pending issues.  Argentina woul d continue working both with the parties and in 
particular with the EC and wished to thank all fo r the efforts made up until now as well as the EC for 
the report on progress. 
32. The representative of the United States  said that his country had filed its consultation request 
in this dispute over five years ago, in May 2003.  At that time, the EC's moratorium on approvals of 
biotech products had resulted in the United States be ing shut out of major EC markets for grains and 
grain products.  The DSB had adopted its recommenda tions and rulings nearly two years ago, finding 
that the EC's moratorium had resulted in "undue de lay" in breach of the EC's obligations under the 
SPS Agreement.  The reasonable period of time for th e EC's compliance in the dispute brought by the WT/DSB/M/256 
Page 8  
 
  United States (DS291) had expired in January 2 008.  Unfortunately, over five years since the 
initiation of the dispute, almost two years since the adoption of the rulings and recommendations, and 
over eight months since the end of the reasonable period of time, US grain producers remained shut 
out of major EC markets.  Currently, approximately  50 biotech product applications were backed up 
in the EC's approval system.  In its statement at the present meeting, the EC had claimed progress on 
the basis of the recent approval for import and use of  an herbicide-tolerant soybean variety.  This was 
only the second decision in all of calendar year 200 8 on a pending biotech application.  Rather than 
being a symbol of progress, the EC's handling of th is soybean variety instead helped illustrate why the 
United States had serious concerns with the EC's approval system.   
33. This variety of soybean had first been subm itted to the EC for approval in October 1998.  
Since that time, ten different countries, including Japan, New Zealand, and South Africa, had found 
this soybean variety to be safe a nd had approved its use.  Until just a few days ago, however, the EC 
failed to make a decision on this product.  Indeed , in the dispute brought by Argentina (DS293), the 
DSB had found that the EC had breached its ob ligations under the SPS Ag reement because it had 
failed to complete its approval procedure fo r this soybean variety without undue delay.
2  Fourteen 
months ago, in July 2007, the product had r eceived a positive safety assessment from the EC's own 
scientific committee.  EC member  States, however, had failed to follow the EC's own scientific 
assessment and had failed to grant approval under the EC's "qualified majority" system of voting.  The 
application had been resubmitted to member States, th is time at the level of the EC Council.  Despite 
the EC's own positive safety assessment, EC member Stat es had again failed to grant approval.  Only 
after an additional waiting period had the product fina lly been approved for import and use in the EC.  
In sum, the DSB had found that this product applica tion was subject to "undue delay" in breach of 
SPS rules, EC member States had failed to act in  accordance with the EC's own scientific safety 
assessments, and the approval of this soybean va riety had taken nearly 10 years from the time an 
application had first been submitted.  The EC's hand ling of this herbicide-tolerant soybean thus did 
not speak favourably of the EC's record, and had only emphasized the problems with the functioning 
of the EC's biotech approval system.  Although th e United States had growing concerns with the EC's 
actions concerning the approval of biotech products , the United States was confident that the EC 
could address these concerns if it found the political will to do so.  The United States continued to 
urge the EC to take the steps n ecessary to resolve this dispute.  
34. The representative of th e European Communities  said that if she was not totally mistaken, the 
soybean product that the United States had been refe rring to was not covered by the US Panel request 
and consequently not by the Panel's ruling that  the United States had obtained in this case.  
Furthermore, to the extent this example was meant to  illustrate a so-called backlog in the applications, 
she wished to re-iterate that the GMO regulat ory regime was working normally.  Its functioning 
should not be rigidly assessed in terms of number of authorizations per year since this was dependent 
on various products and case specific elements and, in particular, on the time needed by applicants to 
answer requests from EFSA on additional scientific information.  This being said, the EC did estimate 
that the current yearly rate of authorization would roughly be the same as in 2007.    
35. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
                                                      
2 "European Communities – Measures Affecting the Approval and Marketing of Biotech Products" 
(WT/DS293/R), para. 7.2019(ii);  para. 8.53(a)(iii).   WT/DSB/M/256 
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  2. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Communities and Japan 
36. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the EC and Japan.  He then invited the respective representatives to speak. 
