DS508: China — Export Duties on Certain Raw Materials

The United States, citing two prior DSB findings against China's export restrictions on raw materials, said that China continued to maintain export restraints on other raw materials. The US is of the view that the measures are inconsistent with WTO rules and China's accession commitments. The US had held consultations with China on these measures affecting various forms of antimony, cobalt, copper, graphite, lead, magnesia, talc, tantalum, and tin. However, the US said that due to the failure of both bilateral and formal consultations to resolve this dispute, it was requesting the DSB to establish a panel to examine the matter.

China said it was disappointed with the US request for a panel to be established. China said that its policies were integral components of measures taken to promote the management of exhaustible natural resources and to protect the environment with the purpose of achieving sustainable development. China reiterated its steadfast stance on respecting WTO rules and abiding by its accession commitments. It said it was not in a position to accept the establishment of a panel. Under WTO rules, a request for the creation of a panel can be blocked in the first instance.

The DSB therefore deferred the establishment of a panel.

 

Appellate Body report adopted

DS473: European Union — Anti-Dumping Measures on Biodiesel from Argentina

Argentina expressed its satisfaction with the Appellate Body and panel reports. Argentina said it was remarkable that the Appellate Body (AB) had confirmed all the recommendations made by the panel. Argentina made particular reference to those relating to the interpretation of provisions in the Anti-Dumping Agreement on determining dumping margins. Argentina also noted that the European Court of Justice had declared the measure allowing anti-dumping duties on biodiesel to be null and void. Argentina went on to highlight findings that had to do with the scope of application of the Anti-Dumping Agreement, the determination of constructed normal value, and certain legal basis.

Argentina further said it trusted that the ruling on the EU's measure would be reflected in other future cases on the basis of a holistic analysis. Argentina said it hoped the EU would report a prompt implementation of the DSB's rulings and recommendations.

The EU, meanwhile, said it welcomed the AB's confirmation of the panel's findings that some aspects of its measure were consistent with WTO rules. The EU also said it was pleased that the panel and the AB had rejected most of the “as applied” claims of Argentina. The EU also took note of the AB's clarification regarding an investigating authority's use of information on the cost of production “in the country of origin” from sources outside the country as long as this information is apt or capable of yielding a cost of production in the country of origin.

Mexico, a third party to the dispute, commented on the decision to not hold a public hearing for this dispute. Mexico noted that the panel and the AB had accepted the holding of public hearings as long as the parties agreed to do so. In this case, one party aired concerns and thus the AB refused the request. Mexico said that it hoped future situations would be resolved in a similar fashion.

The United States said it was disappointed with Mexico's statement as the US was of the view that public hearings provided greater transparency. The US further commented on what it deemed to be factual matters in the dispute and the AB's approach to them. The US said that the AB's review of the meaning of the EU Basic Regulation departed from the basic division of responsibilities where panels are instead responsible for determining issues of fact and law. The US said the AB approach represented a waste of limited resources of the WTO dispute settlement system.

 

Implementation of DSB recommendations

DS464: United States — Anti-Dumping and Countervailing Measures on Large Residential Washers from Korea

The United States said it intended to implement the DSB's recommendations with regard to this dispute. However, it added that it would need a reasonable period of time to do so. The US said it would engage with Korea on this matter.

Korea welcomed the statement by the US and called for prompt compliance. Korea said it believed that the reasonable period of time should be as prompt as possible but added that it was ready to enter into consultations with the US. Korea reserved its rights to use provisions in dispute settlement rules relating to surveillance of implementation of DSB rulings as well as those on compensation and suspension of concessions.

DS485: Russia — Tariff Treatment of Certain Agricultural and Manufactured Products

Russia said that it had already brought the majority of its measures into compliance with its WTO obligations prior to and in the course of the dispute settlement proceedings. However, Russia said that it intended to bring the remaining measures into compliance as well. For these, Russia said it needed a reasonable period of time and it looked forward to discussing the matter with the EU.

The EU welcomed Russia's statement, recalled the panel's findings and urged Russia to promptly come into full compliance with all of its WTO obligations.

 

Chair's statement on Appellate Body selection process

DSB Chair Ambassador Xavier Carim (South Africa) informed delegations that the names of seven candidates had been submitted by the 14 September deadline for the vacancy left by the non-reappointment of AB member Mr Seung Wha Chang. The seven candidates include two new nominations submitted by Chinese Taipei and Korea and also names resubmitted by Australia, China, Japan and Nepal originally for another vacancy created by the 31 May expiry of Ms Yuejiao Zhang’s term. The interviews of the two new candidates took place on 17 October.

The chair informed delegations that the Selection Committee would be available to hear views of delegations on the candidates on 1 and 2 November 2016. He said that the Committee would need to make its recommendation by no later than 10 November for consideration by the DSB at its next regular meeting. With regard to the previous selection process, the chair added that the Selection Committee would need to make a recommendation as soon as possible, and by no later than 10 November, so that the two new AB members could be approved by the DSB at its regular meeting on 23 November.

China made a brief statement thanking Professor Zhang for her service in the AB. In a farewell ceremony held later in the day, Professor Zhang delivered a speech thanking the AB members, secretariat, panellists, the Chinese government and other members of the WTO. She also offered her thoughts on how the organization can deal with challenges faced by the WTO dispute settlement system.

 

Dedicated session on reappointment of Appellate Body members

Members held their second dedicated session on the reappointment of AB members. The discussions were prompted by the non-reappointment of Mr Chang, whose first term expired on 31 May.

Several members put forward an informal joint proposal to limit future appointees to the WTO's Appellate Body to a single term, with the length of the term to be discussed later. Under the current rules of the Dispute Settlement Understanding (DSU), AB members are appointed for a four-year term and may be reappointed for a second four-year term.  The appointments are made by consensus of the membership.

The proponents said a single term was a simple solution to the difficult issue of how to ensure the accountability of the AB to the WTO membership while at the same time safeguarding the impartiality and independence of the Appellate Body and the WTO dispute settlement system. 

Some members expressed support for the idea while others said they still had questions or needed further time to reflect. One member said it did not believe there was a problem that needed fixing.

The chair concluded by noting that members were “clearly not of one mind” as to whether the proposal could move forward but that there were broader issues raised which evidently needed further discussion. The chair added he would make himself available for further consultations in advance of the third dedicated session in November.

 

Status reports

Three status reports were presented. Statements on implementation were made regarding four other matters. Antigua and Barbuda, meanwhile, requested that their statement on the dispute entitled “United States — Measures Affecting the Cross‑Border Supply of Gambling and Betting Services” be removed from the agenda and postponed to the next regular meeting of the DSB.

 

Panelists approved

The DSB approved one new name, proposed by Kenya, for inclusion on the Indicative List of Governmental and Non-Governmental Panelists (WT/DSB/W/580).

 

Workload

The chair provided information on the Appellate Body's workload, on the number of disputes in the panel queue and at the panel composition stage, and on the ability of the WTO Secretariat to meet expected demand over the coming period.  

Next meeting

The next regular DSB meeting is scheduled for 23 November 2016.