RESTRICTEDWORLD TRADE
ORGANIZATIONWT/DSB/M/76
24 March 2000
(00-1225)
Dispute Settlement Body
24 February 2000
MINUTES OF MEETING
Held in the Centre William Rappard
on 24 February 2000
Chairman:  Mr. Kåre Bryn (Norway)
Subjects discussed: Page
1. Surveillance of implementation of recommendations adopted by the DSB.....................2
(a) European Communities - Regime for the importation, sale and distribution of bananas:
Status report by the European Co mmunities ..........................................................................2
(b) Japan - Measures affecting agricultural products:  Status report by Japan.............................6
2. United States – Anti-dumping duty on dynamic random access memory
semiconductors (DRAMS) of one megabit or above from Korea.....................................7
(a) Statement by Korea concerning implementation of the recommendations of the DSB..........7
3. United States - Anti-dumping measures on certain hot-rolled steel products from
Japan.......................................................................................................................... ............8
(a) Request for the establishm ent of a panel by Japan .................................................................8
4. Argentina - Transitional safeguard measures on certain imports of woven fabrics of
cotton and cotton mixtures  originating in Brazil ...............................................................8
(a) Request for the establishm ent of a panel by Brazil.................................................................8
5. Mexico - Anti-dumping investigation of high fructose corn syrup (HFCS) from the
United States.................................................................................................................. ........9
(a) Report of the Panel ......................................................................................................... ........9
6. Proposed nominations for the indicative list of governmental and non-governmental
panelists...................................................................................................................... ..........11
7. Argentina - Safeguard measures on imports of footwear ...............................................12
(a) Statement by the United States .............................................................................................1 2
8. Appointment of Appellate Body members .......................................................................13
(a) Statement by  the Chairman................................................................................................... 13
9. Election of Chairperson of the Dispute Settlement Body................................................13WT/DSB/M/76
Page 2
1. Surveillance of implementation of recommendations adopted by the DSB
(a) European Communities - Regime for the importation, sale and distribution of bananas:  Status
report by the European Communities (WT/DS27/51/Add.5)
(b) Japan - Measures affecting agricultural products:  Status report by Japan
(WT/DS76/11/Add.1)
1. The Chairman recalled that Article 21.6 of the DSU required that "unless the DSB decides
otherwise, the issue of implementation of the recommendations or rulings shall be placed on the
agenda of the DSB meeting after six months following 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 two sub-items be considered separately.
(a) European Communities - Regime for the importation, sale and distribution of bananas:  Status
report by the European Communities (WT/DS27/51/Add.5)
2. The Chairman drew attention to document WT/DS27/51/Add.5 which contained the status
report by the European Communities on its progress in the implementation of the DSB's
recommendations concerning the EC's banana import regime.
3. The representative of the European Communities said that, as his delegation had already
stated on previous occasions, the proposal to amend the EC banana regime, which had been made in
November 1999 and which was still under discussion within the EC institutional framework,
specifically foresaw consultations with the interested  parties.  The procedure outlined in the proposal
reflected two specific aspects of this difficult issue.  First, it reflected the fact that while most of theinterested Members favoured a tariff-rate quota system, at least in the short term, there was
widespread disagreement on how the import licences, an inevitable element of a feasible tariff-rate
quota system, should be allocated between importers.  Second, it also reflected the fact that the EC
had been severely criticized in the DSB for not having consulted adequately with interested parties
before making its previous proposal.  Presently, the EC was being again criticized for eitherconsulting too much or not enough.  The EC had received many suggestions and was examining them
all.  Unfortunately there was no unanimous position among the interested parties to which the EC
could subscribe in full respect of its internal and external legal obligations.
4. The ongoing consultation process would continue in an effort to finding a solution which
would be acceptable to all the interested parties, if at all possible.  However, it was clear that this
process could not continue indefinitely.  The EC wa s the party with the most interest in solving this
problem, and wished to solve it in such a way so as to ensure that there would be no furtherchallenges.  The EC would continue discussions with the interested parties until it was satisfied that
all available elements had been carefully considered in preparing the final decision to amend the
banana regime.  If no feasible administrative solution for a tariff-rate quota system was found, it
would not be possible to maintain the proposal fo r a transitional regime.  In such a situation,
Article XXVIII negotiations would be initiated with a view to replacing the current regime with a flattariff.
5. The representative of Colombia said that his delegation wished to ask some questions.  He
noted that recently there had been no discussions between the EC and Colombia as well as with the
other Latin American countries, which supplied bana nas on a non-preferential basis and which had
signed the joint declaration on bananas at the time of the Seattle Ministerial Conference.  He,therefore, wished to know when the EC would renew its dialog with the non-preferential suppliers.
He noted that the draft plan by the Development Committee of the European Parliament had not yet
been considered by the Committee on Agriculture and Rural Development, and the final report wouldWT/DSB/M/76
Page 3
only be considered by the Parliament in April 2000.  Therefore, the future banana regime would not
enter into force by 1 April 2000, a target date previously set by the Commission for replacement of
the current system.  He, therefore, wished to k now what, under the circumstances, would be the new
target date.  The proposal adopted by the Commission on 10 November 1999 would unbind the bound
volume of 2,553,000 tonnes, by reference to an assumed "autonomous quota" of 353,000 tonnes.  Thedraft plan of the Development Committee would take the unbinding process further, by
recommending a differential in-quota tariff of  EUR 275/tonne instead of the uniform level of
EUR 75/tonne, which currently applied up to the amount of 2,553,000 tonnes.  Colombia wished to
know whether it was the intention of the EC to initiate consultations with substantial suppliers under
Article XXVIII, and if and when such unbinding would be given a concrete form in the new regime.
