 RESTRICTED  
  
WT/DSB/M/446  
 
14 December 2020  
(20-8992) Page: 1/26 
Dispute Settlement Body  
26 October 2020    
 
MINUTES OF MEETING  
HELD IN THE CENTRE  WILLIAM RAPPARD  
ON 26 OCTOBER  2020 
Chairman: H.E. Mr. Dacio Castillo  (Honduras ) 
Prior to the adoption of the Agenda : (i) The Chairman  welcomed all delegations participating in 
person as well as those delegations that were listening -in remotely. He recalled that, as had been 
done at past DSB meetings, he would not be offering the floor to delegations participating remotely;  
and (ii) the item concerning the adoption of the Panel Report in the dispute on: "United  States – 
Tariff Measures on Certain Goods from China" (DS543)  was removed from the proposed Agenda 
following the decision of the United States to appeal the Panel Report . 
 
Table of Contents  
1   SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY  
THE DSB  ................................ ................................ ................................ ...........................  2 
A. United States – Anti-dumping measures on certain hot -rolled steel products from Japan:  
Status report by the United States  ................................ ................................ .......................  3 
B. United States – Section 110(5) of the US Copyright Act: Status report by the United  States  ..... 3 
C. European Communities – Measures affecting the approval and marketing of biotech products: 
Status report by the European Union  ................................ ................................ .....................  4 
D. United States – Anti-dumping and countervailing measures on large residential washers from 
Korea: Status report by the United States  ................................ ................................ ..............  5 
E. United States – Certain methodologies and their application to anti -dumping proceedings 
involving China: Status report by the United States  ................................ ................................ . 6 
F. Indonesia – Importation of horticultural products, animals and animal products: Status report  
by Indonesia  ................................ ................................ ................................ ......................  7 
2   UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB  ..........................  8 
A. Statement by the European Union  ................................ ................................ .....................  8 
3   EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES  
AFFECTI NG TRADE IN LARGE CIVIL AIRCRAFT: IMPLEMENTATION OF THE 
RECOMMENDATIONS ADOPTED BY THE DSB  ................................ ................................ .... 9 
A. Statement by the United States  ................................ ................................ ........................  9 
4   STATEMENT BY CHINA REGARDING THE PANEL REPORT IN "UNITED  STATES –  
TARIFF MEASURES ON CERTAIN GOODS FROM CHINA"  ................................ .................  11 
5   UNITED STATES – MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT 
(SECOND  COMPLAINT)  ................................ ................................ ................................ ... 15 
A. Recourse to Article 7.9 of the SCM Agreement and Article 22.7 of the DSU by the European 
Union (WT/DS353/35)  ................................ ................................ ................................ ........ 15 WT/DSB/M/44 6 
 
- 2 - 
 
  6   THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES  ................................ ................................ ................................ .................  17 
A. Statement by the Chairman on consultations with Thailand and the Philippines with regard to  
the recourse to Article 22.2 of the DSU (WT/DS371/32)  ................................ ......................... 17 
B. Statement by the Philippines  ................................ ................................ ........................... 17 
C. Statement by Thailand  ................................ ................................ ................................ ....17 
7   ADOPTION OF THE 2019/2020 DRAFT ANNUAL REPORT OF THE DISPUTE 
SETTLEMENT BODY  ................................ ................................ ................................ ........  20 
8   PROPOSED NOMINATION FOR THE INDICATIVE LIST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL PANELISTS ................................ ................................ ..................  20 
9   APPELLATE BODY APPOINTMENTS: PROPOSAL BY AFGHANISTAN; ANGOLA; 
ARGENTINA; AUSTRALIA; BANGLADESH; BENIN; PLURINATIONAL STATE OF BOLIVIA; 
BOTSWANA; BRAZIL; BURKINA  FASO; BURUNDI; CABO VERDE; CAMEROON; CANADA; 
CENTRAL AFRICAN REPUBLIC; CHAD; CHILE; CHINA; COLOMBIA; CONGO; COSTA RICA; 
CÔTE D'IVOIRE; CUBA; DEMOCRATIC REPUBLIC OF CONGO; DJIBOUTI; DOMINICAN 
REPUBLIC; ECUADOR; EGYPT; EL SALVADOR; ESWATINI; THE EUROPEAN UN ION; 
GABON; THE GAMBIA; GHANA; GUATEMALA; GUINEA; GUINEA BISSAU; HONDURAS; 
HONG KONG, CHINA; ICELAND; INDIA; INDONESIA; ISRAEL; KAZAKHSTAN; KENYA; 
REPUBLIC OF KOREA; LESOTHO; LIECHTENSTEIN; MADAGASCAR; MALAWI; MALAYSIA; 
MALDIVES; MALI; MAURITANIA; MAURITIU S; MEXICO; REPUBLIC OF MOLDOVA; 
MOROCCO; MOZAMBIQUE; NAMIBIA; NEPAL; NEW ZEALAND; NICARAGUA; NIGER; 
NIGERIA; NORTH MACEDONIA; NORWAY; PAKISTAN; PANAMA; PARAGUAY; PERU; 
QATAR; RUSSIAN FEDERATION; RWANDA; SENEGAL; SEYCHELLES; SIERRA LEONE; 
SINGAPORE; SOUTH A FRICA; SWITZERLAND; THE SEPARATE CUSTOMS TERRITORY OF 
TAIWAN, PENGHU, KINMEN AND MATSU; TANZANIA; THAILAND; TOGO; TUNISIA; 
TURKEY; UGANDA; UKRAINE; UNITED KINGDOM; URUGUAY; THE BOLIVARIAN  
REPUBLIC OF VENEZUELA; VIET NAM; ZAMBIA AND ZIMBABWE 
(WT/DSB/W/609/ REV.18)  ................................ ................................ ............................  21 
10   AUSTRALIA  – ANTI -DUMPING MEASURES ON A4 COPY PAPER  ................................  26 
A. Statement by Indonesia  ................................ ................................ ................................ ..26 
1  SURVEILLANCE OF IMPLEMENTATION OF REC OMMENDATIONS ADOPTED BY THE DSB  
A. United States – Anti-dumping measures on certain hot -rolled steel products from Japan: Status 
report by the United States (WT/DS184/15/Add.20 9) 
 
B. United States – Section 110(5) of the U S Copyright Act: Status report by the United States 
(WT/DS160/24/A dd.184) 
 
C. European Communities – Measures affecting the approval and marketing of biotech products : 
Status report by the European Union (WT/DS291/37/A dd.147) 
 
D. United States – Anti-dumpi ng and countervailing measures on large residential washers from 
Korea: Status report by the United States (WT/DS464/17/A dd.31) 
 
E. United States – Certain methodologies and their application to anti -dumping proceedings 
involving China: Status report by the United States (WT/DS471/17/A dd.23) 
 
F. Indonesia – Importation of horticultural products, animals and animal products : Status report by 
Indonesia (WT/DS477/21/A dd.18 – WT/DS478/22/A dd.18) 
 
1.1.  The Chairman  noted that there were six sub -items under this Agenda item concerning status 
reports submitted by delegations pursuant to Article 21.6 of the DSU. He recalled that Article 21.6 
required that: "[u]nless the DSB decides otherwise, the issue of implementation of the 
recommendations or rulings shall b e placed on the Agenda of the DSB meeting after six months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda until the issue is resolved". Under this Agenda item, he invited delegations to provide up to 
date information about their compliance efforts. He also reminded delegations that, as provided for WT/DSB/M/44 6 
 
- 3 - 
 
  in Rule 27 of the Rules of Procedure for DSB meetings: "[r]epresentatives should make every effort 
to avoid the repetition of a full debate at each meeti ng on any issue that has already been fully 
debated in the past and on which there appears to have been no change in Members' positions 
already on record". He then turned to the first status report under this Agenda item . 
A. United States – Anti-dumping measures on certain hot -rolled steel products from 
Japan: Status report by the United States (WT/DS184/15/Add.20 9) 
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.209, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning US anti –dumping measures on certain hot -rolled steel products from Japan . 
1.3.  The representative of the United States  said that the United States had provided a status  report 
in this dispute on  15 October 2020, in accordance with Article 21.6 of the DSU. The United States 
had addressed the DSB's recommendations and rulings with respect to the calculation of 
anti-dumping margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect 
to the DSB's recommendations and rulings that had yet to be addressed, the US Administration 
would work with the US Congress with respect to appropriate statutory measures that would resolve 
this matter . 
1.4.  The representative of Japan  said that his country wished to thank the United States for its most 
recent status report and its statement made at the present meeting. Japan, once again, called on 
the United States to fully implement the DSB's recommendations  and rulings so as to resolve this 
matter . 
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
B. United States – Section 110(5) of the US Copyright Act: Status report by the 
United  States (WT/DS160/24/Add.1 84) 
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.184, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act . 
1.7.  The repres entative of the United States  said that the United States had provided a status report 
in this dispute on 15 October 2020 , in accordance with Article 21.6 of the DSU. The US Administration 
would continue to confer with the European Union, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter . 
1.8.  The representative of the European Union  thanked the United States for its status report and 
its statement made at the present meeting. His delegation wished  to refer to the EU's statements 
made at previous DSB meetings under this Agenda item. The EU wished to resolve this dispute  as 
soon as possible . 
1.9.  The representative of China  said that , once again, his country  wished  to register its concern 
about US non-compliance with WTO rulings and its failure to provide sufficient protection of 
intellectual property rights.  The United States continue d to fail to full y compl y in this dispute. More 
than two decades after the DSB  had adopted recommendations and rulings in this dispute , this 
dispute remain ed unresolved. China expressed r egret  that the 185 US status reports provided thus 
far were not different from one another and none of them indicated any progress on implementation . 
China believed that as a result, the United States continued to fail to accord the minimum standard 
of protection required by the TRIPS Agreement . The United States had also  become the only WTO 
Member  who failed to implement DSB recommendations and rulings under the TRIPS Agreement . 
The clear text of Article 21.1 of the DSU  required Members to promptly bring their WTO -inconsistent 
measures into conformity so as to ensure effective resolution of dispute s. China urged the United 
States to  faithfully honour this legal obligation and complete the implementation of  the DSB's 
recommendations and rulings  in this dispute without further delay . 
1.10.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . WT/DSB/M/44 6 
 
- 4 - 
 
  C. European Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European Union (WT/DS291/37/Add.14 7) 
1.11.   The Chairman  drew attention to document WT/DS291/3 7/Add.147, which contained the 
status report by the European Union on progress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of biotech 
products . 
1.12.   The representative of the European U nion said that a t the on -line meetings of the Standing 
Committee on GM Food and Feed held on 15 September  and 7 October 2020, the European 
Commission had presented for a vote eight authorization s representing 38 possible GMOs.1 Due to 
the current public health situation, the voting had been  carried out by written procedure ending 
14 days after the date of the meeting concerned. The European Commission w ould present 
authorization s that had not receive d a qualified majority vote i n favour or against at the next meeting 
of the Appeal s Committee . The EU -US Biotech Dialogue, organi zed on 22 October 2020, was the 
ideal opportunity to provide  a detailed state of play of all authorization s pending in the European 
Food Safety Authority  (EFSA) or in the European Commission. The  EU believed that the se detailed 
overview s clearly demonstrate d that the delays were not systematically due to "actions or inactions 
of the EU and its member States", as claimed by the U nited States. A large part of the delays ha d 
always been and remain ed linked to incomplete applications and the lack of reactivity on the part of 
applic ants. The EU continue d to progress with the authorization s where the EFSA had finalized its 
scientific opinion and concluded that there were no safety concerns.  As repeatedly explained by the 
EU and confirmed by the US delegation during the EU -US biannual consultations held on 
12 June 2019, efforts to reduce delays in authorization  procedures were constantly maintained at a 
high level at all stages of the authorization  procedure.  The United States frequently refer red to what 
was known as the EU "opt -out Dir ective". The EU wished to reiterate that the DSB 's 
recommendations and rulings do not cover the "opt -out Directive".  The EU act ed in line with its WTO 
obligations. The EU wished to recall that the EU approval system was not covered by the DSB's 
recommendat ions and rulings . 
1.13.   The representative of the United States  thanked the European Union (EU) for its status report 
and its statement made at the present meeting. The United States understood that the EU had held 
another meeting of the Standing Committee on genetically modified food and feed on 
7 October  2020. The U nited States looked forward to receiving an update regarding the outcomes 
of that meeting. The United States noted that there was another Standing Committee meeting 
scheduled for 12 November 2020. The United States would welcome confirmation of the date an d 
the agenda for that meeting. The United States also requested an update from the EU regarding the 
date for the next Appeals Committee meeting. However, the United States continued to see 
persistent delays that affected a number of applications that had b een awaiting approval for an 
extended period – delays that had existed long before COVID -19 restrictions had come into effect. 
The EU had previously suggested that, with respect to these delays, the fault was with the applicants. 
The United States disagree d; US concerns related to delays at every stage of the approval process 
resulting from the actions or inactions of the EU and its member States. Currently, approximately 
20 applications were pending risk management decisions in the standing committee on bi otech and 
two awaited final approval by the European Commission. Three of these applications had been going 
through the EU approval system for over 10 years. The United States urged the European Union to 
adopt final approvals for those products that had co mpleted evaluation by the Standing Committee. 
The United States also urged the Standing Committee and the European Commission to issue final 
approvals for those products that had successfully received an EFSA positive opinion, yet remained 
under the Commit tee's "internal procedures ". 
1.14.   As the United States had stated at the 28 September 2020 DSB meeting, the United States 
did not acknowledge the EU's claims that there was no ban on genetically engineered (GE) products 
in the EU. Rather, the EU had failed to l ift all of its WTO -inconsistent member -State bans covered 
by the DSB recommendation. The DSB had adopted findings that, even where the EU had approved 
 
