RESTRICTEDWORLD TRADE
ORGANIZATIONWT/DSB/M/150
22 July 2003
(03-3936)
Dispute Settlement Body
19 May 2003
MINUTES OF MEETING
Held in the Centre William Rappard
on 19 May 2003
Chairman:  Mr. Shotaro Oshima (Japan)
Page
1. Surveillance of implementation of recommendations adopted by the DSB.........................2
(a) United States – Section 110(5) of the US Copyright Act:  Status report by the United
States ........................................................................................................................ ..................2
(b) United States – Anti-Dumping Act of 1916:  Status report by the United States.......................2
(c) United States – Section 211 Omnibus Approp riations Act of 1998:  Status report by
the United States ............................................................................................................. ...........3
(d) United States – Anti-dumping measures on certain hot-rolled steel products from
Japan:  Status report by  the United States ..................................................................................4
(e) Egypt – Definitive anti-dumping measures on steel rebar from Turkey:  Status report
by Egypt ...................................................................................................................... ...............4
2. Uruguay – Tax treatment on certain products.......................................................................5
(a) Request for the establishm ent of a panel by Chile .....................................................................5
3. United States – Sunset reviews of anti-dumping measures on oil country tubular
goods from Argentina........................................................................................................... ....6
(a) Request for the establishmen t of a panel by  Argentina .............................................................6
4. Argentina – Definitive anti-dumping duties on poultry from Brazil ...................................8
(a) Report of the Pa nel ........................................................................................................ ............8
5. United States – Subsidies on upland cotton..........................................................................10
(a) Procedures for developing information under Annex V of the SCM Agreement.....................10
6. Argentina – Definitive safeguard measure on imports of preserved peaches ...................12
(a) Statement by  Argentina ...................................................................................................... ......12WT/DSB/M/150
Page 2
1. Surveillance of implementation of recommendations adopted by the DSB
(a) United States – Section 110(5) of the US Copy right Act:  Status report by the United States
(WT/DS160/18/Add.15)
(b) United States – Anti-Dumping Act of 1916:  Status report by the United States
(WT/DS136/14/Add.15 - WT/DS162/17/Add.15)
(c) United States – Section 211 Omnibus Appropri ations Act of 1998:  Status report by the
United States (WT/DS176/11/Add.8)
(d) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:
Status report by the Unit ed States (WT/DS184/15/Add.8)
(e) Egypt – Definitive anti-dumping measures on steel rebar from Turkey:  Status report by
Egypt (WT/DS211/7)
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 five sub-items to which he had just referred be considered separately.
(a) United States – Section 110(5) of the US Copyri ght Act:  Status report by the United States
(WT/DS160/18/Add.15)
2. The Chairman drew attention to document WT/DS160/18/Add.15 which contained the status
report by the United States on progress in the implementation of the DSB's recommendations in the
case concerning Section 110(5) of the US Copyright Act.
3. The representative of the United States said that her country had provided an additional status
report in this dispute on 8 May 2003, in accordance with Article 21.6 of the DSU.  As noted in the
report, the United States and the EC had been seeking a positive and mutually acceptable resolution of
the dispute.  The US administration had made good progress with the US Congress on this issue with
a view to concluding a mutually acceptable arrangement consistent with WTO rules.  The United
States looked forward to notifying the DSB of  additional information in the near future.
4. The representative of the European Communities said that the EC appreciated the efforts of
the United States and hoped that it would be possible to make progress in this dispute in the short
term.
5. The DSB took note of the statements and agreed  to revert to this matter at its next regular
meeting.
(b) United States – Anti-Dumping Act of 1916:  Status report by the United States
(WT/DS136/14/Add.15 – WT/DS162/17/Add.15)
6. The Chairman drew attention to docume nt WT/DS136/14/Add.15 – WT/DS162/17/Add.15
which contained the status report by the United States on progress in the implementation of the DSB's
recommendations in the case concerning the US Anti-Dumping Act of 1916.
7. The representative of the United States said that her country had provided an additional status
report in this dispute on 8 May 2003, in accordance with Article 21.6 of the DSU.  As noted in the
report, legislation repealing the 1916 Act had been introduced in the US House of Representatives onWT/DSB/M/150
Page 3
4 March 2003 (H.R. 1073).  The US administration w ould continue to work with the US Congress to
achieve further progress in resolving this dispute with the EC and Japan.
8. The representative of the European Communities sa id that the EC wished to recall its position
concerning the effect of the repeal of the 1916 Anti-Dumping Act on the on-going court cases.  The
EC had agreed to give extra time for implementation and then to suspend the arbitration on its demandfor retaliation on the express understanding that the repeal legislation would terminate the pending
litigation.  The US failure to comply had allowed the re-activation of a first proceeding and the
initiation of two new cases against EC companies.  The claims had been brought under a legislation
that was clearly condemned and should have been repealed long ago.  It was clearly not acceptable
that EC companies were bearing substantial litigation costs and might ultimately be condemned.  The
EC urged, once again, the United States to put a definitive end to this dispute by repealing the 1916
Anti-Dumping Act and terminating the on-going court cases.
