UNITED STATES – CONTINUED SUSPENSION OF OBLIGATIONS IN THE EC – HORMONES DISPUTE
Document: Communication from the European Communities on expression of views regarding Appellate Body reports and circulation of documents
Date: 20 November 2008
Document codes: WT/DS320/17
Complainant: EU
Respondent: U.S.
Third parties: Australia, Brazil, Canada, China, Taiwan, India, Mexico, New Zealand, Norway
Dispute stage: Appellate Body
Agreements cited: Art. I, II  GATT 1994Art. 3.7, 22, 23.1, 23.2, 21.5  Dispute Settlement Understanding (DSU)

UNITED STATES – CONTINUED SUSPENSION OF OBLIGATIONS
IN THE EC – HORMONES DISPUTE

Communication from the European Communities on expression

of views regarding Appellate Body reports and circulation of documents

 The following communication, dated 18 November 2008, is circulated at the request of the
delegation of the European Communities.

 In the DSB meeting of 14 November 2008, the Dispute Settlement Body adopted the
Appellate Body report in the dispute DS320, US – Continued Suspension of Obligations. Prior to that
meeting, the United States again requested the circulation of a communication criticising the
Appellate Body's decision.
1

 The purpose of this communication is not to rebut the arguments made by the United States
on the substance of the Appellate Body report in th is dispute. The European Communities considers
that the DSB is the right forum for such an exchange. Accordi ngly, the European Communities has
responded to the arguments of the United States it disagrees with most in the DSB meeting of
14 November 2008. The European Communities refers interested parties to the minutes of that
meeting. Rather, the purpose of this statement is to raise the general question of expressions of views
in the DSB and the subsequent circulation of documents containing such comments.

 The European Communities recalls that this circ ulation of documents issue specifically arose
for the first time a meeting of the DSB when the DSB adopted the panel report in DS245 Japan –
Apples (Article 21.5) . Japan made a short statement but also had a longer version of that statement,
which was circulated "as a relevant DS document", with the agreement of the other WTO Members in
that particular case.
2 The same approach was adopted at the same meeting for Korea's statement on
the Appellate Body report in DS296 US – DRAMs .3 The circulation subsequently occurred in the
WT/DS series of the disputes in question. Prior to 2005, the circulation of such documents in a
WT/DS series had been exceptional.4

 Since the DSB meeting of 20 July 2005, and prior to the most recent circulation of a
document in US – Continued Suspension of Obligations , the United States has in four cases requested
and obtained the subsequent circulation of such statements.
5

1 WT/DS320/16.
2 20 July 2005 DSB, WT/DSB/M/194, paras. 70 to 76; WT/DS245/19 (2 pages).
3 20 July 2005 DSB, WT/DSB/M/194, paras. 84 to 85; WT/DS296/9 (11 pages).
4 E.g. Mexico’s communication in US – 1916 Act, WT/DS162/8, of 26 July 2000.
5 AB report in DS294 US - Zeroing (EC), 9 May 2006 DSB, WT/DSB/M/211, para 37; WT/DS294/16
(9 pages) and WT/DS294/18 (13 pages) (the DSB minutes merely record the statement by the United States that
it intended to request the subsequent circulati on as a WT/DS document); AB report in DS322 US - Zeroing

 The European Communities is concerned about these cases and feels compelled to make the
following observations:

• Any Member has the right at any time to express its views on any panel and Appellate
Body report.

• However, Articles 16.4 and 17.14 of the DSU
6 do not create such right, but merely
provide that the adoption procedure for panel and Appellate Body reports is " without
prejudice" to such right.

• Members should ideally moderate the length of such statements. Repetition (and
subsequent re-translation) of legal arguments already set out and disposed of in the
report before the DSB for adoption is not an efficient use of the Members' time and
resources. A succinct oral statement should be sufficient.