1 Meeting of 15 September 2020: Soybean SYHT0H2, Maize MON 87427 x MON 89034 x MIR162 x NK603 
(stack + 10 possible sub -combinations = 11 GMOs), Maize MON 87427 x MON 87460 x MON 89034 x MIR162 x 
NK603 (stack + 14 possible sub -combinations = 15 GMOs. Meeting of 7 October 2020: 2 new authorization s 
(soybean MON 87751 x MON 87701 x MON 87708 x MON 89788, only stack approval, no sub -combinations, and 
maize MON 87427 x MON 89034 x MIR162 x MON 87411, approval of stack and 6 sub -combinations) and 
3 renewals (maize MIR604, maize MON 88017, maize MON 89034).  WT/DSB/M/44 6 
 
- 5 - 
 
  a particular product, in many instances EU member States had banned those products for certain 
uses witho ut a scientific basis. This included not only the two EU member States subject to panel 
findings – Austria and Italy. There were seven additional member States that had previously 
maintained bans on cultivation and had since opted out of cultivation under the EU's legislation: 
Bulgaria, France, Germany, Greece, Hungary, Luxembourg, and Poland. There were also nine EU 
member States that had not previously banned cultivation of MON -810 but had since opted out of 
cultivation under the EU's legislation: Croatia , Cyprus, Denmark, Latvia, Lithuania, Malta, the 
Netherlands, Slovakia, and Slovenia. Further, Austria and Italy appeared to maintain bans on other 
products subject to specific Panel findings.  The EU's only response, which it continued to repeat, was 
that the EU member States did not restrict marketing or free movement of MON -810 in the EU. As 
the United States had noted at the 28 September 2020 DSB meeting, this answer did nothing to 
address US concerns. The United States also disagreed with the EU's respo nse that opt -out 
procedures taken by EU member States were "proportional, non -discriminatory and based on 
compelling grounds". The restrictions adopted by EU member States restricted international trade 
in these products, and had no scientific justificatio n. Furthermore, despite the assertions of the EU 
during the 28 September 2020 DSB meeting, this situation existed regardless of whether or not the 
European Commission received "complaints" from seed operators or stakeholders. Indeed, this was 
why the DSB h ad adopted findings that such restrictions on MON -810 were in breach of the EU's 
WTO commitments. The United States urged the EU to ensure that all of its measures affecting the 
approval of biotech products, including measures adopted by individual EU memb er States, were 
based on scientific principles, and that decisions were taken without undue delay . 
1.15.   The representative  of the European Union  said that t he WTO Agreements d id not require full 
international harmoni zation and le ft some regulatory space or autonomy to individual WTO Members. 
The European Union ha d different regulatory approaches to GMOs and non-GMOs but, in all cases, 
such regulations d id not discriminate between imported and domestic like products.  Contrary to the 
assertion s of the United States, n o EU member State ha d imposed any "ban". Under the terms of 
the relevant Directive, an EU member State c ould adopt measures restricting or prohibiting 
cultivation only when such measures were in line with EU law and only w hen they were reasoned, 
proportional, non -discriminatory and based on compelling grounds.  The free movement of seeds 
was embedded in Article 22 of Directive 2001/18/EC: "[m]ember States may not prohibit, restrict 
or impede the placing on the market of GMOs , as or in products, which comply with the requirements 
of this Directive ". The EU  also note d that according to the provisions of the opt -out Directive 
(Article  26b, point 8) the measures adopted under the Directive "shall not affect the free circulation 
of authorised GMOs " in the EU.  Currently the EU Common Catalogue of varieties of agricultural 
species include d 150 varieties of maize MON -810 which were allowed to be marketed in the EU. As 
of the present meeting, the European Commission had  never received any complaints from seed 
operators or other stakeholders concerning the restriction of marketing of MON -810 seeds in the EU. 
This confirm ed the smooth functioning of the internal market of MON -810 seeds.  The EU invited the 
United States to provide any evidence the United States might have at its disposal substantiating 
the disruption of the free movement of MON -810 seeds in the EU .  
1.16.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
D. United States – Anti-dumping and countervailing measures on large residential 
washers from Korea: Status report by the United States (WT/DS464/17/Add.3 1) 
1.17.   The Chairman  drew attention to document WT/D S464/17/Add. 31, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning anti -dumping and countervailing measures on large residential washers from Korea . 
1.18.   The representativ e of the United States  said that the United States had provided a 
status  report in this dispute on 1 5 October  2020, in accordance with Article 21.6 of the DSU. On 
6 May 2019, the US Department of Commerce had published a notice in the US Federal Register 
announcing the revocation of the anti -dumping and countervailing duty orders on imports of large 
residential washers from Korea (84 Fed. Reg. 19,763 (6 May 2019)). With this action, the United 
States had completed implementation of the DSB's recom mendations concerning those 
anti-dumping and countervailing duty orders. The United States continued to consult with interested 
parties on options to address the DSB's recommendations relating to other measures challenged in 
this dispute .  WT/DSB/M/44 6 
 
- 6 - 
 
  1.19.   The representati ve of Korea  said that his country wished to thank the United States for its 
status report. Once again, Korea urged the United States to take prompt and appropriate steps to 
implement the DSB's recommendations for the "as such" measure at issue in this disp ute.  
1.20.   The representative of Canada  said that the United States continued to fail to comply with the 
DSB's ruling, arising out of the Appellate Body report in this dispute, that the "differential pricing 
methodology" (DPM) was "as such" WTO -inconsistent . The United States had also ignored the DSB's 
recommendation that the United States bring itself into compliance with its obligations. Instead, the 
United States continued to apply the "as such" inconsistent differential pricing methodology in 
investigations with respect to foreign companies and continued to collect cash deposits from foreign 
exporters based on its inconsistent methodology . The reasonable period of time to implement the 
recommendations relating to the "as such" WTO -inconsistency of the DPM had  expired more than 
two years ago . However, in its most recent status report, the United States stated that it continued 
to consult with interested parties . Moreover, the continued use by the United States of the DPM had 
forced Members to resort to several dispute settlement proceedings concerning this measure. This 
was an inefficient and unnecessary use of WTO dispute settlement resources . Canada remained 
deeply concerned with the continued US failure to comply with the DSB's recommendations and 
rulings in this dispute. This failure seriously undermined the security and stability of the multilateral 
trading system . 
1.21.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
E. United States – Certain methodologies and their application to anti -dumping 
proceedings involving China: Status report by the United States (WT/DS471/17/Add.2 3) 
1.22.   The Chairman  drew attention to docume nt WT/DS471/17/Add.2 3, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning certain methodologies and their application to anti -dumping proceedings involving 
China . 
1.23.   The representative of the United States  said that the United States had provided a status 
report in this dispute on 1 5 October  2020, in accordance with Article 21.6 of the DSU. As explained 
in that report, the United States continued to consult with intereste d parties on options to address 
the DSB's recommendations .  
1.24.   The representative of China  said that , on 22 May 2017, the DSB had adopted the Appellate 
Body Report and the Panel Report, as modified by the Appellate Body, in this dispute , which had 
found that a series of US  measures had violated  the Anti -Dumping Agreement, which included:  
(i) the use of zeroing under the W -T methodology was as such incompatible with Article 2.4.2; 
(ii) the so -called single rate presumption as such violated  Articles 6.10 and 9.2; and (iii) the adverse 
facts available was a norm of general and prospective application , which could be subject to future 
"as such" challenges . The arbitration pursuant to Article 21.3(c) of the DSU had decided that the 
reasonable p eriod of time (RPT) would be 15 months, expiring on 22 August 2018 . In response to 
the continued US failure to implement  the DSB 's recommendations and rulings in this dispute , China 
had had no other choice but to request the authorization to retaliate pursuant to  Article 22.2 of the 
DSU. On 1 November 2019, the  arbitration under Article 22.6 of the DSU  had determined that the 
level of nullification or impairment caused by the United States was US D 3.579 billion . This was the 
third largest retaliation amount in the WTO 's history . This amount  reveal ed the severe hardship 
imposed by  US measures, which were  WTO-inconsistent . To date, the United States continue d to 
fail to achieve  compliance. None of its 2 4 status reports provided thus far indicated any 
implementation action . Forty-one months after the DSB had adopted the Appellate Body Report and 
the Panel Report, as modified by the Appellate Body, in this dispute , and 26 months after the RPT 
had expired, the DSB's recommendations and rulings in this dispute  did not bring much for China 
other than a piece of paper. What China had experienced in this dispute was  not exceptional. The 
record show ed that US compliance ha d increasingly become a systemic problem for the Membership. 
The substa ntial delay s in US compliance or the US ignorance of its implementation obligation s in 
many disputes ha d seriously compromised the effectiveness and authority of the WTO dispute 
settlement system. The credibility of this Organization also incurred  collater al damage, and that in 
turn was harmful for the world, including  for the United States.  Implementation was the cornerstone 
of the dispute settlement system which kep t the rules -based , multilateral trading system afloat. The 
refusal to implement WTO dispute settlement rulings would  not only backfire on the US economy . It WT/DSB/M/44 6 
 
- 7 - 
 
  would  also cause the United States to lose its moral high ground when  asking other WTO Members 
to comply with WTO rul es. Article 21.1 of the DSU stated that: "[p]rompt compliance with 
recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes 
to the benefit of all Members" . China urged the United States to faithfully honour its  implementation 
obligation and take concrete actions to achieve full compliance in this dispute . 
1.25.   The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
F. Indonesia – Importation of horticultural products, animals and animal products: Status 
report by Indonesia (WT/DS477/21/Add.1 8 – WT/DS478/22/Add.1 8) 
1.26.   The Chairman  drew attention to document WT/DS477/21/Add.1 8 – WT/DS478/22/Add.1 8, 
which contained the status report by Indonesia on progress in the i mplementation of the DSB's 
recommendations in the case concerning importation of horticultural products, animals and animal 
products . 
1.27.   The representative of Indonesia  said that his country had provided a status report pursuant 
to Article 21.6 of the DSU . Indonesia reiterate d its commitment to implementing the DSB 's 
recommendations and rulings in these disputes . With regard to measures 1 –17, Indonesia note d 
continued concerns raised by New Zealand and the United States at previous DSB meetings.  
Regarding Measure 18, the Government and the Parliament ha d finalized the ir discussion and had 
jointly approved draft amendment s to the relevant laws. In accordance w ith Indonesia 's national 
regulation s, the Parliament w ould hand over the draft amendment s to the President for further 
process ing towards the enactment of the relevant laws. Indonesia w ould continue to engage with 
New Zealand and the United States regardin g matters related to the DSB 's recommendations and 
rulings  in these disputes . 
1.28.   The representative of the United States  thanked Indonesia for its status report but was 
concerned that Indonesia had not brought its measures into compliance with WTO rules . The United 
States and New Zealand agreed that significant concerns remained with the measures at issue, 
including the continued imposition of: harvest period restrictions, import realization requirements, 
warehouse capacity requirements, limited applicatio n windows, limited validity periods, and fixed 
licensed terms. The United States remained willing to work with Indonesia to fully and meaningfully 
resolve this dispute . The United States understood that Indonesia claimed to have "completed its 
enactment pr ocess" of certain regulations, but the United States was still waiting to hear from 
Indonesia on whether and how such action would bring its measures into full compliance. It also 
remained unclear how Indonesia's proposed legislative amendments would addre ss Measure 18 and 
when Indonesia would complete its process. The United States looked forward to receiving further 
detail from Indonesia regarding the changes to its regulations and laws, especially with respect to 
Ministry of Agriculture Regulation 46/201 9 on Strategic Horticultural Commodities .  
1.29.   The Chairman  said that he wished to inform delegations that the delegation of New Zealand 
was unable to be physically present in the meeting room today, and therefore requested that its 
statement be delivered on b ehalf of New Zealand under this Agenda item. He then requested the 
Secretariat to read out the statement on behalf of New Zealand.  
1.30.   As requested by the Chairman, t he representative of  the Secretariat read out the following 
statement on behalf of the delega tion of New Zealand:  New Zealand  wished to thank Indonesia for 
its status report and acknowledge d Indonesia 's commitment to comply fully with the DSB's 
recommendations and rulings in this dispute . However,  both compliance deadlines ha d long since 
expired, and a number of measures remain ed non-compliant. This include d Measure 18 and the 
continued enforcement of limited application windows and validity periods , harvest period import 
bans, import reali zation requirements and restrictions p laced on import volumes based on storage 
capacity. New  Zealand was particularly concerned that difficulties continue d to be experienced in 
obtaining import recommendations and approvals.  New Zealand would  be watching closely as the 
application windows for the 2021 import period open ed. New  Zealand underst ood that Indonesia 's 
Parliament ha d recently passed the Job Creation Bill . However, New Zealand  did not yet have the 
information necessary to assess what impact this w ould have on Indonesia 's compliance wit h the 
DSB's recommendations and rulings in this dispute , in particular in respect of Measure 18. WT/DSB/M/44 6 
 
