RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/169 
30 June 2004 
 (04-2803) 
Dispute Settlement Body 
19 May 2004  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 19 May 2004  
 
Chairperson:  Ms Amina Mohamed (Kenya) 
 
  Prior to the adoption of the agenda, the item concerning the adoption of the Panel Report in 
the case on "United States – Final Dumping Determ ination on Softwood Lumber from Canada" was 
removed from the agenda following the decision of th e United States to appeal the Panel Report.    
 Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Anti-Dumping Act of 1916:  Status report by the United States.......................2  
(b) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........3  
(c) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................4  
(d) Chile – Price band system and safeguard measures relating to certain agricultural 
products:  Status report by Chile.............................................................................................. ...5 
(e) United States – Continued Dumping and Subsidy Offset Act of 2000:  Status report 
by the Unite d States ........................................................................................................... .........5  
2. Implementation of the reco mmendations of the DSB............................................................7  
(a) European Communities – Conditions for th e granting of tariff preferences to 
developing countries ........................................................................................................... ........7  
(b) United States – Investigation of the Inte rnational Trade Commission in softwood 
lumber from Canada ............................................................................................................. ......8  
3. Proposed amendments to the Working Procedures for Appellate Review .............................8  
4. Proposed nominations for the indicative list of governmental and 
non-governmental panelists ...................................................................................................18  WT/DSB/M/169 
Page 2  
 
 
1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Anti-Dumping Act of 1916:   Status report by the United States 
(WT/DS136/14/Add.26 – WT/DS162/17/Add.26) 
 
(b) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.19) 
 (c) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.19) 
 
(d) Chile – Price band system and safeguard measu res relating to certain agricultural products:  
Status report by Chile (WT/DS207/15/Add.7) 
 (e) United States – Continued Dumping and Subsid y Offset Act of 2000:  Status report by the 
United States (WT/DS217/16/Add.4 – WT/DS234/24/Add.4) 
 1. The Chairperson
 recalled that Article 21.6 of the DSU required that "unless the DSB decides 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
agenda of the DSB meeting after six months follo wing the date of establishment of the reasonable 
period of time pursuant to paragraph 3 and shall remain on the DSB's agenda until the issue is 
resolved".  She proposed that the five sub-items  to which she had just referred be considered 
separately. 
(a) United States – Anti-Dumping Act of 1916:  Status report by the United States 
(WT/DS136/14/Add.26 – WT/DS162/17/Add.26) 
2. The Chairperson  drew attention to document WT/D S136/14/Add.26 – WT/DS162/17/Add.26, 
which contained the status report by the United St ates on progress in the implementation of the DSB's 
recommendations in the case concerning the US Anti-Dumping Act of 1916. 
3. The representative of the United States  said that his country had provided an additional status 
report in these disputes on 6 May 2004, in accordance w ith Article 21.6 of the DSU.  As noted in the 
report, legislation repealing the 1916 Act was pendi ng in both the US Senate and the US House of 
Representatives.  On 29 January 2004, HR 1073, whic h would repeal the 1916 Act, had been reported 
favorably out of the Committee on the Judiciar y of the US House of Representatives.  The 
US administration was continuing to work with Congress to achieve further progress in resolving 
these disputes with the EC and Japan. 
4. The representative of the European Communities  said that in May 2003 two bills had been 
introduced in the US Senate, one to repeal the 1916 Anti-Dumping Act, the other one to repeal the 
Act and terminate the pending litigatio n.  Unfortunately, to-date, the Senate had not even started to 
discuss any of those bills.  In the House of Represent atives, a bill had finally been voted out of the 
Committee for consideration by the whole House.  Ye t, this was four months ago and since then no 
further action had been undertaken.  The persis tent non-compliance by the United States set a 
precedent which was damaging to the credibility of  the WTO as a whole.  The EC called on the 
United States to finally comply with its internati onal obligations.  Otherwise, the EC would have no 
other choice, but to seek the DSB's authorization to  suspend the application of its obligations under 
the GATT 1994 and the Anti-Dumping Agreement. 
5. The representative of Japan  said that his country remained gravely concerned as to whether 
and when the implementation by the United States in  this proceeding would be secured.  As Japan had 
repeatedly stated, prompt implementation of the DSB's recommendations and rulings was of  WT/DSB/M/169 
 Page 3 
 
 
fundamental importance to the credibility of th e WTO dispute settlement system.  Japan was 
especially concerned that Japanese companies were s till being forced to incur substantial damages, 
including significant legal costs in cases brought u nder the WTO-inconsistent Act.  As Japan had 
previously stated, the implementation by the United States should also address this situation.  Japan, 
once again, called on the US Congress to pass the legislation repealing th e 1916 Act with proper 
retroactive effects.  To this end, Japan urged the US administration to work much closer with 
Congress and to provide more detailed reports  on the status of all the repealing b ills of the 1916 Act.  
Japan had not yet made a final decision on the reactivation of the DSU Article 22 arbitration.  Nevertheless, Japan reminded the United States of its right to suspend concessions or other 
obligations. 
6. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(b) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.19) 
7. The Chairperson  drew attention to document WT/DS176/11/Add.19, which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US Section 211 Om nibus Appropriations Act of 1998. 
8. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 May 2004, in accordance with Article 21.6 of the DSU.  The US administration was 
continuing to work with the US Congress concer ning appropriate statutory measures that would 
resolve this matter.  In this c onnection, the United States wished to  report that legislation had been 
introduced in the US House of Representatives  on 28 April 2004, and in the US Senate on 
29 April 2004, to amend Section 211 to address the recommendations and rulings of the DSB in this 
dispute.  Legislation repealing Section 211 was already pending in both Houses of Congress. 
9. The representative of the European Communities  said that the United States had expressed on 
numerous occasions its attachment to effective and non-discriminatory protection of intellectual 
property rights.  The House and Senate's bills for the "US – Cuba Trademark Protection Act" were a 
welcome reaffirmation of the US commitment to this objective.  They offered a basis to resolve this 
dispute to the benefit of all by ensuring an effe ctive protection of intellectual property rights both in 
Cuba and in the United States as we ll as removing a damaging special interest legislation.  The EC 
expected that the US administration would suppor t these bills as an appropriate solution to this 
dispute. 
10. The representative of Cuba  questioned how much longer her country as well as other 
Members would have to witness the indifference and contempt with which the United States treated its commitments under this dispute settlement mech anism.  Cuba noted that there was no sign of 
readiness or willingness on the part of the United St ates to comply with the DSB's recommendations 
and, as usual, the US status report in a cunning and deceitful manner, merely indicated compliance 
with the requirement of surveillance of the im plementation of these recommendations.  As was known 
to and discussed by international public opinion, Sec tion 211 had its roots in the manipulations of one 
company – Bacardi & Company Limited.  This was not a US company, but its political and economic interests were linked to the US aggressive policy di rected at the Cuban people, which was in violation 
of international law, including in tellectual property agreements.  
11. The company in question was involved in unlawfu l, aggressive and inhumane actions against 
Cuba and its people;  i.e. Torricelli's Law, the in terventionist and arbitrary Helms-Burton Act and the 
recent measures adopted by the US administration, th e cowardly, cruel and inhumane nature of which 
had led to their rejection by both the Cuban peopl e and the international community.  The UN General 
Assembly had condemned the blockade policy agains t Cuba ever since 1992 and, in its last sessions, WT/DSB/M/169 
Page 4  
 
