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Statements by the United States at the Meeting of the WTO Dispute Settlement Body
Geneva, September 26, 2018
1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS 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.187)
The United States provided a status report in this dispute on September 13, 2018, in
accordance with Article 21.6 of the DSU.
The United States has 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 recommendations and rulings of the DSB that have yet to be
addressed, the U.S. Administration will work with the U.S. Congress with respect to
appropriate statutory measures that would resolve this matter.
U.S. Statements at the September 26, 2018, DSB Meeting
2
1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED
BY THE DSB
B. UNITED STATES – SECTION 110(5) OF THE US COPYRIGHT ACT:
STATUS REPORT BY THE UNITED STATES (WT/DS160/24/ADD.162)
The United States provided a status report in this dispute on September 13, 2018, in
accordance with Article 21.6 of the DSU.
The U.S. Administration will continue to confer with the European Union, and to work
closely with the U.S. Congress, in order to reach a mutually satisfactory resolution of this
matter.
Second Intervention
As we have noted at prior meetings of the DSB, by intervening under this item, China
attempts to give the appearance of concern for intellectual property rights.
China has been engaging in industrial policy which has resulted in the transfer and theft
of intellectual property and technology to the detriment of the United States and our
workers and businesses. China’s stated intention is to achieve global dominance in
advanced technology. This causes harmful trade-distortive policies and practices.
These unfair policies and practices affect all WTO Members, not just the United States.
The aggregate impact of China’s policies worldwide is much higher than the estimated
$50 billion in annual harm some of China’s policies are causing to the United States.
These policies and practices force innovators to hand over their technology and know-
how as the price of doing business in China. China also uses non-economic means to
obtain technology, such as using state-controlled or -influenced funds and companies to
buy up businesses solely for purposes of acquiring technology for domestic use, or
imposing burdensome intellectual property licensing requirements in China.
The best way for China to support fairness in the world trading system is to remedy the
problems it has created. China should change its behavior: stop distorting markets, stop
forcing companies to transfer technology, and create a level playing field that will give
all countries a better chance to succeed.
U.S. Statements at the September 26, 2018, DSB Meeting
3
For now, we can say that, as the companies and innovators of China and other Members
well know, the intellectual property protection that the United States provides within its
own territory equals or surpasses that of any other Member.
Indeed, as China also well knows, none of the damaging technology transfer practices of
China that we have discussed at recent DSB meetings are practices that Chinese
companies or innovators face in the United States.
U.S. Statements at the September 26, 2018, DSB Meeting
4
1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED
BY THE DSB
C. EUROPEAN COMMUNITIES - MEASURES AFFECTING THE APPROVAL
AND MARKETING OF BIOTECH PRODUCTS: STATUS REPORT BY THE
EUROPEAN UNION (WT/DS291/37/ADD.125)
The United States thanks the European Union (“EU”) for its status report and its
statement today.
The United States continues to remain concerned with the EU’s measures affecting the
approval of biotech products. Delays persist and affect the dozens of applications that
have been awaiting approval for months or years, or that have already received approval.
Even when the EU finally approves a biotech product, EU member States continue to
impose bans on the supposedly approved product. As we have discussed at several prior
meetings, the EU maintains legislation that permits EU member States to “opt out” of
certain approvals, even where the European Food Safety Authority (“EFSA”) has
concluded that the product is safe. Of note, at least seventeen member States, as well as
certain regions within EU member States, have submitted requests to opt out of EU
approvals.
The United States again urges the EU to ensure that all of its measures affecting the
approval of biotech products, including measures adopted by individual EU member
States, are based on scientific principles, and that decisions are taken without undue
delay.
U.S. Statements at the September 26, 2018, DSB Meeting
5
1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED
BY THE DSB
D. UNITED STATES – ANTI-DUMPING AND COUNTERVAILING
MEASURES ON LARGE RESIDENTIAL WASHERS FROM KOREA:
STATUS REPORT BY THE UNITED STATES (WT/DS464/17/ADD.9)
The United States provided a status report in this dispute on September 13, 2018, in
accordance with Article 21.6 of the DSU.
On December 15, 2017, the United States Trade Representative requested that the U.S.
Department of Commerce make a determination under section 129 of the Uruguay Round
Agreements Act to address the DSB’s recommendations relating to the Department’s
countervailing duty investigation of washers from Korea. On December 18, the
Department of Commerce initiated a proceeding to make such determination. Following
initiation, Commerce issued initial and supplemental questionnaires seeking additional
information.