- 8 - 
 
  New Zealand strongly encourage d Indonesia to achieve full compliance with the DSB's 
recommendations and rulings in this dispute . 
1.31.   The DSB took note of the statements and agree d to revert to this matter at its next regular 
meeting.  
2  UNITED  STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: 
IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB  
A. Statement by the European Union  
2.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Union. He then invited the representative of the European Union to speak . 
2.2.  The representative of the European Union  said that d espite the United States having repeate dly 
indicat ing that the DSB 's recommendations and rulings had been  fully implemented by adopting the 
Deficit Reduction Act in 2013, d isbursements under the Continued Dumping and Subsidy Offset Act  
(CDSOA ) had been made every year since. Every disbursement that still t ook place under this legal 
basis was clearly an act of non -compliance with the DSB's recommendations and rulings  in this 
dispute . The U nited States had to  fully stop transferring collected duties for th is Agenda i tem to be 
considered resolved and removed from under the DSB's surveillance.  The EU w ould continue to p lace 
this item on the A genda of DSB meetings as long as the U nited States had not fully implemented 
the DSB'S recommendations and ruling s and the disbursements had not cease d completely. The EU 
would continue to insist – as a matter of principle – independently of the cost resulting from the 
application of such limited duties.  The EU reiterated  its call on the United States to abide by its  clear 
obligation under Article 21.6 of the DSU to submit implementation reports in this dispute, as the 
issue remain ed unresolved. If the U nited States did not agree that the issue remain ed unresolved, 
nothing prevent ed it from seeking a multilateral determination through a compliance procedure.  
2.3.  The representative of Canada  said that his country wished to thank  the European Union for 
placing this item on the Agenda of the present meeting . Canada agreed with the EU that t he Byrd 
Amendment should remain subject to the surveillance of the DSB until the United States ceased to 
administer it . 
2.4.  The representative of the United States  said that as the United States had noted at previous 
DSB meetings, the Deficit Reduction Act – which included a provision repealing the Continued 
Dumping and Subsidy Offset Act of 2000 – had been enacted into law more than 14 years ago in 
February 2006. The Deficit Reduction Act did not permit the distribution of duties collected on goods 
entered after 1 October 2007, more than 12 years ago . Accordingly, the United States had long ago 
implemented the DSB's recommendations and rulings in these disputes. Eve n aside from this, it was 
evidently not common sense that was driving the EU's approach to this Agenda item . On 
26 June 2020, the EU had notified that it would apply an additional duty of 0.012  % on certain 
imports of the United States . There was no trade rationale for inscribing this item month after month. 
The EU had erroneously referred to a "clear obligation" under Article 21.6 of the DSU for the United 
States to submit a status report in this dispute. As the United States had explained repeatedly, ther e 
was no obligation under the DSU for a Member to provide further status reports once that Member 
announced that it has implemented  the DSB's recommendations. The widespread practice of 
Members – including the European Union as a responding party – confirm ed this understanding of 
Article 21.6. Indeed, at recent meetings, three Members – Australia, Brazil, and China – had 
informed the DSB that they had come into compliance with the DSB's recommendations in 
four disputes (DS472, DS497, DS517, and DS529), and the complaining parties had not accepted 
the claims of compliance. Those Members announcing compliance had not provided status reports 
for the present meeting. This was consistent with the understanding that there was no obligation for 
a Member to provide further status reports once that Member announced that it had implemented 
the DSB's recommendations. The EU was the complaining party in one of those disputes (DS472). 
If the EU believed that status reports were "required" under the DSU, it would have insi sted that the 
responding Member provide a status report, or the EU would have inscribed that dispute as an item 
on the present meeting's Agenda. The EU had taken neither action. Therefore, it was once again 
clear that the EU did not truly believe that ther e was a "clear obligation" under Article 21.6 of the 
DSU to submit a status report after a party had claimed compliance. The EU had simply invented a WT/DSB/M/44 6 
 
- 9 - 
 
  rule for this dispute, involving the United States, that it did not apply to other disputes involving 
other Members . 
2.5.  The DSB took note of the statements.  
3  EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES AFFECTING 
TRADE IN LARGE CIVIL AIRCRAFT: IMPLEMENTATION OF THE RECOMMENDATIONS 
ADOPTED BY THE DSB  
A. Statement by the United States  
3.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the United States. He then invited the representative of the United States to speak . 
3.2.  The representative of the United States  noted that once again the European Union ha d not 
provided Members with a status report concerning the dispute "EC – Large Civil Aircraft" (DS316). 
As the United States had noted at several recent DSB meetings, the EU had argued – under a 
different Agenda item – that where the EU as a complaining pa rty did not agree with another 
responding party Member's " assertion  that it has implemented the DSB ruling", "the issue remains 
unresolved for the purposes of Article 21.6 of the DSU".  Under this Agenda item, however, the EU 
argued that by submitting a com pliance communication, the EU no longer needed to file a status 
report, even though the United States as the complaining party did not agree with the EU's assertion 
that it had complied . The EU's position was erroneous and not based on the text of the DSU.  The EU 
argued that where "a matter is with the adjudicators, it is temporarily taken out of the DSB's 
surveillance" and the DSB was somehow deprived of its authority to "maintain surveillance of 
implementation of rulings and recommendations". Yet, there w as nothing in the DSU text to support 
that argument, nothing in Article 2 of the DSU or elsewhere that limited the DSB's authority in this 
manner, and the EU provided no explanation for how it read Article 21.6 of the DSU to contain this 
limitation. The EU  was not providing a status report because of its assertion that it had complied, 
demonstrating that the EU's principles varied depending on its status as complaining or responding 
party. The US position on status reports had been consistent: under Article  21.6 of the DSU, once a 
responding Member announced to the DSB that it had complied, there was no further "progress" on 
which it could report, and therefore no further obligation to provide a status report. But as the 
EU allegedly disagreed with this posi tion, it should for future meetings provide status reports in this 
"EC – Large Civil Aircraft " dispute (DS316). The  United States noted that it was committed to 
obtaining a long -term resolution of this dispute. The United States had recently showed great 
restraint in its review of WTO -authorized countermeasures for the EU's WTO -inconsistent launch 
subsidies. The United States would engage with the EU in a new process in order to seek an 
agreement that would remedy the conduct that harmed the US aviation ind ustry and workers and 
would ensure a level playing field for US companies .  
3.3.  The representative of the European Union  said that a s during  previous DSB meetings, the 
United States had implied that the EU was taking inconsistent positions under Article 21.6 of the 
DSU, depending on whether the EU was a complaining party or a defending party in a dispute . The 
US assertions were without merit.  As the EU ha d repeatedly explained during  past DSB meetings, 
the cru cial point for the defending party's obligation to provide status reports to the DSB was the 
stage of the dispute . In the "EC – Large Civil Aircraft" (DS316)  case (the Airbus case) , the dispute 
was at a stage where the defending party d id not have an oblig ation to submit status reports to the 
DSB. The EU  wished  to remind the DSB that in the Airbus  case, the EU had notified a new set of 
compliance measures to the DSB . That new set of compliance measures  had been  a clear 
demonstration that the EU – contrary to the U nited States in the parallel "US – Large Civil Aircraft 
(second  complaint)"  case (DS353)  (the Boeing -case) – was serious about and committed to 
achieving compliance . That new set of compliance measures had been  subject to an assessment by 
a compliance panel and that panel report had been  issued on 2 December 2019. As noted in the 
EU's statement made at the 18 December 2019 DSB meeting, the EU believed  that significant 
aspects of the compliance panel's re port c ould not be regarded as legally correct and were very 
problematic from a systemic perspective when it c ame to assessing compliance with the subsidy 
disciplines of the WTO Agreements . It was in order to have these legal errors corrected that the EU 
had filed an appeal against the compliance panel's report on 6 December 2019. The EU was  
concerned that with the current blockage of the two -step multilateral dispute settlement system, 
the EU was  losing the possibility of a proper appellate review of the serious flaws contained in the 
panel report . While the blockage continue d, the EU  stood ready to discuss with the U nited States WT/DSB/M/44 6 
 
- 10 - 
 
  alternative ways to deal with this appeal. The EU was  also committed to finding a balanced 
negotiated solution with the U nited States that would allow leaving both aircrafts disputes behind 
them.  
3.4.  However, t hese considerations d id not alter the fact that the compliance proceeding in this 
dispute ha d not been concluded. Whether or not the matter was "resolved" in the sense of 
Article 21.6 of the DSU remain ed the very subject matter of this ongoing litigation . The EU asked 
how it could be claimed  that the defending party should submit "status reports" to the DSB in these 
circumstances . The EU would be very concerned with a reading of Article 21.6 of the DSU that would 
require the defending party to notify the purported "status of its implementatio n efforts" through 
the submission of status reports to the DSB, while dispute settlement proceedings on that precise 
issue were ongoing . The EU note d that its reading of the provision was supported by other WTO 
Members. The view of the European Union was further supported by Article 2 of the DSU on the 
administration of the dispute settlement rules and procedures: where, further to the disagreement 
between the parties on compliance, a matter was with the adjudicators , it was temporarily taken 
out of the DSB 's surveillance . Under Article 21.6 DSU, the issue of implementation had to  remain on 
the Agenda of DSB meetings until the issue was resolved. In the "US – Offset Act (Byrd Amendment)" 
case (DS217), the EU did not agree with the US assertion that it had im plemented the DSB's 
recommendations and rulings. This meant that the issue remained unresolved for the purposes of 
Article 21.6 of the DSU. If the United States did not agree that the issue remained unresolved, 
nothing prevented it from seeking a multilate ral determination through a compliance procedure, 
asking for a confirmation of its assertion that the CDSOA measure had been repealed in line with 
the relevant findings, just like the EU was doing in the Airbus  dispute.  
3.5.  The EU 's willingness to find a negotiated solution was also shown by its notification dated  
21 August 2020, which had been  discussed at the 28 August and 28 September 2020  DSB meeting s, 
of additional and extraordinary compliance measures that withdr ew all remainin g subsidies and 
constitute d appropriate steps to remove adverse effects, substantially in excess of what was required 
by Article 7.8 of the SCM Agreement. These additional and extraordinary measures went far beyond 
what was required in order to discharge t he EU's compliance obligations under Article 7.8 of the SCM 
Agreement. The EU ha d procured these additional, extraordinary and costly compliance measures in 
an effort to persuade rational and reasonable stakeholders in the United States, including 
consumer s, employers, workers, government officials and entities, airlines and other economic 
operators, that now was the time to draw a line under these disputes. It was not in the interests of 
anyone that the EU and the United States now proceed to, or continue,  mutually assured retaliation, 
and certainly not in the current economic climate. Instead of progressively stepping -up retaliatory 
measures, the EU and the United States  should step them down. With that in mind, the EU reaffirm ed 
its determination to obtai ning a long -term resolution to the WTO aircrafts disputes. A balanced 
negotiated settlement was the only way to avoid mutually imposed countermeasures . 
3.6.  The representative of the United States  said that t he United States was aware that the EU had 
recently filed yet another notice of supposed compliance . The United States disagree d that the EU 
had achieved compliance . Instead, the United States agree d with the second compliance panel 
report, which had rejected the EU's assert ions and had found that eight EU launch aid subsidies 
continue d to cause adverse effects . The EU now assert ed that it ha d amended two of these eight 
measures; therefore, it admittedly ha d made no changes to six WTO-inconsistent measures. 
Unfortunately, the  amendments the EU had made to French and Spanish A350 XWB launch aid were 
marginal and insufficient to withdraw those subsidies . The EU ha d also expressed doubt about US 
compliance in the "US – Large Civil Aircraft ( second complaint)"  dispute (DS353) . But no one c ould 
deny that Washington State had terminated the aerospace tax break – and the EU ha d not denied 
it. The text of the measure was public, and its terms had been  notified to the WTO and the EU. This 
was the sole measure found to cause adverse effects in the compliance proceeding . The United 
States, as previously stated, was committed to obtaining a long -term solution in this dispute , 
including the new process with the EU, in an effort to reach a resolution.  
3.7.  The representative of the European Union  said that the EU  wished  to respond to the US 
statement that the EU ha d amended only two out of eight measures and ha d made no changes to 
the other six WTO -inconsistent measures.  With regard to the additional Repayable Launch 
Investment (RLI) measures  not covered by the EU notification that had been  mentioned by the 
United States, the EU reiterate d its position as previously expressed, that the compliance proceeding 
in this dispute ha d not been concluded due to  the current blockage of the two -step multilateral 
dispute settlement system.  Moreover, some of the measures mentioned by the U nited States had WT/DSB/M/44 6 
 