179 countries had voted in favour of ending the embargo, with only three votes against it and two abstentions. Inspired and backed by a group with the desire to destroy the humane and fair work of the 
Cuban Revolution, bills designed to make cosmet ic changes to Section 211 had recently been 
introduced in the US House of Representatives and Se nate.  Officially, their aim was to comply with 
WTO rules while, in reality, they would perpetuate spurious and unlawful actions in favour of a rum 
company to the detriment of the legitimate rights of a Cuban enterprise, rights which were acquired 
under US trademark legislation.  
12. Cuba reiterated that the only legal, ethical, tr uthful and fair solution to this dispute was a 
complete and immediate repeal of Section 211, approved by the US Congress.  Cuba had a vocation 
for and a long tradition of complying, on a non- discriminatory basis, with the international 
commitments it had undertaken under the intellectual property treaties, conventions and agreements.  
The institutions and private companies, including those of the United States, had benefited, and 
continued to benefit, from such compliance.  For th is very reason, Cuba had the right to demand an 
end to the manoeuvring in this di spute settlement process and to requ est that the United States comply 
fully with its obligations and that it refrain from hampering the legitimate trade interests of Members 
by means of legal stratagems, which were inconsis tent with the non-discrimination and transparency 
obligations it had undertaken as a WTO Member .  Recently, the US administration had been 
characterized by a policy of lies, deception, impos ture, threats and coercion of the international 
community in order to enforce its decisions.  If th e United States maintained its stance of protecting 
the unlawful interests of a rum company and was not met with a firm but fair response, the TRIPS Agreement might as well be shelved, and the very same right being assumed by the United States 
could be assumed by other countries to the detriment of international legal or der.  Action should be 
taken to prevent the United States from destroyi ng the WTO and from reducing the importance of 
international agreements to nothing  more than just a piece of paper.  At this stage, it was Cuba, a 
small, blockaded country, that suffe red from violation of its legitimate rights; in future such a fate 
could befall others. 
13. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(c) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.19) 
14. The Chairperson  drew attention to document WT/D S184/15/Add.19 which contained the 
status report by the United States on progress in th e implementation of the DSB's recommendations in 
the case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
15. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 May 2004, in accordance with Article 21.6 of the DSU.  The US administration was 
continuing to work with the US Congress with re spect to the recommendations and rulings of the 
DSB that had not been addressed by 23 November 2002. 
16. The representative of Japan  said that it was of great regret to his country that no bills had even 
been introduced to the US Congress before the expiry of the reasonable period of time in 
December 2003.  Until now Japan had received no si gns of progress that would follow up on the 
"specific legislative amendments" that had been pl edged to by the US administration a year ago. 
Further delay in implementation would impair the credibility of the WTO dispute settlement 
mechanism.  Japan urged the United States to pr omptly implement the DSB's recommendations and 
rulings in this proceeding, before the end of th e newly extended reasonable period of time;  i.e. 
31 July 2004.  Should the obligation to comply with the DSB's recommendations and rulings be disregarded once again, Japan wished to remind the Un ited States of its right to the recourse set forth 
in the DSU provisions.   WT/DSB/M/169 
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17. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) Chile – Price band system and safeguard measure s relating to certain agricultural products:  
Status report by Chile (WT/DS207/15/Add.7) 
18. The Chairperson  drew attention to document WT/DS207/15/Add.7, which contained the 
status report by Chile on progress in the implem entation of the DSB's recommendations in the case 
concerning price band system and safeguard measu res relating to certain agricultural products. 
19. The representative of Chile  said that on 6 May 2004, his country had submitted a new status 
report in spite of the fact that there had been no progress within the meaning of Article 21.6 of the 
DSU since the end of December 2003, when the measu res had been adopted by Chile to comply in 
both the form and substance with the recommendations  and rulings of the DSB in this dispute.   
20. The representative of Argentina  said that given that there had been no progress within the 
meaning of Article 21.6 of the DSU since the prev ious status report, Argentina was obliged to 
reiterate that disagreement under the terms of Article 21.5 of the DSU continued to exist.  In view of 
this disagreement, Argentina would request consu ltations with Chile within the framework of the 
Understanding signed on 24 December 2003 regarding  procedures under Articles 21 and 22 of the 
DSU (WT/DS207/16) in order to seek a mutua lly agreed solution to this dispute.  
21. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) United States – Continued Dumping and Subsidy Offset Act of 2000:  Status report by the 
United States (WT/DS217/16/Add.4 – WT/DS234/24/Add.4) 
22. The Chairman  drew attention to document WT/DS217/16/Add.4 – WT/DS234/24/Add.4 
which contained the status report by the United St ates on progress in the implementation of the DSB's 
recommendations in the case concerning the US Conti nued Dumping and Subsidy Offset Act of 2000. 
23. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 May 2004, in accordance with Articl e 21.6 of the DSU.  As noted in the report, on 
19 June 2003, legislation to bring the Continue d Dumping and Subsidy Offset Act (CDSOA) into 
conformity with the United States' WTO obligations ha d been introduced in the US Senate (S. 1299).  
On 10 March 2004, legislation repealing the CDS OA had been introduced in the US House of 
Representatives (H.R. 3933).  In addition, on 2 Februa ry 2004, the US administration had, once again, 
proposed repeal of the CDSOA in its budget proposal for fiscal year 2005.  The US administration was continuing to work with Congress to achieve fu rther progress in resolving these disputes with the 
complaining parties.   
24. The representative of the European Communities
 said that this was the fourth item on the 
agenda of the present meeting where the United Stat es reported no progress in implementation.  Even 
though one year would soon have elapsed since the introduction of the first bill, discussions had not even started on either of the two pending bills.  Wh ile the EC was legitimately expecting indications 
of a serious effort towards implementation, statem ents indicating the opposite  were being made as 
well as calls for renegotiation of the WTO rules.  Such a disregard for a DS B ruling was inexcusable 
and extremely detrimental to the authority of the dispute settlement mechanism.  The EC urged the 
United States, once again, to abide by its internati onal obligations and to respect the rights of other 
Members by implementing without further delay the rulings and recommendations.  
25. The representative of Japan
 said that his country had taken note of the status report by the 
United States which was practically the same as the one presented at the previous DSB regular WT/DSB/M/169 
Page 6  
 
