WT/DS449/AB/R  
 
7 July 2014  
(14-3867)  Page: 1/100  
  Original: English  
 
 UNITED STATES – COUNTERVAILING AND ANTI-DUMPING MEASURES 
ON CERTAIN PRODUCTS FROM CHINA 
AB-2014-4 
Report of the Appellate Body 
 
 WT/DS449/AB/R 
 
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  Table of Contents 
 
1   INTROD UCTION  ........................................................................................................ 11  
2   ARGUMENTS OF THE PARTICIPAN TS AND THIRD PARTICIPANTS ............................. 15  
2.1   Claims of error by China – A ppellant ...................................................................... 15  
2.1.1   Interpretation and application of Article X:2 of the GATT 1994 ...................................... 16 
2.1.2   Article 11 of the DSU .............................................................................................. 19 
2.1.3   China's request for co mpletion of the analysis ............................................................ 19 
2.2   Arguments of the Un ited States – Appellee ............................................................ 24  
2.2.1   Interpretation and application of Article X:2 of the GATT 1994 ...................................... 24 
2.2.2   Article 11 of the DSU .............................................................................................. 27 
2.2.3   China's request for co mpletion of the analysis ............................................................ 29 
2.3   Claims of error by the Un ited States – Ot her appella nt .......................................... 32  
2.3.1   Article 6.2 of the DSU ............................................................................................. 32 
2.4   Arguments of China – A ppellee .............................................................................. 34  
2.4.1   Article 6.2 of the DSU ............................................................................................. 34 
2.5   Arguments of the third partic ipants ....................................................................... 37  
2.5.1   Australia ............................................................................................................... 37 
2.5.2   Euro pean Union ..................................................................................................... 37 
2.5.3   Japan ................................................................................................................... 39 
3   ISSUES RAISED IN THIS A PPEAL .............................................................................. 39  
4   ANALYSIS OF TH E APPELLATE BODY ......................................................................... 40  
4.1   Article 6. 2 of the DSU ............................................................................................. 40  
4.1.1   Function of Ar ticle 6.2 of the DSU............................................................................. 41 
4.1.2   The measure(s) at issue as  identified in the panel request ........................................... 43 
4.1.3   The United States' claim that China's panel request is inconsistent with Article 6.2 
of the DSU ...................................................................................................................... 44 
4.1.3.1   The text and narra tive of the panel request............................................................. 44 
4.1.3.2   Abandoned claims ............................................................................................... 53 
4.1.3.3   Conclusions ........................................................................................................ 55 
4.2   Article X:2 of the GA TT 1994 .................................................................................. 55  
4.2.1   The Panel's findings ............................................................................................... 56 
4.2.2   Interpretation and application of Article X:2 ............................................................... 57 
4.2.2.1   Function  of Article X:2 ......................................................................................... 58 
4.2.2.2   China's appeal of the Pane l's interpretation of Article X:2 .......................................... 58 
4.2.2.3   Determination of the meaning of municipal law for purposes of Article X:2 .................. 64 
4.2.2.4   Identification of the base line of comparison under Article X:2 .................................... 66 
4.2.2.5   The Panel's application of the baseline of comparison to the measure at issue .............. 69 
4.2.3   Co nclusi ons .......................................................................................................... 69 WT/DS449/AB/R 
 
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  4.3   Article 11 of the DSU .............................................................................................. 70  
4.4   Completion of the analysis under Article X:2 of the GATT 1994 .............................. 71  
5   FINDINGS AND CONCLUSIONS .................................................................................. 91  
ANNEX 1 ....................................................................................................................... . 93 
ANNEX 2 ....................................................................................................................... . 95 
ANNEX 3 ....................................................................................................................... . 97 
 
 
 WT/DS449/AB/R 
 
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  CASES CITED IN THIS REPORT 
Short Title Full Case Title and Citation 
Australia – Apples  Appellate Body Report, Australia – Measures Affectin g the Importation of Apples 
from New Zealand , WT/DS367/AB/R, adopted 17 December 2010, DSR 2010:V, 
p. 2175 
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327 
Brazil – Desiccated 
Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167 
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527 
Canada – Aircraft 
(Article 21.5 – Brazil) Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft – Recourse by Brazil to Article 21.5 of the DSU , WT/DS70/AB/RW, 
adopted 4 August 2000, DSR 2000:IX, p. 4299 
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, 
DSR 2000:VI, p. 2985 
Canada – Periodicals Appellate Body Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, p. 449 
Canada – Renewable 
Energy / 
Canada – Feed-in Tariff 
Program  Appellate Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Me asures Relating to the Feed-in Tariff 
Program , WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013 
Canada – Wheat Exports 
and Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R, adopted 27 September 2004, 
DSR 2004:VI, p. 2739 
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted 23 October 
2002, DSR 2002:VIII, p. 3045 (Corr. 1, DSR 2006:XII,  p. 5473) 
Chile – Price Band System 
(Article 21.5 – Argentina) Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products  – Recourse to Article 21.5 of the DSU 
by Argentina , WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, p. 513 
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted 
12 January 2009, DSR 2009:I, p. 3 
China – Rare Earths Panel Reports, China – Measures Related to the Exportation of Rare Earths, 
Tungsten, and Molybdenum , WT/DS431/R / WT/DS432/R / WT/DS433/R / and 
Add.1, circulated to WTO Members 26 March 2014 [appeal in progress] 
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of Various 
Raw Materials , WT/DS394/AB/R / WT/DS395/AB /R / WT/DS398/AB/R, adopted 
22 February 2012, DSR 2012:VII, p. 3295 
EC – Approval and 
Marketing of Biotech 
Products Panel Reports, European Communities – Measures  Affecting the Approval and 
Marketing of Biotech Products , WT/DS291/R / WT/DS292/R / WT/DS293/R / 
Add.1 to Add.9 and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847 
EC – Asbestos Appellate Body Report, European Communities – Meas ures Affecting Asbestos 
and Asbestos-Containing Products , WT/DS135/AB/R, adopted 5 April 2001, 
DSR 2001:VII, p. 3243 
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 
1997, DSR 1997:II, p. 591 
EC – Bed Linen 
(Article 21.5 – India) Appellate Body Report, European Communities – An ti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from Indi a – Recourse to Article 21.5 of the 
DSU by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, p. 965 
EC – Export Subsidies on 
Sugar Appellate Body Report, European Communities – Export Subsidies on Sugar , 
WT/DS265/AB/R, WT/DS266/AB/R, WT/D S283/AB/R, adopted 19 May 2005, 
DSR 2005:XIII, p. 6365 WT/DS449/AB/R 
 
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  Short Title Full Case Title and Citation 
EC – Fasteners (China) 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, DSR 2 011:VII, p. 3995 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, p. 135 
EC – IT Products Panel Reports, European Communities and it s member States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R / 
WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III, 
p. 933 
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 1998, 
DSR 1998:V, p. 2031 
EC – Sardines Appellate Body Report, European Communities – Trade Description of Sardines , 
WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, p. 3359 
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R / WT/DS401/AB/R, 
adopted 18 June 2014 
EC – Selected Customs 
Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791 
EC – Selected Customs 
Matters Panel Report, European Communities – Selected Customs Matters , 
WT/DS315/R, adopted 11 December 2006, as modified by Appellate Body 
Report WT/DS315/AB/R, DSR 2006:IX, p. 3915 
EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the Granting of 
Tariff Preferences to Developing Countries , WT/DS246/AB/R, adopted 20 April 
2004, DSR 2004:III, p. 925 
EC – Trademarks and 
Geographical Indications (Australia) Panel Report,  European Communities – Prot ection of Trademarks and 
Geographical Indications for Agricultural  Products and Foodstuffs, Complaint by 
Australia , WT/DS290/R, adopted 20 April 2005, DSR 2005:X, p. 4603 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – An ti-Dumping Duties on 
Malleable Cast Iron Tube or  Pipe Fittings from Brazil , WT/DS219/AB/R, adopted 
18 August 2003, DSR 2003:VI, p. 2613 
EC and certain member 
States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States  
– Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R, adopted 
1 June 2011, DSR 2011:I, p. 7 
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 November 1998, 
DSR 1998:IX, p. 3767 
India – Additional Import 
Duties Appellate Body Report, India – Additional and Extr a-Additional Duties on 
Imports from the United States , WT/DS360/AB/R, adopted 17 November 2008, 
DSR 2008:XX, p. 8223 
India – Patents (US) Appellate Body Report, India – Patent Protection  for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, p. 9 
Japan – Agricultural 
Products II Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, p. 277 
Japan – Alcoholic 
Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, 
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 
p. 97 
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391 
Japan – DRAMs (Korea) Appellate Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R and Corr.1, adopted 
17 December 2007, DSR 2007:VII, p. 2703 
Korea – Alcoholic 
Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/AB/R, 
WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, p. 3 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguar d Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, p. 3 WT/DS449/AB/R 
 
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  Short Title Full Case Title and Citation 
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non-Alloy Steel and H-Beams from Poland , 
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701 
US – 1916 Act (EC) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by the 
European Communities , WT/DS136/R and Corr.1, adopted 26 September 2000, 
upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, 
DSR 2000:X, p. 4593 
US – Anti-Dumping and 
Countervailing Duties (China) Appellate Body Report, United States – Definitive Anti-Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R, adopted 
25 March 2011, DSR 2011:V, p. 2869 
US – Anti-Dumping and 
Countervailing Duties 
(China) Panel Report, United States – Definitive Anti-Dumping and Countervailing Duties 
on Certain Products from China , WT/DS379/R, adopted 25 March 2011, as 
modified by Appellate Body Report WT/DS379/AB/R, DSR 2011:VI, p. 3143 
US – Carbon Steel Appellate Body Report, United States – Countervai ling Duties on Certain 
Corrosion-Resistant Carbon Stee l Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 
p. 3779 
US – Continued 
Suspension Appellate Body Report, United States – Continued Suspension of Obligations in 
the EC – Hormones Dispute , WT/DS320/AB/R, adopted 14 November 2008, 
DSR 2008:X, p. 3507 
US – Continued Zeroing Appellate Body Report, United States – Continued Ex istence and Application of 
Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009, 
DSR 2009:III, p. 1291 
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 
2012, DSR 2012:V, p. 2449 
US – Corrosion-Resistant 
Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties 
on Corrosion-Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3 
US – Countervailing and 
Anti-Dumping Measures 
(China) Panel Report, United States – Countervailing and Anti-Dumping Measures on 
Certain Products from China , WT/DS449/R and Add.1, circulated to WTO 
Members 27 March 2014 [appeal in progress] 
US – Countervailing Duty 
Investigation on DRAMS Appellate Body Report, United States – Countervaili ng Duty Investigation on 
Dynamic Random Access Memory Se miconductors (DRAMS) from Korea , 
WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, p. 8131 
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/AB/R, adopted 20 March 2000, DSR 2000:III, 
p. 1619 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 20 April 
2005, DSR 2005:XII, p. 5663 (Corr.1, DSR 2006:XII, p. 5475) 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3 
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 23 August 
2001, DSR 2001:X, p. 4697 
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Me at from New Zealand and Australia , 
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX, 
p. 4051 
US – Large Civil Aircraft 
(2nd complaint) Appellate Body Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R, adopted 23 March 2012, DSR 
2012:I, p. 7 
US – Offset Act 
(Byrd Amendment) Appellate Body Report, United States – Continued Dumping and Subsidy Offset 
Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003, 
DSR 2003:I, p. 375 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, p. 3257 WT/DS449/AB/R 
 
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  Short Title Full Case Title and Citation 
US – Section 211 
Appropriations Act Appellate Body Report, United States – Section 211 Omnibus Appropriations 
Act of 1998 , WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, p. 589 
US – Shrimp Appellate Body Report, United States – Import Proh ibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, 
DSR 1998:VII, p. 2755 
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty Determination 
with Respect to Certain So ftwood Lumber from Canada , WT/DS257/AB/R, 
adopted 17 February 2004, DSR 2004:II, p. 571 
US – Softwood Lumber IV 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Countervailing Duty Determination 
with Respect to Certain Soft wood Lumber from Canada  
– Recourse by Canada to Article 21.5 of the DSU , WT/DS257/AB/RW, adopted 
20 December 2005, DSR 2005:XXIII, p. 11357 
US – Softwood Lumber VI 
(Article 21.5 – Canada) Appellate Body Report, United States – Investigation of the International Trade 
Commission in Softwood Lumber from Cana da – Recourse to Article 21.5 of the 
DSU by Canada , WT/DS277/AB/RW, adopted 9 May 2006, and Corr.1, 
DSR 2006:XI, p. 4865 
US – Steel Safeguards Appellate Body Report, United States – Definitive  Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R, WT/DS249/AB/R, 
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, 
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII, p. 3117 
US – Underwear Appellate Body Report, United States – Restrictions  on Imports of Cotton and 
Man-made Fibre Underwear , WT/DS24/AB/R, adopted 25 February 1997, 
DSR 1997:I, p. 11 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3 
US – Upland Cotton 
(Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse 
to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 20 June 2008, 
DSR 2008:III, p. 809 
US – Wheat Gluten Appellate Body Report, United States – Definitive  Safeguard Measures on 
Imports of Wheat Gluten fro m the European Communities , WT/DS166/AB/R, 
adopted 19 January 2001, DSR 2001:II, p. 717 
US – Wool Shirts and 
Blouses Appellate Body Report, United States – Measure A ffecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R, adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted 9 May 
2006, and Corr.1, DSR 2006:II, p. 417 
US – Zeroing (Japan) 
(Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW, adopted 31 Augu st 2009, DSR 2009:VIII, p. 3441 
 WT/DS449/AB/R 
 
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  PANEL EXHIBITS CITED IN THIS REPORT 
Exhibit No. Description 
CHI-1 United States Public Law No. 112-99, An act to apply the countervailing duty 
provisions of the Tariff Act of 1930 to nonmarket economy countries, and for 
other purposes, 126 Stat. 265 (13 March 2012) 
CHI-2 United States Court of Appeals for th e Federal Circuit, Georgetown Steel 
Corporation v. United States, 801 F.2d 1308 (Fed. Cir. 1986) 
CHI-3 United States Court of International Trade, GPX International Tire Corporation 
v. United States, 645 F. Supp. 2d 1231 (CIT 18 September 2009) 
CHI-6 United States Court of Appeals for the Federal Circuit, GPX International Tire 
Corporation v. United States, 666 F.3d 732 (Fed. Cir. 2011) 
CHI-7 United States Court of Appeals for th e Federal Circuit, GPX International Tire 
Corporation v. United States, 678 F.3d 1308 (Fed. Cir. 2012) 
CHI-14 USDOC, Countervailing Duties: Final Rule, United States Federal Register , 
Vol. 63, No. 227 (25 November 1998), pp. 65348-65360 
CHI-15 Memorandum dated 18 September 2002 from Richard W. Moreland, Deputy 
Assistant Secretary, Group I Import Administration, to Faryar Shirzad, 
Assistant Secretary for Import Admi nistration, "Issues and Decision 
Memorandum for the Final Determination in the Countervailing Duty Investigation of Sulfanilic Acid from Hungary"  
CHI-83 Legal Opinion of Richard H. Fallon, Jr, Professor of Law, Harvard University 
CHI-124 Supplemental Legal Opinion of Richard H. Fallon, Jr, Professor of Law, Harvard 
University 
USA-2 United States Code , Title 19, Chapter 4, Section 1671 
USA-7 USDOC, Carbon Steel Wire Rod From Czechoslovakia: Final Negative 
Countervailing Duty Determination, United States Federal Register , Vol. 49, 
No. 89 (7 May 1984), pp. 19370-19374 
USA-10 USDOC, Carbon Steel Wire Rod From Poland: Final Negative Countervailing 
Duty Determination, United States Federal Register , Vol. 49, No. 89 (7 May 
1984), pp. 19374-19378 
USA-21 General Issues Appendix, appended  to the Final Affirmative Countervailing 
Duty Determination: Certain St eel Products From Austria, United States Federal 
Register , Vol. 58, No. 130 (9 July 1993), pp. 37225-37261 
USA-23 USDOC, Notice of Initiation of Countervailing Duty Investigations: Coated Free 
Sheet Paper From the People's Republic of China, Indonesia, and the Republic 
of Korea, United States Federal Register, Vol. 71, No. 227 (27 November 
2006), pp. 68549-68549 
USA-25 USDOC, Coated Free Sheet Paper from the People's Republic of China: 
Amended Affirmative Preliminary Countervailing Duty Determination, 
United States Federal Register , Vol. 72, No. 67 (9 April 2007), pp. 17484-
17486 
USA-26 Memorandum dated 29 March 2007 from Shauna Lee-Alaia, et al., Office of 
Policy, Import Administration, to Davi d M. Spooner, Assistant Secretary for 
Import Administration, "Countervailing Du ty Investigation of Coated Free Sheet 
Paper from the Peoples' Republic of China  – Whether the Analytical Elements of 
the Georgetown Steel  Opinion are Applicable to China's Present-Day Economy"  
USA-27 USDOC, Coated Free Sheet Paper from the People's Republic of China: Final 
Affirmative Countervailing Duty Determination, United States Federal Register , 
Vol. 72, No. 206 (25 October 2007), pp. 60645-60648 
USA-28 United States Court of International Trade, Government of the People's 
Republic of China v. United States, 483 F. Supp. 2d 1274 (CIT 2007) 
USA-41 United States Federal Rules of Appellate Procedure (1 December 2010), 
Rule 41(b) 
USA-43 United States Court of Appeals for the Federal Circuit, GPX International Tire 
Corporation v. United States, Co rrected Petition for Rehearing En Banc  of 
Defendant-Appellant, United States (Fed. Cir. 2011-1107/1108/1109 5 March 
2012) WT/DS449/AB/R 
 
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  Exhibit No. Description 
USA-85 Supreme Court of the United Stat es, Ed Plaut v. Spendthrift Farm, Inc., 
514 U.S. 211 (1995) 
USA-93 United States Court of International Trade, GPX International Tire Corporation 
v. United States, 587 F. Supp. 2d 1278 (CIT 2008) 
USA-94 USDOC, Rescission of Initiation of Countervailing Duty Investigation and 
Dismissal of Petition: Chrome-Plated Lug Nuts and Wheel Locks From the 
People's Republic of China, United States Federal Register , Vol. 57, No. 59 
(26 March 1992), pp. 10459-10460 
USA-95 Final Negative Countervailing Duty Determinations: Oscillating and Ceiling Fans 
From the People's Re public of China, United States Federal Register , Vol. 57, 
No. 109 (5 June 1992), pp. 24018-24022 
USA-96 Omnibus Trade and Competitiveness Act of 1988, Pubic Law No. 100-418, 
102 Stat. 1107 (23 August 1988) 
USA-115 Legal Opinion of John C. Jeffries, Jr, Professor of Law, University of Virginia, in 
response to Legal Opinion of Richard H. Fallon, Jr, Professor of Law, Harvard 
University 
USA-119 Table setting out the Administrative Notice to the Government of China and to 
Chinese Producers/Exporters Regarding Ap plication of U.S. CVD Laws to China 
USA-125 USDOC, Drawn Stainless Steel Sinks From the People's Republic of China: 
Initiation of Countervailing Duty Investigation, C-570-984, United States 
Federal Register , Vol. 77, No. 59 (27 March 2012), pp. 18211-18215 
 WT/DS449/AB/R 
 
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  ABBREVIATIONS USED IN THIS REPORT 
Abbreviation Description 
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on Tariffs  
and Trade 1994 
CAFC United States Court of Appeals for the Federal Circuit 
CFS Coated free sheet 
CFS Paper United States Court of International Trade, Government of the People's 
Republic of China v. United States, 483 F. Supp. 2d 1274 (CIT 2007) 
CIT United States Court of International Trade 
CVD Countervailing duty 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes 
GATT 1994 General Agreement on Tariffs and Trade 1994 
Georgetown Steel United States Court of Appeals for th e Federal Circuit, Georgetown Steel 
Corporation v. United States, 801 F.2d 1308 (Fed. Cir. 1986) (Panel Exhibit 
CHI-2) 
GPX GPX International Tire Corporation 
GPX I United States Court of International Trade, GPX International Tire Corporation 
v. United States, 587 F. Supp. 2d 1278 (CIT 2008) (Panel Exhibit USA-93) 
GPX II United States Court of International Trade, GPX International Tire Corporation 
v. United States, 645 F. Supp. 2d 1231 (CIT 2009) (Panel Exhibit CHI-3) 
GPX V United States Court of Appeals for the Federal Circuit, GPX International Tire 
Corporation v. United States, 666 F.3d 732 (Fed. Cir. 2011) (Panel Exhibit 
CHI-6) 
GPX VI United States Court of Appeals for the Federal Circuit, GPX International Tire 
Corporation v. United States, 678 F.3d 1308 (Fed. Cir. 2012) (Panel Exhibit 
CHI-7) 
NME Non-market economy 
Panel Report Panel Report, United States – Countervailing and Anti-Dumping Measures on 
Certain Products from China , WT/DS449/R, 27 March 2014 
PL 112-99 United States Public Law No. 112-99, An act to apply the countervailing duty 
provisions of the Tariff Act of 1930 to nonmarket economy countries, and for 
other purposes, 126 Stat. 265 (13 March 2012) (Panel Exhibit CHI-1) 
Preliminary Ruling Preliminary Ruling of the Panel dated 7 May 2013, contained in document 
WT/DS449/4  
SCM Agreement Agreement on Subsidies an d Countervailing Measures 
Sulfanilic Acid  Memorandum dated 18 September 2002 from Richard W. Moreland, Deputy 
Assistant Secretary, Group I Import Administration, to Faryar Shirzad, 
Assistant Secretary for Import Admi nistration, "Issues and Decision 
Memorandum for the Final Determination in the Countervailing Duty 
Investigation of Sulfanilic Acid from Hungary" (Panel Exhibit CHI-15) 
US Tariff Act United States Tariff Act of 1930,  United States Code , Title 19, Chapter 4 
USDOC United States Department of Commerce 
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 
UN Treaty Series, Vol. 1155, p. 331 
Wireking United States Court of Appeals for th e Federal Circuit, Guangdong Wireking 
Housewares & Hardware Co., Ltd. v. United States, 2013-1404 (Fed. Cir. 2014) 
Working Procedures  Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010 
WTO World Trade Organization 
WTO Agreement Marrakesh Agreement Establishing the WTO 
 WT/DS449/AB/R 
 
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  WORLD TRADE ORGANIZATION  
APPELLATE  BODY 
  
United States – Countervailing and 
Anti-Dumping Measures on Certain Products from China 
 
China, Appellant/Appellee  
United States, Other Appellant/Appellee  
 
Australia, Third Participant  
Canada, Third Participant  
European Union, Third Participant  
India, Third Participant  
Japan, Third Participant  
Russia, Third Participant  
Turkey, Third Participant  
Viet Nam, Third Participant  
 AB-2014-4 
 Appellate Body Division:  
 
Bhatia, Presiding Member Chang, Member Zhang, Member 
 
  
1  INTRODUCTION 
1.1.  China and the United States each appeals certain issues of law and legal interpretations 
developed in the Panel Report, United States – Countervailing and Anti-Dumping Measures on 
Certain Products from China
1 (Panel Report). The Panel was established2 to consider a complaint 
by China with respect to measures taken by th e United States regarding the application of 
countervailing duties to imports from non-market economy (NME) countries, and the 
United States' failure to investigate and avoid double remedies in certain countervailing and anti-dumping duty investigations.
3 
1.2.  The measure at issue in this dispute is Section 1 of US Public Law No. 112-994 (PL 112-99), 
introducing the new Section 701(f) of the United States Tariff Act of 19305 (US Tariff Act). Before 
the Panel, China also challenged the failure of the United States authorities to investigate and avoid double remedies in 26 countervailing duty investigations and reviews initiated between 
20 November 2006 and 13 March 2012.
6  
1.3.  The new Section 701(f) of the US Tariff Act,  which is established by Section 1 of PL 112-99, 
applies the countervailing duty provisions of the US Tariff Act to NME countries, except in cases 
where "the administering authority is unable to identify and measure subsidies provided by the 
government of the [NME] country or a public en tity within the territory of the [NME] country 
because the economy of that country is essentiall y comprised of a single entity." Section 701(f) 
applies to countervailing duty proceedings initiated on or after 20 November 2006, as well as to all 
resulting actions by the US Customs and Border Protection and all relating civil actions, criminal 
proceedings, and other proceedings before a US federal court.7 
                                               
1 WT/DS449/R, 27 March 2014. 
2 At its meeting held on 17 December 2012, the Dispute Settlement Body (DSB) established a panel 
pursuant to the request of China in document WT/DS449/ 2, in accordance with Article 6 of the Understanding 
on Rules and Procedures Governin g the Settlement of Disputes (DSU). (Panel Report, para. 1.3) 
3 See Request for the Establishment of a Panel by China, WT/DS449/2. 
4 United States Public Law No. 112-99, An act to ap ply the countervailing duty provisions of the Tariff 
Act of 1930 to nonmarket economy countries, and for other purposes, 126 Stat. 265 (13 March 2012) (Panel Exhibit CHI-1). 
5 United States Code , Title 19, Chapter 4. 
6 Panel Report, para. 3.2. See also ibid., para. 7.8. 
7 Panel Report, para. 7.11. WT/DS449/AB/R 
 
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  1.4.  China originally identified a broad set of claims and measures in its panel request8, but 
eventually narrowed them down during the course of the Panel proceedings.9 China claimed before 
the Panel that Section 1 of PL 112-99 is inconsistent, as such, with Articles X:1, X:2, and X:3(b) of the General Agreement on Tariffs and Trade 1994 (GATT 1994). First, China claimed that Section 1 
is inconsistent with the requirement in Article X:1 to publish "promptly", because it was "made 
effective" as of 20 November 2006, but was not published until 13 March 2012.
10 Second, China 
claimed that Section 1 is inconsistent with Article X:2, because it is a measure of general 
application, which effects an "advance" in a rate of duty and imposes a "new or more burdensome" 
requirement or restriction on imports, enforced by the United States prior to its official publication on 13 March 2012.
11 Third, China claimed that Section 1 of PL 112-99 is inconsistent with 
Article X:3(b), because "it amends United States law retroactively and makes it applicable to 
judicial proceedings concerning administrative actions taken prior to its enactment".12 
1.5.  China also claimed before the Panel that the United States failed to investigate and avoid 
double remedies in 26 countervailing duty investigations and reviews initiated between 
20 November 2006 and 13 March 2012.13 According to China, the resulting countervailing duty 
measures, including any countervailing duties collected pursuant to their authority, are inconsistent with Articles 10, 19, and 32 of the Agreement on Subsidies and Countervailing 
Measures (SCM Agreement).
14 
1.6.  On 15 March 2013, the United States submitted a request for a preliminary ruling challenging 
the consistency of certain aspects of China's panel request with Article 6.2 of the Understanding on Rules and Procedures Governing the Settlement of Di sputes (DSU). The United States argued that 
Parts C and D of China's panel request regarding the failure of the US Department of Commerce 
(USDOC) to investigate and avoid double remedies fail to meet the requirement in Article 6.2 to 
"provide a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly" and, thus, were not within the Panel's terms of reference.
15 In a letter to the Panel dated 
25 March 2013, China indicated that it would not purs ue the entirety of its claims in Part C, and 
some of its claims under Part D, so that its only remaining claims under Part D were those under 
Articles 10, 19, and 32 of the SCM Agreemen t. The Panel issued its Preliminary Ruling16 on 
                                               
8 China's original claims included: 
a. Section 1 of PL 112-99, including the new Section 701(f) of the US Tariff Act that it establishes, is 
inconsistent, as such, with Articles X:1, X:2, X:3(a), and X:3(b) of the GATT 1994; 
b. Section 2 of PL 112-99 amending Section 777A of the US Tariff Act is inconsistent, as such, with 
Article X:3(a) of the GATT 1994; 
c. the United States lacks the legal authority to id entify and avoid double remedies in respect of 
certain investigations and reviews initiated between 20 November 2006 and 13 March 2012, and is thereby prevented in all such investigations and reviews from ensuring that the imposition of countervailing duties is consistent with Articles 10, 15, 19, 21, and 32 of the SCM Agreement and Article VI of the GATT 1994, and from ensuring that the imposition of anti-dumping duties in the associated anti-dumping investigations and reviews is consistent with Articles 9 and 11 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) and Article VI of the GATT 1994; and 
d. the United States failed to investigate and avoid double remedies in certain investigations and 
reviews initiated between 20 November 2006 and 13 March 2012; that the resulting countervailing 
duty measures, including any countervailing duti es collected pursuant to their authority, are 
inconsistent with Articles 10, 15, 19, 21, and 32 of the SCM Agreement and Article VI of the GATT 1994; and that the associated anti-dumping me asures in each such instance, including any 
anti-dumping duties collected pursuant to their authority, are inconsistent with Articles 9 and 11 of the Anti-Dumping Agreement and Article VI of the GATT 1994.  
(Panel Report, para. 3.1) 
9 In its letter to the Panel dated 25 March 2013, China indicated that it would not pursue the entirety of 
its claims in Part C of the panel requ est, and some of its claims under Part  D of the panel requ est, so that its 
only remaining claims under Part D were those under  Articles 10, 19, and 32 of the SCM Agreement. In 
addition, in response to Panel questi on No. 39, China also stated that it was not pursuing its claims under 
Article X:3(a) of the GATT 1994. (Panel Report, fn 11 to para. 3.2) 
10 Panel Report, para. 7.17. 
11 Panel Report, para. 7.91. 
12 Panel Report, para. 7.244. 
13 Panel Report, para. 3.1. 
14 Panel Report, paras. 7.298 and 7.300.  
15 Panel Report, para. 7.1. 
16 Preliminary Ruling by the Panel of 7 May 2013, contained in document WT/DS449/4 
(Preliminary Ruling). WT/DS449/AB/R 
 
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  7 May 2013, prior to the filing of the first written submissions of the parties17, and circulated it to 
Members of the World Trade Organization (WTO) on 7 June 2013. In its Preliminary Ruling, which forms an integral part of the Panel Report
18, the Panel found that: 
a. in the light of China's representation that it would not pursue certain claims19, the Panel 
declined to rule on whether the panel reques t was consistent with Article 6.2 of the DSU 
insofar as it relates to those claims; and 
b. the general references to Articles 10, 19, and 32 of the SCM Agreement contained in 
Part D of the panel request are consistent with the requirements of Article 6.2 of the 
DSU, on the basis that the general references warrant the inference that the obligations at issue are those contained in Articles 10,  19.3, and 32.1 of the SCM Agreement, and 
the United States had not established that Part D of the panel request failed to "plainly 
connect" the challenged measures with those obligations.
20 
1.7.  The Panel Report was circulated to WTO Members on 27 March 2014. With respect to China's 
claims under Article X of the GATT 1994 concerning Section 1 of PL 112-99, the Panel found that: 
a. the United States did not act inconsistently with Article X:1 of the GATT 1994, because 
Section 1 was "made effective" by the United States on 13 March 2012 (and not on 20 November 2006), and published on the same day; 
b. although, through Section 1(b) and relevant determinations or actions made or taken by 
the United States between 20 November 2006 and 13 March 2012 in respect of imports from China, the United States enforced Section 1 before it had been officially published, the United States did not act inconsistently with Article X:2 of the GATT 1994, because 
Section 1 does not "effect[] an advance in a rate of duty or other charge on imports 
under an established and uniform practice, or impos[e] a new or more burdensome requirement, restriction, or prohibition on imports"; and  
c. the United States did not act inconsistently with Article X:3(b) of the GATT 1994, 
because that provision, which requires that  administrative agencies implement and be 
governed by decisions of the tribunals maintained to review their administrative action 
relating to customs matters, does not prohibit a Member from taking legislative action in 
the nature of Section 1 of PL 112-99.
21  
1.8.  With respect to China's claims under the SCM Agreement concerning the United States' 
alleged failure to investigate and avoid double remedies in 26 investigations and reviews initiated 
between 20 November 2006 and 13 March 2012, the Panel found that: 
a. in respect of one proceeding (Drawn Stainle ss Steel Sinks From the People's Republic of 
China22), China failed to demonstrate that the measure fell within the description of its 
claim as set out in its panel request and, in any event, failed to demonstrate that the 
United States acted inconsistently with Article 19.3 of the SCM Agreement or, consequently, Articles 10 or 32.1 of the SCM Agreement; and  
b. in the other 25 proceedings
23, the United States acted inconsistently with Article 19.3 of 
the SCM Agreement and, consequently, Articl es 10 and 32.1 of the SCM Agreement, by 
virtue of the USDOC's concurrent imposition of countervailing duties and anti-dumping 
                                               
17 Panel Report, para. 7.3. 
18 Panel Report, para. 6.6 (referring to Preliminar y Ruling, para. 4.3). See also ibid., para. 7.5. 
19 China's letter to the Panel dated 25 March 2013, pp. 1-2. These abandoned claims include Part C of 
China's panel request in its entirety, and the references in Part D to Articles 15 and 21 of the SCM Agreement, 
Article VI of the GATT 1994, and Articles 9 and 11 of the Anti-Dumping Agreement. 
20 Panel Report, para. 8.1.a; Preliminary Ruling, para. 4.2. 
21 Panel Report, para. 8.1.b. 
22 USDOC, Drawn Stainless Steel Sinks From the People's Republic of China: Initiation of Countervailing 
Duty Investigation, C-570-984, United States Federal Register , Vol. 77, No. 59 (27 March 2012), pp. 18211-
18215 (Panel Exhibit USA-125). 
23 These investigations and reviews at issue are identified in paragraph 7.355 of the Panel Report. WT/DS449/AB/R 
 
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  duties calculated on the basis of an NME methodology on the same products, without 
having investigated, either in the countervailing duty investigations and reviews or in the parallel anti-dumping investigations and reviews, whether double remedies arose from such concurrent duties.
24  
1.9.  Pursuant to Article 19.1 of the DSU, the Panel then recommended that the United States 
bring the investigations and reviews identified in  paragraph 7.355 of the Panel Report, excluding 
the investigation of Drawn Stainless Steel Sinks from the People's Republic of China, into 
conformity with its obligations under the SCM Agreement.25 
1.10.  On 8 April 2014, China notified the Di spute Settlement Body (DSB), pursuant to 
Articles 16.4 and 17 of the DSU, of its intention to appeal certain issues of law covered in the Panel Report and certain legal interpretations developed by the Panel and filed a Notice of Appeal
26 
and an appellant's submission pursuant to Rule  20 and Rule 21, respectively, of the Working 
Procedures for Appellate Review27 (Working Procedures).  
1.11.  China's appeal in this dispute was filed simultaneously with the appeal by the United States 
of the panel report in a different dispute, namely, China – Measures Related to the Exportation of 
Rare Earths, Tungsten, and Molybdenum (China – Rare Earths)  (DS431).28 In a letter dated 
9 April 2014, the Chairman of the Appellate Body expl ained to the parties to this dispute, as well 
as to the parties to the China – Rare Earths  (DS431; DS432; DS43329) disputes, that, in the past, 
the Appellate Body had attributed appeal numbers  sequentially based on the date and time of 
receipt of the Notice of Appeal. Given the unpre cedented situation of simultaneous filings of 
appeals, however, the Appellate Body Chair invited the parties in these disputes to provide their 
views, by 10 April 2014, as to the considerations relevant to the Appellate Body's determination of 
how to allocate appeal numbers AB-2014-3 and AB-2014-4 between the two appeals in US – 
Countervailing and Anti-Dumping Measures (China)  (DS449) and China – Rare Earths (DS431).  
1.12.  On 10 April 2014, the Appellate Body receiv ed comments from China, the European Union, 
Japan, and the United States. On the same day,  the Appellate Body Chair sent a letter to the 
parties to this dispute and to the China – Rare Earths (DS431; DS432; DS433) disputes informing 
them that, having given careful consideration to their submissions, the Appellate Body had 
determined that, in the face of the unprecede nted situation of simultaneous appeals, the 
Appellate Body's usual manner of assigning such numbers – according to the sequence in which they were appealed – was not available. The Appe llate Body underlined the necessity of assigning 
an appeal number to each appeal before the Appe llate Body Members constituting the respective 
divisions could be selected. The Appellate Body recalled, in this connection, that Rule 6(2) of the Working Procedures calls for the Members constituting a division to be selected taking into 
account, inter alia , "the principles of random selection [and] unpredictability". The Appellate Body 
expressed the view that, in order to ensure respect for these principles, in the specific circumstances of a simultaneous filing of two appe als, the appeal numbers should be assigned to 
each dispute by means of a random draw. To this  end, the Appellate Body invited the parties to 
this dispute and to the China – Rare Earths (DS431; DS432; DS433) disputes to the 
Appellate Body Secretariat on Friday, 11 April 2014, in order to witness the assignment of appeal 
numbers to the appeals in DS449 and DS431 through a random draw. The Appellate Body Chair 
also adverted, in his letter, to the Appellate Body 's regret at the unfortunate circumstances that 
had led to this situation, and to the need for parties to WTO disputes to coordinate, communicate, and cooperate amongst themselves, as well as with the Appellate Body and the Appellate Body 
Secretariat, in the planning, filing, and conduct of their appeals. 
                                               
24 Panel Report, para. 8.1.c. 
25 Panel Report, para. 8.3. 
26 WT/DS449/6 (attached as Annex 1 to this Report). 
27 WT/AB/WP/6, 16 August 2010.  
28 WT/DS431/R, 26 March 2014. 
29 The panel report in DS431 (complaint by the United  States) was circulated together with the panel 
reports in DS432 (complaint by the European Union) and DS433 (complaint by Japan) in the form of a single document constituting three separate  panel reports. China subsequently appealed the panel reports in DS432 
and DS433 on 25 April 2014. WT/DS449/AB/R 
 
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  1.13.  On Friday, 11 April 2014, a random draw was held at the Appellate Body Secretariat in the 
presence of the parties to this dispute and to the China – Rare Earths (DS431; DS432; DS433) 
disputes. As a result of this draw, the appeal initiated by the United States in China – Rare Earths  
(DS431) was assigned appeal number AB-2014-3, and the appeal by China in US – Countervailing 
and Anti-Dumping Measures (China) (DS449) was assigned appeal number AB-2014-4. 
1.14.  Also on 11 April 2014, the United States requ ested an extension for the filing of the relevant 
documents for an other appeal pursuant to Rule 16(2) of the Working Procedures on account of 
"exceptional circumstances", particularly: (i) the filing of China's Notice of Appeal and appellant 
submission 12 days after the circulation of the Panel Report in this dispute (DS449); (ii) the simultaneous filing of the appeals in this dispute and in China – Rare Earths  (DS431); and (iii) the 
granting of an extension to China to file its Notice of Other Appeal in China – Rare Earths  (DS431). 
On 14 April 2014, the Appellate Body Division hearing this appeal issued a Procedural Ruling
30 
extending the time-period for the United States to file its Notice of Other Appeal and other appellant's submission to 17 April 2014. The Division  also extended the deadlines for the filing of 
the appellees' submissions to 1 May 2014 and the third participants' submissions to 5 May 2014. 
The Division based its decision on Rule 16(1) and (2) of the Working Procedures. 
1.15.  On 16 April 2014, Japan requested the Appella te Body, pursuant to Rule 16 of the Working 
Procedures, to extend the date for the filing of the third participants' submission to 7 May 2014, 
because the original deadline fell within a holida y period in Japan. On 24 April 2014, the Division 
denied Japan's request on the ground that the difficulties that Japan could encounter in finalizing its submission during this period did not constitute "exceptional circumstances" that would result in 
a "manifest unfairness" within the meaning of Rule 16(2) of the Working Procedures. 
1.16.  On 17 April 2014, the United States notified  the DSB, pursuant to Articles 16.4 and 17 of 
the DSU, of its intention to appeal certain issues of law covered in the Panel Report and certain 
legal interpretations developed by the Panel and filed a Notice of Other Appeal
31 and an other 
appellant's submission pursuant to Rule 23 of  the Working Procedures. On 30 April 2014, China 
and the United States each filed an appellee's submission.32 On 5 May 2014, Australia, the 
European Union, and Japan each filed a third participant's submission.33 Canada, India, and Turkey 
(on 5 May 2014), Russia (on 12 May 2014), and Viet Nam (on 13 May 2014) each indicated its intention to appear at the oral hearing as a third participant.
34 
1.17.  The oral hearing in this appeal was held on 15 and 16 May 2014. The participants and third 
participants Australia and Japan made opening statements. The participants and third participants 
responded to questions posed by the Memb ers of the Division hearing the appeal. 
2  ARGUMENTS OF THE PARTICIP ANTS AND THIRD PARTICIPANTS 
2.1  Claims of error by China – Appellant 
2.1.  China claims that the Panel erred in the in terpretation and application of Article X:2 of the 
GATT 1994, because it concluded that the relevant baseline of comparison under ArticleX:2 is any 
"established and uniform practice" of a government agency, and in finding that Section 1 of 
PL 112-99 does not effect an "advance" in a rate of duty or other charge on imports under an "established and uniform practice", or impose a "new or more burdensome" requirement, restriction, or prohibition on imports in relation to this established and uniform practice.
35 
Moreover, China claims that the Panel acted inconsistently with Article 11 of the DSU in its 
determination of the meaning of US municipal law, and in finding that the USDOC practice of applying US countervailing duty law to imports from China as an NME country was "presumptively 
lawful".
36 China requests the Appellate Body to reverse the Panel's finding that the United States 
                                               
30 Attached as Annex 3 to this Report. 
31 WT/DS449/7 (attached as Annex 2 to this Report). 
32 Pursuant to Rules 22 and 23(4) of the Working Procedures.  
33 Pursuant to Rule 24(1) of the Working Procedures. 
34 Pursuant to Rules 24(2) and 24(4) of the Working Procedures. 
35 China's appellant's submission, para. 68 (ref erring to Panel Report, paras. 7.189-7.191 and 
7.206-7.208). 
36 China's appellant's submission, paras. 95-98 (quoting Panel Report, para. 7.165). WT/DS449/AB/R 
 
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  did not act inconsistently with Article X:2 and to complete the analysis and find, instead, that 
Section 1 of PL 112-99 is inconsistent with Article X:2 of the GATT 1994.37 
2.1.1  Interpretation and applicatio n of Article X:2 of the GATT 1994 
2.2.  China takes issue with the Panel's interpreta tion that the "practice" of a government agency 
must be the baseline of comparison for determin ing whether a newly published measure of general 
application effects an "advance" in a rate of duty or imposes a "new or more burdensome" requirement or restriction on imports. In China's view, there is no genuine interpretative support 
for the aforementioned conclusion.
38 
2.3.  China argues that the Panel erred in finding that the phrase "under an established and 
uniform practice" defines the relevant baseline of comparison under Article X:2 of the GATT 1994, because, based on its ordinary meaning and its location within the first clause of Article X:2, it is 
clear that this phrase qualifies the immediately preceding reference to "measure[s] of general 
application … effecting an advance in a rate of duty or other charge on imports". China claims that it does not follow from the meaning of the term "advance" that the phrase "under an established 
and uniform practice" defines the relevant baseline of comparison for purposes of determining 
whether a measure effects an "advance in a rate of duty". There is no textual, interpretative, or grammatical basis for this phrase to refer to the baseline or define the relevant prior rate against 
which the impugned measure could be compared. Ch ina believes that doing so would amount to 
inserting words into Article X:2 that are simply not there. 
2.4.  In China's view, the phrase "under an established and uniform practice" describes a further 
characteristic of the measure that is being challenged and, in particular, how the measure must 
effect an advance in a rate of duty or other charge on imports – namely, "under an established 
and uniform practice". China observes that this  was also the understanding of the panel in EC – IT 
Products , which found that the phrase "under an esta blished and uniform practice" modifies both 
"advance in a rate of duty" and "other charge on imports", and means that these must be applied 
in the whole customs territory ("uniform") and that its application should be on a secure basis ("established").
39 
2.5.  China notes that the phrase "under an established and uniform practice" reads in French 
"en vertu d'usages établis et uniformes " and in Spanish " en virtud del uso establecido y uniforme ". 
China points out that " en vertu de " and " en virtud de " can be translated into English as "by virtue 
of" or "as consequence of". The term "by virtue of" also suggests that the phrase "under an 
established and uniform practice" describes how the measure of general application must effect an 
advance in a rate of duty or other charge on imports, in order to fall within the scope of 
Article X:2.40  
2.6.  According to China, "[t]he baselessness of  the Panel majority's interpretation is further 
demonstrated by the fact that the phrase 'under an established and uniform practice' has no textual connection to the second category of measures described by Article X:2, namely those 
measures of general application that 'impos[e] a new or more burdensome requirement, restriction 
or prohibition on imports, or on th e transfer of payments therefor'."
41 Instead, China contends, 
"the Panel appears to have concluded, without any interpretative basis whatsoever, that the phrase 'under an established and uniform practice' in the first clause of Article X:2 also serves to 
define the relevant baseline of comparison for the types of measures described by the second 
clause of Article X:2."
42 In China's view, this "makes no sense on its face", because, if the phrase 
"under an established and uniform practice" were meant to serve as the relevant baseline of 
                                               
37 China's appellant's submission, paras. 69 and 175. 
38 China's appellant's submission, para. 28. 
39 China's appellant's submission, para . 34 (referring to Panel Reports, EC – IT Products , paras. 7.1116, 
7.1119, and 7.1120). 
40 China's appellant's submission, para. 35. 
41 China's appellant's submission, para. 38. 
42 China's appellant's submissi on, para. 38. (fn omitted) WT/DS449/AB/R 
 