- 11 - 
 
  actually been amended and the EU ha d fully explained this to the United States.  It had to  be noted 
that the othe r contested measures relate d to the RLI for the development of the A380 aircraft model. 
It was well known that Airbus had decided , in 2019,  to completely wind -down the A380 programme. 
The last Airbus 380 had rolled out from the production line in Toulouse a few weeks ago. The 
production line was closed,  and its employees ha d been moved to other operations. Therefore , the 
A380 RLI c ould not cause any more adverse effects to the U nited States. 
3.8.  The DSB took note of the statements.  
4  STATEMENT  BY CHINA REGARDING THE PANEL REPORT IN "UNITED  STATES – TARIFF 
MEASURES ON CERTAIN GOODS FROM CHINA " 
4.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
China . He then invited the representative of China to speak.  
4.2.  The representative of China  said that his country wished to  express its appreciation  for the 
Panel 's objective findings in  the " US – Tariff Measures " dispute (DS543) . The Panel's findings  
preserved  the authority of multilateral trading system and Members ' confidence in the dispute 
settlement system. China also w ished to  express its disappointment that the United States had 
opposed the adoption of the Panel Report and had appealed this dispute to a paralyzed Appellate 
Body. It was the United States that ha d ruined the operation of  the Appellate Body . The United 
States  was taking advantage of the Appellate Body 's paraly sis to prevent the coming  into effect of 
this Panel Report.  This dispute  was an important case, not only for China, but also for the WTO. 
There fore, China w ished  to make a statement on this case, even though the Panel Report could not 
be adopted at the present meeting  due to the US appeal. China would focus mainly on three aspects. 
First, the unilateral US tariff measures were inconsistent with WTO rules. Second, the unilateral US 
tariff measures endanger ed the interests of China, the United States and the world. Third, China 
would make a statement to discuss the  abuse of procedural rules  by the United States.  
4.3.  First, China said that the Panel had correctly concluded that the unilateral US tariff measures 
were inconsistent with WTO rules. China had requested the establishment of a panel in this dispute  
on 6 December 2018 to challenge the discriminatory US tariff measures impose d on approximately 
USD 234 billion of imports from China. On 15 September 2020, the Panel had circulated its Final 
Report. In the Panel Report, the unilateral Section 301 tariff measures ha d been found incompatible 
with the multilateral trading system.  The additional US duties exclusively  on imported products from 
China violated Article I:1 of the GATT 1994. By adding such additional duty rate, the customs duties 
levied on imports from China by the United States  were in excess of those set forth in its Sche dule, 
and in violation of Articles II:1(a) and (b) of the GATT 1994. In the face of such flagrant infringement, 
the United States had made no defen ce of its violation s of Article I and II of GATT 1994, but had 
tried to invoke  Article XX(a) of the GATT 1994 . Through careful examination and reasoning, the 
Panel had rejected the  unjustified US defen ce. Pursuant to Article 19.1 of the DSU, the Panel had 
recommended that the United States bring its measures into conformity with its obligations under 
the GATT 1994.  
4.4.  Second, China said that the Panel's decision had unveiled the profoundly unilateral nature of 
the US tariff measures . Most-favoured -nation treatment and the bound rate obligation were well 
recognized as fundamental principles of WTO rules. By finding  that the  US tariff measures violat ed 
Articles I and II of the GATT 1994, the Panel had unveiled the profoundly unilateral nature of the U S 
tariff measures. China  believe d that this was not only a victory for China, but also a victory for the 
multilateral trading system against unilateralism.  Indeed, the unilateral tariff measures taken by the 
United States ha d severely impaired the legitimate interests of numerous Chinese enterprises and 
damaged the trade relationship between China and the United States. T rade, which should have 
been a driver of growth for the common interests of both China and the United States, ha d become 
a sore topic . What was more, the unilateral tariff measures ha d also harm ed the United States itself. 
US economists ha d warned that uni lateral tariff measures could slow the U S economy down and 
would have  a negative impact on US consumers and businesses, because the unilateral tariff 
measures were imposing additional burden s on them. This might explain why a mounting number 
of lawsuits ha d been brought against Section 301 tariff measures at the US Court of International 
Trade since September  of this year . These lawsuits  claimed that the tariffs had been  imposed in an 
"arbitrary and capricious ma nner". The multilateral trading system, with the WTO at its core, also 
had been threat ened by those unilateral measures. History had taught  Members that unilateralism, 
if left unchecked and unregulated, w ould seriously undermine the global industry and val ue chains  WT/DSB/M/44 6 
 
- 12 - 
 
  and threaten the development of the world economy . No country w ould be immune. Therefore, it 
was high time for all WTO Members to shoulder common responsibility in counter ing and resist ing 
the tendencies of unilateralism and  protectionism.  That was the message that  the Panel Report in 
this dispute  conveyed to Members . 
4.5.  Third, China said that the US appeal of the Panel Report in this dispute was an abuse of 
procedural rules . China ha d noted that the United States ha d recently filed appeals in several 
disputes in order to obstruct the adoption of the Panel reports t hat comprised findings that were to  
its disadvantage. The U S appeal was nothing but an abuse of procedural rules which was infringing 
upon other Members ' right to prompt settlement of dispute s under the DSU. As a result of the U S 
obstruction to the AB selection processes, the Appellate Body had been  paralyzed at the end of 2019.  
This posed a serious threat to the dispute settlement system. Since then, Members  had witnessed 
two distinct situations . The first situation  consisted of more than a dozen WTO Members join ing to 
establish the Multiparty Interim Appeal Arbitration Arrangement (MPIA) and 121 WTO Members 
making a joint proposal for launching the AB select ion processes.  The second situation was one  in 
which the U nited States hid behind the paralyzed Appellate Body and trie d to build a "safe haven " 
by abusing procedural rules. No one ought to profit from one's own wrongdoing. T he United States 
was no exception. China, once again, urge d and call ed upon the United States not to use this unfair 
advantage, accept the decision of the Panel and take meani ngful actions to fully implement the 
recommendations of the Panel in this dispute.  Also, the US disregard  of the well-accepted practice 
of submit ting a notice of appeal and an appellant submission clearly constitute d abuse of procedural 
rules. China expres sed regret that the U S appeal under Article 16.4 of DSU had caused th is dispute  
settlement proceeding to enter into appellate review, and that the Panel Report in this dispute  could 
not be adopted at the present meeting . However , China wished to  state clearly that  the Panel Report 
in this dispute was  only temporarily not entering into force. China w ould continue to work with other 
WTO Members to wards the resumption by the Appellate Body of its normal opera tion as soon as 
possible . China  firmly believe d that justice w ould only be delayed , but would  not be absent in the 
end. Effective actions should be taken to stop unilateralist and protectionist measures  from spread ing 
around the world. China sincerely advocate d for taking the decision in this dispute  as an outstanding 
example and a good starting p oint for the Members'  future collective efforts aimed at  better 
countering unilateralist and protectionist measures and at safeguard ing the multilateral trading 
system. China also hope d that the  United States w ould make a constructive  contribution to the 
multilateral trading system and revitalize it again.  
4.6.  The representative of  the United States  said that the findings in the report "US – Tariff Measures 
on Goods from China" (DS543) were based on legal errors. The United States had notified an appeal 
of this  report to the DSB . Accordingly, the panel report could not be adopted at the present meeting. 
The United States would submit a notice of appeal and an appellant submission once a Division of 
the Appellate Body could be established to hear this appeal. Chi na could file its own appeal of the 
panel report now or at that point of time. T he United States nonetheless wished to address this panel 
report because it reflected a major, missed opportunity for the WTO to begin to address the most 
serious problem faced  by every Member that sought a balanced and fair world trading system: 
namely, aggressive, state policies that sought to dominate broad industrial sectors. In prior DSB 
statements, the United States had elaborated upon China's far -reaching efforts to unfai rly take 
technology from other Members .2 And, as Members were aware, it was that action taken by the 
United States to combat these policies that had led to the US measures that China had challenged 
in this dispute. These unfair trade practices had cost US  innovators, workers, and businesses billions 
of dollars every year. Further, they harmed every Member, and every industry in every Member, 
that relied on technology for maintaining competitiveness in world markets. The tariff measures the 
United States ha d taken in response to China's practices had led earlier in 2020 to the historic Phase 
One Economic and Trade Agreement Between the United States and China .3 In this agreement, 
China had committed to cease some – though not all – of its unfair and harmful  technology transfer 
 
2 See WT/DSB/M/410, paras. 11.2 -11.3 ( 27 March  2018, meeting); WT/DSB/M/412, paras. 5.5 -5.11 
(27 April 2018, meeting); WT/DSB/M/413, paras. 4.1 -4.4 ( 28 May 2018, meeting); WT/DSB/M/423, 
paras.  8.3-8.7 (18 December  2018, meeting); see also Findings of the Investigation into China's Acts, Policies 
and Practices Related to Technology Transfer, Intellectual Property, and Innovation under Section 301 of the 
Trade Act of 1974, https://ustr.gov/sites/default/files/Section %20301%20FINAL.PDF.  
3 Economic and Trade Agreement Between the Government of the United States and the Government of 
the People's Republic of China (Phase One Agreement), 
https://ustr.gov/sites/default/files/files/agreements/phase%20one%20agreement/Econom ic_And_Trade_Agree
ment_Between_The_United_States_And_China_Text.pdf.  WT/DSB/M/44 6 
 
- 13 - 
 
  practices.4 The Phase One Agreement included a strong enforcement mechanism, including China's 
agreement that the United States could impose additional tariffs on goods of China upon a US finding 
that China had failed to meet its obli gations. Pursuant to the Phase One Agreement, China was 
making changes to its economic and trade practices that would benefit not just the United States, 
but also China, and all WTO Members. China would not have agreed to the technology transfer 
provisions  of the Phase One Agreement but for the additional US tariffs that China had chosen to 
challenge in this dispute. Moreover, it could not credibly be asserted that alternative tools were 
available to the United States, nor to any other Member, to address Ch ina's unfair and harmful 
technology transfer policies. Accordingly, the Panel's findings against the US tariff measures 
amounted to an acknowledgement that the WTO system, as currently formulated, was an 
impediment to an improved world trading system. This  was completely backwards. Rather, as stated 
in the preambles to the WTO Agreement and the Marrakesh Declaration, the WTO's role should be 
to promote "reciprocal and mutually advantageous arrangements "5; "an integrated, more viable and 
durable multilateral trading system "6; and "open, market -oriented policies ".7 
4.7.  The representative of the United States said that the Panel had reached its institutionally 
harmful findings by making fundamental legal errors in the evaluation of two defences presented by 
the United States. First, the Panel had failed to conduct its own objective assessment of whether the 
facts on the record in the dispute established that China and the United States had both agreed that 
issues relating to the dispute were to be addressed outside the WTO system. The United States had 
established, and China had not disputed, that China had already adopted its own remedy by imposing 
retaliatory tariffs on more than half of all US exports to China. And China had done this openly as a 
response to the same tariff measures that China had challenged in this dispute .8 Furthermore, in the 
Phase One Agreement, China had agreed that the United States could  impose additional tariff 
measures upon a US finding that China was breachin g its obligations under that agreement, including 
with respect to technology transfer.9 In short, the Parties ' actions demonstrated that they had agreed 
on bilateral mechanisms to address the issues related to th is dispute.  The Panel, however, had taken  
no account of the evidence.  Rather, the Panel had simply accepted China 's assertion to the contrary 
– an assertion made during the litigation and only for the purpose of seeking a finding that essentially 
would signal the WTO 's support for China 's technolog y theft.10 This erroneous result amount ed to 
an approval for the cynical misuse of the WTO dispute settlement system.  Even if adopted, the 
finding would not in any way promote the resolution of any dispute between China and the United 
States.  At most, a Me mber that prevail ed in a WTO dispute c ould obtain the authority to suspend 
WTO concessions.  But here, China had already taken the unilateral decision that the US measures 
could not be justified, and China had already imposed tariff measures on US goods.  
4.8.  Second, the representative of the United States said that the Panel had incorrectly rejected the 
US defence that the measures at issue in this dispute were necessary to protect public morals under 
Article XX(a) of the GATT 1994 .11 The United States had provi ded extensive evidence and 
argumentation, showing: the existence of China's unfair and harmful technology transfer policies, 
as the United States had summarized earlier in its present statement; that these policies were 
inconsistent with US and internation al norms for moral conduct; that the US measures had been 
taken for the explicit purpose of ending the unfair practices; and that after years of unproductive 
negotiations and discussions in various fora, the United States had had no other available tools t o 
address this crucial issue. The US showings on these factual matters had been largely undisputed 
by China. China had not even attempted to rebut the existence of the unfair technology transfer 
policies documented by the United States. At the outset of it s analysis, the Panel had correctly found 
that the norms against theft, misappropriation, and unfair competition underlying the US tariff 
measures could fall within the scope of public morals as used in Article XX(a).12 However, the Panel 
had used an unsupportable approach for evaluating whether the US measures were "necessary " 
within the meaning of Article  XX(a).13 As a result, the Panel 's findings were legally unsound.  
Ironically, the Panel had written that it was adopting a "holistic " approa ch to the analysis of 
 
4 Idem., see Chapter 2 (Technology Transfer).   
5 Marrakesh Agreement Establishing the World Trade Agreement, preamble.  
6 Idem. 
7 Marrakesh Declaration of 15 April 1994, preamble.  
8 Panel Report, paras. 7.4 -7.6. 
9 Phase One Agreement, Chapter 7.  
10 Panel Report, para. 7.22.  
11 Panel Report, paras. 7.236 -7.238.  
12 Panel Report, para.  7.140.  
13 Panel Report, paras. 7.178 and 7.180.  WT/DSB/M/44 6 
 