meeting.  While the award of the Arbitrator  was still pending, Japan strongly urged the US 
administration to do everything in its power to promptly implement the DSB's recommendations and 
rulings through repealing the CDSOA, so th at it would be unnecessary for Japan and other 
complaining Members to resort to retaliatory measures. 
26. The representative of Chile
 expressed his country's regret about the lack of progress by the 
United States with regard to comp liance with the recommendations and rulings in this dispute, as in 
the three other cases before the DSB at the present m eeting.  Not only was the United States delaying 
the repeal of the Continued Dumping and Subsidy O ffset Act of 2000, which had been declared to be 
inconsistent with the WTO-provisions, but it was also seeking to "legalize" it as part of the negotiations on rules.  Chile did not question the sovereign right of each Member to distribute the 
proceeds of the application of anti-dumping or countervailing duties.  However, Chile objected to 
what was prohibited by the WTO, namely, the applic ation of a double remedy in cases of dumping or 
subsidization.  This "d ouble hit", as referred to by the US trade representative, directly affected 
Chile's exports and the level of nullification and im pairment suffered by Chile continued to increase 
every day as a result of the Byrd Amendment.  Chile, one again, called on the US administration and 
the US Congress to intensify their efforts to secure  the earliest repeal of the Byrd Amendment. 
27. The representative of Canada
 said that his country, once again, noted the status report of the 
United States and the US continued failure to comp ly with its WTO obligations with regard to the 
Byrd Amendment.  The lack of any progress by the United States to bring itself into conformity with 
the recommendations and rulings of the DSB was an  ongoing concern to Canada.  Despite the various 
pronouncements by the US administration that th e Byrd Amendment should be repealed, the illegal 
measure remained in force to the detriment of ot her WTO Members, including Canada.  He recalled 
that an arbitrator would determine the level of re taliation that Canada and seven other Members could 
impose against the United States for its non-compliance in this dispute.  Despite this, the Canadian 
objective remained the repeal of this WTO-inconsistent measure ra ther than retaliation. Canada, 
therefore, urged the United States to repeal th e Byrd Amendment and to end this dispute. 
28. The representative of India  said that his country wished to thank the United States for yet 
another status report in this disput e.  India regretted that no prog ress had been made to repeal the 
CDSOA and, once again, it wished to urge the United States to redouble its efforts to secure 
compliance of its obligations by repealing the CDSOA.  
29. The representative of Brazil  said that, like previous speakers, his country was also 
disappointed about the lack of implementation of  the DSB's recommendations on the part of the 
United States.  Brazil hoped that implementation w ould come before the retaliatory measures would 
be imposed. 
30. The representative of Korea  said that his country thanked the United States for its status 
report.  Unfortunately, however, that report was practically the same as the previous ones, which 
meant that no progress was being made.  As the EC ha d pointed out, it was regrettable that instead of 
implementing the recommendations and rulings of the DSB in this dispute, the United States seemed 
to wish to renegotiate the WTO rules, as the mo st recent US proposal in the Negotiating Group on 
Rules had indicated.  Korea urged the United States  to achieve prompt implementation of the DSB's 
rulings so that recourse to suspensi on of concessions would become unnecessary. 
31. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  WT/DSB/M/169 
 Page 7 
 
 
2. Implementation of the recommendations of the DSB 
(a) European Communities – Conditions for the granting of tariff preferences to developing 
countries 
 (b) United States – Investigation of the Interna tional Trade Commission in softwood lumber from 
Canada 
 32. The Chairperson
 recalled that, in accordance with th e DSU provisions, the DSB was required 
to keep under surveillance the implementation of r ecommendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Members.  In this respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  She propo sed that the two sub-items to which she had just 
referred be considered separately. 
(a) European Communities – Conditions for the gr anting of tariff preferences to developing 
countries 
33. The Chairperson  recalled that at its meeting on 20 April 2004, the DSB had adopted the 
Appellate Body Report in the case on "European Co mmunities – Conditions for the Granting of Tariff 
Preferences to Developing Countries" and the Pane l Report on the same matter, as modified by the 
Appellate Body Report.  She then invited the European Communities to inform the DSB of its 
intentions in respect of implementation of the DSB's recommendations. 
34. The representative of the European Communities  recalled that on 20 April 2004, the DSB had 
adopted the recommendations and rulings in the case on "European Communities – Conditions for the 
Granting of Tariff Preferences to Developing Countries".  At that meeting, the EC had already indicated that it intended to fully implement the DSB's rulings.  At the present meeting, the EC 
wished to confirm its intention to fully implem ent the recommendations and rulings of the DSB in 
this case in a manner consistent with the WTO ob ligations and it had already begun to evaluate 
options for doing so.  The EC intended to modify  the "Drugs Arrangements" of its GSP scheme to 
make it fully compatible with the DSB's ruli ngs and recommendations.  Due to the relative 
complexity of the issues involved and the need for a satisfactory implementation, the EC would need 
a reasonable period of time in which to implement.  The EC stood ready and was willing to discuss an appropriate reasonable period of time for im plementation with India, in accordance with 
Article 21.3(b) of the DSU. 
35. The representative of India
 said that after the extraordinarily long statement made by his 
country at the time of adoption of the Reports in this matter at the 20 April DSB meeting, his 
delegation would make a very short statement at the present meeting.  India welcomed the 
reconfirmation by the EC at the present meeting that it intended to implement the recommendations 
and rulings of the DSB in this dispute.  Since th e EC had indicated that it would require a reasonable 
period of time, assuming it was impracticable to comply immediately, India looked forward to meeting with the EC in the near future in orde r to reach an agreement on the reasonable period of 
time. 
36. The DSB took note
 of the statements and of the information provided by the European 
Communities regarding its intentions in respect of implementation of the DSB's recommendations. WT/DSB/M/169 
Page 8  
 
(b) United States – Investigation of the Internati onal Trade Commission in softwood lumber from 
Canada 
37. The Chairperson
 recalled that at its meeting on 26 April 2004, the DSB had adopted the Panel 
Report in the case on "United States – Investiga tion of the International Trade Commission in 
Softwood Lumber from Canada".  She then invite d the United States to inform the DSB of its 
intentions in respect of implementation of the DSB's recommendations. 
38. The representative of the United States  said that his country intended to implement the 
recommendations and rulings of the DSB in a manner that respected the United States' WTO 
obligations, and it had begun to evaluate options  for doing so.  The United States would need a 
reasonable period of time in which to implement.   The United States stood ready to consult with 
Canada regarding a reasonable period of time. 
39. The representative of Canada  recalled that at the special meeting on 26 April 2004, the DSB 
had adopted the Panel Report in the case on " United States – Investigation of the  International Trade 
Commission in Softwood Lumber from Canada".  He recalled that a finding central to the 
US determination of threat of injury had been f ound to be inconsistent with  US obligations under the 
Anti-Dumping Agreement and the SCM Agreement.  The DSB had determined that the finding of a 
likely imminent substantial increase in imports of Canadian softwood lumber products was not one 
which would have been reached by an objective a nd unbiased investigating authority.  The DSB had 
also ruled that, given that it was based on the very same finding, the causal analysis by the 
United States was inconsistent with the cited Ag reements.  Consequently, the DSB had recommended 
that the United States bring its measures into confor mity with its obligations under the Anti-Dumping 
Agreement and the SCM Agreement.  Canada was pl eased to note that the United States had declared 
its intention of implementing the recommendations and rulings of the DSB.  Canada's objective was to 
reach an agreement with the United States on a re asonable period of time and it looked forward to 
discussing US intentions in detail in the very near future. 
40. The DSB took note  of the statements and of the info rmation provided by the United States 
regarding its intentions in respect of implementation of the DSB's recommendations. 
3. Proposed amendments to the Working Procedures for Appellate Review (WT/AB/WP/8) 
41. The Chairperson  recalled that, as announced at the DSB meeting on 20 April 2004, this matter 
had been placed on the agenda of the present mee ting pursuant to the "Additional Procedures for 
Consultations between the Chairperson of the DSB and WTO Members in relation to Amendments to 
the Working Procedures for Appellate Review " contained in document WT/DSB/31, in order to enable 
delegations to exchange views on certain amendmen ts under consideration by the Appellate Body, as 
set out in document WT/AB/WP/8.  She also recalled that at the 20 April DSB meeting, she had invited Members to provide written comments on the amendments by 26 May 2004.  At the present 
meeting, she wished to inform delegations that , thus far, no written comments had been submitted on 
the amendments under consideration.  She then i nvited delegations to pr ovide their views on the 
amendments for the record. 
42. The representative of the United States
 said that his country wished to thank the Chairperson 
and the Appellate Body for providing this cons ultation process in connection with the Appellate 
Body's proposed amendments to its working proced ures.  At the present meeting, the United States 
wished to share with the Chairperson and Memb ers some of its observations about the proposed 
amendments.  The United States would also we lcome the opportunity to express its views on the 
proposed amendments at an additional, informal meeting of the DSB.  The United States would 
expect to have additional comments at such an inform al meeting.  At this point, his delegation wished 
to express the following thoughts.  First, the Unit ed States appreciated the need to update the 
procedures on setting the date of the oral hearing, a nd wondered if it would not also be useful as part  WT/DSB/M/169 
 Page 9 
 
