WT/DS427/11  
 
2 June 2016  
(16-2983)  Page: 1/3  
  Original: English  
 
  CHINA – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES 
ON BROILER PRODUCTS FROM THE UNITED STATES 
RECOURSE TO ARTICLE 21.5 OF TH E DSU BY THE UNITED STATES 
REQUEST FOR THE ESTABL ISHMENT OF A PANEL 
The following communication, dated 27 May 2016, from the delegation of the United States to the 
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU. 
 
_______________ 
  
On 25 September 2013, the DSB adopted its recommendations and rulings in China – Anti-
Dumping and Countervailing Duty Measures on Broiler Products from the United States  ("China – 
Broiler Products ") (DS427).
1 The DSB found that the Government of China ("China") imposed 
antidumping and countervailing duties on US exports of broiler products in a manner that breached 
China's obligations under the under the Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994 ("AD Agreement"), the Agreement on Subsidies and 
Countervailing Measures  ("SCM Agreement"), and the General Agreement on Tariffs and Trade 
1994 ("GATT 1994"). The DSB recommended that China bring its measures into conformity with its 
obligations under these agreements. 
On 19 December 2013, the United States and China informed the DSB that they had agreed 
that the reasonable period of time ("RPT") for China to implement the DSB recommendations and 
rulings would be 9 months, 14 days, from the date of adoption of the panel report, expiring on 9 July 2014.
2 
On 15 July 2014, the United States and China informed the DSB that the two parties had 
concluded Agreed Procedures under Articles 21 and 22 of the Dispute Settlement Understanding 
("Agreed Procedures") .3 Paragraph 1 of the Agreed Procedures provides that, "[s]hould the United 
States consider that the situation described in Article 21.5 of the DSU exists, the United States will 
request that China enter into consultations with the United States."4 
On 17 May 2016, the United States requested consultations with China pursuant to 
paragraph 1 of the Agreed Procedures.5 The consultations were held on 24 May 2016, but did not 
resolve US concerns. 
The United States considers that China has failed to bring its measures into conformity with 
the covered agreements. Specifically, the Unit ed States considers that China's measures 
continuing to impose antidumping and countervailin g duties on broiler products from the United 
States, as set forth by China's Ministry of Commerce (MOFCOM) in Announcement No. 44 [2014], Announcement No. 56 [2013], Announcement No. 52 [2010], Announcement No. 51 [2010], 
Announcement No. 26 [2010], Announcement No. 8 [2010], and the annexes to the foregoing 
                                               
1 WT/DSB/M/337, para. 6.8; WT/DS427/5. 
2 WT/DS427/7 
3 WT/DS427/9. 
4 WT/DS427/9. The United States recalls that footno te 1 following the above-cited sentence confirms 
that "[t]he Parties agree that under Article 21.5 of the DSU, consultations are not obligatory." 
5 WT/DS427/9. WT/DS427/11 
 