- 14 - 
 
  necessity.14 But the actual approach was anything but that; rather, it was myopic, addressed only 
to whether the public morals objective of the US measure was sufficiently connected to the particular 
products subject to the US tariffs .15 The Panel had no legal basis for adopting this single test to 
evaluate "necessity ". As an initial matter, nothing in the text of Article XX(a) require d any particular 
level of connectedness.  And even if this were a valid consideration, the Panel had no  basis for 
assuming that it was even possible for any Member to tightly connect particular sets of imported 
products to far -ranging and non -transparent policies involving technology theft.  Nor had the Panel 
even address ed the US showing that there were no possible alternative means for the United States 
to achieve the public morality goals recognized under Article XX(a). In short, the Panel had failed to 
conduct a holistic analysis, ignoring nearly all of the record evidence in the dispute.  Instead, the 
Panel had rejected the US defen ce based only on the legally erroneous use of a narrow and 
unsupportable legal test.  
4.9.  In closing, the United States would  turn to the real -world events involving China 's unfair 
technology transfer policies, and US efforts to addr ess them.  As noted, China had committed in the 
Phase One Agreement not to pursue some of the unfair technology transfer policies that had led to 
the US tariff measures.  This was a positive step, and the United States was closely monitoring 
China 's compliance.  The issuance of this report ha d no effect on the Parties ' ongoing implementation 
of the Phase One Agreement, which w ould benefit all of China 's trading partners.  The Panel had 
avoided any meaningful findings by taking flawed legal shortcuts, in stead of considering the 
extensive record evidence involving China 's harmful technology transfer policies and the past failed 
attempts to address these policies in other ways.  In taking this approach, the panel report indicate d 
that the WTO was incapable o f handling these issues.  The report thus serve d as further confirmation 
that the US tariff measures were the only available means to address the major problems to the 
world trading system resulting from China 's forced technology transfer policies.  
4.10.   The repr esentative of China  said that his country wished  to respond to the U S allegations.  
First, China strongly object ed to  the US assertion regarding China 's so-called retaliat ory tariff 
measures. The countermeasures taken by China were fully consistent with the  basic principles of 
China's domestic law and international law. He wished  to re-emphasize that China  firmly uph eld and 
support ed the multilateral trading system. When faced with severely WTO -inconsistent measures, 
China ha d no other choice but to take nec essary and appropriate measures in such an emerg ing 
situation in order to safeguard its legitimate rights and interests as well as the multilateral trading 
system.  Second, regarding the US allegation regarding  forced technology transfer , the United States 
had obviously  chosen to t urn a blind eye to China 's determination and efforts to open up , as well as 
to China's scientific and technological progress and its great contribution to global economic growth. 
The U S allegation on so -called "forced technology transfer " largely ignored facts and was entirely  
untrue. The United States had mentioned the Phase One agreement with China  again . The U nited 
States had simply repeated the arguments it had made before the Panel . However,  the Panel ha d 
clearly  rejected those arguments , since the y were baseless and irrelevant. The United States wished 
to continue  promot ing its  false view s in this regard . However, t he DSB meeting was not an 
appropriate venue  for this . Instead, Memb ers should be focusing on the serious damage that the 
unilateral US tariff measures were imposing upon the multilateral trading system. The groundless 
US accusations c ould not conceal the unilateral nature and WTO -inconsistency of its tariff measures.  
4.11.   The representative of the European Union  said that t his was another dispute that illustrate d 
the grave consequences of the blockage of A B appointments since 2017. That blockage frustrate d 
the essential rights of Members that had been  agreed multilaterally in the DSU . In that regard , the 
EU referred to its intervention under Agenda item 6 of the 28 September 2020  DSB meeting , where 
the EU had  elaborated on these consequences and on the possibility of appeals being adjudicated 
upon through appeal arbitration based on Article 25 of the DSU, consistently with the principles of 
the DSU. The EU  would not repeat these points at the present meeting . The EU t ook note of the US 
decision to appeal the  Panel Report in this dispute . The Panel Report w ould therefore not b e adopted 
by the DSB at the present meeting . The EU had participated  as a third party in this  disput e and 
would intervene before the A ppellate Body once the proceedings c ould resume. Therefore , the EU  
reserve d its position for the purposes of these appellate proceedings.  The EU wished  to make  some 
brief remarks on the substance of the Report.  The EU w ished  to recall  that, as expressed in its 
written submission, it share d the concerns expressed by the U nited States regarding the protection 
of intellec tual property rights and discriminatory conditions applying to foreign licensors of 
 
14 Panel Report, paras. 7.111, 7.152 -7.1533, and 7.238.  
15 Panel Report, para.  7.178.  WT/DSB/M/44 6 
 
- 15 - 
 
  intellectual property in China.  However, the EU  did welcome the general approach of the Panel to 
the exception in Article XX(a) of the GATT.  The EU believed that  much as th e text of Article XX itself, 
the Panel's approach str uck the right balance between the Members ' legitimate right to protect public 
morals and the need to ensure that exceptions were not used to circumvent the Members ' obligations 
under the GATT.  
4.12.   The repres entative of the Russia n Federation  said that her country acknowledged w ith 
disappointment that WTO Members continue d to file appeals notwithstanding the fact that on 
10 December 2019 , the Appellate Body had become non -operational. On the same day as that of 
the present meeting,  the U nited States had notified its appeal into the void. This was already the 
fifth dispute that was blocked before the non -functioning A ppellate Body. Russia fully agree d with 
those WTO Members who had criticized , at the prese nt meeting  and during previous DSB meetings , 
decision s of Members  to appeal panel reports into the void. At the 28 September 2020  DSB meeting , 
the EU had stated that : "the decision by a respondent to appeal a panel report in the current 
circumstances may a mount in effect to dispute resolution through adjudication being blocked, unless 
that respondent agrees to the appeal being adjudicated upon through appeal arbitration based on 
Article 25 of the DSU ".16 Russia agree d that appeal ing into the void amount ed to dispute resolution 
through adjudication being blocked. At the same time, Russia note d that any agreement, including 
on arbitration, require d mutual consent of the parties and c ould not be forced upon a party. In this 
particular context, Russia wished to recall that on 28 August 2020 , the EU had notified the DSB of 
its decision to appeal into the void the Panel Report in the "EU – Cost Adjustment Methodologies II 
(Russia)"  dispute  (DS494) . Russia w ished  to reiterate its disappointment with that decision, even 
more so because the EU was appealing the findings of the Panel regarding the same EU practice 
which ha d already been found to be WTO-inconsistent by the Appellate Body in a number of disputes. 
Russi a believe d that the actions that harmed the operation of the  dispute settlement  mechanism , in 
particular appeals into the void, contribute d significantly to the WTO dispute settlement mechanism 
crisis.   
4.13.   The representative of the European Union  said that t he EU's appeal to the Appellate Body in 
the "EU – Cost Adjustment Methodologies II (Russia)"  dispute  (DS494)  should  not be confused with 
"blocking the dispute resolution " or appealing "into the void ". The EU attache d great importance to 
maintaining a functi oning two -tier dispute settlement process. This was why the EU  had actively 
supported all efforts to find a solution to the impasse  over AB appointments and this was also why 
the EU, together with other Members, ha d put in place the MPIA.  However, if the other party to a 
dispute wa s not willing to agree on such contingency measures while the AB impasse continue d, the 
EU could  have no choice but to appeal before the Appellate  Body. Whether or not such appeal would 
be processed was in the hands of the other party.  In the DS494 dispute, the EU had offered to Russia 
to agree on a means of having the appeal heard through appeal arbitration based on Article 25 of 
the DSU , and that offer still st ood. 
4.14.   The DSB took note of the  statements.  
5  UNITED STATES – MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT 
(SECOND  COMPLAINT)  
A. Recourse to Article 7.9 of the SCM Agreement and Article 22.7 of the DSU by the 
European Union  (WT/DS353/35)  
5.1.  The Chairman  drew attention to the communication from the European Union contained in 
document WT/DS353/35 . He then  invite d the representative of the European Union to speak . 
5.2.  The representative of the European Union  said that t he European Union t ook note of the 
decision  of the Arbitrat or, dated 13 October 2020 , for an amount of US D 3.993 billion annually, 
together with the confirmation by the Appellate Body, adopted by the DSB on 11  April 2019, in the 
context of this case, that, with respect to the "Foreign Sales Corporation and Extraterrito rial Income 
Exclusion " (FSC/ETI ), relevant outstanding rulings and recommendations of the DSB and the 
authorization  based on them remain ed operative.  This mark ed the end of some sixteen years of 
litigation, in which the United States ha d complained about EU subsidies to Airbus, whilst the EU ha d 
complained about US subsidies to Boeing, including, notably, various Washington State tax 
exemptions, the FSC/ETI tax ex emption  (which had been  found in earlier phases of this dispute to 
 
16 EU statement made at the 28 September 2020  DSB meeting.  WT/DSB/M/44 6 
 
- 16 - 
 
  be a prohibited subsidy ), NASA and Department of Defense ( DoD) research and development 
subsidies and various other measures. And now the EU had  rights to countermeasures in the same 
order of magnitude.  Accordingly, the EU request ed to be authori zed to  take countermeasures 
towards the United States under Article 7.9 of the SCM Agreement and Article 22.7 of the DSU in a 
manner consistent with the Arbitrator's decision.  But the EU  recogni zed that the world, and the 
situation in this sector, were different than they were  16 years ago. And this the EU  saw as an 
opportunity that should lead the EU and the United States  to leave the path of litigation and seek a 
sustainable negotiated solution of t his matter.  The E U reiterate d its position that it was not in the 
interests of anyone that the EU and the United States proceed to mutually imposed retaliation.  
Instead of progressively stepping -up countermeasures, the EU  and the United States  should step 
them down. The  EU continue d to stand ready to discuss such an approach with the U nited States, 
even at this late hour. But if the U nited States remain ed out of compliance, and d id not suspend its 
countermeasures, the EU had  no choice but to exercise its rights.  
5.3.  The representative of the United States  said that the United States regretted that the EU had 
requested to move forward with this request for authorization to impose countermeasures. As the 
United States would explain , the Arbitrator's decision related only to Washington State's Business 
and Occupation tax rate reduction that had been eliminated over six months ago. If the EU were to 
impose duties on US goods in response to a measure that had been terminated, that woul d be 
contrary to WTO rules and would force a US response that would move the United States and the 
EU away from finding a solution to the Aircraft disputes. The United States had recently provided 
proposals for a reasonable settlement that would provide a level playing field for the United States, 
the EU and the United Kingdom. With serious engagement by its close trading partners, the United 
States considered that they should be able to find a solution in a short period of time. As the EU was 
well aware, W ashington State's termination of the tax rate reduction had taken effect on 
1 April 2020, over six months ago. The elimination of the preferential aerospace tax rate was 
straightforward. The EU had not disputed that this action taken by Washington State ha d eliminated 
the preferential tax rate subject to the DSB's non -compliance findings and the Arbitrator's decision. 
Thus, Washington State's termination of the preferential tax rate had withdrawn the 
WTO-inconsistent subsidy. Under WTO rules, countermeasure s could not be imposed following 
removal of the WTO -inconsistent measure. Article 22.8 of the DSU stated that: "The suspension of 
concessions or other obligations shall be temporary and shall only be applied until  such time as the 
measure found to be incon sistent with a covered agreement has been removed, or the Member that 
must implement recommendations or rulings provides a solution to the nullification or impairment 
of benefits . . .". Accordingly, the EU had known for more than six months that it was no t entitled to 
apply  any countermeasures in any amount in relation to the Washington State tax measure that 
"has been removed". If the EU imposed countermeasures despite the withdrawal of the Washington 
State tax measure, the EU would not only breach WTO ru les; it would seriously undermine the WTO 
system. The EU had litigated successfully against the Washington State tax measure. And the system 
had contributed to the desired change – the United States had withdrawn the WTO -inconsistent 
measure, eliminating a ny adverse effects .17  
5.4.  The United States said that the EU ha d previously referred to NASA and Department of Defense  
research and development measures, as well as certain state and local measures.  However, there 
should be no confusion.  First, none of these measures had been  found to continue causing adverse 
effects in the compliance proceeding both parties had agreed to.  Therefore, there was no WTO 
finding of non -compliance for the NASA, Department of Defense, or other state and local measures.  
Second, the Arbitrator had identified the level of countermeasures only for Washington State 's tax 
measure in a past time period (2012 -15). The Arbitrator had explicitly said it would not examine 
Washington State 's elimination of the tax measure earlier in 2020 . The Arbitrator had also explicitly 
rejected  an EU request to assign countermeasures for the NASA or Department of Defense measures.  
Thus, any DSB action at the present meeting  to authorize countermeasures d id not concern NASA 
or Department of Defense measures.  And as the United States had  explained, the EU ha d no right 
to apply countermeasures under WTO rules against the Washington State tax measure that ha d 
 
17 Article 3.7  of the DSU : "[t]he aim of the dispute settlement mechanism is to secure a positive solution 
to a dispute. A solution mutually acceptable to the parties to a  dispute and consistent with the covered 
agreements is clearly to be preferred. In the absence of a mutually agreed solution, the first objective of the 
dispute settlement mechanism is usually to secure the withdrawal of the measures concerned if these are  found 
to be inconsistent with the provisions of any of the covered agreements ". WT/DSB/M/44 6 
 
- 17 - 
 
  already been removed.18 In conclusion, the United States strongly favo ured a negotiated resolution 
of its dispute with the EU over the massive launch aid subsidies it provided to Airbus.  The United 
States ha d recently provided proposals for a reasonable settlement that would provide a level playing 
field. The United States  considered that a solution to these disputes was within reach with serious 
engagement by its close trading partners.  
5.5.  The representative of European Union  said that the EU  did not agree with the US unilateral 
assertion that it ha d fully implemented the DSB' s recommendations and rulings in the Boeing 
dispute. In accordance with the DSU, the decision of the Arbitrator  gave the EU the right to impose 
countermeasures against the United States for its lack of compliance, once authorized by the DSB. 
In addition, while the EU was still examining the impact of the legislative action regard ing the 
Washington State tax measures, the EU note d that the rulings in this dispute cover ed a number of 
additional measures where the US remain ed non-compliant , including the Foreign Sales Corporation 
and Extraterritorial Income Exclusion, NASA and Department of Defense research and development 
measures, and certain state and local measures . As already referred to in the previous statements  
made by the EU  on thi s matter, following the Appellate Body Report on compliance in the Airbus 
case, the EU had notified a set of compliance measures to the WTO that had brought the EU  in 
compliance with the ruling. The United States had disagreed. On the basis of its disagree ment, the 
United States continue d to apply countermeasures against produ cts from the EU. At the same time, 
the United States was blocking the two -step, multilateral dispute settlement system, thus depriving 
the EU from seeking a multilateral determination of compliance regarding its measures.  
5.6.  The representative of the United Kingdom  said that his country support ed a rapid settlement 
of the Airbus and Boeing disputes and believe d that the circumstances were ripe to conclude one. 
The United Kingdom was pleased that nearly USD 4 billion in countermeasures ha d been awarded in 
relation to the Boeing dispute. The level determined by the Arbitrator recogni zed the adverse effects 
caused to the United Kingdom and th e European Union in this matter.  The United Kingdom  hoped 
that this decision  and the steps the DSB w ould take at the present meeting  would lead to substantive 
progress in negotiations for a fair and balanced settlement, in order to finally put an end to th ese 
disputes. It was the U K's preference to find a negotiated outcome that would resolve the disputes, 
end countermeasures and re -establish effective subsidy discipline for the aerospace sector.  The 
United Kingdom was determined to settle these disputes in  a fair and comprehensive  manner as 
soon as possible. For sixteen years the United Kingdom ha d worked closely with the European Union 
and the United States to find a long-term resolution and w ould continue to do so. From 
January  2021, the United Kingdom w ould represent itself fully and independently at the WTO and 
would pursue all avenues to reach a satisfactory outcome.  
5.7.  The DSB took note of the statements and, pursuant to the request by the European Union 
under Article 7.9 of the SCM Agreement and Article  22.7 of the DSU contained in document 
WT/DS353/35, agree d to grant authorization to suspend the application to the United States of tar iff 
concessions or other obligations consistent with the Arbitrator's decision contained in document 
WT/DS353/ARB.   
6  THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES  
A. Statement by the Chairman on consultations with Thailand and th e Philippines with 
regard to the recourse to Article 22.2 of the DSU (WT/DS371/32)  
B. Statement by the Philippines  
C. Statement by Thailand  
6.1.  The Chairman  said that under the first sub -item, he wished to make a statement under his own 
responsibility in order  to report to delegations on his consultations with Thailand and the Philippines 
in the "Thailand – Cigarettes (Philippines)" dispute (DS371) . His statement was without prejudice to 
the rights and obligations of the parties to this dispute or of any other Member . He recalled that 
 
