WT/DS449/R/Add.1  
 
27 March 2014  
(14-1817)  Page: 1/73  
  Original: English  
 
 UNITED STATES – COUNTERVAILING AND ANTI-DUMPING MEASURES 
ON CERTAIN PRODUCTS FROM CHINA 
REPORT OF THE PANEL 
Addendum 
 This addendum  contains Annexes A to C to the Report of the Panel to be found in document 
WT/DS449/R. 
 
 
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  LIST OF ANNEXES 
ANNEX A 
WORKING PROCEDURES OF THE PANEL 
Contents Page 
Annex A-1 Working Procedures of the Panel A-2 
ANNEX B 
ARGUMENTS OF THE PARTIES 
Contents Page 
Annex B-1 Executive summaries of the arguments of China B-2 
Annex B-2 Executive summaries of the arguments of the United States B-27 
ANNEX C 
ARGUMENTS OF THIRD PARTIES 
Contents Page 
Annex C-1 Executive summary of the arguments of Australia C-2 
Annex C-2 Executive summary of the arguments of Canada  C-5 
Annex C-3 Executive summary of the arguments of the European Union  C-7 
Annex C-4 Executive summary of the arguments of Japan  C-11 
 
 
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  ANNEX A 
WORKING PROCEDURES OF THE PANEL 
Contents Page 
Annex A-1 Working Procedures of the Panel A-2 
 
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  ANNEX A-1 
 
 
WORKING PROCEDURES FOR THE PANEL 
 
Adopted on 14 March 2013 
 
 
1.  In its proceedings, the Panel shall follow the relevant provisions of the Understanding on Rules and Procedures Governing the Settlement of Disput es (DSU). In addition, the following Working 
Procedures shall apply. 
General 
 2.  The deliberations of the Panel and the docume nts submitted to it shall be kept confidential. 
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter 
"party") from disclosing statements of its own positions to the public. Members shall treat as confidential information submitted to the Panel by another Member which the submitting Member 
has designated as confidential. Where a party submits a confidential version of its written 
submissions to the Panel, it shall also, upon request of a Member, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public.  
3.  The Panel shall meet in closed session. The parties, and Members having notified their interest 
in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU (hereafter 
"third parties"), shall be present at the meetings only when invited by the Panel to appear before 
it.  
4.  Each party and third party has the right to determine the composition of its own delegation 
when meeting with the Panel. Each party and third party shall have the responsibility for all members of its own delegation and shall ensure th a t  e a c h  m e m b e r  o f  s u c h  d e l e g a t i o n  a c t s  i n  
accordance with the DSU and these Working Procedures, particularly with regard to the 
confidentiality of the proceedings.  
Submissions 
 
5.  Before the first substantive meeting of the Pa nel with the parties, each party shall submit a 
written submission in which its presents the facts of the case and its arguments, in accordance with the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the 
second substantive meeting of the Panel, a written rebuttal, in accordance with the timetable 
adopted by the Panel.  
6.  A party shall submit any request for a preliminary ruling at the earliest possible opportunity 
and in any event no later than in its first written submission to the Panel. Unless a different 
procedure is provided for in consultation with  the parties, the following procedure shall be 
followed. If China requests such a ruling, the United States shall submit its response to the request in its first written submission. If the United States requests such a ruling, China shall submit its 
response to the request prior to the first substantive meeting of the Panel, at a time to be 
determined by the Panel in light of the request. Ex ceptions to this procedure shall be granted upon 
a showing of good cause.   
7.  Each party shall submit all factual evidence to the Panel no later than during the first 
substantive meeting, except with respect to evid ence necessary for purposes of rebuttal, answers 
to questions or comments on answers provided by the other party. Exceptions to this procedure 
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel 
shall accord the other party a period of time for comment, as appropriate, on any new factual 
evidence submitted after the first substantive meeting.  WT/DS449/R/Add.1 
 
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  8.  Where the original language of exhibits is not a WTO working language, the submitting party or 
third party shall submit a translation into the WTO working language of the submission at the same time. The Panel may grant reasonable extensions of time for the translation of such exhibits upon a showing of good cause. Any objection as to  the accuracy of a translation should be raised 
promptly in writing, no later than the next filing or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shall be accompanied by a detailed explanation of the grounds of objection and an alternative translation.  
9.  In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions attached as Annex 1, to the extent that it is practical to do so. 
10.  To facilitate the maintenance of the record  of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute. For example, exhibits  submitted by China could be numbered CHN-1, 
CHN-2, etc. If the last exhibit in connection with the first submission was numbered CHN-5, the 
first exhibit of the next submission  thus would be numbered CHN-6. 
Questions 
 
11.  The Panel may at any time pose questions to the parties and third parties, orally in the course 
of a meeting or in writing.   
Substantive meetings  
 
12.  Each party shall provide to the Panel the list of members of its delegation in advance of each 
meeting with the Panel and no later than 5.00 p.m. the previous working day.  
13.  The first substantive meeting of the Panel with the parties shall be conducted as follows: 
a. The Panel shall invite China to make an opening statement to present its case first. 
Subsequently, the Panel shall invite the United States to present its point of view. Before 
each party takes the floor, it shall provide the Panel and other participants at the 
meeting with a provisional written version of its statement. In the event that 
interpretation is needed, each party shall provide additional copies for the interpreters, through the Panel Secretary. Each party shall make available to the Panel and the other party the final version of its statement, prefer ably at the end of the meeting, and in any 
event no later than 5.00 p.m. on the first working day following the meeting. 
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through the Panel. Each party shall then 
have an opportunity to answer these questions orally. Each party shall send in writing, 
within a timeframe to be determined by the Panel, any questions to the other party to which it wishes to receive a response in writing. Each party shall be invited to respond in 
writing to the other party's written questions within a deadline to be determined by the 
Panel. 
c. The Panel may subsequently pose questions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it wishes to 
receive a response in writing. Each party shall be invited to respond in writing to such questions within a deadline to be determined by the Panel. 
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with China presenting its statement first.  
14.  The second substantive meeting of the Panel with the parties shall be conducted as follows: 
a. The Panel shall ask the United States if it wish es to avail itself of the right to present its 
case first. If so, the Panel shall invite the Un ited States to present its opening statement, 
followed by China. If the respondent chooses not to avail itself of that right, the Panel WT/DS449/R/Add.1 
 
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  shall invite China to present its opening statement first. Before each party takes the 
floor, it shall provide the Panel and other participants at the meeting with a provisional written version of its statement. In the event that interpretation is needed, each party shall provide additional copies for the interpreters, through the Panel Secretary. Each 
party shall make available to the Panel and the other party the final version of its 
statement, preferably at the end of the meeting, and in any event no later than 5.00 p.m. of the first working day following the meeting. 
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through the Panel. Each party shall then have an opportunity to answer these questions orally. Each party shall send in writing, within a timeframe to be determined by the Panel, any questions to the other party to 
which it wishes to receive a response in writing. Each party shall be invited to respond in 
writing to the other party's written questions within a deadline to be determined by the Panel. 
c. The Panel may subsequently pose questions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a timeframe to be determined by it, any questions to the parties to which it wishes to 
receive a response in writing. Each party shall be invited to respond in writing to such 
questions within a deadline to be determined by the Panel. 
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the party that presented its opening statement 
first, presenting its closing statement first.  
Third parties 
 
15.  The Panel shall invite each third party to transmit to the Panel a written submission prior to 
the first substantive meeting of the Panel with the parties, in accordance with the timetable adopted by the Panel.  
16.  Each third party shall also be invited to present its views orally during a session of this first 
substantive meeting, set aside for that purpose. Ea ch third party shall provide to the Panel the list 
of members of its delegation in advance of this session and no later than 5.00 p.m. the previous 
working day.  
17.  The third-party session shall be conducted as follows: 
a. All third parties may be present during the entirety of this session.  
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third 
parties present at the third-party session and intending to present their views orally at 
that session, shall provide the Panel, the parties and other third-parties with provisional written versions of their statements before they take the floor. Third parties shall make 
available to the Panel, the parties and other third parties the final versions of their 
statements, preferably at the end of the session, and in any event no later than 
5.00 p.m. of the first working day following the session.  
c. After the third parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification on any 
matter raised in the third parties' submissions or statements. Each third party shall then have an opportunity to answer these questions orally. Each party shall send in writing, 
within a timeframe to be determined by the Panel, any questions to a third party to 
which it wishes to receive a response in writing.  
d. The Panel may subsequently pose questions to the third parties. Each third party shall 
then have an opportunity to answer these questions orally. The Panel shall send in 
writing, within a timeframe to be determined by it, any questions to the third parties to which it wishes to receive a response in writing. Each third party shall be invited to respond in writing to such questions within a deadline to be determined by the Panel. WT/DS449/R/Add.1 
 
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  Descriptive part 
 18.  Each party shall submit executive summaries of its arguments as presented in each of its written submissions and statements. The total numbe r of pages of the executive summaries to be 
provided by each party, all four parts combined, shall not exceed 30 pages, and shall be submitted 
at the latest 7 calendar days following the delivery to the Panel of the written version of the relevant submission or statement.  A party may include its responses to questions in the executive 
summary of its statement.  In that case, the executive summary, covering the party's statement 
and responses to questions, shall be submitted at the latest 7 calendar days following delivery of 
its written responses to questions.  The Panel will not summarize in the descriptive part of its report, or annex to its report, the parties' responses to questions.  
19.  Each third party shall submit executive summaries of its arguments as presented in its written 
submission and statement at the latest 7 calendar  days following the delivery to the Panel of the 
written version of the relevant submission or statement. The total number of pages of the 
summaries to be provided by each third party, th e two parts combined, shall not exceed 5 pages.  
A third party may include its responses to questions in the executive summary of its statement.  In that case, the executive summary of the third party's statement and responses to questions shall 
be submitted at the latest 7 calendar days followin g delivery of its written responses to questions.  
The Panel will not summarize in the descriptive part of its report, or annex to its report, the third parties' responses to questions.  
20.  The executive summaries referred to above shal l not in any way serve as a substitute for the 
submissions of the parties and third parties in the Panel's examination of the case.  The description 
of the arguments of the parties and third parties in  the descriptive part of the Panel report shall 
consist of these executive summaries, which shall be annexed as addenda to the report. 
Interim review 
 21.  Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
22.  In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written reques t for review, in accordance with the timetable 
adopted by the Panel. Such comments shall be limited to commenting on the other party's written request for review.  
23.  The interim report, as well as the final report before translation, shall be kept strictly 
confidential and shall not be disclosed. 
Service of documents 
 
24.  The following procedures regardin g service of documents shall apply: 
a. Each party and third party shall submit all do cuments to the Panel by filing them with 
the DS Registry (office No. 2047).  
b. Each party and third party shall file 9 paper copies of all documents it submits to the 
Panel. However, when exhibits are provided on CD-ROMS/DVDs, 5 CD-ROMS/DVDs and 2 paper copies of those exhibits shall be  filed. The DS Registrar shall stamp the 
documents with the date and time of the filing. The paper version shall constitute the 
official version for the purposes of the record of the dispute. 
c. Each party and third party shall also provide an electronic copy of all documents it 
submits to the Panel at the same time as the paper versions, preferably in Microsoft 
Word format, either on a CD-ROM, a DVD or as an e-mail attachment. If the electronic copy is provided by e-mail, it should be addressed to *****.***** @wto.org , with a 
copy *****.*****@wto.org , *****.*****@wto.org, *****.*****@wto.org and WT/DS449/R/Add.1 
 
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  *****.*****@wto.org. If a CD-ROM or DVD is provided, it shall be filed with the DS 
Registry.  
d. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve on all third parties its written submissions in advance 
of the first substantive meeting with the Panel. Each third party shall serve any 
document submitted to the Panel directly on the parties and all other third parties. Each 
party and third party shall confirm, in writing, that copies have been served as required 
at the time it provides each document to the Panel. 
e. Each party and third party shall file its docu ments with the DS Registry and serve copies 
on the other party (and third parties where appropriate) by 5.00 p.m. (Geneva time) on the due dates established by the Panel. 
f. The Panel shall provide the parties with an electronic version of the descriptive part, the 
interim report and the final report, as well as of other documents as appropriate. When the Panel transmits to the parties or third part ies both paper and electronic versions of a 
document, the paper version shall constitute the official version for the purposes of the 
record of the dispute. 
 
