RESTRICTED
WORLD TRADE WT/DSB/M/9
1February 1996
ORGANIZATION(96-0383)
DISPUTE SETTLEMENT BODY
1and29November 1995
MINUTES OFMEETING
Held intheCentre William Rappard
on1and29November 1995
Chairman: Mr.Donald Kenyon (Australia)
Subjects discussed: Page
1. Composition oftheAppellate Body 1
2. European Communities -Duties onImports ofGrains 8
- Request bytheUnited States fortheEstablishment ofaPanel (WT/DS13/2) 8
3. Additional proposed nominations fortheindicative listofgovernmental
andnon-governmental panelists (WT/DSB/W/13) 9
4. Korea -Measures Concerning theShelf-Life ofProducts (WT/DS5/5 andAdd.1) 9
1. Composition oftheAppellate Body
TheChairman made thefollowing statement:
"FollowingcompletionoffurtherconsultationssubsequenttotheadjournedDSBmeeting
of1November, hewished toputbefore theMembers atthepresent meeting arecommendation
onbehalf ofthesixmember "Selection Committee" (theCommittee), fortheappointment of
seven persons totheAppellate Body provided forintheDSU. Members would recall that
theelements ofthisrecommendation hadbeenoutlined tothem ataninformal meeting held
on25October. AsMembers were aware, theCommittee comprising theDirector-General,
theChairmanoftheDSBandtheChairmenoftheGoods,Services,TRIPSandGeneralCouncils
hadbeengiven amandate intheAppellate Body guidelines paper (WT/DSB/1) tobring a
recommendation onAppellate Body membership totheDSB. AsMembers werealsoaware
theCommittee hadbeenengaged inarriving atanacceptable outcome forthisimportant task
since thebeginning ofthisyear. They hadthirty-two different candidates fromtwenty-three
different countries butwithonlyseven places tofill.Thetaskfaced bytheCommittee had
beenmade especially difficult bytheexcellence ofallofthethirty-two candidates whohad
been proposed forappointment totheAppellate Body. Throughout themonths thatthe
Committee hadbeencarefully applying itself tothetaskofchoosing seven competent and
appropriate appointees fromthislisttorecommend totheDSBforappointment totheAppellateWT/DSB/M/9
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Body, theyhadconstantly intheirminds theguidelines intheDSUandWT/DSB/1 governing
theselection andappointment ofAppellate Body members, andtheneedtoensure thatthe
outcomewasconsistentwiththoseguidelines.Duringthisprocess,theCommitteehadconsulted
bothindividually withdelegations andmultilaterally .TheCommittee hadalsometinGeneva
andhaddetailed discussions witheachofthethirty-two candidates forappointment tothe
Appellate Body.
"Based ontheabove processes theCommittee hadreached aconclusion ontheseven
persons which henowrecommended totheDSBforappointment totheAppellate Body in
accordance withtherelevant provisions oftheDSU. These persons inalphabetical order were:
Mr.James Bacchus (United States), Mr.Christopher Beeby (New Zealand), Mr.Claus-Dieter
Ehlermann (Germany), Mr.SaidEl-Naggar (Egypt), Mr.Justice Florentino P.Feliciano
(Philippines), Mr.Julio Lacarte Muro (Uruguay), andMr.Mitsuo Matsushita (Japan). As
indicated above, thisrecommendation wasbeing puttotheDSBatthepresent meeting, on
behalf oftheCommittee asawhole, forapproval. Allofthese people werehighly-qualified
forappointment totheAppellate Body andjustastheCommittee had,delegations hadalso
theopportunity tostudy their detailed curricula vitae which hadbeen available from the
Secretariat forsome months. Healsowished toinform Members thatallthese seven persons
hadconfirmed tohiminwriting theirreadiness toaccept thedraftcodeofconduct currently
inthefinalstages ofpreparation. Inaddition toasking theDSBtoaccept atthepresent meeting
thattheseven recommended persons beappointed totheAppellate Body, hewasalsoasking
theDSBtoaccept thattheybeformally appointed from mid-December 1995. Insubmitting
thisrecommendation totheDSB, hereiterated precisely whatthecollective taskwasatthe
present meeting. TheDSBwasineffect making theinitial seven appointments totheAppellate
Body. Thiswastheonlyoccasion onwhich theDSBwould appoint alltheseven people on
asingle occasion. According tothe"staggered term" arrangements written intotheDSU, the
seven persons appointed totheAppellate Body would notbereplaced simultaneously. This
should enable flexibility tobemaintained inthecomposition oftheAppellate Body consistent
withtheguidelines thatMembers already had.Hethought itwasimportant astheyweretaking
theirdecision atthepresent meeting, thatMembers understood andkeptthosefactsveryclearly
inmind.