37. The representative of the European Communities  said that the EC welcomed Japan's 
announcement at the previous DSB meeting that it w ould maintain its additional duties on certain US 
products as a result of the incomplete implementati on of the DSB's recommendations and rulings in 
this dispute.  As already mentioned in previous meetings, the United States was indeed now preparing 
the eighth distribution of anti-dumping and count ervailing duties under the Continued Dumping and 
Subsidy Offset Act.  As from next month, the United States would start distributing the duties 
collected in the latest fiscal year on imports made  prior to 1 October 2007.  The EC wished to ask 
again the United States if and what steps it intended to take to stop the transfer of those anti-dumping 
and countervailing duties to its industry and finally put an end to the condemned measure.  The EC 
also renewed its call on the United States to abide by its clear obligation under Article 21.6 of the 
DSU and to submit implementati on reports in this dispute. 
38. The representative of Japan  said that preparatory works for a new round of distributions for 
FY 2008 publicly initiated in June 20083 appeared to be well underway, as shown by the US Customs' 
recent publication of the list of "certifications"4, or the list of the claims filed by the US domestic 
producers for FY2008 distributions.  These actions demonstrated that the CDSOA remained operational or, in the words of the US Customs,  "the distribution process will continue for an 
undetermined period".
5  Japan urged the United States to immediately terminate the 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 DS U, the United States was under obligation to provide 
the DSB with a status report in this dispute "until the issue is resolved".  Japan reserved all its rights 
under the DSU until the United States came into full compliance with its obligations. 
39. The representative of the United States  said that, as his country had already explained at prior 
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 we lcomed the EC's recognition that the 2006 Deficit 
Reduction Act did not permit the distribution of  duties collected on goods entered after 
1 October 2007.  The United States, therefore, did not understand the purpose for which the EC and 
Japan had inscribed this item on the Agenda of the present meeting.  
40. The representative of Canada
 said that her country agreed with the EC and Japan that the 
Byrd Amendment remained subject  to the surveillance of the DS B until the United States ceased to 
administer it.  
41. The representative of India  said that her country thanked the EC and Japan for maintaining 
this issue before the DSB once again.  India fully shared their concerns.  As mentioned by previous 
speakers, the latest action demonstrated that CD SOA remained operational and the United States was 
still distributing disbursements under the CDSOA to the US domestic industry.  These disbursements 
                                                      
3 See US Customs and Border Protection's website at:  
http://www.cbp.gov/linkhandler/cgov/trade/priority_trade/a dd_cvd/cont_dump/prelim_repor t08.ctt/prelim_report08.pdf . 
4 Idem. 
http://www.cbp.gov/linkhandler/cgov/trade/priority_trade /add_cvd/cont_dump/cdsoa_08/fy 08_certs.ctt/fy08_certs.pdf . 
5 Id. http://www.cbp.gov/xp/cgov/trade/priority _trade/add_cvd/cont_dump/cont_dump_faq.xml . WT/DSB/M/256 
Page 10  
 
  made by the United States to its domestic industr y under the Byrd Amendment affected the rights of 
other WTO Members.  It was India's concern that  non-compliance by Members led to a growing lack 
of credibility of the WTO dispute settlement system.  India, therefore, urged the United States to cease its WTO-inconsistent disbursement.  India supported the view that continued surveillance by the DSB 
was needed. 
42. The representative of Brazil
 said that his country wished to point out that the disbursements 
made by the United States to its domestic industr y under the Byrd Amendment continued to be in 
force, affecting the rights of other WTO Members.  Brazil reiterated that full implementation of the 
DSB's recommendations and rulings had not yet been achieved. 
43. The representative of Thailand  said that his country thanked the EC and Japan for bringing 
this matter before the DSB.  Thailand continued to  be disappointed at the United States' maintenance 
of these WTO-inconsistent disbursements.  Tha iland thus urged the United States to cease the 
disbursements, repeal the Byrd Amendment with immediate practical effect, and resume providing 
status reports until such actions were ta ken and this matter was fully resolved. 