On April 4, 2018, Commerce issued a preliminary determination revising certain aspects
of its original determination. Following issuance of the preliminary determination,
Commerce provided interested parties with the opportunity to submit comments on the
issues and analysis in the preliminary determination and rebuttal comments. Commerce
reviewed those comments and rebuttal comments and took them into account for
purposes of preparing the final determination.
On June 4, 2018, Commerce issued a final determination, in which Commerce revised
certain aspects of its original determination. Specifically, Commerce revised the analysis
underlying the CVD determination, as it pertains to certain tax credit programs, in
accordance with findings adopted by the DSB.
The United States continues to consult with interested parties on options to address the
recommendations of the DSB relating to antidumping measures challenged in this
dispute.
U.S. Statements at the September 26, 2018, DSB Meeting
6
1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED
BY THE DSB
F. UNITED STATES – CERTAIN METHODOLOGIES AND THEIR
APPLICATION TO ANTI DUMPING PROCEEDINGS INVOLVING CHINA:
STATUS REPORT BY THE UNITED STATES (WT/DS471/17/ADD.1)
The United States provided a status report in this dispute on September 13, 2018, in
accordance with Article 21.6 of the DSU.
As explained in that report, the United States continues to consult with interested parties
on options to address the recommendations of the DSB.
Second Intervention
The United States takes note of China’s statement and will convey it to capital.
The United States is willing to discuss this matter with China on a bilateral basis.
To be clear, however, it is incorrect to suggest that the United States has taken no action.
As we have reported to the DSB, the United States continues to consult with interested
parties on options to address the recommendations of the DSB. That internal process is
ongoing.
In addition, the United States is aware of China’s request pursuant to Article 22.2 of the
DSU for authorization to suspend concessions and other obligations. China’s decision to
proceed in that regarding is disappointing, and not constructive.
On September 19, 2018, the United States objected to the level of suspension proposed
by China on September 9, 2018, referring the matter to arbitration pursuant to Article
22.6 of the DSU.
U.S. Statements at the September 26, 2018, DSB Meeting
7
1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED
BY THE DSB
H. UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN OIL
COUNTRY TUBULAR GOODS FROM KOREA: STATUS REPORT BY THE
UNITED STATES (WT/DS488/12)
The United States provided a status report in this dispute on September 13, 2018, in
accordance with Article 21.6 of the DSU.
As explained in that report, the United States continues to consult with interested parties
on options to address the recommendations of the DSB.
Second Intervention
The United States takes note of Korea’s statement and will convey it to capital.
The United States is willing to discuss this matter with Korea on a bilateral basis.
To be clear, however, it is incorrect to suggest that the United States has taken no action.
As we have reported to the DSB, the United States continues to consult with interested
parties on options to address the recommendations of the DSB. That internal process is
ongoing.
U.S. Statements at the September 26, 2018, DSB Meeting
8
2. UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF
2000: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE
DSB
As the United States has noted at previous DSB meetings, the Deficit Reduction Act –
which includes a provision repealing the Continued Dumping and Subsidy Offset Act of
2000 – was enacted into law in February 2006. Accordingly, the United States has taken
all actions necessary to implement the DSB’s recommendations and rulings in these
disputes.
We recall, furthermore, that the EU has acknowledged that the Deficit Reduction Act
does not permit the distribution of duties collected on goods entered after October 1,
2007, almost 11 years ago.
With respect to the EU’s request for status reports in this matter, as we have already
explained at previous DSB meetings, there is no obligation under the DSU to provide
further status reports once a Member announces that it has implemented the DSB
recommendations and rulings, regardless of whether the complaining party disagrees
about compliance.
The United States is pleased that Canada clarified at the last DSB meeting that it
disagrees with the EU’s view on the requirement to provide status reports. Canada
explained that it does not consider that a Member must submit a status report where the
Member announces that it has taken all actions necessary to comply with the DSB’s
recommendations and rulings.
And as we have noted many times previously, the EU has demonstrated repeatedly it
shares this understanding, at least when it is the responding party in a dispute. Once
again, this month the EU has provided no status report for disputes in which there is a
disagreement between the parties on the EU’s compliance.