6. Many of the difficulties in reconciling the differences between the parties with regard to the
allocation of licences concerned both the relevant reference period - before or after 1993 - and thedefinition of primary importer.  He asked whether the EC considered that a suitable definition of
primary importer could resolve the dispute about the reference period without detriment to the parties
and, in particular, without reducing in overall or individual terms their level of effective access to the
first two quotas.  If so, Colombia wished to know if the EC would be willing and able to hold
discussions for that purpose with the non-preferential suppliers.  The EC's proposal also provided fora de facto increase in the established level of access for preferential bananas, by not limiting such
access within the first two quotas and eliminating any individual allocation within the third quota as
well as for discriminatory use of an auction-type system for preferential bananas and a "first-come,
first-served" system for non-preferential banana s.  Colombia wished to know whether such
differential treatment would be consistent with Articles I and XIII of GATT 1994.
7. The representative of Guatemala said that on the basis of the EC's status report it was clear
that her country's efforts, made over the past seven years, would not be brought to an end. Guatemala
continued to expect that the dispute settlement system was efficient and binding.  However, the reality
was different because with only a few days left before the expiry of the Lomé waiver, the
recommendations and rulings of the Panel and the Appellate Body had not yet been implemented.
Guatemala had participated actively in the negotiation of that waiver.  She recalled that the EC banana
import regime had been condemned twice under the GATT system.  However, under the previous
rules it had not been possible to adopt decisions of panels.  The language of the waiver had been
negotiated carefully.  Guatemala had joined in the c onsensus with the confidence that the terms of the
waiver were clear and precise.  The matter had been  considered for the third time in the WTO since
the terms of the waiver had not been observed.  A number of years had passed and the situation that
had prevailed under the GATT continued.  In fact, the EC's non-compliance was a source of greaterfrustration because the decision in the third dispute had been adopted by the DSB.  These
discouraging events should be taken into account by Members not only because a wide range of
products of interest to them was involved, but also because they all had a stake in the credibility of the
system.  No further waiver would be accepted as long as the rulings of the third panel were not
implemented.
8. The representative of Honduras said that, as indicated in the EC's status report, no progress
had been made since the previous report.  At the present meeting, he did not wish to refer to his
country's efforts aimed at resolving this dispute.  He wished to focus on one issue, namely, a request
for a new waiver to be made by  the EC to justify its violations condemned by the Panel and the
Appellate Body.  Honduras' main concern with re gard to a new waiver was related to bananas.
However, the fact that implementation could be deferred for more than 30 months or indefinitely
would have an impact on the credibility of the system.  Furthermore, Members should reflect on the
fact that a new waiver would cover many other product s of interest to a number of countries.  It was in
the interest of all Members that the coverage of a new waiver be discussed in detail in order to take
into account different interests.  It should also be borne in mind that any waiver was a derogation fromthe WTO obligations and that the WTO procedures had to be faithfully adhered to.  He pointed outWT/DSB/M/76
Page 4
that there should be no derogation from the WTO obligations as long as the EC continued to refuse to
comply with the DSB's recommendations.
9. The representative of Ecuador said that the EC had stated that thus far no new development
had taken place in the bananas dispute.  The EC  remained in breach of its WTO obligations.  The
EC's status report at the present meeting was similar to its previous reports and did not contain anynew information.  The EC continued to defend its lack of willingness to remedy the situation by
means of two excuses.  The first was that the interested parties were not in agreement and the second
that the EC was consulting with the parties with a view to finding a solution.  This was not accurate
since neither of the two excuses reflected the real situation.  With regard to the first excuse, the
solutions proposed by the EC were designed to maintain excessively high levels of protection under
its illegal regime.  The reforms currently considered by the EC would perpetuate a variety of unlawful
actions.  The EC wished that the complainants reach agreement on how to accept those unlawfulactions and excessively high levels of protection.  The EC also hoped to be exempted from its
obligations.  If that was the EC's intention it would have to keep hoping for a long time.  Although the
EC was aware of this, it continued to maintain its line of action.  His delegation, therefore, questioned
whether the EC's intention was to maintain the current situation.
10. With regard to the second excuse, he noted that the consultations referred to by the EC had
not been held in the WTO.  Ecuador was informed of the joint consultations between the United
States and the EC which had been carried out by means of a series of video-conferences between
Washington and Brussels.  Providing information on these consultations was not the same as holding
consultations with Ecuador.  This was clear  since no account had been taken of Ecuador's comments
on the proposed reforms under consideration by the EC.  Ecuador had expressed its interest in joiningthe consultations held between the United States and the EC.  However, despite the facts of the case,
there was still no awareness that many interests were at stake in this dispute not only those
represented by the two largest Members.  Consequently, the excuse that consultations were being held
merely reflected the fact that there was no genuine interest on the part of the EC to take into account
the views of all the interested parties.  He emphasized that Ecuador was making efforts to assert itsWTO rights with regard to this case.