44. The DSB took note  of the statements.  
3. European Communities and its member States – Tariff treatment of certain information 
technology products  
(a) Request for the establishment of a panel by the United States, Japan and the Separate 
Customs Territory of Taiwan, Penghu, Kinm en and Matsu (WT/DS375/8 – WT/DS376/8 – 
WT/DS377/6) 
45. The Chairman  recalled that the DSB had considered this matter at its meeting on 
29 August 2008 and had agreed to revert to it.  At the present meeting, he drew Members' attention to 
the joint communication from the United States, Japan and the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu contained in documen t WT/DS375/8 – WT/DS376/8 – WT/DS377/6, and 
invited the respective representatives to speak.  
46. The representative of the United States  said that at the DSB meeting held on 29 August, the 
United States had briefly described its concerns wi th the duties currently im posed by the European 
Communities and its member States on three inform ation technology products:  set top boxes with a 
communication function, flat panel computer mon itors, and multifunction digital machines.  As the 
United States had noted, these were products covere d by the Information Technology Agreement, one 
of the signature achievements of the WTO.  The EC and its member States  had promised duty-free 
treatment to those products, and that commitment w as reflected in their WTO tariff schedules.  As 
explained in the joint panel request, the EC's d ecision to impose duties on these products was contrary 
to Article II of the GATT 1994.  The United States had spent over two years trying to work with the EC to address its concerns, without success, including in  formal consultations held in June and July.  
The EC's assertion at the August meeting that litigati on would not solve this problem was particularly 
remarkable given the amount of effort that had been expended by the co-complainants in trying to 
address their concerns without recourse to disput e settlement.  The EC's actions not only impeded 
trade in these products, they also threatened to undermine tariff commitments on information 
technology products, which were so important to  trade and investment in both developing and 
developed countries.  Therefore, the United States, together with Japan and Chinese Taipei, requested 
for a second time that the DSB establish a panel to ex amine the matters set forth in their joint panel 
request, with standard terms of reference. 
47. The representative of Chinese Taipei
 said that at the 29 August DSB meeting, his delegation 
had acted jointly with the United States and Japan to request that a panel be es tablished to hear their  WT/DSB/M/256 
 Page 11 
 
 
  dispute with the EC concerning the tariff treatment by the EC and its member States of certain 
information technology products.  At the present meeting, Chinese Taipei  was making the same 
request with the United States and Japan that a pa nel be established to adjudicate this dispute.  
Chinese Taipei had already explained the detail of it s rationale for making this panel request at the 
previous DSB meeting.  Briefly, the EC and its  member States had promised to accord duty-free 
treatment to certain products covered by the Info rmation Technology Agreement (ITA), and this was 
reflected in their WTO Schedule of Concessions.  However, the EC's existing measures imposed tariffs on some of the products covered by the IT A, including flat panel displays, set-top boxes with 
communication functions, and multifunctional digital m achines.  By doing so, the EC and its member 
States had violated their obligations under the GATT  1994.  As one of the largest suppliers of IT 
products in the world, Chinese Taipei's trade inte rests had been seriously injured by the EC's 
measures.  This dispute was not only of enorm ous economic significance, but the measures imposed 
by the EC and its member States also raised serious sy stemic concerns.  In its attempts to resolve this 
dispute, Chinese Taipei had made extreme efforts in consultations with the EC, but had found no 
mutually satisfactory solution.  Chinese Taipei here by requested, once again, jointly with the United 
States and Japan, that a panel be established accord ing to Article 6 of the DSU and Article XXIII of 
the GATT 1994. 