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  comparison under Article X:2 for both categories of measures, then it would not be attached 
grammatically to only one of the two types of measures that Article X:2 encompasses.43 
2.7.  According to China, the baseline of comparison under Article X:2 can only be discerned by 
interpreting Article X:2 in its context and in the light of the object and purpose of the GATT 1994. 
The "common thread" among the provisions of Ar ticle X is the requirement of publication of 
measures that serves to inform governments and traders of the rates, requirements, and restrictions that the importing Member will apply to different types of trade-related conduct.
44 
2.8.  China claims that, within the structure of  Article X, the types of measures subject to 
Article X:2 are a subset of the types of measures that a Member is required to publish promptly 
under Article X:1, and that, prior to the official publication of any measure subject to Article X:2, 
the previously applicable rate or requirement was necessarily one set forth in a measure of general 
application published in accordance to Article X:1. According to China, the relevant baseline to 
determine whether a measure of general application effects an advance in a rate of duty or imposes a new or more burdensome requirement is provided by the measure of general 
application that a Member is required to publish under Article X:1. Therefore, a newly published 
measure of general application effects an "advance" in a rate of duty or imposes a "new or more burdensome" requirement or restriction on imports in relation to this baseline. 
2.9.  This conclusion follows from the context of Article X as a whole and from the basic principles 
of notice and due process that Article X embodies. China observes that the principle of due process 
is fundamental to the security and predictability of the multilateral trading system. China further 
remarks that, in this way, Article X:2 ensures that governments and traders can rely upon 
published measures of general application, knowing that they will not be subjected to additional or 
more burdensome rates, requirements, or restri ctions until the importing Member publishes a new 
measure of general application. 
2.10.  In addition to the claim that the Panel e rred in identifying the baseline of comparison under 
Article X:2, China alleges that the Panel erred in identifying the point in time when the comparison between the measure at issue and the baseline of pr ior rates and requirements and restrictions is 
to be made.
45 China contends that the Panel erred in considering that the comparison under 
Article X:2 should be made in relation to the ra tes, requirements, and restrictions that existed 
prior to the enactment  of the measure at issue, and argues that such comparison should be made 
in relation to the rates, requirements, an d restrictions that existed prior to the enforcement  of the 
measure at issue.46 China points out that Article X:2 is concerned with the enforcement of certain 
types of measures prior to their of ficial publication, and that it is at the time of enforcement, not 
enactment, that the expectations of traders and governments are adversely affected by the failure 
to provide public notice of the relevant measure effecting such a change.47 
2.11.  In this dispute, China observes that the Panel found that Section 1 of PL 112-99 was 
enforced as of 20 November 2006, and contends that , in the light of that finding, the Panel should 
have compared the rates, requirements, and restrictions effected by the measure at issue in 
relation to those that existed prior to November 2006.48 China notes that this would be true even 
under the Panel's erroneous conclusion that the relevant baseline of comparison under Article X:2 is any "established and uniform practice". 
2.12.  In China's view, the Panel's interpretation of the relevant baseline of comparison in 
Article X:2 is inconsistent with the object and purp ose of ensuring the security and predictability of 
the multilateral trading system. China contends that the Panel's interpretation of Article X:2 as 
requiring a comparison of the measure at issue with an established and uniform practice would 
render Article X:2 inutile. In China's view, if th e baseline of comparison was "an established and 
uniform practice", then Article X:2 would be deprived of its useful effect, because a Member could 
escape the obligation in Article X:2 by enforcing a measure through an established and uniform 
                                               
43 China's appellant's submission, para. 39. 
44 China's appellant's submission, para. 43. 
45 China's appellant's submission, para. 50. 
46 China's appellant's submission, paras. 50 (referring to Panel Report, para. 7.168) and 51. 
47 China's appellant's submission, para. 51 (referring to Panel Report, para. 7.157). 
48 China's appellant's submission, para. 53 (referring to Panel Report, para. 7.122). WT/DS449/AB/R 
 
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  practice before enacting it, so that it could no longer be considered an "advance in a rate of duty". 
In other words, the act of enforcing a measure of general application before publication, which is what Article X:2 prohibits, "would constitute proof that no violation of Article X:2 has occurred".
49 
2.13.  China argues that an "absurd result" of th e Panel's interpretation of Article X:2 would be 
that "the only circumstance in which Article X:2 could be violated is if a Member were to publish a 
measure of general application that retroactively increases rates of duty or imposes new or more burdensome requirements or restrictions on imports, without any prior 'practice' of applying those 
rates, restrictions, or requirements".
50 In China's view, while a measure that retroactively 
increases the rates of duty "out of the blue" is undoubtedly a violation of Article X:2, this is by no means the only circumstance in which Article X:2 can be violated according to its terms.
51 China 
contends that, "[b]y severing any connection between Article X:2 and previously published 
measures of general application, the Panel majority's interpretation of Article X:2 would make it 
impossible for governments and traders … to engage in trade with the importing Member on a secure and predictable basis."
52 
2.14.  Finally, China remarks that the absurdity of the interpretation adopted by the Panel majority 
is illustrated by question No. 94 that the Pane l posed following the second substantive meeting 
with the parties.53 Question No. 94 posits a hypothetical scenario where, on 1 January 2013, 
country A's customs authorities start collecting duti es on a product at the rate of 2x%, although 
the published rate is x%. On 1 June 2013, country A's Minister of Finance signs an order to raise 
the duty on this product to 2x% with an effectiv e date of 1 January 2013. In China's view, not to 
find a violation of Article X:2 under the hypothetical facts of question No. 94, because country A 
had an "established and uniform practice" of collecting duties at 2x%, would mean that the 
conduct that Article X:2 seeks to prohibit – i.e. the enforcement of a measure of general 
application effecting an advance in a rate of duty prior to its official publication – would constitute 
a basis for finding that there was no violation of Article X:2. Moreover, China contends that the 
hypothetical facts of question No. 94 demonstrate not only that an agency's practice cannot serve as the baseline of comparison under Article X:2, but also that the relevant point in time to 
undertake such comparison is the date of enforcement of the measure, not its date of enactment. 
2.15.  In respect of the application of Article X:2 to the facts of this dispute, China contends that, 
having misinterpreted Article X:2, the Panel then erred in finding that: (i) Section 1 does not effect an "advance" in a rate of duty or other charge on imports in relation to an "established and 
uniform practice", which according to the Panel was the USDOC's practice of applying 
countervailing duties to NME countries
54; and (ii) Section 1 does not impose a "new or more 
burdensome" requirement, restriction, or prohibition on imports in relation to this established and 
uniform practice.55 China, thus, claims that the Panel erred in finding that the United States did 
not act inconsistently with Article X:2 of the GATT 1994, notwithstanding the Panel's finding that 
the United States had enforced Section 1 prior to the date of its official publication.56 
Consequently, China claims that, because the Panel's findings concerning the consistency of 
                                               
49 China's appellant's submission, para. 56. 
50 China's appellant's submission, para. 57. 
51 China's appellant's submission, para. 58. 
52 China's appellant's submission, para. 66. 
53 Panel question No. 94 reads: 
Assume that Country A's unbound tariff rate on a certain product is x%, and that it has been 
published properly in its official gazette. On  January 1, 2013, Country A's customs authorities 
start collecting customs duties on this product at the rate of 2x%, although the published tariff rate is x%, and in spite of protests by importers of the product in question. On June 1, 2013, Country A's Minister of Finance signs an order to raise the duty on this product to 2x% with an 
effective date of January 1, 2013. The order, which is within his authority under the laws of Country A, is published promptly on the same da y that it was signed. Wo uld Country A's actions 
be consistent with GATT Articles X:1 and X:2? 
54 China's appellant's submission, para. 68 (ref erring to Panel Report, paras. 7.189-7.191). 
55 China's appellant's submission, para. 68 (ref erring to Panel Report, paras. 7.206-7.208).  
56 China's appellant's submission, para. 68 (ref erring to Panel Report, para. 8.1.b.ii). WT/DS449/AB/R 
 
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  Section 1 of PL 112-99 with Article X:2 of the GATT 1994 were based on the Panel's 
misinterpretation of that provision, the A ppellate Body must reverse these findings.57 
2.1.2  Article 11 of the DSU 2.16.  In support of its claim under Article 11 of the DSU, China argues, first, that the Panel did 
not apply the standard set out by Appellate Body jurisprudence for determining the meaning of 
municipal law.
58 In China's view, the failure to apply this standard would "constitute an error of 
law under Article 11, just as the failure to apply the correct standard of review constitutes an error 
of law".59 According to China, the Panel should have examined the relevant provisions of the 
US Tariff Act, including the text of Section 1 of PL 112-99 in relation to the prior version of the US Tariff Act that it amended. China contends that  "[t]he Panel majority's failure to examine the 
text of the relevant legal instruments would clearly be material to the validity and objectivity of its 
findings".
60 
2.17.  Moreover, China takes issue with the Pane l's conclusion that an agency's "practice or 
interpretation" is "presumptively lawful" unless and until a domestic court issues a final, 
non-appealable order directing the agency to cease that practice or interpretation. In China's view, 
"[t]his 'presumption' finds no support in prior Appellate Body reports or in established methods for determining the meaning of municipal law".
61 If accepted, this "presumption of lawfulness" would 
amount to giving deference to a Member's characterization of its own municipal laws, a proposition 
that prior panels have properly rejected.62 
2.18.  Finally, China contends that the Panel failed to acknowledge that, on the basis of the text of 
the relevant legal instruments, China had established a prima facie  case that prior US municipal 
law did not provide for the application of counterva iling duties to imports from NME countries. In 
China's view, "[t]he Panel majority's rule of 'presu mptive lawfulness' amounted  to a reversal of the 
burden of proof, [as it] absolve[d] the United States of its obligation to rebut the prima facie  case 
that China had established."63 On this basis, China requests the Appellate Body to reverse these 
findings and not rely on them for the purpose of completing the analysis under Article X:2 of the GATT 1994. 
2.19.  China observes that the United States may contend on appeal that the Panel majority's 
finding that the USDOC's "practice" was "presumpti vely lawful" as of the date of enactment of 
Section 1 is somehow relevant to the Appellate Body's completion of the analysis under a correct interpretation of Article X:2 of the GATT 1994. Ch ina disagrees with any such characterization of 
the Panel's findings – in paragraphs 7.158-7.186 of the Panel Report – and argues that, if the 
Appellate Body were to conclude that the Panel ma de any findings relating to the status of prior 
US municipal law, it would need to reverse these findings based on the Panel's failure to comply 
with Article 11 of the DSU.
64 
2.1.3  China's request for completion of the analysis 2.20.  China requests the Appellate Body to comp lete the analysis and find that Section 1 of 
PL 112-99 is inconsistent with Article X:2 of th e GATT 1994. In particular, China considers that the 
Appellate Body should examine whether Section 1 had any of the effects described in Article X:2 in relation to prior US municipal law, as set forth in the published measures of general application. In order to complete the analysis, the Appellate Body should rely on the Panel's factual findings or 
                                               
57 China's appellant's submission, para. 69 (referring to Appellate Body Reports,  US – Anti-Dumping and 
Countervailing Duties (China) , para. 340; US – Softwood Lumber IV , para. 121; and India – Additional Import 
Duties , para. 182). 
58 China's appellant's submission, para . 93 (quoting Appellate Body Report, US – Carbon Steel , 
para. 157). 
59 China's appellant's submission, para. 93 (referring to Appellate Body Reports, US – Countervailing 
Investigation on DRAMS , para. 187; and US – Continued Suspension , para. 615). 
60 China's appellant's submission, para. 94. 
61 China's appellant's submission, para. 95 (quoting Panel Report, para. 7.165). 
62 China's appellant's submission, para . 95 (referring to Panel Reports, US – 1916 Act (EC) , para. 6.51; 
and EC – Trademarks and Geographical Indications (Australia) , para. 7.106). 
63 China's appellant's submission, para. 97. 
64 China's appellant's submission, paras. 89 and 90. WT/DS449/AB/R 
 
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  undisputed facts in the Panel record to determin e whether Section 1 effected an "advance" in a 
rate of duty or other charge on imports under an "established and uniform practice" or imposed a "new or more burdensome" requirement, restriction, or prohibition on imports from China. China notes that, as the Panel found that Section 1 of PL 112-99 is a "measure of general application" 
taken by the United States, and that the United States "enforced" this measure prior to its official 
publication, "there is no need for the Appellate Body to examine those elements of China's claim 
under Article X:2".
65 
2.21.  According to China, completing the analysis  will require the Appellate Body to examine the 
text of the measure at issue – Section 1 of PL 1 12-99 – in relation to the rates, requirements, and 
restrictions that were previously applicable under US law as set forth in the published measures of general application. In China's view, "[t]his is … a determination as to the meaning of 
U.S. municipal law prior to the enforcement of Section 1 as of 20 November 2006."
66 It is in 
relation to this baseline of prior municipal law that the Appellate Body should evaluate whether Section 1 effected an "advance" in a rate of duty or other charge on imports, or imposed a "new or 
more burdensome" requirement or restriction on imports from China. 
2.22.  China argues that the Panel made no findings concerning the relationship between Section 1 
and the rates, requirements, and restrictions that were applicable to imports from China pursuant 
to the published measures of general application prior to the enforcement of Section 1. Rather, 
based on its erroneous conclusion regarding the relevant baseline of comparison under Article X:2, the Panel considered that its application of Article X:2 required two principal inquiries: (i) whether the USDOC had an "established and uniform practice " of applying countervailing duties to imports 
from China prior to the enactment of Section 1; and (ii) whether this practice, if it existed, was 
"lawful" under the municipal law of the United States at the time that Section 1 was enacted.
67  
2.23.  According to China, in determining whether the USDOC's practice was lawful before the 
enactment of Section 1, the Panel considered that, absent a determination that certain agency 
practice has been judicially determined to be unl awful by a domestic court, that agency practice 
should be regarded as "presumptively lawful".68 In China's view, under the rule of "presumptive 
lawfulness", the Panel made clear that, "even if an examination of the text of Section 1 led to the 
conclusion that it 'added something to United States [countervailing duty (CVD)] law that it did not already contain', and even if 'it could be inferred from this that USDOC's relevant practice rested on an incorrect interpretation of United States CV D law as it stood at the time', the Panel majority 
would nonetheless accept the USDOC's 'practice' as the relevant baseline of comparison under 
Article X:2".
69 The Panel's analysis of whether the USDOC's practice was "lawful", and its finding 
that it was "presumptively lawful", are "inextrica bly bound up" with its erroneous interpretation of 
Article X:2.70 Thus, China requests the Appellate Body to declare the Panel's findings, in 
paragraphs 7.158 through 7.186 of the Panel Report, moot and of no legal effect.71 
2.24.  China indicates that, although the Panel majority did not make factual findings concerning 
the effects of Section 1 in relation to the rates, requirements, and restrictions established under 
prior US municipal law as of the date of enforc ement, the undisputed facts in the Panel record 
provide more than a sufficient basis for the Appellate Body to complete the analysis.72 China notes 
that these undisputed facts lead to the same result whether the comparison is made as of the date 
on which Section 1 was enforced (20 November 2006), or as of the date on which it was enacted 
and officially published (13 March 2012). The undisputed facts in the Panel record lead to the same result regardless of the date, "because U.S. law, as set forth in published measures of general 
                                               
65 China's appellant's submission, para. 71. 
66 China's appellant's submission, para. 72. 
67 China's appellant's submission, para. 78 (referring to Panel Report, para. 7.168). 
68 China's appellant's submission, para. 83 (quoting Panel Report, para. 7.165). 
69 China's appellant's submission, para. 85 (quoting Panel Report, para. 7.184). 
70 China's appellant's submission, para. 88. 
71 China's appellant's submission, para. 88. 
72 China's appellant's submission, paras. 74 and 75. Ch ina argues that the Panel majority undertook no 
analysis of the text of Section 1 in relation to the previously published measure of general application that it amended, and the Panel majority's findings concerning the "lawfulness" of the USDOC's "relevant practice or 
interpretation" will not assist the Appellate Body in its completion of the analysis. (Ibid., para. 74) WT/DS449/AB/R 
 
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  application, did not provide for the application of countervailing duties to imports from [NMEs] at 
any point prior to the enactment and official publication of Section 1."73 
2.25.  China maintains that an evaluation of whet her Section 1 had either or both of the types of 
effects described in Article X:2 must begin with an examination of the text of Section 1 in relation 
to the text of the prior law that it amends. Sect ion 1, by its terms, amends the prior version of 
Section 701 of the US Tariff Act (i.e. the provis ion of US law relating to the application of 
countervailing duties). In China's view, an examination of the text of both legal instruments 
reveals that, "[i]f the purpose of P.L. 112-99 was 'to apply the countervailing duty provisions of 
the Tariff Act of 1930 to [NME] countries', it must be the case that those provisions previously did not apply to [NMEs], at any point in time."
74 
2.26.  China highlights that this is further su pported by the text and structure of the new 
Section 701(f), which establishes that countervailing duties "shall be imposed" on imports from 
NME countries pursuant to the USDOC's general countervailing duty authority under Section 701(a) of the US Tariff Act.
75 Moreover, the introduction of an express exception to this 
provision further supports the view that US countervailing duty law did not previously apply to 
imports from NME countries. In this respect, China observes that, "[i]f subsection 701(a) had 'always' provided for the application of countervailing duties to imports from [NME] countries, as 
the United States repeatedly contended before the Panel, then the only new provision of law 
established by Section 1 … would have been the 'exception' for economies 'essentially comprised of a single entity'."
76 China adds that "[t]he final – and conclusive – textual element of Section 1 in 
relation to the prior provision of law that it amended is its expressly retroactive effective date".77 
In China's view, "[t]he only conceivable purpose for making a statutory amendment retroactive is 
to change the law as it existed in the past."78 
2.27.  China argues that these textual elements of PL 112-99 are sufficient to establish a prima 
facie case that Section 1 has the types of effects described by Article X:2. Regarding the first type 
of measure encompassed by Article X:2, Section 1 "effect[ed] an advance in a rate of duty or 
other charge on imports under an established and uniform practice", because it subjected imports 
from China to the imposition of countervailing duties, when previously those imports were not 
subject to those duties under US law as long as China was designated as an NME country. China further contends that PL 112-99 also imposed a "new or more burdensome" requirement or restriction on imports because, contrary to the situation prior to the enforcement of Section 1, it 
makes imports from NME countries subject to the initiation and conduct of countervailing duty 
investigations, as well as to the potential imposition of countervailing duties.
79 
2.28.  China asserts that the United States' only response to China's prima facie  case before the 
Panel was that "Section 1 did no more than 'clarify' what Section 701 of the Tariff Act had 'always' 
meant."80 China considers that the United States' "cla rification" theory, even if proven, would not 
have rebutted China's prima facie  case. This is because "the enactment and official publication of 
Section 1 had a 'demonstrable link' with the impo sition of countervailing duties on imports of 
p r o d u c t s  f r o m  C h i n a  ( i . e .  a n  ' a d v a n c e  i n  a  r a t e  o f  d u t y  o r  o t h e r  c h a r g e  o n  i m p o r t s ' ) " .81 The 
"demonstrable link" between Section 1 and the imposi tion of countervailing duties on imports from 
China is that PL 112-99 was enacted "in direct re sponse" to the 2011 decision of the United States 
Court of Appeals for the Federal Circuit (CAFC) in the GPX International Tire Corporation case82 
(GPX V ).83 
                                               
73 China's appellant's submission, para. 100. 
74 China's appellant's submission, para. 104. 
75 China's appellant's submission, para. 105. 
76 China's appellant's submission, para. 106. (emphasis original) 
77 China's appellant's submission, para. 108. 
78 China's appellant's submission, para. 109. 
79 China's appellant's submission, paras. 110-112. 
80 China's appellant's submission, para. 113. 
81 China's appellant's submission, para. 116 (referring to Panel Reports, EC – IT Products , 
para. 7.1105). 
82 United States Court of Appeals for the Federal Circuit, GPX International Tire Corporation v. 
United States, 666 F.3d 732 (Fed. Cir. 2011) (Panel Exhibit CHI-6). 
83 China's appellant's submission, paras. 117 and 118. WT/DS449/AB/R 
 
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  2.29.  In China's view, the 2012 decision of the CAFC in GPX VI 84 further supports this position as 
it "made clear that the only reason for altering the outcome of GPX V  was the intervening 
enactment of P.L. 112-99 by Congress".85 China contends that, in any event, the United States 
failed to prove its "clarification theory" because it did not demonstrate that the facts and 
circumstances under which US courts have consid ered particular Congressional enactments to 
constitute "clarifying" legislation were present in the case of Section 1.86 Notwithstanding the 
failure of the United States to sustain its burden of proof, China argues that PL 112-99 bears none 
of the indicia that the courts have treated as crucial hallmarks of "clarificatory legislation".87 
2.30.  In addition, China claims that its prima facie  case, based on the text of relevant legal 
instruments, is confirmed by other sources of US  municipal law. Although China argues that the 
Appellate Body should complete the analysis based on the text of the relevant US legal 
instruments, because a contrary approach could amount to a reversal of the burden of proof, 
China adds that other sources of US municipal law confirm what is evident on the face of the legislation itself. China asserts that there are undisputed facts in the Panel record relating to two 
of these additional sources of US municipal law: "evidence of the consistent application of such 
laws", and "the pronouncements of domestic courts on the meaning of such laws".
88 
2.31.  China indicates that, in its 1986 decision in Georgetown Steel Corporation v. United States89 
(Georgetown Steel ), the CAFC reviewed the history and purpose of the US trade remedy laws and 
concluded that the countervailing duty provisions of these laws do not apply to imports from NME 
countries. According to China, in Georgetown Steel , the CAFC agreed with the USDOC that, in an 
NME country, the government is incapable of conferring subsidies in the sense of US countervailing 
duty law.90 
2.32.  Moreover, China maintains that, betw een 1986 and 2006, the US Congress "clearly 
understood" that the application of countervailing duties to imports from NME countries would 
require Congress to amend the US Tariff Act.91 After the CAFC's decision in Georgetown Steel , 
Congress considered on several occasions the enactment of new legislation to permit the application of countervailing duties to imports from NME countries. None of these initiatives, 
however, resulted in the enactment of new legislation.
92 In particular, China observes that, in 
connection with the Omnibus Trade and Competitiveness Act of 198893, the US House of 
Representatives passed a bill that would have amended the US Tariff Act to provide that US countervailing duty law would henceforth apply to imports from NME countries. The US Senate, 
however, did not pass a corresponding provision. As a result, the legislation that Congress finally 
enacted into law did not provide the USDOC with authority to apply countervailing duties to imports from NME countries.
94 China adds that, in connection with the passage of the Uruguay 
Round Agreements Act in 1994, Congress once again referred to the CAFC's decision in 
Georgetown Steel  and "noted that it stood for 'the reasonable proposition that the [countervailing 
duty] law cannot be applied to imports from [NME] countries'".95 In China's view, the US Congress 
provided no indication that it disagreed with the decision in Georgetown Steel , or that it had any 
intention of changing existing US trade remedy laws to permit the application of countervailing duties to imports from NME countries. 
                                               
84 United States Court of Appeals for the Federal Circuit, GPX International Tire Corporation v. 
United States, 678 F.3d 1308 (Fed. Cir. 2012) (Panel Exhibit CHI-7). 
85 China's appellant's submission, para. 119 (referring to GPX VI , p. 1310).  
86 China's appellant's submission, para. 123. 
87 China's appellant's submission, para. 124 (quoting Legal Opinion of Richard H. Fallon, Jr, Professor of 
Law, Harvard University (Panel Exhibit CHI-83), para. 41). 
88 China's appellant's submission, para. 132. 
89 United States Court of Appeals for the Federal Circ uit, Georgetown Steel Corporation v. United States, 
801 F.2d 1308, 1310 (Fed. Cir. 1986) (Panel Exhibit CHI-2). 
90 China's appellant's submission, para. 137 (referring to Georgetown Steel , p. 1316). 
91 China's appellant's submission, para. 165. 
92 China's appellant's submission, para. 141. 
93 Omnibus Trade and Competitiveness Act of 1988,  Pubic Law No. 100-418, 102 Stat. 1107 (23 August 
1988) (Panel Exhibit USA-96). 
94 China's appellant's submission, para. 142. 
95 China's appellant's submission, para. 143 (refe rring to Statement of Administrative Action 
accompanying the Uruguay Round Agreements Act, HR Doc. No. 103-316, Vol. 1 (1994), p. 926, as contained in GPX V , p. 743). WT/DS449/AB/R 
 
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  2.33.  Regarding "evidence of the consistent application" of US municipal law, China argues that 
the undisputed facts in the Panel record demonstrate that, prior to 20 November 2006, the USDOC did not apply countervailing duties to imports from NME countries.
96 For instance, in 1998, the 
USDOC promulgated a set of countervailing duty  regulations to implement the Uruguay Round 
Agreements Act, where, citing the decision in Georgetown Steel , the USDOC stated that it would 
only apply countervailing duties to subsidies conferred after the date on which the USDOC designated a particular country as a market economy.
97 In addition, China notes that, in 
October 2006, anti-dumping and countervailing duty petitions were filed with the USDOC 
concerning coated free sheet (CFS) paper from China.98 According to China, the USDOC initiated 
the countervailing duty investigation in CFS paper from China99 (CFS Paper ) on 20 November 2006 
and subsequently issued a final affirmative countervailing duty order100, notwithstanding its 
inconsistency with existing US law, in particular, with the decision in Georgetown Steel  and the 
USDOC's 1998 Countervailing Duty Regulations.101  
2.34.  China further contends that there is no evidence in the Panel record demonstrating a 
"consistent application" by the USDOC of US countervailing duty law.102 Indeed, "looking at the 
period from 1986 to 2012, the USDOC applied the Tariff Act in an inconsistent  manner: in the 
20-year period from 1986 to 2006, it did not apply the countervailing duty provisions of the Tariff 
Act to imports from [NME] countries" and "in the six-year period from 2006 to 2012 it changed 
course and began to apply [them]".103 
2.35.  China further submits that the USDOC's deci sion to begin applying countervailing duties to 
imports from China resulted in a wave of join t anti-dumping and countervailing duty petitions 
directed against Chinese products, which were challenged in US courts by China and other 
interested parties. China points out that the first of these challenges decided by the CAFC was the GPX V  decision issued in 2011, where it "reaffirmed its prior holding in Georgetown Steel  that the 
Tariff Act did not permit the imposition of countervailing duties on imports from countries that the 
United States designates as [NMEs]."
104 Subsequently, the US Congress enacted PL 112-99 on 
13 March 2012 to create a new Section 701(f) of the US Tariff Act, which provides that 
countervailing duties "shall be imposed" on imports from NME countries subject to the exception 
for imports from countries whose economies are "essentially comprised of a single entity". One day after the enactment of PL 112-99, the CAFC issued a letter to the parties in the GPX litigation 
directing them "to make submissions 'commenting on the impact of this legislation on further 
proceedings in this case.'"
105 On 9 May 2012, while the case was still pending before it, the CAFC 
issued its decision in GPX VI . According to China, in GPX VI , the CAFC restated its prior holding in 
GPX V  that, prior to Section 1, "countervailing duties [could not] be applied to goods from NME 
countries", and ultimately concluded that PL 112-99 could be applied retroactively to sustain the 
imposition of countervailing duties on the products at issue.106 
2.36.  China observes that, following the CAFC's decision in GPX VI , there remained certain 
unresolved issues concerning the constitutionality of Section 1, which were challenged by 
interested Chinese parties. In particular, China points out that the issue of whether the GPX V  
decision was an authoritative statement of US law prior to the enactment of Section 1 was 
                                               
96 China's appellant's submission, para. 164. 
97 China's appellant's submission, para. 144 (referring to USDOC, Countervailing Duties: Final Rule, 
United States Federal Register , Vol. 63, No. 227 (25 November 1998), pp. 65348-65360 (Panel Exhibit 
CHI-14)). 
98 China's appellant's submission, para. 148 (referring to United States Court of International Trade, 
Government of the People's Republic of China v. United States, 483 F. Supp. 2d 1274 (CIT 2007) (Panel Exhibit USA-28)). 
99 USDOC, Notice of Initiation of Countervailing Duty Investigations: Coated Free Sheet Paper From the 
People's Republic of China, Indone sia, and the Republic of Korea, United States Federal Register , Vol. 71, 
No. 227 (27 November 2006), pp. 68546-68549 (Panel Exhibit USA-23). 
100 USDOC, Coated Free Sheet Paper from the Peop le's Republic of China: Final Affirmative 
Countervailing Duty Determination, United States Federal Register , Vol. 72, No. 206 (25 October 2007), 
pp. 60645-60648 (Panel Exhibit USA-27). 
101 China's appellant's submission, paras. 148 and 149. 
102 China's appellant's submission, para. 166. 
103 China's appellant's submission, para. 166. (emphasis original) 
104 China's appellant's submission, para. 152. See also ibid., paras. 168 and 169. 
105 China's appellant's submission, para. 156 (quoting GPX VI , p. 1311). 
106 China's appellant's submission, para. 157 (quoting GPX VI , p. 1310). WT/DS449/AB/R 
 
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  resolved by the CAFC in Guangdong Wireking Hous ewares & Hardware Co. Ltd. v. United States 
(Wireking ), a "decision" issued on 18 March 2014. China asserts that, in Wireking , the CAFC 
rejected the proposition that its decision in GPX V  was not an authoritative statement of US law 
prior to the enactment of Section 1.107 China observes that the Wireking  decision was issued after 
the issuance of the Panel Report in this dispute, and therefore does not constitute part of the Panel 
record. However, China considers it appropriate to advise how this issue has since been resolved by the CAFC, because this decision is publically available and the Panel explicitly referred to the 
ongoing Wireking  litigation as a reason for not resolving whether the decision in GPX V  was an 
authoritative statement of the law.
108 
2.37.   On this basis, China requests the Appella te Body to complete the analysis based on the 
undisputed facts in the Panel record and find that Section 1 of PL 112-99 is inconsistent with 
Article X:2 of the GATT 1994.109 In the alternative, China argues that, if the Appellate Body were 
to complete the analysis following the Panel's inte rpretation of Article X:2, then the comparison 
m u s t  b e  m a d e  a s  o f  t h e  t i m e  o f  e n f o r c e m e n t  o f  S e c t i o n  1  a n d  n o t  a s  o f  t h e  t i m e  o f  i t s  
enactment.110 China indicates that the Panel found that the date of enforcement of Section 1 was 
20 November 2006.111 According to China, the undisputed facts in the record demonstrate that, 
prior to 20 November 2006, the USDOC did not have an "established and uniform practice" of 
applying countervailing duties to imports from NME countries. Thus, Section 1 effected an 
"advance" in a rate of duty, and imposed a "new or more burdensome" requirement or restriction 
on imports, in relation to the USDOC's "pract ice or interpretation" prior to 20 November 2006. 
Accordingly, China requests the Appellate Body to find that Section 1 of PL 112-99 is inconsistent 
with Article X:2 of the GATT 1994, even if it ad opts the Panel majority's interpretation of the 
relevant baseline of comparison.112 
2.2  Arguments of the United States – Appellee 
2.38.  The United States responds that the Panel was correct in finding that China failed to 
establish that Section 1 of PL 112-99 is inconsistent with Article X:2 of the GATT 1994. Accordingly, the United States requests the Appellate  Body to reject the claims of error by China in 
all respects.
113 
2.2.1  Interpretation and applicatio n of Article X:2 of the GATT 1994 
2.39.  The United States responds that the phrase "under an established and uniform practice" in 
Article X:2 of the GATT 1994 defines the relevant rate that was previously applicable to the 
imports at issue. The Panel interpreted this phrase based on "the ordinary meaning of the text of 
that article and in a manner that would prevent th e term from being redundant with or contradict 
the meaning of the term 'measure of general application'".114 
2.40.  The United States argues that, if this phrase were not read in this way, there would have 
been no need to insert the phrase "under an established and uniform practice" in Article X:2, because the terms "of general application" and "established and uniform" would be redundant if, 
as argued by China, they all defined the measure at issue. The United States contends that the 
terms "general application" and "uniform" both convey the meaning that "the measure or practice should be similarly applied to a whole class of imports rather than to a specific subset of imports or traders."
115 Moreover, China's reading of "established" as modifying the measure of general 
application would "introduce a gap in time before a breach of Article X:2 could be established", 
because a relevant advance in a rate of duty could only result if the Member was already enforcing the measures at issue, such as to bring about an "established" practice for some time.
116 
Accordingly, the United States concludes that th e Panel was correct in finding that the phrase 
                                               
107 China's appellant's submission, para. 160. 
108 China's appellant's submission, para. 162 (referring to Panel Report, fn 303 to para. 7.181). 
109 China's appellant's submission, para. 175. 
110 China's appellant's submissi on, heading V.D, at p. 56. 
111 China's appellant's submission, para. 172 (referring to Panel Report, para. 7.122). 
112 China's appellant's submission, para. 175. 
113 United States' appellee's submission, para. 202. 
114 United States' appellee's submission, para. 30. 
115 United States' appellee's submission, paras. 31 and 60. 
116 United States' appellee's submission, para . 60 (referring to Panel Report, para. 7.156). WT/DS449/AB/R 
 
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  "under an established and uniform practice" modifies the terms "rate of duty" and "other charge", 
such that the relevant baseline of comparison under Article X:2 is the rate of duty or other charge 
established under the previous "established and uniform practice".117 
2.41.  The United States contends that an "established and uniform practice" could lead to 
legitimate expectations that could be relied up on by traders. If such practice becomes more 
restrictive, Article X:2 requires Members to publish officially the measure of general application before its enforcement. In contrast, a trader could not rely on a one-off duty assessment or an 
inconsistent application of a rate of duty, because such singular transactions would not allow for a 
fair or equivalent comparison to a measure of general application.
118 
2.42.  The United States further contends that the Panel gave proper meaning to the word 
"practice" in Article X:2, when it found that it included the actual published practice of the USDOC 
in determining the rates of duty on the imports at issue.119 The United States notes that this is 
consistent with the Appellate Body's interpretation, in Japan – Alcoholic Beverages II , of the word 
"practice" as "a 'concordant, common and consistent' sequence of acts or pronouncements which 
is sufficient to establish a discernible pattern".120 In contrast, the United States argues that, if, as 
China contends, the measure of general application effects the advance in the duty "under an established and uniform practice", then the provision should read " through  an established or 
uniform practice" to indicate that it is the "advance " that is being modified and not the rate of duty 
or other charge.
121 In this respect, the United States is of the view that China's interpretation 
would read the word "practice" out of Article X:2,  because it would be subsumed by the scope of 
the measure of general application.122 
2.43.  The United States thus argues that, taken as a whole, the phrase "under an established and 
uniform practice" means (i) a "'discernible pattern' of  a sequence of acts" ("practice") (ii) that has 
"been securely in place for some time" ("established") and (iii) that "stays the same in different 
places or circumstances or at different times" ("uniform").123 
2.44.  The United States considers that the Panel correctly determined that the finding of the panel 
in EC – IT Products  that an "'advance in a rate of duty' must be under an 'established and uniform 
practice'" does not support China's claim.124 The United States argues that, when viewed in 
context, the focus of the EC – IT Products  panel's analysis was on whether the phrase "under an 
established and uniform practice" qualified only the term "other charge", or both the terms "other 
charge" and "rate of duty". The panel in EC – IT Products  did not analyse the term "advance" in 
relation to the phrase "under an established and uniform practice". Moreover, in the United States' 
view, this finding reveals a "clear and unexplained leap in logic" and is not persuasive, because, while the relationship between "rate of duty" an d "other charge" may support an interpretation 
that "under an established and uniform practice" applies to both terms, there is no reason to 
assume, as the panel in those disputes did, that this means that "under an established and uniform practice" modifies the term "advance".
125 
2.45.  Turning to the phrase "new or more burdensome requirement [or] restriction", the 
United States argues that the Panel properly determined, based on the ordinary meaning of 
Article X:2, that "a new or more burdensome requirement or restriction on imports is one that has not previously been imposed ('new') or one that is  of the nature of a burden in a greater degree, 
or is onerous to a greater extent ('more burdensome')."
126 Contrary to China's arguments, the 
                                               
117 United States' appellee's submission, para . 61 (referring to Panel Report, para. 7.157). 
118 United States' appellee's submission, para . 62 (referring to Panel Report, para. 7.110). 
119 United States' appellee's submission, para. 65 (r eferring to Panel Exhibit USA-119, comprising a 
table setting out the Administrative Notice to the Go vernment of China and to Chinese Producers/Exporters 
Regarding Application of U.S. CVD Laws to China). 
120 United States' appellee's submission, para. 66 (quoting Appellate Body Report, Japan – Alcoholic 
Beverages II , p. 13, DSR 1996:I, p. 106). 
121 United States' appellee's submission, para. 68. 
122 United States' appellee's submission, para. 68. 
123 United States' appellee's submission, para. 66. 
124 United States' appellee's submission, para. 80 (quo ting Panel Report, fn 238 to para. 7.155, in turn 
referring to Panel Reports, EC – IT Products , para. 7.1116). 
125 United States' appellee's submission, para. 82. 
126 United States' appellee's submission, pa ra. 94 (quoting Panel Report, para. 7.200). WT/DS449/AB/R 
 
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  Panel did not insert the phrase "under an establ ished and uniform practice" into this clause of 
Article X:2. Rather, based on the plain text and context of Article X:2, "the Panel properly determined that it could consider the 'public ly known practice of agencies charged with 
administering a relevant requirement or restriction on imports.'"
127 
2.46.  Thus, according to the United States, the Panel did not interpret the phrase "new or more 
burdensome requirement [or] restriction" as inco rporating the phrase "under an established and 
uniform practice". The Panel considered that the same analytical approach, but not the same legal 
standard, should be used to determine whether a relevant change has occurred with respect to 
both categories of measures under Article X:2. Accordingly, the Panel properly found that the terms "new" or "more burdensome" require a comparison, and that such comparison should be between the prior requirement or restriction on im ports and the requirement or restriction imposed 
by the measure at issue.
128 
2.47.  The United States claims that the Panel was correct in considering that, when examining 
what is a pre-existing "restriction" or "requirement", it is necessary to consider the treatment of 
imports under a Member's domestic legal regime, and argues that the Panel properly concluded 
that, "in the context of an analysis involving United States law", a requirement or restriction on imports may be assessed with reference to an administering agency's interpretation and 
application of domestic law.
129 The United States also points out that the immediate context of 
Article X:2 reflects the relevance of agency action. In this respect, Article X:1 lists the measures of "general application" that fall within its scope as "[l]aws, regulations, judicial decisions and 
administrative rulings of general application". 
2.48.  In respect of China's argument that the Panel erred in determining the time-frame for 
comparison by reference to the time of enactment rather than to the time of enforcement, the United States responds that the Panel did not find that Section 1 was enforced on 20 November 
2006, but it properly found that no actions were taken by the United States to enforce Section 1 
prior to 13 March 2012. Thus, according to the United States, even under China's approach that the baseline of comparison should be as of the ti me of enforcement of the challenged measure of 
general application, that date would still be 13 March 2012. 
2.49.  Regarding China's argument that Panel qu estion No. 94 illustrates the "absurdity" of the 
Panel majority's interpretation, the United States  r e s p o n d s  t h a t  i t  d o e s  n o t  c o n s i d e r  t h a t  t h e  
hypothetical of question No. 94 is relevant to the dispute at issue, because US law prior to 
Section 1 had never been that the USDOC was prohibited from applying US countervailing duty law 
to NME countries. Moreover, the United States contends that the Panel did not interpret Article X:2 as allowing for "any" established and uniform prac tice of an administering agency to serve as a 
relevant baseline. Rather, under the hypothetical of question No. 94, a panel would not have to 
accept "any" practice of Country A's administering authority, but may evaluate whether such practice was lawful based on the facts of the hypothetical set out in question No. 94. In this 
regard, the United States remarks that the Panel correctly found that the USDOC's interpretation 
of US countervailing duty law was the governing interpretation of the US Tariff Act unless a court found otherwise in a final and binding judicial decision.
130 
2.50.  In respect of the application of Article X:2 to the facts of this dispute, the United States 
asserts that the Panel was correct in finding that China failed to establish that Section 1 is 
inconsistent with Article X:2 of the GATT 1994.131 In the United States' view, given that China's 
appeal is predicated on the Panel's alleged errors of interpretation, a rejection of these 
interpretation claims means that China's claims regarding the application of Article X:2 to the 
measure at issue should fail.132 
                                               
127 United States' appellee's submission, pa ra. 95 (quoting Panel Report, para. 7.203). 
128 United States' appellee's submission, para . 99 (referring to Panel Report, para. 7.201). 
129 United States' appellee's submission, para. 104 (referring to Panel Report, para. 7.203). 
130 United States' appellee's submission, para. 74 (r eferring to Panel Report, paras. 7.163 and 7.185). 
131 United States' appellee's submission, heading II, at p. 13 (referring to Panel Report, para. 7.211). 
132 United States' appellee's submission, para. 52. WT/DS449/AB/R 
 
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  2.51.  The United States argues that the Panel correctly applied to the facts of the case its 
interpretation of the phrase "under an estab lished and uniform practice". In particular, the 
United States contends that the Panel correctly determined that the term "practice" included the actual published practice of the USDOC in determ ining the rates of duty on the imports at issue.
133 
The United States observes that the Panel correctly found that, "between November 2006, or at 
least April 2007, and March 2012, there was indeed a USDOC practice with regard to the application of countervailing duties to imports from China as an NME country that was securely in 
place (established) and that did not change over time (uniform)."
134  
2.52.  The United States further claims that the Panel correctly applied to the facts of the case its 
interpretation of the phrase "new or more burdensome" requirement or restriction. The 
United States emphasizes that, in determining whether Section 1 imposed a "new or more 
burdensome" requirement or restriction, the Pane l did not examine whether prior requirements or 
restrictions imposed through the USDOC's applic ation of US law reflected an "established and 
uniform practice". Rather, the Panel indicated that it would use the same "analytical approach" 
under the first and second clauses of Article X:2 and, thus, it would compare the existing 
requirement or restriction on imports and the requirement or restriction imposed by the measure of general application.
135 
2.53.  Moreover, the United States contends that  the context of Article X:2 supports the Panel's 
examination of the USDOC's application of US countervailing duty law to China when determining whether Section 1 imposes a "new or more burdensome" requirement. In particular, the United States points out that the ordinary meaning of the term "administrative ruling" in 
Article X:1 would include the USDOC's application of US countervailing duty law to imports from 
China and the resulting determinations. Indeed, as  the USDOC's interpretation and application of 
US countervailing duty law could fall within the scope  of Article X:1, it would not be appropriate to 
exclude such application from Article X:2 in inquiring into a pre-existing restriction or requirement 
that may result from enforcement of  a measure of general application.
136 
2.54.  Finally, even assuming arguendo  that the phrase "under an established and uniform 
practice" modifies the measure at issue, the United States claims that the Panel did not err in 
considering the USDOC's existing practice as a baseline of comparison under Article X:2. The United States asserts that, "if the challenged measure at issue must establish requirements on the practice of an administering authority … in order to be a relevant measure under Article X:2, then 
by the same logic, the baseline of comparison sh ould also consider the practice of the same 
authority administering a previous measure of general application".
137 The Panel properly 
determined that the established and uniform practice before Section 1 was the USDOC's 
application of US countervailing duty law to imports from China and that such practice remained 
the same after the enactment of Section 1. Thus, the United States points out that Section 1 "did not effect an advance in the rate of duty that applied to imports from China".
138 In the 
United States' view, China has failed to demonstrate that, even under its own proposed approach 
to Article X:2, the Panel erred in considering the application by the USDOC of countervailing duties to China as the proper basis of comparison under Article X:2 of the GATT 1994. 
2.2.2  Article 11 of the DSU 
2.55.  The United States asserts that China's claims under Article 11 of the DSU are without merit, 
because China has failed to establish that the Panel's appreciation of the evidence amounts to a failure to make an objective assessment of the facts. Moreover, in the United States' view, China 
dresses a complaint that the Panel failed to draw a correct legal conclusion as a failure to make an 
                                               
133 United States' appellee's submission, para. 65 (ref erring to Panel Report, para. 7.163; and referring 
further to Panel Exhibit USA-119, comprising a table setting out the Administrative Notice to the Government of China and to Chinese Producer s/Exporters Regarding Application of U.S. CVD Laws to China). 
134 United States' appellee's submission, pa ra. 67 (quoting Panel Report, para. 7.169). 
135 United States' appellee's submission, paras. 100 and 101 (referring to Panel Report, para. 7.201). 
136 United States' appellee's submission, para. 108. 
137 United States' appellee's submission, para. 90. 
138 United States' appellee's submission, para. 92. WT/DS449/AB/R 
 
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  objective assessment. The Appellate Body has repeatedly held that the parties to a dispute "should 
not merely take alleged legal errors and recast them as claims of error under Article 11".139 
2.56.  The United States contends that, contrary to China's argument, the Panel did apply the 
approach set out by the Appellate Body in US – Carbon Steel140 by drawing on all of the "sources" 
that it considered relevant to make a determination of the meaning of US municipal law.141 The 
United States highlights that, after considering this evidence, "the Panel properly found that [the USDOC's] application of the U.S. CVD law was not a breach of U.S. municipal law".
142 The 
United States emphasizes that, as the Panel did apply the approach set out by the Appellate Body 
in US – Carbon Steel , China's claim under Article 11 relating to an alleged failure to apply the 
"correct" standard for determining the meaning of municipal law must fail.143 
2.57.  The United States disagrees with China that the Panel erred under Article 11 on the ground 
that the Panel allegedly failed to examine the text of the relevant legal instruments. According to 
the United States, China's "assertion is demonstrably erroneous"144, because "the Panel examined 
the text of the relevant provisions repeatedly in its report … despite the fact that China did not 
engage on the meaning of the 'text' of the existing  U.S. CVD law".145 Following the 
Appellate Body's guidance in US – Carbon Steel , the Panel also examined the consistent 
application of the law and pronouncements of dome stic courts. The United States disagrees with 
China's argument that, "when the GPX legislation is read in relation to Section 701(a) of the 
U.S. Tariff Act, 'it must be the case that thos e provisions previously did not apply to [NMEs]'".146 
The United States argues that, since the text of Section 701(a) does not even mention NME countries, it is difficult to sustain that it necessarily prohibits the application of countervailing 
duties to NME countries. As Section 701(a) contains no reference to NME countries, the 
US Congress clarified the provision by enacting PL 112-99 to eliminate any ambiguities.
147 
According to the United States, the Panel rejected China's argument and found that the USDOC's 
application of US countervailing duty law ha s never been unlawful and constituted binding 
US municipal law prior to the enactment of Section 1.148 Thus, the United States maintains that 
the Appellate Body should reject China's attempt to  reverse the Panel's factual findings "under the 
guise" of a claim under Article 11 of the DSU.149 
2.58.  Finally, the United States asserts that the fact that China disagrees with how the Panel 
weighed the evidence before it or that it rejected  China's arguments does not rise to a breach of 
Article 11.150 The determination of whether the municipal law or action is unlawful should be based 
on the status and meaning of those actions within the municipal legal system itself. Thus, "to the 
extent that China considers that the meaning of U.S. municipal law '[f]ollowing customary principles of international law' or under the Appellate Body's approach in US – Carbon Steel  would 
produce a different outcome than an approach applying principles of statutory interpretation under 
U.S. municipal law, the United States would disagree".
151 In addition, "to the extent that China is 
asserting that … the Appellate Body must follow a different approach to interpret the provisions of 
Section 701(a) in relation to [the USDOC's] application of the U.S. CVD law under a different 
standard than what would be used by a U.S. court, China's approach would produce an erroneous 
                                               