18 Article 22.8  of the DSU : "[t]he suspension of concessions or other obligations shall be temporary and 
shall only be applied until such time as the measure found to be incons istent with a covered agreement has been 
removed, or the Member that must implement recommendations or rulings provides a solution to the nullification 
or impairment of benefits, or a mutually satisfactory solution is reached ". WT/DSB/M/44 6 
 
- 18 - 
 
  these consultations had first been conducted by the previous DSB Chair, Amb. Walker, prior to the 
5 March 2020 DSB meeting. At that meeting, the matter had been suspended in order to allow more 
time for consultations. Following his  appointment as DSB Chair on 20 May 2020, he had been 
consulting with Thailand and the Philippines on this matter . He had held virtual intensive 
consultations with the parties in preparation for the 29 June 2020 DSB  meeting . Following the 
29 June 2020 DSB meeting, he had continued his intensive consultations with the parties to this 
dispute and had held three meetings to discuss this matter.  Immediately after the 29  July 2020 DSB 
meeting, he had  held another meeting in -person with the parties to this disput e on 30 July 2020. 
Subsequently, he had reported back to the Membership on this matter at the 28 August DSB 
meeting.  Since the  28 August 2020 DSB meeting,  he had continued to consult with the parties to 
the dispute and had had written exchanges with both parties on this subject.  He had then  held 
another in -person meeting with the parties to the dispute on 23 September 2020 to further discuss 
this matter . He also r eported back to the Membership on this matter at the 28 September 2020 DSB 
meeting. Subsequently, he had had additional written exchanges with both parties to this dispute 
on this subject. Since his consultations were ongoing, it was not his intention to h ave a discussion 
on this matter at the present meeting. He hoped that this was agreeable to all Members .  
6.2.  The DSB took note of the statement.   
6.3.  The Chairman  said that he wished to inform delegations that the delegation of the Philippines 
was unable to be ph ysically present in the meeting room today, and therefore requested that its 
statement be delivered on behalf of the Philippines under this Agenda item. He then requested the 
Secretariat to read out the statement on behalf of the Philippines.  
6.4.  As requested  by the Chairman, t he representative of the Secretariat read out the following 
statement on behalf of the  delegation of the  Philippines: The Philippines  said that his country wished 
to thank the Chairman for his report . The Philippines reiterate d its sincere appreciation of the 
Chair man's ongoing efforts . Further to its statements that had been  made  at the past four DSB 
meetings in June, July, August and September 2020, the Philippines  wished to thank the 
Chair man and the DSB  Secretariat for the a dditional set of questions sent to the Philippines  on 
30 September 2020 . These questions were  aimed at seeking to further explore possible pathways 
to resolving the parties ' differences on the way forward with Thailand 's pending appeals under 
Article  21.5 of the DSU and the Philippines ' request under Article 22 .2 of the DSU . Both parties had 
sent their responses to these questions on 21 October  2020. The Philippines and Thailand w ould also 
be given the opportunity to comment on their respective  responses by 28 October  2020.  The 
Philippines  hoped that this supplemental exchange c ould finally provide much -needed clarity t hat 
would allow mov ing forward with the Philippines ' request under Article 22.2  of the DSU , while 
protecting Thailand 's right o f appeal. The Philippines  trusted that the latest responses ha d not only 
been helpful in confirming the parties'  respective positions on the relevant issues, but also in 
shedding a bright light on the emerging means to resolve the impasse  at hand.  Once again, the 
Philippines wishe d to recall that in the spirit of cooperation and at the Chair man's suggestion, the 
Philippines  had presented for consideration a non -exhaustive list of alternative arrangements, 
contained in document WT/DS371/40 , dated 3 August  2020, that could allow the parties to fashion 
a constructive solution that would permit the completion of Thailand 's appeals, which had been  
suspended as a result of the non -functioning of the Appellate Body. Any such alternative 
arrangements should not i n any way prejudice the parallel rights of the Philippines under the DSU 
to seek automatic and mandatory authorization to suspend concessions.  As the Philippines had  set 
out in its statements made at previous DSB meetings under this Agenda item, a nd in the 
consultations  with the DSB Chair,  the Philippines remained open, ready and willing to engage 
constructively with Thailand. However, it should also become  clear to the Chair man, and to the DSB, 
that Thailand, as the losing party in duly  adopted Panel and AB reports, was utterly not able to 
constructively engage in a solution. The Philippines  wished to reiterate, therefore, that the burden 
of applying the automatic and mandatory rules -based provisions of the DSU w ould be the duty and 
responsibility of the DSB. At the present  meeting, therefore, the Philippines ask ed the DSB to grant 
the Philippines the authority it sought . The provisions of Article 22.6 of the DSU were clear: 
"[t]he DSB, upon request, shall grant autho rization to suspend concessions or other obligations 
within 30 days of the expiry of the reasonable period of time unless the DSB decides by consensus 
to reject the request"; and " [i]f the Member concerned objects to the level of suspension proposed, 
[…] the matter shall be referred to arbitration". Therefore, in the Philippines' view there were only 
two options under the reverse consensus rule under  Article 22.6 of the DSU: first,  the DSB  granting  
authorization to suspend concessions; or, second, the DSB r eferring the matter to arbitration . 
6.5.  The DSB took note of the statement  made by the Philippines.  WT/DSB/M/44 6 
 
- 19 - 
 
  6.6.  The Chairman  invited the representative of Thailand  to speak.  
6.7.  The representative of Thailand  said that her country  wished to take this opportunity to once 
again express Thailand's appreciation for the Chairman's  active engagement in assisting Thailand 
and the Philippines in finding a way forward in this dispute . The consultations  conducted under the 
Chairman's leadership  were pe rmitting a constructive dialogue between the parties . Thailand 
remains committed to continuing these consultations.  As Thailand ha d explained in its prior 
statements at the DSB meetings of 5  March, 29  June, 29 July, 28 August and 28 September  2020, 
there was no possible interpretation of the DSU or of the Sequencing Agreement between the parties 
that would permit the Philippines to seek authority to retaliate at this point in the proceedings. The 
Philippines' retaliation request was without legal foundation  because it had been  made long after the 
expiry of the 30 -day deadline under  Article 22.6 of the DSU . Indeed, it was undisputed that the 
Philippines had not file d any retaliation request by 14 June 2012, which was the date on which  the 
30-day deadline in this dispute  had expired . Additionally, the Philippines' retaliation request was 
contrary to the Sequencing Agreement concluded by both parties . The Sequencing Agr eement state d 
that the Philippines first had to complete proceedings  under Article 21.5  of the DSU;  only thereafter, 
if non -compliance was determined, c ould the Philippines request retaliation under Article 22  of the 
DSU. Thailand was therefore disappointe d that the Philippines was attempt ing to disavow the 
Sequencing Agreement that both parties had concluded precisely to avoid these types of procedural 
problems . Thailand was also surprised that the Philippines consider ed that Thailand remain ed bound 
by the  Sequencing Agreement, but that the Philippines itself was not.  It was obvious that the real 
problem was not the DSU or the Sequencing Agreement, but the Appellate Body crisis.  It was 
imperative that a solution be found to this crisis.  Thailand urge d all WTO Members to focus on 
resolving this crisis.  Members had  seen, in other disputes, that parties ha d continued to file appeals 
before the Appellate Body notwithstanding the current crisis.  This highlight ed the importance placed 
by Members on having a two-tier system in order to ensure the quality and legitimacy of WTO dispute 
settlement.  Thailand look ed forward to continuing the multilateral efforts to solve the AB impasse 
with a view to preserving the two -tier dispute settlement system. In the meantim e, Thailand 
remain ed committed to participating in good faith in the consultations organized by the DSB 
Chairman with the aim of finding a way forward in light of the present circumstances.  As Members 
would understand, Thailand much  prefer red a solution th at was not simply an ad hoc  way of 
disposing of this case, but one that encompasse d all pending appeals and, ideally, ensured that  the 
multilaterally -approved dispute settlement  system was back on track.  Thailand wished to thank the 
DSB Chairman for the op portunity to make a statement at t he present  meeting and the Philippines 
for its ongoing engagement. Thailand look ed forward to the next steps in the consultations facilitated 
by the DSB Chairman in this dispute.  
6.8.  The DSB took note of the statement  made by Thailand.  
6.9.  The representative of Brazil  said that his country wished  to express, once again, its support for 
the Chairman's efforts to assist the parties in finding a solution to this problem.  It was Brazil's 
understanding that while  the current paralysis o f the Appellate Body could not have been foreseen 
by Members concluding sequencing agreements  a few years ago, the current situation amount ed to 
a change in the circumstances that m ight render impracticable or impossible to make operational 
any step s of a sequencing agreement  that had assumed and depended on the continuing operation 
of the Appellate Body. However, s uch steps should not be an excuse for stalling indefinitely the 
resolution of a dispute, which would seem to be rather contrary to the goal of s equencing 
agreements. The DSU was clear in that : "prompt settlement of [disputes] (…) is essential to the 
effective functioning of the WTO and the maintenance of a proper balance between the rights and 
obligations of Members ". Brazil  trusted that with  the help of the  Chair man, the parties w ould, in 
good faith, move forward in this dispute.  
6.10.   The representative of Australia  said that her country wishe d to emphasi ze that Australia's  
comments relate d only to the current procedural issues in this dispute and  should not be taken as 
support for any substantive issue in the litigation. Australia  recall ed that prompt resolution of 
disputes was one of the core principles of the WTO dispute settlement system.  Australia  recogni zed 
that the lack of final resolution i n this dispute ha d arisen in part from the AB impasse . Australia  
urged all Members to continue to prioriti ze a solution that that would r estore the dispute settlement 
system to full functionality. In the meantime, Australia  urged Thailand and the Philippin es to work 
constructively to agree  on procedural steps for resolving this dispute in a timely manner . Australia  
support ed the Chair man's efforts to encourage dialogue to this end.  Australia considered  arbitration 
pursuant to Article 25 of the DSU as one option that parties could agree to as a way to resolve their WT/DSB/M/44 6 
 
- 20 - 
 
  disputes while the Appellate Body was unable to complete appeals.  As Members were aware, 
Australia was part of the Multi-Party Interim Appeal  Arbitration Arrangement  (MPIA) , which use d 
Article 25 of the DSU as an interim measure to preserve prompt and binding dispute settlement and 
independent and impartial appellate review.  
6.11.   The representative of the European Union  said that i n these extraordin ary circumstances of 
the paralysis  of the Appellate Body,  his delegation  called on the parties concerned to seek an agreed 
solution that would preserve the rights of both parties in a balanced manner . The EU w ished  to point 
out that the parties could decide to submit the suspended appeal for completion under an appeal 
arbitration pro cedure pursuant to Article 25 of the DSU, such as the MPIA. Such an appeal arbitration 
procedure could, for all practical purposes, replicate all substantive and procedural aspects of 
appellate review . The EU trust ed that the DSB Chair man could assist the parties in reaching such a 
solution . The EU disagree d with the assumption that the sequencing agreement concluded between 
the Philippines and Thailand preclude d the Philippines from request ing the suspension of concessions 
in this case. The EU wishe d to refer to its statements made at previous DSB meetings on this matter.  
6.12.   The DSB took note of the statements.  
6.13.   The Chairman  said that  in light of the importance and the sensitivity of this matter, he would  
continue to consult with the parties to this dispute and that he would report back to delegations . 
6.14.   The DSB took note  of the statement . 
7  ADOPTION OF THE 2019/2020 DRAFT ANNUAL REPORT OF THE D ISPUTE SETTLEMENT 
BODY (WT/DSB/W/662)  
7.1.  The Chairman  said that, u nder this Agenda item, he was  submitting for adoption the draft text 
of the 2019/2020  Annual Report of the DSB contained in document WT/DSB/W/6 62. He did  so 
pursuant to the Procedures for an Annual Overview of WTO Activities and for Reporting under the 
WTO, contained in document WT/L/105.  This Report cover ed the work of the DSB since the previous 
Annual Report contained in document WT/DSB/7 6. In other words, it cover ed meetings of the DSB 
from 4 December 2018 through 28  September 2020. The Report contain ed a brief summary of DSB 
meetings during the period under review. As in the past, following the adoption of the Annual Report 
at the present  meeting, the Secretariat w ould update the Report under its own responsibility in order 
to include the actions taken b y the DSB at the present  meeting. Subsequently, the updated 
Annual  Report w ould be submitted for consideration by the General Council at its meeting scheduled 
for 16 and 17  December 2020. Consequently, the Chair man propose d that the DSB adopt the draft 
Annual Report of the DSB contained in document WT/DSB/W/6 62 on the understanding that it w ould 
be further updated by the Secretariat . 
7.2.  The DSB took note  of the statement and adopted  the draft Annual Report  of the DSB  contained 
in document WT/DSB/W/6 62 on the u nderstanding that it would be further updated by the 
Secretariat.19 
8  PROPOSED NOMINATION FOR THE INDICATIVE LIST OF GOVERNMENTAL AND 
NON-GOVERNMENTAL  PANELISTS (WT/DSB/W/ 671) 
8.1.  The Chairman  drew attention to document WT/DSB/W/671 which contained a new nomination 
proposed by the Philippines  for inclusion on the Indicative List of Governmental and 
Non-Governmental Panelists, in accordance with Article  8.4 of the DSU. He proposed that the DSB 
approve the name contained in document WT/DSB/W/671.  
8.2.  The DSB so agree d. 
 