 
of this exercise to provide that the Appellate Body w ould consult, very briefly, with the parties to the 
appeal before finalizing the date for the oral hearing. 
43. Second, in connection with the calculation of time-limits in the DSU, the United States 
appreciated the significant efforts that the Appellate  Body and the Secretariat had made over the years 
to meet DSU time-frames, as well as the difficulties this had posed, particularly in December and 
August.  While the Appellate Body's proposed a pproach of tolling deadlines during these periods was 
not unreasonable, the language of the DSU did not, as cu rrently written, permit this.  This was an item 
that could be taken up in the DSU negotiations, if Members wished to amend the time-frames. 
44. Third, the United States also wished to co mment on the proposed amendments concerning 
Notices of Appeal.  These proposals had provided a usef ul opportunity to re-examine the role of these 
notices.  Appellees had increasingly been seeking to  challenge the sufficiency of the Notice of 
Appeal, based on the criteria set forth in the curre nt working procedures, as well as the Appellate 
Body's subsequent explanations of those criteria. Given the current situation, as well as ambiguities in 
the current working procedures, the Appellate Body was proposing amendments which would add 
additional requirements, and in the interest of bala nce, would also require a parallel notice for cross 
appeals.  The proposal would also add a process for amending the Notice, and would modify the 
briefing schedule to accommodate other changes.  The United States appreciated that it was the 
intention of the Appellate Body to introduce great er predictability and fair ness through its proposed 
amendments.  However, it wondered if the net result of the proposed modifications would be to make 
the situation even more complicated and difficult, an d take away from the time that could be devoted 
to considering the important issues on appeal on thei r merits.  The United States wondered if it would 
not be possible to devise a different approach to a ddress the same concerns that would reduce, rather 
than increase, procedural distractions.  Perhaps such an approach could build upon some of the 
Appellate Body's ideas regarding the timetable for appeals.  
45. He noted that the DSU only provided that a Member wishing to appeal had to notify the DSB 
that it intended to do so.  There were no other requi rements for these notifications, and, apart from the 
requirement in the DSU that appeals be limited to issues of law and legal interpretations in the panel 
report, the DSU did not limit the scope of appeal.  Accordingly, the United States would be willing to 
work with the Appellate Body and Members to find a way to simplify the process and allow the 
Appellate Body and the parties to devote more of  the very limited time to the issues on appeal and 
spend less on procedural distractions. In conclu sion, the United States looked forward to further 
discussion of these issues among Members, and to di alogue with the Appellate Body through this 
process. 
46. The representative of the European Communities  said that the EC had thoroughly examined 
the amendments proposed by the Appellate Body and considered that, in principle, they represented 
improvements to the Appellate Body's working pr ocedures.  Moreover, the EC highly valued the 
opportunity given to Members to comment on the re gular updating of the Appellate Body's working 
procedures.  The EC would provide detailed comments in writing, including on the draft text annexed 
to document WT/AB/WP/8, before 26 May 2004, as re quested.  With regard to the Appellate Body's 
proposal on the content of the Notice of Appeal, th e EC noted that a clear list of what should be 
included in the text of the Notice would be useful and would be in line with the purpose of Rule 20 on 
commencement of an appeal.  Moreover, the EC supp orted the Appellate Body's view that the Notice 
of Appeal did not only trigger an appeal, but also  enabled the appellee to exercise fully its right of 
defence.  Similarly, the EC considered that the Appellate Body's proposal on the creation of a Notice 
of Other Appeal was based on sound motives and should be confirmed.   
47. The third proposal of the Appellate Body concerning procedures for amending Notices of 
Appeal was the most delicate.  The EC realized through its own experience in the case on "EC – Sardines" that the working procedures did not provide  for amending a Notice of Appeal.  In the past, 
appellants had adopted the procedure of withdr awing the original Notice and filing a new one WT/DSB/M/169 
Page 10  
 
immediately thereafter.  The Appellate Body ha d affirmed that Rule 30(1) permitted conditional 
withdrawals, unless the condition imposed undermined the fair, prompt and effective resolution of 
trade disputes, or unless the Member attaching th e condition was not engaging in dispute settlement 
procedures in good faith in an effo rt to resolve the dispute.  Thus , it was not clear how the proposed 
rule would relate to Rule 30(1) and the Appe llate Body's above-mentioned jurisprudence on 
conditional withdrawals.  The EC presumed that in cases of requests for amendment and conditional 
withdrawals, the Appellate Body would apply the sam e standard, i.e., reject new or modified Notices 
of Appeal in cases where it considered this to be  an exercise of abusive litigation techniques.  
Thereupon, in order to formulate its opinion correctly , the EC would be grateful if the Appellate Body 
could provide some additional clarification on the effect that the proposed rule would have on the 
Appellate Body's decisions on Rule 30(1).  
48. The EC then referred to the Appellate Body's  proposal on Rule 18(5) and said that the EC 
agreed with the content and rationale of the prop osed amendment.  As a matter of fact, one could 
consider that a general rule along the same lines could also be introduced in panel proceedings.  
Likewise, the EC entirely agreed with the Appellate Body's suggestion to modify Rule 27(1) to reflect 
the consistent practice.  Finally, he wished to refe r to the question of "holidays".  The Appellate Body 
was right in noting that, in the past, there had been cases in which a Notice of Appeal had been 
lodged, then withdrawn and then filed again at a la ter date just to avoid having the 90-day period to 
end at the core of summer/winter vacations.  Therefore, a period of recess at those times would appear appropriate. 
49. The representative of Argentina
 thanked the Appellate Body for circulating its proposed 
amendments to the Working Procedures for Appellate Review , together with the corresponding 
explanations contained in WT/AB/WP/8.  Bearing in  mind the request made by the Appellate Body in 
Section VII of its communication and the inclusion of this item on the agenda  of the present meeting, 
Argentina wished to make the fo llowing comments.  With regard to Notices of Appeal, Argentina 
considered that the reasons given by the Appellate  Body in proposing a change in the content of 
Notices of Appeal were valid, as this could serve to standardize requirements concerning 
identification of the nature of the appeal and the a llegations of errors raised.  It would, therefore, 
better preserve the defence rights of the other par ties to the proceedings.  However, Argentina was 
concerned that an increase in the complexity of the requirements app licable to the Notice of Appeal – 
which currently reflected a degree of laxity in term s of form – could raise the level of litigiousness at 
an early stage of appeal.  This might encourage Members to raise objections merely to gain time on 
the grounds of lack of clarity in the Notices.  It would, therefore, be desirable to strike a balance 
between the requirement for greater precision in th e description of alleged errors and the need to 
avoid the possibility for dilatory arguments to be raised. 
50. With regard to Notices of Other Appeal, Arge ntina supported the arguments put forward by 
the Appellate Body since at present only the appella nt was obliged to file a Notice of Appeal.  
Inasmuch as this obligation did not apply to the othe r appellants, i.e., those that filed a cross-appeal, 
the appellant would be placed at a disadvantage vis-à-vis  the other appellants.  He noted that the 
amendment in question did not appear to be a substa ntive one.  It merely established an obligation to 
file the Notice in question three days before the date on which the other appellant's submission had 
been filed.  Furthermore, this short period woul d be reduced to a single day in disputes involving 
prohibited subsidies.   
51. Concerning the proposal on amendments to Notices of Appeal, Argentina recognized the 
importance of this possibility in streamlining a pr ocedure that, in practice, involved the filing of 
different documents, while at the same time served to preserve the Notice of Appeal in one single 
document, which defined the scope of the appeal.  W ith regard to the proposal relating to the deadline 
for correcting errors, in Argentina's view the word "c lerical", as currently used in the English version 
of the working procedures, had a more limited scope than the word "minor", which had been 
proposed.  Accordingly, Argentina considered the proposed amendment to be somewhat more than a  WT/DSB/M/169 
 Page 11 
 