"HewassurethatMembers would alsoreadily agree thatinfuture appointments to
theAppellate Body theDSBwould havetobeguided bytheneedtohavepersons ofthehighest
calibre withdemonstrated expertise inthelaw,international trade, andthesubject matter of
thecovered agreements, theneed alsoforanAppellate Body which would bebroadly
representative oftheWTO membership, would reflect different legalsystems andtakeother
factors suchasdifferent geographical areas andlevels ofdevelopment intoaccount. These
principles would ensure thatappointments totheAppellate Body would remain anopen
competition aimed atensuring thathighly competent people were always secured forthis
important task. Thedecision tobetaken atthepresent meeting ontheCommittee 'sproposal
didnotmean thatthecomposition oftheAppellate Body would remain thesame overtime
andnorights might bederived fromtheinitial composition. Theparticular regional ornational
distribution ofinitial appointments totheAppellate Body therefore, innowaycompromised
thescope fordifferent regional ornational compositions onfuture occasions.
"One other point thathewished toraisewastheneedforAppellate Body members,
onceappointed, towork closely together toensure thatthere waspolicy consistency, thatthe
Appellate Body operated inacoherent wayasenvisaged bytheDSUandthatobligations under
theDSUandthecoveredagreementswerenotincreasedorrightsdiminishedthroughtheappeals
process. Heindicated hisintention torequest theAppellate Body indrawing upitsinternal
working procedures towork outappropriate arrangements, consistent withtheprovisions ofWT/DSB/M/9
Page3
theDSU, tocover theseissues. Onthebasisoftheprocesses which hadenabled theCommittee
toreach itsconclusion oninitial appointments totheAppellate Body andtheunderstandings
outlined above, which heproposed beincluded intherecord ofthismeeting, hewassubmitting
forapproval totheDSBtheabove-mentioned seven persons asinitial appointees totheWTO
Appellate Body andforagreement totheirformal appointment from mid-December 1995."
Therepresentative ofArgentina saidthathisdelegation supported therecommendation onthe
composition oftheAppellate Body submitted bytheChairman, onbehalf oftheCommittee, atthe
present meeting. Argentina believed thatthisrecommendation notonlyfullycomplied withthecriteria
established fortheselection process suchastheprofessional qualifications butalsorespected other
factors suchasdifferent geographical areas, levels ofdevelopment andlegal systems. Hestressed
thetransparency withwhich theprocess ofselection hadbeendealt andthanked theChairman for
theenormous effort incarrying outthisprocess. These appointments completed theprocess of
establishing theinstitutional structure pursuant totheWTO Agreement under theDSU. Undoubtedly,
theauthority ofmembers andtheAppellate Body would constitute acentral element inthefunctioning
ofthemultilateral trading system. Itwasindispensable thattheAppellate Body members continued
tobeselected onlyonthebasisoftheprofessional qualifications andthecriteria established byMembers
andtheDSU. Hesupported theproposal thatmembers oftheAppellate Body beformally appointed
asofmid-December 1995.
Therepresentative oftheEuropean Communities saidthatonseveral occasions inthepastweeks
hehadtheopportunity toinform theChairman thattheCommunities werenotsatisfied withtheproposal
concerning thecomposition oftheAppellate Body. TheCommittee 'staskhadbeenextremely difficult
sincetheparameters atitsdisposal wereimpossible toreconcile. TheCommunities attached importance
tothefunctioning andcredibility oftheWTO, andtotheestablishment ofthenewdispute settlement
mechanism withtheAppellate Body asakey-stone. They wished forunilateralism tobeended and
toensure thatanydifficulties would beraised anddealtwithintheWTO. Itwasinthelightofthis
keyobjective thattheywould notoppose thecomposition oftheAppellate Body proposed bythe
Chairman atthepresent meeting. They hadnoreservations withregard toanyoftheindividuals
proposed. They neither questioned theircompetence northeirintegrity andobjectivity. However, the
membership oftheAppellate Body proposed bytheChairman atthepresent meeting could beimproved
insuchawayastoreflect agreater balance sought bytheCommunities. TheCommunities would
besubmitting, atthelatest, totheMinisterial Conference tobeheldinSingapore inDecember 1996,
aproposal withtheviewtoensure thatthecomposition oftheAppellate Body wasmore balanced and
tookintoaccount theroleoftheCommunities inthemultilateral trading system. Theywould beclosely
following thework oftheAppellate Body andthedrafting ofitsworking procedures. TheCommunities
shared theChairman 'sview regarding theneedtoensure consistency ofthework oftheAppellate
Body. Atitsmeeting on20-21 November theCouncil oftheEuropean Union hadissued astatement
concerning theAppellate Body andthistextwasnowavailable inallWTO official languages.
