WT/DS598/5  
 
20 August  2021 
(21-6302) Page: 1/3 
  Original: English  
 
CHINA – ANTI -DUMPING AND COUNTERVAILING DUTY MEASURES ON BARLEY  
FROM AUSTRALIA  
AGREED PROCEDURES FOR ARBITRATION UNDER ARTICLE 25 OF THE DSU  
The following communication, dated 27 July 2021, from the delegation of Australia  and the 
delegation of China  to the Chairperson of the Dispute Settlement Body, is circulated at the request 
of these delegations.  
 
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1. In order to give effec t to communication JOB/DSB/1/Add.12 in this dispute Australia and China 
(hereafter the "parties") mutually agree pursuant to Article 25.2 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (DSU) to enter into arbitration unde r Article 25 of 
the DSU to decide any appeal from any final panel report1 as issued to the parties in dispute China 
– Anti-Dumping and Countervailing Duty Measures on Barley from Australia (DS598). Any party to 
the dispute may initiate arbitration in acco rdance with these agreed procedures.   
2. The arbitration may only be initiated if the Appellate Body is not able to hear an appeal in this 
dispute under Article 16.4 and 17 of the DSU. For the purposes of these agreed procedures, such 
situation is deemed to arise where, on the date of issuance of the final panel report to the parties, 
there are fewer than three Appellate Body members.   
For greater certainty, if the Appellate Body is able to hear appeals at the date on which the final 
panel report is issue d to the parties, a party may not initiate an arbitration, and the parties shall be 
free to consider an appeal under Articles 16.4 and 17 of the DSU.  
3. In order to facilitate the proper administration of arbitration under these agreed procedures, the 
parties hereby jointly request the panel to notify the parties of the anticipated date of circulation of 
the final panel report within the meaning of Article 16 of the DSU, no later than 45 days in advance 
of that date.  
4. Following the issuance of the final p anel report to the parties, but no later than 10 days prior to 
the anticipated date of circulation of the final panel report to the rest of the Membership, any party 
to the dispute may request that the panel suspend the panel proceedings with a view to ini tiating 
the arbitration under these agreed procedures. Such request by any party to the dispute is deemed 
to constitute a joint request by the parties for suspension of the panel proceedings for 12 months 
pursuant to Article 12.12 of the DSU.  
The parties hereby jointly request the panel to provide for the following, before the suspension takes 
effect:  
i. the lifting of confidentiality with respect of the final panel report under the 
Working Procedures of the panel, subject to the protection of any business 
confidential information ("BCI") and highly sensitive business information 
 
1 For greater certainty, this includes any final panel report issued in compliance proceedings pursuant to 
Article 21.5 of the DSU.  WT/DS598/5  
 
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  ("HSBI") in accordance wit h any procedures adopted by the Panel for the 
protection of such information;  
ii. the transmission of the panel record (including any BCI and HSBI submissions 
and exhibits and the confidential version(s) of the final panel report) to the 
arbitrators upon the f iling of the Notice of Appeal: Rule 25 of the Working 
Procedures for Appellate Review shall apply mutatis mutandis ; and,  
iii. the transmission of the final panel report in the working languages of the WTO to 
the parties and  to the third parties2, subject to the protection of any BCI and HSBI 
in accordance with the Panel's adopted procedures.  
Except as provided in paragraphs 6 and 18, the parties shall not request the panel to resume the 
panel proceedings.  
5. The arbitration shall be initiated by fi ling of a Notice of Appeal with the WTO Secretariat no later 
than 20 days after the suspension of the panel proceedings referred to in paragraph 4 has taken 
effect. The Notice of Appeal shall include the non -confidential final panel report in the working 
languages of the WTO. The Notice of Appeal shall be simultaneously notified to the other party and 
to the third parties in the panel proceedings. Rules 20 -23 of the Working Procedures for Appellate 
Review shall apply mutatis mutandis .  
6. Subject to paragra ph 2, where the arbitration has not been initiated under these agreed 
procedures, the parties shall be deemed to have agreed not to appeal the panel report pursuant to 
Articles 16.4 and 17 of the DSU, with a view to its adoption by the Dispute Settlement B ody ("DSB"). 
If the panel proceedings have been suspended in accordance with paragraph 4, but no Notice of 
Appeal has been filed in accordance with paragraph 5, the parties hereby jointly request the panel 
to resume the panel proceedings.  
7. The arbitrato rs shall be three persons selected from the pool of 10 standing appeal arbitrators 
composed in accordance with paragraph 4 of communication JOB/DSB/1/Add.12 (hereafter the "pool 
of arbitrators ").3 The selection from the pool of arbitrators will be done on  the basis of the same 
principles and methods that apply to form a division of the Appellate Body under Article 17.1 of the 
DSU and Rule 6(2) of the Working Procedures for Appellate Review, including the principle of 
rotation.4 The WTO Director General wi ll notify the parties and third parties of the results of the 
selection.  The arbitrators shall elect a Chairperson. Rule 3(2) of the Working Procedure for Appellate 
Review shall apply, mutatis mutandis , to the decision -making by the arbitrators.    
8. In order to give effect to paragraph 5 of communication JOB/DSB/1/Add.12 in this dispute, the 
arbitrators may  discuss their decisions relating to the appeal with all of the other members of the 
pool of arbitrators, without prejudice to the exclusive responsib ility and freedom of the arbitrators 
with respect to such decisions and their quality. All members of the pool of arbitrators shall receive 
any document relating to the appeal.  
9. An appeal shall be limited to issues of law covered by the panel report and legal interpretations 
developed by the panel. The arbitrators may uphold, modify or reverse the legal findings and 
conclusions of the panel. Where applicable, the arbitration award shall include recommendations, as 
envisaged in Article 19 of the DSU. The f indings of the panel which have not been appealed shall be 
deemed to form an integral part of the arbitration award together with the arbitrators’ own findings.  
10. The arbitrators shall only address those issues that are necessary for the resolution of th e 
dispute. They shall address only those issues that have been raised by the parties, without prejudice 
to their obligation to rule on jurisdictional issues.  
 