This includes the EU – Large Civil Aircraft dispute (DS316), in which the DSB recently
adopted two further reports finding that the EU has not complied. The EU’s decision to
initiate yet another compliance proceeding under Article 21.5 of the DSU does not
distinguish the disputes: the EU has claimed compliance, and the US disagrees. Based on
the position taken by the EU, we would expect the EU to file a status report for the item.
We fail to see how the EU’s behavior is consistent with the alleged systemic view it has
been espousing under this item for more than 10 years.
U.S. Statements at the September 26, 2018, DSB Meeting
9
As the EU is aware, the United States has announced in this dispute that it has
implemented the DSB’s recommendations and rulings. If the EU disagrees, there would
simply appear to be a disagreement between the parties to the dispute about the situation
of compliance.
U.S. Statements at the September 26, 2018, DSB Meeting
10
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
The United States notes that once again the European Union has not provided Members
with a status report concerning the dispute EU – Large Civil Aircraft (DS316).
The United States has raised this same issue at recent past DSB meetings, where the EU
similarly chose not to provide a status report.
Interestingly, at the August 27 DSB meeting, the EU argued that Article 21.6 of the DSU
requires that “the issue of implementation shall remain on the DSB’s agenda until the
issue is resolved.” And also of interest, the EU then argued that where the EU does not
agree with another Member’s “assertion that it has implemented the DSB
recommendations and rulings,” “the issue remains unresolved for the purposes of Article
21.6 DSU.”
The United States therefore finds it difficult to reconcile this stated EU position with the
EU’s actions in this dispute. At the August 27 DSB meeting, the EU admitted that there
remains a disagreement as to whether the EU has complied in this dispute.
Under the EU’s own view, therefore, the EU should be providing a status report. Yet it
has failed to do so.
The only difference that we can see is that, now that the EU is a responding party, the EU
is choosing to contradict the reading of DSU Article 21.6 it has long promoted.
The EU’s purported rationale is that it need not provide a status report because it is
pursuing a second compliance panel under Article 21.5 of the DSU. But as the United
States has explained at past DSB meetings, there is nothing in Article 21.6 of the DSU to
support this position.
In short, the conduct of every Member when acting as a responding party, including the
EU, shows that WTO Members understand that a responding party has no obligation
under DSU Article 21.6 to continue supplying status reports once that Member
announces that it has implemented the DSB’s recommendations.
U.S. Statements at the September 26, 2018, DSB Meeting
11
As the EU allegedly disagrees with this position, it should for future meetings provide
status reports. At this meeting, it should welcome the opportunity we are affording it to
update the DSB for the first time with any detail on its alleged implementation efforts.
U.S. Statements at the September 26, 2018, DSB Meeting
12
4. ARTICLE 17.6 OF THE UNDERSTANDING ON RULES AND PROCEDURES
GOVERNING THE SETTLEMENT OF DISPUTES AND APPELLATE REVIEW OF
PANEL FINDINGS OF FACT, INCLUDING DOMESTIC LAW: STATEMENT BY
CHINA
The United States welcomes China’s placement of this item on the agenda of today’s
meeting. Article 17.6 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (“DSU”) and appellate review of panel findings of fact, including
domestic (or municipal) law, is an important systemic issue with significant implications
for the operation of the dispute settlement system.
At the DSB meeting on August 27, 2018, the United States in its statement provided a
detailed analysis of two particular aspects of this issue: (1) the Appellate Body’s lack of
authority to review a panel’s findings of fact; and (2) the Appellate Body’s assertion that
it can review panel findings concerning the meaning of a Member’s municipal law. We
would refer delegations to that statement for a thorough discussion of these issues.
In our statement today, we intend to highlight a few of the key issues and comments of
other Members speaking under this item at the August 27 DSB meeting and to provide
some initial reactions to China’s statement today.
1. The Appellate Body Lacks the Authority to Review a Panel’s Findings of Fact
With regard to the Appellate Body’s lack of authority to review a panel’s findings of fact,
the United States highlighted for Members the relevant provisions of the DSU and
discussed the Appellate Body’s failure to analyze the text of those provisions when it first
asserted it had the authority to review panel fact-finding.
In particular, in DSU Article 11, Members agreed that “a panel should make an objective
assessment of the matter before it, including an objective assessment of the facts of the
case and the applicability of and conformity with the relevant covered agreements”. In
other words, WTO panels are to make factual and legal findings.