19 Subsequently, the  Annual R eport of the DSB  was circulated in document WT/DSB/ 81. WT/DSB/M/44 6 
 
- 21 - 
 
  9  APPELLATE BODY APPOINTMENTS: PROPOSAL BY AFGHANISTAN; ANGOLA; 
ARGENTINA; AUSTRALIA; BANGLADESH; BENIN; PLURINATIONAL STATE OF BOLIVIA; 
BOTSWANA; BRAZIL; BURKINA FASO; BURUNDI; CABO VERDE ; CAMEROON; CANADA; 
CENTRAL AFRICAN REPUBLIC; CHAD; CHILE; CHINA; COLOMBIA; CONGO; COSTA RICA; 
CÔTE D'IVOIRE; CUBA; DEMOCRATIC REPUBLIC OF CONGO; DJIBOUTI; DOMINICAN 
REPUBLIC; ECUADOR; EGYPT; EL SALVADOR; ESWATINI; THE EUROPEAN UNION; GABON; 
THE GAMBIA; GH ANA; GUATEMALA; GUINEA; GUINEA BISSAU; HONDURAS; HONG KONG, 
CHINA; ICELAND; INDIA; INDONESIA; ISRAEL; KAZAKHSTAN; KENYA; REPUBLIC OF 
KOREA; LESOTHO; LIECHTENSTEIN; MADAGASCAR; MALAWI; MALAYSIA; MALDIVES; 
MALI; MAURITANIA; MAURITIUS; MEXICO; REPUBLIC OF MOL DOVA; MOROCCO; 
MOZAMBIQUE; NAMIBIA; NEPAL; NEW ZEALAND; NICARAGUA; NIGER; NIGERIA; NORTH 
MACEDONIA; NORWAY; PAKISTAN; PANAMA; PARAGUAY; PERU; QATAR; RUSSIAN 
FEDERATION; RWANDA; SENEGAL; SEYCHELLES; SIERRA LEONE; SINGAPORE; SOUTH 
AFRICA; SWITZERLAND; THE SE PARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, 
KINMEN AND MATSU; TANZANIA; THAILAND; TOGO; TUNISIA; TURKEY; UGANDA; 
UKRAINE; UNITED KINGDOM; URUGUAY; THE BOLIVARIAN REPUBLIC OF VENEZUELA; 
VIET NAM; ZAMBIA AND ZIMBABWE (WT/DSB/W/609/REV.18)  
9.1.  The Chairman  said t hat this item was on the Agenda of the present meeting at the request of 
Mexico, on behalf of a number of delegations. He then drew attention to the proposal contained in 
document WT/DSB/W/609/Rev.18 and invited the representative of Mexico to speak . 
9.2.  The representative of Mexico  speaking on behalf of the co -sponsors of the joint proposal 
contained  in document  WT/DSB/W/609/Rev.18 , said that the delegations in question had agreed to 
submit the joint proposal dated  18 June 2020 to launch the AB selection processes. Her delegation, 
on behalf of 121 Members, wished to make the following statement . The extensive number of 
Members submitting this joint proposal reflected a common concern with the current situation of the 
Appellate Bo dy, which  was seriously affecting the overall dispute settlement system against the best 
interest of WTO Members . Members had a responsibility to safeguard and preserve the Appellate 
Body, the dispute settlement system and the multilateral trading system. Thus, it was the Members' 
duty to launch the AB selection processes without further delay as set out in the joint proposal, 
which sought the following : (i) to start six selection processes: one process to replace 
Mr Ricardo  Ramírez -Hernández, whose second term had expired on 30 June 2017; a second process 
to fill the vacancy that had resulted from  the resignation of Mr Hyun Chong Kim with effect from 
1 August 2017; a third process to replace Mr Peter Van den Bossche, whose second term had expired 
on 11 Dece mber 2017; a fourth process to replace Mr Shree Baboo Chekitan Servansing, whose 
four-year term of office had expired on 30 September 2018; a fifth process to replace Mr Ujal Singh 
Bhatia, whose second term had expired on 10 December 2019; and a sixth proc ess to replace 
Mr Thomas R. Graham whose second term had expired on 10 December 2019; (ii) to establish a 
Selection Committee; (iii) to set a deadline of 30 days for nominating candidates ; and (iv) to request 
that the Selection Committee issue its recommen dation s within 60 days after the deadline for 
nominations of candidates . She said that t he proponents were flexible regarding the deadlines for 
the AB selection processes. However, they believed that Members should consider the urgency of 
the situation. Th ey continued to urge all Members to support this proposal in the interest of the 
multilateral trading system and the dispute settlement system .  
9.3.  The representative of the European Union  said that his delegation wished to refer to the EU 
statements made on this issu e at previous DSB meetings, starting in February 2017, as well as to 
its statements made at the General Council meetings, including at the 9 December 2019 G eneral 
Council  meeting . Since 11 December 2019, the WTO no longer guaran teed access to a binding, 
two-tier, independent and impartial resolution of trade disputes. This was in clear breach of the WTO 
Agreements . As the EU had stated repeatedly, Members had a shared responsibility to resolve this 
issue as soon as possible, and to fill the outstanding vacancies as required by Article 17.2 of the 
DSU. The EU thanked all Members that had co -sponsored the proposal to launch the AB selection 
processes. The EU invited all other Members to endorse this proposal . 
9.4.   The representative of the United States  said that as the United States had explained in prior 
DSB meetings, the United States was not in a position to support the proposed decision. The systemic 
concerns that the United States had identified remained unaddressed. Instead, Membe rs should 
consider how to achieve meaningful reform of the dispute settlement system. The US view across 
multiple US Administrations had been clear and consistent: When the Appellate Body overreached 
and itself broke WTO rules, it undermined the rules -based trading system. The Appellate Body's WT/DSB/M/44 6 
 
- 22 - 
 
  abuse of the limited authority given by Members damaged the interests of all WTO Members who 
cared about a WTO in which the agreements were respected as they had been negotiated and 
agreed. Earlier in 2020, the Office  of the US Trade Representative had published a Report on the 
Appellate Body of the World Trade Organization. The Report detailed how the Appellate Body had 
failed to apply WTO rules as agreed by WTO Members, imposing new obligations and violating 
Members'  rights .20 The United States appreciated the number of Members who had reviewed the 
Report and shared the view that the Report identified serious errors by the Appellate Body. As the 
United States had explained repeatedly, the fundamental problem was that the Appellate Body had 
not respected the current, clear language of the DSU. Members could not find meaningful solutions 
to this problem without understanding how they had arrived at this point. Without an accurate 
diagnosis, Members could not assess the l ikely effectiveness of any potential solution. The United 
States had actively sought engagement from Members on these issues. Yet, some Members had 
remained unwilling to admit there was even a problem, much less engage in a deeper discussion of 
the Appella te Body's failures. And rather than seeking to understand why the Appellate Body had 
departed from what Members had agreed, these Members and others had redirected the focus and 
energies of the Membership to pursue an arrangement that would, at best, perpe tuate the failings 
of the Appellate Body .21 Nevertheless, the United States was determined to bring about real WTO 
reform. Members had to ensure that the WTO dispute settlement system reinforced the WTO's critical 
negotiating and monitoring functions, and did not undermine those functions by overrea ching and 
gap-filling. The central objective of the dispute settlement system was to assist the parties to find a 
solution to their dispute. As in the past, Members had many methods to resolve a dispute, including 
through bilateral engagement, alternative dispute procedures, and third -party adjudication. Parties 
should redouble their efforts to find such a positive solution to their disputes. The United States 
would continue to insist that WTO rules be followed by the WTO dispute settlement system. The 
United States would continue its efforts to seek a solution on these important issues . 
9.5.  The representative of Thailand  said that her country support ed the statement made by Mexico 
on behalf of the co -sponsors of the proposal to fill the AB vacancies. The import ance of the Appellate 
Body to the viability of the WTO dispute settlement system c ould not be overstated.  Thailand ha d 
worked alongside other Members as part of the informal process of focused discussions on AB 
matters with Amb. Walker as Facilitator (the Walker process)  with a view to resolving the AB 
impasse. Unfortunately, the Members'  efforts ha d not been fruitful.  Thailand believe d that the 
two-tiered dispute settlement system remain ed a crucial element in providing security and 
predictability to the multilateral trading system . In this regard, as one of the Member s with pending 
appeals, it  was clear that Thailand 's rights ha d been substantially impaired as a result of the AB 
impasse. I t was therefore Thailand's  priority to restore a fully functioning dispute settlement system 
in order to preserve the rights and obligations of all WTO Members.  To this end, Thailand, once 
again , urged Members to fully engage with a view to find ing a commo n solution. Thailand look ed 
forward to engaging with Members in these efforts.   
9.6.  The representative of Hong Kong, China  said that his delegation support ed the statement made  
by Mexico  on behalf of the co -sponsors. Hong Kong, China  wished  to reiterate its concerns with the 
lack of progress in resolving the AB impasse. The  selection process es of AB members should 
commence  without delay. Hong Kong, China  urged Members to continue with their efforts and their 
constructive engagement until a s olution was found.  
9.7.  The representative of Korea  said that his country  support ed the statement made by Mexico on 
behalf of the co -sponsors of the joint proposal  contained  in document  WT/DSB/W/609/Rev.18 . Korea 
urged all Members to engage constructively in the discussions  aimed at resolv ing this important 
issue as soon as possible . 
9.8.  The representative of Japan  said that his country wished to refer to its statements made at 
previous DSB meetings under this Agenda item . Japan supported the proposal  contained  in 
document  WT/DSB/W/609/Rev.18 . Japan fully share d the sense of urgency expressed by other 
Members regarding the need for  an expeditious reform of the WTO dispute settlement system . Japan 
wishe d to reiterate that its top priority was to reform the WTO dispute settlement system in a manner 
 
20 United  States Trade Representative, Report on the Appellate Body of the World Trade Organization 
(February 2020), available at https://geneva.usmission.gov/wp -content/uploads/sites/290/AB -
Report_02.1 1.20.pdf . 
21 See US Stat ement at the 29 June 2020 DSB m eeting (Item 13), available at: 
https://geneva.usmission.gov/wp -content/uploads/sites/290/Jun29.DSB_.Stmt_.as -deliv.fin_.public13218.pdf.  WT/DSB/M/44 6 
 