11. In its status report, the EC had stated that if no agreement was reached with the parties, it
would have to introduce a tariff-only regime and to that end it would enter into Article XXVIII
negotiations.  Ecuador's position was that the EC could apply a tariff-only system without initiating
Article XXVIII negotiations.  If the EC decided to enter into such negotiations that would be because
it wished to modify its schedule of tariff bindings.  In that case, the rights of Ecuador, as a principal
supplier of bananas to the EC market, would be st rengthened and his country would be prepared to
participate in those negotiations.  If the EC chos e that approach, it would not be exempted from its
obligations and would have to take into account the views of the interested parties.  A solution to this
dispute did not lie in adhering to the position main tained by the EC thus far.  The EC could not
continue to insist on maintaining the present banana regime.  It was unacceptable that the EC
continued its non-compliance to disguise unlawful actions or excessively high levels of protection.
12. The representative of Panama expressed his country's objections with regard to the
information provided by the EC as well as to its continued lack of compliance with the Panel and
Appellate Body reports.  The EC's non-compliance refl ected its lack of willingness to comply with its
WTO obligations.  Panama and other Latin American countries had made it clear that the EC's
proposal was inconsistent with the WTO Agreement and had, therefore, been rejected by them.  Inaddition, the Commission had been unable to obtain the necessary support for the proposal, due to
other reasons.  The EC's proposal, which had been rejected by all parties, would only benefit the
interests of a few traders and would not bring a definitive or satisfactory solution, in particular to
those affected countries that for so many years had been subject to unlawful discrimination.  As stated
in the report, the Commission had held discussions with the interested parties and would continue toWT/DSB/M/76
Page 5
do so.  In Panama's view, the Commission had no t held serious discussions with the Panamanian
negotiators on the present or any other proposal.  His country considered that the EC's approach
towards Panama, a substantial supplier, indicated the lack of interest in finding an acceptable
settlement to this dispute.  Panama had expressed its willingness to cooperate and to contribute
towards establishing an acceptable regime.  It had done so by submitting, together with other LatinAmerican producers, joint proposals which had found a response from different producers and
marketers.  The EC had stated that because of differences of opinion regarding details, it had been
unable to implement an acceptable solution.  While blaming those who suffered discrimination as a
result of its non-compliance, the EC had not stated that  these differences were such so as to prevent it
from finding a WTO-consistent solution.  The Commission had repeatedly taken decisive action to
devise various inconsistent regimes.
13. Compliance with the findings of the Panel and the Appellate Body was closely related to
another matter of importance to Panama and other developing countries, namely, a request for the
extension of the existing waiver in order to maintain preferences for the ACP countries.  On
3 February 2000, discussions had been held on a ne w ACP-EC Partnership Agreement, which was to
be signed shortly in Fiji.  The finalized sections of the Agreement, on the basis of which the EC would
request the waiver, explicitly referred to the undertaking to guarantee the preferential access for ACPcountries under the terms of a future banana regime.  Panama's acceptance of a future waiver would
depend on its acquaintance with all the details of that Agreement.  It would not be in a position to
consider a waiver without first being satisfied with the details of a future banana regime and
preferences.  Panama would be concerned if the EC tried to obtain a waiver without first complying
with the recommendations and rulings in this case.
14. While Panama understood and accepted that some ACP countries required assistance or
preferential access due to the sensitive nature of the banana production for their economies, there
were some limits thereto.  Assistance or preferential access could not be granted in total disregard of
the rights of other developing countries, for which exports to the EC market were equally important.
Panama was taking the responsible attitude of defending the commercial interests of its citizens and,more importantly, had to protect its workers and their families who depended on the existing banana
plantations.  Panama was obliged to refute the EC's reports and condemned the long-standing
unwillingness of the EC to comply with the DSB's recommendations.  His delegation regretted its
critical tone at the present meeting.  However, Panama's statement was motivated solely by its
frustration resulting from the lack of interest on the part of an important developed country Member
in complying with its obligations vis-à-vis some de veloping countries.  He pointed out that the EC's
status report, once again, did not reflect the reality of its non-compliance.  Panama, therefore, rejectedthe content of the report.  Panama urged the EC to  reconsider its position and to enter forthwith into
serious and open-ended discussions with the affected parties, the Latin American producers.  Panama
urged the member States of the EC to demonstrate their willingness to uphold and enforce their WTO
obligations.  He noted that if a request for a waiver was made, such a request had to be reviewed
exhaustively and critically in order not to cause more harm to the interests of other developingcountries.
15. The representative of Costa Rica said that his country had held consultations with the EC and,
on several occasions, had expressed its concerns about certain elements with regard to the EC's
proposal.  Costa Rica had stated its views both bilaterally and multilaterally with the parties
concerned.  His country was prepared to discuss the new banana regime proposed by the EC, which
he hoped would be in line with the DSB' s rulings and recommendations.
16. The representative of the United States said that the EC's proposal of November 1999 was not
WTO-consistent and would not resolve the dispute.  She noted that in spite of the video conferences
between Washington and Brussels to-date there were no WTO-consistent alternatives from the EC.
The Commission continued to manufacture divergen ce among the complaining parties that did notWT/DSB/M/76
Page 6
exist.  Had the EC accepted the Caribbean proposal as the basis for its new banana import regime, it
would have found a large measure of convergence around a WTO-consistent proposal that protected
the interests of  the most vulnerable Caribbean suppliers.