139 United States' appellee's submission, para. 117 (referring to Appellate Body Reports, EC – Fasteners 
(China) , para. 442; and Chile – Price Band System (Article 21.5 – Argentina) , para. 238). 
140 United States' appellee's submission, para. 119 (r eferring to Panel Report, para. 7.162, in turn 
referring to Appellate Body Report, US – Carbon Steel , para. 157). 
141 United States' appellee's submission, para. 119 (referring to Panel Report, paras. 7.162, 7.163, 
and 7.179). 
142 United States' appellee's submission, para. 116. 
143 United States' appellee's submission, para. 120. 
144 United States' appellee's submission, para. 121. 
145 United States' appellee's submission, para. 122 (r eferring to Panel Report, paras. 7.162 and 7.204). 
(emphasis original) 
146 United States' appellee's submission, para. 124 (quo ting China's appellant's submission, para. 104).  
147 United States' appellee's submission, para. 125. 
148 United States' appellee's submission, para. 126 (referring to Panel Report, para. 7.185). 
149 United States' appellee's submission, para. 128. 
150 United States' appellee's submission, para. 129 (referring to Appellate Body Report,  Chile – Price 
Band System (Article 21.5 – Argentina) , para. 229). 
151 United States' appellee's submission, para. 131 (q uoting China's appellant's submission, para. 73). 
(additional fn text omitted) WT/DS449/AB/R 
 
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  interpretation and result".152 Accordingly, the United States contends that an assessment of 
whether the pre-existing Section 701 "would produce a different rate of duty or restriction or requirement than the new [Section 1 of PL 112-99] … is a question of U.S. domestic law and can logically only be answered using the approach of the U.S. legal system".
153 The United States adds 
that the Appellate Body should not follow China's approach that "speculate[s] as to the ultimate 
outcome of domestic litigation regarding the lawfulness of [the USDOC's] application of the U.S. CVD law under U.S. municipal law prior to GPX litigation".
154 
2.2.3  China's request for completion of the analysis 
2.59.  The United States argues that China's claims under Article X:2 of the GATT 1994 are 
without merit and that the Appellate Body should reject China's request to complete the analysis.
155 However, should the Appellate Body choose to complete the analysis under Article X:2, 
the United States asserts that, contrary to China's assertion, the Panel made numerous findings on 
matters of fact relating to the baseline of comparison under Article X:2 – i.e. the rates, requirements, or restrictions under PL 112-99 and those under Section 701(a) – that could assist 
the Appellate Body in completing the analysis and finding that Section 1 is consistent with 
Article X:2.
156 The United States notes that the Appellate Body can only complete the analysis if 
the factual findings by the Panel or undisputed facts in the Panel record provide a sufficient basis 
for the Appellate Body to do so.157  
2.60.  The United States refers to several findings by the Panel regarding the baseline of 
comparison under Article X:2 in support of its positi on that they could assist the Appellate Body in 
completing the analysis, including the following: (i) there is no evidence of any enforcement of 
Section 1 by US administrative agencies before 13 March 2012; (ii) neither party contends, and 
nothing in the Panel record indicates, that, in relation to any of the court decisions submitted by the parties, the USDOC received an order from a US court to either change or discontinue its 
practice of applying US countervailing duty law to imports from NME countries; (iii) the Panel was 
not persuaded that the decision in Georgetown Steel  demonstrates that the USDOC's practice, 
since at least April 2007, of applying US countervailing duty law to imports from China had, in 
effect, been judicially determined to be unlawfu l under US law well before the USDOC developed 
the practice; (iv) the USDOC was not legally required to adjust its relevant practice as a consequence of the CAFC decision in GPX V ; (v) the evidence before the Panel suggests that the 
USDOC's practice was "presumptively lawful" under US law, because the USDOC's interpretation of 
US countervailing duty law governed in the absenc e of a binding judicial determination indicating 
otherwise; (vi) Section 1 did not effect an advance in a rate of duty, because this provision maintained the same rates of duty that were alre ady applied, pursuant to the USDOC's established 
and uniform practice, prior to the enactment of Section 1; and (vii) to the extent that it can be 
properly said that, in applying countervailing du ties to imports from China, the USDOC subjected 
imports from China to a "requirement" or "restriction ", it is the same "requirement" or "restriction" 
that China says was subsequently imposed by Section 1.
158 
2.61.  In the United States' view, it is clear th at the Panel made findings of fact based on the 
totality of the evidence on the record and not on th e basis of an alleged erroneous interpretation of 
Article X:2, as argued by China. However, if th e Appellate Body were to agree that the Panel did 
not make any relevant findings that could assist it in completing the analysis, then the 
Appellate Body should desist from doing so. This is because the United States considers that the 
                                               
152 United States' appellee's submission, para. 132. 
153 United States' appellee's submission, para. 132. (fn omitted) 
154 United States' appellee's submission, para. 135 (referring to China's appellant's submission, 
para. 99).  
155 United States' appellee's submission, para. 138. 
156 United States' appellee's submission, para. 142. 
157 United States' appellee's submission, paras. 139 (referring to Appellate Body Reports, EC – Selected 
Customs Matters , para. 278; Australia – Salmon , para. 118; and Canada – Autos , para. 145) and 140 
(referring to Appellate Body Reports, EC and certain member States – Large Civil Aircraft , para. 1140; Canada 
– Continued Suspension , para. 735; US – Hot-Rolled Steel , para. 180; and EC – Asbestos , para. 78). 
158 United States' appellee's submission, para. 142 (referring to Panel Report, paras. 7.120, 7.172, 
7.177, 7.180, 7.185, 7.190, and 7.204). WT/DS449/AB/R 
 
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  facts presented by China in its appellant's submission are not "undisputed".159 The United States 
points out that the Panel had already made findings on these contested statements and correctly determined that PL 112-99 is not inconsistent with Article X:2 of GATT 1994.
160 
2.62.  The United States points to a number of facts that it considers to be "disputed". First, 
China's assertion that the "the US Tariff Act 'did not previously provide' for the application of the 
U.S. CVD law to imports from NME countries"161 is erroneous and contradicted by the plain text of 
Section 701(a), which states that "every 'country' exporting merchandise to the United States is 
subject to the CVD law, with no exceptions".162 Second, China incorrectly characterizes the CAFC's 
decision in Georgetown Steel  as standing for the conclusion that "the U.S. CVD law does not apply 
to NME countries as a matter of statutory interpretation."163 The United States asserts that, in 
Georgetown Steel , the CAFC "affirmed [the USDOC's] interpretation and decision to not apply the 
U.S. CVD law to certain Soviet-style centrally planned economies".164 In the United States' view, 
since US countervailing duty law mandated that countervailing duties "shall be applied" to subsidized imports, the exception invoked by the USDOC was limited to those situations in which it 
was impossible to apply the law because a subsidy could not be identified in the case before it. 
This, argues the United States, was the case with respect to certain Soviet-bloc countries at the time.
165 
2.63.  Third, the United States takes issue with China's characterization of various legislative 
initiatives and the USDOC's administration of the countervailing duty law after Georgetown 
Steel.166 According to the United States, the legi slative history of the Omnibus Trade and 
Competitiveness Act of 1988 "makes no reference to the CVD law and does not suggest that the 
changes in the [anti-dumping] law had anything to do with the [CAFC's] decision in Georgetown 
Steel, as alleged by China".167 With respect to the passage of the Uruguay Round Agreements Act, 
the United States maintains that China "takes out of context a fleeting reference in the 1994 
legislative history that summarizes Georgetown Steel  as being 'limited to the reasonable 
proposition that the countervailing duty law cannot be applied to imports from [NME] countries'".
168 However, the United States contends that  "the statement of administrative action 
accompanying the legislation demonstrates that the reference was meant to clarify an 
interpretation by a binational panel under Chapter 19 of the North American Free Trade Agreement that the holding of Georgetown Steel  required a so-called 'effects test' in determining whether a 
subsidy may be countervailed."
169 Moreover, the USDOC "did not apply the U.S. CVD law to any 
NME countries during the period following Georgetown Steel  to 2006 because [the USDOC] 
continued to consider that the structure of the NME countries of the time made it impossible to identify countervailable subsidies".
170  
                                               
159 United States' appellee's submission, para. 144 (referring to China's appellant's submission, 
paras. 99-170). 
160 United States' appellee's submission, para. 147. 
161 United States' appellee's submission, para. 150 (referring to China's appellant's submission, 
para. 104). 
162 United States' appellee's submission, para. 150. 
163 United States' appellee's submission, para. 158 (referring to China's appellant's submission, 
para. 137). (additional fn text omitted) 
164 United States' appellee's submission, para. 157. 
165 United States' appellee's submission, para. 156. 
166 United States' appellee's submission, paras. 163 and 165. 
167 United States' appellee's submission, para. 163 (referring to China's appellant's submission, 
para. 141). 
168 United States' appellee's submission, para. 164 (quo ting China's appellant's submission, para. 143).  
169 United States' appellee's submission, para. 164 (r eferring to Statement of Administrative Action 
accompanying the Uruguay Round Agreements Act, HR Doc. No. 103-316, Vol. 1 (1994), p. 926, as contained in Panel Exhibit USA-2 ( United States Code , Title 19, Chapter 4, Section 1671)). 
170 United States' appellee's submission, para. 165 (referring to General Issues Appendix, appended to 
the Final Affirmative Countervailing Duty Determination: Certain Steel Products From Austria, United States 
Federal Register , Vol. 58, No. 130 (9 July 1993), pp. 37225-37261 (Panel Exhibit USA-21); USDOC, Rescission 
of Initiation of Countervailing Duty Investigation and Dismissal of Petition: Chrome-Plated Lug Nuts and Wheel Locks From the People's Republic of China, United States Federal Register , Vol. 57, No. 59 (26 March 1992), 
pp. 10459-10460 (Panel Exhibit USA-94); and Final Negati ve Countervailing Duty Determinations: Oscillating 
and Ceiling Fans From the People's Republic of China, United States Federal Register , Vol. 57, No. 109 (5 June 
1992), pp. 24018-24022 (Panel Exhibit USA-95)). WT/DS449/AB/R 
 
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  2.64.  Fourth, the United States disagrees with China's argument that the USDOC's initiation of a 
countervailing duty investigation on CFS Paper  from China was unlawful under US law.171 The 
United States adds that, contrary to China's assertion, the US Court of International Trade (CIT) "rejected China's argument that the [CAFC's] decision in Georgetown Steel  stood for the 
proposition that [the USDOC] could not apply U.S. CVD law to NME countries".
172 Moreover, the 
USDOC explained in a memorandum prepared in the context of the CFS Paper  investigation that, 
unlike the economies of the Soviet-bloc countries in the 1980s, producers and exporters in China 
were sufficiently distinct from the Government of China to permit a rational determination that the 
government had transferred a subsidy to them.173 
2.65.  In addition, the United States rejects China's argument that the GPX V  "opinion" 
"constitutes an authoritative statement of U.S. law".174 The United States emphasizes that China's 
argument "was shown to be incorrect during the proceedings before the Panel because the GPX V  
opinion never became final".175 In the United States' view, it is uncontested that no mandate was 
ever issued in conjunction with GPX V . Following the issuance of the GPX V  opinion, the 
United States filed a petition for rehearing en banc  on 5 March 2012, thereby staying the 
mandate.176 Moreover, the United States maintains that the meaning of the GPX V  opinion was 
"heavily contested" during the Panel proceeding s and, thus, the Appellate Body should reject 
China's characterization of its meaning as an "undisputed fact".177 Finally, the United States 
contests China's suggestion that "[t]he only conceivable purpose for making a statutory amendment retroactive is to change the law as it existed in the past".
178 According to the 
United States, "Congress enacted the GPX legislation to provide a definitive statement of its intent 
to resolve that ambiguity created by the GPX V  opinion."179 Further, contrary to China's 
contentions, the structure of Section 1 also supports an interpretation that the US Congress was merely confirming that the USDOC was acting within the bounds of its statutory authority in its 
prior administration of the countervailing duty law, as it "closely parallels [the USDOC's] 
longstanding interpretation of the statute".
180 
2.66.  In addition, the United States argues that  the Appellate Body should reject China's attempt 
to introduce new evidence in the form of a "non-final" judicial opinion issued by the CAFC in 
Wireking .181 The United States notes that China has failed  to submit the full opinion as an exhibit, 
and emphasizes that the opinion was issued after the issuance of the Panel Report and does not 
form part of the Panel record. The United States recalls that, in US – Offset Act (Byrd 
Amendment) , the Appellate Body indicated that it had "no authority to consider new facts on 
appeal".182 The fact that the documents are available on the public record "does not excuse [the 
Appellate Body] from the limita tions imposed by Article 17.6".183 The United States asserts that it 
is "undisputed" that the opinion in Wireking  is "new evidence" and that the Appellate Body should 
                                               
171 United States' appellee's submission, para. 166 (referring to China's appellant's submission, 
para. 149). 
172 United States' appellee's submission, para. 170 (referring to China's appellant's submission, 
para. 149; and United States Court of International Trad e, Government of the People's Republic of China v. 
United States, 483 F. Supp. 2d 1274, slip op. 07–50 (CIT 29 March 2007) (Panel Exhibit USA-28), p. 1282). 
173 United States' appellee's submission, paras. 172 and 173 (referring to Memorandum dated 29 March 
2007 from Shauna Lee-Alaia, et al., Office of Policy, Im port Administration, to David M. Spooner, Assistant 
Secretary for Import Administration, "Countervailing Duty Investigation of Coated Free Sheet Paper from the 
Peoples' Republic of China  – Whether the Analytical Elements of the Georgetown Steel  Opinion are Applicable 
to China's Present-Day Economy" (Panel Exhibit USA-26)). 
174 United States' appellee's submission, para. 176 (referring to China's appellant's submission, 
paras. 152-162). 
175 United States' appellee's submission, para. 176.  
176 United States' appellee's submission, para. 177 (referring to United States Federal Rules of Appellate 
Procedure (1 December 2010), Rule 41(b) (Panel Exhibit USA-41)). 
177 United States' appellee's submission, paras. 178 (referring to Panel Report, para. 7.180) and 179. 
178 United States' appellee's submission, para. 180 (q uoting China's appellant's submission, para. 109). 
179 United States' appellee's submission, para. 180.  
180 United States' appellee's submission, para. 185 (referring to China's appellant's submission, 
paras. 106 and 107). 
181 United States' appellee's submission, para. 192. 
182 United States' appellee's submission, para. 195 (referring to Appellate Body Report, US – Offset Act 
(Byrd Amendment) , para. 222). 
183 United States' appellee's submission, para. 195 (quoting Appellate Body Report, US – Offset Act 
(Byrd Amendment) , para. 222). WT/DS449/AB/R 
 
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  not consider it based on the limitation set out in Article 17.6 of DSU.184 Moreover, the Wireking  
litigation itself is on-going, as the United States is currently considering whether to seek a petition for a rehearing by the panel in that opinion or en banc . According to the United States, the 
Wireking  opinion cited by China as new evidence is not a final, binding US judicial decision, as the 
mandate has not yet been issued.
185 
2.67.  For the foregoing reasons, the United States requests the Appellate Body to dismiss China's 
appeal in all respects, as China has failed to demonstrate that the United States has acted 
inconsistently with Article X:2 of the GATT 1994.186 
2.3  Claims of error by the Un ited States – Other appellant 
2.3.1  Article 6.2 of the DSU 2.68.  The United States appeals the Panel's finding in its Preliminary Ruling of 7 May 2013
187 that 
the claims listed in Part D of China's panel request were identified consistently with Article 6.2 of 
the DSU. First, the United States argues that the Panel's approach in examining Part D of the panel request "depart[ed] from the plain meanin g of Article 6.2 and Appellate Body guidance".
188 
The United States emphasizes that, "in reviewing a panel request against the requirements of 
Article 6.2, a panel should determine if the legal claim was presented 'plainly, manifestly, obviously' or 'without deduction'."
189 Instead of undertaking an analysis as to whether "the 
problem itself was presented clearly", the Panel determined that the "relevant standard" was to 
examine whether China's panel request permitted "sufficiently clear inferences as to the WTO obligations at issue in its Part D".
190 
2.69.   More specifically, the United States contends that "the Panel failed to evaluate whether 
China's general reference to Article 19 [of the SCM Agreement] in the context of its narrative was 
sufficient to present the problem clearly."191 The Panel examined each of the four paragraphs of 
Article 19 and determined that it was "clear" that the only "potentially relevant obligations" are the 
obligations set forth in Articles 19.3 and 19.4.192 The United States points out that these findings 
"directly contradicted" China's own statements as to the specific obligations at issue in the panel request.
193 The Panel further applied this "erroneous approach" to Article 32 of the 
SCM Agreement by concluding that Article 32.1 "'is relevant' to the issue of 'double counting' and 
'it would be plausible' for China to claim a consequential breach of Article 32.1 following a finding under another provision".
194 The United States asserts that, by  following this approach, the Panel 
went to the merits of the claim and made a "p reliminary assessment" of whether these claims 
would be "plausible" or "potentially relevant".195 Thus, the United States maintains that the Panel 
erred in its analysis of the consistency of the panel request with Article 6.2 of the DSU.196 
2.70.  Second, the United States points out that, after inferring that the "relevant obligations at 
issue" are those set out in Articles 19.3 and 19. 4 of the SCM Agreement, "the Panel made an 
additional inference to further narrow the scope of the claim to Article 19.3."197 The Panel reached 
its conclusion by "relying heavily on the last  two sentences of footnote 6 of China's panel 
request".198 In concluding on the basis of footnote 6 that "it was 'possible to draw sufficiently clear 
                                               
184 United States' appellee's submission, para. 196. 
185 United States' appellee's submission, para. 199. 
186 United States' appellee's submission, para. 202. 
187 WT/DS449/4. The Preliminary Ruling forms an integral part of the Panel Report. (See Panel Report, 
paras. 6.6 (referring to Preliminary Ruling, para. 4.3) and 7.5) 
188 United States' other appell ant's submission, para. 16. 
189 United States' other appell ant's submission, para. 16. 
190 United States' other appellant's submission, pa ra. 16 (quoting Preliminary Ruling, para. 3.2). 
191 United States' other appell ant's submission, para. 18. 
192 United States' other appellant's submission, pa ra. 19 (quoting Preliminary Ruling, para. 3.39). 
193 United States' other appell ant's submission, para. 18. 
194 United States' other appell ant's submission, para. 21. 
195 United States' other appellant' s submission, paras. 20 and 21. 
196 United States' other appell ant's submission, para. 21. 
197 United States' other appellant's submission, para . 22 (referring to Preliminary Ruling, paras. 3.43 
and 3.45). 
198 United States' other appell ant's submission, para. 22. WT/DS449/AB/R 
 
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  inferences' that China intended only to raise a substantive claim under Article 19.3", the 
United States asserts that "the Panel erred in looking to an external source to inform the legal basis in the panel request".
199 According to the United States, "t he Panel found that the reference 
to [US – Anti-Dumping and Countervailing Duties (China) (DS379)] provided 'useful context'".200  
2.71.  The United States argues that, "rather than providing 'context' for the Panel's analysis, the 
particular findings of the panel and Appellate Body reports in US – Anti-Dumping and 
Countervailing Duties (China) became an integral part of China's panel request."201 As a result of 
the Panel's approach, the United States posits that "it is not the panel request that sets out the 
legal basis sufficient to present the problem clearly; rather, through reference to some other document, it is the clarity of that other document that determines whether a particular provision will be included in the legal basis and the terms of reference of the dispute."
202 The United States 
adds that "the logic of the Panel's approach would not be limited to recommendations and 
rulings"203, but to "any extrinsic source"204, contrary to the text of Article 6.2 of the DSU and 
previous Appellate Body guidance that "a panel request should be examined on its face".205 In any 
event, the United States argues that footnote 6 of the panel request: (i) "makes no reference to 
any legal claims, much less a reference to Article 19.3"206; (ii) "refers to findings in the context of 
investigations while this dispute covers both investigations and reviews"207; and (iii) refers to 
"recommendations and rulings relat[ing] to claims that are within the terms of reference of the 
dispute".208 
2.72.  Third, the United States underscores that the Panel's finding that China's panel request was 
limited to Article 19.3 of the SCM Agreement cont radicted China's own indication of its intent 
to bring claims under Article 19 as an "integrated whole".209 According to the United States, the 
Panel's conclusion was "over the express statement of China that … Article 19 was one 'interlinked' obligation and that 'the entirety of Article 19 establishes a set of principles that Members are to 
apply concurrently when they come to the final task of determining the amount of the 
countervailing duty to impose."
210 The United States maintains that the Panel's dismissal of China's 
own explanation of its legal basis "underscores the error in using an analysis based on 
inferences".211 In the United States' view, the "problem" in the panel request cannot be considered 
as having been "presented with sufficient clarity" under Article 6.2 of the DSU "if the Panel has to draw inferences about the meaning of a panel request, particularly when the complaining party states that it never intended such a meaning".
212 The United States adds that "the scope of the 
claim under [Part] D was not made clear, even to the complaining party, until the Panel issued its 
preliminary ruling in May 2013, almost six months after China had filed its panel request and just one month before the United States was required to provide the Panel with its first written 
submission."
213 Because China's panel request failed "to provide the legal basis of the complaint 
with sufficient clarity", the United States submits that the Appellate Body should reverse the Panel's finding under Article 6.2 of the DSU.
214  
                                               
199 United States' other appell ant's submission, para. 22. 
200 United States' other appellant's submission, pa ra. 24 (quoting Preliminary Ruling, para. 3.42). 
201 United States' other appell ant's submission, para. 25. 
202 United States' other appell ant's submission, para. 25. 
203 United States' other appell ant's submission, para. 26. 
204 United States' other appell ant's submission, para. 26. 
205 United States' other appellant's submission, para. 25 (referring to Appellate Body Report, US – 
Carbon Steel , para. 127). 
206 United States' other appell ant's submission, para. 28. 
207 United States' other appell ant's submission, para. 28. 
208 United States' other appell ant's submission, para. 30. 
209 United States' other appell ant's submission, para. 34. 
210 United States' other appellant's submission, para . 33 (quoting China's response to United States' 
preliminary ruling request, paras. 26 and 27) . (emphasis added by the United States)  
211 United States' other appell ant's submission, para. 36. 
212 United States' other appell ant's submission, para. 36. 
213 United States' other appell ant's submission, para. 37. 
214 United States' other appell ant's submission, para. 38. WT/DS449/AB/R 
 
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  2.73.  Finally, the United States maintains that a panel's terms of reference must be "objectively 
determined" on the basis of the panel request " as it existed at the time of filing ".215 As a result, 
subsequent submissions or statements cannot "cure a defect" in the panel request.216 In this 
regard, the United States argues that the Panel failed to examine China's panel request on its face, 
and instead sought to "cure" the "vague and de ficient" panel request by relying on China's 
subsequent statements that "entirely change d and reformed" the legal claims in Part D.217 The 
United States points out that, as filed, Part D of China's panel request alleged that more than 
60 anti-dumping and countervailing duty proceedings  were inconsistent with the following general 
obligations: (i) Articles 10, 15, 19, 21, and 32 of  the SCM Agreement; (ii) Article VI of the 
GATT 1994; and (iii) Articles 9 and 11 of the Agr eement on Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement).218 However, the 
United States contends that Part D of China's panel request "had been cured to pertain to 
approximately half of the proceedings originally cited by China and only for [Articles 10, 19.3, and 32.1 of the SCM Agreement]".
219 The United States asserts that such conclusion "could not 
have resulted from a determination based on the face of the panel request at the time it was 
filed", but on the Panel's analysis of Article 19 and the Appellate Body report in US – Anti-Dumping 
and Countervailing Duties (China) , as well as on China's subsequent statements as to its intention 
to abandon certain claims in its panel request.220 
2.74.  The United States refers to China's letter dated 25 March 2013 in response to the 
United States' request for the Panel to determine that Parts C and D of China's panel request did not meet the requirements of Article 6.2 of the DSU.  In this letter, China stated that it would no 
longer pursue its claims under Part C, and would limit those under Part D to Articles 10, 19, 
and 32 of the SCM Agreement.
221 The United States contends that the Panel treated this statement 
as the "equivalent of a newly filed panel request", because the Panel conducted its Article 6.2 
analysis "using the baseline established by China's letter".222 In the United States' opinion, "the 
abandonment of claims in an attempt to cure a deficient panel request should not be relied upon by a panel when determining the sufficiency of a panel request on its face as it existed at the time 
of filing."
223 The United States submits that China's approach undermines Article 6.2, 
"as responding parties would have no clarity as to the claims in a dispute until, at the earliest, the first substantive written submission".
224 
2.75.  On the basis of the foregoing arguments, th e United States requests the Appellate Body to 
reverse the Panel's finding of inconsistency with respect to Articles 10, 19.3, and 32.1 of the 
SCM Agreement reflected in paragraph 8.1.c of the Panel Report, as these claims are outside the Panel's terms of reference.
225 
2.4  Arguments of China – Appellee 
2.4.1  Article 6.2 of the DSU 2.76.  First, China argues that the United States mischaracterizes the Panel's analysis by 
suggesting that the Panel articulated a "new standa rd" for evaluating claims under Article 6.2 of 
the DSU by examining whether the panel request pe rmits "sufficiently clear inferences" as to the 
WTO obligations at issue.
226 China maintains that the Panel observed that, by citing Articles 10, 19, 
                                               
215 United States' other appellant's submission , para. 39 (quoting Appellate Body Report, EC and certain 
member States – Large Civil Aircraft , para. 642). (emphasis added by the United States) 
216 United States' other appellant's submission , para. 40 (quoting Appellate Body Report, EC and certain 
member States – Large Civil Aircraft , para. 642). 
217 United States' other appell ant's submission, para. 41. 
218 United States' other appell ant's submission, para. 42. 
219 United States' other appell ant's submission, para. 43. 
220 United States' other appell ant's submission, para. 44. 
221 United States' other appellant's submission, para. 44 (referring to China's le tter to the Panel dated 
25 March 2012, pp. 1-2). 
222 United States' other appell ant's submission, para. 45. 
223 United States' other appell ant's submission, para. 46. 
224 United States' other appellant's submission, para. 48 
225 United States' other appell ant's submission, para. 51. 
226 China's appellee's submission, paras. 27 (quoting  United States' other appellant's submission, 
para. 17) and 31. WT/DS449/AB/R 
 
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  and 32 of the SCM Agreement, Part D of the panel request "met the 'minimum prerequisite' of 
identifying the treaty provisions claimed to have been violated".227 According to China, the Panel 
then reviewed each of the referenced provisio ns of the SCM Agreement and turned to examine 
whether, "despite the lack of explicit identification of the relevant paragraph numbers, a careful 
reading of China's panel request permits sufficiently clear inferences as to which of the distinct 
obligations in Articles 19 and 32 form the legal basis of the complaint".228 
2.77.  China underscores that, in undertaking this examination, the Panel read the panel request 
"as a whole"229 and acknowledged that Article 6.2 requires the complaining party to "plainly 
connect the challenged measure(s) with the prov ision(s) of the covered agreements claimed to 
have been infringed".230 Thus, contrary to the United States' contention, the Panel did not 
"articulate[] a new standard"; rather, "the Panel repeatedly cited the relevant text of Article 6.2, 
and on each occasion (no fewer than seven) accurately and completely quoted the requirement at 
issue before it, namely that a panel request must provide 'a brief summary of the legal basis of the complaint sufficient to present the problem clearly'".
231 In other words, in evaluating which of the 
obligations may be "potentially relevant", a panel does not "improperly 'engag[e] in a legal 
interpretation'".232 Instead, a panel simply "explain[s] succinctly how or why the measure at issue 
is considered by the complaining Member to be violating the WTO obligation in question", and 
"plainly connect[s] the challenged measure(s) with the provision(s) of the covered agreements 
claimed to have been infringed".233 
2.78.  In China's view, the United States' argumentation rests on the proposition that the 
requirement of Article 6.2 to provide a brief summa ry of the legal basis "sufficient to present the 
problem clearly" categorically precludes an "e valuation based on inferences" drawn from the 
"language used in the panel request, read as a whole, and in light of the specific obligations 
comprising the [relevant] treaty provisions".234 China contends that nothing in Article 6.2 "imposes 
any a priori limitation on the types of hermeneutic devices a responding member (or potential 
third party) might employ in seeking to discern wh ether the requisite 'brief summary' of the 'legal 
basis of the complaint' set forth in the panel requ est at issue is 'sufficient to present the problem 
clearly'".235 Article 6.2 does not bar the use of inferential reasoning. China adds that, "by its very 
nature", evaluating compliance with Article 6.2 "frequently involves drawing 'inferences'".236 Thus, 
China submits that, "where a panel request does not identify the specific obligation at issue, use of 
inferential reasoning is likely to be the only way in which a panel may determine whether the panel 
request sufficiently notifies 'the respondent and third parties of the nature of the complainant's 
case'".237 
2.79.  Second, China dismisses the United States' contention against the Panel's reliance on 
footnote 6 of the panel request and the relevant Appellate Body findings in US – Anti-Dumping and 
Countervailing Duties (China) . China recalls that footnote 6 "identified the specific measures to 
which the claims in Part D relate", and "omitt[ed] the four sets of parallel [anti-dumping and 
countervailing duty] investigations that were 'the subject of recommendations and rulings of the 
DSB in US – Anti-Dumping and Countervailing Duties (China) (DS379)'".238 The exclusion of these 
investigations was because the DSB had already ruled that "the United States acted inconsistently 
                                               
227 China's appellee's submission, para. 28 (q uoting Preliminary Ruling, para. 3.32). 
228 China's appellee's submission, para. 31 (q uoting Preliminary Ruling, para. 3.35). 
229 China's appellee's submission, para. 31 (q uoting Preliminary Ruling, para. 3.36). 
230 China's appellee's submission, para. 32 (q uoting Preliminary Ruling, para. 3.53). 
231 China's appellee's submission, para. 33 (referring to Preliminary Ruling, paras. 3.17, 3.18, 3.32, 
3.33, 3.53, 3.60, and 4.1). 
232 China's appellee's submission, para. 45 (referring to United States' other appellant's submission, 
para. 20). 
233 China's appellee's submission, para. 45 (quo ting, respectively, Appellate Body Report, EC – Selected 
Customs Matters , para. 130; and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , 
para. 162).  
234 China's appellee's submission, para. 35. 
235 China's appellee's submission, para. 36. 
236 China's appellee's submission, para. 37. 
237 China's appellee's submission, para. 43 (quoting Appellate  Body Reports, China – Raw Materials , 
para. 219). (emphasis original) 
238 China's appellee's submission, para. 48. WT/DS449/AB/R 
 
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  with its obligations under the covered agreements by failing to investigate and avoid double 
remedies in those investigations."239 
2.80.  According to China, "the Panel effectively narrowed the scope of claims that China could 
pursue under Part D of its panel request to Article 19.3 alone" when the Panel: (i) viewed 
footnote 6 as "strongly indicat[ing]" that China sought "to obtain findings of violation … in respect 
of the identified measures[] that parallel the findings that China had previously obtained from the DSB in DS379"; and (ii) recalled that "the finding of inconsistency under Article 19 in that case 
was limited to Article 19.3".
240 China maintains that, having "exp ressly referenced the findings" in 
that dispute in its panel request, "it was not merely appropriate for the Panel to take them into account, it was incumbent upon the Panel to do so in light of the Appellate Body's often repeated 
admonition to 'consider[] the panel request as a whole, and in the light of attendant 
circumstances'."
241 Regarding the United States' second claim of error concerning the Panel's 
consideration of the recommendations and rulings of the DSB in US – Anti-Dumping and 
Countervailing Duties (China) , China simply states that it is a "frivolous assertion" that warrants 
summary dismissal.242 
2.81.  Third, China understands the United States as saying that "a panel commits legal error 
under Article 6.2 whenever it fails to conform it s own reading of a panel request to the reading 
advocated by the complaining party itself".243 China surmises that the United States is also, 
simultaneously or in the alternative, contending that, "where a panel disagrees with the complaining party's view regarding the scope of tr eaty obligations addressed by a panel request, 
the panel request necessarily fails to meet the requirement in Article 6.2 to 'provide a brief 
summary of the claim sufficient to present the problem clearly'."
244 China rejects the first 
argument on the ground that it "improperly introduce[s] a complaining party's purported 'intent' into the Article 6.2 analysis, while simultaneously nullifying a [p]anel's obligation to undertake 'an 
objective assessment of the matter before it' under Article 11 of the DSU".
245 China also dismisses 
the second proposition not only for improperly introducing intent, but also for "effectively preclud[ing] panels from issuing rulings under Arti cle 6.2 that some of the claims set forth in a 
panel request, but not others, met the requirements of that provision".
246  
2.82.  Lastly, China argues that the United States' assertion that the Panel treated China's letter 
dated 25 March 2013 "as the equivalent of a newly filed panel request" lacks any factual basis.247 
China points out that the Panel recognized that China's abandonment of some of its claims "did not 
thereby modify the Panel's terms of reference", because China could not "unilaterally modify" it.248 
Thus, the Panel did not treat China's abandonment of its claims as disposing, in and of itself, of the issue of whether Parts C and D of the panel reques t met the requirements of Article 6.2. Rather, 
the Panel declined to address these abandoned cl aims on the ground that the United States' 
Article 6.2 challenge "had been rendered moot with respect to [those] claims".
249 In China's view, 
"whatever ruling the Panel might have made under Article 6.2 had it examined Part D in its 
entirety is of no relevance to the United States' appeal, since [the United States] is not appealing 
the Panel's decision not to address [its] Article 6.2 challenge with respect to the abandoned claims in Part D".
250 China also reiterates that, contrary to the United States' "unfounded assertions", its 
actions were not designed to "cure a deficient panel request"251, but "reflect[ed] litigation decisions 
                                               
239 China's appellee's submission, para. 48 (quoting Re quest for the Establishment of a Panel by China, 
WT/DS449/2, fn. 6, at p. 4). 
240 China's appellee's submission, para. 49 (quoting Preliminary Ruling, para. 3.43).  
241 China's appellee's submission, para. 53 (quoting Appella te Body Report, US – Carbon Steel , 
para. 127). (emphasis original) 
242 China's appellee's submission, para. 54. 
243 China's appellee's submission, para. 56. 
244 China's appellee's submission, para. 56. 
245 China's appellee's submission, para. 57. 
246 China's appellee's submission, para. 57. 
247 China's appellee's submission, para. 58 (quoting  United States' other appellant's submission, 
para. 45). 
248 China's appellee's submission, para. 59 (q uoting Preliminary Ruling, para. 3.8). 
249 China's appellee's submission, para. 59 (referring  to Preliminary Ruling, paras. 3.8 and 3.15). 
250 China's appellee's submission, para. 63. 
251 China's appellee's submission, para. 67 (quoting, respectively, United St ates' other appellant's 
submission, paras. 48 and 46). WT/DS449/AB/R 
 
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  that are routinely made in dispute settlement proceedings, in good faith, and fully in keeping with 
a Member's rights under the DSU".252 
2.83.  Based on these arguments, China maintain s that the claims of error put forward by the 
United States with respect to Article 6.2 of the DSU do not have any legitimate basis.253 China 
submits that, "[f]rom the day it received the request for consultations in this dispute, the 
United States has been on notice that this disp ute would entail, at a minimum, the application of 
the recommendations and rulings of the DSB in [ US – Anti-Dumping and Countervailing Duties  
(China) (DS379)] to a group of parallel [anti-dumping and countervailing duty] investigations that 
came after those at issue in DS379."254 
2.5  Arguments of the third participants 2.5.1  Australia 
2.84.  Australia views Article X:2 of the GATT 1994 as "protect[ing] commercial expectations in 
support of a transparent and commercially certain system of trade".
255 Australia submits that the 
central question in this dispute in relation to the interpretation of Article X:2 is the determination 
of the "baseline … for comparing whether there has been an advance in a rate of duty".256 In this 
regard, Australia notes China's position that "u sing the practice of the [USDOC] in imposing 
countervailing measures on [NMEs] as the relevant benchmark renders Article X:2 inutile."257 In 
particular, Australia recalls China's argument that, "if the practice of the customs authority in 
collecting … increased duties can be used to establish a 'uniform and established practice' prior to enforcement, it will be impossible to breach Article X:2."
258 Australia points out, however, that the 
current dispute concerns "the imposition of countervailing measures", while the countervailing 
duties in China's example "are imposed after a competent authority carries out an investigation 
involving consultation with exporters".259 In Australia's opinion, these measures can be 
distinguished from the types of duties envisage d in China's hypothetical situation. Moreover, 
Australia agrees with the Panel that "it is the role of domestic, judicial, arbitral or administrative 
tribunals, and not WTO panels, to determine whether agency practices relating to customs matters are unlawful under domestic law."
260 What is open for the Appellate Body to consider, in Australia's 
view, is whether Chinese exporters had "authentic information" that could form the basis for a 
legitimate expectation that the countervailing measures would be removed.261 In the light of such 
expectation, Australia submits that the Appellate Body may determine "whether … the continuation 
of measures following the enactment of Section 1 of Public Law 112-99 amounted to an advance of 
duty or a new or more burdensome requirement".262 
2.5.2  European Union 2.85.  The European Union understands, following the reasoning of the Appellate Body report in 
US – Underwear , that Article X:2 of the GATT 1994 "enshrines the relevant policy principle of 
transparency and has obviously due process dimensions".
263 While the European Union views the 
principle of due process as relating to and grounding a presumption against retroactivity, 
Article X:2 does not contain a "general and absolute rule" against it.264 The European Union 
                                               
252 China's appellee's submission, para. 67. 
253 China's appellee's submission, para. 68. 
254 China's appellee's submission, para. 71. 
255 Australia's third participant's submission, para. 3. 
256 Australia's third participant's submission, para. 4. 
257 Australia's third participant's submission, para. 6 (referring to China's appellant's submission, 
para. 55). 
258 Australia's third participant's submission, para. 7 (referring to China's appellant's submission, 
para. 54). 
259 Australia's third participant's submission, para. 7. 
260 Australia's third participant's submission, para . 8 (referring to Pane l Report, para. 7.164). 
261 Australia's third participant's submission , para. 9 (quoting Appellate Body Report, US – Underwear , 
p. 21, DSR 1997:I, p. 29). 
262 Australia's third participant's submission, para. 9. 
263 European Union's third participant's submission , para. 13 (referring to Appellate Body Report, US – 
Underwear , p. 21, DSR 1997:I, p. 29). (emphasis omitted) 
264 European Union's third partic ipant's submission, para. 17. WT/DS449/AB/R 
 
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  contends that, "if vested rights and legitimate expectations are respected, then a retroactive 
measure can comply with the transparency and publication rule in Article X:2".265 In the present 
dispute, the European Union agrees with the Panel that "effecting an advance" refers to an "increase" in the rate of duties or other charges on imports.
266 Further, in making a comparison 
between "the rate of duties or other import charges that were in place by virtue of an established 
and uniform practice and the new rate of duties or other import charges that were introduced as a consequence of the new measure of general applic ation", the European Union maintains that "the 
lawfulness or unlawfulness of the established and uniform practice under the municipal law of the 
Member in question is not dispositive".
267 R a t h e r ,  w h a t  i s  r e l e v a n t  i s  t o  d e t e r m i n e  w h e t h e r  
"the rate of duties have increased as a consequence of the application of the new measure of general application deviating from the established and uniform practice, and whether this new 
measure of general application applied to completed facts, events or situations thereby affecting 
vested rights and legitimate expectations of interested parties."
268  
2.86.  Applying this interpretation to the current dispute, the European Union posits that "the rates 
of countervailing duties at hand did not increase as a consequence of the application of the 
measure at issue to facts, events or situations as of November 2006."269 The European Union 
observes that "there was an established and unifo rm practice by the USDOC to apply the relevant 
countervailing provisions of the Tariff Act of 1930" to imports from NME countries.270 Moreover, 
the European Union points out that "there were no acquired rights or legitimate expectations that were affected", because the countervailing duties applied under the old and new regimes are the same and an incomplete judicial process does not create a legitimate expectation.
271 As to the 
remaining question of "whether or not it makes any difference that the legislator intervened when 
adopting a measure of general application that applies to past events and situations", the E u r o p e a n  U n i o n  e x p l a i n s  t h a t  t h i s  w i l l  d e p e n d  o n  w h e t h e r  t h e  f i n a l  c o l l e c t i o n  o f  d u t i e s  a s  o f  
13 March 2012 (the date of the enactment of PL 112-99) was still suspended or already definitive 
and final.
272 On the one hand, if the collection of duties was suspended on 13 March 2012, it could 
be argued that, on that date, "private entities had not yet acquired rights and did not yet have 
legitimate expectations that the final collection of duties was definitive and final."273 On the other 
hand, if countervailing duties were imposed and finally collected, and all judicial proceedings had been completed indicating the "illegality of the USDOC practice", then the European Union submits 
that "those entities would have acquired a legitimate right and the legitimate expectation to have 
their duties revoked."
274 
2.87.  With respect to the issue of whether China' s panel request conforms to the requirements of 
Article 6.2 of the DSU, the European Union agrees with the Panel that footnote 6 of the panel 
request and its reference to the Appellate Body report in US – Anti-Dumping and Countervailing 
Duties (China)  are relevant to the analysis. In the European Union's view, "the manner in which 
the reference was made, and the purpose for which it was stated to be made" cannot be " per se 
irrelevant and excluded from the assessment".275 The European Union does not consider that a 
panel request cannot refer to a prior Appellate Body report that clarifies the relevant provisions of WTO law, in this case, the report issued in DS379. Rather, "[i]f a Panel Request can refer to a provision, it can also refer to a report clarifying that provision: they are both part of the WTO 
acquis ."
276 Thus, the European Union states that the Panel was correct in taking into account the 
reference to DS379, "specifically the part that relates to 'double remedies'".277 According to the 
European Union, "various references in China's Panel Request to 'double remedies' could 
reasonably be understood in the context of the relevant section of the Appellate Body Report in 
                                               
265 European Union's third partic ipant's submission, para. 17. 
266 European Union's third participant's submission, para. 24 (referring to Panel Report, para. 7.154). 
267 European Union's third participant's submission, para. 25. (fns omitted) 
268 European Union's third participant' s submission, para. 26. (fn omitted) 
269 European Union's third partic ipant's submission, para. 31. 
270 European Union's third partic ipant's submission, para. 31. 
271 European Union's third partic ipant's submission, para. 32. 
272 European Union's third partic ipant's submission, para. 33. 
273 European Union's third partic ipant's submission, para. 33. 
274 European Union's third partic ipant's submission, para. 33. 
275 European Union's third participant's submission , para. 57 (referring to Appellate Body Report, US – 
Carbon Steel , para. 127). 
276 European Union's third partic ipant's submission, para. 58. 
277 European Union's third participant's submission, pa ra. 59 (referring to Request for the Establishment 
of a Panel by China, WT/DS449/2, Part D). WT/DS449/AB/R 
 
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  US – Anti-Dumping and Countervailing Duties (China) ", and these are relevant to determining 
whether China provided a brief summary of the legal basis of the complaint sufficient to present the problem clearly.
278 
2.5.3  Japan 
2.88.  Japan agrees with the Panel majority that Article X:2 of the GATT 1994 "embodies the 
principle of transparency and predictability in international trade under [the] GATT by requiring importing Members to publish new or additional measures of general application prior to their 
enforcement".
279 Japan also concurs with the Panel majority that Section 1 of PL 112-99 "did not 
fall in the realm of measures under Article X:2" if  the applicability of Section 1 is examined in the 
light of the principle of transparency an d predictability embedded in Article X:2.280 Japan points 
out that, in this dispute, traders had been given the information that countervailing duties may be 
imposed on imports from China since April 2007. In Japan's view, PL 112-99 did not inform traders 
that the USDOC would impose any new or additional duties, charges, requirements, or restrictions on imports from China. Rather, Section 1 only provided the information to traders that 
"it eliminated the possibility of revocation of the measure already imposed by an administrative 
body."
281 
2.89.  Japan further states that "the legality of a measure under the domestic law of a Member 
would not be necessarily relevant in reviewing the consistency of the Member's action with 
Article X:2."282 In Japan's opinion, the circumstances in the present dispute suggest that, by 
promulgating Section 1, "the United States tried to provide remedies to actions of the USDOC which might not be lawful under United States law for the purpose of securing public interest".
283 
In this regard, Japan recognizes that certain "remedial mechanisms" are "necessary to avoid 
terminating actions of an administrative body which are unlawful under domestic law, when their termination is harmful to the public interest". Thus, Japan argues that "[t]hese remedial 
mechanisms should not be viewed as prejudicial to the legitimate expectation of traders."
284 Japan 
submits that, if Section 1 of PL 112-99 falls within the category of such remedial measures, then it 
should not be held to be inconsistent with Article X:2 of the GATT 1994 "only because the 
United States enforced that measure retroactively with respect to actions prior to its 
enactment."285 
3  ISSUES RAISED IN THIS APPEAL 3.1.  The following issues are raised in this appeal: 
a. whether the Panel erred in finding that claims under Articles 10, 19.3, and 32.1 of the 
SCM Agreement were identified in Part D of China's panel request consistently with the 
requirements of Article 6.2 of the DSU and were thus within the Panel's terms of 
reference; 
b. whether the Panel erred in finding that the United States has not acted inconsistently 
with Article X:2 of the GATT 1994, and in particular: 
i. whether the Panel erred in the interpretation of Article X:2 of the GATT 1994 in 
respect of the baseline of comparison for measures of general application "effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or 
prohibition on imports"; and 
                                               
278 European Union's third partic ipant's submission, para. 59. 
279 Japan's third participant's submission, para. 4. 
280 Japan's third participant's submission, para. 8. 
281 Japan's third participant's submission, para. 8. 
282 Japan's third participant's submission, para. 10. 
283 Japan's third participant's submission, para. 11. 
284 Japan's third participant's submission, para. 11. 
285 Japan's third participant's submission, para. 11. (fn omitted) WT/DS449/AB/R 
 