Therepresentative ofIndia expressed hiscountry 'sgratitude totheCommittee forbringing
theprocess ofselection oftheAppellate Body members toitsconclusion. While there might besome
differences astotheevaluation oftheCommittee 'sconclusions itstaskhadbeenmore difficult and
complex thanoriginally envisaged. Henoted thattheChairman referred totheselection process in
generalandtheguidelinesintheDSUandWT/DSB/1inparticular,andthattheCommitteehadconsulted
withdelegations regarding theirpreferences andexpectations, andmetwithallthethirty-two individual
candidates.Hisdelegationlikeothershadbeenfollowingtheselectionprocessverycloselyandcarefully.
Herecalled thattheChairman hadalways stressed thattheCommittee would beexercising itsmandate
strictly inaccordance withtheagreed guidelines. AttheDSBmeeting on29March theChairman
hadindicated thatinthediscussions withvarious delegations hewould focus ontwospecific questions:
(i)which ofthesuggested names onthelist,apart, ofcourse from individual delegations 'own
suggestions, theyconsidered themost appropriate appointees totheAppellate Body; and(ii)why,WT/DSB/M/9
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inlightoftheguidelines setoutinArticle 17oftheDSU andWT/DSB/1, individual delegations
considered these persons themost appropriate appointees totheAppellate Body.
India'sconsistent approach hadbeenthattheDSBhadentrusted theselection process tothe
Committee which would andshould actindependently, taking intoconsideration onlyfourelements:
theguidelines inArticle 17oftheDSU andWT/DSB/1, thepreferences expressed byindividual
delegations totheCommittee, andtheCommittee 'sassessment ofvarious candidates based ontheir
personal interaction withthem. Towards thefinalstages oftheselection process, theCommittee 's
determination totakeintoconsideration onlythefourelements mentioned above appeared tohave
weakened. TheCommittee appeared tohavebeeninfluenced byconsiderations notrelated tothese
fourelements. Itappeared thatwhile mostdelegations hadbeenasked which candidates theyconsidered
themostappropriate appointees totheAppellate Body andwhy, some delegations seemed tohavethe
privilege ofanswering aquestion astowhich candidates theyobjected to.However, theyseemed
tohavenoobligation toanswer why. India regretted thatthis"extraordinary privilege" enjoyed by
afewdelegations seemed toinfluence thefinaloutcome decisively. Itwould havepreferred objections,
ifany,toberaised inthemultilateral forum. Thishadenhanced thetransparency andcredibility of
theselection process. Aninevitable andunfortunate consequence ofweakening theCommittee 's
determination towards thefinalstages ofthisprocess seemed tobethatinthefinallistofcandidates,
expertise intheareaofcovered agreements wasunder represented. Indiaregretted thattheCommittee
comprised ofsixindividuals known fortheirintegrity, ability andlongandrichexperience inthe
multilateral decision-making hadallowed itsdetermination concerning theselection process tobe
weakened. Herecalled thatatdifferent stages oftheselection process, hehadfaced some difficult
problems andthathehadalways gonealong withwhathehadperceived tobeinthebestinterest of
theintegrity andcredibility oftheselection process.
Atthepresent meeting, heraised some concerns anddisappointment about theselection process
sothatinfuture, learning from thisexperience, onemight devise abetter selection process.