17. The representative of Mexico noted that the EC's status report did not contain many changes
as compared to its previous report.  The only difference was that the present status report was more
specific.  Mexico wished to participate in the consulta tions to be held by the EC.  He reiterated that a
tariff-only system at an accessible level was his country's preferred option.
18. The representative of the European Communities said that his delegation noted the statements
made at the present meeting.  With regard to Colombia's questions, he was not in a position to reply to
them in detail at the present meeting.  He asked Colombia to provide its questions in writing.  Since
similar discussions had already taken place in many past DSB meetings, he did not wish to reiterate
the EC's position at the present meeting.  The EC wa s ready to consult with delegations in Brussels or
Geneva, if they so wished.  His delegation believed th at due to many technical issues involved in this
case, such consultations should be held in Brussels.  At this stage, it was necessary to consider
technical solutions which would be viable and legally acceptable.  The process was time-consuming,
but thus far no consensus among the interested parties had been reached on a solution.  For these
reasons, other options had to be taken into account.  Several proposals open to amendments were onthe table and the EC was awaiting comments from delegations.  At the present meeting, some
delegations had referred to a new waiver and he had referred to Article XXVIII negotiations.  These
were only possibilities.  With regard to any of these options, the EC would scrupulously respect its
WTO obligations, and he assured that the rights of the parties concerned would be respected.
19. The DSB took note of the statements and agreed
 to revert to this matter at its next regular
meeting.
(b) Japan - Measures affecting agricultural products:  Status report by Japan
(WT/DS76/11/Add.1)
20. The Chairman drew attention to document WT/DS76/11/Add.1 which contained the status
report by Japan on its progress in the implementation of the DSB's recommendations concerning its
measures affecting agricultural products.
21. The representative of Japan said that since the 27 January DSB meeting his country and the
United States had been consulting in a constructive and friendly manner.  Although some progress
had been made, it had not been possible to conclude these consultations.  Japan hoped that a mutually
satisfactory solution would be found in the near future and would make its utmost efforts towards that
end.
22. The representative of the United States thanked Japan for its report and its continued
cooperation on implementation issues in this case.  The United States also hoped to be able to resolve
the remaining technical issues in the very near future.
23. The representative of Australia said that his delegation noted Japan's status report.  Australia
was concerned that it contained no further information on the details of Japan's implementation plans.
Australia was also concerned that it provided no assurance, as sought by his country at the 27 JanuaryDSB meeting, that any new measures would be applied on an MFN basis.  He therefore wished to
take this opportunity to reiterate Australia's request made at the 27 January DSB meeting that
Australia, as an exporter of fruit and other horticultural products to Japan, be consulted on the new
quarantine methodology proposed for detecting coddling moth. Australia also sought clarification of
Japan's proposed approach for varietal testing for other fruits as well as for other pests affecting fruitvarieties.WT/DSB/M/76
Page 7
24. The representative of Japan said that he wished to respond to some questions raised by
Australia.  As the consultations were still underway, he did not wish to go into details.  Japan would
notify the DSB of its agreement with the United States as soon as such an agreement was reached.
Once a new quarantine methodology was introduced on the eight products on which the consultations
were being held, it would be applied in accordance with Article 2.3 of the SPS Agreement whichprovided that:  "Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily
or unjustifiably discriminate between Members where identical or similar conditions prevail".  If
Japan were requested by an exporting country to lift its import prohibition on certain products from
that country, it would enter into consultations with that country in order to establish a necessary
quarantine methodology, based on scientific and technical considerations.  If such an exporting
country wished to adopt a methodology similar to that chosen by the United States, such a
methodology would be adopted after scientific and technical examination and confirmation of itsapplicability.
25. The DSB took note of the statements and agreed
 to revert to this matter at its next regular
meeting.
2. United States – Anti-dumping duty on dynamic random access memory semiconductors
(DRAMS) of one megabit or above from Korea
(a) Statement by Korea concerning implementation of the recommendations of the DSB
26. The Chairman said that the item was on the agenda of the present meeting at the request of
Korea.
27. The representative of Korea said that at th e 27 January DSB meeting his country had stated
that the United States had failed to faithfully implement the DSB's recommendations and rulings in
this case.  He did not wish to reiterate Korea's detailed statement, which demonstrated the obvious
failure of the United States to implement the DSB's recommendations and rulings.  Despite Korea's
request at the 27 January DSB meeting that the United States respect the DSB's recommendations and
rulings, no new action had been taken by the United States since then.  Nor had there been any
indication of the United States' intention to act in order to faithfully implement the recommendationsand rulings.  Therefore, Korea had no other option but to seek recourse under Article 21.5 of the DSU.
Korea would submit a formal request to reconvene the original panel to review the measures taken by
the United States purportedly to comply with the DSB's recommendations and rulings.