 
 
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  ANNEX B 
ARGUMENTS OF THE PARTIES 
Contents Page 
Annex B-1 Executive summaries of the arguments of China B-2 
Annex B-2 Executive summaries of the arguments of the United States B-27 
 
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  ANNEX B-1 
EXECUTIVE SUMMARIES OF THE ARGUMENTS OF CHINA 
Executive Summary of China's First Written Submission 
I. Introduction and Summary 
1. This dispute concerns the basic principles  of transparency and due process that are 
embodied in Article X of the GATT 1994.  At the ce ntre of this dispute is an action that is 
fundamentally inimical to those principles: the retroactive application of a law to events and 
circumstances that occurred prior to its enactment.  The retroactive application of laws is so clearly 
inconsistent with basic principles of transparen cy and due process that it is prohibited by 
Article X:2 of the GATT.  The retroactive application of laws is, in addition, self-evidently incompatible with the requirement of Article X:1 to publish measures of general application 
"promptly" so that governments and traders have an opportunity to become familiar with the laws 
and regulations that will be applied to their conduct.   
2. The measure at issue in this dispute is a me asure that violates these requirements on its 
face.  This measure is U.S. Public Law 112-99 (P.L. 112-99), "An act to apply the countervailing 
duty provisions of the Tariff Act of 1930 to nonmarket economy countries, and for other purposes".  P.L. 112-99 was passed by the U.S. Congress and th en signed into law by President Obama on 13 
March 2012.  Section 1 of P.L. 112-99 amends section 701 of the U.S. Tariff Act of 1930 (the Tariff 
Act) to provide the United States Department of Commerce (the USDOC) with the legal authority to apply countervailing duties to imports from countries that the United States designates as non-market economies (NMEs) for the purpose of its anti-dumping laws.  Congress enacted this law 
after the United States Court of Appeals for the Federal Circuit reaffirmed an earlier decision 
holding that the U.S. countervailing duty laws do not apply to imports from NME countries. 
3. P.L. 112-99 specifies that section 1 applies retroactively to 20 November 2006, nearly five 
and a half years before the enactment and publication of the law.  As China will demonstrate in 
Part III of this submission, the publication of a law five and half years after its effective date was plainly inconsistent with the obligation of the Un ited States under Article X:1 to ensure that 
measures of general application are "published promptly in such a manner as to enable 
governments and traders to become acquainted with them".  In Part IV of this submission, China 
will demonstrate that the retroactive enforcement of section 1 is inconsistent, on its face, with the prohibition in Article X:2 against the enforcement of a measure "before such measure has been 
officially published".  Finally, in Part V, China will demonstrate that the retroactive enforcement of 
P.L. 112-99 ensured that the decision of the Fede ral Circuit was not implemented by the USDOC, 
and did not govern the practice of the USDOC, in violation of Article X:3(b) of the GATT. 
4. In addition to amending the Tariff Act to give the USDOC legal authority to apply 
countervailing duties to imports from NME countries, section 2 of P.L. 112-99 amended section 777A of the Tariff Act to provide the USDOC with au thority to avoid the double remedies that are 
likely to occur when it applies countervailing duties in conjunction with anti-dumping duties 
determined in accordance with the U.S. NME meth odology.  In stark contrast to section 1, the 
authority conferred by section 2 became effective only upon the enactment of the law, i.e. prospectively. 
5. As China will discuss in Part VI of this submission, the retroactive enforcement of section 1 
of P.L. 112-99, when juxtaposed with the entirely  prospective enforcement of section 2, creates a 
class of "orphaned" anti-dumping and countervailin g duty investigations for which the USDOC has 
no legal authority to investigate and avoid double remedies.  Consistent with this lack of legal 
authority, the USDOC took no steps in any of those investigations to investigate and avoid the double remedies that were likely to occur.  This failure to investigate and avoid double remedies 
was inconsistent, on its face, with Article 19.3 of the SCM Agreement, as interpreted by the 
Appellate Body in in United States – Definitive Anti-Dumping and Countervailing Duties on Certain 
Products from China  (DS379).     WT/DS449/R/Add.1 
 
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  II. Background 
6. China will begin this submission with a review of the history of the U.S. countervailing duty 
laws in the 25 years leading up to the enactment of  P.L. 112-99.  This history is bookended by two 
decisions of the United States Court of Appeals for the Federal Circuit: its 1986 decision holding 
that the U.S. countervailing duty laws do not apply to imports from non-market economies, and its 
reaffirmation of that decision in December 2011 after the USDOC had sought to apply countervailing duties to imports from China in contravention of existing U.S. law. 
7. In the early 1980s, the USDOC was presented with a set of petitions seeking the imposition 
of countervailing duties on imports from countries that the United States designated as non-market economies for the purpose of its anti-dumping laws.  In responding to these petitions, the USDOC held that, "as a matter of law", the provisions of the Tariff Act that provide for the 
imposition of countervailing duties were inapplicable  to countries that the United States designates 
as non-market economies.  The USDOC found that the concept of subsidization is not meaningful in respect of imports from these countries.  The USDOC was also influenced in its determination by 
its review of the legislative history of the Tariff Ac t and by the special provisions of the U.S. anti-
dumping laws that Congress had enacted to address imports from NME countries.  The USDOC considered this history to support its view that Congress had not intended the countervailing duty 
provisions of the Tariff Act to apply to imports from NME countries. 
8. On appeal, the USDOC's interpretation of th e Tariff Act was affirmed by the United States 
Court of Appeals for the Federal Circuit in its 1986 decision in Georgetown Steel Corp. v. United 
States .  The Federal Circuit held that "Congress inte nded that any selling by nonmarket economies 
at unreasonably low prices should be dealt with under the antidumping law.  There is no indication 
in any of [the U.S.] statutes, or their legislative history, that Congress intended or understood that 
the countervailing duty law also would apply."  The court concluded its decision by noting that if 
the NME anti-dumping provisions enacted by Congress were "inadequate to protect American 
industry from … foreign competition" – a question that was not within the court's competence to answer – then it would be "up to Congress to provide any additional remedies it deems 
appropriate." 
9. After the Federal Circuit's decision in Georgetown Steel , the U.S. Congress did, on several 
occasions, consider the enactment of new legislation to permit the application of countervailing duties to imports from non-market economy countries.  None of these initiatives ultimately 
resulted in the enactment of new legislation to give the USDOC this authority, but they did prompt 
the U.S. Government Accountability Office (GAO) to issue a report in June 2005 entitled U.S.-
China Trade: Commerce Faces Practical and Legal Difficulties in Applying Countervailing Duties.    
10. The first topic that the GAO Report addressed was the question of whether the USDOC had 
authority under existing law to apply countervailing duties to imports from an NME country.  The 
GAO explained that the USDOC had essentially two options, in this regard.  First, it could designate 
China as a market economy and apply normal market economy methodologies in anti-dumping 
investigations of Chinese products.  The second option was for the USDOC to declare, unilaterally, that it was departing from Georgetown Steel  and begin applying countervailing duties to imports 
from NME countries.  The GAO cautioned, however,  that "absent a clear grant of authority from 
Congress, such a reversal could be challenged in court."   
11. The other main topic that the GAO Report addressed was the problem of double remedies.  
The GAO recognized that, even if the USDOC were given authority to apply countervailing duties to 
imports from NME countries, the simultaneous a pplication of countervailing duties and anti-
dumping duties determined in accordance with the U.S. NME methodology was likely to give rise to 
"double counting" of the same subsidies.  Shortl y after the GAO issued its report, the U.S. House 
of Representatives passed the "United States Trade Rights Enforcement Act", H.R. 3283.  The main 
purpose of this bill was to provide the USDOC with legal authority to apply countervailing duties to 
imports from NMEs, but it was never enacted into U.S. law.   
12. In October 2006, a little over a year after the House of Representatives had passed the 
United States Trade Rights Enforcement Act, the NewPage Corporation filed anti-dumping and 
countervailing duty petitions with the USDOC concerning coated free sheet paper from China.  Despite its lack of legal authority, and despite the objections raised by parties, the USDOC WT/DS449/R/Add.1 
 
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  conducted a countervailing duty investigation in CFS Paper and issued a final affirmative 
countervailing duty determination in October 2007.  The USDOC's actions in CFS Paper unleashed 
a wave of new countervailing duty petitions against Chinese products – all of which raised the same legal problems as CFS Paper itself. 
13. Chinese respondents appealed many of th e USDOC's affirmative countervailing duty 
determinations to the U.S. Court of International Trade.  The first appeal to be decided by the CIT was the appeal of the USDOC's countervailing du ty determination concerning Off-the-Road Tires 
(OTR) from China.  In GPX Int'l Tire Corp. v. United States , the CIT ruled that it was not 
reasonable for the USDOC to apply countervailing duties in conjunction with anti-dumping duties determined in accordance with the U.S. NM E methodology, unless the USDOC could devise 
appropriate methodologies to ensure that no double remedies would occur.   
14. The CIT ultimately concluded that the USDOC was incapable of addressing the problem of 
double remedies "in the absence of new statutory tools".  The case was thereafter appealed to the United States Court of Appeals for the Federal Circuit, which issued its decision on 19 December 
2011.  The court of appeals sustained the lower court's order to forgo the imposition of 
countervailing duties, but on the grounds that the Tariff Act did not permit the imposition of countervailing duties on imports from countries that the United States designates as non-market 
economies.  In so ruling, the Federal Circuit reaffirmed its 1986 decision in Georgetown Steel .  The 
court held that the U.S. Congress had ratified th e Federal Circuit's earlier interpretation of the 
Tariff Act through its "repeated reenactment of [the U.S.] countervailing duty law" with full knowledge, and explicit approval of, the court's 1986 decision in Georgetown Steel .  On this basis, 
the court reaffirmed its prior holding that "[the] countervailing duty law does not apply to NME 
countries".   
15. At the end of its decision in GPX V , the Federal Circuit stated that "if Commerce believes 
that the law should be changed, the appropriate appr oach is to seek legislative change."  This was 
the same statement that the Federal Circuit had made 25 years earlier in Georgetown Steel .  The 
Federal Circuit made note of this fact, and quoted its statement in Georgetown Steel  that if the 
existing NME anti-dumping remedy was "inadequat e to protect American industry from … foreign 
competition … it is up to Congress to provide any additional remedies it deems appropriate."   
16. The consequence of the Federal Circuit's deci sion was that all of the USDOC's countervailing 
duty investigations of Chinese products were ultra vires.   In the absence of explicitly retroactive 
legislation giving the USDOC authority for actions it had already taken, all of the USDOC's past 
actions relating to the imposition of countervailing duties on imports from China would need to be undone.  In a letter to the chairman of the House Ways and Means Committee dated 18 January 
2012, the U.S. Secretary of Commerce and the U.S. Trade Representative called upon Congress to 
enact legislation retroactively  authorizing the USDOC's countervailing duty investigations of 
Chinese products.   
17. Congress complied.  On 6 and 7 March 2012 the House and Senate, respectively, passed 
Public Law 112-99, "An act to apply the countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries, and for other purposes".  The bill was signed by President Obama on 13 March 2012 and officially published on the same date. 
18. Section 1 of P.L. 112-99 amends Section 701 of the Tariff Act, the provision of U.S. law 
governing the imposition of countervailing duties, to add a new subsection (f) entitled "Applicability to Proceedings Involving Nonmarket Economy Countries".  This new subsection 
provides that the countervailing duty provisions of the Tariff Act apply to imports from countries 
that the United States designates as non-market economies.   
19. Consistent with the request of the U.S. admi nistration, section 1 of P.L. 112-99 is expressly 
retroactive.  Under section 1(b) of the law, the new authority relating to the imposition of 
countervailing duties on imports from NME countries has an "effective date" of 20 November 2006 – nearly five and half years prior to its official publication.  The effective date of section 1 retroactively encompasses all countervailing duty investigations initiated on or after 20 November 
2006 (including countervailing duty measures resulting from those investigations), as well as any 
judicial proceedings or actions by U.S. Customs and Border Protection relating to those countervailing duty investigations.  It is evident that Congress chose a retroactive effective date of WT/DS449/R/Add.1 
 
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  20 November 2006 because this is the date on which the USDOC had initiated the countervailing 
duty investigation in CFS Paper . 
20. Section 2 of P.L. 112-99 provides authority to the USDOC to address the problem of double 
remedies.  In sharp contrast to section 1 of the law, section 2 does not have a retroactive effective 
date.  Rather, the "effective date" set forth in section 2(b) provides that the USDOC's new 
authority concerning double remedies "applies to … all investigations and reviews initiated … on or after the date of the enactment of this Act", i.e. after 13 March 2012.   
21. After the Federal Circuit issued its decision in GPX V , the United States and other appellants 
had filed what is called a "petition for rehearing".  The Federal Circuit had not acted on the petition for rehearing as of 13 March 2012, the date that P.L. 112-99 entered into law.  The following day, the Federal Circuit issued a letter to the parties directing them to make submissions "commenting 
on the impact of this legislation on further proceedings in this case." 
22. The Federal Circuit issued its decision on rehearing on 9 May 2012.  The court began by 
restating its prior holding that "in amending and reenacting the trade laws in 1998 and 1994, 
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."  The court then explained that, subsequent to its decision in GPX V , Congress had "enacted legislation to apply 
countervailing duty law to NME countries."  The Federal Circuit observed that section 1 of the 
legislation enacted by Congress "applies retroactively" to all countervailing duty investigations initiated after 20 November 2006.  The Federal Circuit then remanded the case to the CIT to address constitutional issues relating to the retroactive application of the new law. 
23. In the remand proceedings before the CIT, the United States argued that the constitutional 
issues raised by the importing parties were unfounded because the new legislation "did not change the law retroactively".  Contrary to the position th at it had taken in its submission to the Federal 
Circuit, in which it had expressly highlighted the "retroactivity" of the new law, the United States 
now contended that section 1 of P.L. 112-99 was merely a "clarification" of the law that existed before  the Federal Circuit's decision in GPX V .  According to the United States, section 1 of P.L. 
112-99 did nothing more than "confirm" that the USDOC had always possessed the legal authority 
to apply countervailing duties to imports from NME countries.   
24. The CIT issued its decision on the constituti onal issues on 7 January 2013.  Not surprisingly, 
the CIT found it difficult to credit the contention by the United States that section 1 of the P.L. 
112-99 was not retroactive.  The CIT further considered that "the government's view of a simple 
clarification" of existing law was "not easily extracted from the tangled history of this case."  The court observed, for example, that the Federal Circuit had not vacated its prior decision in GPX V , 
despite an explicit request by the United States that it do so.  Thus, the Federal Circuit's decision 
in GPX V , which held that prior U.S. law did not permit the application of countervailing duties to 
imports from NME countries, remained a valid, precedential decision.  The only thing that had 
changed was that Congress had enacted new legislation to change the law retroactively, which the 
Federal Circuit had duly applied in GPX VI .  The CIT also noted that, in taking this action, the 
Federal Circuit had in no way suggested that "its view of the prior law was wrong."   
III. Section 1 of P.L. 112-99 Was Not "Published Promptly in Such a Manner as to 
Enable Governments and Traders to Beco me Acquainted" with the New Law, as 
Required by Article X:1 of the GATT 1994 
25. Section 1 of P.L. 112-99, which provides the USDOC with legal authority to apply 
countervailing duties to imports from countries that the United States designates as non-market 
economies, was not "published promptly in such a manner as to enable governments and traders to become acquainted" with it.  The fact that section 1 was not "published promptly" is evident 
from the fact that it was published nearly five and a half years after the date on which section 1 
became effective.   
26. P.L. 112-99 is a law made effective by the United States pertaining to "rates of duty, taxes 
or other charges, or to requirements, restrictions or prohibitions on imports".  It authorizes the 
application of countervailing duties (which can be seen as "rates of duty" or "other charges … on 
imports") to imports from countries that the United States designates as non-market economy WT/DS449/R/Add.1 
 