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  ii. whether the Panel erred in the application of its interpretation of Article X:2 of the 
GATT 1994 to the measure at issue and, in particular, whether the Panel erred in finding that "China has not established that Section 1 [of PL 112-99] is a provision 'effecting an advance in a rate of duty or other charge on imports under an 
established and uniform practice'" and that "China has not established that Section 1 
[of PL 112-99] is a provision 'imposing a new or more burdensome requirement, restriction or prohibition on imports'";  
c. whether the Panel acted inconsistently with its obligation under Article 11 of the DSU: 
i. in failing to apply the standard set out by the Appellate Body for determining the 
meaning of municipal law; 
ii. in concluding that an agency's "practice or interpretation" is "presumptively lawful" 
unless and until a domestic court issues a final, non-appealable order directing the 
agency to cease that "practice or interpretation"; or 
iii. in reversing the burden of proof under Article X:2 of the GATT 1994 and absolving 
the United States of its obligation to rebut the prima facie  case that China had 
established; and 
d. in the event that the Appellate Body reverses the Panel's finding that the United States 
has not acted inconsistently with Article X:2 of the GATT 1994, whether the 
Appellate Body should complete the analysis and find that Section 1 of PL 112-99 effected an "advance in a rate of duty or other charge on imports under an established and uniform practice" or imposed "a new or more burdensome requirement, restriction 
or prohibition on imports" and, as a consequence, find that the United States acted 
inconsistently with Article X:2 of the GATT 1994 in enforcing Section 1 of PL 112-99 prior to its official publication. 
4  ANALYSIS OF THE APPELLATE BODY 
4.1  Article 6.2 of the DSU 4.1.  Before addressing the issue raised under Article 6.2 of the DSU, we consider it useful to 
recount the background for the other appeal of  the United States. Before the Panel, the 
United States requested a preliminary ruling on the consistency of China's request for the establishment of a panel
286 with Article 6.2 of the DSU. According to the United States, Parts C 
and D of China's panel request failed to "provide a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly", as it "merely lists articles of the 
[SCM Agreement], the [Anti-Dumping Agreement]  and the [GATT 1994] in relation to over 
60 US countervailing and anti-dumping proceedings."287 
4.2.  In its Preliminary Ruling, the Panel no ted that, while Article 10 of the SCM Agreement 
consists of a single paragraph invoked to raise a "consequential claim"288, Articles 19 and 32 
contain several paragraphs that have "multiple distinct obligations" and "address distinct 
issues".289 In ascertaining whether "China's panel request permit[ted] sufficiently clear inferences 
as to which of the distinct obligations in Articles 19 and 32 form the legal basis of the 
complaint"290, the Panel considered the "narrative description of the problem"291 and the reference 
to the dispute in US – Anti-Dumping and Countervailing Duties (China) (DS379) in the panel 
request.292 According to the Panel, the narrative pertained to "a very specific issue" – i.e. the 
United States' alleged failure to investigate and avoid double remedies in certain investigations 
                                               
286 WT/DS449/2. 
287 Preliminary Ruling by the Panel of 7 May 2013,  contained in document WT/DS449/4 (Preliminary 
Ruling), paras. 2.2 and 2.3.  
288 Preliminary Ruling, para. 3.35. (fn omitted) 
289 Preliminary Ruling, para. 3.34. (fns omitted)  
290 Preliminary Ruling, para. 3.35. 
291 Preliminary Ruling, para. 3.38. 
292 Preliminary Ruling, para. 3.41. WT/DS449/AB/R 
 
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  and reviews – and defined "double remedies" as those "that are likely to result when the 
[US Department of Commerce (USDOC)] applies countervailing duties in conjunction with anti-dumping duties determined in accordance with the US non-market economy [(NME)] methodology".
293 In this regard, the Panel took the view that, with respect to Article 19 of the 
SCM Agreement, "Articles 19.3 and 19.4 are 'the potentially relevant obligations'"294, considering 
that Article 19.1 "focuses on the issue of whether an importing Member may impose a countervailing duty at all"
295, and Article 19.2 "does not appear to contain any legal obligation".296 
4.3.  The Panel then took footnote 6 of the panel request as "useful context"297, particularly the 
statement therein that in DS379 the DSB had "already found that the United States acted inconsistently with its obligations … in those investigations".
298 In the Panel's view, this statement 
indicated that China sought to obtain in the present dispute findings of violation that "parallel[ed] 
the findings that China had previously obtained" in  DS379299, where the Appellate Body made no 
finding with respect to Article 19.4. According to the Panel, "while the narrative reference to 'double remedies' in Part D suggests that both Articles 19.3 and 19.4 are potentially relevant WTO 
obligations at issue, consideration of the last sentence in footnote 6 indicates that Article 19.3 is 
an obligation at issue, while Article 19.4 is not."
300 The Panel understood China's statement that 
"it is obvious on the face of the panel request that China's claims in Part D included the same 
claims on which it prevailed in DS379" to mean Article 19.3, to the exclusion of Article 19.4.301 
4.4.  With respect to Article 32, the Panel viewed it "plausible" for China to claim that the 
measure(s), if inconsistent with Article 19, would also be inconsistent with Article 32.1, given that claims under Article 32.1, like claims under Article 10, are "consequential" claims.
302 Thus, on the 
basis of the general reference to Articles 10, 19,  and 32 of the SCM Agreement, the narrative, and 
footnote 6, the Panel found that Part D of China's panel request permitted "sufficiently clear inferences" as to the WTO obligations at issue, namely, Articles 10, 19.3, and 32.1 of the 
SCM Agreement.
303 
4.1.1  Function of Ar ticle 6.2 of the DSU 
4.5.  Before addressing the appeal by the United States that the Panel erred in concluding that 
China's panel request was not inconsistent with Article 6.2 of the DSU, we briefly consider the 
function of this provision. Article 6.2 of DSU provides in relevant part: 
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.  
4.6.  The requirements under Article 6.2 to identi fy the specific measure(s) at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem clearly are 
central to the establishment of the jurisdiction of the panel. Both elements constitute the "matter referred to the DSB", which forms the basis of the panel's terms of reference under Article 7.1 of 
                                               
293 Preliminary Ruling, para. 3.38. (fn omitted) 
294 Preliminary Ruling, para. 3.39. (fn omitted) 
295 Preliminary Ruling, para. 3.39.  
296 Preliminary Ruling, para. 3.39. (fn omitted) 
297 Preliminary Ruling, para. 3.42. 
298 Preliminary Ruling, para. 3.43 (quoting China's pane l request, fn 6, at p.  4). (emphasis omitted) 
299 Preliminary Ruling, para. 3.43. 
300 Preliminary Ruling, para. 3.43. The last two senten ces of footnote 6 of Chin a's panel request read:  
China has also excluded the four sets of parallel  AD/CVD investigations that were the subject of 
the recommendations and rulings of the DSB in United States – Definitive Anti-dumping and 
Countervailing Duties on Certain Products from China (DS379). The DSB has already found that 
the United States acted inconsistently with its obligations under the covered agreement by failing to investigate and avoid double remedies in those investigations. 
301 Preliminary Ruling, para. 3.45 (quoting China's response to United States' preliminary ruling request, 
para. 34). 
302 Preliminary Ruling, para. 3.40. (fn omitted) 
303 Preliminary Ruling, para. 3.47. WT/DS449/AB/R 
 
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  the DSU.304 Thus, in defining the scope of the dispute, Article 6.2 serves the function of 
establishing and delimiting the panel's jurisdiction.305 
4.7.  By establishing and defining the jurisdiction  of the panel, the panel request also fulfils a due 
process objective. Due process in the context of Article 6.2 consists in providing the respondent 
and third parties notice regarding the nature of the complainant's case306 to enable them to 
respond accordingly.307 However, a determination of whether due process has been respected does 
not necessitate a separate examination of whether the parties suffered prejudice, considering that 
"[t]his due process objective is not constitutive of, but rather follows from, the proper 
establishment of a panel's jurisdiction."308  
4.8.  In order to respect "both the letter and the spirit of Article 6.2 of the DSU"309, particularly the 
fulfilment of its functions to establish the panel's jurisdiction and observe due process, a panel 
must determine whether a panel request is sufficiently clear on the basis of an objective 
examination of the request as a whole310, as it existed at the time of filing311, and on the basis of 
the language used therein.312 As a minimum requirement, the panel request must list the article(s) 
of the covered agreement(s) claimed to have been violated.313 There may be situations, however, 
where such listing may not be "sufficient to present the problem clearly", as in instances where the articles contain multiple and/or distinct obligations.
314 Moreover, in order to "present the problem 
clearly", a panel request must "plainly connect" th e challenged measure(s) with the provision(s) 
claimed to have been infringed such that a respondent can "know what case it has to answer, and ... begin preparing its defence".
315  
4.9.  In addition, a panel must determine compliance with Article 6.2 "'on the face' of the panel 
request"316 as it existed at the time of filing. Thus, parties' submissions and statements during the 
panel proceedings cannot "cure" any defects in the panel request.317 Nevertheless, these 
subsequent submissions and statements may be cons ulted to the extent that they may confirm or 
clarify the meaning of the words used in the panel request.318 In any event, the determination of 
the conformity with Article 6.2 should be done on  a case-by-case basis, considering the particular 
context in which the measures exist and operate.319 This determination must be done on an 
                                               
304 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 639 (referring to 
Appellate Body Reports, Guatemala – Cement I , paras. 72 and 73; US – Carbon Steel , para. 125; US – 
Continued Zeroing , para. 160; US – Zeroing (Japan) (Article 21.5 – Japan) , para. 107; and Australia – Apples , 
para. 416). 
305 Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; US – Continued 
Zeroing , para. 161; EC and certain member States – Large Civil Aircraft , para. 640. 
306 Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; US – Carbon Steel , 
para. 126; EC and certain member States – Large Civil Aircraft , para. 640. 
307 Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; Chile – Price Band 
System , para. 164; US – Continued Zeroing , para. 161. See also Appellate Body Report, Thailand – H-Beams , 
para. 88. 
308 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 640. 
309 Appellate Body Report, US – Continued Zeroing , para. 161 (quoting Appellate Body Report, EC – 
Bananas III , para. 142). 
310 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 641 (referring to 
Appellate Body Reports, US – Carbon Steel , para. 127; US – Oil Country Tubular Goods Sunset Reviews , paras. 
164 and 169; US – Continued Zeroing , para. 161; and US – Zeroing (Japan) (Article 21.5 – Japan) , para. 108). 
311 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 642. 
312 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 641 (referring to 
Appellate Body Reports, US – Carbon Steel , para. 127; US – Oil Country Tubular Goods Sunset Reviews , paras. 
164 and 169; US – Continued Zeroing , para. 161; and US – Zeroing (Japan) (Article 21.5 – Japan) , para. 108). 
313 Appellate Body Reports, Korea – Dairy , paras. 123 and 124 (referring to Appellate Body Reports, 
Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; EC – Bananas III , paras. 145 and 147; and India – 
Patents (US) , paras. 89, 92, and 93); US – Carbon Steel , para. 130. 
314 Appellate Body Reports, China – Raw Materials , para. 220 (referring to Appellate Body Reports, 
Korea – Dairy , para. 124; and EC – Fasteners (China) , para. 598). 
315 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 162 (quoting 
Appellate Body Report, Thailand – H–Beams , para. 88). 
316 Appellate Body Report, US – Continued Zeroing , para. 161 (quoting Appellate Body Report, US – 
Carbon Steel , para. 127). 
317 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 787 (referring to 
Appellate Body Reports, EC – Bananas III , para. 143; and US – Carbon Steel , para. 127). 
318 See e.g. Appellate Body Report, US – Carbon Steel , para. 127. 
319 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 641. WT/DS449/AB/R 
 
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  objective basis, such that any circumstances taken into account may not contemplate those that 
are relevant only to a party to the panel proceedings.320  
4.1.2  The measure(s) at issue as identified in the panel request 4.10.  The identification of the specific measure(s)  at issue and the provision of a brief summary of 
the legal basis of the complaint are two separate requirements that a panel request must fulfil 
under Article 6.2 of the DSU.
321 While the identification of the measure(s) was not challenged in 
the present dispute, we find it useful to clarify the measure(s) at issue identified in Part D of 
China's panel request.  
4.11.  In its Preliminary Ruling, the Panel considered, for an analysis of the legal basis of the 
complaint, the countervailing duty (CVD) investigations and reviews identified in the panel request as the measures at issue in this dispute.
322 In some parts of its Report, the Panel also referred to 
these investigations and reviews initiated between 20 November 2006 and 13 March 2012 as the 
measures at issue.323 However, in other portions of its Report, the Panel described the "USDOC's 
'failure to investigate and avoid double remedies'" in these investigations and reviews as the 
measure at issue.324 More significantly, the Panel's find ings under the SCM Agreement concern 
"the United States' alleged failure to investigate and avoid double remedies in certain investigations and reviews initiated between 20 November 2006 and 13 March 2012"
325, and not 
the individual investigations and reviews per se . 
4.12.  Measures and claims are two distinct elements that should not be confused.326 Article 6.2 of 
the DSU "sets out separate requirements that must  each be satisfied in a panel request in order 
for a matter to form part of a panel's terms of reference".327 The "specific measure" identified in a 
panel request is the "object of the challenge", or, more precisely, "the measure that is alleged to 
be causing the violation of an obligation contained in a covered agreement".328 The "legal basis" of 
the complaint or the "claim", in contrast, is the "specific provision of the covered agreement that 
contains the obligation alleged to be violated".329 
4.13.  China's panel request identifies the "measures at issue" to include "any and all 
determinations or actions" by the US authorities relating to the "imposition or collection of 
countervailing duties" on imports into the United States from China in connection with 
countervailing duty investigations or reviews initiated between 20 November 2006 and 13 March 2012.
330 The "measures at issue" also comprise "the anti-dumping measures listed in 
Appendix B [of the panel request], including the definitive anti-dumping duties imposed pursuant 
to their authority, as well as the combined effe ct of these anti-dumping measures and the parallel 
countervailing duty measures identified in Appendix A".331 Lastly, the "measures at issue" include 
"the failure of the United States to provide the [USDOC] with legal authority to identify and avoid 
the double remedies that are likely to result when the USDOC applies countervailing duties in 
                                               
320 See e.g. Thailand – H-Beams , where the Appellate Body held that there is no assumed "continuity 
between claims raised in an underlying anti-dumping inve stigation and claims raised by a complaining party in 
a related dispute brought before the WTO". As a result, neither can it be assumed that "the range of issues" 
raised in the investigation will be the same as the cl aims brought before the WTO.  The Appellate Body added 
that, "although the defending party will be aware of the issues raised in an underlying investigation, other parties may not." (Appellate Body Report, Thailand – H-Beams , para. 94)  
321 See Appellate Body Report, Australia – Apples , para. 421. 
322 Preliminary Ruling, paras. 3.39-3.42 and 3.58. 
323 Panel Report, paras. 7.13-7.15 and 7.353. 
324 Panel Report, paras. 7.300, 7.359-7.360, and 7.363-7.364. 
325 Panel Report, para. 8.1.c. 
326 Appellate Body Report, Australia – Apples , para. 417 (referring to Appellate Body Report, EC – 
Selected Customs Matters , para. 132). 
327 Appellate Body Report, Australia – Apples , para. 421. 
328 Appellate Body Report, EC – Selected Customs Matters , para. 130.  
329 Appellate Body Report, EC – Selected Customs Matters , para. 130.  
330 China's panel request, pp. 1-2. (fn omitted) 
331 China's panel request, p. 2. WT/DS449/AB/R 
 
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  conjunction with anti-dumping duties determined in accordance with the US [NME] methodology" 
in the investigations and reviews initiated between 20 November 2006 and 13 March 2012.332 
4.14.  As we have pointed out, the Panel referred in several ways to the measure(s) challenged in 
China's panel request. In its Preliminary Ruling333, and in some sections of its Report334, the Panel 
considered the identified investigations and reviews as the measures  at issue. Certain other parts 
of the Panel Report, particularly the section ex amining China's claims under the SCM Agreement, 
describe the USDOC's failure to investigate and avoid double remedies in these investigations and 
reviews as the measure  at issue in this dispute.335 While the identification of the measure(s) at 
issue is not appealed, we consider it useful to clarify the measure(s) at issue in Part D of China's panel request to assess whether it identifies China's claims in compliance with Article 6.2 of the DSU. In this regard, we agree with the Panel to the extent it considered that China identified "the 
USDOC's failure to investigate and avoid double remedies" as the measure at issue in Part D of its 
panel request. Although the identified investigations and reviews initiated between 20 November 2006 and 13 March 2012 are measures taken by the United States, an examination of the panel 
request as a whole reveals that what China alleged to have violated the obligations contained in 
Articles 10, 19, and 32 of the SCM Agreement are not these individual investigations and reviews 
per se , but rather the supposed failure of the US authorities to investigate and avoid double 
remedies. Otherwise put, China is ultimately challenging a specific conduct and omission of the 
United States in these investigations and reviews, that is, the failure of its authorities to investigate and avoid double remedies, rather th an the investigations and reviews themselves. 
This failure of the USDOC to investigate and avoid double remedies, and the claims of 
inconsistency with Articles 10, 19, and 32 of the SCM Agreement, taken together, constitute the 
"matter referred to the DSB". Hence, we proceed be low on the basis that it is this failure to 
investigate and avoid double remedies that must be considered as the measure at issue identified 
in the panel request.  
4.1.3  The United States' claim that China's pa nel request is inconsistent with Article 6.2 
of the DSU 
4.15.  Having identified the measure at issue as the USDOC's failure to investigate and avoid 
double remedies in the identified countervailing duty investigations and reviews initiated from 20 November 2006 to 13 March 2012, we now turn to consider whether China's panel request provided a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.  
4.1.3.1  The text and narrative of the panel request 4.16.  The United States argues that the Panel employed a new and incorrect legal standard when 
it assessed whether China's panel request permitted "sufficiently clear inferences"
336, as the Panel 
engaged in a "legal interpretation" of Articles 19 and 32 of the SCM Agreement in ascertaining the "potentially relevant" claims.
337 China maintains that the Panel's use of the term "sufficiently clear 
i n f e r e n c e s "  i s  n o t  a n  a r t i c u l a t i o n  o f  a  " n e w  standard", as asserted by the United States, 
considering that "the Panel repeatedly cited the relevant text of Article 6.2, and on each occasion … accurately and completely quoted the requirement at issue before it."
338 China contends that 
Article 6.2 does "not bar[]", and in fact "frequently involves", the use of inferential reasoning.339  
4.17.  The Appellate Body has repeatedly held that, in order for a panel request to comply with the 
requirement under Article 6.2 of the DSU to provid e a summary of the legal basis of the complaint, 
the panel request must, at a minimum, list the articles of the covered agreements claimed to have 
                                               
332 China's panel request, p. 2. We  note that the identified measure relates to China's claims under 
Part C of its panel request, which China abandoned with its letter of 25 March 2013. (See infra, para. 4.47) 
333 Preliminary Ruling, paras. 3.39-3.42 and 3.58. 
334 Panel Report, paras. 7.13-7.15 and 7.353. 
335 Panel Report, paras. 7.300, 7.359-7.360, and 7.363-7.364. 
336 United States' other appell ant's submission, para. 17. 
337 United States' other appellant' s submission, paras. 20 and 21. 
338 China's appellee's submission, para. 33 (referring to Preliminary Ruling, paras. 3.17, 3.18, 3.32, 
3.33, 3.53, 3.60, and 4.1). 
339 China's appellee's submission, paras. 36 and 37. (fn omitted) WT/DS449/AB/R 
 
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  been violated.340 While the listing of treaty provisions is a necessary minimum prerequisite, there 
may be situations where this may not be sufficient to present the problem clearly, as in instances where the articles contain multiple and/or distinct obligations.
341 Also, in cases where the panel 
request challenges a number of measures on the basis of multiple WTO provisions, providing 
"a brief summary of the legal basis of the complaint sufficient to present the problem clearly may 
depend on whether it is sufficiently clear which 'problem' is caused by which measure or group of measures".
342 Additionally, the panel request must also "plainly connect the challenged measure(s) 
with the provision(s) of the covered agreements claimed to have been infringed".343 Whether or 
not a general reference to a treaty provision w ill be adequate to meet the requirement of 
sufficiency under Article 6.2 is to be examined on a case-by-case basis, taking into account the extent to which such reference sheds light on the nature of the obligation at issue.
344 Thus, we 
reiterate that the determination of whether a pane l request is "sufficiently precise" requires the 
scrutiny of the panel request "as a whole, and on the basis of the language used".345  
4.18.  Part D and footnote 6 of China's panel request are most relevant for this appeal. They read: 
D. Failure to Investigate and Avoid Double Remedies in Certain Investigations and 
Reviews Initiated Between 20 November 2006 and 13 March 2012 
Between 20 November 2006 and 13 March 2012, the US authorities initiated a series 
of anti-dumping and countervailing duty in vestigations and reviews that resulted in 
the imposition of anti-dumping and counter vailing duties in respect of the same 
imported products from China, either on a preliminary or final basis. In none of these investigations and reviews did the US authorities take steps to investigate and avoid 
double remedies.
6 
In light of the failure of the US authorities to investigate and avoid double remedies in 
the identified investigations and reviews, China considers that the resulting 
countervailing duty measures, including any countervailing duties collected pursuant 
to their authority, are inconsistent with Articles 10, 15, 19, 21, and 32 of the SCM Agreement and Article VI of the GATT 1994. China further considers that the 
associated anti-dumping measures in each such instance, including any anti-dumping 
duties collected pursuant to their authority, are inconsistent with Articles 9 and 11 of the AD Agreement and Article VI of the GATT 1994. 
____________________ 
6 Appendix A lists all countervailing duty investigations and reviews initiated between 
20 November 2006 and 13 March 2012 that included a parallel anti-dumping investigation. The parallel anti-dumping duty investigations are listed in Appendix B. The investigations and reviews that are the subject of the claims set forth in this subpart D are marked with an asterisk (*). China has excluded those investigations that resulted in a negative injury determination by the US International Trade Commission (indicated in a table), as those investigations did not result in the imposition of anti-dumping and countervailing duties. China has also excluded the four sets of parallel AD/CVD investigations that were the subject of the recommendations and rulings of the DSB in United States – Definitive Anti-dumping an d Countervailing Duties on Certain Products 
from China (DS379). The DSB has already found that the United States acted inconsistently with 
its obligations under the covered agreements by fa iling to investigate and avoid double remedies 
in those investigations.
 
                                               
340 Appellate Body Reports, Korea – Dairy , paras. 123 and 124 (referring to Appellate Body Reports, 
Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; EC – Bananas III , paras. 145 and 147; and India – 
Patents (US) , paras. 89, 92, and 93); US – Carbon Steel , para. 130. 
341 Appellate Body Report, Korea – Dairy , para. 124. 
342 Appellate Body Reports, China – Raw Materials , para. 220.  
343 Appellate Body Reports, China – Raw Materials , para. 220 (quoting Appellate Body Report, US – Oil 
Country Tubular Goods Sunset Reviews , para. 162). 
344 Appellate Body Report, US – Carbon Steel , para. 130 (referring to Appellate Body Report, Korea – 
Dairy , para. 124). 
345 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 641 (referring to 
Appellate Body Reports, US – Carbon Steel , para. 127; US – Oil Country Tubular Goods Sunset Reviews , 
paras. 164 and 169; US – Continued Zeroing , para. 161; and US – Zeroing (Japan) (Article 21.5 – Japan) , 
para. 108). WT/DS449/AB/R 
 
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  4.19.  Part D of China's panel request identifies legal claims under Articles 10, 19, and 32 of the 
SCM Agreement.346 Article 10 mandates Members to "take all necessary steps to ensure that the 
imposition of a countervailing duty" is in accordance with Article VI of the GATT 1994 and the SCM Agreement.
347 We agree with the Panel that "Article 10 is invoked to raise a consequential 
claim", that is, if the measure at issue is found inconsistent with Article 19, then it would also be 
inconsistent with Article 10.348 Further, we also agree that no additional detail is required in 
respect of Article 10, considering that the provision consists of only one paragraph.349  
4.20.  Turning to Article 32 of the SCM Agreement, another consequential claim350, we note that 
only Articles 32.1, 32.2, 32.5, and 32.6 impose obligations on Members. Article 32.1 mandates that actions against a subsidy of another Member may be taken only if it is "in accordance with the provisions of GATT 1994".
351 Article 32.2 provides that reservations in respect of any of the 
provisions of the SCM Agreement may not be ente red "without the consent of the other Members". 
Article 32.5 obligates Members to "take all necessary steps" to ensure the conformity of its laws, regulations, and administrative procedures with the provisions of the SCM Agreement. Article 32.6 
directs Members to inform the SCM Committee of "any changes in its laws and regulations", as 
well as in the administration thereof, that are relevant to the SCM Agreement. 
4.21.  We observe that Article 32.1 is the only paragraph that provides an obligation with respect 
to the imposition of countervailing duties. Articl es 32.2, 32.5, and 32.6 are not relevant in this 
dispute, as the obligations they impose concern reservations with, and the general implementation 
of, the SCM Agreement. Specifically, Article 32.2 is  not pertinent, since the present dispute does 
not involve any reservations with respect to an y of the provisions of the SCM Agreement. As 
regards Article 32.5, China does not allege that the United States failed to make its laws, 
regulations, and administrative procedures conform to the SCM Agreement.
352 With respect to 
Article 32.6, China does not contend that the United States failed to inform the SCM Committee of 
any changes in its laws and regulations. On the basis of these considerations, we agree with the 
Panel that only Article 32.1 appears to be relevant in this dispute and, like Article 10, its alleged violation is merely consequential to the alleged violation of Article 19.
353  
4.22.  We now turn to China's claim under Article 19 of the SCM Agreement, which is listed in the 
panel request without identification of a paragraph of  that Article. We note that the Appellate Body 
has previously described Article 19.1 as a pr ovision that "allows for the imposition of 
countervailing duties when subsidized imports 'are causing injury'".354 Article 19.2 gives Members 
the discretion to determine whether or not a countervailing duty is to be imposed and, if so, 
whether it can be an amount less than the total amount of the subsidy. Further, this provision encourages Members' investigating authorities "to link the actual amount of the countervailing 
duty to the injury to be removed".
355 Thus, Article 19.1 establishes when a countervailing duty 
                                               
346 In a letter dated 25 March 2013, China dropped its claims under Articles 15 and 21 of the 
SCM Agreement, Article VI of the GATT 1994, and Articles  9 and 11 of the Anti-Dumping Agreement in Part D 
of its panel request, as well as all of the claims in Part C. (See Preliminary Ruling, para. 3.2) The issue of these claims abandoned by China is  addressed further below. 
347 Article 10 of the SCM Agreement reads:  
Members shall take all necessary steps to ensure th at the imposition of a countervailing duty on 
any product of the territory of any Member import ed into the territory of another Member is in 
accordance with the provisions of Article VI of GATT 1994 and the terms of this Agreement. Countervailing duties may only be  imposed pursuant to investigat ions initiated and conducted in 
accordance with the provisions of this Ag reement and the Agreement on Agriculture. 
(fn omitted) 
348 Preliminary Ruling, para. 3.35 (ref erring to Appellate Body Report, US – Softwood Lumber IV , 
para. 143). 
349 Preliminary Ruling, para. 3.34. 
350 Preliminary Ruling, para. 3.40 (ref erring to Appellate Body Report, US – Softwood Lumber IV , 
para. 143). 
351 Article 32.1 provides that "[n]o specific action against a subsidy of another Member can be taken 
except in accordance with the provisions of GATT 1994, as interpreted by this Agreement." 
352 Preliminary Ruling, para. 3.40. 
353 Preliminary Ruling, para. 3.40 (ref erring to Appellate Body Report, US – Softwood Lumber IV , 
para. 143). 
354 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 558. 
(fn omitted) 
355 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 557. WT/DS449/AB/R 
 
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  may be imposed, while Article 19.2 grants Members the discretion for such imposition. Taking into 
account that the measure at issue in this dispute concerns the failure of the US authorities to investigate and avoid double remedies in investigations and reviews already initiated, as well as the resulting countervailing duties already imposed, we therefore consider that neither Article 19.1 
nor Article 19.2 is relevant to China's complaint. 
4.23.  We now examine the remaining two para graphs of Article 19 of the SCM Agreement, 
paragraphs 3 and 4. Article 19.3 states that countervailing duties shall be levied in the 
"appropriate amounts in each case" and "on a non-discriminatory basis".
356 Article 19.4 mandates 
that the imposition of countervailing duties must not be "in excess of the amount of the subsidy found to exist".
357 Based on the language of Articles 19.3 and 19.4, we agree with the Panel that 
these two provisions are "the potentially relevant obligations"358 to the extent that these are the 
only paragraphs of Article 19 that impose substa ntive obligations on the permissible amounts of 
countervailing duties. Since both paragraphs specif ically address the quantitative limits on the 
imposition of countervailing duties, Articles 19.3 and 19.4 are "closely related" provisions. The 
obligations contained in Articles 19.3 and 19.4 share an "interlinked nature", as both provisions 
pertain to the final stage of countervailing duty proceedings, mandating the levy of countervailing duties "in the appropriate amounts", "on a non-discriminatory basis", and not "in excess of the 
amount of the subsidy".
359 We note, however, that the Panel excluded Article 19.4 as a legal basis 
of China's complaint on account of the meaning the Panel ascribed to footnote 6 of the panel request, as is explained further below. While the United States appeals the Panel's finding that the panel request sufficiently identified China's cl aim under Article 19.3 of the SCM Agreement as 
being inconsistent with Article 6.2, the Panel's finding excluding Article 19.4 from its terms of 
reference
360 has not been challenged on appeal. Thus, we shall limit our analysis below to the 
issue of whether Article 19.3 of the SCM Agreement was identified with sufficient clarity in the 
panel request. 
4.24.  The Appellate Body has examined in previo us disputes panel requests that did not specify 
the relevant paragraphs of a provision containing multiple obligations. It found instances when a 
general reference to an article containing multiple obligations satisfied the requirements of 
Article 6.2 of the DSU when considered in the context of the language used in the panel request read as a whole. In Thailand – H-Beams , for example, the Appellate Body held that a general 
reference to Article 3 of the Anti-Dumping Agreem ent, without identifying the relevant paragraphs, 
was sufficient to fulfil the requirements of Ar ticle 6.2 of the DSU, considering that the panel 
request "referred explicitly to the specific language of Article 3".
361 The Appellate Body considered 
that certain claims under Article 5 of the Anti -Dumping Agreement that neither indicated the 
relevant paragraphs nor used the specific language of the provision were consistent with 
Article 6.2 of the DSU because "Article 5 sets out various but closely related procedural steps" and its obligations share an "interlinked nature".
362 We note that the Appellate Body considered that 
the panel request contained elements that went beyond a "mere listing"363 of articles. In 
presenting the legal claims, the panel request in Thailand – H-Beams used the specific language 
                                               
356 Article 19.3 provides: 
When a countervailing duty is im posed in respect of any product,  such countervailing duty shall 
be levied, in the appropriate amounts in each case, on a non-discriminatory basis on imports of 
such products from all sources found to be subsid ized and causing injury, except as to imports 
from those sources which have renounced any subsidies in question or from which undertakings under the terms of this Agreement have been ac cepted. Any exporter whose exports are subject 
to a definitive countervailing duty but who has no t actually investigated for reasons other than a 
refusal to cooperate, shall be en titled to an expedite d review in order that the investigating 
authorities promptly establish an individual countervailing duty rate for that exporter. 
357 Article 19.4 reads: "No countervailing duty shall be levied on any imported product in excess of the 
amount of the subsidy found to exist, calculated in terms of subsidization per unit of the subsidized and exported product." (fn omitted) 
358 Preliminary Ruling, para. 3. 39 (quoting Panel Reports, EC – Approval and Marketing of Biotech 
Products , para. 7.47, reproducing para. 77 of the panel's preliminary ruling in those disputes).  
359 See Appellate Body Report, Thailand – H-Beams , para. 93. In addition, we note that the "lesser duty" 
rule in Article 19.2 is also concerned wi th the amount of duty – albeit at th e earlier stage of the imposition of a 
countervailing duty order. 
360 Preliminary Ruling, para. 3.43. 
361 Appellate Body Report, Thailand – H-Beams , para. 90. 
362 Appellate Body Report, Thailand – H-Beams , para. 93. 
363 Appellate Body Report, Thailand – H-Beams , para. 90. WT/DS449/AB/R 
 
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  and content of the treaty provisions at issue, and identified provisions containing interlinked 
obligations. Thus, in its consideration of whether the panel request complied with Article 6.2, the Appellate Body placed emphasis on these elements in the panel request that went beyond the "mere listing" of articles.
364  
4.25.  In this case, though we agree with the Panel that Articles 19.3 and 19.4 of the 
SCM Agreement are "potentially relevant" to China's panel request365, we underscore that the 
concern of these provisions is not limited to "double remedies", but instead covers obligations 
broader in scope. On the one hand, Article 19.3 pert ains to the amount of the duty to be levied 
("in the appropriate amounts"), as well as to the manner in which it is imposed ("on a non-discriminatory basis"). On the other hand, Article 19.4 generally limits the maximum amount of the countervailing duty. Thus, the fact that th ese obligations under Articles 19.3 and 19.4 may 
be interlinked does not necessarily, in itself, provide a summary of the legal basis of the complaint 
sufficient to present the problem clearly. Whether the general reference to Article 19 is sufficient to identify Article 19.3 as the legal basis of th e claim depends not only on the nature of the 
obligations under Article 19 in general, and Article 19.3 in particular, but also on the panel request 
as a whole, including its narrative and appendices. We must, therefore, examine the narrative to see whether the panel request, as a whole, conf orms to the requirements of Article 6.2 of 
the DSU. 
4.26.  In order for a panel request to meet the requirement of Article 6.2 to "present the problem 
clearly", it must "plainly connect the challenged measure(s) with the provision(s) of the covered agreements claimed to have been infringed".
366 The narrative of a panel request, therefore, 
functions to "explain succinctly how or why  the measure at issue is considered by the complaining 
Member to be violating the WTO obligation in question".367 
4.27.   We note that the Panel, in its Preliminary Ruling, found that the narrative description of the 
problem raised in the panel request concerned "a very specific issue: the United States' alleged 
'failure to investigate and avoid double remedies in certain investigations and reviews'".368 The 
Panel also observed that the panel request defined "double remedies" as "the double remedies that 
are likely to result when the USDOC applies countervailing duties in conjunction with anti-dumping 
duties determined in accordance with the US [NME] methodology".369 
4.28.  Like the Panel, we attach significance to the fact that China ultimately challenges only one 
measure in Part D of its panel request370, namely, the failure of the US authorities to investigate 
and avoid double remedies in the identified investigations and reviews. The explicit reference in 
the panel request to "double remedies" is supplemented by an elaboration of what this concept means in the context of the present dispute by stat ing that it is "the double remedies that are 
likely to result when the USDOC applies countervailing duties in conjunction with anti-dumping 
duties determined in accordance with the US [NME ] methodology" in respect of the investigations 
or reviews initiated between 20 November 2006 and 13 March 2012.
371 The panel request 
narrative sufficiently explains that, in the investigations and reviews mentioned in Appendices A 
and B, with the exception of those that resulted  in a negative determination or were already 
adjudicated in DS379, the US authorities failed to investigate and avoid double remedies that may have resulted therefrom. Consequently, the panel request alleges that this failure of the 
United States amounts to a violation of Article 19 of the SCM Agreement. It is true that the term 
"double remedies" forms part of the identification of the measure (the failure of the US authorities 
                                               
364 This approach, in our view, conveys the underst anding that the listing of a treaty provision 
containing multiple obligations, while a minimum requirement, would have been insufficient to present the problem clearly had these circumstances including the references to text and content of the relevant provisions not been present. 
365 Preliminary Ruling, para. 3.43. 
366 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 162. 
367 Appellate Body Reports, China – Raw Materials , para. 226 (quoting Appellate Body Report, EC – 
Selected Customs Matters , para. 130 (emphasis original)). 
368 Preliminary Ruling, para. 3.38. 
369 Preliminary Ruling, para. 3.38 (quoti ng China's panel request, p. 2). 
370 As we have pointed out, China's panel request re fers to the individual investigations and reviews 
initiated on or between 20 November 2006 and 13 March 2012, as identified in Appendices A and B to its panel request, as the "measures at issue". 
371 China's panel request, p. 2; Preliminary Ruling, para. 3.38. WT/DS449/AB/R 
 
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  to investigate and avoid double remedies). Yet, the word "double" in this term also gives an 
indication that the problem with "double remedies" is that they result in the levying of countervailing duties exceeding the "appropriate amounts in each case" in the sense of Article 19.3 of the SCM Agreement. Therefore, it is our vi ew that the narrative's reference to "double 
remedies" assists in presenting the problem clearly, by providing a connection between the 
measure at issue (the failure of the US authorit ies to investigate and avoid double remedies) and 
the legal claims (Articles 10, 19, and 32 of the SCM Agreement). In this way, the term "double 
remedies" "plainly connects" and aids in demonstrating how the measure at issue is inconsistent 
with the relevant legal provision in Article 19, i.e. Article 19.3. 
4.29.  Having said that, we emphasize that, ideally, the panel request in this dispute would have 
referred not only to the specific measure at issue (the failure of the US authorities to investigate 
and avoid double remedies), but also to the specific provision concerned, namely, Article 19.3 of 
the SCM Agreement. However, simply specifying Arti cle 19.3, or adopting its exact language in the 
panel request, without making a reference to "double remedies", would not necessarily have 
presented the problem clearly. As we have explained, the obligations under Article 19.3 to impose 
countervailing duties "in the appropriate amounts" and "on a non-discriminatory basis" are much broader in scope than the specific concept of "double remedies". When a Member imposes 
concurring countervailing and anti-dumping duties on the same imports, strictly speaking, the 
amount of countervailing duty may still be levied "in the appropriate amounts" or not in excess of the amount of the subsidy found to exist. Neither does the concurrent imposition necessarily mean that the anti-dumping duty exceeds the margin of dumping found to exist. The problem arises 
when, as a result of the parallel imposition of countervailing and anti-dumping duties, the same 
subsidization is offset twice in calculating the amount of subsidy and the dumping margin. Under these circumstances, countervailing duties may not be levied "in the appropriate amounts in each 
case", contrary to Article 19.3. Hence, the reference to "double remedies" in the panel request 
assumes a key role in explaining succinctly how or why the measure at issue is considered by China to be violating Articles 10, 19.3, and 32. 1 of the SCM Agreement, and thus assists in 
presenting the problem clearly within the meaning of Article 6.2 of the DSU.  
4.30.  From our examination of China's panel request, we conclude that, even without a 
specification of the relevant paragraphs of Ar ticle 19 of the SCM Agreement, Article 19.3 is 
nonetheless capable of being identified as the pertinent provision. The reference to "double 
remedies" in the narrative contextualizes China's panel request and helps present the problem 
clearly by creating a plain connection between the measure at issue and the legal claims. By referring to "the double remedies that are likely to result when the USDOC applies 
countervailing duties in conjunction with anti-dumping duties determined in accordance with the 
US [NME] methodology", the narrative provides an explanation of how and why the failure of the US authorities to investigate and avoid double remedies in the identified investigations and reviews 
allegedly violates the obligations under Article 19 of the SCM Agreement, and specifically those 
under Article 19.3. Therefore, the narrative in the panel request contributes to presenting the problem clearly, that is, in the investigations and reviews listed in the appendices (except those resulting in a negative determination or those that were the subject of DS379), the US authorities 
allegedly failed to investigate and avoid potential double remedies. Consequently, the 
United States failed to ensure that countervailing duties were levied "in the appropriate amounts in each case", causing an alleged violation of Article 19.3 of the SCM Agreement. From our above 
analysis of the plain text of the panel request at hand, it is clear that the general reference to 
Article 19 of the SCM Agreement, when read in co njunction with the narrative, can be considered 
to meet the requirement of Article 6.2 of the DSU to "provide a brief summary of the legal basis of 
the complaint sufficient to present the problem clearly".  
4.31.  Nevertheless, we reiterate that the listing of the treaty provision(s) allegedly violated is 
normally a prerequisite for a panel request to be consistent with Article 6.2 of the DSU.
372 
A general reference to a treaty article containing multiple obligations, without specifying the 
relevant paragraph, or one of the multiple obligations thereunder, may be found wanting in 
respect of the degree of clarity required by Article 6.2. Such general reference may meet the requirement under Article 6.2 depending on the circumstances of each case, including whether 
                                               
372 Appellate Body Report, US – Carbon Steel , para. 130 (referring to Appellate Body Report, Korea – 
Dairy , para. 124). WT/DS449/AB/R 
 
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  "mere reference to a treaty provision sheds light on the nature of the obligation at issue"373, and 
whether the text read in conjunction with the narrative is sufficient to "present the problem 
clearly". We emphasize that a complainant who includes in its panel request only a general reference to a treaty article containing multiple obligations runs the risk that its request may fall 
short of the sufficiency threshold under Article 6.2. 
4.32.  We now turn to address the argument of  the United States that the Panel purportedly 
applied a new and incorrect legal standard when it stated that "China's panel request need only 
provide as much information on the legal basis as to 'permit[] sufficiently clear inferences' to 
China's legal claims."
374 The United States asserts that, instead of examining the panel request on 
its face, the Panel engaged in a "legal interpreta tion" of Articles 19 and 32 of the SCM Agreement 
when it sought to discern whether China's claims had a "plausible basis" or were "potentially 
relevant".375 The United States adds that, in so doing, the Panel went into the merits of the claims, 
rather than determining whether the request pr esented the problem clearly, or whether such 
claims were included in the legal basis set out in the panel request.376 
4.33.  We do not find it erroneous for the Panel to have used the term "sufficiently clear 
inferences" as such in its analysis of the conformity of China's panel request with Article 6.2 of the DSU. We also disagree with the United States that  the Panel's use of "inferences" amounted to an 
introduction of a new standard in an Article 6.2 analysis. Rather, as the Panel stated, using 
"sufficiently clear inferences" is merely a way of explaining how "the WTO obligations at issue in a panel request, while not explicitly identified by paragraph number, are nonetheless identifiable from the panel request considered as a whole."
377 The use of inferential reasoning may be 
inevitable in ascertaining compliance with Article 6.2, for instance, in situations where a panel 
request makes a general reference to a set of measures or legal claims containing multiple obligations, and the specific measure and/or legal claim at issue must be discerned from the panel 
request as a whole, including its narrative and any annexes. In examining the panel request's 
consistency with the requirements of Article 6.2, it is often unavoidable for a panel to use inferences in order to determine whether the measure at issue is identified with sufficient clarity, 
considering the particular context in which the measure exists and operates
378, or whether the 
respondent and third parties are given sufficient notice of the nature of the obligation and the treaty invoked. The extent to which a panel may use inferential reasoning will vary on the specifics of each case, taking into consideration the need to examine the language of the panel request on 
its face, as a whole, and as it existed at the time of filing.
379  
4.34.  In reviewing the Panel's use of "sufficiently clear inferences" in its assessment of whether 
China's panel request presented the problem clearly, we find it useful to make a comparison 
between the present dispute and the disputes in China – Raw Materials , referred to by the 
United States. In China – Raw Materials , the Appellate Body found that it was not clear from the 
panel requests, which listed 37 legal instruments as measures and 13 treaty provisions as legal 
claims, "which allegations of error pertain[ed] to which particular measure or set of measures 
identified in the panel requests".380 Neither was it clear to the Appellate Body "whether each of the 
listed measures relate[d] to one specific allegation described in the narrative paragraphs, or to several or even all of [those] allegations, and whether each of the listed measures allegedly 
violate[d] one specific provision of the covered agreements, or several of them".
381 According to 
the Appellate Body, "the combination of a wide-ranging list of obligations together with 37 legal instruments … [was] such that it [did] not allow the 'problem' or 'problems' to be discerned clearly 
                                               
373 Appellate Body Report, US – Carbon Steel , para. 130 (referring to Appellate Body Report, Korea – 
Dairy , para. 124). 
374 United States' other appellant's submission, para. 10 (referring to Preliminary Ruling, paras. 3.2, 
3.35, 3.42, 3.47, 3.48, 3.51, and 4.1). 
375 United States' other appellant' s submission, paras. 20 and 21. 
376 United States' other appellant' s submission, paras. 20 and 21. 
377 Preliminary Ruling, para. 3.35. 
378 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 641. 
379 Appellate Body Report, EC and certain member States – Large Civil Aircraft , paras. 641 and 642 
(referring to Appellate Body Reports, US – Carbon Steel , para. 127; US – Oil Country Tubular Goods Sunset 
Reviews , paras. 164 and 169; US – Continued Zeroing , para. 161; and US – Zeroing (Japan) (Article 21.5 – 
Japan) , para. 108). 
380 Appellate Body Reports, China – Raw Materials , para. 226. 
381 Appellate Body Reports, China – Raw Materials , para. 226. (fn omitted) WT/DS449/AB/R 
 