 
semantic one, as it would permit corrections of not only  typographical errors, but also minor errors of 
a different nature.  However, the proposed amendm ent had the merit of establishing an indicative list 
of errors that might be considered "minor".  Ar gentina recognized the need for this amendment as a 
practical measure. 
52. With regard to the proposals for amending the tim e-limits for hearings and the calculation of 
the 60 and 90 day time-limits stipulated in Article  17.5 of the DSU, it was Argentina's understanding 
that these proposals responded to practical require ments and thus supported them.  Argentina 
considered that it would be desirable to reflect on the systematic practice of the Appellate Body by establishing a longer time-limit (35-45 days) for the h earing with the parties than the one currently 
provided for, given the intense pressure under whic h the AB Division, Secretariat officials and the 
parties to a dispute were required to work.  Argen tina regarded as realistic the proposal not to include 
the Christmas and August holiday periods in th e calculation of the 60 and 90 day time-periods 
specified in Article 17.5 of the DSU.  It also noted the possibility that the AB Division, after 
consultation with the participants and third participants, make appropr iate modifications to the appeal 
schedule on a case-by-case basis.  In this connection, Argentina would point to the need to consider 
the same treatment towards the Southern Hemisphere Members. Finally, he said that it was 
Argentina's intention to submit comments in writing, as requested. 
53. The representative of Canada
 said that his country would make written comments in due 
course.  At this stage, Canada wished to make an  observation in respect of certain comments that had 
been made at the present meeting.  In its first report, the Appellate Body had found that the WTO 
Agreement was not to be interpreted in clinical is olation from public international law.  That included 
the DSU and the general principles of public intern ational law that applied to judicial and quasi-
judicial dispute settlement mechan isms.  For example, procedural fairness and due process were not 
found anywhere in the DSU and yet it would be di fficult to imagine any delegation, relying on a 
wholly literal interpretation of the DSU to suggest  that these principles did not apply to panel 
proceedings.  Another principle that governed all tribunals was the importance of avoidance of trial 
"by ambush".  The proposals of the Appellate Body ga ve effect to this principle by amplifying the 
notification requirements skeletally set out in th e DSU, without in any way, going outside the 
parameters of the DSU.  In this sense, the clarific ation provided by the Appellate Body of the existing 
rules regarding notices of appeal was to be welcomed .  Canada would, of course, provide more ample 
explanation of its position in due course. 
54. The representative of Brazil  thanked the Appellate Body for highlighting the current problems 
and for proposing solutions with regard to appeal procedures.  Brazil appreciated the fact that the 
Appellate Body had invited Members to put forward their views on these issues.  At the present meeting, Brazil wished to make some general and specific comments.  With regard to the Notice of 
Appeal, he noted that it was not a "legal institute" known to many Civil Law countries.  In Brazil, for 
example, there was no requirement that a Notice of Appeal be filed and the appeal procedure began 
with the filing of an appeal submission.  It was his understanding that also in some Common Law 
countries, courts generally only required a notice of the decision to be appealed, and that it was not required that such notice be detailed.  Brazil recogni zed that, currently, the notice of appeal served the 
useful purpose of summarizing the appeal for the bene fit of both the Appellate Body and the parties.  
In its communication, the Appellate Body assumed th at the Notice of Appeal not only triggered the 
appeal, but that it also outlined the nature of the app eal.  In this context, one could also envisage a rule 
according to which an appellant's submission would be issued simultaneously with the Notice of 
Appeal.  Alternatively, the Notice of Appeal could simply be inserted into a submission as the first 
part of the appellant's submission, even in the form that was currently  used.  From the perspective of a 
practising lawyer, the basic element lawyers had to know, as soon as possible, in drafting a submission were the legal argumen ts, which would come in the appeal submission, not the legal 
issues.  The legal issues were known already by the parties involved in the dispute.  WT/DSB/M/169 
Page 12  
 
55. According to the Appellate Body, a Notice of Appe al, in fact, would be the equivalent of the 
request for the establishment of a panel.  Brazil wond ered whether this was appropriate.  With regard 
to the proposal by the Appellate Body concerning  Rule 22(d), Brazil wondered whether the term 
"description of the alleged errors" would not give ri se to further squabbling about the scope of such 
description.  It was not clear how detailed such d escription would have to be.  He wondered whether 
this could prompt parties to raise preliminary issues such as those often raised under Article 6.2 of the 
DSU during the panel process.  It was Brazil's unders tanding that the intention of the Appellate Body 
was to consolidate its new working procedures.  Under current practice, in Notices of Appeal 
references were made to legal errors , to legal provisions of the covered agreements or to paragraphs of 
the panel report, in order to enable the other par ties to clearly understand the issues under appeal.  He 
agreed that Members wished Notices of Appeal to be as clear as possible.  While the Appellate Body, 
however, in its explanatory text, intended to "enc ourage the appellant to identify specific paragraphs 
of the panel report", the proposed text in Rule 20 pr ovided that the notice of appeal "shall include" an 
"indicative list of the paragraphs of the panel re port".  It was not clear whether this was an 
encouragement or an obligation.  Furthermore, if the list were merely indicative, what would be the 
consequence of not including some paragraphs in the Notice of Appeal? 
56. Brazil supported the change proposed by the Appella te Body on the issue of clerical errors 
and the date for the oral hearing.  With relation to the new requirements of a Notice of Other Appeal, 
Brazil agreed with the arguments made by the Appella te Body.  With relation to the amendment of the 
Notice of Appeal, Brazil understood the concerns and practical problems that the Appellate Body was 
trying to address.  Something that did not seem feasible, however, was the proposal that all third 
participants in the dispute be permitted to comment  on the justification for amendments.  This would 
be complicated in cases in which there were too many third participants.  If all these participants were 
entitled to comment on the proposed amendments, this could take a long time.  It was also not clear 
how these amendments would affect the time-peri ods of the appeal process since no deadlines had 
been set for these amendments. 
57. With regard to the calculation of the 90-day lim it, Brazil shared the views put forward by the 
Appellate Body and agreed with the suggestion to  allow for periods during which time would not run 
for purposes of calculating the end of the 90-day period for appeals.  However, since this change was 
in conflict with the 90-day period established in Article 17.5 of the DSU, Brazil wondered whether this could be done by means of a simple change in the working procedures.  Finally, he noted that it 
would also be interesting to consider the possi bility of introducing the same approach in panel 
proceedings.  In this regard, it would be interesti ng to consider the possibility of establishing certain 
periods in the year when the time for panel proce dures would not run.  He believed that this issue 
could be discussed in the ongoing DSU negotiations. 
58. The representative of Japan
 thanked the Appellate Body for its communication.  This matter 
was still under discussion in Tokyo and Japan intende d to submit written comments by the deadline of 
26 May.  Therefore, at the present meeting, his delegation would onl y make preliminary comments.  
Japan's first over-arching consideration was the need  for balance between the desirability of making 
the procedure as predictable and fair as possible and the undesirability of making the procedure too 
cumbersome and lengthy.  As stated by some de legations, certain suggestions contained in the 
Appellate Body's communication might require ch anges to the DSU provisions.  For example, 
changing time-frames beyond the 90-day period might be in conflict with the DSU language.   
59. On the specific point in the content of the No tice of Appeal, Japan recognized the need to 
further clarify the procedure in order to allow for more efficient deliberation by the Appellate Body.  
However, it expressed some doubt as to whether th ere was a need for making obligatory all three 
elements that were suggested in the Appellate Body 's communication;  namely, (i) a description of the 
alleged errors;  (ii) a list of the legal provisions  of the covered agreemen ts under which the panel 
report was contested;  and in particular (iii) an indicative list of panel report paragraphs.  Japan 
expressed doubts as to whether it was wise to make this obligatory content in a Notice of Appeal.   WT/DSB/M/169 
 Page 13 
 