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  countries.  In addition, by making countervailing duties applicable to imports from non-market 
economy countries, P.L. 112-99 imposes a "requirement" or a type of "restriction" on imports.  P.L. 112-99 is a law "of general application" because it is "not limited to a single import or single importer", but instead affects a range of products, producers, importers, and countries. 
27. Section 1 of P.L. 112-99 was "made effective" as of 20 November 2006.  This is evident 
from the plain language of section 1(b), which refers to 20 November 2006 as the " effective  date" 
of this section.  Prior panels interpreting Article X:1 have considered the date on which a measure 
was "made effective" as the appropriate reference point for determining whether the measure was 
"published promptly".  The basic inquiry is whether the measure was "published promptly" in relation to this effective date.  In evaluating whether a measure was "published promptly", the context of Article X:1 requires consideration of whether the measure was published in a sufficiently 
timely manner to enable "governments and trad ers to become acquainted" with the content and 
requirements of the measure.  While Article X:1 does  not specify a period of time that must elapse 
between publication of the measure and when it takes effect, in no event can publication be 
considered "prompt" if it takes place after the measure has taken effect.   
28. It is self-evident that P.L. 112-99 was not "published promptly" in relation to its effective 
date of 20 November 2006.  P.L. 112-99 was not published until nearly five and half years after 
the date on which it was made effective.  This was not "prompt" by any conceivable standard.  
This conclusion is underscored by the fact that the Government of China and Chinese producers could not possibly have become acquainted with section 1 of P.L. 112-99 before it took effect, 
since the law was not published until long after it took effect as a legal basis for the USDOC to 
apply countervailing duties to imports from NME countries.  This is fundamentally inconsistent with 
the requirements of due process and transparency that underlie all of Article X, including Article 
X:1.  For these reasons, the Panel should find th at the United States acted inconsistently with 
Article X:1 of the GATT by failing to publish sectio n 1 of P.L. 112-99 "promptly" in relation to its 
effective date. 
IV. The Retroactive Application of Section 1 of P.L. 112-99 Is Inconsistent with 
Article X:2 of the GATT 1994 
29. Article X:2 reflects what the Appellate Body has referred to as a "presumption of prospective 
effect", a presumption that finds its source in "basic principles of transparency and due process".  These principles compel the conclusion that measures of general application affecting the conduct 
of governments and traders should apply only in respect of actions taken after the publication of 
the measure.  This is why "prior publication is required for all measures falling within the scope of Article X:2" – "prior", that is, to the application of the measure to particular conduct or actions.  
Article X:2 contains no exceptions to this requirement of prior publication.  By its terms, 
Article X:2 "precludes retroactive application of a measure" in all cases. 
30. The necessary implication of Article X:2 is th at governmental agencies must act within the 
confines of their authority, as that authority is set forth in measures that have been officially 
published.  This limitation on agency action is central to the principle of legality that underlies all administrative systems.  When governmental agen cies act outside the confines of their published 
authority, their actions are ultra vires  (referred to in some legal systems as excès de pouvoir ).  
Article X:2 prohibits actions that are ultra vires  by requiring governmental agencies to act within 
the confines of measures that have been officially published.  The act of enforcing a measure of general application prior to its official publication is an act that is necessarily ultra vires  and, as 
such, inconsistent with Article X:2. 
31. As China discussed in Part III above, Sectio n 1 of P.L. 112-99 is a "measure of general 
application" taken by the United States "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".  Equally important, P.L. 112-99 "impos[es] a new or more burdensome requirement, restriction or prohibition on imports" in so far as it makes certain categories of imports subject to the initiation and conduct of countervailing duty 
investigations, as well as to the potential imposition of countervailing duties.  For these reasons, 
section 1 of P.L. 112-99 is plainly within the scope of Article X:2. WT/DS449/R/Add.1 
 
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  32. Section 1(b) of P.L. 112-99 states that section 1 of the law "applies to all proceedings 
initiated under Subtitle A of title VII [of the Tariff Act] 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 [such] proceedings …".  By 
stating that section 1 "applies" to events that occurred prior to 13 March 2012, it is evident on the 
face of the legislation that section 1 applies on a retroactive basis.  Because Article X:2 "precludes retroactive application of a measure", for the reasons stated above, it is clear from the measure 
itself that the United States has acted inconsistently with Article X:2 by enforcing a measure of 
general application prior to its official publication. 
33. The fact that the United States has applied section 1 of the legislation prior to its official 
publication is confirmed by the fact that the Unit ed States imposed countervailing duty orders on 
imports from China at a time when existing U.S. law did not permit this action, and then continued 
to maintain these pre-existing orders subsequent to  the official publication of the measure.  In the 
absence of the retroactive application of section 1, the USDOC would have been required under 
U.S. law to revoke these pre-existing orders.  The fact that the United States has continued to 
maintain these orders subsequent to the official publication of P.L. 112-99 confirms that the United 
States has applied section 1 of the legislation to events and circumstances that occurred prior to 
its official publication. 
34. For these reasons, the Panel should find that section 1 of P.L. 112-99 is a measure of 
general application that the United States has enforced prior to its official publication, in violation of Article X:2.   
V. The United States Has Failed to Ensure  that Decisions of its Courts Are 
"Implemented by", and "Govern the Practi ce of", the USDOC, in Violation of 
Article X:3(b) of the GATT 1994 
35. China's claim under Article X:3(b) relates to the requirement that the decisions of reviewing 
tribunals "shall be implemented by, and shall gove rn the practice of" the agency whose action is 
under review.  It is clear that the requirement to "implement" the decision of a tribunal means, at 
a minimum, that the agency under review must a pply the decision of the tribunal in the specific 
case decided.  The requirement to ensure that th e decision "govern[s] the practice of" the agency 
goes beyond the specific case decided, and requir es the agency to be bound by the decision "with 
respect to identical factual situations that may arise in the future concerning identical legal issues". 
36. In its decision in GPX V , issued on 19 December 2011, the Federal Circuit held that "the 
[U.S.] countervailing duty law does not apply to NME countries".  Through this decision, the court established that existing U.S. law did not permit the USDOC to impose countervailing duties on 
imports from countries that the United States designates as non-market economies.  Within the 
U.S. system of judicial review, there were only two scenarios in which the court's decision in GPX V 
could have been reversed.  First, the United Stat es (or another interested party) had the right to 
petition the court for rehearing of the original panel decision.  Second, whether or not a petition 
for rehearing had been sought, an interested pa rty could seek review of the Federal Circuit's 
decision by the United States Supreme Court.   
37. The original deadline for the United States to file a petition for rehearing was 2 February 
2012.  The United States sought a 60-day extension of this deadline, which the court cut in half by 
extending the deadline to 5 March 2012.  On that date, the United States filed a petition for rehearing en banc , i.e. for review of the Federal Circuit's decision in GPX V  by the entire court of 
appeals.   
38. The petition for rehearing filed by the United States was pending before the Federal Circuit 
when President Obama signed P.L. 112-99 into law eight days later.  This action prompted the 
Federal Circuit to issue a notice to the parties, on 14 March, directing them to brief the court on 
the significance of the new legislation.  In its su bmission, the United States explained to the court 
that section 1 of P.L. 112-99 "is retroactive to November 20, 2006", which was "prior to the initiation of Commerce's CVD investigation in this case".  The United States took the position that 
the express retroactivity of section 1 required the Federal Circuit to apply the new law to the case 
under appeal, since the appeal was technically still pending before the court in light of the petition WT/DS449/R/Add.1 
 
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  for rehearing.  The Federal Circuit agreed with this position in its decision in GPX VI , and applied 
the new law retroactively to change the outcome of the case. 
39. The actions by the U.S. Congress and the U.S. administration foreclosed the two 
opportunities for further judicial review that were available after the Federal Circuit's decision in 
GPX V.   Through its own actions, the administration ensured that the Federal Circuit never had an 
opportunity to consider the arguments advanced by the United States in support of its contention that the court's decision in GPX V  was in error .  Moreover, these actions obviated the need to 
petition the Supreme Court for a review of that decision.  As a result of these actions, the Federal 
Circuit's decision in GPX V  became the final judicial decision on the status of U.S. law prior to the 
enactment of P.L. 112-99. 
40. China considers that it was consistent with Article X:3(b) for the United States to seek 
rehearing en banc of the Federal Circuit's decision in GPX V.   This was equivalent to an appeal to a 
court of superior jurisdiction.  China also considers that it would have been consistent with Article X:3(b) for the United States to have filed a petition for certiorari with the U.S. Supreme 
Court, as this, too, would have been an appeal to a higher court.  In either event, the USDOC 
would have been bound by the final decision of its reviewing courts, whether it was the Federal 
Circuit's decision in GPX V , a subsequent en banc  decision of the Federal Circuit, or a decision of 
the U.S. Supreme Court.   
41. What was not consistent with Article X:3(b) was for the Federal Circuit to issue its decision 
in GPX V  and for the United States to then amend the law, retroactively, to change the outcome of 
that decision.  This had the effect of ensuring that the Federal Circuit's decision in GPX V  would not 
be implemented by, and would not govern the practice  of, the USDOC.  In addition, it ensured that 
the U.S. courts were not able to discharge their required function of reviewing and correcting the 
actions of the USDOC in relation to the domestic laws in effect at the time those actions were 
taken.  For these reasons, the Panel should find that section 1(b) of P.L. 112-99, by amending 
U.S. law retroactively and making it applicable to judicial proceedings concerning administrative actions taken prior to its enactment, is inconsistent with the obligations of the United States under 
Article X:3(b). 
VI. The United States Acted Inconsistently wi th Article 19.3 of the SCM Agreement by 
Failing to Investigate and Avoid Double Re medies in the Identified Investigations 
42. When the USDOC decided to begin applying countervailing duties to imports from countries 
that it continued to designate as non-market economies, it was aware that the simultaneous 
application of countervailing and anti-dumping duties could result in offsetting the same subsidy twice – once through the imposition of the countervailing duty, and then again through the 
manner in which the United States calculates an ti-dumping duties under its NME methodology. 
43. In an anti-dumping investigation, the existe nce and extent of an anti-dumping margin is 
based on a comparison of the producer's normal value for the product under investigation 
(determined by reference either to the producer's costs of production or to its home-market prices 
for the product) to the producer's export price for the product.  The producer is said to be "dumping" if its normal value is higher than its export price.  The GAO Report had explained that 
because normal value under the U.S. NME methodology is based on unsubsidized costs of 
production in countries that the United States considers to be market economies, the resulting 
comparison of normal value to the producer's export  price is likely to reflect not only dumping, but 
also any subsidization of that product as well. 
44. In DS379, the Appellate Body held that the United States has an obligation under Article 
19.3 of the SCM Agreement to investigate and avoi d the double remedies that are likely to occur 
when the United States applies countervailing duties in conjunction with anti-dumping duties 
determined under the U.S. NME methodology.  Be cause the USDOC lacked authority under existing 
U.S. law to address the problem of double remedies, it was clear that any attempt by the United States to comply with the recommendations an d rulings of the DSB would require the U.S. 
Congress to enact new legislation to give the USDOC this authority.   
45. Section 2 of P.L. 112-99 purports to give the USDOC sufficient legal authority to identify and 
avoid double remedies in the NME context.  In sh arp contrast to section 1 of the law, the USDOC's WT/DS449/R/Add.1 
 
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  authority to address the problem of double remedi es does not have a retroactive effective date.  
Rather, the "effective date" set forth in section 2(b) provides that the USDOC's new authority concerning double remedies "applies to … all investigations and reviews initiated … on or after the date of the enactment of this Act", i.e. after 13 March 2012.  The contrast between the effective 
dates for section 1 and section 2 creates an "orphaned" class of countervailing duty investigations 
for which the USDOC has no authority under U.S. law to investigate and avoid double remedies (See CHI-24).  Under the statute, the only scenario in which the USDOC can apply its authority 
under section 2 in respect of those past investigations is if China challenges those determinations 
at the WTO.   
46. Because section 1 of P.L. 112-99 is plainly inconsistent with Article X of the GATT, for the 
reasons set forth in Parts III and IV above, it should not be necessary for the United States to 
address the problem of double remedies in respect of the "orphaned" investigations.  The correct 
course of action is for the United States to acknowledge that the USDOC had no duly published authority to conduct countervailing duty investigations in respect of imports from NME countries at 
the time those investigations occurred.  That being the case, the problem of double remedies 
simply would not arise in respect of those past investigations.  However, to the extent that the United States continues to maintain those countervailing duty measures, whether or not this is 
action is consistent with Article X, it is nonetheless obligated under the covered agreements to 
investigate and avoid double remedies in respect of those investigations. 
47. The USDOC's failure to investigate and avoid double remedies in the identified investigations 
renders these determinations inconsistent with Article 19.3 of the SCM Agreement.  This is 
because the USDOC has failed to ensure that it imposes countervailing duties "in the appropriate 
amounts in each case", taking into account the simultaneous imposition of anti-dumping duties that are likely to offset the same subsidies.  China therefore requests the Panel to find that each of 
these determinations is inconsistent, as applied, with Article 19.3.  As a consequence, and as the 
Appellate Body did in DS379, the Panel should find that the United States has acted inconsistently 
with Articles 10 and 32.1 of the SCM Agreement.  
 