Notwithstanding itsreservation anddisappointment about theselection process, India didnotwishto
raiseanyobjection tothecomposition oftheAppellate Body proposed bytheChairman atthepresent
meeting. Hehoped thattheChairman andtheDSBwould appreciate andunderstand India'sdifficulty
informally joining theconsensus. Hestressed thathiscomments concerned onlytheselection process,
andthatIndia wasgladtohaveseven persons ontheAppellate Body whowereresponsible formaking
itatruesymbol ofmultilateralism, credibility andobjectivity. Healsonoted theChairman 'sreference
tothefactthatthework ontherules ofconduct stillremained tobecompleted. India'sconcerns on
thismatter were wellknown andwould notbereiterated atthepresent meeting. Finally, headded
thatitwould havebeenbetter ifthepersons selected fortheAppellate Body hadonlybeencontacted
aftertheirapproval bytheDSB. Theworking procedures oftheAppellate Body should notdirectly
orindirectly modify theprovisions oftheDSU. Herecalled thatArticle 17.9oftheDSU stated
that"theworking procedures shallbedrawn upbytheAppellate Body inconsultation withtheChairman
oftheDSBandtheDirector-General, andcommunicated totheMembers fortheirinformation." India
would beclosely following theprocess ofdrawing-up these working procedures andhoped thatthe
Chairman andtheDirector-General would ensure thattheywerenotcontrary totheletter andspirit
oftheWTO Agreement.
Therepresentative ofMalaysia, speaking onbehalf ofASEAN countries, saidthatASEAN
countries supported therecommendation onthecomposition oftheAppellate Body submitted bythe
Chairman atthepresent meeting. Theseven appointees weresuitable andcompetent tofulfil their
task. However, atthisstage itwastooearly toconsider thepossibility ofreviewing themembership
oftheAppellate Body. They noted theunderstanding concerning theappointments ofseven members
which intheirviewwould provide animportant guideline inthefuture.WT/DSB/M/9
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Therepresentative ofBrazil saidthatonprevious occasions, hiscountry hadexpressed systemic
concerns regarding thecomposition oftheAppellate Body. Atthepresent meeting, although Brazil
hadevenbroader systemic concerns, itwasready tojointheconsensus regarding theseven persons
recommended forappointment totheAppellate Body inorder toensure thefulloperation ofarule-
oriented multilateral trading system. Inthatspirit, Brazil recognized theindividual qualifications of
thepersons selected whowould havetheindependence andlackofaffiliation required intheDSUwhich
envisaged anunpoliticized Appellate Body. Brazil believed thatadecision tobetaken atthepresent
meeting should leadtothataim.
Therepresentative ofMexico thanked theCommittee fortheproposal onthecomposition of
theAppellate Body. Theselection process wasnotaneasytasksince onlyseven individuals were
tobeselected outofmany highly-qualified candidates. Mexico wasgladthatasindicated bythe
Chairman thepresent composition oftheAppellate Body would notconstitute aprecedent. Thiswas
apositive approach since itwasonlyatthisstage thatallseven members oftheAppellate Body had
tobeselected. Mexico noted withconcern thatsome developments tookplace between theinformal
meeting oftheDSBon25October andthepresent meeting. TheAppellate Body membership should
notbesubject tocountry-quotas orregional distribution. Thiswould undermine thecredibility ofthe
WTO. Rules andguidelines fortheselection process hadalready existed providing inparticular that
theAppellate Body membership should bebroadly representative oftheWTO membership. Factors
suchasdifferent geographical areas, levels ofdevelopment, andlegalsystems should alsobetaken
intoaccount. Mexico supported thecomposition oftheAppellate Body andendorsed different elements
enumerated bytheChairman.
Therepresentative ofEgypt, speaking onbehalf oftheAfrican Group, expressed gratitude
totheCommittee foritsrecommendation onthecomposition oftheAppellate Body. Although the
Committee 'staskhadnotbeeneasytheseven candidates recommended forappointment proved the
fairness, objectivity andseriousness oftheselection process consistent withtheexisting guidelines.
Thisshould notbeinterpreted asbeing against other candidates whoalsohadgoodqualifications and
credentials. Hethanked allcountries fortheirunderstanding andcooperation which successfully led
totherecommendation fortheestablishment oftheAppellate Body, asanimportant steptoensure
thereliability,credibilityandintegrityofthedisputesettlementsystem.ThecompositionoftheAppellate
Body would notmean thatanycountry represented therein would haveanautomatic right. Allregions
should berepresented intheAppellate Body, andinparticular Africa. Egypt hadalways stressed the
needforthebalanced regional representation oftheAppellate Body, andinparticular aparticipation
ofanAfrican candidate ofthehighest calibre. Africa should notbemarginalized andshould playa
significant roleintheworld trading system. Africa withitsrichhuman andnatural resources hadthe
potential tobecome anactive partner intheinternational trading system. African countries should
betreated equally withother trading partners intheWTO, which hadaguarantor ofcredibility namely,
thedispute settlement mechanism including theAppellate Body.