28. The representative of the United States said at the 27 January DSB meeting, in accordance
with Article 21.6 of the DSU, the United States had stated that it had fully complied with the DSB's
recommendations.  The panel had found that the relevant regulation of the US Department of
Commerce (the US Department) was inconsistent with Article 11.2 of the Anti-Dumping Agreement
(ADA).  In order to remedy this inconsistency,  the US Department ha d amended its antidumping
regulations so as to expressly incorporate into  those regulations the "necessary" standard of
Article 11.2 of the ADA.  Having amended its regulations, the US Department had made a revised
determination in its third administrative review of the DRAMS anti-dumping order in which it had
applied the new WTO-consistent regulation to the facts of the case, and had found that a resumptionof dumping by the Korean companies was likely.  Subsequently, the US Department had concluded
that the continued imposition of antidumping duties on DRAMS from Korea was still necessary.  The
documentation submitted by the United States to the DSB showed that the entire process had been
completely open and transparent.  Prior to issuing its amended regulation and its revised
determination in the DRAMS case, the US Department had given the Korean Government and theKorean DRAMS exporters opportunities to comment.  Both the Government and the exporters availed
themselves of these opportunities and the US Department had taken their comments into account.
The US Department had made its revised determination with an open mind.  However, the fact thatWT/DSB/M/76
Page 8
the bottom line result did not change should not come as a surprise because the evidence had shown
that a resumption of dumping by the Korean DRAMS exporters was likely.  Thus, making the
continued imposition of anti-dumping duties necessary.  In commenting on the US Department's
analysis of the evidence, the Korean exporters repeated arguments that they had previously made to
the panel and that the panel had rejected.  Indeed, to the extent that the panel had addressed factualissues in this case, it had upheld  the US Department consideration of the facts.
29. The DSB took note of the statements.
3. United States - Anti-dumping measures on certain hot-rolled steel products from Japan
(a) Request for the establishment of a panel by Japan (WT/DS184/2)
30. The Chairman drew attention to the communication from Japan contained in document
WT/DS184/2.
31. The representative of Japan said that his country was requesting the establishment of a panel
to examine this matter.  Japan's claims were contained in document W/DS184/2, which had been
circulated on 11 February 2000.  The measures at issue were the determinations made by the United
States in the investigation of dumping and injury of hot-rolled flat-rolled carbon-quality steel products
from Japan, as well as the underlying laws, regulations, policies and procedures.  In its determination
of the dumping margin, the United States had failed to base its calculation on a fair comparison ofexport price and normal value.  The US actions were inconsistent with the WTO Agreement and
included use of a methodology which treated in an unfair manner transaction prices between affiliated
parties and abusive application of facts available to Japanese companies.  In its determination of
injury, the United States had based its decision on methodologies that were neither fair nor objective.
Moreover, the United States had departed afar from its conventions in its investigations anddeterminations by, for example, basing its determination of critical circumstances on a mere "threat of
injury."  In November 1999, Japan had requested consultations with the United States, which had
been held on 13 January 2000.  These consultations had failed to settle the dispute.  In the course of
the consultations, it had became clear to Japan that the difference of views over the issues was far too
wide for any further consultations to be meaningful.  Accordingly, Japan was requesting that a panelbe established at the present meeting with the standard terms of reference.
32. The representative of the United States said that her delegation had carefully noted  Japan's
statement.  The United States had held extensive consultations on the issues referred to by Japan.  At
the present meeting, she did not wish to address the details of this dispute, but  it was sufficient to
state that the United States did not agree with Japan's position.  Her country strongly believed that the
actions taken by the US Department of Commerce and the US International Trade Commission were
fully consistent with the provisions of WTO Agreem ents.  The United States was not in a position to
consent to the establishment of a panel at the present meeting.
33. The DSB took note of the statements and agreed  to revert to this matter.
4. Argentina - Transitional safeguard measures on certain imports of woven fabrics of
cotton and cotton mixtures originating in Brazil
(a) Request for the establishment of a panel by Brazil (WT/DS190/1)
34. The Chairman drew attention to the communication from Brazil contained in document
WT/DS190/1.WT/DSB/M/76
Page 9
35. The representative of Brazil said that his country was requesting the establishment of a panel
pursuant to Article XXIII of GATT 1994, Article 6 of the DSU and Article 8 of the Agreement on
Textiles and Clothing (ATC) with respect to transitional safeguard measures established by Argentina
on certain imports of woven fabrics of cotton and cotton mixtures originating in Brazil.  The full basis
of Brazil's complaint was contained in its request for a panel, which had been circulated in documentWT/DS190/1 on 11 February 2000.  At the present meeting he did not wish to repeat the full extent of
that document but just to underline a few basic elements supporting Brazil's position.  The transitional
safeguard measures had been imposed on five categories or groups of categories of textile imports
from Brazil.  In accordance with Article 6.11 of the ATC, Argentina had requested consultations with
Brazil which had failed to result in a mutually-agreed solution.  Brazil had notified the Textiles
Monitoring Body (TMB) of the results of these c onsultations and had referred the matter to the TMB
in accordance with Article 6.11 of the ATC.  At its meeting of 18-22 October 1999, the TMB hadconducted a review of Argentina's measures and had recommended that Argentina should rescind its
transitional safeguards.  Despite such recommendation, Argentina had notified the TMB that it had
considered itself unable to conform to them, in accordance with Article 8.10 of the ATC.
Subsequently, the TMB had conducted a review of the reasons given by Argentina and had
recommended that Argentina reconsider its position and rescind forthwith the transitional safeguards.Thus far, the matter remained unresolved in spite of the mentioned TMB recommendations.
Therefore, Brazil was requesting that a panel be established to examine this matter, with standard
terms of reference in accordance with Article 7 of the DSU.