   WT/DS449/R/Add.1 
 
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  Executive Summary of the Opening Statement of China  
at the First Meeting of the Panel 
Introduction 
1. The United States has staked its entire defence of this case on the proposition that the GPX 
legislation did nothing more than "maintain[] the status quo that existed prior to its enactment" 
and "confirm" the law that already existed.  As I will demonstrate, the proposition that the GPX 
legislation effected no substantive change in the law is contradicted by the terms of the statute 
itself.  This proposition is, in addition, based upon a wholesale rewriting of history and obvious 
mischaracterizations of how the U.S. legal system works. 
2. I will begin with the terms of the statute itself.  The statute is entitled "an act to apply  the 
countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries."  If the 
purpose of the act is "to apply the countervailin g duty provisions of the Tariff Act of 1930 to 
nonmarket economy countries", it must be the case that those provisions previously did not apply 
to NME countries.  Section 1(a) of the statute amends Section 701 of the Tariff Act "by adding" a 
new subsection (f).  The new subsection (f)(1) provides that countervailing duties "shall be 
imposed" on imports from nonmarket economy countries.  It is clear from the amended statute that it is this provision of law that imposes countervailing duties on imports from nonmarket 
economy countries and provides the legal authority for Commerce to take this action. 
3. Consider the new subsection (f)(2), in this regard.  This is a new provision of U.S. law, 
establishing the terms of an exemption from count ervailing duties that never before appeared in 
any officially published measure of general application.  If Congress was of the view that the 
general countervailing duty authority set forth in subsection 701(a) of the Tariff Act had always 
applied to imports from NME countries, then Congress could have done nothing more than enact this new exception.  Instead, it enacted an entire ly new subsection to provide for the imposition of 
countervailing duties on imports from NMEs, and attached this exception to it.  Once again, this 
demonstrates that it is the new section 701(f), not section 701(a), that creates the legal basis for the imposition of countervailing duties on imports from NMEs. 
4. Finally, let us consider the effective date provision set forth in section 1(b) of the statute.  
This provision states that the new subsection (f) "applies to" all countervailing duty proceedings initiated "on or after November 20, 2006".  The only conceivable purpose for making a law retroactive is to change  the law as it existed in the past.  If the statute was merely restating the 
law that already existed, as the United States contends, then there would have been no need for 
Congress to make the new law retroactive to a specific date in the past.  In short, no reasonable observer could examine this statute on its face and conclude that it did nothing more than restate 
the law that already existed.  This conclusion is underscored by an examination of the facts and 
circumstances surrounding the enactment of this statute.     
5. Under the U.S. narrative, the "statu s quo" prior to the enactment of the GPX legislation was 
that the Tariff Act already permitted Commerce to apply countervailing duties to imports from NME 
countries, and that Congress enacted the GPX legislation merely to "confirm" this proposition.  
Within this narrative, the United States treats the Federal Circuit's decision in GPX V  as a mere 
aberration from the status quo, rather than as a decision of a United States federal court holding 
that Commerce's understanding of  the Tariff Act was incorrect. 
6. This is a complete rewriting of history.  The Federal Circuit's decision in GPX V  held that 
what the United States tries to characterize as the "status quo" was, in fact, inconsistent with U.S. 
law as it then existed.  When it enacted the GPX legislation, Congress sought to change the 
applicable law, as established by the Federal Circuit, and have the courts apply this new law retroactively to keep the countervailing duty orders in place.  That is exactly what happened.   
7. In GPX VI , the Federal Circuit began its decision by reiterating its prior holding in GPX V  that 
the Tariff Act did not permit the application of countervailing duties to imports from nonmarket economy countries.  It then observed, howeve r, that Congress had subsequently "enacted 
legislation to apply countervailing duty law to NME countries".  This "new legislation", the court 
explained, "applies retroactively" to countervailing duty investigations initiated on or after 
November 20, 2006, including any appeals in federal courts relating to those investigations.  WT/DS449/R/Add.1 
 
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  Therefore, without casting any doubt upon its decision in GPX V  as a valid interpretation of the 
prior law, the Federal Circuit applied the new law retroactively to alter the outcome of the case. 
8. In sum, whether we look at the face of the statute itself or at the facts and circumstances 
surrounding its enactment, the result is the same: the GPX legislation effected a substantive 
change in U.S. law.  The basic premise of the U.S. defence – that the Federal Circuit's decision in 
GPX V  never happened, and that Congress was merely restating existing law when it enacted the 
GPX legislation – is transparently false.  Once this premise is taken away, the United States has no 
substantive defence to China's claims under Article X of the GATT.   
Article X:1 9. In relation to China's claim under Article X:1, the only real question is whether section 1 of 
the GPX legislation was "published promptly" in relation to when it was "made effective".  The 
United States argues that the date on which a measure is "made effective" is the date on which 
the measure is formally "adopted" as a matter of municipal law.  What the United States fails to confront, however, is that section 1 of the legislation has an "effective date" of November 20, 
2006.  It is hard to see how the United States can argue that the statute was "made effective " on 
March 13, 2012 when the statute itself has an " effective  date" of November 20, 2006.   
10. The proposition that a measure is only "made effective" when it is formally "adopted" as a 
matter of municipal law is a proposition that the United States successfully argued against  in EC – 
IT Products.   The EC in that case argued that the term "made effective" refers to the date on which 
the measure at issue was "adopted", i.e. the date on which it formally entered into force as a matter of municipal law.  The United States argued, by contrast, that the term "made effective" 
refers to the date on which the measure became  "applicable", without regard to when it was 
formally adopted as a matter of municipal law or when it was officially published.   
11. The United States was right in EC – IT Products , and is wrong in this dispute.  As that panel 
held, the term "made effective" refers to the date on which the measure at issue was "brought into 
effect, or made operative, in practice and is not limited to measures formally promulgated or that have formally 'entered into force'."  With regard to the GPX legislation, that date was November 
20, 2006.  It is impossible to conclude that the publication of a measure five and half years after it 
was "made effective" is "prompt" under any understanding of that term.  The United States has therefore acted inconsistently with the requirements of Article X:1. 
Article X:2 
12. The U.S. response to China's claim under Article X:2 can be reduced to two propositions: (1) 
that the GPX legislation did not change U.S. law, and therefore did 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 (2) that China 
has failed to prove that this expressly retroact ive legislation was "enforced before such measure 
has been officially published".  Both of these propositions are incorrect. 
13. The GPX legislation "effect[s] an advance in a rate of duty or other charge on imports under 
an established and uniform practice" not only because it makes imports from NME countries potentially subject to the imposition of countervailing duties, but also because it provides a legal basis for the continued maintenance of 24 countervail ing duty orders which, in the absence of this 
legislation, would have been revoked.  It is equally obvious that an act that "applies" 
countervailing duties to a particular class of imports is, without question, one that "impos[es] a new or more burdensome requirement, restriction or prohibition on imports".  Being subject to 
countervailing duty investigations, as well as the actual imposition of countervailing duties, is a 
"requirement" or "restriction" on imports.   
14. For the reasons that I have already explained, the fact that this requirement or restriction is 
"new" and "more burdensome" is evident not only fr om the text of the statute itself, but from the 
fact that this provision was enacted in direct response to the Federal Circuit's holding in GPX V .  As 
the United States explained to the Federal Circuit after the legislation was enacted, it is this new 
provision of U.S. law that "requires that Commerce apply CVDs to imports from NMEs, including WT/DS449/R/Add.1 
 
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  China."  In GPX VI , the Federal Circuit held, by the United States' own description, that "the new 
legislation  clearly requires that Commerce retroactively apply the CVD statute to NMEs".   
15. In China's view, it should be self-evident that a measure of general application with a 
retroactive effective date is, by definition, a measure that has been enforced prior to its official 
publication.  The term "enforce" is synonymous with the term "apply".  Section 1(b) of the GPX 
legislation states that the new section 701(f) of the Tariff Act "applies to" all countervailing duty proceedings initiated on or after November 20, 2006.  It follows that the GPX legislation enforces 
the new section 701(f) in respect of events and actions that occurred prior to its official publication 
on March 13, 2012.  It does so by providing the legal foundation for the countervailing duty orders 
and duties imposed from November 2006 onward that the Federal Circuit had held to be inconsistent with prior U.S. law.   
16. As the Appellate Body has explained, the basic principle of due process that underlies 
Article X:2 is that governments and traders should have a reasonable opportunity to learn about a measure, and to adjust their conduct accordingly, before that measure is enforced in respect of 
their conduct.  That principle is necessarily of fended when a statute reaches back in time and 
changes the law applicable to events and circumstances that have already occurred.  Government and traders cannot possibly adjust their conduct in  light of such a measure, since the conduct 
affected by the measure has already occurred.  A me asure that is expressly retroactive is, for that 
reason, the paradigmatic exam ple of the type of measure that Article X:2 prohibits. 
Article X:3(b) 17. The United States appears to have misstated China's claim under Article X:3(b), or at least 
misunderstood it.  To be perfectly clear, China's claim is not that Commerce was required to 
implement and give effect to the Federal Circuit's decision in GPX V  at the moment that decision 
was issued.  Rather, China's claim is that it was inconsistent with Article X:3(b) for the United 
States Congress to change the applicable law retroactively and direct courts to apply this new rule 
of law to cases under review.  This legislative intervention in ongoing judicial proceedings is not contemplated by Article X:3(b) and, if accepted , would deprive the independent judicial review 
required by Article X:3(b) of any practical meaning. 
18. Consider the facts of this case.  Based on their review of published measures of general 
application, the Government of China and interested Chinese parties understood that the countervailing duty provisions of the Tariff Act did not apply to imports from nonmarket economy 
countries.  When Commerce began to act inconsistently with this understanding of U.S. law in 
2006, interested parties challenged Commerce's actions in court and ultimately prevailed in their understanding of U.S. law.  In response to that decision, the United States Congress changed the 
applicable law, retroactively, to make lawful what the court had held was not lawful at the time of 
the underlying agency action.  Based solely on that newly-enacted legislation, the court changed the outcome of the appeal to sustain the legality of  imposing countervailing duties on imports from 
China.  
19. These actions make a mockery of independent judicial review, and of Article X as a whole.  
The entire concept of requiring Members to publish laws of general application in a transparent fashion, to enforce those laws only after their official publication, and to provide for review and 
correction by independent tribunals of administrative actions taken pursuant to those laws, would 
be utterly pointless if national legislatures were free to change the law retroactively and direct courts to apply the new law to events that have already occurred.    
20. The Federal Circuit's decision in GPX V  w a s  a  " d e c i s i o n "  o f  a  U . S .  c o u r t .   W i t h o u t  a n y  
apparent sense of irony, the United States asserts that the decision in GPX V  "was an ideal 
candidate for both options."  But instead of allowi ng the judicial proceedings to run their course 
based on the law in effect at the time of th e events at issue, the United States Congress 
intervened in these proceedings to change the applicable law and direct the outcome of the 
appeal.  This disposition of the Federal Circuit's decision in GPX V  was not one of the two 
exceptions permitted under Article X:3(b). WT/DS449/R/Add.1 
 
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  Double Remedies 
21. Despite having lost on the issue of double remedies in United States – Definitive Anti-
Dumping and Countervailing Duties on Certain Products from China (DS379), and despite having 
enacted a new provision of U.S. law in order to comply with the recommendations and rulings of 
the DSB in that dispute, the United States is trying to re-litigate these issues all over again before 
this Panel.  This is not a constructive use of the dispute settlement system. 
22. The Appellate Body held in DS379 that investigating authorities have an "affirmative 
obligation to establish the appropriate amount of th e duty under Article 19.3", and stated that this 
obligation requires investigating authorities "to conduct a sufficiently diligent 'investigation' into, and solicitation of, relevant facts, and to base its determination on positive evidence in the r e c o r d . "   T h i s  i n c l u d e s  t ak i n g  i n t o  a c c o u n t  " e v i d e n c e  o f  w h e t he r  a n d  t o  w ha t  d e g r e e  t he  s a m e  
subsidies are being offset twice", bearing in mind the unappealed finding of the panel in that 
dispute that double remedies are "likely" when the corresponding anti-dumping duties are determined in accordance with the U. S. non-market economy methodology. 
 