By contrast, under DSU Article 17.6, Members agreed that the Appellate Body would
have a significantly more limited role than panels. Article 17.6 of the DSU expressly
limits the scope of appellate review: “[a]n appeal shall be limited to issues of law covered
in the panel report and legal interpretations developed by the panel.”
On its face, this would not include panel fact-finding and, thus, appellate review of
factual findings would appear to be contrary to the Appellate Body’s limited authority
under Article 17.6 of the DSU.
U.S. Statements at the September 26, 2018, DSB Meeting
13
Several Members speaking under this item at the August 27 DSB meeting agreed with
this basic characterization. For example, the EU suggested Article 17.6 of the DSU
reflects the idea that only panels are the triers of fact and that the scope of appellate
review should be limited to legal issues. China also agreed that factual issues generally
fall outside the scope of appellate review. Japan and Australia both commented that the
text of the DSU clearly limits the scope of issues that may be properly put before the
Appellate Body to legal issues contained in the panel report.
However, contrary to the clear text of Article 17.6, the Appellate Body has asserted that it
can review panel factual findings. We highlighted for Members that the appellate report
in which the Appellate Body asserted it could review panel fact-finding under Article 11
of the DSU contains no analysis of the text of that article. In particular, the Appellate
Body provided no interpretation of the term “should make” or explain how it could be
understood as expressing a “duty,” or legal obligation.
In China’s statement today, China appears to misunderstand this point. We have not
argued a panel need not conduct an objective assessment of the matter before it. As we
explained at the August 27 DSB meeting, the language in Article 11 of the DSU that the
Appellate Body relied upon is: “a panel should make an objective assessment of the
matter before it, including an objective assessment of the facts of the case.” Key to this
text is the word “should.”
As we noted, Members are all familiar with the difference between “should” and “shall”
and choose carefully whether to use “should” or “shall” in particular parts of the
agreements they negotiate. In fact, Members have been known to spend weeks or even
longer negotiating over exactly this point – whether to use “should” or “shall.”
Yet, in describing the text of Article 11, the Appellate Body did not engage on this
important textual issue. Instead, the Appellate Body simply referred to this “should
make” language as a “mandate” and a “requirement” for panels. To the contrary, the
decision of WTO Members to use the term “should” indicates that Members did not
intend to create a legal obligation subject to appellate review, a conclusion that is directly
reinforced by the limitation on appeals to issues of law in Article 17.6.
The United States also pointed out that the Appellate Body’s approach under Article 11
has shifted over time, which would appear to be a result of the fact that Members never
agreed that the Appellate Body would review a panel’s factual findings and therefore
never negotiated the basis or standard for such a review. Instead, the Appellate Body has
struggled to formulate its own approach, without the benefit of guidance from Members.
U.S. Statements at the September 26, 2018, DSB Meeting
14
And, as previously discussed, the Appellate Body’s decision to undertake a review of
panel fact-finding has had a number of adverse effects on the dispute settlement system,
including an increased workload due to the number of appeals under Article 11. This, in
turn, has increased the complexity of appeals, the length of submissions, and the need for
the Appellate Body to devote additional time and resources to such appeals to become
familiar with the basis for panels’ factual findings.
2. The Appellate Body Lacks the Authority to Review a Panel’s Factual Findings on
the Meaning of a WTO Member’s Domestic Law
With regard to municipal law, in the WTO system, as in any international law dispute
settlement system, the meaning of municipal law is an issue of fact. The interpretation
and application of the relevant covered agreement would be the issues of law for the
WTO dispute settlement system.
At the August 27 DSB meeting, we noted that the relevant provisions of the DSU –
including Articles 6.2, 11, and 12.7 – reflect this straightforward division between issues
of fact and law. The DSU makes clear that the measure at issue is the core fact to be
established by a complaining party, and the WTO consistency of that measure is the issue
of law.
The United States also pointed out that the proposition that municipal law is an issue of
fact is well-recognized in other international legal systems generally. In the WTO
context in particular, we noted that a number of WTO panels and WTO Members have
routinely analyzed, argued, or found that the meaning of a Member’s domestic law is an
issue of fact. Members will recall that the United States cited a number of examples at
the August 27 DSB meeting.
In its statement today, China appears to suggest that this is a disputed proposition.