9. The representative of Japan said that her country had noted the status report and the statement
made by the United States.  Japan was, once again, disappointed at the lack of detailed explanation by
the United States of how soon and how exactly it intended to fully implement the DSB's
recommendations and ruling in this proceeding.  The legislation introduced to the House of
Representatives on 4 March 2003, which was referred to in the status report, would not terminate thepending cases.  Given the serious damages, including substantive legal costs that the respondent
Japanese companies had been forced to bear because of this WTO-inconsistent Act, Japan had
repeatedly stated that the repealing bills must have retroactive effects to terminate the pending cases.
Japan strongly urged the United States to ensure that the bills repealing the 1916 Act with proper
retroactive effects had been introduced and passed in the two Houses before the summer recess of thecurrent session of the 108th Congress.  As stated at the 15 April DSB meeting, Japan demanded that
the US administration coordinate much better with th e US Congress and also specifically report to the
DSB on the status of its efforts to ensure the introduction and passage of the repealing bills with
proper retroactive effects.  Japan retained its right to suspend concessions or other obligations.
10. The DSB took note of the statements and agreed
 to revert to this matter at its next regular
meeting.
(c) United States – Section 211 Omnibus Appropriat ions Act of 1998:  Status report by the
United States (WT/DS176/11/Add.8)
11. The Chairman drew attention to document WT/DS176/11/Add.8 which contained the status
report by the United States on progress in the implementation of the DSB's recommendations in the
case concerning US Section 211 Om nibus Appropriations Act of 1998.
12. The representative of the United States said that her country had provided a status report in
this dispute on 8 May 2003, in accordance with Article 21.6 of the DSU.  The US administration was
continuing to consult and work with the US Congress to resolve this dispute.
13. The representative of the European Communities said that the status report provided by the
United States was very disturbing.  The EC noted that the new deadline for implementation would
expire at the end of next month and yet the status report did not show any sign of concrete actiontowards implementation.  At the 15 April DSB meetin g, the EC had been informed that two bills that
would repeal Section 211 were pending in Congress.  Since then, the EC had learned that a third
repealing bill had been introduced in April.  He al so wished to recall that the EC could not accept the
US administration's position that there was no need to clarify that Section 211 did not apply in cases
where the trademark had been abandoned by the or iginal owner.  The Panel had relied on the
affirmations made by the US representatives that Section 211 would not apply to a new trademark
after a former trademark, to which Section 211 might have applied had been abandoned.WT/DSB/M/150
Page 4
14. The representative of Cuba said that her delegation had noted the statement by the United
States introducing its brief status report as well as the statement made by the EC at the present
meeting.  Cuba was concerned that shortly before the expiry of the extended time-period for
implementation, the consultations held by the US administration with the US Congress still did not
bring any results in relation to the measures to  be taken in order to comply with the DSB's
recommendations.  Once again, Cuba wished to urge the United States to respect its obligations as
well as the time-frame for implementation which had been set by the DSB.
15. The DSB took note of the statements and agreed  to revert to this matter at its next regular
meeting.
(d) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:
Status report by the Unit ed States (WT/DS184/15/Add.8)
16. The Chairman drew attention to document WT/DS184/15/Add.8 which contained the status
report by the United States on progress in the implementation of the DSB's recommendations in the
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan.
17. The representative of the United States said that her country had provided a status report in
this dispute on 8 May 2003, in accordance with Article 21.6 of the DSU.  With respect to the DSB's
recommendations and rulings that had not been ad dressed in the 22 November 2002 antidumping duty
determination of the US Department of Commerce, the United States continued to work with the US
Congress to resolve this dispute.  For instance, as reported at the 15 April DSB meeting,
Ambassador Zoellick and Secretary of Commerce Evans wrote to Congress on 14 April supporting
specific amendments to Section 735(c)(5) of the Tariff Act of 1930 to implement the DSB’s
recommendations and rulings.  The US administration was working for passage of these amendments.
18. The representative of Japan said that her delegation was aware of the letter sent to the US
Congress by Ambassador Zoellick and Secretary Evans on 14 April 2003.  It was regrettable that no
bill had since been introduced to either House of the Congress.  As Japan had stated on many
occasions, the persistent non-implementation by the United States was undermining the credibility of
the WTO as a whole.  Japan urged the United States to implement the DSB's recommendations andrulings as early as possible, including securing the introduction and passage of the relevant legislation
in the US Congress before the summer recess of the current session of the 108th Congress.  Japan also
expected the United States to closely consult with Japan on the status and contents of the
implementation.
19. The DSB took note of the statements and agreed
 to revert to this matter at its next regular
meeting.