36. The representative of Argentina said that his delegation noted the statement made by Brazil
and its panel request.  In accordance with Article 6.1 of the DSU, Argentina was not in a position to
accept the establishment of a panel at the present meeting.  With regard to the claims set out in
document WT/DS190/1, he underlined that Argentina did not share the conclusions reached by the
TMB and disagreed with the interpretations made with respect to Article 6 of the ATC for the reasons
already stated before the TMB.
37. The representative of Pakistan said that Argentina had taken a transitional safeguard measure
on imports from Brazil and Pakistan under the regulation referred to by Brazil in its request.
Therefore, Pakistan had a substantial interest in th e matter and wished to reserve its third-party right
to participate in the proceedings of the panel, if and when it was established.
38. The DSB of took note the statements and agreed  to revert to this matter.
5. Mexico - Anti-dumping investigation of high fructose corn syrup (HFCS) from the
United States
(a) Report of the Panel (WT/DS132/R)
39. The Chairman  recalled that at its meeting on 25 November 1998, the DSB agreed to establish
a panel to examine the complaint by the United States.  The Report of the Panel contained in
document WT/DS132/R had been circulated on 28 January 2000, and was before the DSB for
adoption at the request of the United States.  In accordance with Article 16.4 of the DSU, this
adoption procedure was without prejudice to the right of Members to express their views on the PanelReport.  He noted that document WT/DS132/R cont ained a typographical error, namely, the Note by
the Secretariat at the foot of page 1 indicated that the Report had to be adopted within 30 days after
the date of its circulation instead of 60 days.  A corrigendum correcting that error would be circulated
by the Secretariat.
40. The representative of the United States was pleased that the Panel Report would be adopted at
the present meeting.  The Panel had found that Mexico had violated numerous provisions of the Anti-
Dumping Agreement (AD).  The WTO allowed dumping duties to be imposed only if dumping andWT/DSB/M/76
Page 10
injury, including the threat of injury to the domestic industry were established. Mexico had not
properly established injury and that was the focus of the US challenge.  The Panel had agreed with the
United States that Mexico's threat of injury was fl awed in several respects.  First, the Panel had found
that Mexico's determination did not properly reflected its consideration of the fact under
AD Agreement owned to the economic conditions of the Mexican sugar industry.  This was criticalbecause otherwise the AD authority could find injury, as done improperly by Mexico, without
undertaking to examine the actual condition of its industry.  Second, the Panel had agreed with the
United States that the AD Agreement required authorities to examine injury to the whole industry not
just part of it.  The Panel had also agreed that Mexico had not properly determined that there was a
likelihood that imports of HFCS would increase.  When the alleged dumped imports were not injuring
an industry, a finding that the imports would increase was a vital aspect of threat of injury
determination.  At issue were also two additional WTO violations committed by Mexico in applyinganti-dumping measures.  First, Mexico had left its provisional measure in place far too long.  In
accordance with the AD Agreement, Members could only apply provisional anti-dumping measures
for the shortest possible period of time from four to six months.  Mexico had violated this rule by
leaving its provisional anti-dumping measures for more than six months.  Second, Mexico had
improperly applied final anti-dumping duties.  Normally, in the case of threat of injury, anti-dumpingduties could be imposed only on products that entered after the final determination.  Mexico had
applied these anti-dumping duties to entries during the period between its provisional and final
measures without making the required finding that dumped imports would have led to a determination
of material injury with an extra imposition.  Finally, the Panel had properly rejected a series of
preliminary objections made by Mexico.  In particular, the Panel had properly found that the USrequest for a panel was in full compliance with the DSU and the AD Agreement.
41. The representative of Mexico said that his country wished to thank the members of the Panel
for the time and effort devoted to this case as well as the Secretariat for its assistance.  Mexico
recognized that the Panel had been faced with the difficult task of examining highly diverse aspects of
a complex anti-dumping investigation.  Mexico noted with satisfaction that, on the fundamental issue:i.e. the initiation of the investigation, the Panel had confirmed, after examining the complaints by the
United States and the actions of the competent Mexican authorities, that the HFCS investigation was
initiated on the basis of strict compliance with the relevant provisions of the AD Agreement.
Unfortunately, the Panel had not agreed with Mexico's arguments on other matters within its purview,
where Mexico considered that its actions were consistent with its rights and obligations under the
AD Agreement.  Moreover, Mexico considered that the Panel's findings with regard to the
shortcomings of the US request for a panel were based on incomplete and in some cases evensuperficial reasoning.  Mexico maintained that the United States had not fulfilled the requirements
concerning panel requests, as laid down in the DSU and the AD Agreement, which had to be applied
jointly.  Nevertheless, his delegation had been instructed not to oppose the adoption of the Panel
Report in order to demonstrate its support for the multilateral trading system.  Mexico decided not to
prolong this dispute and instead to concentrate on an internal assessment of the most appropriatemeans of remedying the inconsistencies which, according to the Panel, had been generated in the
course of this arduous and complex investigation.