Therepresentative ofSwitzerland saidthathiscountry wasaware oftheCommittee 'seffort
tomake therecommendation onthecomposition oftheAppellate Body totheDSB. Hisdelegation
would abstain fromcommenting indetail onthiscomposition. However, henoted thatthecomposition
proposed atthepresent meeting didnotcorrespond withsome basic criteria stipulated intheDSU.
Adefinition oftheEuropean entity wastoorestrictive: i.e.,itrepresented anerroneous approach of
economic andpolitical realities andtherefore wasnotcorrectly reflecting a"representative balance".
Certain malfunctioning intheprocess ofconsultations andselection tookplacewhich hiscountry wished
tobeavoided inthefuture. However, Switzerland would not"formally oppose" therecommendation
submitted bytheChairman atthepresent meeting. Hedrew attention tothenotion ofthe"coherent
approach" referred tobytheChairman which should notimply directly orindirectly anyquestioning
ofthedecision-making process oftheAppellate Body. TheAppellate Body wasoneofthecentral
institutions oftheWTO andhiscountry would befollowing itswork veryclosely. ThenextstageWT/DSB/M/9
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which wasthedrawing-up oftheworking procedures wasveryimportant forthefunctioning ofthe
Appellate Body andMembers relied onthewisdom ofthose involved inthisprocess andinthe
application ofworking procedures. Switzerland expected theAppellate Body tocarry outitsfunctions
intheindependent manner andinatrulymultilateral spirit. Itmustbegin itsworkandoperate smoothly.
Thefuture ofthesystem depended onitandthiswasthegoalofallMembers.
Therepresentative ofMorocco saidthattheCommittee hadadifficult tasksince there were
many sensitive issues tobetaken intoaccount butithadfound agoodcompromise. Morocco supported
thecomposition oftheAppellate Body proposed bytheChairman andexpressed gratitude tothe
Committee foritsdetermination tobring about thisresult which likeanyhuman endeavour could not
beperfect. Thistypeofprocess implied choices andanychoice meant thatthere weresome aspects
which could notbemet.Allcandidates were highly-qualified andcompetent andtheircomposition
reflected different interests oftheWTO Members.
Therepresentative ofJamaica congratulated theCommittee forhaving beeninaposition to
submit totheDSBaslateofpersons forappointment totheAppellate Body. TheCommittee 'stask
wasnoteasyandJamaica commended itforitsperseverance anditshardwork. Withtheannouncement
ofthelistofcandidates animportant piece inthelegalframework oftheWTO hadbeenputinplace
thusensuring andguaranteeing itssmooth operation. Hisdelegation wasaware ofthedifficulties faced
bytheCommitteeinhavingtoselectsevenpersons"ofrecognizedauthority,withdemonstratedexpertise
inlaw,international trade andthesubject matter ofthecovered agreements generally" from thelist
ofthirty-two persons. TheCommittee would havehadequal difficulties ifthenumbers ofmembers
hadbeenlarger. Herecalled thatintheinformal consultations hisdelegation hadindicated thenames
supported byhiscountry. Some ofthese names werenotonthelist.Nevertheless Jamaica accepted
therecommendation submitted bytheChairman atthepresent meeting andhoped thatitalsobeaccepted
byother Members.
Therepresentative ofPerucongratulated theCommittee forsubmitting therecommendation
onthecomposition oftheAppellate Body atthepresent meeting. Thecriteria fortheselection process
hadbeenrespected scrupulously. Thelistofselected candidates reflected theresults oftheconsultations
andtheagreed criteria andconstituted abalanced representation oftheWTO membership. Peruwas
gladthatthisphase hadcome toanendwhich would complete theprocess ofestablishing adispute
settlement system which would make theWTO credible ontheinternational scene.
Therepresentative ofNorway saidthatthedispute settlement system wasacorner-stone and
hadtheAppellate Body atitssummit. Much timehadbeendevoted torecommending itscomposition.
NorwaywelcomedtheproposalbytheChairmansincetimewasrunningshort.Hisdelegationrecognized
thatnoteverybody could beequally satisfied withthisrecommendation. Thecrucial point wasnot
whether everyone agreed equally withevery aspect ofthepackage butthatthepresent choice of
candidates, from agiven number ofcountries must notbeconsidered asablueprint forthefuture.
Norway accepted thepresent distribution ofcandidates ontheunderstanding thatthiswould notbe
permanent toavoid automatic disqualification ofacertain number ofother candidates, andcountries,
inthefuture. Onthisunderstanding Norway supported therecommendation oftheCommittee and
expressed appreciation foritsindefatigable efforts atcoming toanacceptable conclusion.