(e) Egypt – Definitive anti-dumping measures on steel rebar from Turkey:  Status report by
Egypt (WT/DS211/7)
20. The Chairman drew attention to document WT /DS211/7, which contained the status report by
Egypt on progress in the implementation of the DSB's recommendations in the case concerning
definitive anti-dumping measures on steel rebar from Turkey.
21. The representative of Egypt recalled that, on 23 October 2002, Egypt had informed the DSB
that it intended to implement the DSB's recommendations and rulings in the case on  "Egypt –
Definitive Anti-Dumping Measures on Steel Rebar from Turkey".  The investigating authorities were
currently re-examining the dumping calculations of  the two following Turkish companies, "IZMIR"
and "ICDAS" and the general injury assessment in light of the Panel's recommendations.  Egypt
would submit its revised injury assessment and revised dumping assessment to the interested parties.WT/DSB/M/150
Page 5
Egypt's investigating authorities would continue to work with the Turkish authorities to implement the
DSB's recommendations and rulings in this regard.
22. The representative of Turkey said that his country wished to thank Egypt for its concise
statement regarding the status on implementation of  the DSB's recommendations with respect to the
anti-dumping measures having been applied on Turkish steel rebars.  Turkey was glad to see Egypt'sconstructive approach to this matter.  Since Turkey had not received the revised disclosure of findings
of the Egyptian investigating authorities, his delegation was not in a position to comment on the
substance.  However, he wished to reiterate Turkey's expectation that the Egyptian authorities revise
their findings in line with the Panel's recomme ndations and make the necessary adjustments to the
anti-dumping duties, which had been found inconsistent with the provisions of Article 6.8 and
paragraph 6 of Annex 11 of the Anti-Dumping Ag reement.  Turkey believed that Egypt would
implement the Panel's recommendations in good faith and in a timely manner.  Turkey hoped thatboth parties would soon be able to notify to the DSB that the issue was resolved with good faith.
23. The DSB took note of the statements and agreed
 to revert to this matter at its next regular
meeting.
2. Uruguay – Tax treatment on certain products
(a) Request for the establishment of a panel by Chile (WT/DS261/4)
24. The Chairman recalled that the DSB had considered this matter at its meeting on
15 April 2003 and had agreed to revert to it.  He drew attention to the communication from Chile
contained in document WT/DS261/4.
25. The representative of Chile recalled that at the 15 April DSB meeting, his country had
expressed its contentions with regard to the Specific Internal Tax ( Impuesto Especifico Interno  –
IMESI) which was applied by Uruguay on certain consumer goods and which, in Chile's opinion, was
inconsistent with Uruguay's obligations under the GATT 1994 with regard to national and most-
favoured-nation treatment.  Since that meeting, Uruguay had endeavoured to eliminate tax
discrimination, but the proposed solution was only limited and partial.  Chile, therefore, had to repeat
its panel request, as circulated in document WT/DS261/4, so that a panel could confirm that theIMESI, established by the statutory provisions mentioned in its previous request and other
complementary provisions and/or amendments, was contrary to Articles I and III of the GATT 1994.
Finally, Chile wished to reiterate its interest in co ntinuing to seek a satisfactory bilateral solution
which would be consistent with the WTO Agreements.
26. The representative of Uruguay said that as his delegation had already stated at the 15 April
DSB meeting, the consultations held in Montevideo on 23 July 2002 and the bilateral contacts
between Uruguay and Chile constituted the appropriate framework for settling this dispute, given thereadiness for dialogue shown by both parties.  In view of the foregoing, Uruguay deeply regretted that
Chile had decided to request the establishment of a pa nel to examine this issue, thus putting an end to
the dialogue which his country preferred.  Uruguay considered that Chile's request for the
establishment of a panel was general and in many respects confused.  With regard to tobacco and
cigarettes, Uruguay wished to draw attention to  Decree No. E/574, which had amended the previous
relevant legislation.  Decree No. E/574 had come in to effect on 1 May 2003, as mentioned by Chile in
its statement at the 15 April DSB meeting.  Therefore, from the point of view of the procedure, the
new measure concerning tobacco and cigarettes wa s Decree No. E/574, which was a separate measure
and was not the subject of the consultations between Uruguay and Chile which had been held on
23 July 2002.  Uruguay, therefore, considered that there were no grounds for Chile's request for theestablishment of a panel as the measure in question had not been the subject of the consultations nor
was it mentioned in Chile's request for the establishment of a panel.WT/DSB/M/150
Page 6
27. With regard to the products in question as well as the other products mentioned by Chile in its
panel request, Uruguay considered that the applicable regime was the Specific Internal Tax (IMESI),
which was consistent with the WTO's rules and obligations.  Uruguay, therefore, wished to stress that
it considered the reasons and arguments put forward by Chile with regard to the IMESI to be
inadmissible because they were not duly substantiated.  In view of the foregoing, Uruguay woulddefend its rights within the framework of the WTO dispute settlement system.  At the same time,
Uruguay was ready to continue examining with Chile its concerns and hoped that a mutually
satisfactory solution of this issue would be found.