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  documents, are inconsistent with China's obligations under the following provisions of the 
AD Agreement, SCM Agreement, and the GATT 1994: 
1. Articles 3.1 and 3.2 of the AD Agreement, and Articles 15.1 and 15.2 of the 
SCM Agreement, because MOFCOM's analysis of  the alleged price effects of imports under 
investigation did not involve an objective examination of the record and was not based on 
positive evidence. For example, MOFCOM: 
– Failed to account for differences in the product mix between the average unit value of 
subject imports and the average unit value of domestic sales; 
– Failed to explain how it collected product-specific pricing data in the re-investigation, 
why data was solicited from only four domestic producers, and what proportion of total domestic industry sales were covered by the data; 
– Failed to explain how the alleged price underselling could have suppressed domestic 
prices in the first half of 2009 when similar underselling had no price suppressive effects at other points during the period of investigation; and 
– Failed to address evidence that prices for domestically produced products that competed 
with subject imports declined far less than prices for other domestic products in the first half of 2009. 
2. Articles 3.1 and 3.4 of the AD Agreement, and Articles 15.1 and 15.4 of the 
SCM Agreement, because MOFCOM's findings that subject imports had an adverse impact on the domestic industry did not involve an objective evaluation of all relevant economic factors and indices having a bearing on the state of  the industry. For example, MOFCOM did not 
address economic evidence and factors that co ntradicted its finding that the industry was 
not suffering material injury on account of US imports. 
3. Articles 3.1 and 3.5 of the AD Agreement, and Articles 15.1 and 15.5 of the 
SCM Agreement, because MOFCOM's determination that subject imports were causing injury 
to the domestic industry was not based on an examination of all relevant evidence, including that subject import volume did not increase at the expense of the domestic industry and 
that a large portion of subject imports consisted of products that could not have been 
injurious, and was based on MOFCOM's flawed price and impact analyses. 
4. Articles 6.4 and 6.5 of the AD Agreement, and Articles 12.3 and 12.4 of the 
SCM Agreement, because during the reinvestigation MOFCOM did not provide interested 
parties timely opportunities to see all non-confidential information that was relevant to their 
case and that was used by the investigating authority, and MOFCOM treated information as 
confidential absent good cause. For example,  MOFCOM failed to disclose the questionnaires 
it submitted to Chinese domestic producers during the re-investigation. 
5. Article 6.1 of the AD Agreement and Article 12.1 of the SCM Agreement because during the 
reinvestigation MOFCOM did not provide notice of the information that MOFCOM required 
and did not provide interested parties ample o pportunity to present in writing all evidence 
they considered relevant. For example, MOFCOM did not disclose the questionnaires it submitted to Chinese domestic producers during the re-investigation. 
6. Article 6.9 of the AD Agreement and Articl e 12.8 of the SCM Agreement because MOFCOM 
failed to inform interested Members and parties of the essential facts under consideration 
which form the basis for its decision to apply definitive measures. For example, MOFCOM did 
not disclose the calculations utilized to determine the dumping and subsidy margins for US 
producers. 
7. Articles 12.2 and 12.2.2 of the AD Agreem ent, and Articles 22.3 and 22.5 of the 
SCM Agreement, because MOFCOM failed to provide in sufficient detail the findings and 
conclusions reached on all issues of fact and law it considered material, all relevant 
information on matters of fact and law and the reasons which led to the imposition of final measures, and the reasons for the acceptance or rejection of relevant arguments or claims. WT/DS427/11 
 
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  For example, MOFCOM's explanations with respect to its findings for its material injury 
determination fail to address key arguments made by interested parties. 
8. Articles 2.2 and 2.2.1.1 of the AD Agreemen t because MOFCOM improperly calculated the 
cost of production for US producers, failed to calculate costs on the basis of the records kept 
by the US producers under investigation, and did not consider all available evidence on the 
proper allocation of costs.  For example, MO FCOM allocated production costs of non-subject 
merchandise to subject merchandise and failed to properly allocate processing costs for 
subject merchandise. 
9. Article 9.4 of the AD Agreement because MOFC OM applied to imports from producers and 
exporters not included in the examination – and to which the application of facts available was not warranted – an antidumping duty that exceeded the weighted average margin of 
dumping established with respect to the sele cted exporters or producers. For example, 
MOFCOM failed to correctly calculate dumping margins for US interested parties, and then applied a rate to imports from producers and exporters not included in the examination that 
exceeded the selected exporters or producer s' weighted average margin of dumping. 
10. Article 6.8 and Annex II (including, inter alia , paragraphs 1, 3, 5, and 6) of the 
AD Agreement because MOFCOM made determinations for U.S. producers on the basis of the 
facts available even though it: 
– failed to specify in detail the information required from interested parties and the 
manner in which it should be structured; 
– did not take into account verifiable and appropriately submitted information; and  
– failed to provide supplying parties of the reasons evidence or information was rejected 
and an opportunity to provide further explanations.  
11. Article 1 of the AD Agreement as a conseque nce of the breaches of the AD Agreement 
described above. 
12. Article 10 of the SCM Agreement as a conseque nce of the breaches of the SCM Agreement 
described above. 
13. Article VI of the GATT 1994 as a conseq uence of the breaches of the AD and 
SCM Agreements described above. 
As "there is disagreement as to the existenc e or consistency with a covered agreement of 
measures taken to comply with the recommendatio ns and rulings" between the United States and 
China within the meaning of Article 21.5 of th e DSU, the United States seeks recourse to 
Article 21.5 of the DSU, including wherever possible resort to the original panel. 
 The United States recalls that, pursuant to Paragraph 2 of the Agreed Procedures, China has 
agreed to accept the establishment of the panel at the first DSB meeting at which a request for the 
establishment of an Article 21.5 panel appears on the agenda. 
__________