2 The parties confirm that it is not their intention that the panel report be circulated within the meaning 
of Article 16 of the DSU.  
3 If the pool of arbitrators has not been composed, footnote 1 to paragraph 4 of communication 
JOB/DSB/1/Add.12 shall appl y.  
4 However, at the request of a party to a dispute, any member of the pool of arbitrators who is not a 
national of a participating Member shall be excluded from the selection process. Two nationals of the same 
Member shall not serve on the same case.  WT/DS598/5  
 
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  11. Unless otherwise provided for in these agreed procedures, the arbitration shall be governed, 
mutatis mutandis , by the provisions of the DSU and other rules and procedures applicable to 
Appellate Review. This includes in particular the Working Procedures for Appellate Review and the 
timetable for appeals provided for therein as well as the Rules of Conduct5. The arbitrators may 
adapt the Working Procedures for Appellate Review and the timetable for appeals provided for 
therein, as well as any BCI and HSBI procedures, where justified under Rule 16 of the Working 
Procedures for Appellate Review, after  consulting the parties.  
12. The parties request the arbitrators to issue the award within 90 days following the filing of the 
Notice of Appeal. To that end, the arbitrators may take appropriate organizational measures to 
streamline the proceedings, withou t prejudice to the procedural rights and obligations of the parties 
and due process. Such measures may include decisions on page limits, time limits and deadlines as 
well as on the length and number of hearings required.  
13. If necessary in order to issue  the award within the 90 day time -period, the arbitrators may also 
propose substantive measures to the parties, such as an exclusion of claims based on the alleged 
lack of an objective assessment of the facts pursuant to Article 11 of the DSU6. 
14. On a proposal from the arbitrators, the parties may agree to extend the 90 day time -period for 
the issuance of the award.  
15. The parties agree to abide by the arbitration award, which shall be final. Pursuant to Article 25.3 
of the DSU, the award sha ll be notified to, but not adopted by, the DSB and to the Council or 
Committee of any relevant agreement.  
16. Only parties to the dispute, not third parties, may initiate the arbitration. Third parties which 
have notified the DSB of a substantial interest  in the matter before the panel pursuant to Article  10.2 
of the DSU may make written submissions to, and shall be given an opportunity to be heard by, the 
arbitrators. Rule 24 of the Working Procedures for Appellate Review shall apply mutatis mutandis .  
17. Pursuant to Article 25.4 of the DSU, Articles 21 and 22 of the DSU shall apply mutatis mutandis 
to the arbitration award issued in this dispute.  
18. At any time during the arbitration, the appellant, or other appellant, may withdraw its appeal, 
or other appeal, by notifying the arbitrators. This notification shall also be notified to the panel and 
third parties, at the same time as the notification to the arbitrators. If no other appeal or appeal 
remains, the notification shall be deemed to constitute a j oint request by the parties to resume panel 
proceedings under Article 12.12 of the DSU7. If an other appeal or appeal remains at the time an 
appeal or other appeal is withdrawn, the arbitration shall continue.  
19. The parties shall jointly notify these a greed procedures to the panel in China – Anti-Dumping 
and Countervailing Duty Measures on Barley from Australia (DS598) and ask the panel to grant, 
where applicable, the joint requests formulated in paragraphs 3, 4, 6, and 188. 
 
__________  
 
5 For greater certainty, paragraphs 14 – 17 of the Rules of Conduct shall apply to arbitrators.  
6 For greater certainty, the proposal of the arbitrators is not legally binding and it will be up to the party 
concerned to agree with the proposed substantive measures. The fact that the party concerned does not agree 
with the proposed substantive measures shall not prejudice the consideration of the case or the rights of the 
parties.  
7 If the authority of the panel has lapsed pursuant to Article 12.12 of the DS U, the arbitrators shall issue 
an award that incorporates the findings and conclusions of the panel in their entirety.  
8 For greater certainty, should any of these requests not be granted by the panel, the parties will agree 
on alternative procedural modal ities to preserve the effects of the relevant provisions of these agreed procedures.