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  from the panel requests."382 Because of this indiscriminate listing of measures and obligations, the 
Appellate Body found that the panel reques ts were unable to "explain succinctly how or why  the 
measure at issue [was] considered by the complaining Member to be violating the WTO obligation in question".
383  
4.35.  In contrast, Part D of China's panel request in this dispute identifies one measure: the 
failure of the US authorities to avoid and invest igate double remedies. The panel request's general 
reference to Articles 10, 19, and 32 of the SCM Agreement is contextualized by the narrative's 
reference to "double remedies", which sheds light on  the nature of the specific obligations at issue 
– i.e. Articles 10, 19.3, and 32.1. Thus, the panel request in this dispute, unlike those in China – 
Raw Materials , provides a plain connection between the failure of the United States to investigate 
and avoid double remedies, on the one hand, and Article 19 of the SCM Agreement, on the other 
hand, such that the problem in respect of Article 19.3 is presented with sufficient clarity and is 
thus in compliance with Article 6.2 of the DSU. 
4.36.  The preceding analysis of the text and narrative of China's panel request is, in our view, 
sufficient to conclude that the panel request meet s the requirements of Article 6.2 of the DSU to 
identify the measure at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. In the lig ht of the arguments raised by the participants 
on appeal, we nonetheless review the Panel's trea tment of footnote 6 of China's panel request to 
ascertain whether it confirms our interpretation of the panel request, as well as in keeping with the 
principle that the language used in panel requests should be considered as a whole.  
4.37.  The United States challenges the Panel's reliance on the last two sentences of footnote 6 of 
China's panel request to conclude that "China intended only to raise a substantive claim under 
Article 19.3".
384 The United States contends that, in considering the particular findings in the panel 
and Appellate Body reports in US – Anti-Dumping and Countervailing Duties (China) (DS379), the 
Panel  used "an external source to inform the legal basis in the panel request."385 The United States 
asserts that the Panel's dismissal of China's own explanation that it intended to bring claims under Article 19 as an "integrated whole"
386 "underscores the error in using an analysis based on 
inferences" in examining China's panel request.387 
4.38.  China dismisses the United States' argument against the Panel's reliance on footnote 6 and 
the relevant findings in DS379 on the ground that, having "expressly referenced the findings" in that dispute in its panel request, "it was not merely appropriate for the Panel to take them into 
account, it was incumbent upon the Panel to do so in light of the Appellate Body's often repeated 
admonition to 'consider[] the panel request as a whole, and in the light of attendant 
circumstances'".
388 According to China, the United States' argument that the Panel "'dismiss[ed] 
the complaining Party's own explanation of the legal basis' of its claim"389 "would improperly 
introduce a complaining party's purported 'intent' into the Article 6.2 analysis, while simultaneously nullifying a Panel's obligation to undertake 'an objective assessment of the matter 
before it' under Article 11 of the DSU".
390 
4.39.  We start by observing that footnotes are pa rt of the text of a panel request, and may be 
relevant to the identification of the measure at i ssue or the presentation of the legal basis of the 
complaint. In China's panel request, footnote 6 reads: 
                                               
382 Appellate Body Reports, China – Raw Materials , para. 231. 
383 Appellate Body Reports, China – Raw Materials , para. 226 (quoting Appellate Body Report, EC – 
Selected Customs Matters , para. 130 (emphasis original)).  
384 United States' other appell ant's submission, para. 22. 
385 United States' other appellant's submis sion, para. 22. See also ibid., para. 25. 
386 United States' other appellant's submission, para. 34. (fn omitted) 
387 United States' other appell ant's submission, para. 36. 
388 China's appellee's submission, para. 53 (quoting Appella te Body Report, US – Carbon Steel , 
para. 127). (emphasis original) 
389 China's appellee's submission, para. 55 (quoting  United States' other appellant's submission, 
para. 36). 
390 China's appellee's submission, para. 57. WT/DS449/AB/R 
 
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  Appendix A lists all countervailing duty investigations and reviews initiated between 
20 November 2006 and 13 March 2012 that included a parallel anti-dumping investigation. The parallel antidumping duty investigations are listed in Appendix B. The investigations and reviews that are the subject of the claims set forth in this 
subpart D are marked with an asterisk (*).  China has excluded those investigations 
that resulted in a negative injury determination by the US International Trade Commission (indicated in the table), as those investigations did not result in the 
imposition of anti-dumping and countervailing duties. China has also excluded the four 
sets of parallel AD/CVD investigations that were the subject of the recommendations and rulings of the DSB in United States – Definitive Anti-Dumping and Countervailing 
Duties on Certain Products  from China (DS379). The DSB has already found that the 
United States acted inconsistently with its obligations under the covered agreements 
by failing to investigate and avoid double remedies in those investigations. 
4.40.  The Panel considered footnote 6 as "useful context for purposes of [its] inquiry into whether 
it [was] possible to draw sufficiently clear inferences concerning the obligations(s) on which China 
wishe[d] to base its claims in Part D".
391 In its view, the statement in footnote 6 that the DSB had 
"already found that the United States acted inconsistently with its obligations … in those 
investigations" indicated that China sought to obtain in the present dispute findings of violation 
"that parallel the findings that China had previously obtained" in  DS379392, where the 
Appellate Body made no finding with respect to Article 19.4. According to the Panel, "while the narrative reference to 'double remedies' in Part D suggests that both Articles 19.3 and 19.4 are 
potentially relevant WTO obligations at issue, consideration of the last sentence in footnote 6 
indicates that Article 19.3 is an obligation at issue, while Article 19.4 is not".
393 Moreover, the 
Panel found that, had China wished to raise claims under Article 19.4, China should not have 
referred to the previous ruling of the DSB that the United States had acted "inconsistently" with its 
WTO obligations. This was especially so considering China's own argument that "it is obvious on the face of the panel request that China's claims in Part D included the same claims on which it 
prevailed in DS379" – i.e. Article 19.3, and not Article 19.4.
394 We note that most of the Panel's 
reasoning referring to footnote 6 addressed the issue of whether China's panel request properly identified its claim under Article 19.4. In this respect, we recall our observation above that the Panel's finding excluding China's claim under Arti cle 19.4 of the SCM Agreement from its terms of 
reference has not been appealed. 
4.41.  We further note that footnote 6 refers to Appendices A and B to the panel request, which list 
the parallel countervailing duty and anti-dumping investigations and reviews initiated between 
20 November 2006 and 13 March 2012. Footnote 6 also states that China excluded from this list of 
investigations and reviews those that resulted in a negative injury determination, and those that were already the subject of the dispute in DS379.  Thus, the references to the current Appendices 
and to DS379 merely appear to indicate which investigations and reviews were the subject of, and 
which were excluded from, Part D of China's panel request. In our view, footnote 6 illustrates and confirms the panel request's definition of "double remedies" by referring to the lists of parallel countervailing duty and anti-dumping investigations in Appendices A and B that may have resulted 
in the "double remedies" that the US authorities allegedly failed to investigate and avoid. The 
statement that the DSB had "already found that the United States had acted inconsistently with its 
obligations under the covered agreements by failing to investigate and avoid double remedies"  
– similar to the explanation that some investigations "resulted in a negative injury determination 
by the US International Trade Commission" – mere ly provides the reason why China excluded 
some of the investigations and reviews from the co verage of the panel request. This exclusion of 
certain investigations from China's challenge is not before us, and neither was it disputed before 
the Panel. 
                                               
391 Preliminary Ruling, para. 3.42. 
392 Preliminary Ruling, para. 3.43 (quoting China's pane l request, fn 6, at p.  4). (emphasis omitted) 
393 Preliminary Ruling, para. 3.43. 
394 Preliminary Ruling, para. 3.45. (fn omitted) WT/DS449/AB/R 
 
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  4.42.  The meaning that the Panel ascribed to the last two sentences of footnote 6 ultimately led 
the Panel to narrow down the scope of China's claims under Article 19 to Article 19.3, which 
contrasted with China's own statement that its claims encompass both Articles 19.3 and 19.4.395 
That Part D includes "the same claims on which [China] prevailed in DS379"396 does not 
necessarily translate to the exclusion of Article 19.4 as a legal claim. After all, footnote 6 as a 
whole is of very limited assistance in identifying China's claim under Article 19.3. As we have just noted, the Panel relied on the text of that footnote in its reasoning excluding China's claim under 
Article 19.4, an issue that is not before us in this appeal. Ultimately, footnote 6 does not provide 
an express reference to any of China's legal claims, but rather to the "subject of the claims", or the investigations and reviews to which the measure at issue pertains.  
4.43.  We disagree with the manner in which the Panel read China's panel request and especially 
footnote 6 as excluding China's claim under Article 19.4. The Panel reached this conclusion by 
reading too much into the language used in footnote 6, rather than by limiting itself to the panel request's textual and contextual elements. In part icular, we do not see in the text of the last 
sentence of footnote 6 the exclusion of Article 19.4 on account of a general reference to measures 
found inconsistent in DS379. Considering which in consistencies have been found or have not been 
found in DS379 goes beyond what is specifically mentioned in the text of footnote 6. This 
approach, in our view, is not examining the panel request "on its face", as required by Article 6.2 
of the DSU. However, footnote 6, as part of the text of China's panel request in this dispute, can 
be used to clarify and supplement the panel request's definition of "double remedies" by referring precisely to the parallel countervailing duty and anti-dumping investigations that purportedly 
resulted in such remedies. Thus, we do not agree th at footnote 6 can be used, as the Panel did, to 
refer to elements, such as the findings of inconsistency or the lack thereof by the Appellate Body in DS379, which were applicable to the specific circumstances of that dispute. 
4.44.  In any event, we are not called upon to pronounce on whether China's panel request 
includes a sufficient identification of a claim under Article 19.4, considering that the Panel's exclusion of Article 19.4 from its terms of reference is not challenged on appeal. As we have 
already explained, in respect of China's claim under  Article 19.3, by referring to double remedies 
and to Article 19 of the SCM Agreement, as well as to the consequential claims, the text and the narrative of China's panel request provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.  
4.45.  On the basis of our examination of all of the components of the panel request as a whole, 
we consider that the references to Articles 10, 19, and 32 of the SCM Agreement, read in the context of the narrative explanation, allow for the identification of the relevant claims  
– Articles 10, 19.3, and 32.1 – relating to the measure at issue in this dispute. The mention of 
"double remedies" in the panel request identifies the problem and plainly connects the measure at issue (the failure of the US authorities to investigate and avoid double remedies) and the legal 
claims (Articles 10, 19.3, and 32.1 of the SCM Agreement) in a manner that "provide[s] a brief 
summary of the legal basis of the complaint sufficient to present the problem clearly".  
4.1.3.2  Abandoned claims 4.46.  Our foregoing analysis of China's panel re quest and its conformity with Article 6.2 of the 
DSU highlights an important consideration: A challenge to a panel request under Article 6.2 may 
be avoided by specifying the particular paragraph of a treaty provision containing more than one 
                                               
395 China's response to United States' prelimin ary ruling request, para. 26. China stated: 
These [Article 19] obligations are not "distinct" in  any way. On the contrary, these provisions are 
closely interlinked and all relate to a single issue: the determination of the amount of the countervailing duty to impose. The provisions of each paragraph are inextricably related to each other. For example, Article 19.4 makes clear that  the "appropriate" amount of a countervailing 
duty under Article 19.3 cannot be greater than the amount of the subsidy found to exist. Articles 19.1 and 19.2, along with Article 19.3 itself, operate together to establish that the "appropriate" amount of a countervailing duty should  have some relationship to the injury that is 
being caused by subsidized imports.  
(fns omitted) See also China's comments on United St ates' comments on China's response to United States' 
preliminary ruling request, para. 6. China stated: "Articles 19.3 and 19.4 are the only two paragraphs of Article 19 that impose any substantive obligation that would be relevant to the issue of double remedies." 
396 Preliminary Ruling, para. 3.45. (fn omitted) WT/DS449/AB/R 
 
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  obligation, and making a plain connection between the measure at issue and the legal claim 
sufficient to present the problem clearly. We thus find it necessary to underscore that listing general or over-inclusive legal claims in a panel request runs the risk of having such claims excluded from the panel's terms of reference if, as a consequence, the panel request fails to 
present the problem clearly. 
4.47.  In this regard, we refer to Part D of China's panel request, which lists Articles 10, 15, 19, 
21, and 32 of the SCM Agreement, Article VI of  the GATT 1994, and Articles 9 and 11 of the 
Anti-Dumping Agreement as the legal claims. In its letter to the Panel dated 25 March 2013, China 
expressed its intention not to pursue its claims und er Part C of the panel request, and limited its 
claims in Part D to Articles 10, 19, and 32 of the SCM Agreement.
397 Relying on China's 
representation, the Panel considered that China had "v alidly abandoned" all of its claims in Part C, 
and some of its claims in Part D, but did not modify the Panel's terms of reference.398 The Panel 
also found that ruling on the consistency of these abandoned claims with Article 6.2 "would make no practical difference", as the Panel would make no ruling on the merits of those claims.
399 The 
United States did not appeal this finding by the Panel.  
4.48.  The United States argues in its other appeal that the Panel failed to examine China's panel 
request on its face as it existed at the time of filing, and instead sought to "cure" its vagueness 
and deficiency by relying on China's subsequent statements.400 In particular, the United States 
refers to the above-mentioned letter of China dated 25 March 2013401, and argues that "the 
abandonment of claims in an attempt to cure a deficient panel request should not be relied upon by a panel when determining the sufficiency of a panel request on its face as it existed at the time 
of filing."
402 In response, China argues that the United States was wrong in insisting that the Panel 
treated China's letter dated 25 March 2013 "as the equivalent of a newly filed panel request"403, 
considering the Panel's recognition that China could not "unilaterally modify" its terms of 
reference.404 
4.49.  We do not agree with the United States that China's abandonment of its claims "cured" the 
alleged lack of specificity of Part D of the panel request. The existence of the abandoned claims 
does not affect the conformity of the identification  of the remaining claims with Article 6.2 of the 
DSU, as discussed in detail above. While a panel request making general references to treaty provisions containing multiple claims may be viewed as being over-inclusive, it is important to note that abandoning one set of claims is an issue entirely different from attempting to cure deficiencies 
in the listing of the remaining set of claims in a panel request. A panel request may list multiple 
claims with sufficient specificity, and it may list few claims in a manner that does not comply with the requirements of Article 6.2. Subsequently drop ping claims does not add to, or detract from, an 
independent assessment of whether the remaining claims are identified in a manner that is 
sufficient to present the problem clearly, in accordance with Article 6.2 of the DSU. 
4.50.  In this dispute, the issue of whether Pa rt D of China's panel request complies with the 
requirements of Articles 6.2 is not affected by  China's abandoning certain claims under Parts C 
and D of its panel request. We observe that, even assuming that the initial listing of the abandoned claims in China's panel request failed to  fulfil the requirements of Article 6.2 of the 
DSU, this does not affect the analysis of whether the remaining claims under Articles 10, 19, 
and 32 of the SCM Agreement were identified with sufficient clarity, which must be addressed in 
their own right. We do not see how the assessmen t of whether the remaining claims under Part D 
present the problem clearly would be affected by any defects that the Panel might have found had 
                                               
397 Preliminary Ruling, para. 3.2. 
398 Preliminary Ruling, para. 3.8. 
399 Preliminary Ruling, para. 3.9. 
400 United States' other appell ant's submission, para. 41. 
401 United States' other appell ant's submission, para. 44. 
402 United States' other appellant's submission, para. 46. At the oral hearing, however, the 
United States clarified that the scope of its appeal is limited to China's remaining claims under Articles 10, 19, and 32 of the SCM Agreement. The United States agrees that the removal of Part C, and some of the claims 
under Part D, do not affect the specificity of the rema ining claims. (United States' response to questioning at 
the oral hearing) 
403 China's appellee's submission, para. 58 (quoting  United States' other appellant's submission, 
para. 45). 
404 China's appellee's submission, para. 59 (ref erring to Preliminary Ruling, para. 3.8). WT/DS449/AB/R 
 
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  it addressed the question of whether the pa nel request identified the abandoned claims 
consistently with Article 6.2. Moreover, we ar e not persuaded that the mere fact that the 
United States had to prepare for claims that were later on dropped can be considered as affecting its due process rights in respect of the remaining claims.  
4.51.  In the light of the above considerations, we  do not view the abando nment by China of some 
of its claims as a factor that should be taken into account in examining the compliance of the remaining claims in Part D of China's panel reques t with Article 6.2 of the DSU on the basis of the 
panel request's text and narrative.
405  
4.1.3.3  Conclusions 4.52.  Based on our preceding analysis of the panel request as a whole, we consider that China's 
panel request, given its references to Articles 10, 19, and 32 of the SCM Agreement, and coupled 
with the identification of the specific measure at issue and a reference to and explanation of 
"double remedies", provides "a brief summary of the legal basis of the complaint sufficient to present the problem clearly". In our view, the pa nel request complies with the requirements of 
Article 6.2, considering that its narrative, including the reference to "double remedies", connects 
the measure at issue with the legal claims, thereby specifying with sufficient clarity that the United States' failure to investigate and avoid double remedies in the identified investigations and 
reviews is alleged by China to violate the United States' obligations under Articles 10, 19.3, 
and 32.1 of the SCM Agreement. Therefore, we upho ld the Panel's finding, in paragraph 4.2 of the 
Panel's Preliminary Ruling and paragraph 7.4 of the Panel Report, that China's panel request is not 
inconsistent with Article 6.2 of the DSU, and that  claims under Articles 10, 19.3, and 32.1 of the 
SCM Agreement were identified in Part D of China's panel request consistently with Article 6.2 and 
were thus within its terms of reference. As a co nsequence, the Panel's findings of inconsistency 
with respect to Articles 10, 19.3, and 32.1 of the SCM Agreement, in paragraphs 7.396 and 8.1.c 
of the Panel Report, stand. 
4.2  Article X:2 of the GATT 1994 4.53.  Article X:2 of the GATT 1994 states: 
No measure of general application taken by any contracting party effecting an 
advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer  of payments therefor, shall be enforced 
before such measure has been officially published. 
4.54.  China raises on appeal the Panel's interpretation of Article X:2 of the GATT 1994 in respect 
of the baseline of comparison for measures of general application effecting an advance in a rate of 
duty or other charge on imports under an established and uniform practice
406, and for measures of 
general application imposing a new or more burdensome requirement, restriction, or prohibition on imports.
407 China also challenges the Panel's application of its interpretation of Article X:2 of the 
GATT 1994 to the measure at issue, Section 1 of US Public Law No. 112-99408 (PL 112-99). In 
particular, China challenges the Panel's findings that "China ha[d] not established that Section 1 is a provision 'effecting an advance in a rate of duty or other charge on imports under an established and uniform practice'"
409 and that "China ha[d] not established that Section 1 is a provision 
'imposing a new or more burdensome requirement, restriction or prohibition on imports'".410 
Before addressing China's claims, we  find it useful to set out the Panel's findings under Article X:2. 
                                               
405 The United States did not contend otherwise in response to questioning at the oral hearing. 
406 Panel Report, para. 7.155. 
407 Panel Report, para. 7.203. 
408 United States Public Law No. 112-99, An act to ap ply the countervailing duty provisions of the Tariff 
Act of 1930 to nonmarket economy countries, and for other purposes, 126 Stat. 265 (13 March 2012) (Panel Exhibit CHI-1). 
409 Panel Report, para. 7.191. 
410 Panel Report, para. 7.208. WT/DS449/AB/R 
 
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  4.2.1  The Panel's findings 
4.55.  The Panel considered that the determinat ion of whether a measure is inconsistent with 
Article X:2 of the GATT 1994 required the fulfilment of two cumulative conditions, namely: (i) that it is a measure of general application taken by a Member effecting an advance in a rate of duty or 
other charge on imports under an established and uniform practice, or imposing a new or more 
burdensome requirement, restriction, or prohibition on imports, or on the transfer of payments therefor; and (ii) that it has been enforced  before having been officially published.
411 
4.56.  In this dispute, the Panel decided to addr ess the second condition first, that is, whether 
Section 1 had been enforced before it had been officially published. The Panel found that Article X:2 prohibits administrative agencies or courts of a Member from (i) taking action to enforce or apply a measure that falls within its scope before it has been officially published, or 
(ii) enforcing or applying such a measure in respect of events or circumstances that occurred 
before it has been officially published.
412 Based on this interpretation, the Panel found that, while 
"there is no evidence that the United States took any enforcement action, based on Section 1, 
prior to 13 March 2012", Section 1 had been enforced or applied as from 13 March 2012 in respect 
of events and circumstances that took place between 20 November 2006 and 13 March 2012.413 
The Panel then found that "the United States 'enforced' Section 1 (which adds the new 
Section 701(f) to the United States Tariff Act of 1930) before it had been officially published".414 
Neither China nor the United States has appealed this finding by the Panel. 
4.57.  Turning to the first condition in Article X:2, regarding its scope of application, the Panel first 
addressed the issue of whether Section 1 is a measure of general application. Before the Panel, 
the United States argued that Section 1 is not a measure of general application within the meaning 
of Articles X:1 and X:2 of the GATT 1994, inter alia , to the extent that it also applies to a limited 
and known set of imports and proceedings covering the period 20 November 2006 to 13 March 2012.
415 In its findings under Article X:1, the Panel stated that " the fact that a relevant 
measure has a narrow regulatory scope does not demonstrate that this measure is not generally 
applicable". The Panel also found that "a relevant measure that applies to a class or category of 
people, entities, situations, or cases, that have some attribute in common would, in principle, constitute a measure of general application", while "a relevant measure that applies to named or 
otherwise specifically identified persons, entities, situations, or cases would not be a measure of 
general application, but one of particular application".
416  
4.58.  Based on this interpretation, the Panel went on to find that "Section 1(b) uses broad generic 
descriptions to identify relevant proceedings and actions that pre-date the publication of 
PL 112-99" and that it was "drafted in a manner that ensures that Section 701(f) is applied comprehensively and across the board in all relevant situations … that arose during a past period … or will arise, subsequently, in the period begi nning from the date of publication of PL 112-99".
417 
The Panel considered that "these features indicate that [Section 1] is concerned with individual 
proceedings and actions only insofar as they are part of a comprehensive class of relevant proceedings and actions".
418 Accordingly, the Panel found that "Section 1 contains a provision of 
general application", and the fact that "this provision applies to events or circumstances that 
pre-date the publication of PL 112-99 does not detract from it being a provision of general application".
419 The Panel made these findings under Article X:1, but considered that it should 
adopt the same interpretation of the term "of gene ral application" and follow the same analytical 
approach under Article X:2, considering that both provisions refer to the same term "of general application".
420 
                                               
411 Panel Report, paras. 7.93 and 7.94. 
412 Panel Report, para. 7.118. 
413 Panel Report, para. 7.125. 
414 Panel Report, para. 7.127. 
415 Panel Report, paras. 7.133 and 7.23 (referring to 27 proceedings). 
416 Panel Report, para. 7.35. 
417 Panel Report, para. 7.44. 
418 Panel Report, para. 7.44. 
419 Panel Report, para. 7.48. 
420 Panel Report, para. 7.137. WT/DS449/AB/R 
 
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  4.59.  Turning to the phrase "effecting an advance in a rate of duty or other charge on imports", 
the Panel agreed with the panel in EC – IT Products , which had interpreted this term to mean "of a 
type that 'bring[s]' about an 'increase' in a rate of duty [or other charge on imports]".421 The Panel 
also agreed with the panel in EC – IT Products  that the remaining part of the phrase in question  
– "under an established and uniform practice" – "must relate to both 'rate of duty' and 'other 
charge' and that it should not be read to refer to 'other charge' only".422  
4.60.  The Panel then considered that "the term 'advance in a rate' calls for a comparison of two 
rates of duty or charge: a new rate on imports of a particular product and a prior, initial rate on 
imports of that product", and that "[i]t is only if the new rate is higher than the prior rate that an 'advance', or increase, in a rate has been effected".  In the light of this, the Panel found that "it is 
clear … that the term 'under an established and uniform practice' serves to define the relevant 
prior rate that is to be used to establish whether or not an advance in a rate  has been effected", so 
that "the relevant comparison contemplated by Article X:2 is between the new rate effected by the measure at issue and the rate that was previously applicable under an established and uniform 
practice".
423 The Panel also considered that whether a measure of general application imposes a 
new or more burdensome requirement, restriction, or prohibition on imports should be determined with reference to publicly known practices of administering agencies.
424 
4.61.  The Panel then proceeded to apply its interp retation of the first condition in Article X:2 to 
the measure at issue in this dispute. The Panel found that, "between November 2006, or at least April 2007, and March 2012 there was an established and uniform practice by USDOC regarding 'rates of duty' applicable to imports from China as an NME country", and that there was "no basis 
on which to find that, under United States law as  it stood at the time, USDOC could not lawfully 
develop and maintain that practice of applying rates of countervailing duty to imports from China".
425 The Panel found that "Section 1 did not effect  an advance in a rate of duty … based on 
the fact that this provision maintained the same ra tes of duty that were already applied, pursuant 
to USDOC's established and uniform practice, prior to the enactment of Section 1".426 The Panel 
also found that "Section 701(f) does not impose a 'requirement' or 'restriction' on imports from 
China as an NME country that was not previously imposed on such imports by USDOC under its 
prior practice". The Panel thus concluded "that Section 701(f), and by extension Section 1, does not impose any 'new' or 'more burdensome' 'req uirement' or 'restriction' on imports from 
China."
427 
4.62.  In our analysis below, we address China's claim that the Panel erred in the interpretation of 
Article X:2 of the GATT 1994 and, in particular, with respect to the relevant baseline of comparison to determine whether a measure of general applicat ion effects an advance in a rate of duty or 
other charge on imports, or imposes a new or more burdensome requirement, restriction, or 
prohibition on imports, or on the transfer of payments therefor.
428 We then address China's claim 
that, having erred in the interpretation of Article X:2 of the GATT 1994, the Panel also erred in the 
application of Article X:2 to the measure at issue in this dispute.429 
4.2.2  Interpretation and application of Article X:2 4.63.  In reviewing the Panel's interpretation of the first condition in Article X:2 of the GATT 1994, 
we begin by considering the function of Article X:2.  We then turn to the issue of the identification 
of the relevant baseline of comparison under Ar ticle X:2, starting by reviewing the Panel's 
interpretation of the "baseline of comparison" for the two categories of measures in Article X:2. We then consider the issue of the determination of the meaning of municipal law, which the 
identification of the relevant baseline of comparison under Article X:2 entails. Finally, we outline 
what we consider to be the correct approach in identifying the baseline of comparison for both categories of measures under Article X:2. 
                                               
421 Panel Report, para. 7.154 (quoting Panel Reports, EC – IT Products , para. 7.1107). 
422 Panel Report, para. 7.154 (quoting Panel Reports, EC – IT Products , para. 7.1116). 
423 Panel Report, para. 7.155. 
424 Panel Report, para. 7.203. 
425 Panel Report, para. 7.186. 
426 Panel Report, para. 7.190. 
427 Panel Report, para. 7.206. 
428 China's appellant's submission, para. 21. 
429 China's appellant's submission, para. 68. WT/DS449/AB/R 
 
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  4.2.2.1  Function of Article X:2 
4.64.  Article X of the GATT 1994 is entitled Publication and Administration of Trade Regulations . 
It comprises three paragraphs addressing in order: 
 Article X:1: the prompt publication of certain measures of general application430; 
 Article X:2: the prohibition on the enforcement of certain measures of general 
application before their official publication; and 
 Article X:3: the requirement to administer measures of general application in a uniform, 
impartial and reasonable manner and to maintain or institute judicial, arbitral, or 
administrative tribunals or procedures for the review of administrative action relating to customs matters.  
4.65.  By requiring that certain measures of general application are published promptly and that 
they are not enforced before their publication, Articles X:1 and X:2 are meant to ensure that 
traders are made aware of measures that may have an impact on them, so that they have time to become acquainted with, and to adapt to, the new measures. These provisions thus create 
expectations among traders that they will not have to face measures that they could not be aware 
of because such measures were published late  or because they were not yet published. 
4.66.  We recall that the Appellate Body observed in US – Underwear  that Article X:2 embodies the 
principle of transparency, which has due process dimensions. The Appellate Body considered that 
the essential implication of this principle of transparency is that "Members and other persons affected … by governmental measures imposing restraints, requirements and other burdens, should have a reasonable opportunity to acquire authentic information about such measures and 
accordingly to protect and adjust their activities or alternatively to seek modification of such 
measures."
431  
4.67.  The function of Article X:2 of ensuring tran sparency and protecting traders' expectations as 
to the publication and enforcement of certain measures is relevant to the interpretation of the 
obligations contained in this provision. The fact that Article X:2 applies only to measures that increase duties or charges or impose new or more burdensome requirements, restrictions, or 
prohibitions is consistent with the due process function of this provision. The transparency and due 
process functions of Article X:2 also inform the identification of the baseline of comparison to determine whether a measure of general application effects an advance in a rate of duty or imposes a new or more burdensome requirement. As we consider further below, the baseline of 
comparison is used to determine whether a measure of general application effects an advance in a 
rate of duty or imposes a new or more burd ensome requirement. The proper baseline of 
comparison under Article X:2 should thus reflec t traders' expectations about the applicable 
measure, considering that Article X:2 is meant to ensure that traders "have a reasonable 
opportunity to acquire authentic information about [the new] measures and accordingly to protect and adjust their activities or alternatively to seek modification of such measures".
432 
4.2.2.2  China's appeal of the Panel's interpretation of Article X:2 
4.68.  We now turn to consider China's appeal of  the Panel's interpretation with respect to the 
relevant baseline of comparison for the two categories of measures of general application in Article X:2 of the GATT 1994, namely: (i) measures "effecting an advance in a rate of duty or 
                                               
430 Article X:1 requires the prompt publication of  "[l]aws, regulations, judicial decisions and 
administrative rulings of gene ral application, made effective by any Memb er, pertaining to the classification or 
the valuation of products for customs purposes, or to rate s of duty, taxes or other charges, or to requirements, 
restrictions or prohibitions on imports or exports or on  the transfer of payments therefor, or affecting their 
sale, distribution, transportation, in surance, warehousing inspection, exhi bition, processing, mixing or other 
use". Moreover, Article X:1 requires the publication of "Agreements affecting international trade policy which are in force between the government  or a governmental agency of an y Member and the government or 
governmental agency of  any other Member". 
431 Appellate Body Report, US – Underwear , p. 21, DSR 1996:I, p. 29. 
432 Appellate Body Report, US – Underwear , p. 21, DSR 1996:I, p. 29. WT/DS449/AB/R 
 
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  other charge on imports"; and (ii) measures "i mposing a new or more burdensome requirement, 
restriction or prohibition on imports".  
4.2.2.2.1  Measures "effecting an advance in a rate of duty or other charge on imports" 
4.69.  Having determined that Section 1 of PL 112-99 is a measure of general application within 
the meaning of Article X:2 of the GATT 1994, and that "effecting an advance in a rate of duty" 
means bringing about an increase in the rate of du ty as compared to a prior rate, the Panel turned 
to the identification of the baseline of comparis on for the purpose of establishing whether the 
measure at issue effected an advance in a rate of duty or other charge. In doing so, the Panel 
interpreted the phrase "under an established and uniform practice". After finding that "the term 
'advance in a rate' calls for a comparison of two rates of duty or charge: (i) a new rate on imports of a particular product; and (ii) a prior, initial rate on imports of that product", the Panel stated: 
In the light of this, it is clear to us that the term "under an established and uniform 
practice" serves to define the relevant prior rate that is to be used to establish whether or not an advance in a rate has been effected. It follows, then, that the 
relevant comparison contemplated by Article X:2 is between the new rate effected by 
the measure at issue and the rate that was previously applicable under an established and uniform practice.
433 
4.70.  China claims that it does not follow from the meaning of the term "advance" that the phrase 
"under an established and uniform practice" defines the relevant baseline of comparison for purposes of determining whether a measure effects an "advance in a rate of duty". According to 
China, the Panel committed a legal error, because the ordinary meaning of the phrase, and its 
position within the first clause of Article X:2, make clear that the phrase "under an established and 
uniform practice" qualifies the immediately preceding reference to a "measure of general application … effecting an advance in a rate of duty or other charge on imports". In China's view, 
the phrase "under an established and uniform practice" describes a further characteristic of the 
measure and, in particular, how the measure must effect an advance in a rate of duty or other charge on imports.
434 
4.71.  The United States responds that the phrase "under an established and uniform practice" 
defines the relevant rate of duty that was previously applicable to the imports at issue. According to the United States, the Panel was correct in finding that the phrase "under an established and uniform practice" modifies the terms "rate of duty" and "other charge", such that the relevant 
baseline of comparison under Article X:2 is the rate of duty or other charge under the previous 
"established and uniform practice".
435 
4.72.  We observe at the outset of our analysis that, by using the phrase "in the light of this"436, 
the Panel appears to have linked its conclusion that the phrase "under an established and uniform 
practice" constitutes the relevant baseline of comparison to the fact that the term "advance in a rate" means an increase in a rate of duty in comparison to a prior rate. While we agree with the 
Panel that an increase in a rate of duty can only be determined by reference to a baseline of 
comparison, we do not consider that this alone is sufficient to conclude that the phrase "under an established and uniform practice" constitutes such a baseline. 
4.73.  The sentence in Article X:2 – "No measure of general application … shall be enforced" – is 
interrupted by two phrases that are separated by th e disjunctive "or": (i) "effecting an advance in 
a rate of duty or other charge on imports under an established and uniform practice"; and (ii) "imposing a new or more burdensome requirement, restriction or prohibition on imports, or on 
the transfer of payments therefor". These two phrases, which are located between the subject 
("no measure of general application") and its verb ("shall be enforced"), provide alternative characterizations of the subject of the sentence, that is, "no measure of general application". Thus, 
the position of these two phrases in Article X:2 an d their relationship with the subject and verb of 
                                               
433 Panel Report, para. 7.155. 
434 China's appellant's submission, para. 32. 
435 United States' appellee's submission, para. 61. 
436 See Panel Report, para. 7.155.  WT/DS449/AB/R 
 
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  the sentence suggest that the elements contai ned in these phrases are all related to, and 
descriptive of, the measure of general application. 
4.74.  Accordingly, before turning to the Panel's in terpretation of the phrase "under an established 
and uniform practice", we note that an analysis of the structure of Article X:2 in its entirety 
provides clear indications that the phrases "effecting an advance in a rate of duty or other charge 
on imports under an established and uniform practice" and "imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor" provide 
alternative characterizations of the measure of gene ral application. We also note that the second 
phrase only describes certain effects of the me asure (new or more burdensome requirement, 
restriction, or prohibition) on imports or on related payments, whereas the first phrase has an additional element, because, after describing the effects of the measure on imports (an advance in 
a rate of duty or other charge), it continues with the phrase "under an established and uniform 
practice". 
4.75.  We now turn to the interpretation of the phrase "under an established and uniform 
practice", starting with the ordinary meaning of the preposition "under". Relevant dictionary 
definitions of the preposition "under" include "sub ject to", "subject to the authority, control, 
direction, or guidance of", "in the form of", and "in the guise of".
437 "Under" may be used to 
introduce "the guise of" or "the manner how" a certain action is to be conducted. While there are 
several other dictionary definitions for the preposition "under"438, it seems to us that, as discussed 
above, the structure of Article X:2 and, in part icular, the position of the phrase "under an 
established and uniform practice", suggests that the relevant definitions for the meaning of 
"under" in Article X:2 are "in the form of" and "in the guise of". 
4.76.  This meaning of the preposition "under" is reinforced by the French and Spanish versions of 
the text of Article X:2. We recall that, accord ing to Article XVI:6 of the Marrakesh Agreement 
Establishing the World Trade Organization (WTO Agreement), the texts of the WTO covered 
agreements are authentic in each of the three WTO official languages439, and that, in previous 
disputes, the Appellate Body has confirmed the or dinary meaning of terms in the English version 
by reference to the French and Spanish language versions of the relevant provision.440 The phrase 
"under an established and uniform practice" reads in French " en vertu d'usages établis et 
uniformes " and in Spanish " en virtud del uso establecido y uniforme ". In French and in Spanish, 
"en vertu de " and " en virtud de " describe the manner, the means, or how something is done. 
Moreover, " en vertu de " and " en virtud de " can be translated literally in to English as "by virtue of". 
The term "by virtue of" can be reconciled with thos e definitions of "under", such as "in the form of" 
and "in the guise of". In contrast, translating literally the French and the Spanish texts into 
English, we fail to see how the term "by virtue of " can qualify the preceding term "rate of duty" so 
that the phrase "effecting an advance in a rate of duty or other charge by virtue  of an established 
and uniform practice" could be read as referring to a comparison between  a new higher rate and a 
prior rate. 
4.77.  The French and Spanish versions of the covered agreements cannot be read as connoting 
the phrase "under an established and uniform practice" as the baseline of comparison as the Panel did. Rather, the French and Spanish versions of Article X:2 suggest that the phrase "under an 
established and uniform practice" describes how the measure of general application effects an 
advance in a rate of duty or other charge on imports, in order to fall within the scope of 
                                               
437 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (O xford University Press, 2007), 
Vol. 2, p. 3421. 
438 Other dictionary definitions for the preposition "u nder" include: "in or to a position lower than"; 
"covered by, enveloped in"; "at the foot of, by the side  of, close to"; "controlled, restrained, or bound by"; 
"affected, oppressed, of affected by "; "authorized or attested by"; "u nworthy of, beneath"; "less than (a 
specified number or amount)"; "during (a  period of time or an activity)". ( Shorter Oxford English Dictionary , 
6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 2, p. 3421) 
439 We further note that an explanatory note to the GATT 1994 states that "[t]he text of the GATT 1994 
shall be authentic in English, French and Spanish." 
440 In US – Upland Cotton , the Appellate Body confirmed the or dinary meaning of the term "price 
suppression" in Article 6.3(c) of the SCM Agreement by reference to the French and Spanish versions of that 
provision. (Appella te Body Report, US – Upland Cotton , para. 424 and fn 510 thereto. See also Appellate Body 
Reports, US – Countervailing Duty Investigation on DRAMS , para. 111 and fn 176 thereto; and EC – Tariff 
Preferences , para. 147) WT/DS449/AB/R 
 
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  Article X:2. Accordingly, the Panel's interpretati on of the English text of Article X:2 is not 
reconcilable with the meaning of the provision in the two other authentic languages of the 
GATT 1994. In case of differences of meanings among authentic texts, Article 33 of the Vienna Convention on the Law of Treaties
441 (Vienna Convention) requires an interpreter to adopt 
"the meaning which best reconciles the texts, ha ving regard to the object and purpose of the 
treaty". In our view, the meanings of "under" that best reconcile the texts of Article X:2 in English, French, and Spanish are "in the form of" and "in the guise of".
442 
4.78.  In the light of the above, it seems to us that, within the context of Article X:2, the 
preposition "under" may be interpreted as introd ucing the manner in which the measure of general 
application should advance the rate of duty or other charge. Therefore, the definitions of the 
preposition "under" as "in the form of" and "in th e guise of", suggest that the phrase "under an 
established and uniform practice" refers to certain characteristics of the application of the measure 
"effecting an advance in a rate of duty or other charge on imports". 
4.79.  The United States argues that, if the phra se "under an established and uniform practice" is 
read as defining the relevant rate that was previously applicable to the imports at issue, then there 
would have been no need to insert this phrase in Article X:2, because the terms "of general application" and "established and uniform" would be "redundant" if, as argued by China, they all 
defined the measure at issue.
443 The United States contends that the terms "general application" 
and "uniform" both convey the meaning that the meas ure or practice should be similarly applied to 
a whole class of imports rather than to a specific subset of imports or traders.444 Moreover, 
according to the United States, China's reading of "established" as modifying the measure of 
general application would introduce a gap in time before a breach of Article X:2 could be 
established, because a relevant advance in a rate of duty could only result if the Member was already enforcing the measure at issue, such as to bring about an "established" practice for some 
time.
445 
4.80.  We consider that the meanings of the terms "practice", "established", and "uniform" are 
consistent with an interpretation of the phrase "under an established and uniform practice" as 
referring to the application of the measure of general application effecting an advance, rather than 
to the measure itself. In this respect, we recall that the panel in EC – IT Products  had found that, 
"under Article X:2, measures must be of a type that effect an advance in a rate of duty under an established and uniform practice, which means that the advance in a rate of duty must be applied 
('practice') in the whole customs territory ('uniform') and its application should be on a secure 
basis ('established')."
446 
4.81.  We agree with the panel in EC – IT Products  that the term "practice" indicates that this 
phrase is concerned with how the measure is applied, rather than with the measure itself, and that 
the term "established" refers to the application of the measure "on a secure basis".447 This, 
however, does not necessarily require a "gap in time", as suggested by the United States448, 
before a measure can be considered as being applied under an "established" practice within the 
meaning of Article X:2. In our view, the term "established practice" may refer to a practice that has been in place for a period of time, but also to  a practice that exists on a secure basis. Among 
the relevant definitions of "establish", we also find "institute or ordain permanently by enactment 
or agreement" and "give legal form or recognition"
449, which suggest that the term "established" 
                                               
441 Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, UN Treaty Series, 
Vol. 1155, p. 331. 
442 According to Article 33 of the Vienna Convention, "(w)hen a treaty has been authenticated in two or 
more languages, the text is equally authoritative in  each language" and "(t)he terms of the treaty are 
presumed to have the same meaning in each authentic text." Moreover, "when a comparison of the authentic 
texts discloses a difference of meaning which the appl ication of Articles 31 and 32 does not remove, the 
meaning which best reconciles the te xts, having regard to the object and purpose of the treaty, shall be 
adopted."  
443 United States' appellee's submission, para. 56. 
444 United States' appellee's submission, para. 59. 
445 United States' appellee's submission, para. 60. 
446 Panel Reports, EC – IT Products , para. 7.1120. 
447 Panel Reports, EC – IT Products , para. 7.1120. 
448 United States' appellee's submission, para. 60. 
449 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (O xford University Press, 2007), 
Vol. 2, p. 865. WT/DS449/AB/R 
 
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  can also be used to describe a practice legally instituted and mandated by law that has not 
necessarily been in place for a period of time. 
4.82.  Regarding the term "uniform", we agree with the Panel's finding that "'uniform' practice … is 
one that does not change according to the time or place of importation, or depending on the 
traders or governments involved".450 Along the same line, we understand the term "uniform" to 
refer to the consistent application of the measure.  The consistent application of the measure, in 
our view, is different from the general application of a measure, and does not necessarily require 
application across the entire customs territory of a Member, contrary to what the panel in the EC – 
IT Products  disputes found. 
4.83.  Therefore, we disagree with the view of th e United States that, if the phrase "under an 
established and uniform practice" describes how a measure must effect an advance in a rate of 
duty, then "the terms 'general application' and 'uniform' would both convey the meaning that the 
measure or practice should be similarly applied to a whole class of imports rather than to a specific subset of imports or traders".
451 As explained above, we consider the phrase "under an established 
and uniform practice" to refer to the application of the measure, as opposed to the measure itself. 
Instead, the term "general application" refers to  the measure itself. Thus, a measure that is not 
applied consistently would not be applied under a "uniform" practice, but it may still be a measure 
of general application. 
4.84.  Turning to the context of the phrase "under an established and uniform practice" in 
Article X:2, we observe that the phrase "effecting an advance in a rate of duty or other charge on imports under an established and uniform practice" provides one of two alternative 
characterizations of the measure of general application, the other being provided by the phrase 
"imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor". Assuming that, as the Panel found, the phrase "under an 
established and uniform practice" refers to the baseline of comparison, it could not be explained 
why Article X:2 would spell out the baseline of comparison for measures effecting an "advance in a rate of duty or other charge on imports", but woul d be silent as to the baseline of comparison for 
measures imposing a "new or more burdensome requirement, restriction or prohibition on 
imports".  
4.85.  Article X:1 of the GATT 1994 provides further relevant context for the interpretation of the 
phrase "under an established and uniform practice". Article X:1 requires that a broad category of 
measures, including the measures of general application covered by Article X:2, "be published 
promptly in such a manner as to enable governments and traders to become acquainted with them". Because of the obligation in Article X:1, it  can be assumed that existing rates of duty or 
other charges, as well as requirements, restrictions, or prohibitions on imports, are normally set 
out in published measures. Accordingly, the context of Article X:1 provides further support for the view that the identification of the baseline of co mparison under Article X:2 should start with the 
measure that Article X:1 requires to be published promptly.
452 Indeed, we do not see why the 
baseline of comparison under Article X:2 should necessarily be found in an established and uniform practice, as long as the preceding paragraph requires that measures concerning rates of duty or other charges, as well as requirements or restrictions, be published.
453 
4.86.  In the light of the above, we consider th at the ordinary meaning of the phrase "under an 
established and uniform practice", its position in Article X:2, its relevant context, and the function 
                                               
450 Panel Report, para. 7.156. The Panel referred to the panel report in EC – Selected Customs Matters , 
in which that panel had observed that the dictionary defines "uniform" as meaning "of one unchanging form, 
character, or kind; that is or stays the same in different places or circum stances or at differe nt times". (Panel 
Report, EC – Selected Customs Matters , para. 7.123 (quoting The New Shorter Oxford English Dictionary , 
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 2, p. 3488)) 
451 United States' appellee's submission, para. 59. 
452 For exceptional circumstances, see infra, para. 4.106. 
453 As we consider further below, this is not to say that a practice is not relevant to the identification of 
the baseline of comparison under Article X:2 of the GATT 1994. The practice of an administering agency is part of the consistent application of a measure and, as such, it is an elem ent that a panel may need to take into 
account to ascertain the meaning of municipal law. (See infra, para. 4.108) WT/DS449/AB/R 
 
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  that Article X:2 performs relating to transparency and due process, suggest that this phrase refers 
to the measure of general application, rather than serving as the baseline of comparison.454 
4.2.2.2.2  Measures "imposing a new or more burdensome requirement, restriction or 
prohibition on imports" 
4.87.  We turn next to the second type of meas ure of general application that is subject to the 
requirements in Article X:2 of the GATT 1994. We recall that the Panel found that "a new or more 
burdensome requirement or restriction on import s is one that has not previously been imposed 
('new') or one that is of the nature of a burden in a greater degree, or is onerous to a greater 
extent ('more burdensome')". The Panel added th at "[t]he comparative form 'more burdensome' 
implies that the measure imposing the requirement or restriction at issue must be examined with reference to a pre-existing requirement or restriction."
455 
4.88.  We note that, while the notions of "requireme nt", "restriction", and "prohibition" all entail an 
element of burden, a new requirement need not be more burdensome than the prior one to trigger 
the obligation in Article X:2. There may be circumstances where a new requirement could 
ultimately be less or no more burdensome than the requirement it replaces. Nonetheless, it would 
be consistent with the function of Article X:2 that it be published before it is enforced, to the extent that traders would need notice of a new requirement even where this is less or no more 
burdensome. For instance, a requirement to complete and present customs documents on-line 
may ultimately be less burdensome than to do so in paper form. However, until the measure introducing such new requirement is published, traders' expectations will be that documents must be produced in paper form. By obliging Members to publish before enforcement all new 
requirements, Article X:2 protects traders' expectation that the situation with which they are 
acquainted will not change until the measure intr oducing such a change is officially published. 
4.89.  Having interpreted the phrase "new or more burdensome requirement, restriction or 
prohibition on imports", the Panel turned to the identification of the baseline of comparison to 
determine if a requirement can be considered as being new or more burdensome. The Panel 
recalled the reference to an established and uniform practice in the part of Article X:2 that relates 
to advances in rates of duty and stated that it did "not consider it appropriate, in the context of an 
analysis involving United States law, to pay no regard to a publicly known practice of agencies charged with administering a relevant requirement or restriction on imports". The Panel further noted that "Article X:2 does not indicate that account may be taken only of a relevant pre-existing 
requirement or restriction that is set out in explicit terms in a published measure of general 
application, but not of a requirement or restriction that results from, and reflects, an interpretation of such a measure adopted and publicly communicate d by an administering agency". In the Panel's 
view, as Article X:2 is concerned with the "enforce ment", or application, of the measure imposing 
the requirement or restriction, "it would be count erintuitive to proceed on the basis that it is 
irrelevant for analytical purposes how a measure containing a relevant pre-existing requirement or 
restriction has actually been applied". Finally, the Panel rejected the "notion that [traders] develop 
their expectations without regard for the actual practice that is publicly known to have been adopted under those published measures by administering agencies such as USDOC".
456 
4.90.  In sum, while the Panel did not find that  the phrase "under an established and uniform 
practice" served to define the baseline of comparison also for the second type of measure 
imposing a new or more burdensome requirement, restriction, or prohibition, it concluded that, for 
                                               