23. The Appellate Body has stated that "absen t cogent reasons, an adjudicatory body will 
resolve the same legal question in the same way in a subsequent case."  The United States has 
presented no such "cogent reasons" in this dispute.  The arguments that it advances in its first 
written submission with regard to the interpretation of Article 19.3 are materially indistinguishable from arguments that the Appellate Body considered and rejected in DS379.  Whatever sorts of reasons might constitute "cogent" reasons, it cannot be the case that rehearsing arguments that 
the Appellate Body has already considered would justify the extraordinary step of departing from 
its prior interpretation of a provision of the covered agreements.  This is particularly true in a dispute, such as this one, that involves the sa me litigants, the same types of measures, and the 
same claims that were at issue in the prior dispute. 
 24. Notwithstanding its arguments regarding the alleged errors in the Appellate Body's report in 
DS379, the United States also maintains that  Commerce "fully addressed any evidence and 
arguments relating to allegedly overlapping remedies" in the investigations at issue.  This is a remarkable assertion in light of the undisputed fact that Commerce had no legal authority  to do 
anything  to address the problem of double remedies in these investigations.   
25. Commerce's new legal authority to address double remedies under section 2 of the GPX 
legislation applies on a prospective basis, i.e., only in respect of determinations issued after March 13, 2012.  Accordingly, it is preposterous for the United States to suggest that Commerce 
actually took steps in the investigations at issue in this dispute to identify and avoid double 
remedies.  On what legal basis would it have done so?  What specific steps would U.S. law have authorized Commerce to take in order to avoid these double remedies?  And if Commerce already 
had sufficient authority under U.S. law to take these actions, then why did Congress consider it 
necessary to enact section 2 of the GPX legislation? 
26. The short answer to these questions is that Commerce had no authority under U.S. law to 
identify and avoid double remedies in NME investigations until section 2 of the GPX legislation was 
enacted.  It is this fact, and this fact alone, that explains why Commerce took no action in any of 
these investigations to identify and avoid double remedies.  Having failed to discharge its affirmative obligation under Article 19.3 to impose countervailing duties "in the appropriate 
amounts in each case", the countervailing duty determinations that China has identified in CHI-24 
were necessarily inconsistent with this provision.  It follows that these determinations were also inconsistent with Articles 10 and 32.1 of the SCM Agreement. WT/DS449/R/Add.1 
 
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  Executive Summary of the Second Written Submission of China  
I. The United States Has Failed to Rebut China's Demonstration that Section 1 of 
P.L. 112-99 Was Not "Published Promptly" as  Required By Article X:1 of the GATT 
1994 
1. In China's view, there is relatively little left to be said with respect to China's claim under 
Article X:1 of the GATT 1994.  The parties do not appear to dispute that the appropriate reference point for determining whether a measure was "published promptly" is the date on which the 
measure was "made effective".  Because Section 1 of P.L. 112-99 has an "effective date" of 20 
November 2006, but was not published until 13 March 2012, China considers it self-evident that the United States did not publish this measure "promptly" as required by Article X:1. 
2. Contrary to the positions that it took in EEC – Apples (US) and EC – IT Products , the United 
States now appears to argue that the term "made effective" refers to the date on which the 
measure at issue was formally "adopted" as a matter of municipal law.  The United States is trying to convince the Panel that a measure with an "effective date" of 20 November 2006 was actually 
"made effective" on 13 March 2012.  This is, needless to say, an uphill struggle.   
3. The United States was right in EEC – Apples (US)  and EC – IT Products , and it is wrong in 
the present dispute.  More importantly, both of those panel reports reflect a proper interpretation 
and application of the requirements of Article X: 1.  The term "made effective" under Article X:1 
refers to the date on which a measure became operative in practice, not the date on which it was "formally promulgated" or "formally 'entered into force'".  This includes, as in EEC – Apples (US) , 
measures that have an expressly retroactive effective date, such as the measure at issue in the 
present dispute.  Were that not the case, the obligation under Article X:1 to publish measures 
"promptly in such a manner as to enable governments and traders to become acquainted with them" would be "meaningless", as the panel in EEC – Apples (US) found in respect of the 
materially indistinguishable requirement in Article XIII:3(c).   
4. The panel in EEC – Apples (US)  found that publication of a measure two months after it was 
made effective was not consistent with Article X:1, while the panel in EC – IT Products  found that 
publication of a measure eight months after it was made effective was not consistent with Article 
X:1.  It follows, a fortiori , that the publication of Section 1 of P.L. 112-99 nearly six years after it 
was made effective cannot be considered "prompt"  within the meaning of Article X:1.  For this 
reason, the Panel should find that the United States has acted inconsistently with its obligations 
under this provision.   
II. The United States Has Failed to Rebut China's Demonstration that Section 1 of 
P.L. 112-99 Was Enforced Prior to its Offi cial Publication in Violation of Article 
X:2 of the GATT 1994  
A. Section 1 of P.L. 112-99 Is the Relevant Measure at Issue, and It Is a 
"Measure of General Application" 
5. The first interpretative issue relating to Article X:2 need not detain the Panel for long.  While 
the United States concedes, as it must, that Se ction 1 of P.L. 112-99 is a "measure of general 
application" within the meaning of Article X:2, it is now trying to suggest that Section 1 is simultaneously not a "measure of general application" in relation to countervailing duty 
proceedings initiated prior to its official public ation on 13 March 2012.  The United States asserts 
that because those prior proceedings "were limited and known as of the date of enactment of the 
measure", it is "difficult to see" how Section 1 is a measure of general application "in relation to" 
those proceedings. 
6. Aside from being factually inaccurate, this is a frivolous suggestion.  Section 1 of P.L. 112-
99 is the relevant measure of general application.  It does not need to be a measure of general 
application "in relation to" a particular set of proceedings or imports.  Section 1(b) of P.L. 112-99 is not a distinct "measure", but rather evidence on the face of the statute that the new Section 701(f) of the Tariff Act was enforced before its official publication.  It cannot be the case that Section 1 of P.L. 112-99 is a measure of general application for some purposes, but not for 
other purposes. WT/DS449/R/Add.1 
 
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  7. In any event, even if Section 1(b) of P.L.  112-99 were deemed to apply to a known set of 
investigations and products, the exporters  subject to the resulting countervailing duty orders 
constitute "an unidentified number of economic operators".  This is because any exporter – past, present, or future – that exports the goods subject to the countervailing duty orders will be liable 
for the assessment of countervailing duties.  Accord ingly, even if it were possible to view Section 
1(b) as a distinct "measure", it would still constitute a "measure of general application". 
B. Section 1 of P.L. 112-99 Effects an Advance in a Rate of Duty and Imposes 
a New or More Burdensome Requirem ent or Restriction on Imports 
8. The next interpretative question before the Panel is whether Section 1 of P.L. 112-99 
"effect[s] an advance in a rate of duty or ot her charge on imports under an established and 
uniform practice, or impos[es] a new or more burdensome requirement, restriction or prohibition 
on imports". 
9. As suggested by question 54 from the Pa nel, Article X:2 requires some baseline of 
comparison to determine if a measure "advance[s]" a rate of duty or charge, or imposes a 
requirement, restriction or prohibition on imports that is "new or more burdensome".  These are, 
necessarily, relative concepts. 
10. The United States does not appear to dispute, at least not with credible legal arguments, 
that Section 1 of P.L. 112-99 could be considered to have had one or more of the effects described 
by Article X:2 if the relevant baseline of comparison under Article X:2 is prior municipal law, and if 
prior municipal law is understood to have prohibited the imposition of countervailing duties on imports from nonmarket economy countries.  Its principal defence is, instead, that Section 1 of 
P.L. 112-99 did not have these effects because the USDOC's "approach previous to P.L. 112-99 
[had] been to apply the U.S. CVD law to China."  This is the "existing approach" baseline advocated by the United States under Article X:2.   
11. The U.S. "existing approach" baseline, if accepted, would render Article X:2 a nullity.  This is 
because the act of enforcing a measure of general application before its official publication – the 
very thing that is prohibited by Article X:2 – would itself be an "approach".  In EC – IT Products , 
for example, various EC customs authorities had the "approach" of classifying certain types of 
goods so that they were no longer eligible for du ty-free treatment.  By the U.S. logic, there would 
have been no violation of Article X:2 when the EC later published a measure of general application providing for this classification, since the measure did not advance a rate of duty in relation to the 
"approach" that was already in place.  This would amount to relying on a violation of Article X:2 in 
order to claim that no violation of Article X:2 occurred – an obviously absurd result.   
12. Moreover, the context of Article X:2 plainl y supports the conclusion that the relevant 
baseline for comparison is the prior municipal law of the importing Member, as reflected in its 
previously published measures of general application.  Under Article X:1, Members are required to publish promptly measures of general application affecting the conduct of international trade.  It is 
these previously published laws and regulations, in cluding judicial decisions interpreting those laws 
and regulations, that form the bo dy of municipal law that governments and traders rely upon to 
determine the consequences of their actions.  These are the laws and regulations that governments and traders expect the importing Member to apply in a uniform, impartial, and 
reasonable manner, as required by Article X:3(a), and to be enforced by the importing Member's 
domestic courts, as required by Article X:3(b). 
13. Within this context, the relevant inquiry und er Article X:2 is whether a measure advances a 
rate of duty or imposes a new or more burden some requirement or restriction on imports in 
relation to the prior municipal law that governments and traders could have ascertained from their review of published measures of general application.  A measure advances a rate of duty or 
imposes a new or more burdensome requirement or restriction on imports when it has these 
effects in relation to the rates of duty, requirements, or restrictions that were ascertainable from prior published law.  Article X:2 prohibits the enfo rcement of these types of measures before their 
official publication precisely because they consti tute a material deviation from the municipal law 
that governments and traders expect the importing Member to apply in respect of their conduct, 
and that they expect to be enforced by the importing Member's domestic courts.     WT/DS449/R/Add.1 
 
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  14. Prior municipal law is, moreover, the only baseline under Article X:2 that can be objectively 
determined by a panel and that is properly attributable to the importing Member as a unitary subject of international law.  Municipal law is an objective fact that can be adduced by evidence demonstrating the scope and meaning of the law.  As the Appellate Body has repeatedly observed,  
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. 
These are the sources of evidence that will allo w a panel reviewing a claim under Article X:2 to 
determine the meaning of prior municipal law and the meaning of municipal law subsequent to the 
publication of the measure at issue, to the extent that those meanings are contested.  In contrast, 
"Commerce's understanding" of the prior municipal law does not establish what that law was, especially in light of the fact that this "understanding" of the law was not shared by the highest 
court of the United States specifically charged with interpreting the meaning of the Tariff Act.  
Under these circumstances, "Commerce's understanding" does not provide an objective basis to determine what the law of the United States  was prior to the enactment of P.L. 112-99.  This can 
only be determined by reference to valid sources of evidence of municipal law. 
15. Despite the U.S. contention that the text of the measure at issue in this dispute is 
"irrelevant" to whether that measure had any of the effects described by Article X:2, it is axiomatic that any determination of the meaning of municipa l law must begin with the "text of the relevant 
legislation or legal instruments".  China explained in detail in its oral statement at the first meeting 
why it is evident on the face of Section 1 that it advances a rate of duty and imposes a new or more burdensome requirement or restriction on imports in relation to the Tariff Act as it previously 
existed.   
16. In China's view, the Panel's evaluation of whether Section 1 of P.L. 112-99 is within the 
scope of Article X:2 could end at this juncture.  However, because the United States has continued 
to make assertions about the meaning of prior municipal law (despite its apparent irrelevance 
under the U.S. interpretation of Article X:2), an d because the Appellate Body has observed that 
proof of municipal law "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 re cognized scholars", China will proceed to examine 
these other sources of evidence. 
17. China will begin with the repeated U.S. assertion that Section 1 of P.L. 112-99 was "a 
clarification of U.S. law".  For the reasons explai ned in response to question 52 from the Panel, 
China does not consider the "change" versus "clarification" issue to be determinative of the issue before the Panel under Article X:2.  Furthermore, as the party seeking to establish that Section 1 
of P.L. 112-99 was "clarifying" legislation, as that concept is sometimes understood as a matter of 
municipal U.S. law, it is incumbent upon the United States to provide proof of this assertion.  The United States has provided no such evidence.   
18. Notwithstanding the fact that the United Stat es has failed to meet its burden of proof, and 
notwithstanding the ultimate irrelevance of the "change" vs. "clarification" issue, China has 
included as an exhibit to this rebuttal submission the expert report of Professor Richard H. Fallon, 
the Ralph S. Tyler Professor of Constitutional Law at Harvard Law School.  Whatever the relevance 
of this issue, China has demonstrated, and Professor Fallon's expert report confirms, that Section 
1 of P.L. 112-99 was not a "clarification" of the Tariff Act, as this concept is sometimes understood as a matter of U.S. law. 
19. China will now turn to the attempt by the United States to have the Panel disregard the 
decisions of the Federal Circuit in the Georgetown Steel  and GPX cases as definitive interpretations 
of the meaning of U.S. law.  The United States has gone to extraordinary lengths in this dispute to convince the Panel that those decisions of the highest U.S. court specifically tasked with 
interpreting the Tariff Act somehow do not constitute evidence of what the Tariff Act meant prior 
to the enactment of Section 1 of P.L. 112-99. WT/DS449/R/Add.1 
 