42. The representative of Turkey said that the implementation of the AD Agreement was a source
of controversy and heated discussions in the WTO.  His delegation maintained that a reasonable
degree of restraint needed to be exercised before Members could invoke the provisions of theAD Agreement.  Members should initiate antidumping investigations measures only when unfair trade
practices genuinely distorted conditions of competition.  When those conditions prevailed beyond any
doubt, then the provisions of the AD Agreement had to be implemented in accordance with the spirit
and the letter of that Agreement and should not to be invoked for protectionist purposes.  Therefore,
Turkey considered that the Panel's decisions would have positive implications.  Turkey believed thatas panels and the Appellate Body dealt with more trade disputes in relation to the AD Agreement and
took decisions which would set precedents, uncertainty and lack of clarity surrounding the relevantWT/DSB/M/76
Page 11
issues arising from the AD Agreement would be gradually reduced.  Turkey welcomed the Panel
Report which had dealt with some important issues.  At the present meeting, he wished to touch upon
some of those issues that were related to Articles 3 and 10 of the AD Agreement and were particularly
important.
43. Article 3 of the AD Agreement was one of the key Articles which set the main criteria for
levying anti-dumping duties.  The Agreement on anti-dumping practices set forth a strict principle that
anti-dumping duties on dumped imports could not be levied solely on the ground that a product was
being dumped.  Anti-dumping duties could be levied only when it was established after an
investigation that dumped imports were causing material injury to that industry.  Article 3 provided
that determination of whether dumped imports were causing injury to a domestic industry, should be
made on the basis of all relevant factors having a bearing on the state of industry.  The Panel Report
had dealt, in considerable details, with issues related to Article 3.  The Panel had concluded thatMexico's imposition of the definitive anti-dumping measure on imports of HFCS from the US was
inconsistent with the provisions of Article 3.1, 3.2, 3.4 and 3.7 of the AD Agreement.  The Panel had
arrived at an important conclusion that the inve stigating authorities needed to look at all the
provisions of Article 3 in its entirety during the process of an anti-dumping investigation.  Within this
context, the Panel had concluded that a determination of threat of injury could not be based only on anexamination of the factors set forth in Article 3.7 of the Agreement.  Rather, a determination of threat
of injury also required an assessment of the impact of imports on the domestic industry through an
examination of the relevant economic factors in Article 3.4.
44. Another important determination was with respect to Article 10 of the AD Agreement on the
question of retroactivity.  The Panel had firmly established that the AD Agreement authorizedprovisional measures to be taken in the form of cash deposits and bonds, when the investigating
authorities judged that such measures were necessary to prevent injury being caused during the
investigations.  However such provisional measures should be taken only after the investigating
authorities had made a preliminary determination of dumping and consequent injury.  Within this
context, Mexico's retroactive imposition of anti-dumping duties was found to be inconsistent with theprovision of Article 10.2.  Hence, its failure to release bonds or cash deposits collected under the
provisional measure was also found not to be co nsistent with Article 10.4 of the Anti-Dumping
Agreement.  Finally, he wished to express his country's appreciation to the Panel for their high quality
report, as well as the Secretariat for its meticulous work and contribution.
45. The DSB took note of the statement and adopted
 the Panel Report in WT/DS132/R and
Corr.1 to be shortly circulated by the Secretariat.
6. Proposed nominations for the indicative list of governmental and non-governmental
panelists (WT/DSB/W/120;  WT/DSB/W/123)
46. The Chairman recalled that at its meeting on 27 January 2000, the DSB had agreed to
postpone consideration of the item concerning proposed nominations for the indicative list of panelists
contained in WT/DSB/W/120 and to revert to this ma tter at the present meeting.  He drew attention to
document WT/DSB/W/120, which contained additional names proposed for inclusion on theindicative list of panelists in accordance with Article 8.4 of the DSU.  He also drew attention to
document WT/DSB/W/123, which contained additional names proposed for inclusion on the list in
accordance with the above-mentioned procedures.  Unless there is any objection, he proposed that the
DSB approve the names contained in do cuments WT/DSB/W/120 and WT/DSB/W/123.
47. The DSB so agreed.WT/DSB/M/76
Page 12
7. Argentina - Safeguard measures on imports of footwear
(a) Statement by the United States
48. The representative of the United States, speaking under "Other Business", drew attention to
recent reports indicating that Argentina intended to maintain its protection on footwear, in spite of the
clear findings of the Panel and the Appellate Body Reports adopted by the DSB.  The United Statescontinued to believe that under the circumstances, Argentina simply had to allow the footwear
safeguard to expire in its entirety on 24 February 2000, as originally scheduled.  However, the United
States understood from some press reports that on 24 February, Argentina intended to release a decree
that would call for a "provisional" safeguard measure on athletic footwear imports not originating in
MERCOSUR.  These Reports indicated that the measure would include both a high duty and a
restrictive tariff-rate quota of 2.5 million pairs of shoes per year.  The United States further
understood that imports of non-MERCOSUR athle tic footwear above 2.5 million pairs would be
subject to an exorbitant, double duty that would in effect preclude  further imports.  She asked
Argentina to confirm whether its intention was to do so.  It would be preferable to have the Argentine
decree at the present meeting, but since these reports gave the United States great cause for alarm, it
had decided to raise its concerns in the DSB.  It was apparent that such a measure would violate the
fundamental requirements of the Safeguards Agreement.  In the first instance, Argentina had not metthe procedural requirements to impose a provisional measure under Article 6 of the Safeguards
Agreement.  Moreover, Article 7.5 specifically provided that no safeguard measure could be re-
applied to a product for at least two years after the non-application of the measure.  In other words,
Argentina was legally barred from immediately re-a pplying a safeguard measure on footwear imports.