• Regarding the content of such statements, the European Communities understands, also
from its own experience, that when a Member loses dispute proceedings or is otherwise
not entirely satisfied with the results, it might continue to have strongly held views, or
have new views about the Appellate Body report that it might wish to express. However,
nothing in the expression of such views shoul d call into question the party's mandatory
and unconditional acceptance of the report. The WTO Agreement is a single
undertaking, and the Appellate Body consists of persons of recognized authority and
expertise, whom the Dispute Settlement Bo dy has appointed, and whose judgment all
WTO Members have agreed to accept. The adoption of the Appellate Body report marks
the resolution of a dispute, thus, Members ha ve to accept that report as final. The DSU
does not foresee potentially interminable furthe r exchanges, with one or other Member
intent upon having the "last word".

• In WTO dispute settlement practice such stat ements are recorded in the DSB minutes,
which is logical given that WTO Members make these statements in DSB meetings. In
contrast, the European Communities does not co nsider it appropriate to circulate such
documents as a WT/DS document. WT/DS documents relate to specific procedural steps
occurring on the basis of the DSU, of which the Members need to be informed in order to
know what the law is, or in order to know what is the state of the dispute, or in order to
be in a position to exercise their rights under the DSU should they wish to do so.
Documents containing a statement of views by one party to the dispute or one Member
do not fall into this category, and should not be circulated with the designation WT/DS
and the number of the dispute in question, any more than any other Member's expression
of views, recorded in the DSB minutes, s hould be so designated and/or subsequently
circulated.

(Japan), 23 January 2007 DSB, WT/DSB/M/241, paras. 74 and 76; WT/DS322/16 (7 pages) (the DSB minutes
merely record the statement by the United States that it intended to request subsequent circulation, but not as a
WT/DS document); panel report in DS241 Turkey-Rice, 22 October 2007 DSB, WT/DSB/M/241, paras. 42 to
45; WT/DS334/9 (2 pages) (the DSB minutes do not record the intended subsequent circulation); AB report in
DS344 US - Stainless Steel, 20 May 2008 DSB, WT/DSB/M/250, para. 49; WT/DS344/11 (13 pages) (the DSB
minutes merely record the statement by the United States that it intended to request subsequent circulation, but
not as a WT/DS document).
6 "An Appellate Body report sha ll be adopted by the DSB and unco nditionally accepted by the parties
to the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days
following its circulation to the Members. This adoption procedure is without prejudice to the right of Members
to express their views on an Appellate Body report."

• While the European Communities considers th e separate circulation of each and every
statement by WTO Members in the DSB, without limitation, undesirable, and at odds
with the practice, it is of course Member's ri ght to request the circulation of a document
if they consider this necessary. However, such circulation should then occur in a
document series of the DSB, and not in the series of formal documents belonging to a
particular dispute.

 The European Communities voiced its objection to the designation of such documents in the
WT/DS series relating to a particular dispute in the DSB meeting of 1 August 2008.
7 During that
meeting, the United States referred to Rule 23 of the Rules of Procedure for DSB meetings, according
to which Members "may circulate a written statement for distribution to Members, the summary of
which, at the representative's request, may be reflected in the records of the [DSB]." 8 R u l e 2 3
confirms the position of the European Communities because DSB minutes are part of the DSB record,
but a WT/DS number symbol relates to a particular dispute and precisely not to the work of the
Dispute Settlement Body itself. Rule 23 says nothing to suggest that circulated written statements
should become part of the WT/DS series of a particular dispute. Further, contrary to the impression
which the United States attempted to give on 1 August 2008, 9 written statements of the type had only
seldom been recorded as WT/DS documents before th is recently became a rather frequent habit of the
United States. Only exceptionally had such a document been circulated with a WT/DS symbol during
the first ten years of DSB practice. In contrast, quite a number of such statements were recorded
under the designation WT/DSB/COM. The latter desi gnation is more appropriate and should become
the harmonised norm again.

 In the light of the fact that, contrary to the principles set out above, a longer statement was
recently again circulated with the WT/DS designation of the dispute US – Continued Suspension of
Obligations in EC – Hormones , the European Communities feels comp elled to request the circulation
of the present communication in the same series, so as to ensure that the WT/DS record of this dispute
does not contain the document circulated at the United States' request, without response.