- 23 - 
 
  that would serve to achieve a long -lasting solution to the Appellate Body matters. Such a solution 
could be achieved only through active discussions by Members , as the owners of the system , 
including discussions on  the challenges that the system presented. To that end , Japan would spare 
no effort in collaborat ing with other Members.  
9.9.  The representative of Iceland  said that a s one of the co -sponsors o f the proposal  contained  in 
document  WT/DSB/W/609/Rev.18 , his country  was concerned about  the long-standing inability  of 
the WTO  to make  progress in filling the  current  vacancies  in the Appellate Body.  Iceland believed  
that a two -stage WTO dispute settlement sy stem play ed a central role in providing predictability 
within the multilateral trading system and in securing a fair playing field among all economies, large 
and small. Therefor e, Iceland  called on all Members to engage constructively and solve this impass e 
without further delay.  
9.10.   The representative of Switzerland  said that her country wished to refer to its statements made 
at previous DSB meetings on this matter. As time passed, Members' commitment to resolving the 
current AB impasse must not fade. Switzerland urged all Members to engage constructively in order 
to find concrete solutions. Switzerland continued to be committed to working with all Members 
towards that goal. It was Switzerland's priority to ensure that the appellate stage could fully function 
again, to the benefit of the entire Membership .  
9.11.   The represe ntative of Nigeria , speaking on behalf of the African Group , said that the Group  
wished to refer to their statements made at previous DSB meetings on this very important issue. 
The Group  also wished to thank Mexico for its statement made at the present mee ting on behalf of 
the co -sponsors of the AB proposal. The Group  wished to express regret that up to now the DSB ha d 
failed in the performance of its function under Article 17.2 of the DSU which clearly state d that: 
"[v]acancies  shall be filled as they arise ". The large  number of Members that had submitt ed the joint 
proposal contained  in document  WT/DSB/W/609/Rev.18 reflect ed a common concern with the 
current situation of the Appellate Body 's impasse that was seriously affecting the function ing of the 
Appellate Body  and the whole dispute settlement system against the best interests of WTO Members . 
As things st ood, the WTO no longer guarantee d access to a binding, two -tier, independent and 
impartial resolution of trade disputes. Me mbers ha d the responsibility to safeguard and preserve the 
Appellate Body, the dispute settlement system and the multilateral trading system. Thus, it was the 
Members'  duty to launch the AB selection processes without further delay , as set out in the joint  
proposal. The African Group thank ed all Members that ha d co-sponsored this joint proposal to launch 
the AB selection processes and encourage d all other Members to endorse this proposal. The African 
Group st ood ready to engage constructively with Members on this matter in o rder to find an amicable 
solution while taking into consideration the valuable concerns raised by Members  in this regard.  
However, the African Group  reiterate d that finding a solution should not stand in the way of launching 
the AB selection process es. 
9.12.   The representative of  the Republic of  Moldova  said that her country remain ed to be very  
concerned over the paralysis of the Appellate Body and continue d to support the proposal submitted  
by Mexico, on behalf of the co -sponsors.  Moldova  wished to refer to  its statements made at previous 
DSB meetings on this matter . Moldova  expressed deep regret that the AB impasse was still not 
resolved and that the Appellate Body was not able to perform its functions over such a long period. 
Moldova was a strong and genuine supporter of an efficient, well -functioning  and rules-based 
multilateral trad ing system. Notwithstanding some of its imperfections, this Organization was of vital 
importance to every Member, particularly for small and open economies such as  the one of Moldova.  
The continu ing AB crisis was detrimental , especially for small Members l ike Moldova , and was highly 
damaging for the multilateral trading system . This was a matter of great concern to Moldova  because  
the properly functioning, two -tiered dispute settlement system was essential  for safeguard ing 
Moldova's  rights and obligations. Although Moldova was not a frequent user of the system given the 
complexity and high demands in terms of capacities and resources, Moldova wanted  this system  to 
be fully functional as a guard ian and a legal guarantee  of Members' rights. Therefore, Moldova  would 
continue to support this proposal and call ed for an urgent resolution of the problem s affecting the 
DSB. As previously mentioned by the previous speakers, Members  shall not get used to this situation. 
To resolv e this crisis had to  be a priority for every Member whether  or not  they were frequent users 
of the dispute settlement system  because in the end this situation affect ed all Members either 
directly or indirectly.  
9.13.   The representative of Indonesia  said that his  country wishe d to refer to its statements made 
at previous DSB meetings under this A genda  item. Indonesia wished  to raise its continued concern WT/DSB/M/44 6 
 
- 24 - 
 
  over the inability to appoint Appellate Body members, which ha d resulted in the absence of a 
fully-functioning two –tier system for the resolution of disputes at the WTO. Indonesia  was also 
concerned about  the adverse impact resulting  from the current crisis, such as Members being unable 
to reach mutual ly agreed soluti ons on the way forward to resolve their  disputes, the mounting 
backlog of cases, and any future  cases that might be  appealed into the void. Given this situation, 
Members  should look at any action that might  be taken to resolve the current situation  and fin d a 
way forward with regard to their disputes. Indonesia believe d that Members should respect their 
commitment under WTO rules to find positive solution s to their disputes and to preserv e the 
rules-based multilateral trading system.  Indonesia also urge d all Members to give meaningful 
attention, willingness and commitment to resolving the issue of appointment s of new Appellate Body 
members.  
9.14.   The representative of Singapore  said that his country thank ed Mexico for its statement  and 
said that Singapore suppo rted Mexico's statement.  Singapore wished to refer to its statements made 
at previous DSB meetings on this matter . Singapore  reiterated its strong systemic interest in the 
maintenance of the two -tier binding WTO dispute settlement mechanism that was underp inned by 
negative consensus . The unblocking of the AB selection processes had to remain the paramount 
priority for all Members. Singapore urged all Members, including the United States, to constructively 
engage in finding a lasting multilateral solution  to this matter.  
9.15.   The representative of Turkey  said that her country wished to thank Mexico for  including  this 
item o n the Agenda of the present meeting.  As a co -sponsor of this proposal, Turkey wished to refer 
to its statements made at previous DSB meetings and recall ed the urgent need to launch the AB 
selection process es, in accordance with Article 17.2 of the DSU.  Once more, Turkey reiterated its 
support for maintain ing the two -tier character of the dispute settlement system . Turkey  believe d 
that as this impasse persist ed, the predictability of the dispute settlement  system w ould gradually 
fade away.  In fact, Members ha d already begun  to be exposed to the  consequences  of this impasse.  
Turkey stood  ready to work constructively with all Members to break the current AB impasse . Turkey  
invite d all Members to engage in discussions to launch the AB selection process es.  
9.16.   The representative of Canada  said that his country supported the statement made by Me xico 
and shared the concerns expressed by other Members at the present meeting.  Canada invited WTO 
Members that had not yet co -sponsored the proposal contained  in document  WT/DSB/W/609/Rev.18 
to consider joining the 121 Members calling for the launch of th e AB selection processes.  The critical 
mass of WTO Members behind this proposal was a clear testimony to the importance that they all 
accorded to a fully -functioning Appellate Body as an integral part of the dispute settlement system. 
The fact that the App ellate Body could not hear new appeals was of great concern. Canada reiterated 
that it was fully committed to discussions on matters related to the functioning of the Appellate 
Body. Canada's priority remained to find a long -lasting multilateral resolution  to the impasse that 
covered all Members, including the United States. In the meantime, Canada and 23 other WTO 
Members had endorsed the Multi -Party Interim Appeal  Arbitration Arrangement (MPIA) as a 
contingency measure to safeguard their rights to binding two -stage dispute settlement in disputes 
amongst themselves.  The MPIA was open to all WTO Members. Canada  invite d all WTO Members to 
consider joining the MPIA to safeguard their dispute settlement rights to the greatest extent possible 
until Member s collectively f ound a permanent solution to the AB impasse. Canada remain ed available 
to discuss the MPIA with any interested Member.  
9.17.   The representative of the  United Kingdom  said that his country continued to support the 
proposal for the launch of the AB  selection processes. The United Kingdom wished to refer to its 
statements made at previous DSB meetings under this Agenda item. The United Kingdom also 
supported the statement made by Mexico on behalf of all co -sponsors. The United Kingdom 
continued to be  concerned that the WTO Membership had not been able to launch the AB selection 
processes. The increasingly frequent impairment of rights arising from this situation c ould not be in 
the interest of any Member, or the system more broadly. The United Kingdom  had listened carefully 
to the concerns raised and recognized the need for reform. The United Kingdom also understood 
that there would be  many challenges involved in agreeing on a reform.  However, the United Kingdom 
continued to view two -stage dispute sett lement with the support of all Members as a central pillar 
of the multilateral trading system. The United Kingdom called on all Members to engage in a 
solutions -based discussion on permanent reform.  
9.18.   The representative of Chinese Taipei  said that his delega tion thank ed Mexico for its proposal  
made on behalf of the co -sponsors  and continue d to support  that proposal. Chinese Taipei wished WT/DSB/M/44 6 
 
- 25 - 
 
  to refer to its statements made at previous  DSB meetings  on this matter. Chinese Taipei noted that 
appeal s into the void ha d become a serious problem f or the operation of the WTO dispute settlement 
mechanism . Chinese Taipei wished  to encourage Members to find an innovative solution to overcome 
the current AB impasse through more positive dialogues.  
9.19.   The representative o f Brazil  said that his country wished to thank Mexico for presenting the 
proposal contained  in document  WT/DSB/W/609/Rev.18  on behalf of the co-sponsors. Brazil  wished 
to refer to its statements made at previous DSB meetings under this Agenda item. Brazil st ood ready 
to engage with all Members to discuss a multilateral  and long-term solution to the current AB 
impasse.  
9.20.   The representative of Mexico , speaking  on behalf of the 121 co -sponsors of the joint proposal  
contained  in document WT/DSB/W/609/Rev.1 8, expressed regret that for the thirty -seven th 
occasion, Members had still not been able to launch the AB selection processes and had thus 
continuously failed to fulfil their duty as Members of this Organization . The fact that a Member might 
have concerns about certain aspects of the functioning of the Appellate Body should not serve as a 
pretext to impair  and disrupt its work as well as the work of the dispute settlement system  in general.  
There was no legal justi fication for the current blockage of the AB selection processes, which resulted 
in nullification and impairment of Members ' rights.  Article 17.2 of the DSU clearly stated  that: 
"[v]acancies shall be filled as they arise" . Nothing should prevent the Appella te Body from continuing 
to operate fully and Members had to comply with their obligation under the DSU to fill the AB 
vacancies . Mexico noted with deep concern that due to the continued failure to act at the present 
meeting, the Appellate Body would contin ue to be unable to perform its functions, against the best 
interest of all Members . 
9.21.   The representative of Mexico  said that  her country wished to refer to its statements made at 
previous DSB meetings under this Agenda item . Mexico expressed  regret that this  item ha d remained 
on the Agenda of DSB meetings for the past three years due to the lack of consensus to launch the 
AB selection processes  that would allow Members  to fulfil their obligation under Article 17.2 of the 
DSU and , thus,  to rely on a fully functioning dispute settlement system. As Mexico had noted at the 
most recent DSB meetings, a ll ongoing disputes we re being affected . This undermine d the right to 
appellate review for  all Members , which was an integral part of the dispute settlement system.  
Members could  not become accustomed to this situation.  Mexico  called on those  Members that had 
not yet done so to support the proposal  contained in document WT/DSB/W/609/Rev.18.  
9.22.   The representative of China  said that his country support ed the statement made by Mexico 
on behalf of 121 Members co -sponsoring this important proposal. China  wished to  refer to its 
statements made at previous DSB meetings on this matter and to reiterate its firm support for a 
two-tier, binding, independent and impartial dispute settlement system, of which the Appellate Body 
was an integral part.  Filling the AB vacancies was an unconditional legal obligation that should be 
borne collectively by the entire  Membership. Nothing could serve as a pretext to ignore this 
negotiated treaty obligation. The need to reinforce the negotiating and monitoring pillars of the WTO 
could not  be a legitimate cause to dismantle the Appellate Bod y and to cripple the dispute settlement 
system. On the contrary, the lack of multilateral enforcement w ould eventually impact the interest 
in negotiating new rule s. With the Appellate Body  being  paralyzed , the violation of current rules 
could easily escape  from sanctions. In that regard, without a strong dispute settlement system, the 
WTO's negotiating and monitoring pillars c ould not be genuinely reinforced.  Moreover, the fact that 
disputes continue d to be brought  before  the WTO dispute settlement system , and that various means 
had been adopted to cope with the Appellate Body 's paralysis d id not mean that Members c ould 
accept  the damaged WTO dispute settlement system as it currently stood . With respect to various 
arrangements such as non -appeal arrangement s, they were damage control measures  aimed at  
minimiz ing the legal uncertainty resulting from the Appellate Body 's demise. None of the se 
arrangements , including the MPIA, c ould offer equal security and predictability to the multilateral 
trading system as a dispute settlement system that comprised a functioning  Appellate Body. If the 
status quo bec ame the new normal,  the WTO dispute settlement system would  collapse. Such 
collapse  would, at the same time , fundamentally destroy the multilateral trad ing system.  In light of 
this, maintaining a two -tier, independent and binding dispute settlement system should remain the 
priority of the entire  Membership. China  called on every Member , including the United States , to 
participate constructively in the sol utions-based discussions  with a view to restoring the Appellate 
Body at the earliest date. China st ood ready to further engage with other Members on this urgent 
matter.  WT/DSB/M/44 6 
 
- 26 - 
 
  9.23.   The Chairman  thanked delegations for their statements. He said that as in the past, the DSB 
would take note of the statements expressing the ir respective positions, which would be reflected in 
the minutes of th e present  meeting. He  noted  that as Members were aware, this matter required a 
political engagement on the part of all WTO M embers . 
9.24.   The DSB took note of the statements . 
10  AUSTRALIA  – ANTI -DUMPING MEASURES ON A4 COPY PAPER  
A. Statement by Indonesia  
10.1.   The representative of Indonesia , speaking under "Other Business",  said that his country 
wished to  refer to its statement made  at the 28 September 2020 DSB meeting under the Agenda 
item related to  the surveillance of implementation of the DSB's recommendations in the dispute on: 
"Australia  – Anti-Dumping Measures on A4 Copy Paper " (DS529). Indonesia w ished to reiterate its 
position on the need to further observe development s following the issuance of Anti –Dumping Notice 
No. 2020/090 on 11 September 2020 by Australia's  Minister for Industry, Science, and Technology. 
This was to ensure the finality of the mentioned decision, given the possibility  for any interested 
parties to seek review o f the decision. Therefore , Indonesia  believe d that at least the assurance of 
finality of the decision should be obtained prior to confirm ing that this matter  was resolved . 
Indonesia and Australia w ould work closely together towards the resolution of this dispute , including 
the need to meet the obligations under  Article 21.6 of the DSU.  
10.2.   The representative of Australia  said that her country wished to thank Indonesia for its ongoing 
cooperation in this matter . Australia noted the  statement  made by Indonesia at the present meeting.  
As Australia had stated  at the 28 September  DSB 2020 meeting, and in its status report  dated  
17 September  2020, the Industry Minister 's decision to revoke the anti -dumping measures at issue 
in this dispute had brought  Australia into full compliance with the DSB's recommendations and 
rulings.  Unless and until anything happen ed to alter the Ministe r's decision in a manner that raise d 
a dispute about whether Australia ha d implemented the Panel 's findings, Australia  consider ed the 
issue of implementation  to have been resolved. Australia  would continue  to engage constructively 
with Indonesia in this matter.  
10.3.   The DSB took note of the statements.  
__________  