This summary has been prepared by the WTO Secretariat’s Information and External Relations Division to help public understanding about developments in WTO disputes. It is not a legal interpretation of the issues, and it is not intended as a complete account of the issues. These can be found in the reports themselves and in the minutes of the Dispute Settlement Body’s meetings.
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DS517 China - Tariff Rate Quotas for Certain Agricultural Products
The United States said that it appeared that China administered certain TRQs for wheat, short- and medium-grain rice, long-grain rice and corn inconsistently with its WTO commitments. China did not administer these TRQs on a transparent, predictable or fair basis and did not use clearly specified administrative procedures and requirements that would not inhibit the filling of each TRQ, the US said. As consultations had failed to resolve its concerns, the US requested the establishment of a panel.
China said that it regretted the US had requested the establishment of a panel and that it could not accept that request at the present meeting. China and the US had held constructive consultations and China said that it did not believe panel establishment to be the best way to resolve this issue. China said it was serious about administering its TRQ mechanism in line with its WTO commitments and it stood ready to defend its interests.
Following the objection by China, the Dispute Settlement Body (DSB) deferred the establishment of a panel.
DS522 Canada - Measures Concerning Trade in Commercial Aircraft
Brazil requested the establishment of a panel to examine numerous measures through which Canada had provided subsidies to Bombardier to develop, launch and preserve Bombardier's C-Series aircraft programme. Brazil said that this had caused significant distortions in the commercial aircraft market and had seriously prejudiced Brazil's export interests.
Canada said that it was disappointed that Brazil had requested the establishment of a panel, that its measures were consistent with its WTO obligations, and that it was not in a position to agree to the establishment of a panel at the present meeting.
Following the objection by Canada, the DSB deferred the establishment of a panel.
DS486 European Union - Countervailing Measures on Certain Polyethylene Terephthalate from Pakistan
Appellate Body matters
The DSB chair, Ambassador Junichi Ihara (Japan), informed the DSB that on 1 August 2017 the chairman of the Appellate Body (AB) had informed him of the resignation of Appellate Body member Hyun Chong Kim, which took immediate effect. On 4 August 2017 Mr Kim was appointed as Korea's trade minister, creating an unprecedented legal situation. Rule 14 of the Working Procedures for Appellate Review provided that a resignation takes effect 90 days after notification had been made. However, Article 17.3 of the Dispute Settlement Understanding (DSU) provides that AB members "shall be unaffiliated with any government". Due to Mr Kim's appointment as trade minister, he could not continue to remain a member of the AB and thus his resignation with immediate effect was consistent with Article 17.3 of the DSU. This had also created an immediate vacancy on the AB. The DSB is therefore faced with the task of filling three vacancies (the second and final term of Mr Ricardo Ramírez-Hernández expired on 30 June this year while the second and final term of Mr Peter Van den Bossche will expire on 11 December).
The DSB chair noted that his proposal to open three selection processes to be carried out by the same selection committee still required further consultations.
Korea said it recognized that a vacancy in the AB had arisen due to Mr Kim's resignation and appointment as trade minister. Korea said that his resignation was due to unforeseen developments and that Korea supported launching a selection process as soon as possible.
The United States noted that Mr Kim was one of three AB members serving on a division in DS442. The AB report in this dispute would be circulated no later than 5 September 2017. Mr Kim had resigned with immediate effect and was thus no longer an AB member. The AB report in DS442 would therefore not be on behalf of three AB members, as was required under Article 17.1 of the DSU. Mr Kim's resignation having immediate effect contradicted Rule 14.2 of Working Procedures for Appellate Review which would have allowed for an AB report to be circulated prior to his resignation coming into effect. This reinforced that a person had to be an AB member when the report was circulated to the DSB.
The United States further noted that Mr Ramírez had been serving on the same appeal, although his second term had expired. This meant that when the AB Report in DS442 is circulated, only one signatory would be an AB member. Mr Ramírez served on two other appeals, pursuant to Rule 15 of the Working Procedures for Appellate Review. Rule 15 only applied to a person who ceased to be an AB member. Pursuant to Article 17.2 of the DSU, the authority to appoint AB members rested with the DSB, which had appointed Mr Ramírez for a term that had now expired. The DSB had not discussed how further service on appeals would affect the process. The DSB had a responsibility to decide whether a person whose term had expired should continue serving as an AB member. (The US statement is available here.)