28. 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 terms of reference.
29. The representatives of the European Communities, Mexico  and the United States  reserved
their third-party rights to partic ipate in the Panel's proceedings.
3. United States – Sunset reviews of anti-dumping measures on oil country tubular goods
from Argentina
(a) Request for the establishment of a panel by Argentina (WT/DS268/2)
30. The Chairman recalled that the DSB had considered this matter at its meeting on
15 April 2003 and had agreed to revert to it.  He drew attention to the communication from Argentina
contained in document WT/DS268/2.
31. The representative of Argentina said that his country wished to reiterate its request for a panel
to consider the claims set forth in its panel request, dated 3 April 2003.  In accordance with Article 6.1
of the DSU, Argentina was requesting that a panel be established at the present meeting.  He recalled
that at the 15 April DSB meeting, the United States had expressed disappointment that Argentina hadchosen to resort to a panel in order to resolve this matter.  Argentina was also disappointed that it was
obliged to resort to a panel, as it had expressed throughout the consultations the desire to reach a
mutually agreeable solution.  In the end, the United States had clearly indicated that the two
governments had different views regarding the substantive obligations of the Anti-Dumping
Agreement.  Argentina was not pursuing this matter for the sake of litigation, but rather because itbelieved firmly that its WTO rights had been nullified and impaired by the US measures at issue.
32. He said that Argentina had carefully analyzed the concerns raised by the United States during
the 15 April DSB meeting in relation to its panel request and had come to the conclusion that the
objections raised by the United States were not founded and that its panel request was fully consistent
with Article 6.2 of the DSU.  At the present meetin g, Argentina wished to explain the reasons in this
regard.  First, the United States identified as the "principal problem" the section of the request
following the detailed statement of claims in Sections A and B.  Argentina interpreted that commentto be due to the misunderstanding of the request by the United States.  It was Argentina's intention (as
the panel request clearly provided) to set forth the particular claims in the paragraphs contained in
Sections A and B of the document.  Argentina noted that the United States conceded that Sections A
and B of Argentina's request set forth adequately most of the claims at issue in this case.  Therefore,
to that extent, Argentina's panel request fully met the requirements set forth in Article 6.2 of the DSU
and was properly before the DSB.
33. With respect to Sections A and B contained in the panel request, the United States
complained about the general references to Articles 6 and 3 of the Anti-Dumping Agreement in
Section B.  The United States complained that Argentina did not refer to any specific paragraphs of
those Articles and, therefore, argued that the claim was too general under the requirements ofArticle 6.2 of the DSU.  Incidentally, it was difficult to reconcile US assertions regarding alleged
inconsistencies of Argentina in terms of Article 6.2 in light of US practice in previous WTO cases.WT/DSB/M/150
Page 7
Specifically, Argentina believed that the current US objections ran counter to what this country had
argued in the case against Mexico regarding the high fructose corn syrup where the United States had
requested terms of reference (WT/DS132/2) exclusively referring to general Articles of the Anti-
Dumping Agreement, did not even identify a single paragraph of the AD Agreement and did not make
any links between claims and the provisions of  the Anti-Dumping Agreement or between the
identified measures and claims.  Notwithstanding, the panel request had been accepted by the DSB
and endorsed as fully compatible with the DSU by the Panel Report1
34. Second, at the US request, Argentina had provided to the United States during the
consultation process two sets of written questions.  Fifty-two written questions had been provided
before the 14 November 2002 consultations and additional 34 questions (based on the discussions in
the first consultation meeting) had been provided in advance of the second consultation meeting on
17 December 2002.  In total, 86 detailed questions had been provided in writing to the United Statesduring the consultation period.  The United States had not provided a written response to even a single
question nor had it taken the opportunity to express in writing any concerns or confusion as to the
nature of the claims subject to the consultations.  Argentina could not accept that the United States
now take the position that the general references to Articles 6 and 3 in Section B of the panel request
had somehow surprised the United States or that it was not otherwise able to discern the meaning ofthose references in the panel request.  US laws, regulations, and policy guidelines had been clearly
identified in Argentina's panel request.  Docu ment WT/DS268/2 provided notice that certain
provisions of these measures would be challenged "as such".  This was reflected in the claim spelled
out in Section A1.  Argentina had also noted in its panel request that the application of the laws,
regulations and policy guidelines (identified in  document WT/DS268/2) in the sunset review of
OCTG from Argentina conducted by the Department  of Commerce, including the decision in the
instant case to expedite the review were WTO inconsistent.  This particular claim has been developed
in Section A2.  Additionally, the application by the Commission of laws, regulations and policy
guidelines in the case at hand, had also led to a WTO inconsistent behaviour, subject to challenge
under the claims developed in Section B.  Besides, the resulting sunset determinations of theDepartment and the Commission had also been identified in Argentina's panel request like measures
challenged in these proceedings.  The paragraphs in Sections A and B of the panel request provided a
detailed narrative amplification of the particular clai ms with respect to these measures that sufficiently
identified the legal basis for Argentina's complaint.