Therepresentative oftheUnited States saidthathisdelegation wasgladthatMembers were
about toreach anagreement inthisdifficult area. Theappointment oftheAppellate Body members
wascentral totheeffective implementation oftheDSUandtherewereperhaps noresults intheUruguay
Round which would bemore important thantheDSU. TheUnited States believed thattheseven
individuals tobeappointed wereextremely qualified forthejob.Allappointees oftheAppellate Body
agreed toabide bytheproposed rulesofconduct. Hisdelegation looked forward toworking withthem
inbuilding acredible WTO.WT/DSB/M/9
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Therepresentative ofAustralia saidthathiscountry wished tocongratulate theCommittee
oncompleting itswork andjoined aconsensus inaccepting therecommendation onthecomposition
oftheAppellate Body. Alldelegations recognized thatthetaskoftheCommittee inselecting seven
members outofanumber ofhighly-qualified candidates hadbeendifficult. Australia considered that
candidates recommended wereallofaveryhighcalibre. TheAppellate Body would bewellqualified
andbroadly representative ofthemembership oftheWTO. Thebalanced andbroad membership of
theAppellate Body would helpestablish thecredibility ofthedispute settlement mechanism. Australia
didnotbelieve thatanarrow membership would havedonesomuch toestablish thiscredibility. At
thesame timeAustralia wasofcourse strongly disappointed thatitscandidate --Mr.M.J. Duffy --
wasnotonthelist.Hisoutstanding experience asaMinister forTrade andNegotiations andinparticular
asaneffective andactive chairman oftheCairns Group during theUruguay Round negotiations would
havemade avaluable contribution totheAppellate Body. Australia understood theobligation ofthe
Committee toprovide theslateofcandidates which could beaccepted byconsensus andatthesame
timewasadhering scrupulously totheagreed guidelines fortheselection ofcandidates. Some seemed
tothink thattheCommittee hadbeentooindependent andsome seemed tothink thatithadnotbeen
independentenough.HisdelegationwouldrathercharacterizetheCommitteeashavingchosenasensible
course through theobstacles confronting itandashaving applied scrupulously theagreed guidelines.
Therepresentative ofHong Kong saidthathisdelegation hadrecognized thattheselection
oftheAppellate Body members hadbeenanextremely difficult task,given thelimited number ofseats,
theexcellence ofthecandidates, andthecomplexity oftheguidelines. Hong Kong wasnaturally
disappointed thatitscandidate hadnotbeenselected. However, itaccepted thatthematter wasmuch
wider andmuch more important thantheindividual interest ofHong Kong. Atissuewasthecredibility
oftheWTO, andtheintegrity oftheDSU. Hong Kong believed that,inreaching itsdecision and
making itsrecommendations, theCommittee hadoperated infullcompliance withtheagreed guidelines.
Despite itsdisappointment Hong Kong recognized themerits ofallseven recommended candidates.
Ithadtaken alittlemore timethanexpected foraconsensus todevelop. Nevertheless Hong Kong
believed events would prove thatanyadditional timespent wasworthwhile. Hong Kong certainly
accepted thecontinued relevance of"balanced representation". Atthesame time, caution mustalso
beexercised against thefuture selections fortheAppellate Body being seentoomuch interms ofa
straight forward regional allocation.
Therepresentative ofCanada saidthatonseveral occasions hercountry hadstressed the
importance oftheAppellate Body anditscritical roleintheWTO. Canada supported the
recommendation submitted bytheChairman atthepresent meeting. Although itwasdisappointed that
neither ofitsCanadian candidates wasamong theindividuals recommended, itwaspleased thatits
non-Canadian candidate wasamong those recommended toserve ontheAppellate Body. Itwascertain
thatthesevenselectedindividualswouldperformtheirdutiescompetentlyandwiththeutmostintellectual
rigor. Shebelieved theAppellate Body should bemade operational asquickly aspossible andits
members beofficially appointed asofthemid-December 1995. Future appointments should beguided
bytheprinciples contained intheDSUandtheguidelines established byMembers andnofixednational
orregional composition should beestablished orimplied fromthepresent composition. Thesuggestion
made bytheCommunities required some reflection. While ministers agreed atMarrakesh tocomplete
afullreview ofdispute settlement rulesandprocedures within afouryearperiod aftertheentry into
force oftheWTO, Members hadtocarefully reflect ontheconsequences ofmaking amendments to
theWTO ina"piecemeal fashion", especially onissues asimportant astheAppellate Body. She
indicatedthathercountryrecognizedthetremendouseffortoftheCommitteetoachieveitsrecommended
listofindividuals andthanked theCommittee foralltimeandefforts.