48. The representative of Japan
 said that his country supported the statements made by the 
United States and Chinese Taipei.  As stated by them, Japan, the United States and Chinese Taipei, 
once again, jointly requested that a panel be established by the DSB to examine the matter set out in 
their panel request.  There was no need to repeat  Japan's position in this dispute at the present 
meeting, because it had been explained in detail in th e joint panel request.  In short, imports to the EC 
of certain ITA products at issue in this dispute we re subject to duties, instead of being provided duty-
free treatment as committed and required by the existi ng EC Schedules.  As a result, duties had been 
applied to those products in excess of those set  forth in the Schedules, and commerce of co-
complainants had been accorded treatment less favourable than that provided in the Schedules, 
inconsistent with the WTO obligations assumed by th e EC and its member States, in particular, those 
under Article II:1(a) and (b) of the GATT 1994.  Japan  recalled that the joint panel request had been 
on the Agenda of the 29 August DSB meeting.  Follo wing that meeting, Japan was now requesting the 
establishment of a panel for the second time.  Ther efore, a panel shall be established at the present 
meeting, pursuant to Article 6 of the DS U with standard terms of reference. 
49. The representative of the European Communities  said that, as previously stated, the EC had 
offered on many occasions to use the mechanisms foreseen  in the ITA to solve these issues through 
negotiations.  The ITA had a review clause which coul d be invoked by Members at any time.  The co-
complainants had thus far not demonstrated any willingness to do this, but had opted for litigation 
instead.  The EC remained confident that the pr oducts in question in these disputes were correctly 
classified and received the tariff treatment provided for in the EC schedules of concessions, and the 
EC was consequently ready to defend its position be fore a panel.  On a procedural aspect, the EC 
must, once again, stress that it was the EC which bore the responsibility for the matter covered by the 
disputes, as this was a matter of exclusive EC competence.  The EC was, therefore, the only 
respondent in these disputes.  Naming member Stat es on the panel requests was thus incorrect.  The 
EC regretted the steps taken at the present meeti ng by Japan, Chinese Taipei and the United States in 
requesting the establishment of a single Panel in thes e disputes, but did not oppose its establishment.  
The EC was of the opinion that the individual comp lainants had fundamentally different interests in 
this matter, as reflected in their separate and diffe rent consultation requests.  While agreeing to the 
establishment of a single panel, however, the EC full y reserved its procedural rights, including those 
concerning the deficiencies of the panel requests and its right to request that the panel submit separate 
reports in these disputes, in accordance with the provisions of Article 9.2 of the DSU. 
50. The representative of the United States  said that, with respect to the EC's comments regarding 
an alleged unwillingness on the part of the co-compl ainants to engage in negotiations, no further WT/DSB/M/256 
Page 12  
 
  negotiations were necessary with r espect to the products set out in their panel request.  This was 
because the concerns identified in their panel request  pertained to existing commitments of the EC.  
And with respect to the EC's assertion that the EC  member States were not proper responding parties 
in this dispute, the United States had addressed this issue at the 29 August DSB meeting.  The 
United States referred Members to that statement.  At the present meeting, the United States simply 
noted that, because the EC member States had been named as respondents in the panel request, claims 
against the EC member States would be part of the Panel's terms of reference. 
51. The representative of Chinese Taipei
 said that his delegation had taken note of the EC's 
statement and would convey that statement back  to capital.  As a Member of the WTO and a 
participant of the ITA, Chinese Taipei had supported the spirit of the ITA in promoting the 
"maximum freedom of world trade in informati on technology products" and in encouraging "the 
continued technological development of the informat ion technology industry on a world-wide basis".  
Therefore, Chinese Taipei supported a review of th e ITA to further expand the product coverage of 
the ITA to accommodate the rapid development of  information technology.  While welcoming the 
EC's proposal to expand the product and membership  coverage of the ITA, and looking forward to 
working with other participants of the ITA to discu ss how the ITA could be better improved, Chinese 
Taipei was of the view that the products concerne d in this dispute were covered by the current ITA 
and thus were entitled with duty-free treatment.  With the establishment of a panel to examine the issues of its concern, Chinese Taipei trusted that  WTO's dispute settlement mechanism could help 
bring an effective and satisfact ory solution to this dispute. 