35. Finally, Argentina found serious flaws with respect to the US assertion that the Department's
Determination to conduct an expedited sunset revi ew (Determination to Expedite) was not subject to
WTO challenge because it was not a "measure".  The United States disputed that its Determination toExpedite was a "measure", referring to it instead as one of "hundreds, perhaps thousands of discrete
preliminary decisions" in an anti-dumping case.  However, Argentina would demonstrate in this case
that it was much more than that, it was decisive and determinative.  The United States could not
insulate this decision from scrutiny in this case where it had replaced the substantive analysis required
by Article 11.3 of the Antidumping Agreement.  Ultimately, whether Argentina decided to present
arguments to the panel that the Determination to Expedite was a separate measure or constituted a
critical component of the Departme nt's Sunset Determination, the Department's decision to conduct an
expedited review (claims in Section A 2 and 3) would not escape scrutiny.  The same could be said of
those portions of the US Statement of Administra tive Action and the Department's Sunset Policy
Bulletin, which replaced the substantive analysis required by Article 11.3 of the Anti-DumpingAgreement.
36. On the final point regarding the terms of refere nce for the panel, Argentina confirmed that it
had requested standard terms of reference.  Argentina's panel request was unambiguous in this regard,
as it had requested that a "panel with standard terms of reference be established" at the next DSB
meeting.  Given the clarity of this statement, and the fact that Article 6.2 of the DSU clearly required
                                                     
1 WT/DS132/R paragraph 7.18.WT/DSB/M/150
Page 8
a specific statement if a party wished to request different terms of reference, it was difficult to
understand the United States' criticism on this point.  Argentina was confident that its request
complied with the letter and spirit of Article 6.2 of the DSU, and reiterated its request for the
establishment of a panel to consider this matter.
37. The representative of the United States noted the statement made by Argentina.  The United
States did not wish to repeat the points made at the 15 April DSB meeting other than to note that it
continued to believe that Argentina's panel request had failed to conform to the DSB's requirements
for the reasons set forth in the statement made by the United States on 15 April.
38. 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 terms of reference.
39. The representatives of the European Communities, Japan , Korea , Mexico  and Chinese Taipei
reserved their third-party rights to participate in the Panel's proceedings.
4. Argentina – Definitive anti-dumping duties on poultry from Brazil
(a) Report of the Panel (WT/DS241/R)
40. The Chairman recalled that at its meeting on 17 April 2002, the DSB had established a panel
to examine the complaint by Brazil pertaining to this matter.  The Report of the Panel contained in
WT/DS241/R had been circulated on 22 April 2003 as an unrestricted document, pursuant to the
Procedures for the Circulation and Derestricti on of WTO Documents contained in WT/L/452.  He
noted that the Panel Report was before the DSB for adoption at the request of Brazil.  He said that this
adoption procedure was without prejudice to the right of Members to express their views on the Panel
Report.
41. The representative of Brazil recalled that, on 22 April 2003, the Panel Report in the case on
"Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil" had been circulated to
Members, one year after the establishment of a panel in which Brazil had challenged the consistency
of the anti-dumping measures on imports of poultry from Brazil, imposed by Argentina by Resolution
No. 574 of 21 July 2000.  These measures had significantly impacted upon Brazil's exports of poultry
to Argentina during almost three years.  Brazil welcomed the adoption of the Panel Report and wishedto thank the panellists and the Secretariat for their wo rk in this case.  Brazil was pleased that the Panel
had confirmed most of its claims.  The Panel had found that Argentina acted inconsistently with its
obligations under the Anti-Dumping Agreement by, among others: (i) determining that there was
sufficient evidence of dumping to initiate an investig ation (Article 5.3);  (ii) by failing to reject the
application and promptly terminate the investigation (Article 5.8);  (iii) by failing to notify several
exporters known to the investigatin g authority (Article 12.1);  (iv) by not providing the text of the
written application to the known exporters and to Brazil (Article 6.1.3);  (v) by disregarding the
export price data submitted by certain exporters (Article 6.8 and Annex II of the Anti-Dumping
Agreement);  (vi) by not making due allowance for several exporters as required in Article 2.4;
(vii) by failing to make an objective examination of injury when using different periods to evaluate
the relevant economic factors and indices listed in Article 3.4 (Article 3.1);  (viii) by including
non-dumped imports from two exporters in its injury analysis (Article 3.1, 3.2, 3.4 and 3.5);  and(ix) by failing to evaluate all the relevant economic factors and indices listed in Article 3.4
(Article 3.1 and 3.4).