Therepresentative ofChile saidthathisdelegation recognized thatthetaskoftheCommittee
wasdifficult since different criteria hadtobetaken intoaccount. Chile believed thatthecandidatesWT/DSB/M/9
Page8
selected reflected theresults oftheconsultations andtheagreed guidelines inparticular "balanced
representation". Theselection process, despite certain difficulties hadbeentransparent andobjective.
Therepresentative ofKorea thanked theCommittee fortheefforts toaccomplish thedifficult
tasktoselect members oftheAppellate Body. Korea wasencouraged thatacollective commitment
oftheWTO hadfinally overcome allother concerns. Hisdelegation welcomed theproposal bythe
Chairman asanother significant stepinstrengthening thestructure oftheWTO.
Therepresentative ofCosta Ricawelcomed withsatisfaction theproposal submitted bythe
Chairman atthepresent meeting. Thelistofmembers "comprised persons ofrecognised authority,
withdemonstrated expertise inlaw,international tradeandthesubject matter ofthecovered agreements
generally."1Thetaskhadbeendifficult andwasbrought toasatisfactory conclusion. Thecomposition
proposed bytheChairman atthepresent meeting didnotcommit Members tonational andgeographical
parameters inthefuture. Hisdelegation supported theideathattheAppellate Body should startin
mid-December.
Therepresentative ofColombia saidthathisdelegation supported theselection ofcandidates
proposed fortheAppellate Body. Thepresent membership should notconstitute aprecedent inthe
future, however, there were some elements which oneshould takeintoaccount suchasquality of
thepersons selected andcertain minimum regional representativity.
TheDispute Settlement Body tooknoteofthestatements andapproved therecommendation
onthecompositionoftheAppellateBodyproposedbyChairmanonbehalfofthe"SelectionCommittee".
TheChairman thanked allmembers ofthe"Selection Committee" andsaidthatthishadbeen
agenuine collective effort andnoonemember hadputmore intoeffort orhadbeenmore influential
intheprocess. Without aninput oftimeandgenuine commitment togetting thejobdone ina
professional way,itwould nothavebeenpossible toreach anacceptable conclusion. Healsothanked
theWTO Members. Thishadbeenanimportant butdifficult taskforall.Many hadbeencalled upon
tomake difficult decisions andjudgements. Without awillingness toshoulder those responsibilities,
anoutcome alsowould nothavebeenpossible. Hepaidtribute tothespirit inwhich thisdecision
wastaken atthepresent meeting. Much hadbeensaidabout theprofessional competence ofappointees.
Ithadbeenimportant todemonstrate thatappointees hadtheconfidence oftheWTO andtheywere
surethattheywould doacompetent andeffective jobfortheWTO. Finally, heinformed theDSB
thattheAppellate Body members would beinGeneva fortheweek commencing 11December tobegin
work oninternal procedures. Hehoped thatallMembers would havetheopportunity tomeetwith
them then.
TheDispute Settlement Body tooknoteofthestatement.
2. European Communities -Duties onImports ofGrains
- Request bytheUnited States fortheEstablishment ofaPanel (WT/DS13/2)
TheChairman proposed that,since theparties tothedispute werestillconsulting, thisitem
beconsidered atthenextmeeting oftheDSB.
TheDispute Settlement Body tooknoteoftheinformation.
1Article 17.3 oftheDSUWT/DSB/M/9
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3. Additional proposed nominations fortheindicative listofgovernmental
andnon-governmental panelists (WT/DSB/W/13)
TheChairman recalled thatatitsmeeting on27September 1995theDispute Settlement Body
hadapproved thenames proposed forinclusion ontheindicative listofGovernmental andNon-
Governmental Panelists contained indocument WT/DSB/W/8. Thisindicative listwassubsequently
circulatedasanunrestricteddocument(WT/DSB/2).HethendrewattentiontodocumentWT/DSB/W/13
which contained additional names forinclusion ontheindicative list.These names were submitted
forapproval bytheDSBinaccordance withArticle 8:4oftheDSU which stated that"Members may
periodically suggest names ofgovernmental andnon-governmental individuals forinclusion onthe
indicative list,providing relevant information ontheirknowledge ofinternational tradeandofthesectors
orsubject matters ofthecovered agreements, andthose names shallbeadded upon approval bythe
DSB" Heproposed thattheDSBapprove thenames contained inWT/DSB/W/13, andthatupon its
approval these additional names becirculated asanunrestricted document.2
TheDispute Settlement Body soagreed.