However, two of the examples we provided at the August 27 DSB meeting were
instances in which China argued the meaning of municipal law was a factual issue. In
particular:
U.S. Statements at the September 26, 2018, DSB Meeting
15
o China, in EC – Fasteners: “China submits that the issue of the ‘meaning’ or
‘scope’ of Article 9(5) of the Basic AD Regulation is an issue of fact . . . .
Therefore, it rejects the European Union's argument that the scope of Article 9(5)
of the Basic AD Regulation is a legal issue and hence subject to appellate review
pursuant to Article 17.6 of the DSU.”1
o China, in US – Countervailing and Anti-Dumping Measures (China): “The
meaning of prior municipal law must be determined as a matter of fact, by
reference to the laws themselves and the manner in which those laws have been
interpreted by domestic courts.”2
These appear to be clear and unambiguous statements by China of its understanding that
the meaning of municipal law is a factual issue. We would ask China how it reconciles
these statements with its statement today? Which accurately reflects China’s position?
We would note with agreement Japan’s statement at the August 27 DSB meeting that
there is little room for debate that municipal law itself is a matter of fact in WTO law.
We would also agree with Australia’s statement at that meeting that domestic law and the
meaning of domestic law is a question of fact, to be determined by a panel on the basis of
the evidence put before it by the parties to a dispute and, as such, is not subject to
appellate review.
The United States also highlighted for Members that the basis for the Appellate Body’s
treatment of the meaning of municipal law as a legal issue, to be decided by the Appellate
Body de novo in an appeal, is flawed and without textual support in the DSU. The
Appellate Body often attempts to justify its approach by citing its own prior reports, and
the United States illustrated that those reports themselves reflect a failure to engage with
the text of the DSU.
At the August 27 DSB meeting, the United States also explained the flawed logic of the
Appellate Body’s approach. The Appellate Body reasons that when a panel examines
municipal law to assess compliance with the WTO Agreements, the panel’s examination
of the meaning of that municipal law becomes a legal question. This does not follow
logically. It is one thing to determine what a municipal law means and how it operates.
1 Appellate Body Report, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel
Fasteners from China, WT/DS397/AB/R, adopted 28 July 2011, para. 74 (emphasis added).
2 Panel Report, United States – Countervailing and Anti-Dumping Measures on Certain Products from China,
WT/DS449/R and Add.1, as modified by Appellate Body Report WT/DS449/AB/R, para. 7.142 (emphasis added).
See also id., paras. 7.160, 7.228.
U.S. Statements at the September 26, 2018, DSB Meeting
16
It is an entirely different matter to determine whether – given a particular meaning and
operation – the municipal law is consistent with WTO obligations.
Australia noted that the Appellate Body in US – Upland Cotton (21.5 – Brazil) had
indicated that the distinction between issues of law and issues of fact “can be difficult to
draw,” but Australia considered it to be incumbent on the Appellate Body and Members
engaged in appellate proceedings to maintain the distinction and respect the limits placed
on the scope of appellate review by the DSU. We would agree.
The Appellate Body’s erroneous approach to municipal law eliminates the lines explicitly
drawn by Members in the DSU between factual and legal issues, and is inconsistent with
the appropriate functioning of the dispute settlement system. It departs from the basic
division of responsibilities where panels determine issues of fact and law, and the
Appellate Body may be asked to review specific issues of law and legal interpretations.
In Brazil’s statement at the August 27 DSB meeting, Brazil asked what would be the
relevance of the Appellate Body’s role as set out in the DSU if the meaning of domestic
law were to be considered a factual question and therefore not subject to appeal. The
answer to this question is simple. The Appellate Body’s role would remain what was
agreed by Members in Article 17.6 of the DSU, which provides that “[a]n appeal shall be
limited to issues of law covered in the panel report and legal interpretations developed by
the panel.” In other words, the Appellate Body would continue to determine whether,
based on the factual evidence (which includes the municipal law at issue), to uphold,
modify, or reverse the legal findings and conclusions of the panel that have been
appealed.3
China in its statement noted that the United States has filed Article 11 appeals of panel
findings of fact. Once the Appellate Body took upon itself the role of reviewing panel
findings of fact, relying incorrectly on Article 11, it unfortunately became a feature of the
system – unless the Appellate Body reversed itself, or it were addressed by Members.
Until that happened, we wonder which Member explained to its domestic stakeholders
that it would not avail itself of that opportunity if other WTO Members were making use
of that second bite at the apple.