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  20. For the reasons that China has already indicated, it is unclear why the United States has 
bothered to engage in this effort.  The U.S. positi on appears to be that, even if it were beyond all 
doubt or cavil that prior municipal law had been interpreted by domestic courts to prohibit the application of countervailing duties to imports from nonmarket economy countries, it still would 
have been consistent with Article X:2 for the United States to enforce Section 1 of P.L. 112-99 in respect of imports that occurred prior to its official publication.  This is not only because of its absurd interpretation of what it means to enforce a measure of general application prior to its 
official publication, which China will address in Part C below.  It is also because the United States 
considers the relevant baseline under Article X:2 to be whatever "existing approach" was in place prior to the official publication of the measure, without regard to whether this "approach" had any basis in existing municipal law.   
21. It is understandable why the United States has been forced to take such an extreme and 
untenable position.  The United States has presented no relevant evidence – literally none – to demonstrate that prior municipal law permitted or required the application of countervailing duties 
to imports from nonmarket economy countries.  Separate and apart from its "clarification" theory, 
the "evidence" advanced by the United States cons ists entirely of assertions about the meaning of 
prior municipal law that the U.S. administration presented to its own domestic courts, which those 
courts considered and found to be unpersuasive.  The United States has offered no reason why 
this Panel should accept these assertions as evidence of prior municipal law, and there is no conceivable reason why it should. 
22. China has demonstrated by reference to the Federal Circuit's decisions in the Georgetown 
Steel and GPX cases that, prior to the enactment of Section 1 of P.L. 112-99, the Tariff Act was 
consistently interpreted by the Federal Circuit – th e highest U.S. court specifically charged with its 
interpretation – as prohibiting the imposition of countervailing duties on imports from nonmarket 
economy countries.  China has thoroughly rebutted the U.S. mischaracterizations of these 
decisions in response to question 51(a) from the Panel, but will respond here to one additional 
mischaracterization put forward by the United States in its own responses to the Panel's questions. 
23. In response to question 16 from the Panel, the United States repeats its mantra that "the 
state of law in the United States has always been that Commerce is not prohibited from applying the U.S. CVD law to NME countries", but it then goes  on to assert that "[t]he U.S. Federal Circuit's 
legally binding decision in GPX VI  confirms this fact."  This is a remarkable assertion. 
24. As China has previously explained, the Federal Circuit's decision in GPX VI begins by 
reiterating its prior holding in GPX V , and then takes that prior holding as its baseline for 
evaluating the implications of the subsequent enac tment of P.L. 112-99.  Despite multiple requests 
by the United States, the Federal Circuit declined to vacate its prior decision in GPX V , thereby 
signalling that it considered its interpretation of prior U.S. law to be authoritative and precedential.  It is ludicrous for the United States to claim that the Federal Circuit's decision in GPX VI  "confirms" 
that "the state of law in the United States has always been that Commerce is not prohibited from 
applying the U.S. CVD law to NME countries", wh en in fact it confirms just the opposite. 
25. But there is no need to belabour these points further.  In his expert report, Professor Fallon 
explains why " GPX VI , through its reliance on the holding of GPX V  and otherwise, reflects a 
judicial determination that P.L.112-99 substantiv ely changed the meaning of Section 701(a) of the 
Tariff Act to make it retroactively applicable to nonmarket economies and to goods from nonmarket economies."  Professor Fallon lays out in detail why the Federal Circuit's decisions in 
GPX V  and GPX VI , taken together, establish the meaning of the Tariff Act both before and after 
the enactment of P.L. 112-99.  Professor Fallon's detailed examination of the legal status and significance of the Federal Circuit's decisions in GPX V  and GPX VI  should be sufficient to lay this 
matter to rest. 
C. The United States Enforced Section 1 of P.L. 112-99 Prior to its Official 
Publication on 13 March 2012 
26. The final interpretative issue before the Panel in respect of China's claim under Article X:2 is 
whether the United States enforced Section 1 of P.L. 112-99 before its official publication on 12 
March 2012.  For the reasons that China has explained, China considers it self-evident from Section 1(b) of P.L. 112-99 that the United States enforced the new Section 701(f) of the Tariff Act WT/DS449/R/Add.1 
 
- B-18 - 
 
  before its official publication.  This is because Section 1(b), by its express terms, applies the new 
Section 701(f) to all countervailing duty proceedings initiated on or after 20 November 2006, nearly five and a half years before its official publication. 
27. The U.S. submissions to date establish that the United States has no credible response to 
this aspect of China's claim under Article X:2.  Aside from its half-hearted and baseless attempt to 
draw a distinction between what it means to "apply" a measure and to "enforce" a measure, the United States has no basis for refuting China's demonstration that P.L. 112-99 was enforced prior 
to its official publication.  This has forced the United States to defend its conduct by offering 
interpretations of Article X:2 that bear no resemblance to the actual text of the treaty, properly interpreted in light of its context and object and purpose.  Most notable in this regard are its assertion that Article X:2 is only designed to ensure that measures are "not kept secret from 
foreign governments and traders" and its assertion that "Article X:2 neither prohibits nor permits 
measures of general application from applying to events that occurred prior to the date of publication". 
28. While the U.S. position remains unclear, it appears to be its position that Article X:2 applies 
only in the circumstance in which a Member formulates a measure of general application ( e.g. in 
"secret" form), and then begins to apply this measure to imports before it is officially published.  It 
is not a problem, apparently, when governments flagrantly and openly produce the identical result 
by applying a measure to events or conduct that had already occurred at the time of its official publication.  Article X:2 is, apparently, a provision of the GATT that is violated only by governments with bad trade lawyers. 
29. The United States offers no interpretative support whatsoever for its nonsensical 
interpretation of Article X:2.  Instead, its argument is based entirely on an outlandish mischaracterization of the Appellate Body report in US – Underwear .  Contrary to the U.S. 
assertion, the Appellate Body in US – Underwear  did not remotely suggest that the panel had 
misinterpreted Article X:2 when it had found that Article X:2 precluded the application of a measure to actions or events that occurred prior to its official publication.  On the contrary, the 
Appellate Body went out of its way to affirm that this understanding of Article X:2 was correct, and 
one that was "appropriately protective" of the purposes that Article X:2 is meant to serve.   
D. Conclusion to Part II 
30. For the reasons set forth in this Part II, China has demonstrated that Section 1 of P.L. 112-
99 is a measure of general application effecting an advance in a rate of duty or other charge on 
imports, and imposing a new or more burdensome requirement or restriction on imports, which the United States enforced before its official publication on 13 March 2012.  Accordingly, the Panel 
should find that the United States has acted inconsistently with its obligations under Article X:2 of 
the GATT 1994. 
III. The United States Has Failed to Rebu t China's Demonstration that the United 
States Acted Inconsistently with Article X:3(b) of the GATT 1994  
31. China has demonstrated that the United States acted inconsistently with Article X:3(b) by 
changing the law applicable to countervailing du ty proceedings initiated prior to 13 March 2012 
and directing domestic courts to apply this new rule of law to cases under review.  As with its 
response to China's other claims under Article X, the United States has been forced to advance 
wholly unsustainable interpretations of Article X:3(b) in order to mount any sort of defence.  The proposed U.S. interpretations, if accepted, would deprive Article X:3(b) of any practical meaning 
and gut the obligation of Members to ensure that the decisions of its courts and tribunals are 
enforced. 
32. According to the United States, Article X:3(b) imposes nothing more than what it calls an 
obligation of "structure".  Once a Member has put in place a "structure" of independent tribunals to 
review and correct agency action, it has no obligation at all to ensure that specific  court decisions 
are actually "implemented by" and "govern the practice of" the government agency whose action is subject to review.   WT/DS449/R/Add.1 
 
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  33. Needless to say, this is not a credible interpretation of the obligations under Article X:3(b).  
To begin with, the U.S. "structural" interpretation is based exclusively on the first sentence of Article X:3(b), but it is the next sentence of Article X:3(b) that establishes the relevant obligation 
in this dispute.  That sentence provides that: 
Such tribunals or procedures shall be independent of the agencies entrusted with 
administrative enforcement and their decisions shall be implemented by, and shall govern 
the practice of, such agencies unless an appeal is lodged with a court or tribunal of 
superior jurisdiction within the time prescribed for appeals to be lodged by importers. 
34. As is clear from the use of the word "shall" in the second sentence of Article X:3(b), this is a 
separate and mandatory obligation.  This sentence has moved beyond the establishment and maintenance of independent tribunals and is now discussing what effects must be given to the 
decisions of those tribunals in order for a Member to comply with Article X:3(b).  This obligation 
relates to the "decisions" of independent tribunals, i.e. their actual  decisions, not just their 
decisions in some abstract legal "framework".  This is obvious from the first part of the sentence, 
but it is fully confirmed by the proviso that follows: " [p]rovided  that the central administration of 
such agency may take steps to obtain a review of the matter in another proceeding if there is good 
cause to believe that the decision is inconsistent with established principles of law or the actual 
facts."  The use of the word "the" in this proviso co nfirms that the obligation in this sentence refers 
to specific  "decisions", not just "decisions" in the abstract. 
35. Notwithstanding its "structural" interpretation of Article X:3(b), the United States continued 
to argue in its responses to Panel questions that the Federal Circuit's decision in GPX V  was not a 
"decision" in the sense of Article X:3(b).  The United States contends that "[a] 'decision' requires 
that a judicial opinion must put an end to or conclude the tribunal's consideration of the proceeding and result in a final judgment that is co nclusive.  In order to be conclusive, a decision 
must have legal effect to end the proceeding."  The United States does not reconcile this 
interpretation with the fact that Article X:3(b) recognizes that a "decision" may not be "final" in the sense that it suggests.  The United States ar gues that a contrary understanding of what a 
"decision" means would require Members to implement any decision of a court or tribunal 
"immediately", but Article X:3(b) already holds open the possibility that a decision of a court of first instance or an intermediate court of appeal can be subject to further appeal, in which case the 
Member's obligation to implement the decision would remain contingent upon the outcome of that 
appeal.   
36. The Federal Circuit's decision in GPX V  was a decision that was subject to the obligations of 
the United States under Article X:3(b).  Under Article X:3(b), the United States was required to 
ensure that the USDOC implemented and was governed  in its practice by this decision, unless one 
of the two exceptions set forth in Article X:3(b) occurred.  In this case, however, the event that 
prevented the implementation of the decision in GPX V  was the intervention of the national 
legislature to change the law applicable to the und erlying agency action, retroactively, and thereby 
direct the outcome of the appeal.  As China has previously explained, this is not one of the 
exceptions to the obligation set forth in Article X:3(b) with respect to the implementation of the decisions of courts or tribunals. 
37. The U.S. response to China's argument appears to be limited to its assertion that 
Article X:3(b) "does not define the relationship be tween legislatures and the judicial branch".  It 
appears to be the U.S. position that because Article X:3(b) does not expressly proscribe or 
otherwise address the possibility of legislative inte rvention in ongoing judicial proceedings, it must 
be the case that such intervention is permitted under Article X:3(b).   
38. This position has no basis in the text of Article X:3(b).  It is an accepted canon of legal 
construction that "to express or include one thing implies the exclusion of the other or of the 
alternative".  Because Article X:3(b) states that the decisions of courts or tribunals " shall be 
implemented by, and shall govern the practice of, such agencies unless an appeal is lodged with a 
court or tribunal of superior jurisdiction within the time prescribed for appeals to be lodged by 
importers", it is evident under this canon of construction that there are no other exceptions to this 
requirement.  Article X:3(b) does not contemplat e the intervention by a national legislature to 
change the outcome of a judicial proceeding and th ereby prevent the implementation of a decision.  
This action is therefore prohibited. WT/DS449/R/Add.1 
 