454 We note that the member of the Panel who wrote a dissenting opinion stated that: 
Like the panel in EC – IT Products , I understand the words "under an established and uniform 
practice" to relate to the "measure of general appl ication" which effects an advance in a duty etc. 
These words describe  the measure of general application in the sense that "the advance in a rate 
of duty or other charge on  imports" must be made under  "an established and uniform practice", 
and not to the situation existing prior to this measure to which one should compare the new increased duty. This prior situation is not mentione d or alluded to in Arti cle X:2, and therefore, 
unlike my fellow panelists, I fail to see how thes e words can describe the baseline to which to 
compare the new duty or charge.  
(Panel Report, para. 7.237 (referring to Panel Reports, EC – IT Products , paras. 7.1119 and 
7.1120)) 
455 Panel Report, para. 7.200. 
456 Panel Report, para. 7.203. WT/DS449/AB/R 
 
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  this type of measure, such a comparison should be  conducted with the requirement, restriction, or 
prohibition that resulted from the practice of the administrative agency.457 As we consider below, 
however, the Panel did not provide persuasive textual or contextual elements to support this conclusion. 
4.91.  At the outset of our analysis, we note that there are no textual elements in Article X:2 
suggesting that the baseline of comparison for measures "imposing a new or more burdensome requirement, restriction or prohibition on imports" should be the uniform or established practice of 
the administering agency. Unlike in the case of measures "effecting an advance in a rate of duty or 
other charge on imports", the reference to "a uniform and established practice" is clearly of no assistance in defining the relevant baseline of comparison, because this phrase precedes the reference to measures "imposing a new or mo re burdensome requirement, restriction or 
prohibition on imports", and thus it has no connection to it. Moreover, like for measures "effecting 
an advance in a rate of duty or other charge on imports", the context of Article X:1 suggests that 
the starting point of the analysis of municipal law should, normally, be the published measure of 
general application, rather than the practice.
458 
4.92.  In general, we agree with the Panel that traders develop their expectations also with regard 
to publicly known practices of agencies charge d with administering relevant requirements or 
restrictions on imports, and that these practices are relevant in identifying the baseline of 
comparison under Article X:2 of the GATT 1994. As we consider further below, in determining the meaning of municipal law, a panel may need to evaluate several elements, including the text of the law on its face, the pronouncements of domestic courts, and the practice of administering 
agencies.
459 We disagree, however, with the Panel on th e role that such practice must play in 
determining whether a measure of general application imposes a new or more burdensome requirement. In particular, we disagree with the Panel's use of the practice as the baseline of 
comparison without regard to other elements of municipal law, which, as we consider below, are 
relevant to the determination of its meaning. 
4.2.2.2.3  Conclusions 
4.93.  In the light of the above, we conclude that the Panel erred in finding that the phrase "under 
an established and uniform practice" "serves to define the relevant prior rate that is to be used to establish whether or not an advance in a rate [o f duty] has been effected" and that the relevant 
comparison contemplated by Article X:2 of the GA TT 1994 is "between the new rate effected by 
the measure at issue and the rate that was previously applicable under an established and uniform 
practice".
460 We also consider that the Panel committed an error in finding that, in order to 
determine whether a measure of general application imposes a new or more burdensome 
requirement or restriction, a comparison should be made with "a requirement or restriction that 
results from, and reflects, an interpretation of … a measure adopted and publicly communicated by an administering agency".
461 
4.94.  Therefore, we reverse the Panel's interpretation of Article X:2 of the GATT 1994, in 
paragraph 7.155 of the Panel Report, in respect of the baseline of comparison for measures of 
general application "effecting an advance in a rate  of duty or other charge on imports under an 
established and uniform practice", and in paragraph 7.203 of the Panel Report, in respect of 
measures of general application "imposing a new or more burdensome requirement, restriction or 
prohibition on imports". 
4.2.2.3  Determination of the meaning of municipal law for purposes of Article X:2 
4.95.  We now turn to consider the approach and the criteria that should guide panels and the 
Appellate Body in the determination of the meaning of municipal law for purposes of establishing a baseline of comparison. 
                                               
457 Panel Report, para. 7.203. 
458 For exceptional circumstances, see infra, para. 4.106. 
459 Appellate Body Report, US – Carbon Steel , para. 157. 
460 Panel Report, para. 7.155. 
461 Panel Report, para. 7.203. WT/DS449/AB/R 
 
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  4.96.   Article X:2 of the GATT 1994 does not explicitly specify the baseline of comparison for 
either type of measure described therein (i.e. effect ing an advance in a rate of duty, or imposing a 
new or more burdensome requirement). However, the language in Article X:2 that refers to an advance  in a rate of duty and a new or more burdensome  requirement implies a comparison 
between the measure that is alleged to be increasing a rate of duty or imposing a new or more 
burdensome requirement and a relevant baseline, which is normally to be found in published measures of general application.
462 This is because determining whether a measure "advances", is 
"new", or is "more burdensome" can only be done in relation to another measure or in the absence 
of any measure. 
4.97.  In order to conduct such a comparison, a panel that is charged with the application of 
Article X:2 will need to ascertain the meaning of the published measure of general application 
under municipal law. In many instances where the text of the relevant municipal law is clear on its 
face, a panel's task will be straightforward. However, in cases where the meaning of the municipal law is not clear on its face, a panel will need to rely on further elements to determine whether the 
new measure advances a rate of duty or impose s a new or more burdensome requirement, thus 
falling within the scope of measures that must not be enforced before official publication. 
4.98.  In a number of previous disputes, panels and the Appellate Body have been required to 
ascertain the meaning of municipal law in order to determine whether the challenged measure was 
consistent with a provision in the covered agreements. The Appellate Body considered in US – 
Hot-Rolled Steel  that, "[a]lthough it is not the role of panels or the Appellate Body to interpret a 
Member's domestic legislation as such, it is permissible, indeed essential, to conduct a detailed 
examination of that legislation in assessing its consistency with WTO law."
463 As part of their duties 
under Article 11 of the DSU, panels have the ob ligation to examine the meaning and scope of the 
municipal law at issue in order to make an objective assessment of the matter before it, including 
an objective assessment of the facts of the case  and the applicability and conformity with the 
covered agreements. 
4.99.  In India – Patents (US)  and US – Section 211 Appropriations Act , the Appellate Body stated 
that municipal law may constitute evidence of facts as well as evidence of compliance or 
non-compliance with international obligations464, and that a panel's examination of the municipal 
law of a WTO Member for the purpose of determining whether that Member has complied with its obligations under the WTO Agreement is a legal characterization by a panel subject to appellate 
review under Article 17.6 of the DSU.
465 In China – Auto Parts , the Appellate Body considered that 
it could review a Member's municipal law on its face "to determine whether the legal characterization by the panel was in error".
466 This review would include text and context, as well 
as the "structure and logic", of a legal instrument.467 The Appellate Body, however, cautioned that 
"there may be instances in which a panel's assessme nt of municipal law will go beyond the text of 
an instrument on its face, in which case further examination may be required, and may involve 
factual elements", with which the Appellate Body would "not lightly interfere … on appeal".468 Thus, 
not every type of evidence that has been examin ed by panels to determine the scope and meaning 
of municipal law may be subject to full appellate review.  
                                               
462 For exceptional circumstances, see infra, para. 4.106. 
463 Appellate Body Report, US – Hot-Rolled Steel , para. 200. 
464 Appellate Body Report, India – Patents (US) , para. 65. 
465 Appellate Body Report, US – Section 211 Appropriations Act , para. 105. 
466 Appellate Body Reports, China – Auto Parts , para. 225. 
467 In China – Auto Parts , the Appellate Body looked at text and the "overall structure and logic" of 
municipal law to determine its meaning. In particular, the Appellate Body found: 
[W]e do not see how the text of Article 2(2) and the overall structure and logic of Decree 125, including Article 21(1), would render it possible to separate the charge from the administrative 
procedures associated with the imposition of that charge. It follows that the "duties" referred to 
in Article 2(2), which are to be declared and paid  upon importation, are not duties imposed under 
Decree 125. Consequently, the Panel's construction of Article 2(2), read together with Article 21(1), amounts in our view to legal error. 
(Appellate Body Reports, China – Auto Parts , para. 238) 
468 Appellate Body Reports, China – Auto Parts , para. 225. WT/DS449/AB/R 
 
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  4.100.  In US – Carbon Steel , the Appellate Body clarified the elements that a panel and 
eventually the Appellate Body would need to exam ine to ascertain the meaning of municipal law, 
noting that these will vary from case to case. 469 The Appellate Body considered that, whereas in 
some cases the text of the relevant legislation may suffice to clarify the scope and meaning of the 
relevant legal instruments, in other cases the complainant will also need to support its 
understanding of the scope and meaning of such legal instruments with "evidence of the consistent application of such laws, the pronouncements of domestic courts on the meaning of such laws, the 
opinions of legal experts and the writings of recognized scholars".
470 
4.101.  We consider that, in ascertaining the meaning of municipal law, a panel should undertake 
a holistic assessment of all relevant elements, starting with the text of the law and including, but not limited to, relevant practices of administering agencies. We also consider that an examination 
of whether the elements cited by the Appellate Body in US – Carbon Steel  are legal 
characterizations, or involve also factual elemen ts, depends on the circumstances of each case. 
Although factual aspects may be involved in the individuation of the text and of some associated 
circumstances
471, an assessment of the meaning of a text of municipal law for purposes of 
determining whether it complies with a provision of the covered agreements is a legal characterization. Similarly, whether or when a domestic court ruling has been rendered and 
finalized, or what a writing by a recognized scholar contains, may involve factual aspects. 
However, the examination of the legal interpretation given by a domestic court or by a domestic administering agency as to the meaning of municipal law with respect to the measure being reviewed for consistency with the covered agreemen ts may be a legal characterization. All of these 
assessments are subject to the circumstances of ea ch case, including the national legal system in 
which the municipal law operates. 
4.102.  We consider these observations particularly relevant in the context of Article X:2, a GATT 
provision that, by its own terms, can be applied only if a baseline of comparison is identified by 
ascertaining the meaning of municipal law. We further observe that the determination of the meaning of municipal law under Article X:2 requires a panel to consider the meaning of the 
measure whose consistency with Article X:2 is being challenged, as well as the meaning of the 
prior municipal law that serves as the baseline of comparison, to determine whether there has been a "change" ( advance  in a rate of duty or new or more burdensome  requirement) that would 
trigger the obligation in Article X:2. In this resp ect, to the extent that the determination of the 
occurrence of such a change is relevant to the determination of the consistency of the measure of 
general application with Article X:2, we consider this to be a question of legal interpretation. 
4.2.2.4  Identification of the baselin e of comparison under Article X:2  
4.103.  The Panel was of the view that the practi ce of the administering agency in applying the 
relevant law of the United States was itself the baseline of comparison. Having identified such practice in the USDOC's practice of applying countervailing duties to NME countries between 2006 
and 2012, the Panel then turned to the question of whether such practice was lawful under the 
municipal law of the United States. The Panel, however, deemed the question of the lawfulness of the practice under US municipal law "potentially relevant, and at a minimum not inappropriate … for purposes of an analysis under Article X:2" and stated that, only if it found that said practice 
was unlawful, would it "need to determine whether or not that practice [could] nonetheless be 
relied on for purposes of [its] analysis under Article X:2".
472 Thus, the Panel seems to have left 
                                               
469 The Appellate Body found: 
The party asserting that another party's municipal law, as such, is inconsistent with relevant 
treaty obligations bears the burden of introducing evidence as to the scope and meaning of such law to substantiate that assertion. Such evidence will typically be produced in the form of the text of the relevant legislation or legal instrume nts, which may be supported, as appropriate, by 
evidence of the consistent application of such laws, the pronouncements of domestic courts on 
the meaning of such laws, the opinions of legal experts and the writings of recognized scholars. The nature and extent of the evidence required to satisfy the burden of proof will vary from case to case. 
(Appellate Body Report, US – Carbon Steel , para. 157) 
470 Appellate Body Report, US – Carbon Steel , para. 157. 
471 For example, whether the text is official in more than one language, its date of enactment, 
publication and enforcement, the issuing authority, etc. 
472 Panel Report, para. 7.159. WT/DS449/AB/R 
 
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  open the possibility that an unlawful practice of an administering agency could still constitute a 
relevant baseline of comparison under Article X:2 to determine whether a measure of general application effects an advance in a rate of duty or imposes a new or more burdensome requirement. 
4.104.  We observe that, in examining the lawfulness of the USDOC's practice, the Panel did 
engage in some analysis of the US countervailing duty law applicable to NME countries, that is, Section 701(a) of the United States Tariff Act of 1930
473 (US Tariff Act), in the light of the 
USDOC's practice and of US court decisions.474 There are, however, important differences between 
the analysis conducted by the Panel in assessing whether the USDOC's practice of applying countervailing duties to NME countries was lawful and the task the Panel should have performed under the correct approach to identifying the relevant baseline of comparison under Article X:2. In 
identifying the baseline of comparison under Arti cle X:2, the Panel should have ascertained the 
meaning of the US countervailing duty law prior to Section 1 of PL 112-99 directly through its objective assessment, and not only through the lens of the agency practice. 
4.105.  In our view, the identification of the baseline of comparison under Article X:2 for both 
(i) measures effecting an advance in a rate of duty and (ii) measures imposing a new or more burdensome requirement should start with th e text of the published measure of general 
application that existed prior to the measure allegedly effecting an advance in a rate of duty or 
imposing a new or more burdensome requirement that replaced it or modified it.
475 As discussed 
above, we consider that Article X:2 reflects th e principles of transparency and due process and 
notice. The relevant baseline of comparison for purposes of Article X:2 should be reflected in 
norms that traders can rely upon and that accordingly create expectations among them. Published 
measures create expectations among traders, and changes to such measures trigger the due 
process and notice obligations of Article X:2, whic h, for this reason, preclude the enforcement of 
those changes before publication. 
4.106.  We note, however, that there may be circumstances where the prior measure of general 
application is either unpublished or there is no measure at all. In the first case, the relevant 
comparison for the purposes of Article X:2 would need to be conducted with the prior unpublished 
measure of general application, whose meaning should  be ascertained based on its text, as well as 
other available elements of municipal law, such as practices of administrative agencies, court decisions, writings of recognized scholars, etc. In  the second case, the absence of any rate of duty 
or charge or any requirement, restriction, or prohibition should be the baseline of comparison. 
4.107.  An interpretation of Article X:2 as requiring a comparison of the new measure with the 
prior published measure is also consistent with the function of ensuring transparency and 
protecting traders' expectations under Article X:1, which requires the prompt publication of certain 
measures of general application so as "to enable  governments and traders to become acquainted 
with them". Until a new measure is published, traders will normally rely on prior measures that 
have been published and with which they are acquainted. It is a comparison with those measures 
that should reveal if the new measure effects an advance in a rate of duty or other charge on imports, or imposes a new or more burdensome requirement, thus triggering the obligation in Article X:2. 
4.108.  We note that, pursuant to the Appellate Body's findings in US – Carbon Steel , a 
determination of the meaning of municipal law entails an examination of "the text of the relevant legislation or legal instruments, which may be supported, as appropriate, by evidence of the 
consistent application of such laws, the pronouncements of domestic courts on the meaning of 
such laws, the opinions of legal experts and the writings of recognized scholars."
476 While we 
                                               
473 United States Code , Title 19, Chapter 4. 
474 Panel Report, paras. 7.171-7.186. 
475 We note that the member of the Panel who wrot e a dissenting opinion stated that Article X:2: 
… entails a comparison of the measure at issue with the prior municipal law (if any) that it replaces, amends, or otherwise supersedes. In this case, the relevant comparison is between the United States Tariff Act as it existed prior to the enactment of Section 1 of PL 112-99 and the United States Tariff Act as it existed following th e enactment and official publication of this new 
provision. 
(Panel Report, para. 7.214) 
476 Appellate Body Report, US – Carbon Steel , para. 157. WT/DS449/AB/R 
 
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  consider that the identification of the baseline of comparison in Article X:2 should not be limited to 
the practice of the administering agency, but, ra ther, should start with the text of the prior 
published measure of general application, we nevertheless agree with the Panel that evidence of consistent application of the law by domestic administering agencies, as well as the 
pronouncements of domestic courts, is relevant to a determination of the meaning of municipal 
law
477, particularly where the meaning and content of the municipal law is not evident from the law 
on its face. Therefore, as we see it, the practice of an administering agency is certainly one of the 
relevant elements in the determination of the meaning of municipal law, but it cannot constitute, 
in itself, the baseline of comparison under Article X:2 without regard to the measure on which it is based, as well as other elements such as the consistent interpretation or application of the law in court pronouncements. 
4.109.  Furthermore, we disagree with the Panel to the extent that it left open the possibility that 
an unlawful practice of an administering agency could constitute a relevant baseline of comparison under Article X:2.
478 We do not see how an unlawful practice by an administering agency, which 
may be overturned by a domestic court decision, could create expectation among traders over and 
above the published measure of general application with which it fails to comply. Traders cannot be expected to rely on a practice if it conflicts with the published law or with court rulings, as their 
expectation should be that the law will be correctly applied by the administering agency, or 
ultimately by a domestic court. In that vein, Article X:3 of the GATT 1994 ensures that judicial, 
arbitral, or administrative tribunals or procedures are available for traders to challenge administrative actions relating to customs matters. 
4.110.  In the present case, for the reasons explai ned above, we consider that the Panel erred in 
identifying the USDOC's practice of applying countervailing duties to imports from China as an NME country between 2006 and 2012 as the relevant baseline of comparison to determine whether 
Section 1 increased the rate of duty or imposed a new or more burdensome requirement. Instead 
of proceeding from the agency practice and then a ddressing the issue of whether that practice was 
lawful or not, the Panel should have focused on ascertaining the meaning of the prior published 
measure of general application, that is, Section 701(a) of the US Tariff Act, in order to determine 
whether Section 1 (through the new Section 701(f) of the US Tariff Act) increased duties or imposed new or more burdensome requirements as compared to Section 701(a). In ascertaining the meaning of Section 701(a), the Panel should have taken into account all other relevant 
elements besides its text, including the practice of  t h e  U S D O C ,  a s  w e l l  a s  t h e  r e l e v a n t  j u d i c i a l  
decisions on the meaning of Section 701(a), in order to determine the meaning of the US countervailing duty law applicable to NM E countries prior to Section 1 of PL 112-99. 
4.111.  The Panel, however, failed to conduct such an analysis, having determined that the 
comparison should be conducted between Sect ion 1 and the USDOC's practice of applying 
countervailing duties to imports from China as an NME country between 2006 and 2012. We have 
disagreed with this interpretation above. Thus , having established that between 2006 and 2012 
the USDOC had a practice of applying countervailing duties to imports from China as an NME country, the Panel erroneously proceeded to determ ine whether such practice was lawful under the 
applicable US law, that is, Section 701(a) of the US Tariff Act. 
4.112.  In addition to alleging that the Panel erred in identifying the baseline of comparison to 
determine whether the measure at issue effects an advance in a rate of duty or other charge on imports, China claims that the Panel also erred in identifying the point in time when the 
comparison between the measure at issue and th e baseline of prior rates and requirements and 
restrictions is to be made. According to China, the Panel erred in assuming that the comparison should be made between the measure at issue and the rates, requirements, and restrictions that 
existed prior to its enactment  (13 March 2012 for PL 112-99). Given that Article X:2 is concerned 
with enforcement before publication, China claims that the comparison should be made between the measure at issue and the rates, requirements, and restrictions that existed prior to its enforcement  (20 November 2006 for PL 112-99).
479 
                                               
477 Panel Report, para. 7.163. 
478 Panel Report, para. 7.159.  
479 China's appellant's submission, para. 51. WT/DS449/AB/R 
 
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  4.113.  The United States responds that the Panel found that Section 1 of PL 112-99 was not 
enforced on 20 November 2006 and that no actions were taken by the United States to enforce Section 1 prior to 13 March 2012. Thus, according to the United States, even under China's approach, which is predicated on the date of enfo rcement as the point in time for comparison, that 
date would still be 13 March 2012.
480 
4.114.  We have concluded above that the baseline of comparison under Article X:2 to determine 
whether a measure "effects an advance in a rate of duty" is not the practice of the administrative 
agency as such, but rather the prior published measure of general application as interpreted and 
applied by the relevant domestic authorities. In the light of this conclusion, we do not deem it necessary to determine a precise point in time fo r such comparison. If the measure is enforced 
before publication, the comparison should not be made between the new measure and its 
pre-publication enforcement, as this would effectively mean to compare the new measure with 
itself. As we have stated above, the comparison under Article X:2 of the GATT 1994 should always be made between the new measure and the prior published measure that it replaces or 
modifies.
481 
4.2.2.5  The Panel's application of the baseli ne of comparison to the measure at issue 
4.115.  Having reversed the Panel's interpretation of Article X:2 of the GATT 1994 in respect of the 
baseline of comparison for measures of general application effecting an advance in a rate of duty 
or other charge on imports under an established and uniform practice and for measures of general application imposing a new or more burdensome requirement, restriction, or prohibition on imports, we also reverse the Panel's application of these findings to the measure at issue, that is, 
Section 1 of PL 112-99. 
4.116.  In particular, we reverse the Panel's finding that "Section 1 did not bring about an 
increase, and thus did not effect an advance, in rates of countervailing duty on imports from China 
as an NME country" because it "maintained the sa me rates of duty that were already applied, 
pursuant to USDOC's established and uniform pr actice, prior to the enactment of Section 1".482 
4.117.  We also reverse the Panel's findings that  Section 701(f) "does not impose a 'requirement' 
or 'restriction' on imports from China as an NME country that was not previously imposed on such 
imports by USDOC under its prior practice, since at least April 2007, of applying United States CVD law to imports from China" and that "Section 701( f), and by extension Section 1, does not impose 
any 'new' or 'more burdensome' 'requirement' or 'restriction' on imports from China".
483 
4.118.  We, therefore, reverse the Panel's findings, in paragraph 7.191 of the Panel Report, that 
"China has not established that Section 1 [of PL 112-99] is a provision 'effecting an advance in a 
rate of duty or other charge on imports under an established and uniform practice'", and in 
paragraph 7.208 of the Panel Report, that "China has not established that Section 1 [of PL 112-99] 
is a provision 'imposing a new or more burdensome requirement, restriction or prohibition on imports'". 
4.2.3  Conclusions 
4.119.  In the light of all of the above, we reverse the Panel's findings, in paragraphs 7.209, 
7.210.c, 7.211, and 8.1.b.ii of the Panel Report, that, "although, through Section 1(b) and relevant 
determinations or actions made or taken by the United States between 20 November 2006 and 
13 March 2012 in respect of imports from China, the United States ha[d] enforced Section 1 before 
it ha[d] been officially published, the United States has not acted inconsistently with Article X:2 of the GATT 1994, as Section 1 does not 'effect[] an advance in a rate of duty or other charge on 
imports under an established and uniform practice, or impos[e] a new or more burdensome 
requirement, restriction or prohibition on imports'".
484 
                                               
480 United States' appellee's submission, para. 114. 
481 See supra , paras. 4.105-4.107. 
482 Panel Report, paras. 7.189 and 7.190. 
483 Panel Report, para. 7.206. 
484 Panel Report, para. 8.1.b.ii. WT/DS449/AB/R 
 
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  4.120.  Having reversed the Panel's interpretation of Article X:2 as requiring a comparison 
between the measure of general application and an established and uniform practice and the Panel's application of this finding to the measure at issue, we declare moot and of no legal effect: 
(i) the Panel's finding, in paragraphs 7.185 and 7.186 of the Panel Report, that the USDOC's 
practice of applying countervailing duties to China as an NME country between 2006 and 2012 was 
presumptively lawful under US municipal law, as the USDOC's interpretation of US countervailing duty law governed in the absence of a binding judicial determination indicating otherwise; and 
(ii) the Panel's finding, in paragraph 7.159 of the Panel Report, that it is potentially relevant, and 
at a minimum not inappropriate, to address the issue of whether the USDOC's practice prior to enactment of Section 1 of PL 112-99 was lawful under US municipal law, for purposes of an analysis under Article X:2 of the GATT 1994. 
4.3  Article 11 of the DSU 
4.121.  China argues that the Panel failed to conduct an objective assessment of the matter as 
required by Article 11 of the DSU in concluding , in paragraphs 7.158-7.186 of the Panel Report, 
that the USDOC's practice should be regarded as "presumptively lawful" and, thus, requests us to 
reverse these findings. China puts forward three main arguments in support of its claim under 
Article 11 of the DSU. First, China argues that th e Panel did not apply the standard set out by the 
Appellate Body for determining the meaning of municipal law.
485 According to China, the Panel 
should have examined "the relevant provisions of the Tariff Act, including the text of Section 1 of P.L. 112-99 in relation to the prior version of the Tariff Act that it amended".
486 China contends 
that "[t]he Panel majority's failure to examine the text of the relevant legal instruments would 
clearly be material to the validity and objectivity of its findings".487 Second, China argues that the 
Panel acted inconsistently under Article 11 in concluding that an agency's "practice or interpretation" is "presumptively lawful" unless and until a domestic court issues a final, 
non-appealable order directing the agency to cease that practice or interpretation. In China's view, 
this "presumption", which "finds no support in prior Appellate Body reports" and which "prior panels have properly rejected"
488, would amount to giving deference to a WTO Member's 
characterization of its municipal law. Finally, China contends that "[t]he Panel majority's rule of 
'presumptive lawfulness' amounted to a reversal of the burden of proof, [as it] absolv[ed] the 
United States of its obligation to rebut the prima facie  case that China had established."489 
4.122.  We understand China's claim under Article 11 as being linked to the Panel's approach in 
the application  of Article X:2 of the GATT 1994 to the measure at issue. We have already found 
above that the Panel erred in its application  of Article X:2 to the measure at issue due to its 
erroneous interpretation of the relevant baseline of comparison under this provision. Moreover, we 
have mooted the Panel's findings that: (i) the USDOC's practice of applying countervailing duties 
to China as an NME country between 2006 and 2012 was "presumptively lawful" under US law, as the USDOC's interpretation of US countervailing  duty law governs in the absence of a binding 
judicial determination indicating otherwise; and (ii) it is potentially relevant, and at a minimum not 
inappropriate, to address the issue of whether the USDOC's practice prior to the enactment of 
Section 1 was lawful under US law, for purposes of an analysis under Article X:2. Consequently, 
China's claim under Article 11 of the DSU addresses issues that we have already dealt with in 
reviewing the Panel's interpretation and applicatio n of Article X:2 of the GATT 1994. As we have 
reversed the Panel's findings regarding its interpretation and application of Article X:2, and we have declared moot and of no legal effect the Panel's findings regarding the lawfulness of the 
USDOC's practice in the context of the analysis under Article X:2 of the GATT 1994, we do not 
consider it necessary to examine further China's claim under Article 11 of the DSU. 
                                               
485 China's appellant's submission, para. 93 (referring to Appellate Body Report, US – Carbon Steel , 
para. 157). 
486 China's appellant's submission, para. 94. 
487 China's appellant's submission, para. 94. 
488 China's appellant's submission, para . 95 (referring to Panel Reports, US – 1916 Act (EC) , para. 6.51; 
and EC – Trademarks and Geographical Indications (Australia) , para. 7.106). 
489 China's appellant's submission, para. 97. WT/DS449/AB/R 
 
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  4.4  Completion of the analysis under Article X:2 of the GATT 1994 
4.123.  Having reversed the Panel's interpretation and application of Article X:2 of the GATT 1994, 
we turn next to consider whether we are in a position to complete the analysis in order to determine whether Section 1 of PL 112-99 effects "an advance in a rate of duty or other charge on 
imports" or imposes "a new or more burdensome requirement [or] restriction" within the meaning 
of this provision, as China requests us to do. We recall that, in order to make such a determination of a measure of general application, it is necessary to conduct a comparison with the prior 
published measure of general application that the new measure replaces or modifies.
490 In order to 
do so, it is necessary to ascertain the meaning of the relevant municipal law. We also recall that, pursuant to the Appellate Body's findings in US – Carbon Steel , the assessment of the meaning of 
municipal law entails an examination of "the text of the relevant legislation or legal instruments, 
which may be supported, as appropriate, by evidence of the consistent application of such laws, 
the pronouncements of domestic courts on the meaning of such laws, the opinions of legal experts and the writings of recognized scholars".
491 Accordingly, in our analysis below, we examine the 
elements mentioned in US – Carbon Steel  that are relevant in this dispute for purposes of 
conducting the comparison required by Article X:2 between the measure at issue (i.e. Section 1 of PL 112-99) and the US countervailing duty law applicable prior to Section 1. In other words, we 
examine whether the US countervailing duty law was changed by Section 1 and thereby effected 
an "advance" in a rate of duty or imposed a "new or more burdensome" requirement. As our 
examination of these elements seeks to ascertain the meaning of municipal law in the context of 
reviewing the consistency of Section 1 of PL 112-99 with Article X:2 of GATT 1994, we consider 
this exercise to be a legal characterization issue subject to appellate review. However, to the 
extent that this analysis involves examining fact ual elements, we are mindful that we would need 
to rely on findings by the Panel or undisputed facts on the Panel record in doing so. 
4.124.  At the outset, we note that on a number of occasions the Appellate Body has completed 
the analysis with a view to facilitating the pr ompt settlement and effective resolution of the 
dispute.
492 We begin by describing the considerations that have informed the Appellate Body's 
decisions in previous disputes regarding completion of the analysis. The Appellate Body has 
completed the analysis when sufficient factual fi ndings by the panel and undisputed facts on the 
panel record allowed it to do so.493 The Appellate Body has not completed the analysis in situations 
where the factual findings by the panel and undispu ted facts on the panel record were insufficient 
for the Appellate Body to conduct its own analysis.494 Other reasons that have prevented the 
Appellate Body from completing the analysis includ e "the complexity of the issues, the absence of 
full exploration of the issues before the panel, and, consequently, considerations for parties' due 
process rights".495 The Appellate Body has also declined to complete the analysis "in circumstances 
where that would involve addressing claims 'which the panel had not examined at all'".496 
                                               
490 See section 4.2 of this Report. 
491 Appellate Body Report, US – Carbon Steel , para. 157. 
492 See e.g. Appellate Body Reports, Australia – Salmon , paras. 117-136; US – Wheat Gluten , 
paras. 80-92; and Canada – Aircraft (Article 21.5 – Brazil) , paras. 43-52. 
493 See e.g. Appellate Body Reports, US – Gasoline , p. 19, DSR 1996:I, p. 18; Canada – Periodicals , 
p. 24, DSR 1997:I, p. 469; EC – Poultry , para. 156; EC – Hormones , para. 222; US – Shrimp , paras. 123 
and 124; Japan – Agricultural Products II , para. 112; US – FSC , para. 133; Australia – Salmon , paras. 117 
and 118; US – Lamb , paras. 150 and 172; US – Section 211 Appropriations Act , para. 352; EC and certain 
member States – Large Civil Aircraft , paras. 1174-1178; and US – Large Civil Aircraft (2nd complaint) , 
paras. 1272-1274. 
494 See e.g. Appellate Body Reports, EC – Hormones , para. 251; Korea – Dairy , paras. 92 and 102; 
Canada – Autos , paras. 133 and 145; US – Hot-Rolled Steel , paras. 180 and 236; US – Softwood Lumber IV , 
para. 118; US – Softwood Lumber VI (Article 21.5 – Canada) , paras. 157 and 161; US – Oil Country Tubular 
Goods Sunset Reviews , paras. 219 and 220; US – Upland Cotton , para. 693; US – Zeroing (EC) , paras. 228 
and 243; EC – Selected Customs Matters , para. 286; US – Continued Zeroing , para. 194; US – Anti-Dumping 
and Countervailing Duties (China) , para. 537; EC and certain member States – Large Civil Aircraft , paras. 736, 
990, and 993; and US – COOL , para. 481. 
495 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , para. 5.224 
(referring to Appellate Body Report, EC – Export Subsidies on Sugar , fn 537 to para. 339). 
496 Appellate Body Reports, EC – Seal Products , para. 5.63 (quoting Appellate Body Report, EC – 
Asbestos , para.79). WT/DS449/AB/R 
 
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  4.125.  In its request to complete the analysis and find that Section 1 of PL 112-99 is inconsistent 
with Article X:2 of the GATT 1994, China asks, in particular, that we examine whether Section 1 brought about any of the situations described in Article X:2 in relation to prior US municipal law, as set forth in the published measures of general application.
497 According to China, the 
completion analysis would require us to examine the text of the measure at issue – Section 1 of 
PL 112-99 – in relation to the rates of duty, re quirements, and restrictions that were previously 
applicable under US law as set forth in published measures of general application. For China, this 
is the baseline of prior municipal law that we should use.498 China argues that the above-
mentioned textual elements of PL 112-99 are more than sufficient to establish a prima facie  case 
that Section 1 has the types of effects described in Article X:2. In addition, China argues that its prima facie  case based on the text of the relevant legal instruments is confirmed by other sources 
of municipal law, including the consistent application of those instruments and the 
pronouncements of domestic courts. The United States contends that the meaning of US countervailing duty law as it applied to NME countries prior to Section 1 cannot be determined 
on the face of Section 1 of PL 112-99 and Section 701(a) of the US Tariff Act alone, but must also 
take into account the other elements of the relevant US countervailing duty law and practice. According to the United States, in assessing whet her to complete the analysis, we would have to 
address and take into account these other elements.
499 
4.126.  We have disagreed above with the Panel th at the baseline of comparison under Article X:2 
is "an established and uniform practice" and, in the case at hand, the USDOC's practice of applying countervailing duties to NME countries between 2006 and 2012. We have also considered that the 
relevant baseline under Article X:2 is the prior published measure of general application creating 
expectations among traders
500, which in the present case is the United States' countervailing duty 
law applicable prior to Section 1 of PL 112-99, that is, Section 701(a) of the US Tariff Act, as 
interpreted by US courts and interpreted and applied by the USDOC. Section 701(a) states in 
relevant part: 
[I]f the administering authority determines that the government of a country … is 
providing, directly or indirectly, a countervailable subsidy … and an industry is 
materially injured … by reason of imports of that merchandise, then there shall be imposed upon such merchandise a countervailing duty… .
501 
4.127.  As we have considered above, the Appellate Body has established that an assessment of 
the scope and meaning of municipal law generally comprises the following elements: 
The party asserting that another party's municipal law, as such, is inconsistent with 
relevant treaty obligations bears the burden  of introducing evidence as to the scope 
and meaning of such law to substantiate that assertion. Such evidence will typically be 
produced in the form of the text of the relevant legislation or legal instruments, which may be supported, as appropriate, by evidence of the consistent application of such 
laws, the pronouncements of domestic courts on the meaning of such laws, the 
opinions of legal experts and the writings of recognized scholars. The nature and extent of the evidence required to satisfy th e burden of proof will vary from case to 
case.
502 
                                               
497 China's appellant's submission, para. 101. 
498 In China's view, the completion analysis requires "a determination as to the meaning of US municipal 
law prior to the enforcement of Section 1 as of 20 November 2006". (China's appellant's submission, para. 72) China points out, however, that the undisputed facts in  the Panel record lead to the same result  whether the 
comparison is made as of the date on which Section 1 was enforced (20 November 2006), or as of the date on which it was enacted and officially published (13 March 2012). (Ibid., para. 100)  
499 United States' response to questioning at the oral hearing; United States' appellee's submission, 
paras. 146-201.  
500 See section 4.2 of this Report. 
501 See Panel Report, fn 249 to para. 7.162 (quoting  United States' response to Panel question 
No. 64(a); and Panel Exhibit USA-119, comprising a ta ble setting out the Administrative Notice to the 
Government of China and to Chinese Producers/Exporters Regarding Applicat ion of U.S. CVD Laws to China). 
(emphasis omitted) 
502 Appellate Body Report, US – Carbon Steel , para. 157. (fn omitted) WT/DS449/AB/R 
 
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  4.128.  In the light of these considerations, our assessment below is divided in several parts. First, 
we examine the text of the measure at issue, Section 1 of PL 112-99, as well as the text of Section 701(a) of the US Tariff Act. Next, we assess other elements of US countervailing duty law that are relevant to the present case, including judicial decisions by US courts and the practice of 
the USDOC in applying countervailing duties to imports from NME countries. Based on a holistic 
examination, we then assess whether we can reach a conclusion on whether Section 1 effected an advance in a rate of duty or imposed a new or more burdensome requirement or restriction within 
the meaning of Article X:2 of the GATT 1994, as  compared to the US countervailing duty law 
applicable prior to Section 1. 
4.129.  We note that, although the Panel refrained from explicitly making findings regarding the 
nature and content of Section 701(a), the Panel di d examine relevant aspects of the meaning of 
the US countervailing duty law prior to Section 1 in determining whether the USDOC's practice of 
applying countervailing duties to imports from NME countries was lawful. Despite the fact that these findings by the Panel were made following an erroneous interpretation of Article X:2, we 
examine below to what extent some of them are not tainted by that error and thus useful in our 
comparison of Section 1 and Section 701(a) with a view to determining whether the new measure effected an advance in a rate of duty or imposed a new or more burdensome requirement or 
restriction. Therefore, in our analysis below, we consider it appropriate to rely on certain findings 
by the Panel that examined relevant aspects of the US countervailing duty law prior to Section 1. 
4.130.  In respect of the US legislation at issue, the comparison called for by Article X:2 requires 
determining the meaning of both Section 1 and Sect ion 701(a). We start our analysis with the text 
of Section 1, given that China contends that the question of whether Section 1 effected an 
advance or imposed a new or more burdensome requirement must begin with an examination of the text of that legal instrument.
503 The United States enacted PL 112-99 on 13 March 2012. This 
law is entitled "An Act to apply the countervailing duty provisions of the Tariff Act of 1930 to 
nonmarket economy countries, and for other purp oses". As mentioned above, Section 1 of 
PL 112-99 is the measure at issue with respec t to China's claims under Article X:2 of the 
GATT 1994.504 The text of Section 1 of PL 112-99 is reproduced in full below: 
SECTION 1. APPLICATION OF COUNTE RVAILING DUTY PROVISIONS TO 
NONMARKET ECONOMY COUNTRIES. 
(a) IN GENERAL.—Section 701 of the Tariff Act of 1930 (19 U.S.C. 1671) is amended 
by adding at the end the following: 
"(f) APPLICABILITY TO PROCEEDIN GS INVOLVING NONMARKET ECONOMY 
COUNTRIES.—  
"(1) IN GENERAL.—Except as provided in paragraph (2), the merchandise on which 
countervailing duties shall be imposed under subsection (a) includes a class or kind of merchandise imported, or sold (or likely to be sold) for importation, into the 
United States from a nonmarket economy country. 
"(2) EXCEPTION.—A countervailing duty is not required to be imposed under 
subsection (a) on a class or kind of merchandise imported, or sold (or likely to be sold) for importation, into the United States from a nonmarket economy country if the 
administering authority is unable to identify and measure subsidies provided by the 
government of the nonmarket economy country or a public entity within the territory of the nonmarket economy country because the economy of that country is essentially 
comprised of a single entity.'' 
(b) EFFECTIVE DATE.—Subsection (f) of Section 701 of the Tariff Act of 1930, as 
added by subsection (a) of this section, applies to— 
                                               
503 China's appellant's submission, paras. 72 and 101. 
504 Panel Report, para. 7.10. WT/DS449/AB/R 
 
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  (1) all proceedings initiated under subtitle A of title VII of that Act (19 U.S.C. 1671 
et seq.) on or after November 20, 2006; 
(2) all resulting actions by U.S. Customs and Border Protection; and 
(3) all civil actions, criminal proceedings, and other proceedings before a Federal court 
relating to proceedings referred to in paragraph (1) or actions referred to in 
paragraph (2). 
4.131.  There are several aspects of Section 1 that we consider important. First, the introductory 
clause of subparagraph (a) of Section 1 states that Section 701 of the US Tariff Act is amended by 
adding a new subsection (f). Thus, subparagraph (a) of Section 1 sets out what has become an integral part of the US countervailing duty law in the form of Section 701(f) of the US Tariff Act.
505 
Second, the new Section 701(f) of the US Tariff Act relates to the applicability of US countervailing 
duty provisions to imports from NME countries. In addition, Section 1 explicitly specifies that the 
merchandise on which countervailing duties shall be imposed under Section 701(a) of the US Tariff Act includes a class or kind of merchandise imported, or sold (or likely to be sold) for importation, 
into the United States from an NME country. Finally, the new Section 701(f) provides that a 
countervailing duty is not required to be imposed under subsection (a) in cases where the administering authority (the USDOC) is unable to identify and measure subsidies provided by the 
government or a public entity of an NME country "because the economy of that country is 
essentially comprised of a single entity".  
4.132.  Although certain aspects of the new sect ion mentioned above could be read as suggesting 
that the US countervailing duty law did not previously apply to imports from NME countries, the 
United States has introduced considerable arguments in support of the opposite view. In essence, 
the United States argues that Section 1 only clarified  that imports from NME countries are subject 
to Section 701(a), which, in its view, already required the imposition of countervailing duties on 
imports from NME countries provided that a countervailable subsidy could be identified. China, to 
the contrary, asserts that the text of Section 1 suffices to establish that Section 1 changed  the 
US countervailing duty law by introducing a provision that subjects imports of NME countries to 
countervailing duty proceedings. As indicated above, the analysis under Article X:2 requires a 
comparison between Section 1 and the US countervailing duty law applicable prior to Section 1. Thus, we do not consider it appropriate to reach any conclusions as to the nature and effect of Section 1 on the basis of Section 1 alone. Rather, we are called to examine also the text of 
Section 701(a) and other elements of US municipal law prior to Section 1 in order to determine 
whether Section 1 changed or merely clarified the law and is thus inconsistent or consistent with Article X:2 of the GATT 1994. We examine below the participants' arguments in relation to each of 
the relevant elements of US countervailing duty law. 
4.133.  We begin with the text of Section 701(a) of the US Tariff Act. We recall that China's 
position is that the relevant inquiry to dete rmine whether the measure at issue effected an 
advance in a rate of duty or imposed a new or more burdensome requirement under Article X:2 
involves "an examination of the text of Section 1 in relation to the text of the prior law that it amends".
506 We recall that Section 701(a) states that, "if the administering authority determines 
that the government of a country … is providing, directly or indirectly, a countervailable subsidy … 
and an industry is materially injured … by reason of imports of that merchandise, then there shall 
be imposed upon such merchandise a countervailing duty".507 
4.134.  Several aspects of Section 701(a) are relevant to our analysis. First, this legal instrument 
does not refer explicitly to NME countries. Section 701( a) simply refers to "a country", without 
making any distinction as to the type of economy prevailing in that country for it to be subject to US countervailing duty law. NME countries are not excluded from the scope of the term "country" 
                                               
505 We note that the language used in Section 701(f) of the US Tariff Act is identical to the language 
used in subparagraph (a) of Section 1 of PL 112-99, setting out the new Section 701(f). 
506 China's appellant's submission, para. 101. 
507 See Panel Report, fn 249 to para. 7.162 (quoting  United States' response to Panel question 
No. 64(a); and Panel Exhibit USA-119, comprising a ta ble setting out the Administrative Notice to the 
Government of China and to Chinese Producers/Exporters Regarding Applicat ion of U.S. CVD Laws to China). 
(emphasis omitted) WT/DS449/AB/R 
 
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  and thus could be deemed to be covered by Section 701(a). Second, the use of the language "shall 
be imposed" suggests that Section 701(a) establis hes in mandatory fashion that the administering 
agency (i.e. the USDOC) impose countervailing duties if certain conditions are met. This would seem to be in line with the United States' position that, under the US countervailing duty law 
applicable prior to Section 1, the USDOC was bound to impose countervailing duties to imports 
from any country whenever the existence of a countervailable subsidy could be established.
508 
Third, the use of the conjunction "if" supports the view that this mandatory requirement is 
conditional upon the USDOC's determination that the government of a country is providing a 
countervailable subsidy (i.e. that a countervailable subsidy exists). We consider that the use of the conjunction "if" in Section 701(a) could mean, on the one hand, that the application of countervailing duties to any country, including NME countries, is mandatory if certain conditions 
are met, as the United States contends. On the other hand, the word "if" could also be read as 
indicating that the USDOC has the discretion to decide whether to apply the countervailing duty 
law to imports from an NME country by determining whether a countervailable subsidy exists, or to 
refrain from doing so. 
4.135.  Our analysis above suggests that the question of whether Section 1 created or confirmed 
the USDOC's authority to apply countervailing duties to NME countries cannot  be answered by 
merely examining the text of Section 1 and Sectio n 701(a) alone. As indicated, although the title 
and some aspects of the text of Section 1 suggest that US countervailing duty law did not 
previously apply to imports from NME countries, the text and scope of Section 701(a) does not explicitly exclude NME countries from the scope of application of US countervailing duty law. 
Rather, Section 701(a) applies to imports from any "country" where the USDOC determines the 
existence of a countervailable subsidy. Consequent ly, our analysis of the text of Section 701(a) 
and Section 1 alone cannot resolve the issue of whether Section 1 created the USDOC's authority 
to impose countervailing duties on imports from NME countries or merely confirmed what 
Section 701(a) already required – i.e. the impositi on of countervailing duties on imports from NME 
countries, subject to a positive determination of the existence of a subsidy.  
4.136.  In line with our observations regarding the text of the two legal instruments, we note that 
the parties raised conflicting arguments as to th e outcome of the comparison between Section 1 of 
PL 112-99 and Section 701(a) of the US Tariff Act before the Panel and now on appeal.
509 The 
Panel indicated that "the parties fundamentally disagree about the nature and effect of Section 1. 
Whereas China understands Section 1 to have changed pre-existing law, the United States 
considers that it merely clarified pre-existing law."510 Indeed, China asserts on appeal that the 
US Tariff Act "did not previously provide for the application of countervailing duties to imports from 
[NME] countries".511 The United States counters that China's assertion is erroneous and is 
contradicted by the plain text of Section 701(a), which states that "every 'country' exporting merchandise to the United States is subject to the CVD law, with no exceptions".
512 
4.137.  China's position is that "[b]y providing that countervailing duties 'shall be imposed' on 
imports from [NME] countries … [Section 1] plainly indicates that subsection 701(a) previously did not apply to imports from [NME] countries".
513 China further asserts that the express retroactive 
date in Section 1 is conclusive in that "[t]he only conceivable purpose for making a statutory 
amendment retroactive is to change the law as it existed in the past".514 We note, however, that 
China does not directly refer to the text of Section 701(a) in order to determine the meaning of that instrument, but rather seeks to draw inferences from the text of Section 1 as to the meaning 
that may be ascribed to Section 701(a). 
                                               