 
Japan's concern stemmed from the possibility that the appellant might not be able to come up with all 
the paragraphs contained in the panel report that were  relevant to allegations – even with the qualifier 
"indicative" – within the limited length of time ava ilable to the appellant.  Also, on the question of 
description of the alleged errors, Japan was not sure about the degree of detail to which the 
description of the alleged errors should be elaborated.  In this regard, he noted that in the Appellate 
Body Report in the Shrimp case (WT/DS58/AB/R; pa ra.95) there was a sentence which provided that 
the Notice of Appeal was not expected to contai n the reasons why the appellant regarded those 
findings or interpretations as erroneous.  This needed to be kept in mind. 
60. On the next issue of a Notice of Other Appeal , Japan could generally support the idea that a 
procedure for submitting the Notice of Other Appeal should be introduced.  If, however, the intention 
of the Appellate Body was to treat the original No tice of Appeal and the Other Notice of Appeal on 
legally equal terms, one would then  be confronted with the question how Articles 16.4 and 17.5 of the 
DSU would work in relation to these two notices.  For example, Article 16.4 of the DSU set a deadline of 60 days.  He questioned how one would tr eat this Notice of Other Appeal in relation to the 
60-day deadline since, in the past, many Notices of  Other Appeals had been lodged after this 60-day 
period.  Therefore, there might be a need to c onsider how these two Notices of Appeal should be 
differentiated.  
61. He then referred to the time schedules suggest ed in the Appellate Body's communication.  
Japan believed that it was reasonable to file the No tice of Other Appeal after the original Notice of 
Appeal, and in advance of the due date for the othe r appellant's submission.  However, shortening the 
time-periods allowed for the filling of the appellant s' submission from 10 days to 7 days was rather 
difficult for Japan to accept.  This was based on past experiences, namely, that decisions to appeal had 
often been made at the last minute and the time allowed for preparation of submissions was always 
tight.  Of course, this would have an effect on th e overall time-frame of the Appellate Body's process.  
Therefore, one needed to discuss this element in the context of the overall time schedule.  Japan 
welcomed the suggestion made by the United States that it would be useful to have some informal 
discussions on these issues after the present meeting.  With regard to the issue of amending Notices of 
Appeal, Japan noted the care with which the issu e had been approached, but wondered where in the 
current language of the DSU one could find the legal basis for the AB division to rule on amending of 
Notices of Appeal since such amendments directly re lated to the rights of Members.  These types of 
questions could be discussed in an informal meeting.  
62. The representative of India
 said that his country welcomed the opportunity to comment on the 
proposals of the Appellate Body to make changes to its working procedures,  in accordance with the 
decision adopted by the DSB on 19 December 2002, and thanked the Chairperson and the Appellate Body for giving Members the opportunity to do so .  These were elaborate proposals that needed 
careful study by Members.  India would like to make some preliminary remarks on the proposals, and take the opportunity to hear the views of other Memb ers at the present meeting.  India would provide 
its considered views later in writing.  India s upported the statements made by the United States and 
Japan that the matter be first informally discussed  among Members and with the Appellate Body.  At 
this stage, he wished to make just three preliminary remarks. 
63. First, on a Notice of Other Appeal, it was unc lear whether it was conceptually necessary to 
have a Notice of Other Appeal and whether its absence prejudiced appella nts while they defended 
themselves against the other appeal.  The past cases  gave little guidance on this conceptual question.  
Further, in the case that the time-lines proposed in the amendment were adopted, the other appellant 
might at times get only one day between the time of  filing its Notice and its submission – not only in 
the situation of subsidy cases as described by Argen tina, but also whenever there was a weekend in 
between the two deadlines – while the appellant mi ght continue to get more time for its appellee's 
submission. WT/DSB/M/169 
Page 14  
 
64. Second, on amending Notices of Appeal, the A ppellate Body was considering making any 
appellant's or other appellant's ability to amend its  Notice of Appeal contingent upon the receipt of 
leave from the Division hearing the appeal on cause shown.  Due cause would depend upon the circumstances of each case.  The Appellate Body exp ected to take into account the following:  (i) the 
nature and extent of the proposed amendment;  (ii)  due process;  (iii) the timing of the request to 
amend the Notice of Appeal;  and (iv) any reas ons why the proposed amended Notice was not or 
could not have been filed on its original due date.  Yet, the text of the proposed amendment converted 
this into interests of fairness and orderly procedure.   It was not clear whether the concerns identified 
by the Appellate Body were actually appropria tely reflected in the proposed amendment. 
65. Third, on calculation of the 60 and 90 day time- limits, it was not clear whether the possible 
risks in the proposed amendment to the time-lines dur ing holiday periods had been factored into the 
text, such as a situation where the appellant could ge t almost three weeks instead of the usual ten days 
for its appellant submission, clearly to the disadvant age of the appellee.  Further, and more important, 
the time-lines would go beyond what was specified in the DSU.  Although nobody wished to work 
during holidays, and there was evidence of some genuine difficulties in the actual time taken in 
appellate proceedings, the possible adverse implicati ons, in terms of fairness and due process of the 
proceedings, needed to be carefully considered.   
66. The representative of Thailand
 wished to join previous sp eakers in thanking the Appellate 
Body for its proposed amendments to the Working Procedures for Appellate Review .  However, given 
the fact that his delegation had not yet received in structions from its capital on this communication, 
Thailand supported the suggestion by the United States,  which had been endorsed by Japan and India, 
that an informal meeting be held  to discuss these issues.  Thailand  fully understood that comments on 
the amendments were expected to be conveyed to the Appellate Body by 1 June, but hoped that the 
Appellate Body would understand th at more time was needed for further discussions on the issues 
which were of importance to all Members. 
67. The representative of Colombia  thanked the Chairperson for including this item on the agenda 
of the present meeting. Colombia attached great impo rtance to this matter and, therefore, thanked the 
Appellate Body for its initiative to amend the work ing procedures.  Colombia was in the process of 
carefully evaluating each of the suggested amendments .  For that reason, at the present meeting, it 
could not provide definitive views on each of the poi nts raised.  However, Colombia had doubts about 
some of the suggestions, for example, the need to address these matters in the context of the working 
procedures, without first having Members deal with them.  Like Japan, Colombia preferred that the 
operational aspects of topics such as amendments to Notices of Appeal be dealt with by the Appellate 
Body only after Members had adopted relevant decisions.  Colombia also wondered whether the 
system would benefit from implementation of the proposed amendment to Notices of Appeal.  The 
explanatory section concerning specific improvement s referred to the possible reasons for accepting 
an amendment to a Notice of Appeal and clearly stated that to grant an unfettered right was 
undesirable.  The elements mentioned for considera tion included the nature and extent of the proposed 
amendment, due process and the timing of the requ est.  However, these elements had not been 
included in the actual wording of the provisions, whic h merely granted broad authority to be exercised 
upon cause shown by the appellant.  Finally, Colombia  had an interest in further exploring these 
issues and would welcome informal discussions on th is matter, as proposed by Japan, India and the 
United States. 
68. The representative of Norway  thanked the Chairperson for providing Members with an 
opportunity to discuss the communication from the Appe llate Body.  At the present meeting, Norway 
only wished to make preliminary comments, whic h might develop as other delegations make their 
comments at the present meeting or at an informal meeting, if such a meeting were to be held.  
Norway believed that this was a useful suggestio n and would wish to participate in any such a 
meeting.  Norway welcomed the proposals related to Notices of Appeal, which included also the 
possibility of Notice of Other Appeal.  As to the amendment of Notices, Norway understood the  WT/DSB/M/169 
 Page 15 
 