As a result, the fact that Members have raised such challenges does not answer the
question of whether the DSU gives to the Appellate Body the authority to review panel
findings of fact on appeal.
3 Article 17.13 of the DSU.
U.S. Statements at the September 26, 2018, DSB Meeting
17
For the reasons we explained at the August 27 DSB meeting, and again today, we do not
see how one reconciles the Appellate Body’s review of panel fact-finding with the
express limitation in Article 17.6 of the DSU of appellate review to legal issues.
We did not hear a compelling explanation in China’s statement today. How would China
explain this?
To conclude, as with the Appellate Body’s impermissible review of panel findings of fact
more generally, the Appellate Body’s treatment of municipal law represents a departure
from the agreed text of the DSU and a serious waste of the limited resources of the WTO
dispute settlement system. Numerous WTO Members have regretted the complexity of
and delays to WTO dispute settlement system, and here is one reason, added to the
system by the Appellate Body.
We appreciate Members’ engagement and comments on these important issues. And we
welcome the statement we heard at the August 27 meeting that “any proposal to change
established rules of the DSU” “should be tested and argued in light of the values they
embody or the new values Members may want it to embody.” Here, we are discussing a
departure by the Appellate Body from the established rules of the DSU.
Second Intervention
We appreciate the engagement by Members speaking under this item today. There would
appear to be several issues that could warrant further discussion by Members, and we
look forward to that. However, there is a particular assertion that is important to correct
today. One Member suggested that U.S. concerns with appellate review of panel fact-
finding are new and have been only recently raised by the United States. In our August
27 DSB statement, we quoted from a statement the United States made in 2002
expressing concerns on this issue, so that Member’s assertion does not reflect reality.
U.S. Statements at the September 26, 2018, DSB Meeting
18
5. CANADA – MEASURES GOVERNING THE SALE OF WINE
A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY AUSTRALIA
(WT/DS537/8)
The United States fully supports Australia’s request for the establishment of a panel in
this dispute. With respect to the U.S. concerns with British Columbia’s regulations
governing the sale of wine in grocery stores, we refer to our prior statements.
On July 20, 2018, the DSB established a panel in DS531. At this meeting, the DSB will
establish a panel to examine Australia’s complaint in DS537. In DS537, Australia makes
identical claims concerning the same measures addressed in DS531, and Australia also
makes additional claims concerning other Canadian measures.
Under these circumstances, and in light of Article 9.3 of the DSU, the United States
considers that the same persons serving on the DS531 panel should serve on the DS537
panel. The United States is ready to cooperate with the panels and the parties to this
dispute with a view to harmonizing the timetable for the panel process in these disputes.
U.S. Statements at the September 26, 2018, DSB Meeting
19
6. UNITED STATES – SAFEGUARD MEASURE ON IMPORTS OF CRYSTALLINE
SILICON PHOTOVOLTAIC PRODUCTS
A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE REPUBLIC
OF KOREA (WT/DS545/7)
As the United States stated at the August 27 meeting of the DSB:
o The WTO Agreement recognizes the right of Members to temporarily suspend
concessions and other obligations when a product is being imported into its territory
in such increased quantities and under such conditions as to cause serious injury or
threat of serious injury to the Member’s domestic industry.
o The United States has exercised this right with respect to imports of imports of
crystalline silicon photovoltaic products. The United States imposed a safeguard
measure after the competent authority, the U.S. International Trade Commission,
determined that increased imports of CSPV products were the substantial cause of
serious injury to the domestic industry producing like or similar products.
Accordingly, the United States regrets that Korea has chosen for a second time to request
establishment of a panel with regard to this matter.
The United States is prepared to engage in these proceedings and to explain to the panel
that Korea has no legal basis for its claim.
U.S. Statements at the September 26, 2018, DSB Meeting
20
7. UNITED STATES – SAFEGUARD MEASURE ON IMPORTS OF LARGE
RESIDENTIAL WASHERS
A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE REPUBLIC
OF KOREA (WT/DS546/4)
As the United States stated at the August meeting of the DSB:
o The WTO Agreement recognizes the right of Members to temporarily suspend
concessions and other obligations when a product is being imported into its territory
in such increased quantities and under such conditions as to cause serious injury or
threat of serious injury to the Member’s domestic industry.
o The United States has exercised this right with respect of imports of large residential
washers. An independent investigative authority, the U.S. International Trade
Commission, determined that the domestic industry producing like or similar
products was seriously injured and that the cause of that injury was increased imports
of the products at issue.
o The U.S. process was open and transparent, and fully in accord with both domestic
U.S. safeguard laws and WTO obligations.