508 As indicated above, under US countervailing duty law, certain conditions must be fulfilled for the 
imposition of countervailing duties, including, inter alia , the existence of a countervailable subsidy, material 
injury to the domestic industry, and a causal link between the countervailable subsidy and the injury. In this Report, when we refer to the impositi on of countervailing duties once a countervailable subsidy has been found 
to exist, we understand that these conditions have been met. 
509 We note that Section 701(a) of the US Tariff Act is still an integral part of the US countervailing 
duty law. 
510 Panel Report, fn 251 to para. 7.162. 
511 China's appellant's submission, para. 104. 
512 United States' appellee's submission, para. 150. 
513 China's appellant's submission, para. 105. 
514 China's appellant's submission, para. 109. WT/DS449/AB/R 
 
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  4.138.  Conversely, the United States contends that, by enacting PL 112-99, the US Congress 
sought to clarify and confirm the applicability of the countervailing duty law to imports from NME countries in an attempt to resolve the uncerta inty or ambiguity created, partly by the 
2011 decision of the United States Court of Appeals for the Federal Circuit (CAFC) in the 
GPX International Tire Corporation case
515 (GPX V ).516 The United States further argues that, in 
establishing that countervailing duties "shall be imposed", Section 1 did not change the state of prior US countervailing duty law. The United States  argues to the contrary that the same language 
is found in Section 701(a) of the US Tariff Act with respect to the requirement to apply 
countervailing duties to subsidized imports from any "country". In essence, the United States argues that the USDOC was required, before and after Section 1 came into existence, to apply countervailing duties to imports from NME countries provided that a countervailable subsidy could 
be identified, and thus no change within the meaning of Article X:2 occurred. 
4.139.  Before the Panel, the participants presented considerable arguments and evidence, 
including opinions of legal experts, addressing the issue of whether Section 1 clarified  or changed  
Section 701(a) with respect to the applicability of countervailing duty law to imports from 
NME countries. The first opinion of China's legal expert noted that, in enacting legislation, the US Congress usually changes the law, and then exam ined several criteria identified by US courts 
when determining whether a given legislation co uld be considered as a "clarification" of a 
pre-existing law – e.g. whether this is indicated in the relevant statute, including in its title, or in that statute's legislative history.
517 China's expert opinion concluded that these criteria were not 
present when PL 112-99 was enacted. The United St ates, in turn, also submitted an opinion of a 
legal expert who disagreed with the conclusion of  China's expert that the US Congress "changed 
the applicable law" when it enacted Section 1. The United States' legal expert asserted that, "[a]lthough the [CAFC's] initial, non-final decision in GPX V  threatened to unsettle the law, in the 
end nothing changed. The law as it existed after the [CAFC rendered its decisions in] GPX V  and 
GPX VI  … remains clear: The [USDOC] had and still has the authority to apply the countervailing 
duty provisions of the Tariff Act of 1930 to imports from China".
518 Subsequently, China submitted 
a supplemental opinion of its legal expert contending that the United States' expert opinion 
"includes no reference to or analysis of prior cases laying out the criteria for identifying statutes that aim merely to clarify preexisting law and not to change it".
519 
4.140.  We observe that, in addressing the question of whether Section 1 clarified  what was 
already required under the previous US countervailing duty law or changed  it, the Panel indicated 
that "it [was] not necessary to address, let alone to  try to resolve, this issue which is still being 
litigated before United States courts."520 In the Panel's view, none of the participants considered 
the "change" versus "clarification" argument to be material for the analysis under Article X:2 of the 
GATT 1994. In our view, this statement of the Panel may have, in major part, resulted from its erroneous interpretation of the baseline of comparison under Article X:2, which it found was the 
USDOC's post-2006 practice. However, under th e correct interpretation of the baseline of 
comparison under Article X:2, and given the significant amount of argumentation devoted by the participants to this issue, we disagree with the Panel that this issue was not material for purposes of the comparison contemplated under Article X:2. Rather, it is clear to us that answering the 
question of whether the US countervailing duty law applicable prior to Section 1 already provided 
authority to the USDOC to apply countervailing duties to imports from NME countries or that Section 1 created such authority is necessary for the baseline of comparison contemplated under 
the correct interpretation of Article X:2. 
4.141.  In sum, our analysis of the text of both Section 1 and Section 701(a) suggests that the 
disagreement between the parties on whether Section 1 changed the prior law and introduced for 
the first time the authority of the USDOC to apply countervailing duty law to NME countries cannot  
                                               
515 United States Court of Appeals for the Federal Circuit, GPX International Tire Corporation v. 
United States, 666 F.3d 732 (Fed. Cir. 2011) (Panel Exhibit CHI-6). 
516 United States' appellee's submission, para. 183. 
517 Legal Opinion of Richard H. Fallon, Jr, Professor of Law, Harvard University (Panel Exhibit CHI-83), 
paras. 42 and 44.  
518 Legal Opinion of John C. Jeffries, Jr, Professor of Law, University of Virginia, in response to Legal 
Opinion of Richard H. Fallon, Jr (Panel Exhibit USA-115), para. 29. 
519 Supplemental Legal Opinion of Richard H. Fallon, Jr, Professor of Law, Harvard University (Panel 
Exhibit CHI-124), para. 22. 
520 Panel Report, para. 7.184. (fn omitted) WT/DS449/AB/R 
 
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  be answered by merely examining the text of the two legal instruments. For instance, the 
conjunction "if" in Section 701(a), when read together with "shall be imposed", could mean, on the one hand, that the application of countervailing duties to any country, including NME countries, is mandatory if certain conditions are met. On the other hand, the use of the conjunction "if" could 
also be read as indicating that the USDOC has the discretion to decide whether to apply the 
countervailing duty law to imports from an NME country by determining whether a countervailable subsidy exists, or to refrain from doing so. The texts of the relevant legal instruments therefore do 
not permit reaching a definitive conclusion as to whether Section 701(a) required or prohibited the 
USDOC to impose countervailing duties on imports from NME countries.
521 Thus, further 
examination of other elements related to the application of US countervailing duty law beyond the text of Section 1 and the text of Section 701(a) is required.
522  
4.142.  We note that the participants introduced before the Panel considerable argumentation 
regarding the application of Section 701(a) by th e USDOC, as well as judgments rendered by 
US courts regarding the USDOC's application of countervailing duty law to NME countries, including 
China. We turn next to examine these elements of  municipal law in chronological order, addressing 
the participant's arguments with respect to each of them. We begin our review with the Panel's analysis of the CAFC's decision in Georgetown Steel Corporation v. United States
523 (Georgetown 
Steel). We then turn to examine the USDOC's practi ce before and after 2006, the year when the 
USDOC initiated the first countervailing duty investigation with respect to imports from China during the 2006-2012 period.
524 Next, we address certain judicial pronouncements, including the 
decisions of the US Court of International Trade (CIT) in coated free sheet paper from China525 
(CFS Paper ), GPX I526, and GPX II527, and the CAFC's decisions in GPX V528 and GPX VI .529 
4.143.  We begin with the CAFC's decision issued in 1986 in Georgetown Steel . According to the 
Panel, in that ruling, "the CAFC upheld USDO C's decision not to apply CVD measures to NME 
countries".530 The parties "agree[d] that this decision  was a final, unappealed decision, and was 
governing and controlling under United States law".531 Importantly, however, the Panel pointed out 
that: 
… the scope of the CAFC holding in Georgetown Steel  was the subject of disagreement 
in the United States throughout the period 2006-2012, and that disagreement was not resolved prior to the enactment of Section 1 by any decision of a United States court 
that was final, non-appealable, and governing and controlling under United States 
law.
532 
                                               
521 We note that the findings by the Panel regarding the United States' "clarification" argument versus 
China's "change" argument are very limited due to the Panel's erroneous reliance on the USDOC's "established 
and uniform practice" as the relevant base line of comparison under Article X:2. 
522 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 168. 
523 United States Court of Appeals for the Fede ral Circuit, Georgetown Steel Corporation v. 
United States, 801 F.2d 1308 (Fed. Cir. 1986) (Panel Exhibit CHI-2). 
524 We recall that, "between November 2006 and March 2012, USDOC initiated 33 investigations and 
reviews in respect of imports from China under United States CVD law". (Panel Report, para. 7.169) We note 
that, "pursuant to Section 1(b) [of PL 112-99], proceedings initiated on or after 20 November 2006 fall within the temporal scope of application of Section 701(f), as do any resulting USCBP actions and associated Federal 
court proceedings." (Ibid., para. 7.72) 
525 United States Court of International Trade, Go vernment of the People's  Republic of China v. 
United States, 483 F. Supp. 2d 1274 (CIT 2007) (Panel Exhibit USA-28). 
526 United States Court of Internatio nal Trade, GPX International Tire Corporation v. United States, 587 
F. Supp. 2d 1278 (CIT 2008) (Panel Exhibit USA-93). 
527 United States Court of Internatio nal Trade, GPX International Tire Corporation v. United States, 645 
F. Supp. 2d 1231 (CIT 2009) (Panel Exhibit CHI-3). 
528 United States Court of Appeals for the Federal Circuit, GPX International Tire Corporation v. 
United States, 666 F.3d 732 (Fed. Cir. 2011) (Panel Exhibit CHI-6). 
529 United States Court of Appeals for the Federal Circuit, GPX International Tire Corporation v. 
United States, 678 F.3d 1308 (Fed. Cir. 2012) (Panel Exhibit CHI-7). 
530 Panel Report, para. 7.174 (referring to Georgetown Steel ). 
531 Panel Report, para. 7.174 (referring to parties' responses to Panel question No. 51). 
532 Panel Report, para. 7.174. (fn omitted) WT/DS449/AB/R 
 
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  4.144.  We observe that the Panel refrained from making an explicit finding regarding its own 
understanding of the holding in Georgetown Steel  and only indirectly addressed this issue by 
referring to the USDOC's understanding of the holding in that decision. In particular, the Panel indicated that, "[t]hroughout [the 2006-2012] period, USDOC interpreted the CAFC decision in 
Georgetown Steel  as affirming USDOC's discretion  to determine whether to apply countervailing 
duties to imports from NME countries, and not as a broader holding that United States CVD law did not apply to imports from NME countries."
533 The Panel also held that "the CIT … concluded on at 
least three occasions that the holding in Georgetown Steel  was at the very least 'ambiguous'".534  
4.145.  We note that the holding in Georgetown Steel  appears to be one of the most contested 
aspects of this dispute before the Panel and now on appeal. According to China, in the Georgetown 
Steel decision, the CAFC reviewed the history and purpose of the US trade remedy law and 
concluded that the countervailing duty provisions of US law do not permit the imposition of 
countervailing duties on imports from NME countri es. In China's view, the CAFC agreed with the 
USDOC's position at that time that, in an NME country, the government is incapable of conferring 
subsidies in the sense of US countervailing duty law.535 In essence, China understands the 
Georgetown Steel  decision as precluding the imposition of countervailing duties on imports from 
NME countries. On that basis, China submits that Section 1 should be considered as having 
effected a change in US countervailing duty la w for purposes of the comparison contemplated 
under Article X:2.  
4.146.  The United States fundamentally disagrees with China's assertion that the CAFC's decision 
in Georgetown Steel  s t a n d s  f o r  " t h e  c o n c l u s i o n  t h a t  t h e  U . S .  C V D  l a w  d o e s  n o t  a p p l y  t o  N M E  
countries as a matter of statutory interpretation."536 The United States argues to the contrary that 
the CAFC decision "affirmed [the USDOC's] interp retation and decision to not apply the U.S. CVD 
law to certain Soviet-style centrally planned economies".537 According to the United States, 
"[b]ecause the U.S. CVD law mandated that CVDs 'shall be applied' to subsidized imports, the 
exception invoked by [the USDOC] was limited to those situations in which it was impossible to apply the law when a subsidy could not be identified in the case before it."
538 In essence, the 
United States reads Georgetown Steel  as mandating the imposition of countervailing duties on 
imports from NME countries provided that it is factually possible to identify the existence of a countervailable subsidy within an NME country. According to the United States, Section 1 merely confirmed that the USDOC is required to impose countervailing duties whenever a countervailable 
subsidy can be identified. In the United States' view, Section 1 also clarified that the USDOC is not 
required to impose countervailing duties in situations where it cannot identify the existence of a countervailable subsidy by introducing the "single entity" exception that Section 1 codifies.
539 
Either way, the United States contends that Section 1 did not change prior law as reflected in 
Georgetown Steel  in a manner inconsistent with Article X:2. 
4.147.  Although both participants accept that the CAFC's decision in Georgetown Steel  was "a 
final, unappealed decision, and was governing and controlling under United States law"540, they 
hold divergent views as to the meaning of that decision. We note that the participants have relied on different passages found in the Georgetown Steel  decision in support of their respective 
positions. For instance, in that decision, the CAFC stated that "recent actions of Congress in 
dealing with the problem of exports by [NMEs] … indicate that Congress intended that any selling 
by [NMEs] at unreasonably low prices should be dealt with under the antidumping law. There is no indication in any of those statutes, or their legislative history, that Congress intended or 
understood that the countervailing duty law also would apply."
541 The CAFC also stated that 
"[i]f [the] remedy [provided under the antidumping law] is inadequate to protect the American industry from such foreign competition … it is up to Congress to provide any additional remedies it 
                                               
533 Panel Report, para. 7.174. (emphasis added) 
534 Panel Report, para. 7.177. 
535 China's appellant's submission, para. 137. 
536 United States' appellee's submission, para. 158 (referring to China's appellant's submission 
para. 137). 
537 United States' appellee's submission, para. 157. 
538 United States' appellee's submission, para. 156. 
539 United States' appellee's submission, para. 185. 
540 Panel Report, para. 7.174 (referring to parties' responses to Panel question No. 51). 
541 Georgetown Steel , p. 1316. WT/DS449/AB/R 
 
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  deems appropriate."542 This language is relied upon by China in support of its position, as it 
appears to suggest that the CAFC found no author ity at all under US countervailing duty law to 
impose such duties on imports from NME countries.543 Thus, according to China, the USDOC was 
precluded from imposing countervailing duties on imports from NME countries prior to Section 1.  
4.148.  However, in the same decision, the CAFC also stated in a concluding section that:  
… the agency administering the countervailing duty law has broad discretion in 
determining the existence of [countervailable subsidies] under that law. We cannot 
say that the Administration's conclusion that the benefits the Soviet Union and the 
German Democratic Republic provided for the export of potash to the United States were not [countervailable subsidies] under Section 303 was unreasonable, not in accordance with law or an abuse of discretion.
544  
This latter statement by the CAFC in Georgetown Steel , which is relied upon by the 
United States545, appears to support the position that the CAFC found US countervailing duty law 
to be applicable to imports from NME countries provided that the USDOC was able to identify the 
existence of a countervailable subsidy.546 On that basis, the United States argues that the 
USDOC's discretion mentioned in the CAFC's decision was limited to making the factual determination as to whether or not a subsidy could be identified. Subject to that caveat, the 
United States asserts that the CAFC's decision in Georgetown Steel  stands for the proposition that 
the USDOC was already required to apply the countervailing duty law to imports from NME countries prior to Section 1. 
4.149.  In the light of the above, we observe that the CAFC's decision in Georgetown Steel  
contains at least two passages relevant to this issue, one of which could be read as supporting the 
view that Section 1 changed  the previously applicable US countervailing duty law, and the other 
could be read as suggesting that it clarified  what the US countervailing duty law already required. 
On the one hand, the CAFC's statement that "[t]here is no indication … that Congress intended or 
understood that the countervailing duty law also would apply"
547 to imports from NME countries 
seems to support the view that the countervailing duty law was not applicable to imports from 
NME countries prior to Section 1. On the basis of this statement in Georgetown Steel , China argues 
that Section 1 should be read as having changed  that legal situation. On the other hand, the 
CAFC's statement that "the agency administerin g the countervailing duty law has broad discretion 
in determining the existence of [countervailable subsidies]" would appear to suggest that the 
US countervailing duty law was already applicable to imports from NME countries if it was possible 
to identify a countervailable subsidy. On the basis of this line of argument, the United States asserts that Section 1 should be read as only having clarified  what the previously applicable 
US countervailing duty law already required. Thes e apparently divergent statements by the CAFC 
in Georgetown Steel  are used as a basis for diametrically opposing arguments put forward by the 
participants regarding the comparison required by Article X:2.  
4.150.  We recall that the Panel did not make any findings in its Report addressing these divergent 
readings of the Georgetown Steel  decision. We consider that the Panel should have engaged in 
an inquiry to determine the scope and meaning of the holding of that decision. This inquiry was necessary to ascertain, through the relevant judicial pronouncement, the meaning of 
US countervailing duty law with respect to whether the USDOC was required to or precluded from 
applying the US countervailing duty law to imports from NME countries prior to Section 1. We note that the Panel record contains the USDOC's countervailing duty determinations regarding carbon 
                                               
542 Georgetown Steel , p. 1318. 
543 See China's appellant's submission, paras. 137-140. 
544 Georgetown Steel , p. 1318. We note that, at the time of the Georgetown Steel  decision, the 
US countervailing duty law was codified in Section 303 instead of Section 701(a). We further point out that, at that time, the US countervailing duty law referred to "bounties or grants" instead of "countervailable 
subsidies". The term "countervailable subsidies" was only introduced in the US legal system by the Uruguay Round Agreements Act. (United States' appellee's submi ssion, para. 164) For purposes of simplicity, we have 
replaced the term "bounties or grants" in the Georgetown Steel  decision with "count ervailable subsidies". 
545 See United States' appellee's submission, paras. 156-158. 
546 We note that we address below the manner in which the USDOC and the CAFC read the Georgetown 
Steel decision. 
547 Georgetown Steel , p. 1316. WT/DS449/AB/R 
 
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  steel wire rod from Poland548 and Czechoslovakia549 that underlie the CAFC's decision in 
Georgetown Steel . We will address these determinations below. At this juncture, however, we 
emphasize that the Panel should have analysed in its Report the USDOC's negative determinations in these underlying countervailing duty investigations, with a view to elucidating the scope and 
meaning of the holding in the CAFC's decision in Georgetown Steel . In sum, although the CAFC's 
decision was eventually an endorsement of thes e negative determinations made by the USDOC, 
given the Panel's failure to examine the divergent readings of the Georgetown Steel  decision and 
the underlying determinations by the USDOC, we are not in a position now on appeal to draw 
conclusive guidance from the Georgetown Steel  decision for the purposes of determining whether 
Section 1 changed  or clarified  the pre-existing countervailing duty law applicable to NME countries. 
4.151.  We turn next to examine the practice of the USDOC regarding the imposition of 
countervailing duties on imports from NME countries. China argues that the USDOC's application of 
the US countervailing duty law prior to 2006 demonstrates that, before the enactment of Section 1, such law did not authorize the imposition of countervailing duties to imports from NME 
countries.
550 In particular, China refers to the 1998 count ervailing duty regulations promulgated by 
the USDOC and to the 2002 determination in Sulfanilic Acid from Hungary551 (Sulfanilic Acid ) to 
establish that the USDOC considered that imports from NME countries were not subject to the 
application of countervailing duties under US law. The United States counters that the USDOC 
"did not apply the U.S. CVD law to any NME countries during the period following Georgetown 
Steel to 2006 because [the USDOC] continued to co nsider that the structure of the NME countries 
of the time made it impossible to identify countervailable subsidies".552 According to the 
United States, the USDOC eventually came to reassess the nature of certain NME countries when 
determining whether it was possible to identify the existence of subsidies within those economies.
553 The United States indicates that, in the case of China, this reassessment took place 
in the context of the CFS Paper  investigation, where the USDOC determined that "China's 
modernized economy was so substantially different from those of the Soviet-bloc states of the 1980s … that it was no longer impossible to identify subsidies".
554  
4.152.  At the outset of our analysis of the USDOC's practice, we note that the USDOC is 
"the primary agency administering the United States Tariff Act of 1930".555 We examine the 
USDOC's practice in order to ascertain whether or not US countervailing duty law applicable prior to Section 1 provided authority to the USDOC to impose countervailing duties on imports from 
NME countries and required such imposition whenever a countervailable subsidy could be 
identified. We note that any conclusion that we may be able to reach on the basis of the USDOC's practice would have to take into account the entire period of time since only the "consistent" 
application of the law may be helpful in ascertaining the meaning of municipal law. In line with the 
Appellate Body's guidance in US – Carbon Steel , an examination of the period spanning at least 
from the 1984 negative countervailing duty determinations by the USDOC with respect to carbon 
steel wire rod from Poland and Czechoslovakia to  the enactment of Section 1 in 2012 will allow us 
to examine the consistency  of the USDOC's practice in applying the relevant US countervailing 
                                               
548 USDOC, Carbon Steel Wire Rod From Poland: Fina l Negative Countervailing Duty Determination, 
United States Federal Register , Vol. 49, No. 89 (7 May 1984), pp. 19374 (Panel Exhibit USA-10). 
549 USDOC, Carbon Steel Wire Rod From Czecho slovakia: Final Negative Countervailing Duty 
Determination, United States Federal Register , Vol. 49, No. 89 (7 May 1984), pp. 19370-19374 (Panel Exhibit 
USA-7). 
550 China's appellant's submission, para. 147. 
551 See Memorandum dated 18 September 2002 from Richard W. Moreland, Deputy Assistant Secretary, 
Group I Import Administration, to Fa ryar Shirzad, Assistant Secretary for Import Administration, "Issues and 
Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Sulfanilic Acid 
from Hungary" (Panel Exhibit CHI-15), pp. 13-15. 
552 United States' appellee's submission, para. 165. We note that the United States further argues that, 
"[i]n certain instances following Georgetown Steel , [the USDOC] described in sh orthand terms the holding of 
Georgetown Steel  as being that the CVD law did not apply to exports from NME countrie s." According to the 
United States, the use of this shorthand term "explains the references in the preamble to [the 1998 countervailing duty] regulations and a determination involving sulfanilic acid from Hungary cited by China".  (Ibid.) 
553 United States' appellee's submission, para. 165. 
554 United States' appellee's submission, para. 172. 
555 Panel Report, para. 7.161. WT/DS449/AB/R 
 
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  duty law.556 Accordingly, unlike the Panel, and based on  the correct interpretation of the relevant 
baseline of comparison under Article X:2, we will not limit our analysis to the period between 2006 and 2012.  
4.153.  The Panel's analysis as to whether the USDOC was precluded from or required to impose 
countervailing duties on imports from NME countries under relevant US law prior to 2006 is very 
limited. However, the Panel did refer to the final countervailing duty regulations issued in November 1998 by the USDOC. The Panel held that in those regulations the "USDOC referred to its 
past practice of 'not applying the CVD law to [N MEs]'", and stated that "the CAFC 'upheld this 
practice' in Georgetown Steel ."
557 In its analysis, the Panel did not attach much significance to the 
1998 countervailing duty regulations given that it co nsidered that these regulations "do not detract 
from what [the Panel had] said about the holding in Georgetown Steel ."558 In the Panel's view, the 
Georgetown Steel  decision was "understood by USDOC [between 2006 and 2012] to have left it 
within its discretion  to determine whether in a given case United States CVD law could be applied 
to particular imports from NME countries".559 There appears to be a tension between the previous 
statements made by the USDOC as to its statutor y mandate before 2006, as shown below, and the 
United States' argument on appeal that, prior to Section 1, the USDOC was required to impose countervailing duties on imports from NME countries provided that subsidies could be identified. 
4.154.  On appeal, China argues that the 1998 countervailing duty regulations support the view 
that the USDOC would only apply countervailing duties to subsidies conferred after the date on which it designated a particular country as a market economy.
560 The United States replies that 
the USDOC "did not apply the U.S. CVD law to any NME countries during the period following 
Georgetown Steel  to 2006 because [the USDOC] continued to consider that the structure of the 
NME countries of the time made it impossible to identify countervailable subsidies".561 The 
United States points out that, in certain instances following Georgetown Steel , the USDOC 
"described in shorthand terms the holding of Georgetown Steel  as being that the CVD law did not 
apply to exports from NME countries".562 According to the United States, "[t]his shorthand was 
based on the 1986 understanding of the nature of NMEs, which explains the reference[] in the 
preamble to [the 1998 countervailing duty regulations]".563 
4.155.  On the basis of the Panel record, we note that, prior to 2006, the USDOC was faced in 
1984 with petitions to apply the countervailing duty law to imports from NME countries in the countervailing duty investigations with respect to carbon steel wire rod from Poland and 
Czechoslovakia. As indicated above, the final determinations by the USDOC in these two 
investigations were later challenged before the CIT and the CAFC. The latter rendered its Georgetown Steel  decision in 1986. We underscore that the Panel Report does not contain any 
analysis regarding the USDOC's 1984 negative countervailing duty determinations in relation to 
the question of whether the USDOC was required to or precluded from applying the countervailing duty law to imports from NME countries. We consider that the Panel should have examined the 
1984 negative countervailing duty determinations in the context of its analysis of the USDOC's 
practice and the 1986 Georgetown Steel  decision. We note that, in both of the negative 
countervailing duty determinations with respect to carbon steel wire rod from Poland and 
                                               
556 We note that the two negative countervailing duty determinations by the USDOC with respect to 
carbon steel wire rod from Poland and Czechoslovakia is sued in 1984 were later challenged before the CIT and 
ultimately before the CAFC, which, in 1986, rendered its decision in  Georgetown Steel .  
557 Panel Report, para. 7.175 (quoting USDOC, Countervailing Duties: Final Rule, United States Federal 
Register , Vol. 63, No. 227 (25 November 1998), pp. 65348-65360 (Panel Exhibit CHI-14), p. 65360). 
558 Panel Report, para. 7.175. 
559 Panel Report, para. 7.175. 
560 China's appellant's submission, para. 144. 
561 United States' appellee's submission, para. 165. (fn omitted) 
562 United States' appellee's submission, para. 165. 
563 United States' appellee's submission, para. 165. WT/DS449/AB/R 
 
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  Czechoslovakia564, the USDOC "concluded that bounties or grants, within the meaning of 
section 303, cannot be found in NME's".565 However, the USDOC also stated that it "has broad 
discretion in determining the existence or non-existence of the term 'bounty or grant'"566, and 
determined that "manufacturers, producers, or ex porters in [Poland and Czechoslovakia] of carbon 
steel wire rod do not receive bounties or grants."567 We note that the above two statements by the 
USDOC in these negative countervailing duty determinations are not clear regarding the applicability of the US countervailing duty law to imports from NME countries. This is so because 
the USDOC's statements are not clear as to whether it considered that the US countervailing duty 
law prohibited, as a general rule, the imposition of countervailing duties on imports from NME countries because countervailable subsidies could never  be found in the context of NME countries, 
or whether the US countervailing duty law required such application with the caveat that, in those 
specific cases  involving steel wire rod producers from Poland and Czechoslovakia, it was not 
possible for the USDOC to identify the existence of countervailable subsidies.
568 We consider that 
an examination of these issues by the Panel would have assisted us in drawing our conclusions as 
to the precise nature of the statutory mandate on which the USDOC's practice was based, not only 
after, but also before 2006. This is important for determining whether Section 1 changed the prior US countervailing duty law, as argued by China, or whether Section 1 clarified and confirmed what 
the US countervailing duty law already requ ired, as argued by the United States. 
4.156.  We now turn to the 1998 countervailing  duty regulations published by the USDOC. 
We begin by noting that the participants disagree on the meaning of the reference to the Georgetown Steel  decision in the 1998 countervailing duty  regulations. In the 1998 regulations, 
the USDOC officially stated that "it is important to note here our practice of not applying the CVD 
law to [NMEs]. The CAFC upheld this practice in Georgetown Steel Corp. v. United States ".
569 This 
statement could be read as suggesting that the USDOC had established its practice of not 
imposing countervailing duties on NME countries, or, even further, that it was precluded from 
d o i n g  s o ,  p r i o r  t o  S e c t i o n  1 ,  a s  a r g u e d  b y  C h i n a .  H o w e v e r ,  w e  a l s o  n o t e  t h a t  t h e  r e f e r e n c e  t o  Georgetown Steel  in this context is not of much assistance in ascertaining the USDOC's statutory 
mandate, because the ruling in Georgetown Steel  is amenable to different readings, as we have 
observed above. In any event, the USDOC went on to state in the 1998 regulations that, "[w]here the [USDOC] determines that a change in status from non-market to market [economy] is 
                                               
564 We note that, in both prelim inary determinations, the USDOC st ated that "nonmarket economy 
(NME) countries were not exempt from the provisions of section 303 of the Act". In the negative final determinations, the USDOC explained that, on the basis of the phrase "any country", it had "correctly address[ed] part of the jurisdictional  question [in the preliminary determinations]; i.e. whether any political 
entity is exempted per se  from the countervailing duty law". Ho wever, the USDOC added that, "[u]pon 
reconsideration, [its] preliminary determination[s] did not address adequately the additional jurisdictional 
question; i.e. whether government activities in an N ME confer a 'bounty or grant' within the meaning of 
section 303." (USDOC, Carbon Steel Wire Rod From Czechoslovakia: Final Negative Countervailing Duty Determination, United States Federal Register , Vol. 49, No. 89 (7 May 1984), pp. 19370-19374 (Panel Exhibit 
USA-7), p. 19371; USDOC, Carbon Steel Wire Rod From Poland: Final Negative Countervailing Duty Determination, United States Federal Register , Vol. 49, No. 89 (7 May 1984), pp. 19374-19378 (Panel Exhibit 
USA-10), p. 19375) 
565 USDOC, Carbon Steel Wire Rod From Czecho slovakia: Final Negative Countervailing Duty 
Determination, United States Federal Register , Vol. 49, No. 89 (7 May 1984), pp. 19370-19374 (Panel Exhibit 
USA-7), p. 19371; USDOC, Carbon Steel Wire Rod From Poland: Final Negative Countervailing Duty 
Determination, United States Federal Register , Vol. 49, No. 89 (7 May 1984), pp. 19374-19378 (Panel Exhibit 
USA-10), p. 19375. 
566 USDOC, Carbon Steel Wire Rod From Czecho slovakia: Final Negative Countervailing Duty 
Determination, United States Federal Register , Vol. 49, No. 89 (7 May 1984), pp. 19370-19374 (Panel Exhibit 
USA-7), p. 19374; USDOC, Carbon Steel Wire Rod From Poland: Final Negative Countervailing Duty Determination, United States Federal Register , Vol. 49, No. 89 (7 May 1984), pp. 19374-19378 (Panel Exhibit 
USA-10), p. 19378. 
567 USDOC, Carbon Steel Wire Rod From Czecho slovakia: Final Negative Countervailing Duty 
Determination, United States Federal Register , Vol. 49, No. 89 (7 May 1984), pp. 19370-19374 (Panel Exhibit 
USA-7), p. 19374; USDOC, Carbon Steel Wire Rod From Poland: Final Negative Countervailing Duty Determination, United States Federal Register , Vol. 49, No. 89 (7 May 1984), pp. 19374-19378 (Panel Exhibit 
USA-10), p. 19378. 
568 We recall that at that time of the negative countervailing duty investigations on wire rod from Poland 
and Czechoslovakia the US countervailin g duty law referred to "bounties" or "grants" instead of countervailable 
subsidies". The term "countervailable subsidies" was only introduced in the US legal system by the Uruguay Round Agreements Act of 1994. 
569 USDOC, Countervailing Duties: Final Rule, United States Federal Register , Vol. 63, No. 227 
(25 November 1998), pp. 65348-65360 (Panel Exhibit CHI-14), p. 65360. WT/DS449/AB/R 
 
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  warranted, subsidies bestowed by that country afte r the change in status would become subject to 
the CVD law."570 This could be read as suggesting that the USDOC was required to impose 
countervailing duties on imports from certain countries provided that their status was changed from "non-market economy" (NME) countries to "market economy" countries. In other words, the 
USDOC's statements in the 1998 countervailing duty regulations imply that the US countervailing 
duty law was not applicable to imports from NME countries unless and until their status changed to "market economy" countries.
571 This cannot be understood to be the same as the argument 
maintained by the United States in this appeal that countervailing duties had to be applied to 
imports from NME countries whenever a countervaila ble subsidy could be identified. Although we 
are mindful of the United States' argument that, after the Georgetown Steel  decision, the USDOC 
r e f e r r e d  t o  t h e  h o l d i n g  i n  t h a t  d e c i s i o n  i n  " s h o r t h a n d  t e r m s " ,  w e  s e e ,  i n  a n y  e v e n t ,  a  t e n s i o n  
between the United States' reading in this appeal of the Georgetown Steel  decision as confirming 
that the US countervailing law was always applicable to NME countries, and the USDOC's statements in the 1998 countervailing duty regulations that the USDOC's imposition of 
countervailing duties depended on a change in status of a country from "non-market economy" to 
"market economy". 
4.157.  With respect to other instances of the USDOC's practice prior to 2006, China also finds 
significant the 2002 USDOC determination in Sulfanilic Acid . According to China, the USDOC stated 
that "it would apply countervailing duties only in respect of subsidies conferred by a country after the date on which the USDOC designated that country as a market economy".
572 China argues 
that, on the basis of this understanding of the la w, the USDOC concluded that "subsidies provided 
by the Government of Hungary during the period  in which the USDOC designated Hungary as an 
NME were not subject to the application of countervailing duties under U.S. law".573 The 
United States contends on appeal that the Sulfanilic Acid determination does not stand for the 
proposition that, prior to 2006, the USDOC understood the Georgetown Steel  decision as 
establishing the inapplicability of countervailing duty laws to imports from NME countries due to their status as NME countries.
574 The United States asserts that the "shorthand" reference to the 
holding in Georgetown Steel  by the USDOC in the Sulfanilic Acid determination was based on the 
understanding that the structure of the NME countries at that time made it impossible to identify countervailable subsidies. For the United States, this does not detract from its position that, even prior to Section 1, the USDOC was required to im pose countervailing duties on imports from NME 
countries provided that a countervailable subsidy could be identified.
575  
4.158.  We observe that the Panel did not undertake any analysis or make findings with regard to 
the conclusions that could be drawn from the Sulfanilic Acid determination as to whether the 
USDOC was required to or precluded from applying the countervailing duty law to imports from 
NME countries prior to Section 1. We note that, in this decision, the USDOC set out its own understanding of the CAFC's decision in Georgetown Steel  and of the 1998 countervailing duty 
regulations. The USDOC concluded that a certain cash infusion was not a countervailable subsidy 
because, at the time, Hungary was still considered to be an NME country.
576 Like the conclusions 
mentioned above in the context of the 1998 countervailing duty regulations, the USDOC's 
                                               
570 USDOC, Countervailing Duties: Final Rule, United States Federal Register , Vol. 63, No. 227 
(25 November 1998), pp. 65348-65360 (Panel Exhibit CHI-14), p. 65360. 
571 USDOC, Countervailing Duties: Final Rule, United States Federal Register , Vol. 63, No. 227 
(25 November 1998), pp. 65348-65360 (Panel Exhibit CHI-14), p. 65360. 
572 China's appellant's submission, para. 164. 
573 China's appellant's submission, para. 173 (referring to Memorandum dated 18 September 2002 from 
Richard W. Moreland, Deputy Assistant Secretary, Group I Import Administration, to Faryar Shirzad, Assistant 
Secretary for Import Administration , "Issues and Decision Memorandum for the Final Determination in the 
Countervailing Duty Investigation of Sulfanilic Acid  from Hungary" (Panel Exhibit CHI-15), pp. 13-15). 
574 United States' appellee's submission, para. 165 (q uoting China's appellant's submission, para. 143). 
575 United States' appellee's submission, para. 165 (referring to China's appellant's submission, 
para. 144; USDOC, Countervailing Duties: Final Rule, United States Federal Register , Vol. 63, No. 227 
(25 November 1998), pp. 65348-65360 (Panel Exhibit CHI-14); and Memorandum dated 18 September 2002 from Richard W. Moreland, Deputy Assistant Secretary,  Group I Import Administration, to Faryar Shirzad, 
Assistant Secretary for Impo rt Administration, "Issues and Decision Memorandum for the Final Determination 
in the Countervailing Duty Investigation of Sulfanilic Acid from Hungary" (Panel Exhibit CHI-15), pp. 13-15). 
576 Memorandum dated 18 September 2002 from Richard W. Moreland, Deputy Assistant Secretary, 
Group I Import Administration, to Fa ryar Shirzad, Assistant Secretary for Import Administration, "Issues and 
Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Sulfanilic Acid 
from Hungary" (Panel Exhibit CHI-15), pp. 13-15. WT/DS449/AB/R 
 
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  determination in Sulfanilic Acid can be read to suggest that the countervailing duty law would not 
be applicable to imports from NME countries un less and until the USDOC changed their status to 
"market economy" countries, as China argues. The United States contends that the Sulfanilic Acid  
determination stands for the proposition that the USDOC could not identify a subsidy because 
Hungary was an NME country at the time of the investigation. According to the United States, this 
does not exclude that the USDOC was nevertheless required to impose countervailing duties on imports from NME countries prior to Section 1 if subsidies could be identified. As mentioned above, 
we see a tension between the argument of the United States in this appeal that countervailing 
duties would be imposed on imports from an NME country whenever a countervailable subsidy could be identified, on the one hand, and the USDOC's statements in Sulfanilic Acid  that such 
imposition would depend on a change in the co untry's status from "non-market economy" to 
"market economy", on the other hand. 
4.159.  In sum, we note that the Panel's inquir y into the USDOC's practice prior to 2006 is very 
limited, despite the fact that pre-2006 practice is  an element relevant to ascertaining the meaning 
of the US countervailing duty law prior to Section 1.
577 The Panel did not analyse in its Report 
numerous elements related to the USDOC's practice prior to 2006. Nor did it engage meaningfully 
with the arguments presented by the participants regarding the question of whether the USDOC 
was precluded from or required to impose countervailing duties on imports from NME countries 
under relevant US countervailing duty law prior to 2006. For instance, the Panel's analysis does not address the 1984 negative countervailing duty determinations with respect to carbon steel wire rod from Poland and Czechoslovakia. Nor did the Panel explore whether there were other 
countervailing duty investigations by the USDOC regarding imports from NME countries prior 
to 2006. The Sulfanilic Acid  determination was also not addressed in the findings of the Panel. Due 
to the lack of analysis by the Panel and undisputed facts in the Panel record, many aspects of the 
pre-2006 practice of the USDOC remain unclear. As mentioned earlier, the precise nature of the 
statutory mandate on which the USDOC's practice was based, not only after, but also before 2006, is relevant to our assessment of whether the prior US countervailing duty law was confirmed or 
changed by Section 1. 
4.160.  We now turn to the post-2006 practice of the USDOC. The Panel noted that, "[p]ursuant to 
a CVD investigation on CFS Paper  initiated on 27 November 2006, USDOC began applying  
United States CVD law to imports from China, notwithstanding that the United States continued to 
designate China as an NME country".
578 The Panel indicated that the record shows that, 
"in December 2006, [the USDOC] published a notice of opportunity to comment on whether the CVD law 'should now be applied to imports from [China]'."
579 In fact, at the outset of the 
CFS Paper  countervailing duty investigation, the USDOC stated the following: 
Given the complex legal and policy issues involved, and on the basis of the [USDOC's] 
discretion as affirmed in Georgetown Steel , the [USDOC] intends during the course of 
this investigation to determine whether the countervailing duty law should now be 
applied to imports from [China].580 
4.161.  In April 2007, the USDOC published an affirmative preliminary determination in the 
countervailing duty investigation in CFS Paper , in which it preliminarily determined that the 
US countervailing duty law could be  applied to imports from China.581 The Panel emphasized that 
the "USDOC did so after reaching the conclusion that it was possible to identify and measure 
                                               
577 As noted earlier, this is a consequence of the Panel's erroneous focus on  post-2006 USDOC practice 
for purposes of determinin g the baseline of comparison under Article X:2. 
578 Panel Report, para. 7.253. (emphasis added) 
579 Panel Report, para. 7.169 (quoting USDOC, Notice of Initiation of Countervailing Duty Investigations: 
Coated Free Sheet Paper From the People's Republic of China, Indonesia, and the Republic of Korea, 
United States Federal Register, Vol. 71, No. 227 (27 November 2006), pp. 68549-68549 (Panel Exhibit USA-23), p. 68549). 
580 Panel Report, fn 280 to para. 7.174 (quoting USDOC, Notice of Initiation of Countervailing Duty 
Investigations: Coated Free Sheet Paper From the People's  Republic of China, Indone sia, and the Republic of 
Korea, United States Federal Register , Vol. 71, No. 227 (27 November 2006), pp. 68546-68549 (Panel Exhibit 
USA-23), p. 68549). 
581 Panel Report, para. 7.169 (referring to USDOC, Coated Free Sheet Paper from the People's Republic 
of China: Amended Affirmative Prel iminary Countervailing Duty Determination (Preliminary Determination), 
United States Federal Register , Vol. 72, No. 67 (9 April 2007), pp. 17484-17486 (Panel Exhibit USA-25)). WT/DS449/AB/R 
 
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  subsidies as a consequence of the economic situation in China, and its understanding that this 
action was in accordance with then-existing United States law".582 In particular, the USDOC 
concluded that, "based on our assessment of the differences between [China's] economy today and the Soviet and Soviet-style econ omies that were the subject of [ Georgetown Steel ], we 
preliminarily determine that the countervailing duty law can be applied to imports from 
[China]."
583 According to the Panel, "[t]his understanding was based, in part, on [the USDOC's] 
interpretation of the CAFC decision [in] Georgetown Steel ."584 In October 2007, the USDOC issued 
an affirmative final determination in the countervailing duty investigation concerned.585 
4.162.  The Panel found that, "between November 2006 and March 2012, USDOC initiated 
33 investigations and reviews in respect of impo rts from China under United States CVD law, 
notifying China and other parties of its application of United States CVD law to China, and that in 
many of those proceedings USDOC issued CVD orders".586 The Panel noted that the "USDOC 
undertook those investigations and reviews, and i ssued those orders, even though, then as later, 
the United States designated China as an NME country".587 The Panel thus found that, "between 
November 2006, or at least April 2007, and March 2012, there was indeed a USDOC practice with 
regard to the application of countervailing duties to imports from China as an NME country".588  
4.163.  We note, however, that the existence of such a practice after 2006 does not necessarily 
resolve the issue of the legal basis for that practice under US countervailing duty law. China 
argues that the change in practice in 2006 confirms that the USDOC's practice between 1986 and 2012 was inconsistent. Moreover, China argues that US countervailing duty law prior to 2012 
precluded the USDOC from imposing countervailing duties on imports from NME countries, and 
that Section 1 changed that law by requiring th e imposition of countervailing duties on imports 
from NME countries, thereby violating Article X:2.
589 The United States, by contrast, argues that 
before and after 2006 the USDOC was required to  apply the countervailing duty law to NME 
imports and that it merely became possible as of 2006 for the USDOC to identify and measure 
subsidies in China. Therefore, the United States contends that Section 1 only clarified the pre-existing legal situation and did not effect a change in the sense of Article X:2.
590  
4.164.  We once again recall that, foll owing the Appellate Body's approach in US – Carbon Steel , 
the issue of whether or not the US countervailing duty law applicable prior to Section 1 required or at least allowed the application of countervailing duties to imports from NME countries (if a subsidy could be identified) has to be answered by taking into account, in a holistic exercise, the text of 
the relevant legal instruments, including Section 701(a), evidence of the consistent application of 
such laws, the pronouncements of domestic courts on the meaning of such laws, and the opinions of legal experts. 
4.165.  While it is clear that the USDOC's practice in applying US countervailing duty law changed 
in 2006, this fact, in and of itself, cannot reso lve the issue of whether the underlying statutory 
mandate changed with the enactment of Section 1. We recall that our analysis for purposes of 
determining the relevant baseline of comparison under Article X:2 must be based on the consistent 
application of Section 701(a) by the USDOC througho ut the relevant period, that is, at least since 
the early decisions by the USDOC on the applicab ility of the countervailing duty law to imports 
from NME countries reviewed by the CAFC in its ruling in Georgetown Steel . We note that the 
USDOC's official statements made in the proces s of applying the US countervailing duty law 
between 1986 and 2012, in particular before and after 2006, do not appear to be entirely 
                                               
582 Panel Report, para. 7.253. 
583 Panel Report, fn 281 to para. 7.174. 
584 Panel Report, para. 7.253. (fn omitted) 
585 Panel Report, para. 7.169 (referring to USDOC, Coated Free Sheet Paper from the People's Republic 
of China: Final Affirmative CVD Determination, United States Federal Register , Vol. 72, No. 206 (25 October 
2007), pp. 60645-60648 (Panel Exhibit USA-27)). 
586 Panel Report, para. 7.169. (fn omitted) 
587 Panel Report, para. 7.169.  
588 Panel Report, para. 7.169. The Panel further he ld that the USDOC's practice of imposing 
countervailing duties to imports from China "was presum ptively lawful under United States law, as USDOC's 
interpretation of United States CVD law governed in the absence of a bind ing judicial determination indicating 
otherwise". (Ibid., para. 7.185) 
589 China's appellant's submission, paras. 166-170. 
590 United States' appellee's submission, para. 125. WT/DS449/AB/R 
 