42. With regard to Article 6.1.3 and the definition of the words "provide" in the English version
and "facilitar" in the Spanish version, he noted the Panel's finding - with which Brazil fully agreed -
that "the term provide would require a positive action on the part of the investigating authority akin tothat of furnishing or supplying something to someone" (paragraph 7.169) and "with the use of
different verbs in the first sentence of Article 6.1.3, 'provide' on the one hand and 'make available' onWT/DSB/M/150
Page 9
the other, the drafters intended to impose different obligations on investigating authorities depending
on the party concerned" (paragraph 7.170).  With relation to the inclusion of non-dumped imports in
the injury determination, equally important was the Panel's finding that "if a particular
producer/exporter has been found not to have dumped, then we see no basis for including that
producer/exporter's imports in the category of 'dumped imports' (paragraph 7.300)".  The Panel foundthat Argentina's violations under the Anti-Dumping Agreement in the present investigation were of a
"fundamental nature and pervasive" and had r ecommended that Argentina revoke the anti-dumping
measure and repeal Resolution 574/2000.  Brazil was pleased with the fact that Argentina had
complied with this recommendation and had repealed the measure after the issuance of the interim
Report.
43. The representative of Argentina said that his co untry first wished to thank the Panel that had
examined this case and the Secretariat for their work.  Even though the Panel had found that the
measure imposed by Argentina was inconsistent with certain aspects of the Anti-Dumping
Agreement, the Panel had also found that Argentina's investigating authority had acted consistently
with certain claims made, some of which were particularly important for the authorities responsible
for administering and applying the WTO Agreements at the domestic level.  In this connection,
Argentina noted with satisfaction the Panel's finding that the system for applying and collecting anti-dumping duties in Argentina, consisted of fixing va riable anti-dumping duties (the difference between
the f.o.b. price invoiced and a minimum export value) was not inconsistent with either the provisions
or the spirit of the Anti-Dumping Agreement.  Fina lly, Argentina wished to inform the DSB that,
following revision of the measure, initiated ex officio  by the Argentine Department of Unfair
Competition in September 2002, the Argentine Government had eliminated the anti-dumping dutiesimposed under resolution ME 574/2000, which had been the subject of this dispute, by means of
resolution MP 79/03 of the Ministry of Production, dated 26 March 2003.  Argentina, therefore,
considered that it had fully implemented the Panel's recommendations.
44. The representative of the United States said that her country believed that the Panel Report in
this dispute was, on the whole, a good document, reflecting the care and effort which the Panel and
the Secretariat had obviously devoted to their task.  There was much in it with which the United States
agreed.  The United States did, however, wish to comment on one aspect of this Report which was of
systemic importance to the dispute settlement system, that is, the Panel’s statement in
paragraphs 7.35-7.36 of its Report that there were circumstances in which a panel could find that a
Member had failed to act in good faith, separate and beyond a finding that the Member’s measure was
inconsistent with a WTO Agreement  provision.  The Panel had cited no provision of a covered
agreement in support of this proposition, instead relying only on a statement of dictum  by the
Appellate Body in the US – CDSOA  dispute.  Moreover, the Appellate Body had not provided any
basis in the text of any covered agreement for that statement.  Indeed, the Appellate Body statement
had no grounding in any agreed WTO text.  It was difficult to conceive of a scenario which more
clearly implicated the prohibition in Articles 3.2 and 19.2 of the DSU that panels and the Appellate
Body not add to or diminish the rights and obligations of Members provided in the coveredagreements.  Article 7 of the DSU reinforced Articles 3.2 and 19.2 by confining the scope of a panel
and the Appellate Body’s task to reviewing the rele vant provisions of the covered agreements.  Any
review of a Member’s so-called “good faith” outside a relevant provision of the covered agreements
was outside the scope of WTO dispute settlement and panels and the Appellate Body's lacked the
authority to make any such findings.
45. The only support the Appellate Body had offered for its dictum  was to refer to its earlier
reports.  Not only had the Appellate Body gone beyond what was said in those reports, but the phrase
“adopted panel and Appellate Body reports” was not even found in the list of covered agreements set
forth in Appendix 1 to the DSU.  Prior reports di d not “create” rights or obligations and might not be
relied on by panels and the Appellate Body, as if they were covered agreements.  Similarly, as theUnited States noted at the 27 January 2003 DS B meeting where the CDSOA reports had been
adopted, Appendix 1 did not list an international law principle of good faith.  A statement of theWT/DSB/M/150
Page 10
Appellate Body could no more authorize a panel to enforce a public international law principle of
good faith than it could authorize a panel not to enforce a Member’s national treatment obligations
under Article III of GATT 1994.  Members had expressed their agreed-to rights and obligations in the
text of the WTO Agreement, and the dispute settlement system might not add to or diminish these
rights and obligations.  The Panel had correctly noted in paragraph 7.41 of its Report that it was “noteven bound to follow rulings contained in adopted WTO panel reports.”  It would have done well in
this case not to follow the dictum  of the CDSOA Appellate Body Report.