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  39. The Government of China and interested Chinese parties strongly and consistently objected 
when the USDOC began to apply countervailing duties to imports from China in 2006, on the grounds that this action was not in accordance wi th U.S. municipal law.  They availed themselves 
of their right to judicial review of the USDO C's actions and ultimately prevailed in their 
understanding of U.S. law as it then existed.  Consistent with Article X:3(b), and consistent with 
the principles of fairness and due process inherent in Article X, they had every expectation that a 
judicial decision in their favour would be implemented by the USDOC and would govern the 
practice of the USDOC in other proceedings that raised the same issue.  It is of no solace that, as 
the United States notes, the U.S. Congress does not "routinely" go about depriving foreign parties of their litigation victories in U.S. courts.  It happened here, and it is inconsistent with Article X:3(b), properly interpreted. 
IV. The United States Has Failed to Rebu t China's Demonstration that the USDOC 
Acted Inconsistently with Article 19. 3 of the SCM Agreement by Failing to 
Investigate and Avoid Double Remedies  in the Identified Investigations 
A. The Panel Can and Should Adopt the Panel's Factual Finding in DS379  
40. While the Appellate Body has said that "factual findings made in prior disputes do not 
determine facts in another dispute", it also has recognized that "if the critical evidence is the same 
and the factual question about the operation of domestic law is the same, it is likely that the finder 
of facts would reach similar findings in the two proceedings."  For the reasons China explained in response to Panel question 78, the situation the Appellate Body described in US – Continued 
Zeroing  is precisely what the Panel confronts in this case.  The factual question facing the Panel in 
this dispute is the exact question that was conf ronted by the panel in DS379, the underlying NME 
methodology that is the subject of that factual inquiry is identical, and the dispute is between the same parties.   
41. The panel in DS379 concluded that "the simultaneous imposition of anti-dumping duties 
calculated under an NME methodology and of counte rvailing duties likely results in any subsidy 
granted in respect of the good at issue being offset more than once", and provided a detailed 
account of its reasoning in paragraphs 14.67 to 14.75 of its report.   
42. The United States elected not to appeal the panel's factual finding regarding the likelihood of 
the double remedy.  As China demonstrated in its response to Panel question 78, the USDOC itself has since confirmed the accuracy of that finding through its measures taken to comply with the 
recommendations and rulings of the DSB in relation to the dispute in DS379.  Nonetheless, in 
response to question 78 from the Panel, the United States argues that the Panel should not rely on the panel's factual finding in DS379 because it rests upon "a flawed premise that domestic 
subsidies are 'likely' to lower export prices to some degree".   
43. China notes that the arguments presented by th e United States in support of its contention 
that domestic subsidies may not result in a reduction in export price are exactly the same 
arguments that the United States presented to the panel in DS379.  The panel properly concluded that "[t]aking both sides of the dumping margin equation into consideration" – i.e. looking at normal value and export price together – did not alter the panel's prior conclusion that a double 
remedy is likely to arise from the replacement of  the producer's actual, subsidized costs with 
unsubsidized costs of production.  Using the wholly  reasonable assumption that it would be "the 
rare case" when domestic subsidies did not have some effect on export prices, the resulting dumping margin would "once again" reflect not only "price discrimination (dumping), but also … 
subsidies that were granted to the investigated producer."   
44. For all of these reasons, the panel's conclusion that "at least some double remedy will likely 
arise from the concurrent imposition of counterva iling duties and anti-dumping duties calculated 
under an NME methodology" is unassailable.   
B. The United States Has Presented No "Cogent Reasons" for the Panel to 
Disregard the Appellate Body's  Finding Under Article 19.3 
45. China has described the Appellate Body's interpretation of Article 19.3 of the SCM 
Agreement in DS379 at length in both its first written submission and its oral statement at the first WT/DS449/R/Add.1 
 
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  substantive meeting of the parties.  In brief, th e Appellate Body in DS379 held that investigating 
authorities have an "affirmative obligation to establish the appropriate amount of the duty under Article 19.3", and stated that this obligation requires investigating authorities "to conduct a sufficiently diligent 'investigation' into, and solicitation of, relevant facts, and to base its 
determination on positive evidence in the record."   
46. The Appellate Body has made clear that "absen t cogent reasons, an adjudicatory body will 
resolve the same legal question in the same way in a subsequent case."  Nonetheless, the United 
States argues that the Panel should disregard the Appellate Body's findings in DS379 in light of the 
arguments that it has presented in this dispute that were "not considered" by the Appellate Body.   
47. The allegedly "new" arguments that the United States has presented in Sections VI(B)(1) 
and (2) of its first written submission relate to the ordinary meaning of the relevant terms in 
Article 19.3, when read in the context of both Article 19.3 as a whole and the remaining Article 19 
provisions.  The problem with these "new" arguments is that the United States ignores that the Appellate Body engaged in precisely the same or dinary meaning and contextual analysis in its 
interpretation of Article 19.3, and arrived at an  understanding of that provision diametrically 
opposed to that advocated by the United States.  It is the Appellate Body's legal interpretation, 
and not the contrasting view of a single Member, that the Panel is expected to follow in this 
dispute. 
C. China Has Demonstrated that the USDOC Acted in Violation of Article 19.3 
in the Investigations at Issue in this Dispute 
48. The parties' interventions at the first meetin g of the Panel and their answers to the Panel's 
questions establish their agreement that the Kitchen Shelving determinations in Exhibits USA-99 
and USA-100 are representative of how the USDOC addressed the issue of overlapping remedies in all of the challenged determinations.  Accordingly, if the USDOC's approach in the Kitchen Shelving 
determinations is the same as the approach that it took in the investigations at issue in DS379, 
then all of the determinations at issue are inconsistent with Article 19.3.  This conclusion necessarily follows from the Appellate Body's findin g that in the investigations at issue in DS379, 
the USDOC acted in violation of Article 19.3 by fa iling to investigate and avoid double remedies. 
49. In point of fact, the USDOC's determinations in the Kitchen Shelving investigation are 
carbon copies of its determinations in the DS379 investigations, as China laid out in detail in response to question 79(b) from the Panel.  The United States could not, and does not, contend 
otherwise.  Instead, the United States argues in  response to question 79(b) from the Panel that 
"by fully considering the factual evidence and arguments made by respondent parties, as 
illustrated by Exhibits USA-99 and USA-100, Commerce discharged any alleged burden to 
determine whether overlapping remedies would arise."  The United States further argues that 
Chinese respondents "never presented, or attempted to present, any evidence concerning the actual extent to which the remedies may have overlapped".  
50. These are the same arguments that the United States made in DS379, and that were 
rejected by the Appellate Body in that dispute.  In DS379, the Appellate Body agreed with China 
that the investigating authority has an affirmative obligation to investigate and make its own determination about the existence of any double remedy.  In paragraph 602 of its report, the 
Appellate Body explained that in order to make such a determination, an investigating authority 
would need to "solicit[]" relevant facts and "base its determination on positive evidence in the record".   
51. The obligation on the investigating authority to solicit relevant facts and make a 
determination based on positive evidence is not contingent on the respondent's presentation of 
"evidence concerning the actual extent to which the remedies may have overlapped".  Rather, it 
stems from the panel's finding, endorsed by the Ap pellate Body, that double remedies are "likely" 
when the concurrent anti-dumping duties are calculat ed on the basis of an NME methodology.  It is 
not enough for the investigating authority to "fully consider[] the factual evidence and arguments made by respondent parties" if the investigating authority never solicits relevant evidence in the 
first place.   WT/DS449/R/Add.1 
 
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  52. The United States has not attempted to argue that the USDOC actually engaged in the kind 
of investigation that the Appellate Body has said is required under Article 19.3 in any of the determinations at issue.  China submits that the uncontested failure of the USDOC to investigate and avoid double remedies in the investigations at issue establishes a clear violation of Article 19.3 
of the SCM Agreement. 
 
 
 WT/DS449/R/Add.1 
 
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  Executive Summary of the Opening Statement of China  
at the Second Meeting of the Panel 
Article X:1 
1. The U.S. defence of China's claim under Article X:1 is based on an interpretation that is 
contrary to its ordinary meaning, contrary to the manner in which this provision has been 
interpreted by prior panels, and contrary to interp retations that the United States has advocated in 
other disputes – including another dispute presently underway. 
2. In EC – IT Products,  the United States argued, and the panel agreed, that the term "made 
effective" in Article X:1 refers to the date on which the measure at issue was "brought into effect, or made operative, in practice and is not limited to measures formally promulgated or that have formally 'entered into force'."
   Consistent with this holding, the United States is currently 
advocating in another dispute that the term "made effective" refers to the date on which a 
measure "is first rendered operative or applied in practice, or formally promulgated, whichever is 
earlier ."   
3. By its express terms, section 1 of the GPX legislation was made effective on 20 November 
2006.  This is the date on which the new section 701(f) of the Tariff Act had legal effect in practice, by supplying a statutory basis for countervailing duty investigations initiated on or after 
that date.  As the United States successfully argued in EEC – Dessert Apples,  a measure of general 
application is not "published promptly" under Article X:1 when it is backdated to apply to events that have already occurred.   
4. In the present dispute, by contrast, the United States has taken the position that "Article 
X:1 requires that measures be published promptly upon their adoption ".
   It is clear why the United 
States has been forced to take this position – it has no other option but to depart from the interpretation of Article X:1 that it has correctly advocated in other disputes.  Under a proper 
interpretation of Article X:1, there simply is no justification for publishing a measure of general 
application nearly six years after it was made effective.   
Article X:2 
5. There are two key issues in dispute with respect to the proper interpretation and application 
of Article X:2.  The first is the relevant baseline for determining whether a measure of general application effected an advance in a rate of duty or other charge on imports, or imposed a new or 
more burdensome requirement on imports.  The second is what it means to enforce a measure 
before its official publication. 
6. With regard to the first issue, the U.S. seco nd written submission continues to be confused 
and internally contradictory.  Most importantly, it remains unclear to China whether the United 
States considers the meaning of its own municipal law to be relevant to the Panel's analysis under 
Article X:2.  The United States continues to assert that the meaning of U.S. law prior to the enactment of the GPX legislation is irrelevant to the Panel's analysis because Commerce was 
already imposing countervailing duties on imports fr om China.  Therefore, according to the United 
States, the enactment of the GPX legislation did no t result in any change in Commerce's treatment 
of these imports.  At the same time, however, the United States is still trying to convince the Panel that U.S. law permitted the application of countervailing duties to imports from China prior to the 
enactment of the GPX legislation. 
7. It seems to China that the United States lack s the courage of its convictions.  If the only 
relevant fact under Article X:2 is that Commerce was already applying countervailing duties to 
imports from China, then the United States should be completely indifferent to the meaning of its 
prior municipal law.  It is altogether unclear, then, why the United States continues to argue in its second written submission that imports from Ch ina "were already subject to the U.S. CVD law" 
prior to the enactment of the GPX legislation.
   The United States has devoted a great deal of effort 
to trying to convince the Panel of this assertion, for no apparent reason. 
8. It is clear, though, why the United States has been forced to tack back and forth between 
these contradictory positions.  If the relevant baseline under Article X:2 is prior municipal law, WT/DS449/R/Add.1 
 
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  properly determined as a question of fact, the United States must realize that it has no evidence to 
support its assertion that U.S. law previously provided for the imposition of countervailing duties on imports from NME countries.  This explains, for example, why the United States has taken the position that the text of the GPX legislation is "irrelevant" to the Panel's analysis under Article X:2 
– it knows that any objective examination of the statute leads to the conclusion that the statute 
amended the Tariff Act to provide for the application of countervailing duties to imports from NME countries.  The United States does not want prior municipal law to be the baseline under Article 
X:2, and it does not want the Panel to examine th e text of the measure at issue in this dispute, 
because it is obvious that the GPX legislation had th e types of effects that place it squarely within 
the scope of this provision. 
9. At the same time, the United States must realize that its proposed interpretation of Article 
X:2 – that the relevant baseline is whatever Commerce's "existing approach" happened to be – is 
not viable as a matter of treaty interpretation.  This is why the United States continues to argue about the meaning of U.S. law prior to the enactm ent of the GPX legislation.  The problem for the 
United States, however, is that it has no evidence whatsoever to support its assertions about the 
meaning of prior U.S. law.  Its "evidence" seems to amount to nothing more than an implicit assertion that U.S. law is synonymous with whatever Commerce happens to be doing in practice at 
any given point in time.  
10. The United States asserts, for example, that "the record is clear that the GPX legislation did 
not change or otherwise affect Commerce’s existing and well-known treatment  of the imports 
subject to the 27 proceedings at issue in this dispute.  That is, the U.S. CVD law has always 
applied to these imports."
   The second sentence in this statement is an obvious non-sequitur.  As 
subsequent events confirmed, "Commerce's existi ng and well-known treatment" of imports from 
China was not the same as "the U.S. CVD law" as  it then existed.  The fact that Commerce was 
applying countervailing duties to imports from China does not mean that "the U.S. CVD law … 
applied to these imports".  U.S. law is not synony mous with Commerce's "treatment" of imports.   
11. What this non-sequitur illustrates, however, is  the importance of evaluating the issues under 
Article X:2 from the standpoint of the United St ates as a Member of the WTO, not from the 
standpoint of the United States Department of Commerce as a single agency of the United States government.  Here at the WTO, what matters for the purposes of Article X:2 is not what Commerce was doing in practice, or how the members of the U.S. delegation believe that U.S. law 
should have been interpreted.  What matters is what the law of the United States was prior to the 
enactment of section 1 of the GPX legislation, as reflected in published measures of general application.  For the reasons that China set forth in its second submission, this is the relevant 
baseline for determining whether a measure of general application effected an advance in a rate of 
duty or other charge, or imposed a new or more burdensome requirement on imports.  This baseline must be determined by reference to valid sources of municipal law, not the mere 
assertions of the United Stat es before this Panel.   
12. On one side of this dispute, China has demonstrated by reference to the text of the measure 
at issue that it effected an advance in a rate of duty or other charge, and imposed a new or more burdensome requirement on imports.  China has further demonstrated by reference to 
authoritative decisions of the United States Court of Appeals for the Federa l Circuit that U.S. law 
did not previously provide for the application of countervailing duties to imports from NME countries.  On top of that, China has thoroughly rebutted the unsubstantiated U.S. assertion that 
the GPX legislation was merely a "clarification" or "confirmation" of U.S. law as it always existed.  
On the other side of this dispute, by contrast, the United States has refused to engage with the text of the measure at issue, and has offered no factual evidence to support its assertions about 
the meaning of prior U.S. law.  There is no factual support at all for its assertion that U.S. law 
provided for the application of countervailing duties to imports from NME countries prior to the enactment of section 1 of the GPX legislation.  For these reasons, it is clear that section 1 of the GPX legislation is a measure of the type described by Article X:2.   
13. The second major issue in dispute in relation  to Article X:2 is whether the United States 
enforced this measure before it was officially published on 13 March 2012.  This should not be a hard question to answer – it is obvious from basic principles of treaty interpretation that Article 
X:2 precludes the application of measures falling within its scope to events that occurred prior to 
its official publication.  The panel and Appellate Body easily recognized this point in US – 
Underwear .  For the reasons that China has explained, the fact that Article X:2 precludes the WT/DS449/R/Add.1 
 