Accordingly, the United States regrets that Korea has chosen for a second time to request
the establishment of a panel with regard to this matter.
The United States is prepared to engage in these proceedings and to explain to the panel
that Korea has no legal basis for its claims.
U.S. Statements at the September 26, 2018, DSB Meeting
21
9. APPELLATE BODY APPOINTMENTS: PROPOSAL BY VARIOUS MEMBERS
(WT/DSB/W/609/REV.5)
The United States thanks the Chair for the continued work on these issues.
As we have explained in prior meetings, we are not in a position to support the proposed
decision.
The systemic concerns that we have identified remain unaddressed.
For example, at the DSB meeting in August of 2017, we made clear our concerns with
the issuance of appellate reports by individuals who are no longer members of the
Appellate Body. Yet, one year later, an individual who is not currently a member of the
Appellate Body continues to decide appeals.
As we have explained many times, it is for the DSB, not the Appellate Body, to decide
whether a person who is no longer an Appellate Body member can continue to serve on
an appeal.4 We refer back to our statements at earlier DSB meetings for more elaboration
on our concerns.
We therefore will continue our efforts and our discussions with Members and with the
Chair to seek a solution on these important issues.
4 Understanding on Rules and Procedures Governing the Settlement of Disputes, Arts. 17.1, 17.2 (“DSU”).
U.S. Statements at the September 26, 2018, DSB Meeting
22
10. FOSTERING A DISCUSSION ON THE FUNCTIONING OF THE APPELLATE
BODY (JOB/DSB/2): STATEMENT BY HONDURAS
The United States thanks Honduras for its non-paper and for placing this item on the
agenda for today’s meeting.
We look forward to hearing other Members’ views on the options for addressing the
concerns that the United States has been raising for over a year. We appreciate that the
non-paper provides some of the possible options and that it recognizes that there may be
other possible approaches.
We would be interested in hearing of other approaches that Members are considering.
Second Intervention
Brazil suggested that Rule 15 is not unlike transitional rules existing in other international
tribunals. We would refer Members to our prior statements discussing this issue.5
Analogizing to the rules of other international tribunals that Brazil has not named fails to
acknowledge a fact apparent from even a cursory review of such rules: the rules for those
other tribunals are based on their constitutive texts.
A review of the rules applying to other international tribunals confirms that the issue of who
may continue to serve and decide a dispute is not a mere “working procedure” to be decided
by the tribunal.
One example is the Statute of the International Court of Justice, which is annexed to and an
integral part of the United Nations Charter.6
Another example is the Statute of the International Tribunal for the Law of the Sea, which
sets out for that Tribunal in Article 5(3) a transition rule for departing members.7
5 See DSB Meeting Minutes of February 28, 2018 (WT/DSB/M/409), para. 7.7; see also DSB Meeting Minutes of
March 27, 2018 (WT/DSB/M/410), para. 9.4. 6 Statute of the International Court of Justice, Art. 13(3) (“The members of the Court shall continue to discharge
their duties until their places have been filled. Though replaced, they shall finish any cases which they may have
begun.”); UN Charter, Art. 92 (“The International Court of Justice shall be the principal judicial organ of the United
Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent
Court of International Justice and forms an integral part of the present Charter.”). 7 Statute of the International Tribunal for the Law of the Sea, Art. 5(3) (“The members of the Tribunal shall continue
to discharge their duties until their places have been filled. Though replaced, they shall finish any proceedings
which they may have begun before the date of their replacement.”).
U.S. Statements at the September 26, 2018, DSB Meeting
23
Similarly, for the European Court of Human Rights, Article 23(3) of the European
Convention on Human Rights sets out a rule for judges who have been replaced.8
Unlike those other tribunals, Rule 15 is not set out in the constitutive text of the WTO dispute
settlement system – the DSU. It has therefore not been agreed to by WTO Members.
8 European Convention on Human Rights, Art. 23(3) (“The judges shall hold office until replaced. They shall,
however, continue to deal with such cases as they already have under consideration.”).