In view of the clear legal constraints, she asked whether Argentina could clarify how such an actioncould be WTO-consistent.
49. The representative of Argentina said it was his country's intention to adjust its safeguard
measure in conformity with the DSB's recommendati ons.  To that end, his authorities had amended
the report on determination of serious injury on the basis of the conclusions contained in the Panel and
the Appellate Body Reports.  Furthermore, in order to help clarify the courses of action as from25 February, consultations had been held with the EC.  Further meetings had been scheduled in the
course of the week of 28 February 2000 with the EC as well as with Members having a substantial
interest as exporters and other Members who had so requested.  With regard to the question raised by
the United States, Argentina did not plan to adop t a new safeguard measure under Articles 6 and 7.5
of the Agreement on Safeguards.
50. The representative of the European Communities sa id that the EC as a plaintiff in this case
was interested in the question of implementation.  As indicated by Argentina, consultations had been
held on this matter and would continue to be hel d.  He was not aware of any decree, but the EC had a
major interest in closely watching the implementation.
51. The representative of Indonesia said that his delegation noted the concerns and questions
raised by the United States as well as Argentina's responses.  Indonesia wished that Argentina brought
its measure into conformity with its WTO obligations as soon as possible.  Indonesia, as a third partyin this dispute, wished to participate in the consultations to be held on the question of implementation.
52. The DSB took note of the statements.WT/DSB/M/76
Page 13
8. Appointment of Appellate Body members
(a) Statement by the Chairman
53. The Chairman, speaking under "Other Business", said that he wished to make an
announcement concerning the selection process for the Appellate Body members.  He noted that a
paper containing the curricula vitae of all candidates which had been submitted by the deadline of17 February 2000 had been circulated as Job No. 902 and Add.1 and Add.2.  The Selection
Committee would organize interviews as soon as possible.  The interview process would start on
28 February 2000.  Delegations wishing to contact the candidates might enquire through the Missions
of the respective candidates on their availability.  He said that a list with the addresses of the
candidates as provided by the respective Missions in Geneva was being distributed in the room.  Two
candidates (from Bulgaria and Egypt) were resident in Geneva. The Secretariat would inform
Missions by fax when the other candidates would be in Geneva, in case Members wished to contactthem directly.  He was in a position to inform Members that Mr. Ganesan, the candidate from India,
would be available in Geneva from Friday, 25 February to Tuesday 29 February.  Over the next three
weeks, the Selection Committee would be interviewing the candidates.  He wished to inform
delegations that some of the members of the Selection Committee would be available to meet
Members upon request if they wished to provide their views on the candidates.  It was his intention tofinalize the matter by the end of March, as originally foreseen so that the Selection Committee could
come up with a proposal to the DSB by the end of March.  He would be working very closely with the
incoming Chairman of the DSB and together with him he would take the leadership of the process.
54. The representative of Thailand wished to inform delegations that Thailand's candidate would
be available in Geneva from 6 to 9 March 2000.
55. The DSB took note of the statements.
9. Election of Chairperson of the Dispute Settlement Body1
56. The Chairman said that under this agenda item, he wished to make two points.  First, he
wished to thank all the DSB members for their coope ration during his short term of office.  Second,
he was glad that his successor was one of most distinguished and respectful persons,Mr. Stuart Harbinson (Hong Kong, China) who was well-known for his knowledge of all matters and
on many occasions he had consulted with him.  There was an interesting year ahead of
Mr. S. Harbinson as Chairman of the DSB.  There were some pending issues which had not been
solved due to a limited amount of time.  One issue related to the question of sequencing between
Articles 21 and 22 of the DSU.  Another issue related to India's proposal concerning a term for
appointment of Appellate Body members.  He r ecalled that the DSB had agreed to carry out
consultations and to revert to this matter at a later stage.  He regretted that, thus far, it had not beenpossible to hold such consultations.  He was confident that his successor would take up this matter in
due course.
57. He then recalled that at its meeting on 7 and 8 February 2000, the General Council had taken
note of the consensus on a slate of names for chairpersons to a number of WTO bodies including the
Dispute Settlement Body.  On the basis of the understanding reached by the General Council, heproposed that the Dispute Settlement Body elect by acclamation Mr. Stuart Harbinson (Hong Kong,
China) as Chairman of the body.
58. The DSB so agreed.
                                                     
1 For practical purposes this item was taken up at the end of the meeting.WT/DSB/M/76
Page 14
59. Mr. S. Harbinson said that he would approach  his task with due humility.  He would do his
utmost to justify confidence shown by Members in him.  More importantly, at this juncture, he wished
to say that he believed that the membership owned the great debt of gratitude to Amb. K. Bryn for a
number of reasons.  One had to admire his flexibility and courage in taking over from Amb. Akao on
short notice, which showed his great dedication to the organization.  He had managed the DSB in ahighly efficient and objective manner and set new standards in that respect.
60. The representatives of the European Communities, United States
, India , Thailand , speaking
also on behalf of the ASEAN countries, and the representatives of Japan  and Costa Rica , speaking
also on behalf of Latin American and Caribbean countries, thanked the outgoing Chairman
Amb. Bryn and welcomed the incoming Chairman of the DSB Mr. S. Harbinson.
61. The DSB took note of the statements.
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