46. On a separate topic, the United States was pleased that the Panel had concluded that a
principle of estoppel was not applicable in this dispute.  The United States agreed with the Panel’s
ultimate conclusion, but was troubled by the Panel’s analysis.  It noted that, given the principle’s
inapplicability, there was no need for the Panel to engage in its extensive discussion of this issue.
Having offered these comments, the United States wish ed to reiterate that it believed this was, on the
whole, a good report.
47. The representative of Malaysia said that his delegation wished to be associated with the
statement made by the United States.
48. The DSB took note of the statements and adopted  the Panel Report contained in
WT/DS241/R.
5. United States – Subsidies on upland cotton
(a) Procedures for developing information under Annex V of the SCM Agreement
49. The Chairman said that as Members were aware this item was on the agenda of the present
meeting at the request of Brazil and he invited the representative of Brazil to take the floor.
50. The representative of Brazil said that two months ago, on 18 March, at the request of Brazil,
the DSB had established a panel concerning subsidies granted by the United States to upland cotton.
The massive subsidies granted by the United States for the production, use and export of upland
cotton amounted to over US$4 billion in 2001, which maintained and increased the production and
export of US upland cotton as from 1999.  The staggering size of subsidization had permitted US
cotton producers, whose production costs were among the highest in the world, to expand acreage,production and exports, while world prices had fallen.  This illegal subsidization had a significant
negative impact on Brazil and on other lower-cost pr oducers in Africa and elsewhere.  Sixty days after
the Panel had been established, its composition would be known on this very day after designation by
the Director-General.  Thereafter, the panel procedures would take its normal course.  The 60 days
foreseen for the procedures under Annex V had also elapsed.  He recalled that already in its first panel
request, dated 7 February 2003, Brazil had also requested that the DSB initiate the procedures
provided in Annex V of the SCM Agreement.  The only requirement for the development of evidenceunder the procedures of Annex V was the referral of the matter to the DSB under paragraph 4 of
Article 7 of the SCM Agreement.  The procedures under Annex V had thus been initiated as of the
establishment of a panel on 18 March 2003.  Having the matter referred to it and, consequently,
having the Annex V procedures started, the DSB was required, pursuant to paragraph 4 of the same
Annex, to designate a representative to facilitate the information-gathering process, which should becompleted within 60 days of the referral of the matter to the DSB.  Brazil had made all possible
efforts to have this designation at the 18 March DSB meeting, then at the special DSB meeting
requested by Brazil on 31 March and again at the DSB meeting on 15 April.  Brazil had also
requested that the suspended special DSB meeting be reconvened, but that had not been done by the
Chairman.  On all occasions, Brazil had been faced with the lack of cooperation by the United Statesand unexpected procedural hurdles incompatible with the WTO dispute settlement system's spirit and
aim to secure a positive solution to the disputes.WT/DSB/M/150
Page 11
51. The 60-day period for the collection of information had passed and the representative of the
DSB could not be designated.  On 1 April, Brazil, although regretting that the information-gathering
process could not benefit from the presence of the facilitator, had sent a list of questions to the United
States and to the third-country markets listed by Brazil.  The questions to the United States included
questions that Brazil had first asked the United States in consultations on 22 November 2002,six months ago.  Brazil noted with satisfaction that most of those countries had cooperated in the
process, as required by paragraph 1 of Annex V, and had provided answers to the questions asked by
Brazil.  His country, therefore, wished to than k Argentina, Colombia, the EC, India, Indonesia,
Philippines, Switzerland and South Africa for th eir cooperation in the orderly course of these
procedures.  Thus far, Brazil had not received repl ies to the 1 April questions addressed to the United
States and was still waiting six months after the first request for questions for information relating to
issues regarding export credit guarantees, among other issues.  This absence of cooperation on the partof the United States remained strikingly telling, especially in light of the cooperation of other
Members and of the communication sent by th e United States to the DSB (WT/DS267/8) on
19 March – one day after the panel had been established – in which the United States had requested
Brazil to identify the third-country markets mentioned in paragraph 1 of Annex V and had stated that
"we consider such information to be indispensa ble for the proper functioning of the Annex V
process".  Brazil had fully cooperated with the US request and had provided that information one-day
later, on 20 March.  The United States, in the same 19 March communication had also informed the
DSB that "any requests for information pursuant to the Annex V procedures might be provided in
writing to the US Mission to the WTO.  The United  States would gather the information to respond to
any such requests and provide the responses through the US Mission".  Brazil was still waiting forthose responses.  Brazil would address the implications of the US refusal to provide this information
to the Panel, but would very much like to hear from the United States why it had refused to cooperate
in the Annex V procedures.
52. The representative of the United States said that Brazil had once again raised the issue of the
information-gathering procedures under Annex V of  the Subsidies Agreement.  The US position on
this issue should be well known to Brazil and other delegations as the United States had previously
spoken on this issue at the 31 March DSB meeting and then yet again at the 15 April DSB meeting.