 
potential of abuse referred to by a number of ot her speakers, but considered that the safeguards 
included in the proposal were adequate.  With regard  to the correction of minor errors, his delegation 
wondered if, as stated by Argentina, the change from clerical errors to minor errors was indeed a little 
bit more than just a simple change.  Norway wond ered whether it was really necessary to change the 
word "clerical" to "minor".  In that regard , it noticed that Rule 18 would no longer apply to 
submissions only but also to other documents.  Norw ay considered that it would be useful to have 
some more explanations on those proposed changes.   With regard to the calculation of time-periods 
and the creation of recess, Norway had sympathy for the proposal.  However, it had some concerns regarding both the drafting of this proposal as well as its relationship with Articles 17.5 and 16.4 of 
the DSU.  Norway noted that the proposal broa dly extended all time-frames in the DSU, something 
that the Appellate Body could not do and, therefore, a redraft would be advisable to make sure that it 
was strictly limited to the appeal proceedings.  On e would have to see this proposal in the context of 
the DSU review, as it would have implic ations for the overall time-frames.   
69. The representative of Australia
 said that, along with others, she also wished to thank the 
Appellate Body for having forw arded this paper and the Chairperson for giving Members the 
opportunity to comment.  Australia would be forw arding more detailed comments in due course, as 
requested.  Australia's initial reactions to the proposals were as follows.  First, the greater detail in the 
Notice of Appeal was a sensible proposal aimed at  enhancing clarity and consistency that Australia 
could support, as long this was not  too burdensome for appellants.  On the amendments to Notices of 
Appeal, Australia agreed that rules which allowed mi nor amendments in the nature of "elaborating on 
or adding to" a notice of appeal could be useful, s ubject to the caveat that the Appellate Body had 
outlined in its paper, such as taking into account fact ors of due process, extent and the nature of the 
proposed amendments. 
70. On correction of minor errors, Australia had no  problem with changing the term "clerical", 
but "minor" might be a problem, as it was a subjec tive term involving a degree of interpretation.  
A more precise formulation could be something like "technical, grammatical or typographical errors".  
Also Australia would prefer an upper time-limit with in which corrections should be made.  She noted 
that the Appellate Body had removed the reference to the time-limit.  Finally, on the timetable to take 
into account summer and Christmas holidays, Australia  agreed in principle, except that in specific 
cases such as those involv ing safeguard disputes, additional delays were likely to result in 
disadvantages to parties.  For this reason, Australia suggested leaving the question of excluding or not the two periods to the discretion of the Appellate Body, rather than making prescriptive rules.  On 
next steps, Australia agreed with the United St ates that it would be a good idea to have further 
informal consultations.  Australia also asked as to the intentions of the Appellate Body in terms of 
what it would do after having received the written comments from Members.   
71. The representative of Malaysia
 thanked the Appellate Body for its efforts in seeking to 
improve the working procedures for appellate revi ew.  Malaysia believed that any proposal to 
facilitate the appeal process would be useful fo r all Members.  Malaysia welcomed informal 
consultations on these issues, as proposed by the Unit ed States.  An informal discussion would enable 
Members to further understand the ra tionale behind these proposals.  At the present meeting, Malaysia 
wished to provide some preliminary comments.  Firs t, on Notices of Appeal, Malaysia noted that if a 
Notice of Appeal were to contain more details, this  would require more accuracy.  In cases where the 
decision to appeal was made at a very late stage, the need to provide detailed Notices of Appeal would 
put pressure on delegations with limited resources.   Malaysia was concerned that, unless a country 
had a large team of lawyers, one might inevitably ma ke some errors in Notic es of Appeal, which in 
turn might require further amendments to the Notic e of Appeal.  However, she noted that amending 
Notices of Appeal might not be an easy process.  S econd, one had to reflect on the issue of reducing 
the time-period for the appellant's submission to  accommodate the purposes of the Notice of Other 
Appeal.  The requirement to provide a submission in such a short period of time could also put 
pressure on those Members with limited resources.  Third, Malaysia wondered how one could deal WT/DSB/M/169 
Page 16  
 
with situations in which revised procedures affe cted the substantive provisions of the DSU.  
Therefore, it welcomed further consultations on this issue. 
72. The representative of Hong Kong, China
 thanked the Appellate Body for circulating its 
proposed amendments to the Working Procedures a nd thanked the Chairperson for the inclusion of 
this item on the agenda of the present meeting to  enable Members to discuss these proposals.  
Hong Kong, China wished to join the United Stat es and other delegations in calling for informal 
consultations so that the proposals could be discussed fu rther.  At this stage, her delegation wished to 
share with other Members some preliminary commen ts on these proposals.  On the issue of proposed 
amendments of the contents of Notices of App eal and the proposals for Notices of Other Appeal, 
Hong Kong, China was, generally, supportive of the proposals to further clarify the procedures and to 
provide details of the contents of Notices of App eal.  Hong Kong, China noted that this was going to 
impact on the timetable for an appellant's submissi on.  Hong Kong, China wished to flag its concern 
about whether this might affect the appellant or  prejudice the appellant's ability to prepare its 
submission within a reasonable period.  It might be  that in practice this would not be a problem, 
because appellants normally started preparing their submissions at a time when the interim panel 
report was made available. 
73. On the question of amending Notices of Appeal, Hong Kong, China was supportive of the 
concept of allowing amendments to Notices of Appeal , especially when there was a practical need for 
flexibility in the procedures.  However, it would like to avoid allowing open-ended amendments of 
Notices of Appeal for practical reasons and also for fa irness to an appellee.  It seemed that the current 
proposal whereby the Appellate Body would have th e power to decide whether or not to authorize 
amendments – taking into account interest of fa irness, orderly procedures and requirements to 
circulate the Appellate Body report within the set tim e-frame – was not adequate and specificity in the 
procedures would be required.  Hong Kong, China wi shed to invite Members to consider providing 
further detailed rules, such as setting a deadline for requesting amendments to Notices of Appeal.  For 
example, at the moment under the proposal, it was not clear whether the Notice of Appeal could be 
amended only prior to submission of the appellant's  submission or after that and whether a deadline 
should be imposed so that all requests for amendm ents should be made within a certain number of 
days after the original notice of appeal had been ser ved.  She asked the following questions:  what if 
the appellant were to repeatedly request amendmen ts to its notices of appeal – should the number of 
times that one could request amendments to notices of a ppeal be limited?  In this regard, it would also 
be desirable to specify what would happen after a request to amend notices of appeal were granted.  
She also wished to know the procedures to be followed in the submission of documents. 
74. On the issue of correction of minor errors, in principle Hong Kong, China accepted that the 
current restriction of correction of clerical errors might be a bit inflexible.  However, it seemed from 
the Appellate Body's proposal that a non-exhaustive  list of what would normally be considered 
clerical errors would have to be set out – an illu stration of what minor errors should include.  It 
seemed that this clearly pointed to minor errors in cluding not only clerical errors, but something else.  
If it included something else, then Hong Kong, Chin a believed one should try to define what that 
something else would be.  In this regard, some further guidance as to what  was considered minor 
would be necessary.  For example, the extent to which these errors affected the substance of the 
arguments or submissions should be provided.  A lternatively a non-exhaustive negative list of what 
would not be considered minor corrections might also be helpful.  As to the removal of the three-day 
correction rule, although allowing errors to be corr ected within three days, as at present, might be 
rather inflexible, there should be a time-limit for correcting clerical or minor errors, so as to make sure 
that this flexibility was not abused.  On the cal culation of the time-periods, taking into account the 
long holiday periods, Hong Kong, China, in principl e, was sympathetic to the idea.  However, it noted 
that, as suggested by some other delegations, there was a need to consider this in light of Article 17.5 
of the DSU.  Finally, with regard to the proposal  regarding the oral hearing, Hong Kong, China had 
no problem with it, which seemed to aim at reflecting a practical reality.  WT/DSB/M/169 
 Page 17 
 