Fourteen WTO members took the floor to express their concerns about the three vacancies and the systemic effects the vacancies would have on the dispute settlement system. They urged the DSB to launch a selection process or processes without delay. Several members noted that Article 17.2 of the DSU required the DSB to fill vacancies as they arose. Others noted their continued willingness to join a consensus on any proposal to begin the AB selection process.
Mexico, speaking on behalf of several Latin American members (Argentina, Brazil, Colombia, Chile, Guatemala, Mexico and Peru), said that members could not continue simply repeating their positions at each DSB meeting. The EU encouraged members to support its proposal for filling the vacancies. Japan noted that while it understood the US concerns, those concerns were distinct from the issue of filling vacancies on the AB and the two issues should be considered separately.
The DSB chair took note of the statements and said that he was willing to hold an informal open-ended meeting to give all members an opportunity to discuss the issues raised by the US and other members.
Proposals regarding the selection processes for new Appellate Body members
The European Union introduced its proposal (WT/DSB/W/597/Rev.3) and noted it strictly followed the model for similar decisions in the past and was similar to that of the group of Latin American proponents except that it allowed for a single selection process to fill the three vacancies.
The United States said that, in light of the circumstances it had described in its most recent intervention, it did not consider it appropriate to launch the process in accordance with the EU's proposal. The US considered that the first priority was for the DSB to discuss and decide how to deal with reports being issued by persons who were no longer members of the AB. It welcomed the chair's suggestion to hold an informal dedicated DSB meeting to discuss this.
Several members (Brazil, Canada, China, Australia, Japan and Cameroon) said they did not believe that a link should be made between resolving the concerns raised by the US and the launching of the AB selection process.
Mexico, speaking for the group of Latin American proponents, noted it had submitted a proposal (WT/DSB/W/596/Rev.3) similar to past proposals. Mexico noted that the US had indicated its willingness to support these proposals at past DSB meetings and asked the US whether it was still willing to support it.
The United States said the DSB had the responsibility to address the systemic issues it raised earlier. The US had a number of longstanding concerns regarding the critical necessity of the DSB asserting the authority assigned to it under the DSU. The US said that simply moving forward with filling the vacancies risked perpetuating and leaving unaddressed the concerns that it believed required the urgent attention of the DSB. In response to Mexico, the US said that this logic applied to the proposal put forward by the group of Latin American proponents.
Chile, the Russian Federation and the Dominican Republic expressed concerns about the continued inability to launch the selection process or processes. Mexico, speaking on behalf of the Latin American proponents, asked the DSB chair to move onto consultations at the highest level and to ask the WTO Director General and the chair of the General Council to provide their good offices. Mexico also supported the proposal to have special informal meetings to discuss these issues.
The DSB chair said that the US points deserved discussion and noted that other delegations raised serious concerns on these matters. The chair said he was ready to hold informal, open-ended meetings to discuss these matters as soon as was feasible.
Surveillance of implementation
The United States presented its status reports with regard to DS184, "US - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan", and DS160, "US â€” Section 110(5) of the US Copyright Act". The European Union presented its status reports with regard to DS291, "EC - Measures Affecting the Approval and Marketing of Biotech Products". Canada presented its status report with regard to DS482, "Canada - Anti-dumping Measures on Imports of Certain Carbon Steel Welded Pipe from the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu".
The EU noted that it had reached an agreement with Argentina to modify the reasonable period of time (RTP) for the EU to comply with the findings in DS473, "EU - Anti-dumping Measures on Biodiesel from Argentina" to 28 September 2017. Argentina said it regretted the EU had missed the RPT deadline of 10 August 2017 but that Argentina has agreed to a one-time extension of the RPT.
Statements on implementation
The next regular meeting of the DSB will take place on 29 September.