4. Korea -Measures Concerning theShelf-Life ofProducts (WT/DS5/5 andAdd.1)
Therepresentative oftheUnited States saidthathisdelegation wished toexpress itsserious
concern thatKorea wasnotimplementing theagreement onshelf-life ofproducts reached on20July
1995 withtheUnited States which hadbeencirculated inWT/DS5/5. Thisconcern wasbased on
deficiencies inthecommunication from Korea contained inWT/DS5/5/Add.1 andcirculated on24
November aswellasinthefailure ofKorea totakeactions by1October asspecified inthatagreement.
Inaccordance withthisagreement Korea were tonotify asfrom 1October 1995 allcorresponding
Harmonized System (HS)numbers foreachitemsubject toashelf-life requirement, orforwhich a
shelf-life requirement wasremoved orproposed toberemoved. Korea hadfailed todothis. Instead,
inits12October notification (WT/DS5/5/Add.1) Korea stated thattheHSnumbers inthenotification
wereonlyforreference, andthatthemeasures described inthenotification didnotnecessarily apply
toallproducts included intheHSheadings. ThiswasnottheUnited States 'understanding. TheUnited
States andKorea hadnegotiated HSnumbers toavoid anymisunderstanding astothecoverage ofthe
agreement. Thecoverage ofthemeasures tobetaken byKorea should benolessthanthecoverage
oftheHSnumbers specified inthesettlement. Theagreement obligated Korea toallow manufacturers
todetermine shelf-life requirements forallshelf-stable products. Korea hadfailed todosoinits
notification. Finally, Korea hadindicated initsnotification thattheproducts hadtocomply withits
Food Code eveniftheywerespecifically listed inthesettlement, thusgiving theKorean Food Code
precedence overtheagreement. Thiscould nullify theentire agreement. Theinadequate notification,
coupled withKorea 'sunilateral interpretation ofthemeaning oftheagreement wereextremely troubling.
TheUnited States hadconflicting reports fromKorea astothemeaning ofthenotification andwhether
itwasintended tobeinconsistent withtheagreement. TheUnited States urged Korea topromptly
clarify andcorrect itsOctober notification, prior tothenextDSBmeeting andtopromptly takeand
notify therestoftheactions required tobetaken by1October 1995.
Therepresentative ofKorea noted thathiscountry 'sposition onthematter raised bytheUnited
States hadbeenexplained indetail atthemeeting oftheCommittee onSanitary andPhytosanitary
Measures on15-16 November 1995.3Thecomments made bytheUSatthepresent meeting were
thesameasthose made atthatmeeting. Hetherefore didnotwishtoreiterate hisdelegation 'sstatement
2WT/DSB/2/Add.1.
3G/SPS/R/3WT/DSB/M/9
Page10
atthatmeeting which would becirculated aspartoftheCommittee 'srecord. Heunderlined thatKorea 's
October notification ofHSclassification wasonlythefirstoftheseries ofnotifications planned for
theimplementation oftheagreement between theUnited States andKorea. Another notification would
beforthcoming shortly. Therefore, itwould beonlypremature atthisstage todiscuss omissions or
technical errors ofthefirstnotification. Upon completion ofallnotifications hisdelegation would
behappy torespond toanyspecific question.
Therepresentative ofAustralia saidthatatthemeeting oftheCommittee onSanitary and
Phytosanitary Measures Australia hadalsoexpressed some concerns about thetransparency of
implementation oftheagreement ontheshelf-life ofproducts between theUnited States andKorea.
Hewished toreiterate theseconcerns. Australia looked forward toreceiving Korea 'snextnotification.
Therepresentative ofCanada saidthathercountry alsohadserious concerns about Korea 's
shelf-life requirement andhadparticipated intheconsultations withtheUnited States andKorea in
June1995. Canada wasconcerned thattheagreement didnotcover bottled water. Aside frombottled
water, Canada hadsupported theagreement with respect toKorea 'scommitment toimplement
manufacturer-determined shelf-life ofproducts. Canada shared concerns expressed bytheUnited States
thatKorea wasnotimplementing theagreement onshelf-life ofproducts.
TheDispute Settlement Body tooknoteofthestatements.