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  consistent , which may be construed as reflecting a certain level of ambiguity regarding its 
understanding of the meaning of the CAFC's ruling in Georgetown Steel . Some aspects of the 
USDOC's understanding of its statutory mandate reflected in the 1998 countervailing duty regulations and the 2002 determination in Sulfanilic Acid  may be read as suggesting that the 
USDOC understood Georgetown Steel  as not permitting the application of countervailing duties to 
imports from NME countries. The more recent USDOC practice, particularly after the initiation of the CFS Paper  investigation in 2006, appears to indicate that the USDOC understood its statutory 
mandate and  Georgetown Steel  as requiring the application of countervailing duties to imports 
from NME countries if it was possible to identify a countervailable subsidy within the economy of the relevant NME country. Thus, on the basis of our reading of the USDOC's statements in the 1998 countervailing duty regulations and the 2002 Sulfanilic Acid  determination, the rationale 
behind the USDOC's imposition of countervailing duties to NME countries appears to have changed 
after 2006 when the USDOC began applying the US co untervailing duty law to China, even though 
it remained classified as an NME country under US law. As noted above, it is difficult to reconcile 
the United States' contention that the USDOC's understanding of its statutory mandate did not 
change over time with the above-mentioned USDOC statements.  
4.166.  For these reasons, we consider that the USDOC's practice over the years does not 
ultimately assist us in ascertaining whether or not the US countervailing duty law precluded or 
required the application of countervailing duties to imports from NME countries prior to Section 1. Moreover, we emphasize that our analysis must also take into account, inter alia , the text of the 
relevant legal instruments and the pronouncements of domestic courts on the meaning of such 
instruments. Consequently, our examination of th e USDOC's practice as identified above during 
the relevant period does not provide a basis on which to reach a definitive conclusion on whether, prior to Section 1, the applicable US countervailing duty law prohibited the application of 
countervailing duties to imports from NME countries, as argued by China, or whether the USDOC 
was required to impose countervailing duties on imports from NME countries whenever it was possible to identify the existence of a subsidy, as asserted by the United States. 
4.167.  We turn next to examine a series of pronouncements of US courts regarding the 
application of countervailing duties to import s from China after 2006. The Panel noted that, 
following the initiation of the CFS Paper  countervailing duty investigation in 2006, years of 
litigation before US courts over this issue ensued.
591 
4.168.  We begin by noting the Panel's finding that, "[o]n at least three occasions, the CIT decided 
that the applicable United States law and the CAFC decision in Georgetown Steel  were 'ambiguous' 
regarding whether United States CVD law could be applied to imports from China".592 The Panel 
indicated that the first of those decisions by the CIT was in CFS Paper , followed by GPX I , and then 
GPX II .593  
4.169.  With respect to the first of those decisions, the Panel found that: "[i]n CFS Paper , the CIT 
appeared to accept USDOC's interpretation of Georgetown Steel ".594 According to the Panel, in that 
decision, the CIT stated that "the Georgetown Steel  court only affirmed [the USDOC's] decision not 
to apply countervailing duty law to the NMEs in question in that particular case [and it] recognized the continuing 'broad discretion' of the agency to determine whether to apply countervailing duty 
law to NMEs".
595 
4.170.  Turning to GPX I , according to the Panel, in that decision, the CIT stated that "it was 'not 
clear' whether Georgetown Steel  ' w a s  d e f e r r i n g  t o  a  d e t e r m i n a t i o n  o f  [ t h e  U S D O C ]  b a s e d  o n  
ambiguity in the statute or whether the Court held that there was only one legally valid 
interpretation of the statute'".596 The Panel also found that "the CIT further stated that 'in a case 
of this type of ambiguity, that is, when we are not sure what the court meant', United States 
Supreme Court precedent established that 'we are to  read the case as deciding that the agency 
                                               
591 Panel Report, para. 7.254. 
592 Panel Report, para. 7.254. (fns omitted) 
593 Panel Report, para. 7.254. (fns omitted) 
594 Panel Report, para. 7.176. 
595 Panel Report, para. 7.176 (quoting United States Court of International Trade, Government of the 
People's Republic of China v. United States, 483 F. Supp. 2d 1274 (CIT 2007) (Panel Exhibit USA-28), p. 1282). 
596 Panel Report, para. 7.176. (fn omitted) WT/DS449/AB/R 
 
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  determination at issue did not conflict with the st atute, not that a new agency reading, not before 
the court at the time, must be rejected'".597 With respect to GPX II , the Panel referred to the CIT's 
findings "that '[t]he court previously noted that the leading case upholding [the USDOC's] decision not to apply CVD remedies to imports from an NME country, [ Georgetown Steel ], is 
ambiguous'".
598 
4.171.  We next examine the decision in GPX V  rendered by the CAFC in 2011. The Panel's 
analysis with respect to the content  of the GPX V  decision is somewhat limited inasmuch as it only 
indicates the main conclusion of the decision, without addressing in detail the reasoning of the 
CAFC. In particular, the Panel found that in GPX V  "the CAFC held that, contrary to USDOC's 
practice, it was not in accordance with United States law for USDOC to apply United States CVD 
law to imports from NME countries, including China".599 The participants agree that in GPX V  the 
CAFC concluded that the USDOC "could not apply the CVD law to China as long as China was 
classified as a NME country".600 In this decision, the CAFC concluded that the USDOC "is barred by 
the statute from imposing countervailing duties on NME goods".601 The CAFC reached that 
conclusion on the basis of an examination of the text of the countervailing duty law, "the 
legislative history of the countervailing duty law, and particularly Congress's repeated reenactment of countervailing duty law while approving the Georgetown Steel  holding".
602 In the CAFC's view, 
this "demonstrates that Congress adopted [the  USDOC's] then-prevailing position that 
countervailing duties cannot be imposed on NME exports".603 Referring to the 1986 decision in  
Georgetown Steel , the CAFC observed that it "previously held that the statute does not compel the 
imposition of countervailing duties to goods from NME countries because the government 
payments with respect to such goods are not 'bounties or grants,' or 'countervailable subsidies' in 
the current terminology".604 The CAFC went on to state that "[i]n Georgetown Steel  we found that 
the 'economic incentives and benefits' provided by governments in NME countries 'do not 
constitute bounties or grants under section 303,' … that is, 'countervailable subsidies' in the 
language of the current statute".605  
4.172.  However, "the CAFC did not issue a mandate in GPX V  and its decision therefore never 
became final".606 According to the Panel, "[t]he reason why the CAFC did not issue a mandate is 
that following a request by the United States  Government, the CAFC granted a rehearing".607 The 
"United States' Government filed a petition for rehe aring with the CAFC on the same day" that the 
CAFC's GPX V  decision was rendered608 and, "[w]hen Section 1 was enacted, the rehearing of the 
case was still pending."609 
4.173.  Despite the fact that the participants agree on the non-finality of the GPX V  decision610, 
they disagree on the relevance and import within th e US legal system of the CAFC's conclusions in 
GPX V  as to the meaning of Section 701(a). China takes the view that, even though GPX V  was not 
                                               
597 Panel Report, para. 7.176 (quoting GPX I , pp. 1289-1290). 
598 Panel Report, para. 7.176 (quoting GPX II , p. 1237). 
599 Panel Report, para. 7.178. (fn omitted) See also ibid., para. 7.255. 
600 United States' appellee's submission, para. 175. See also China's appellant's submission, para. 152. 
601 GPX V , p. 737. 
602 GPX V , p. 737. 
603 GPX V , p. 737. 
604 GPX V , p. 738. (fn omitted) 
605 GPX V , p. 738. 
606 Panel Report, para. 7.180. We note that the Panel found that, under US law, "[t]he mandate 
documents the finality of a court's determination and remands the case to a lower court for further 
proceedings." (Ibid., fn 289 to para. 7.178 (referring to Legal Opinion of Richard H. Fallon, Jr, Professor of Law, Harvard University (Panel Exhibit CHI-83), para. 54)) 
607 Panel Report, para. 7.178. (fn omitted) Indeed, we note that the Panel found that, "[f]ollowing the 
issuance of this decision, the United States gove rnment petitioned the CAFC to grant a rehearing en banc  to 
reconsider its decision". (Ibid., para. 7.255) 
608 Panel Report, fn 302 to para. 7.181 (referring to United States Court of Appeals for the Federal 
Circuit, GPX International Tire Corporation v. United States, Corrected Petition for Rehearing En Banc  of 
Defendant-Appellant, United States, 2011-1107/1108/1109 (Fed.Cir.5 March 2012) (Panel Exhibit USA-43)). 
609 Panel Report, para. 7.178. 
610 China's appellant's submission, paras. 156 and 160;  United States' appellee's submission, paras. 177 
and 178. WT/DS449/AB/R 
 
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  a final decision, "it still stands as a statement of the law at the time of its decision".611 Therefore, 
China argues that GPX V  confirms that Section 1 changed the law. The United States rejects 
China's characterization that the GPX V  decision "constitutes an authoritative statement of 
U.S. law".612 In particular, the United States asserts that, given that the CAFC in GPX V  issued no 
mandate, the decision never became final and has no legally binding force under US law.613 
4.174.  In the absence of the issuance of a mand ate, the Panel did not analyse the relevance and 
import within the US legal syst em of the CAFC's decision in GPX V  as to the meaning of 
Section 701(a). The Panel stated that, "[f]or purpos es of [its] analysis, [it] need not determine 
whether under United States law a United States court could justifiably rely on the decision in GPX V  to establish what the law was prior to enactment of Section 1".
614 O n  t h e  b a s i s  o f  i t s  
erroneous interpretation that the relevant baseline of comparison under Article X:2 was an 
"established and uniform practice", the Panel cons idered that what mattered was that the "USDOC 
was not legally required to adjust its relevant practice as a consequence of the CAFC decision in GPX V , be it in the GPX case itself or any other case".
615 As noted above, we disagree with the 
legal interpretation of Article X:2 underlying that statement.616  
4.175.  In the light of the above considerations, we  note that the relevance and import within the 
US legal system of the GPX V  decision with respect to the meaning of Section 701(a) remains 
disputed according to the opinions of legal experts submitted by the participants. The first opinion 
of China's legal expert contended that, "[b]ecause the [CAFC] did not vacate its opinion in GPX V , 
a U.S. court could very plausibly regard that opinion as having established and as continuing to establish that Section 701(a) of the Tariff Act, prior to its amendment by P.L. 112-99, did not 
apply to [NME] countries".
617 The expert opinion presented by the United States countered that 
the view expressed by China's expert was "contrar y to the overwhelming weight of authority under 
United States law. Specifically, it [was] contrary to recent decisions of the Ninth Circuit explicitly 
holding that an appellate decision is not final until the mandate has [been] issued".618 In his 
supplemental opinion, China's expert stated that , "[w]ithout claiming that the decision in GPX V  
was 'final,' my prior opinion … said that a court could 'very plausibly' rely on [certain] cases to 
conclude that GPX V  retained precedential authority unless and until it was vacated, but I pointedly 
did not say that a court ought to have so ruled".619 We note that, in any event, because of its 
non-final status and due to the fact that the Panel explicitly refrained from making any findings regarding the question of whether under US law a US court could rely on the GPX V  decision to 
establish what the US countervailing duty law was prior to the enactment of Section 1, there are 
obvious limitations as to what extent the GPX V  decision can be relied upon for purposes of 
determining whether Section 1 changed or clarified US countervailing duty law in respect of the 
treatment of imports from NME countries. 
4.176.  We now turn to the CAFC's decision in GPX VI . When Section 1 was enacted, the rehearing 
of the GPX V  case was still pending.
620 A mandate was finally issued in GPX VI , after the 
enactment of Section 1.621 Relying on US Supreme Court precedent, the CAFC in GPX VI  based its 
                                               
611 China's appellant's submission, para. 160 (quoting United States Court of Appeals for the Federal 
Circuit, Guangdong Wireking Housewares & Hardware Co. Ltd. v. United States, 2013-1404 (Fed. Cir. 2014)). 
612 United States' appellee's submission, para. 176 (referring to China's appellant's submission 
paras. 152-162). 
613 United States' appellee's submission, para. 200. 
614 Panel Report, para. 7.180. (fn omitted) 
615 Panel Report, para. 7.180. 
616 See section 4.2 of this Report. 
617 Legal Opinion of Richard H. Fallon, Jr, Professor of Law, Harvard University (Panel Exhibit CHI-83), 
para. 53. 
618 Legal Opinion of John C. Jeffries, Jr, Professor of Law, University of Virginia, in response to Legal 
Opinion of Richard H. Fallon, Jr (Panel Exhibit USA-115), para. 7. (citations omitted) 
619 Supplemental Legal Opinion of Richard H. Fallon, Jr, Professor of Law, Harvard University (Panel 
Exhibit CHI-124), para. 10. (fns omitted) 
620 Panel Report, para. 7.178. In GPX VI , the rehearing was not conducted by the CAFC en banc , as 
originally requested by the United States Government , but by the same three-judge panel that heard the 
GPX V  case. (Panel Report, fn 290 to para. 7.178 (referring  to China's response to Panel question No. 68; 
China's second written submission, para. 83; Legal Opinio n of Richard H. Fallon, Jr, Professor of Law, Harvard 
University (Panel Exhibit CHI-83), paras. 13 and 50; United States' response to Panel question No. 68; and United States' oral statement at the second meeting with the Panel, para. 39)) 
621 Panel Report, para. 7.178 (referring to GPX VI , para. 1313). WT/DS449/AB/R 
 
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  decision on the new Section 1, given that the GPX V case was still pending on appeal at the time 
Section 1 entered into force.622 In GPX VI , the CAFC noted that the US Government and other 
interested parties had filed a petition for the rehearing of its decision in GPX V . 
4.177.  Except for several observations regarding certain formal aspects of the decision, the 
Panel's discussion regarding the content and import of the GPX VI  decision is limited. In particular, 
the Panel considered that it need "not determine whether the CAFC in GPX VI  relied on its decision 
in GPX V  to establish the prior state of the law in the United States".623 The Panel appears to have 
reached that conclusion due to the fact that "[t]he legal expert opinions submitted by the parties 
come to different conclusions in this regard".624 In particular, the Panel indicated that, while 
China's expert opinion argues that the CAFC in GPX VI  reasserted its holding in GPX V , the 
United States' expert opinion supports the exact opposite conclusion.625 
4.178.  On appeal, the participants' submissions an d their responses to our questioning at the oral 
hearing reflect their divergent positions before the Panel as to whether the GPX VI  decision 
established the state of US countervailing duty law prior to the enactment of Section 1. China 
argues that in GPX VI  the CAFC made clear that "the Tariff Act did not provide for the application 
of countervailing duties to imports from [NME] countries prior to the enactment of Section 1".626 
While the United States does not question the finding of GPX VI , it counters that the CAFC's 
holding in GPX VI  does not include its statement on the state of US countervailing duty law prior to 
Section 1, and thus the decision does not provide an  authoritative statement in respect of that law. 
According to the United States, the CAFC's reference in GPX VI  to its previous findings in GPX V  
merely serves as background and has no authoritative value under US law.627  
4.179.  We recall that, due to its interpretation of the relevant baseline of comparison under 
Article X:2, the Panel explicitly refrained from maki ng findings in its Report regarding the scope of 
the holding of the GPX VI  decision.628  
4.180.  We note that, in the introductory section of GPX VI , the CAFC recalled that in GPX V  it had 
"held that 'in amending and reenacting the trad e laws in 1988 and 1994, the US Congress adopted 
the position that countervailing duty law does not apply to NME countries,' and thus, 
'countervailing duties cannot be applied to goods from NME countries'."629 We note that the 
location of this statement casts doubt on whether that statement by the CAFC in GPX VI  is part of 
the holding of that decision. Whereas the CAFC also stated in GPX VI  that, in enacting Section 1, 
"Congress clearly sought to overrule [the CAFC's] decision in GPX V "630, the key feature of the 
holding in GPX VI  concerned Section 2(a) of PL 112-99. It is thus not to the point of this dispute, 
which centres on the meaning of Section 1 of PL 112-99.631 Given that the main feature of the 
holding in GPX VI  is related to Section 2 of PL 112-99, the import of this decision is limited for 
determining the state of the US countervailing duty  law prior to the enactment of Section 1. While 
it is true that the CAFC issued a mandate and finalized GPX VI , and although the CAFC recorded in 
GPX VI  what it held in GPX V , it is not disputed that the CAFC decision in GPX V  regarding 
Section 1 was not finalized. Therefore, there are obvious limitations as to whether and to what 
extent the GPX VI  decision can be relied upon to resolve the issue of whether Section 1 made the 
US countervailing duty law applicable to imports from NME countries, as China submits, or whether 
                                               
622 Panel Report, para. 7.178 (referring to Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211 (1995) (Panel 
Exhibit USA-85), p. 226). The Panel observed that the GPX VI  decision was based on the new Section 1 and 
concerns a countervailing duty proceeding initiated before 13 March 2012. (Ibid., para. 7.123) 
623 Panel Report, fn 300 to para. 7.180. 
624 Panel Report, fn 300 to para. 7.180 (referring to Legal Opinion of Richard H. Fallon, Jr, Professor of 
Law, Harvard University (Panel Exhibit CHI-83), paras.  57 and 58; and Legal Opinion of John C. Jeffries, Jr, 
Professor of Law, University of Virginia, in response to Legal Opinion of Richard H. Fallon, Jr (Panel Exhibit USA-115), para. 18). 
625 Panel Report, fn 300 to para. 7.180. 
626 China's appellant's submission, para. 161. 
627 United States' response to qu estioning at the oral hearing. 
628 Panel Report, fn 300 to para. 7.180. 
629 GPX VI , p. 1310. (citation omitted) 
630 GPX VI , p. 1311. 
631 We note, in this regard, th at the CAFC pronounced in GPX VI  that, by enacting Section 2(a) of 
PL 112-99, US Congress changed the law with respect to double counting. In the CAFC's view, "Congress 
clearly did not view this statutory change  as reflecting a clarific ation of existing law, but rather as a change in 
the law." ( GPX VI , p. 1311) WT/DS449/AB/R 
 
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  the USDOC was already required, as the United States argues, to impose countervailing duties on 
imports from any country prior to Section 1 whenever a countervailable subsidy could be identified. 
4.181.  In addition, China argues on appeal  that, following the CAFC's decision in GPX VI , the issue 
of whether the GPX V  decision was an authoritative statement of US law prior to the enactment of 
Section 1 was resolved by the CAFC in Guangdong  Wireking Housewares & Hardware Co. Ltd. v. 
United States ( Wireking ), a decision issued on 18 March 2014.
632 China acknowledges, however, 
that the Wireking  decision was issued after the issuance of  the Panel Report in this dispute, and 
therefore does not constitute part of the Panel record.633 The United States, in turn, maintains that 
we should reject China's attempt to introduce new evidence in the form of a "non-final" judicial opinion issued by the CAFC in Wireking , as it was issued after the issuance of the Panel Report.
634 
Given that the Wireking  decision does not constitute part of the Panel record and was rendered 
after the issuance of the Panel Report, we see no basis to examine it now on appeal. This is in line with the scope of our jurisdiction and previous findings by the Appellate Body. We recall that 
"[w]e have no authority to consider new facts on appeal. The fact that the documents are 
'available on the public record' does not excuse us from the limitations imposed by Article 17.6".
635 
Consequently, we do not take the Wireking  decision into account in our analysis. 
4.182.  The main question in this dispute under Article X:2 of the GATT 1994 is whether Section 1 
of PL 112-99 changed  the US countervailing duty law and thereby effected an advance in a rate of 
duty or imposed a new or more burdensome requir ement within the meaning of that provision, or 
whether Section 1 merely clarified  existing law and effected no such advance or imposition of a 
requirement. We recall that the relevant baseline of comparison in this case is Section 701(a) of 
the US Tariff Act, as interpreted by US co urts and interpreted and applied by the USDOC.636 Our 
foregoing examination of the relevant elements of  US countervailing duty law on the basis of the 
Panel record has highlighted that the text of the relevant legal instruments, the USDOC's practice 
and its consistency in interpreting and applying the US countervailing duty law with respect to imports from NME countries, the relevant judicial pronouncements of US courts, and the opinions 
of legal experts presented by the participants, ar e amenable to different readings. Our task has 
been made difficult because the Panel, as a consequence of its erroneous interpretation of the relevant baseline of comparison under Article X:2, and its consequential focus on the USDOC's practice after 2006, did not adequately examine al l relevant elements of US countervailing duty 
law that would have assisted us in arriving at a conclusion on the basis of the correct 
interpretation of Article X:2. The Panel failed properly to analyse, and did not address in its 
findings, the nature of pre-2006 USDOC practice and its consistency with post-2006 practice and 
the relevant judicial pronouncements on the appl icability of US countervailing duty law to NME 
countries.  
4.183.  For these reasons, we are unable to complete the analysis and arrive at a conclusion as to 
whether Section 1 changed the US countervailing duty law and therefore determine whether 
Section 1 of PL 112-99 effected an "advance" in a rate of duty or imposed a "new or more burdensome" requirement or restriction on impo rts within the meaning of Article X:2 of the 
GATT 1994.  
                                               
632 China's appellant's submission, para. 160. China asserts that, in Wireking , the CAFC rejected the 
proposition that its decision in GPX V  was not an authoritative statement of US law prior to the enactment of 
Section 1. (Ibid.) 
633 China's appellant's submission, para. 162. China cons iders it appropriate to advise how this issue has 
since been resolved by the CAFC, because the Wireking  decision is publically available, and the Panel explicitly 
referred to the ongoing Wireking  litigation as a reason for not resolving whether the decision in GPX V  was an 
authoritative statement of the law. (Ibid. (referring to Panel Report, fn 303 to para. 7.187)) 
634 United States' appellee's submission, para. 192. (fn omitted) 
635 Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 222. 
636 See supra , para. 4.126. WT/DS449/AB/R 
 
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  5  FINDINGS AND CONCLUSIONS 
5.1.  For the reasons set out in this Report, the Appellate Body: 
a. upholds the Panel's finding, in paragraph 4.2 of the Panel's Preliminary Ruling and 
paragraph 7.4 of the Panel Report, that clai ms under Articles 10, 19.3, and 32.1 of the 
SCM Agreement were identified in Part D of China's panel request consistently with the 
requirements of Article 6.2 of the DSU and were thus within the Panel's terms of reference; 
b. reverses the Panel's interpretation of Article X:2 of the GATT 1994, in paragraph 7.155 
of the Panel Report, in respect of the baseline of comparison for measures of general 
application "effecting an advance in a rate of duty or other charge on imports under an established and uniform practice", and in paragraph 7.203 of the Panel Report, in 
respect of measures of general application "imposing a new or more burdensome 
requirement, restriction or prohibition on imports"; 
c. reverses the Panel's application of its interpretation of Article X:2 of the GATT 1994 to 
the measure at issue and, in particular, the Panel's findings, in paragraph 7.191 of the 
Panel Report, that "China has not established that Section 1 [of PL 112-99] is a provision 'effecting an advance in a rate of duty or other charge on imports under an established 
and uniform practice'", and in paragraph 7.208 of the Panel Report, that "China has not 
established that Section 1 [of PL 112-99] is a provision 'imposing a new or more burdensome requirement, restriction or prohibition on imports'"; and accordingly 
d. reverses the Panel's findings, in paragraphs 7.209, 7.210.c, 7.211, and 8.1.b.ii of the 
Panel Report, that the United States has not acted inconsistently with Article X:2 of the 
GATT 1994, as Section 1 of PL 112-99 does not "effect[] an advance in a rate of duty or other charge on imports under an established and uniform practice, or impose a new or 
more burdensome requirement, restriction or prohibition on imports"; 
e. declares moot and of no legal effect the Panel's findings: 
i. in paragraphs 7.185 and 7.186 of the Panel Report, that the USDOC's practice of 
applying countervailing duties to China as an NME country between 2006 and 2012 
was presumptively lawful under US law, as the USDOC's interpretation of US countervailing duty law governed in the absence of a binding judicial determination indicating otherwise; and 
ii. in paragraph 7.159 of the Panel Report, that it is potentially relevant, and at a 
minimum not inappropriate, to address the issue of whether the USDOC's practice prior to enactment of Section 1 of PL 112-99 was lawful under US municipal law for 
purposes of an analysis under Article X:2 of the GATT 1994; and accordingly 
f. having reversed the Panel's findings regarding its interpretation and application of 
Article X:2 of the GATT 1994, and having declared moot and of no legal effect the 
Panel's findings regarding the lawfulness of the USDOC's practice in the context of the 
analysis under Article X:2 of the GATT 1994, does not consider it necessary to examine 
further China's claim under Article 11 of the DSU; and 
g. is unable to complete the analysis under Article X:2 of the GATT 1994 and determine 
whether Section 1 of PL 112-99 effected an "advance" in a rate of duty or imposed a 
"new or more burdensome" requirement or restriction on imports within the meaning of Article X:2 of the GATT 1994. 
5.2.  The Appellate Body recommends that the Di spute Settlement Body request the United States 
to bring the investigations and reviews identified in this Report, and in the Panel Report as 
modified by this Report, to be inconsistent with its obligations under the SCM Agreement into 
conformity with that Agreement.  
 WT /DS449/ AB/R 
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Signed in the original in Geneva this 20th day of June 2014 by: 
Seung Wha Chan 
Member Ujal Singh Bhatia 
Presiding Member 
Yu~jlao ztlaf1Q' 
Member WT/DS449/AB/R 
 
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ANNEX 1 
  
  
WT/DS449/6  
 
11 April 2014  
(14-2277)  Page: 1/2  
  Original: English  
UNITED STATES – COUNTERVAILING AND ANTI-DUMPING MEASURES 
ON CERTAIN PRODUCTS FROM CHINA 
NOTIFICATION OF AN APPEAL BY CHINA 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
 The following notification, dated 8 April 2014, fr om the Delegation of the People's Republic 
of China, is being circulated to Members. 
  
_______________ 
 1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review 
(WT/AB/WP/6) ("Working Procedures"), China hereby  notifies the Dispute Settlement Body of its 
decision to appeal certain issues of law and legal interpretation in the Panel Report in United States – Countervailing and Anti-Dumping Measures on Certain Products From China 
(WT/DS449) ("Panel Report").  
 2. Pursuant to Rules 20(1) and 21(1) of the Wo rking Procedures, China files this Notice of 
Appeal together with its Appellant's Submission with the Appellate Body Secretariat.  
 3. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures, this Notice of Appeal provides an 
indicative list of the paragraphs of the Panel Repo rt containing the alleged errors of law and legal 
interpretation by the Panel in its report, without prejudice to China's ability to rely on other 
paragraphs of the Panel Report in its appeal.  
4. China seeks review by the Appellate Body  of the following errors of law and legal 
interpretation by the Panel in its Report, and requ ests the following findings by the Appellate Body. 
 
I.  Review of the Panel's Findings under Article X:2 of the GATT 1994 
 5. The Panel erred in its interpretation and application of Article X:2 of the GATT 1994, in so far as the Panel found that United States Public Law 112-99 (P.L. 112-99) is consistent with 
Article X:2 because it does not effect an "advance in a rate of duty or other charge on imports 
under an established and uniform practice" or impose "a new or more burdensome requirement, restriction or prohibition on imports" within the meaning of that provision.
1 In particular, the Panel 
erred because: 
 
                                               
1 Panel Report, paras. 7.191, 7.208, 7.209-7.211, and 8.1(b)(ii). WT/DS449/AB/R 
 
- 94 - 
 
   it failed to interpret Article X:2 properly in finding that this provision requires a 
comparison between the rates, requirements, and restrictions effected by the measure at issue, on the one hand, and the rates, requirements, and restrictions previously 
applicable "under an established and uniform practice", on the other;
2 
 
 it failed to interpret Article X:2 properly in finding that this provision requires a 
comparison between the rates, requirements, and restrictions effected by the measure 
at issue in relation to the rates, requirements, and restrictions that existed under any 
baseline of comparison prior to the measure's enactment, rather than prior to its enforcement;
3 
 
 it incorrectly applied Article X:2 to the facts of this dispute in finding that Section 1 of 
P.L. 112-99 did not effect an "advance in a ra te of duty or other charge on imports" or 
impose a "new or more burdensome" requirement or restriction on imports within the 
meaning of that provision4; and 
 
 if the Appellate Body were to consider that the Panel made any factual findings with 
respect to the rates, requirements, or restrictions applicable under U.S. municipal law 
prior to the enforcement or enactment of Se ction 1 of P.L. 112-99, the Appellate Body 
would need to reverse any such findings on the grounds that the Panel applied an incorrect standard of review, and failed to make an objective assessment of the matter 
before it, including an objective assessment of the facts, as required by Article 11 of 
the DSU.
5 
 
6. For these reasons, China requests that the Appellate Body reverse the Panel's finding that 
Article X:2 of the GATT 1994 requires a compar ison between the rates, requirements, and 
restrictions effected by Section 1 of P.L. 112-99 and the rates, requirements, or restrictions that 
were applicable "under an established and uniform practice" prior to the measure's enactment.6 
 7. China requests that the Appellate Body re verse the Panel's findings that Section 1 of 
P.L. 112-99 did not effect an "advance in a rate of duty" or impose a "new or more burdensome" 
requirement or restriction on imports under Article X:2 of the GATT 1994.7  
 8.  Accordingly, China requests that the Appella te Body reverse the Panel's ultimate finding in 
paragraph 8.1(b)(ii) of the Panel Report that the United States did not act inconsistently with 
Article X:2 of the GATT 1994 because Section 1 of P.L. 112-99 did not effect an "advance in a rate of duty or other charge on imports under an established and uniform practice" or impose "a new or 
more burdensome requirement, restriction or prohibition on imports" within the meaning of that 
provision.   9. China requests that the Appellate Body comple te the legal analysis to find, instead, that 
Section 1 of P.L. 112-99 effected an "advance in a rate of duty or other charge on imports under 
an established and uniform practice" and imposed "a new or more burdensome requirement, restriction or prohibition on imports" within the meaning of Article X.2 of the GATT 1994. 
Consequently, the Appellate Body should also find that the United States acted inconsistently with 
Article X:2 of the GATT 1994 in enforcing Section 1 of P.L. 112-99 prior to its official publication.   
 
_______________ 
  
                                               
2 Panel Report, paras. 7.155-7.161 and 7.201-7.203. 
3 Panel Report, paras. 7.168, 7.171. 
4 Panel Report, paras. 7.165-7.191 and 7.204-7.208.  
5 Panel Report, paras. 7.158-7.186. 
6 Panel Report, paras. 7.155, 7.168, 7.171. 
7 Panel Report, para. 7.158-7.186, 7.190-7.191, 7.206-7.208. WT/DS449/AB/R 
 
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ANNEX 2 
  
  
WT/DS449/7  
 
24 April 2014  
(14-2488)  Page: 1/1  
 Original: English  
UNITED STATES – COUNTERVAILING AND ANTI-DUMPING MEASURES 
ON CERTAIN PRODUCTS FROM CHINA 
NOTIFICATION OF AN OTHER APPEAL BY THE UNITED STATES 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
 The following notification, dated 17 April 2014, from the Delegation of the United States, is 
being circulated to Members. 
  
_______________ 
  Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU") and Rule 23 of the Working Procedures for Appellate Review , the 
United States hereby notifies its decision to a ppeal to the Appellate Body certain issues of law 
covered in the Report of the Panel on United States – Countervailing and Anti-Dumping Measures 
on Certain Products from China (WT/DS449/R) and certain legal interpretations developed by the 
Panel in this dispute.  
  In particular, the United States seeks review  by the Appellate Body of the Panel's legal 
conclusion that Section D of China's Panel Request was not inconsistent with Article 6.2 of the 
DSU
1 because it provided a brief summary of the legal basis of the complaint sufficient to present 
the problem clearly.2 This finding is in error and is based on erroneous findings on issues of law 
and related legal interpretations, including, for example: the Panel's conclusion that a reference to 
Article 19 of the Agreement on Subsidies and Countervailing Measures  ("SCM Agreement") in 
China's panel request "warrant[ed] the inference" that the specific obligation at issue was Article 19.3 of the SCM Agreement;
3 that a panel request may satisfy the requirements of DSU 
Article 6.2 if it permits "sufficiently clear inferences" as to the obligations at issue;4 that multiple, 
distinct legal obligations under an article of a covered agreement may be interpreted to determine whether a particular obligation forms part of the legal basis of the complaint;
5 that a panel 
request's reference to an external source may inform whether the panel request provides a brief 
summary of the legal basis of the complaint sufficient to present the problem clearly;6 and that 
subsequent statements may cure a deficient panel request.7 The United States respectfully 
requests the Appellate Body to reverse the Panel's findings and conclude that Section D of China's 
Panel Request was not consistent with DSU Article 6.2. As a consequence, the United States 
                                               
1 See Panel Report, para. 8.1(a). 
2 See Preliminary Ruling by the Panel, WT/DS449/4, para. 3.52. 
3 See Preliminary Ruling by the Panel, WT/DS449/4, para. 4.1. 
4 See Preliminary Ruling by the Panel, WT/DS449/4, para. 3.32.  
5 See Preliminary Ruling by the Panel, WT/DS449/4, paras. 3.39-3.40.  
6 See Preliminary Ruling by the Panel, WT/DS449/4, paras. 3.42-3.43.  
7 See Preliminary Ruling by the Panel, WT/DS449/4, paras. 3.1-3.15. WT/DS449/AB/R 
 
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  further requests that the Panel's findings of inconsistency with respect to Articles 10, 19.3, 
and 32.1 of the SCM Agreement also be reversed as these claims are outside the terms of reference of this dispute.
8 
 
 
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8 See Panel Report, paras 7.298-7.396, 8.1(c).  WT/DS449/AB/R 
 
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ANNEX 3 
 ORGANISATION MONDIALE  ORGANIZACIÓN MUNDIAL 
 DU COMMERCE  DEL COMERCIO 
 
WORLD TRADE ORGANIZATION 
 
APPELLATE BODY 
United States – Countervailing and Anti-Dumping Measures on Certain Products from China 
 
AB-2014-4 
Procedural Ruling 
 
1. BACKGROUND 
 
1.1 On Tuesday, 8 April 2014, China notified the Di spute Settlement Body and filed a Notice of 
Appeal with the Appellate Body Secretariat with respect to the Panel Report in  United States – 
Countervailing and Anti-Dumping Measures on Certain Products from China  (WT/DS449/R). 
1.2 By letter of 11 April 2014, the United States requested the Division in this appeal to extend 
the time-limits for filing relevant documents pursuant to Rule 16(2) of the Working Procedures for Appellate Review (Working Procedures).  
1.3 By letter of 12 April 2014, the Presiding Member  of the Division, Mr. Ujal Singh Bhatia, 
invited the participants and third participants to provide their comments on the United States' request by 10 a.m. on 14 April 2014. China, Canada, the European Union, and Japan submitted 
comments within the deadline. 
1.4 In its request, the United States observed that in the dispute China – Measures related to 
the Exportations of Rare Earths, Tungsten, and Molybdenum  (DS431), China requested that the 
Division hearing that appeal extend "the deadlines  for filing of relevant documents" pursuant to 
Rule 16(2) of the Working Procedures. To the extent  that the Appellate Body were to grant such a 
request, the United States requested that the Division in this appeal grant an equivalent extension of time for the United States' Notice of Ot her Appeal and other appellant's submission. 
1.5 The United States argues that to adhere to the time-period set out in the Working 
Procedures for filing those documents in this appeal "would result in a manifest unfairness" to the United States, constituting "exceptional circumstances" within the meaning of Rule 16(2). The 
United States recalls that the Appellate Body has exceptionally treated all documents relating to 
both appeals as having been filed "simultaneously" and contends that it would result in manifest unfairness to require the United States to file it s other appeal in DS449 while permitting more time 
for China to file its other appeal in DS431, as if those appeals had not commenced 
"simultaneously". Moreover, according to the United States to permit more time for China to file its other appeal in DS431 than the United States would have to file its other appeal in DS449 would penalize the United States for having withdrawn its Notice of Appeal filed on 4 April 2014 in 
DS431, and for its willingness to cooperate and agree on an appropriate time for the filing of both 
appeals. The United States also refers to Rule 16(1), which provides that "[i]n the interests of fairness and orderly procedure in the conduct of an appeal, where a procedural question arises 
that is not covered by these Rules, a division may adopt an appropriate procedure for the purposes 
of that appeal only, provided that it is not inconsistent with the DSU, the other covered agreements and these Rules." 
1.6 China notes that requests for time-limit extensions have been filed occasionally in dispute 
procedures due to specific situations, and that normally parties did not object to the granting of short extensions to each other. While China does not perceive any linkage between this appeal and WT/DS449/AB/R 
 
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  the appeal in China – Measures related to the Exportations of Rare Earths, Tungsten, and 
Molybdenum  (DS431) in the manner implied by the United States in its letter of 11 April 2014, 
China does not object to the Division in this appeal granting the United States the same extension for the filing of its Notice of Appeal and other appellant's submission as it would be granted to 
China in DS431. Even if it does not object to the extension request, China does not believe that 
there should be any linkage between the Work ing Schedule for the present appeal and the 
Working Schedule for the appeal in DS431. China considers that these are two different appeals 
involving different issues with different levels of complexity and that each appeal should proceed 
according to its own timetable based on the nature of each appeal. 
1.7 Canada argues that, in the "exceptional circumstances" of two appeals simultaneously filed 
well in advance of the deadline, the Appellate Bo dy has the discretion and the responsibility to 
determine working schedules that best preserve its capacity to deliver high-quality outcomes. 
Canada notes that the Panel Report in this dispute was circulated on 27 March 2014, but that the parties to the appeal have had the Panel Report much earlier than the third parties. Canada thus 
requests that any departure from the normal working schedule take into account the requirement 
that third participants be provided a meaningful opportunity to comment. Japan agrees with the United States that, since the appeals in DS431 and DS449 were considered to be filed 
"simultaneously", and since the Appellate Body deci ded to accept China's request for the extension 
to the deadlines in DS431, in the interests of fairness and orderly conduct of the appellate proceedings, the United States' request for the extension in DS449 should be similarly granted. The European Union considers for similar reasons that, with respect to scheduling, the appeal in 
DS449 should be dealt with in a similar manner to the appeal in DS431. 
2. THE UNITED STATES' REQUEST TO EXTEND TIME-LIMITS FOR FILING DOCUMENTS 
 
2.1 Rule 16 of the Working Procedures provides as follows: 
(1) In the interests of fairness and orderly procedure in the conduct of an appeal, 
where a procedural question arises that is not covered by these Rules, a division may 
adopt an appropriate procedure for the purposes of that appeal only, provided that it 
is not inconsistent with the DSU, the ot her covered agreements and these Rules. 
Where such a procedure is adopted, the division shall immediately notify the parties to the dispute, participants, third parties and third participants as well as the other 
Members of the Appellate Body. 
(2) In exceptional circumstances, where strict adherence to a time-period set out in 
these Rules would result in a manifest unfairness, a party to the dispute, a participant, 
a third party or a third participant may request that a division modify a time-period 
set out in these Rules for the filing of documents or the date set out in the working schedule for the oral hearing. Where such a request is granted by a division, any 
modification of time shall be notified to the parties to the dispute, participants, third 
parties and third participants in a revised working schedule.  
2.2 In considering the United States' request, we fi nd it useful to begin by observing that, while 
a party to the dispute has the right to initiate an appeal at any time during the 60-day period 
stipulated in Article 16.4 of the DSU, in practice, in most disputes, Members have appealed panel 
reports towards the end of this 60-day period. Presumably they do so in order to maximize the time that they have to consider the panel report, to decide whether to appeal it, and to prepare 
their appeal. We also observe that, in most case s, one of the parties to the dispute places the 
adoption of a panel report on the agenda of a DSB meeting that falls within the 60-day period 
under Article 16.4 of the DSU, and that the date of such DSB meeting thus becomes a de facto  
deadline by which any other party must appeal the panel report. We also note that Article 16.1 of 
the DSU provides that the panel report shall no t be considered for adoption by the DSB until 
20 days after the date it has been circulated to Members. 
2.3 In this dispute, the Panel circulated its Report on 27 March 2014. The first regular DSB 
meeting scheduled after the circulation of the Pane l Report will occur on 25 April 2014. Neither of 
the parties to this dispute placed the adoption of the Panel Report on the agenda of that DSB meeting and, in any event, China initiated its appeal before the date on which the agenda closed 
for the 25 April meeting. China launched an appeal of the Panel Report 12 days after its 
circulation, seemingly with the intention of having the appeal in this dispute heard by the WT/DS449/AB/R 
 
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  Appellate Body early. Ultimately, in an unprecedented development, the appeals in this dispute 
and in DS431 were simultaneously filed. Furthermor e, following the simultaneous filing of the two 
appeals, China challenged the validity of the Notice  of Appeal filed by the United States in DS431 
and, in the event that the Appellate Body were to  reject that challenge, requested the Division 
hearing that appeal to extend the deadline for th e filing of China's Notice of Other Appeal and 
other appellant's submission. In a Procedural Ruling pursuant to Rule 16 of the Working Procedures dated 13 April 2014, the Division hearing the appeal in DS431 rejected China's 
challenge to the validity of the United States' Notice of Appeal but granted China's request for an 
extension of the relevant filing deadlines. 
2.4 In the particular circumstances of this case, we consider that the early and unexpected 
initiation of an appeal by China may adversely affect the ability of the United States as the 
respondent to exercise its right to appeal in a meaningful and effective way. This may be 
particularly so to the extent that this appeal coincided with the simultaneous filing of the United States' appeal in DS431 and considering the timing of the appeal. The circumstances in 
which two appeals involving two of the same parties are filed simultaneously are highly unusual. 
The simultaneous filing of the two appeals led th e Appellate Body to take necessary actions under 
Rule 16(1) of the Working Procedures to ensure fairness and orderly procedure in the conduct of 
appeals. Notwithstanding these unusual circumstan ces, the initiation of the appeal by China 
triggered the five-day deadline under Rule 23(1)  and (3) of the Working Procedures for the 
United States to file a Notice of Other Appeal an d an other appellant's submission. Accordingly, in 
order to participate in China's appeal as an other appellant, the United States must, pursuant to 
Rule 23(1) of the Working Procedures, file its ot her appeal 18 days after the circulation of the 
Panel Report. We note that this is a period even shorter than the minimum period of time provided 
for under Article 16.1 of the DSU before a circulat ed panel report can be considered for adoption 
by the DSB.  
2.5 We further take into account that the dispute at hand involves complex and systemic issues 
of WTO law, and that additional procedural issu es stemming from the exceptional situation of a 
simultaneous filing of two appeals had to be reso lved at the beginning of this appeal. The deadline 
set out in Rule 23(1) and (3) for the filing of a Notice of Other Appeal and an other appellant's submission falls on a date only two and a half weeks after circulation of the Panel Report. Given all of the circumstances described above, this may be too short for the United States to effectively 
exercise its rights under the DSU while participating in China's appeal as an other appellant. 
Accordingly, we consider that strict adherence to the time-period set out in Rule 23(1) and (3) would result in a manifest unfairness in the particular circumstances of the case at hand. 
2.6 With respect to third party rights, it is important to note that the third parties obtained 
access to the final Report of the Panel only after that Report was circulated to the Membership in all three official languages, that is, on 27 March 2014. In contrast, the Panel Report was issued to 
the parties several months earlier, once it was completed and sent to translation. China's initiation 
of its appeal also triggers the deadline under Rule 24(1) of the Working Procedures for third participants to file written submissions within 21 days. Within that period, third parties must review all the appellants', other appellants', and appellees' submissions and prepare their own 
submissions in response to the Panel Report and these other submissions. We consider, therefore, 
that in the specific circumstances of this case, including the early initiation of the appeal by China, this 21-day period may be insufficient to allow the third parties a meaningful opportunity to 
comment and sufficient time to finalize their submissions.  
2.7 Finally, we take note of our duty, consistent with Rule 16(1) of the Working Procedures, to 
ensure fairness and orderly procedure in the conduc t of appeals. As we have already stated, this 
consideration, among others, contributed to the Appellate Body's decision of 10 April 2014 
resolving certain procedural issues raised by the simultaneous filing of this appeal and the appeal in China – Measures Related to the Exportations of Rare Earths, Tungsten, and Molybdenum  
(DS431), as well as to the Procedural Ruling purs uant to Rule 16 of the Working Procedures issued 
on 13 April 2014 by the Division hearing the appeal in DS431. We consider that it would also be 
consistent with the approaches taken in both of those decisions to grant the request for an extension that is made by the United States in this dispute, and to which China and the third 
parties that submitted comments do not object. 
2.8 In the light of the above considerations, we ha ve decided to extend the time-period for the 
United States to file its Notice of Other Appeal and other appellant's submission to Thursday, WT/DS449/AB/R 
 
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  17 April 2014. As a consequence of this decision, and in order to preserve the sequence of and 
periods between the other deadlines prescribed under  the Working Procedures, it is also necessary 
to modify the dates for the filings of other submissions set out in the Working Schedule. We take note that the Working Procedures provide for a ll appellees' submissions to be submitted by the 
same deadline, and consider, in the circumstances of this case, that such deadline should be 
extended for all appellees irrespective of whether th ey are responding to the appeal or to the other 
appeal. We therefore also extend the time-period for the filing of appellees' submissions to 
Thursday, 1 May 2014, and we extend the time-period for third participants in this dispute to file 
their submissions to Monday, 5 May 2014.  
2.9 At this juncture, we would like to emphasize that our decision to extend the relevant filing 
deadlines of the above documents has been made  in the special context of the particular 
circumstances surrounding this dispute. The Appe llate Body may provide additional reasons for 
this decision at a later point in time in its eventual report. 
 
Modified Dates for the Submission of Documents 
 
 Process Rule Date 
 
Notice of Other Appeal Rules 16 and 23(1) Thursday, 17 April 2014  Other appellant's submission Rules 16 and 23(3) Thursday, 17 April 2014 
 
Appellees' submissions Rules 16, 22 and 23(4) Thursday, 1 May 2014  
Third participants' submissions Rules 16 and 24(1) Monday, 5 May 2014 
 Third participants' notifications Rules 16 and 24(2) Monday, 5 May 2014 
 
 
Signed in Geneva this 14th day of April 2014 by: 
 
____________________ 
Ujal Bhatia 
Presiding Member 
 
 
____________________ 
Seung Wha Chang 
Member  
____________________ 
Yuejiao Zhang 
Member 
 
 
__________