 
75. The representative of Chile  thanked the Chairperson for the opportunity given to Members to 
provide their views on this matter.  Chile had not ye t had a chance to examine all the proposals.  Some 
proposals appeared to be systemic in nature, par ticularly those which did not seem to have a legal 
basis under the DSU, Chile supported the US sugg estion, as endorsed by other Members, that 
informal consultations should be held to exch ange views and to discuss further the proposed 
amendments.  It would be interesting to hear the vi ews of Members and the Appellate Body as to what 
was the objective and the purpose of the Notice of A ppeal.  An informal discussion could thus shed 
some light on the issues which would have to be discu ssed not in this forum, but in the framework of 
the DSU negotiations.  
76. The representative of China  welcomed the amendments proposed by the Appellate Body.  
Indeed, China shared many of the concerns that had been raised by previous speakers.  In particular, 
China shared the concerns raised by Brazil with regard  to the content of the Notice of Appeal.  It also 
welcomed the suggestion to hold an informal discussion to further examine this matter.  
77. The representative of Korea  welcomed the communication from the Appellate Body, which 
reflected its genuine effort to update the Working Procedures for Appellate Review on the basis of its 
experience during the past nine years.  Korea had not yet completed its examination of this 
communication, as the proposal by the Appellate Body  contained a number of issues.  Moreover, the 
proposal also had some implications for the on-going DSU negotiations.  At this stage, as a preliminary comment, Korea was of the view that the thrust of the Appellate Body's communication 
represented improvements in the Working Procedur es.  In particular, Korea was in favour of 
enhancing procedural fairness and consistency.  On the other hand, some elements, such as the 
introduction of new procedures for the amendment of the Notice of Appeal had the potential of adding 
to the complexity in the Appellate Body's proceedings .  One had to keep in mind that the timetable for 
appellate review was much tighter than for panel proceedings.  Korea would present more considered 
views in due course.  Finally, Korea supported the su ggestion that had been made by the United States 
to hold an informal meeting to  discuss the issues contained in th e Appellate Body's communication 
and looked forward to particip ating in such consultations. 
78. The representative of Israel
 thanked the Appellate Body and th e AB Secretariat for their work 
towards improving their working procedures with a view to reflecting several years of practical experience.  Israel saw this as a very positive ex ercise.  Her delegation was currently examining the 
proposed amendments.  However on a preliminary basis, Israel shared some of the concerns expressed by previous speakers, notably, with regard to th e shortening of certain time-frames and the possibility 
of increasing the burden for parties, as well as the re lationship of the proposals to certain provisions of 
the DSU.  Israel agreed with other Members that  an informal consultation to discuss in detail the 
proposed amendments should be held and wished to participate in it.  
79. The representative of New Zealand
 said that his delegation had not intended to take the floor, 
but having now had the benefit of a number of Me mbers' views and quite divergent views on some of 
the issues, such as the Notice of Appeal, it would appreciate a chance to reflect on those views further 
and would support the suggestion that an inform al meeting be convened to discuss further the 
proposed amendments.  He added that – having sat through the past seven years of DSU negotiations 
– if the original Working Procedures had had to be fully negotiated, there still might not be any 
Working Procedures, and yet these procedures had ser ved Members well.  He urged delegations to 
bring a spirit of flexibility to this exercise. 
80. The Chairperson  invited the representative of the Appella te Body's Secretariat to respond to 
the question raised by Australia.  
81. The representative of the Appellate Body's Secretariat  said that the Appellate Body intended 
to consider the comments received from Members and would reflect on how those comments should be taken into account in the amendments under consid eration.  Thereafter, the Appellate Body would WT/DSB/M/169 
Page 18  
 
consult further with the Chairperson of the DS B and the Director-General, in accordance with 
Article 17.9 of the DSU. 
82. The Chairperson
 said that she hoped that the Appellate Body would be pleased with the level 
of attention that its proposals had received and the in terest that they had generated in the DSB.  She 
proposed that the DSB take note of the statemen ts made.  Furthermore, in accordance with the 
"Additional Procedures for Consultations between  the Chairperson of the DSB and the WTO 
Members in relation to amendments to the Working Procedures for Appellate Review " contained in 
document WT/DSB/31, she said that she would convey to the Appellate Body the views expressed by Members at the present meeting on the amendments under consideration and would request the Appellate Body to take them into account.  
83. The DSB took note
 of the statements and agreed  to the course of action proposed by the 
Chairperson.   
84. The Chairperson  then noted that a proposal had been made by the United States, which was 
supported by a number of delegations, to hold an info rmal open-ended meeting, in order to provide 
Members with an opportunity to have an informal  exchange of views on the proposed amendments.  
She proposed that this meeting be held on 7 June  and would ask the Secretariat to send a fax to 
delegations to confirm this .  In this regard, she noted that the Appellate Body had asked her to provide 
Members' views on the amendments by 1 June.  Howe ver, in light of the request for an informal 
meeting, it would not be possible to meet this deadlin e.  She had consulted with the Appellate Body in 
this regard and had been asked to convey to Memb ers that the Appellate Body was pleased to extend 
the deadline to 15 June.  She, therefore, asked that written comments be provided by 11 June, which 
would then be promptly conveyed to the Appellate Body. 
85. The representative of Thailand  asked if an informal meeting could be held on another date 
since a meeting of the Negotiating Group on Rul es was already scheduled for 7 and 8 June.  
86. The Chairperson  said that she would consult with the Secretariat on this matter after which 
she would send out a fax confirming the date  of the informal open-ended meeting. 
87. The DSB took note  of the statements.   
4. Proposed nominations for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/257) 
88. The Chairperson  drew attention to document WT/D SB/W/257, which contained additional 
names proposed for inclusion on the indicative list in accordance with Article 8.4 of the DSU.  Unless 
there was any objection, she proposed that the DSB approve the names contained in document 
WT/DSB/W/257. 
89. The DSB so agreed . 
 
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