The United States did not wish to reiterate those points at length at the present meeting.  Instead, it
simply noted that it was Brazil’s decision to invoke the Subsidies Agreement prior to the expiration of
the Peace Clause of the Agriculture Agreement.  As such, the United States had hoped that Brazil
would have been open to reaching agreement on a way through the procedural issues raised.  Brazil
was simply not entitled to have recourse to the Annex V process since the measures at issue werecovered by the Peace Clause.  Since the measures at issue were exempted from Annex V by virtue of
the Peace Clause, there could be no Annex V process and, therefore, there could not be a 60-day
period.
53. Brazil had also stated that the Annex V process had begun.  The United States disagreed.
Paragraph 1 of Annex V required notification “as soon as the provisions of paragraph 4 of Article 7have been invoked.”  The United States agreed that Brazil had invoked these procedures.  However
paragraph 2 separately provided for the DSB to initiate the information-gathering procedures of
Annex V.  This required a consensus decision – it was not automatic.  However, the United States
had, in good faith, offered that, in the unlikely event the panel were to determine that the Peace Clause
did not preclude Brazil’s claims, the parties could then engage in the Annex V process.  However,Brazil had not accepted this proposal, instead submitting questions as though it did not need to wait
for a multilateral determination that the Peace Clause did not apply.  In so doing, Brazil failed to
respect the multilateral dispute settlement process.
54. The representative of the European Communitie s said that the DSB had already decided to
establish a panel in this case, on the basis of a request pursuant to Article 7 paragraph 4 of the
SCM Agreement and with terms of reference that included Articles 5 and 6 of the SCM Agreement.
Therefore, the DSB should have taken a decision on Brazil's request to appoint a facilitator.WT/DSB/M/150
Page 12
Furthermore, the EC continued to insist that quest ions asked in the information provided under the
Annex V procedure should be available to third parties, as it could become key elements for the Panel
to make its judgement on the case.
55. The representative of Argentina said that, like Brazil and other countries, Argentina would
also like to underscore its concern about the scope of the domestic support granted by the United
States for the production of cotton, export subsidies for cotton, and export credit guarantees for cotton
and other products.  Argentina had already expressed its concern at the harmful effects of these
policies on the global market, particularly for develo ping countries.  In addition, Argentina would like
to express its concern at the negative precedent set in this case regarding use of the procedures under
Annex V to the SCM Agreement.  First of all, Argentina wished to emphasize that paragraph 4 of
Annex V was clearly mandatory.  It determined that the DSB shall designate a representative to
collect the relevant information.  Argentina understood that it was the right of the complaining partyto invoke Annex V.  Consequently, it could be assumed that the intention of those negotiating
Annex V could not have been to give the defendant a right to oppose the procedures or to make them
dependant on consensus in the DSB.
56. Regarding the objection to the effect that the Panel should first establish the applicability of
the Peace Clause in this particular case and then, if it was determined that the measures in questionwere not covered by this clause, it should be noted that recourse to the Annex V procedures was an
unconditional right of Members and was only subject to the provisions of Article 7.4 of the
SCM Agreement.  The interpretation given by the United States made Annex V useless.  In fact,
recourse to this Annex, as mentioned above, was a right that would be nullified because the wording
of Annex V made it clear that the procedures laid  down therein came before any determination by a
panel as to whether or not the Peace Clause had been properly invoked.
57. The representative of India said that US subsidies on cotton growers totaled about
US$4 billion last year.  This depressed the world cotton prices and hurt farmers in various parts of the
world, including India.  India expressed concern at  the continued subsidization of its cotton growers
by the United States.
58. The DSB took note of the statements.
6. Argentina – Definitive safeguard measure on imports of preserved peaches
(a) Statement by Argentina
59. The representative of Argentina, speaking unde r "Other Business", said that his country
wished to draw Members' attention to the communication, dated 14 May 2003, contained in
WT/DS238/6.  In that communication, pursuant to Article 21.3 of the DSU, Argentina had informed
the DSB of its intention to comply with the DSB' s recommendations and rulings pertaining to this
dispute, as adopted at the 15 April DSB meeting and would request a reasonable period of time in
which to do so.
60. The representative of Chile said that his country noted Argentina's communication, dated
14 May 2003, and its intention to comply with the DS B's recommendations and rulings in this dispute
as well as the need for a reasonable period of time in order to comply.  As Chile had pointed out at the15 April DSB meeting, in the light of the Panel's findings, the only possible way for Argentina to
comply with the DSB's recommendations and rulings was to remove the safeguard measure in
question.  In this respect, Chile was open to determining by mutual agreement the shortest possible
period of time required for Argentina to repeal the safeguard measure on preserved peaches.  Finally,
it was Chile's understanding that, by way of the communication circulated in WT/DS238/6, Argentinahad complied with the obligation provided for in Article 21.3 of the DSU.WT/DSB/M/150
Page 13
61. The DSB took note of the statements.
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