52. The DSB took note
 of the statements and agreed  to establish a panel in accordance with the 
provisions of Article 6 of the DSU with standard te rms of reference to examine the complaint by the 
United States, Japan and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
contained in document WT/DS375/ 8 – WT/DS376/8 – WT/DS377/6. 
53. The representatives of Brazil , China , India , Korea , the Philippines , Thailand , Viet Nam  and 
Hong Kong, China  reserved their third-party rights to pa rticipate in the Panel's proceedings. 
4. Japan – Countervailing duties on dyna mic random access me mories from Korea 
(a) Recourse to Article 21.5 of the DSU by Korea:  Request for the establishment of a panel 
(WT/DS336/19) 
54. The Chairman  drew attention to the communication from Korea contained in document 
WT/DS336/19, and invited the re presentative of Korea to speak. 
55. The representative of Korea  said that his country requested that the DSB establish a panel to 
review the measures adopted by Japan on 29 Augus t 2008 that purported to implement the DSB's 
decision in the DS336 dispute concerning Kor ea's challenge to Japan's measures imposing 
countervailing duties on imports of dynamic random  access memories ("DRAMS") from Korea.  As 
Korea had explained previously, and as was detailed in its panel request, dated 9 September 2008, the 
measures adopted by Japan on 29 August were not in accordance with the decisi on of the DSB or with 
the provisions of the SCM Agreement.  Despite its earlier promise to comply with the DSB's ruling, 
Japan had instead engaged in delaying tactics in order to maintain an illegal countervailing duty on 
imports from Korea for as long as possible in contravention of the DSB's ruling.  This conduct was not only inconsistent with Japan's obligations unde r the SCM Agreement;  it also was fundamentally 
inconsistent with the obligation of good faith th at was expressly required of all Members that 
participated in the DSU proceedings.  On 9 Sept ember 2008, Korea and Japan  had entered into an 
agreement confirming the procedures for review of  the measures adopted by Japan on 29 August.  
Under paragraph 2 of that agreement, Japan had agreed that it would accept the establishment of a panel to review those measures at the first DSB m eeting at which Korea's panel request appeared on  WT/DSB/M/256 
 Page 13 
 
 
  the DSB's Agenda.  Pursuant to that agreement, and for the reasons that he had mentioned, Korea 
requested that the DSB establish a panel pursuant to  Articles 6 and 21.5 of the DSU, with standard 
terms of reference, to examine the matte rs described in Korea's panel request. 
56. The representative of Japan  said that his country regretted that Korea had decided to request 
the establishment of a panel under Article 21.5 of th e DSU.  As Japan had explained at the previous 
meeting, Japan's investigating authorities had c onducted the investigation scrupulously in accordance 
with the findings of the Panel and Appellate Body.  As a result, Ja pan had taken necessary actions to 
bring its measures, found to be inconsistent with  the SCM Agreement, into conformity with that 
Agreement.  And Japan had taken all these actions befo re the expiry of the reasonable period of time.  
Under such circumstances, Japan failed to understa nd why Korea could claim that Japan had engaged 
in delaying tactics and was not acting in good faith.  Japan was confident that it had fully 
implemented the recommendations and rulings of th e DSB and stood ready to vigorously defend its 
position before the Panel.  Japan expected the Panel to conclude that Japan had complied with its 
WTO obligations.  Therefore, pursuant to the ad hoc  procedures agreed by Japan and Korea under 
Articles 21 and 22 of the DSU, which had been ci rculated to the DSB in document WT/DS336/18, 
Japan did not object to the establishment of a panel at the present meeting. 
57. The DSB took note  of the statements and agreed , pursuant to Article 21.5 of the DSU, to refer 
to the original Panel, if possible, the matter rais ed by Korea in document WT/DS336/19.  The Panel 
would have standard terms of reference. 
58. The representatives of the European Communities , the United States  and Chinese Taipei  
reserved their third-party rights to pa rticipate in the Panel's proceedings. 
__________