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  application of a measure to events that occurred prior to its official publication follows from the 
undisputed ordinary meaning of what it means to "enforce" a measure, from the interpretation of 
Article X:2 within the broader context of Article X,  and from a proper consideration of the object 
and purpose of the GATT 1994.   
14. Not having any meaningful response to these points, the United States has been forced to 
concoct an elaborate and confusing interpretation of Article X:2 that has something to do with what the United States calls "secret measures".  To  the extent that China can even figure out what 
the United States is talking about, the proposed  U.S. interpretation of Article X:2 appears to 
elevate form over substance, and would appear to  render Article X:2 entirely redundant of the 
prompt publication requirement under Article X:1.  With no interpretative support for this result, the United States has based its interpretation of Article X:2 on a clear mischaracterization of the 
Appellate Body's holdings in US – Underwear,  a mischaracterization that China has now thoroughly 
debunked in its second submission.  The panel and Appellate Body holdings in US – Underwear are 
fully consistent with China's interpretation of Article X:2, not the "secret measures" interpretation 
advocated by the United States. 
15. In sum, it is clear on the face of the GPX legislation itself that it advanced a rate of duty or 
other charge on imports and imposed a new or more burdensome requirement on imports, and 
that the United States enforced this measure before its official publication in violation of Article 
X:2.  As China has explained throughout this dispute, section 1 of the GPX legislation is a paradigmatic example of what Arti cle X:2 precludes – the application of a measure to events that 
occurred prior to its official publication.  The application of section 1 to countervailing duty 
investigations initiated prior to its official publication was plainly inconsistent with this provision. 
Article X:3(b) 16.  China has already responded in detail to the assertion by the United States that 
Article X:3(b) does not require a Member to ensure that the decisions of its courts or tribunals are 
actually enforced.  The contention by the United States that it would not be inconsistent with Article X:3(b) for Commerce "to flout a fina l decision of the U.S. federal courts"
  is truly one of the 
more remarkable positions that the United States has taken in this dispute.  China has 
demonstrated that the "structural" interpretation of Article X:3(b) that underlies this contention is incorrect, and will not discuss it further here. 
17. What the United States has failed to come to terms with is the fact that Article X:3(b) 
prescribes exactly what may happen to a decision of a court or tribunal.  As is evident from the 
requirement that such decisions " shall be implemented by, and shall govern the practice of, such 
agencies unless an appeal is lodged with a court or  tribunal of superior jurisdiction", there are no 
other exceptions to this requirement, other than the collateral challenge proviso.  The United 
States has failed to explain how the intervention  of the United States Congress to change the 
outcome of an ongoing judicial proceeding was co nsistent with this requirement.  Nor has the 
United States explained how it can possibly be cons istent with the purpose of independent judicial 
review to allow this to occur.   
18. As with its other proposed interpretations of Ar ticle X, the United States is effectively trying 
to read Article X:3(b) out of the GATT by reducing  i t  t o  a  n u l l i t y .   T h e  P a n e l  m u s t  r e j e c t  t h i s  
interpretation.   
Article 19.3 of the SCM Agreement 19. China has demonstrated that the 26 countervailing duty determinations at issue in this 
dispute are indistinguishable from those that the Appellate Body found to be inconsistent with 
Article 19.3 of the SCM Agreement in DS379.  In each of the determinations at issue, Commerce 
declined to take any steps to investigate and avoid the double remedies that were likely to result 
from the application of countervailing duties in conjunction with anti-dumping duties determined 
under the U.S. nonmarket economy methodology.  Likewise, in the parallel anti-dumping determinations, Commerce made no effort to investigate the problem of double remedies and declined to take any steps to avoid double remedies for precisely the same reasons that it had 
cited in the parallel anti-dumping determinations in DS379.   WT/DS449/R/Add.1 
 
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  20. The United States does not seriously contend that there is any material difference between 
the determinations at issue in DS379 and those at i ssue here.  In fact, at the last meeting of the 
Panel, the United States submitted the CVD and AD determinations in the Kitchen Shelving  
investigations, which are identical to those at issue in DS379, and conceded that the other 
determinations at issue in this dispute are th e same.  Thus, there should be no disagreement 
between the parties that the determinations at i ssue in the present dispute are on all fours with 
the determinations that were found to be inconsistent with Article 19.3 in DS379.   
21. The U.S. defence of these determinations comes down to two propositions, one factual, and 
the other legal.  The factual proposition is that the Panel should decline to find that double remedies were likely to occur in the investigatio ns at issue, even though the methodologies that 
Commerce used in these investigations were identical in all respects to those at issue in DS379.  
The United States has tried to dress this up as a series of speculations about why a double remedy 
might not occur under certain circumstances.  As  China has demonstrated, however, the panel in 
DS379 addressed these same speculations and found th at they did not detract from its finding that 
double remedies were likely to occur.   
22. In DS379, the panel's bottom-line conclusion, even after taking the U.S. speculations into 
account, was that "at least some double remedy will likely arise from the concurrent imposition of 
countervailing duties and anti-dumping duties calculated under an NME methodology."  The United 
States opted not to challenge these factual findings before the Appellate Body.  
23. The United States has presented the Panel with no reason whatsoever to reach a different 
factual conclusion than the panel in DS379.  It has presented no reason for the Panel to believe, 
for example, that double remedies were any less likely to occur on the facts of these investigations 
than on the facts of those at issue in DS379.  And since the panel in DS379 made those findings, the United States has subsequently concluded in its compliance determinations in that dispute that 
63 per cent of the input subsidies at issue had been  remedied twice.  Notably, the United States 
found the same amount of double remedy across four different investigations involving four different products.  The United States has offered no reason to believe that a similar factual 
conclusion would not be warranted with regard to the investigations and products at issue here.   
In this way, the United States has fully confirmed the factual accuracy of the panel's conclusion that "at least some double remedy will likely arise" from the concurrent application of countervailing duties and anti-dumping duties determined under the U.S. NME methodology.  
24. This factual finding – that at least some double remedy is likely to occur – is what formed 
the basis for the Appellate Body's legal conclusion that the United States has an affirmative obligation under Article 19.3 to investigate and avoid these likely double remedies.  As it did in 
DS379, the United States has tried to argue in th e present dispute that the burden fell upon the 
Chinese respondents to demonstrate the existence and extent of a double remedy.  However, as China explained in its second submission, the Appellate Body expressly considered and rejected 
this argument, holding that the United States has an affirmative obligation under Article 19.3 to 
solicit relevant facts pertaining to the issue of double remedies and reach a conclusion with regard to this issue that is based on positive evidence in the record.  As I explained a moment ago, there 
is absolutely no indication in any of the determinations at issue in this dispute that Commerce 
discharged this affirmative obligation.  
25. This brings me to the legal proposition on which the United States has based its defence – 
that the Panel should decline to follow the interp retation of Article 19.3 that the Appellate Body 
adopted in its report in DS379.  For the reasons that China has explained at length, the United 
States has failed to present any cogent reasons for this Panel to adopt a contrary interpretation of 
Article 19.3.  All of the so-called "new arguments" that the United States has put forward 
concerning the interpretation of Article 19.3 amount to nothing more than taking issue with the 
Appellate Body's detailed interpretative analysis of  this provision.  The Appellate Body engaged in 
a thorough textual and contextual analysis of Article 19.3 and concluded that it imposes an 
affirmative obligation upon the United States to investigate and avoid the double remedies that are 
likely to occur in the NME context.  It is this interpretation of Article 19.3 that the Panel is 
expected to follow, and it should do so here.  
 WT/DS449/R/Add.1 
 
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  ANNEX B-2 
EXECUTIVE SUMMARIES OF THE ARGUMENTS OF THE UNITED STATES 
Executive Summary of the First Written Submission of the United States of America  
I. INTRODUCTION 
1. The legislation of the U.S. Congress ("Congress") reaffirming the existing application of U.S. 
countervailing duty ("CVD") laws to imports from nonmarket economy countries ("NMEs"), or what 
is commonly known as the " GPX legislation," is fully consistent with U.S. obligations under 
Article X of the General Agreement on Tariffs and Trade 1994  ("the GATT 1994").  China's claims 
under Article X of the GATT 1994 fail as a matter of fact and law.  China's claims are based on a 
fundamental misunderstanding of U.S. CVD law and the effect of the GPX legislation.  The law 
affirmed the U.S. Department of Commerce's ("Commerce") pre-existing approach to the 
application of the U.S. CVD law to NME countries such as China.  It did not change or otherwise 
affect the approach that Commerce had been using in the challenged CVD proceedings.  Rather, it maintained the status quo that existed prior to its enactment. 
 
2. China also claims that 31 sets of determin ations by the United States Department of 
Commerce are inconsistent with Article 19.3 of the Agreement on Subsidies and Countervailing 
Measures  (SCM Agreement).  China's claim that the United States acted inconsistently with 
Article 19.3 is baseless.   
 II. FACTUAL AND PROC EDURAL BACKGROUND 
3. Despite its length, China's discussion of Co mmerce's application of the U.S. CVD law to 
imports from China is incomplete.  The United States provides a summary of those facts which may be relevant to the claims that China has raised under the WTO Agreement.     
4. First, any discussion of the U.S. CVD law must begin with the plain text of the law, which 
China fails to provide in its background section.  The plain text of the law requires that Commerce 
must apply countervailing duties to any country where it can identify a countervailable subsidy.  
Second, a 1986 decision by a U.S. appellate court, Georgetown Steel v. United States , did not 
decide that Commerce was prohibited as a matter of law from applying the CVD law to NME 
countries.  Rather, the U.S. appellate court in Georgetown Steel deferred to Commerce's judgment 
that it was not required to apply the CVD law where it was impossible to do so.  In other words, 
the U.S. appellate court simply affirmed Commerce' s broad discretion to find the existence of a 
countervailable subsidy.  Third, China's assertion that following the Georgetown Steel  decision, the 
existing U.S. law prohibited the application of the U.S. CVD law to NME countries fails as a matter 
of fact.  Commerce did not apply the U.S. CVD law to any NME countries during the period 
following Georgetown Steel to 2006 because the structure of the NME countries at that time made 
it impossible to identify countervailable subsidies.  Fourth, in 2006, based on a petition from a U.S. 
domestic industry, Commerce initiated a CVD investigation on certain Chinese imports in which it 
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 there.  Fifth, 
the so-called GPX litigation is an on-going challenge to Commerce's approach in the U.S. domestic 
court system.  One of the opinions issued in the middle of a string of judicial opinions in this litigation raised a differing view of what Congress intended in the U.S. CVD law.  This view differed from previous court decisions and Commerce's existing application of the U.S. CVD law.  The 
opinion, GPX V , however, is legally insignificant as it never became final.  Finally, while the opinion 
was pending on appeal, Congress enacted the GPX legislation, which affirmed that the U.S. CVD 
law is applicable to all countries, including NME countries.    
 
III. CHINA'S CLAIMS UNDER ARTICLE X: 1 OF THE GATT 1994 ARE WITHOUT MERIT 
5. China's claims under Article X:1 of the GATT 199 4 rest not on a proper interpretation of the 
text of that provision, but on an implausible reading that would require publication before the WT/DS449/R/Add.1 
 
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  existence of a measure and substantive requirements governing the content of a measure.  Such a 
reading is unfounded.    6. As an initial matter, China fails to state which of the categories listed in Article X:1 of the 
GATT 1994 is applicable to the GPX legislation.  Without satisfying this threshold issue, China's 
claims under Article X:1 of the GATT 1994 must fail.    
7. Even if China comes forward to meet its burden of proving that the GPX legislation falls 
within the scope of Article X:1 of the GATT 1994, China's claim must fail.  Contrary to China's argument, the GPX legislation was published promptly, in full accord with the obligations under 
Article X:1 of the GATT 1994.  Indeed, the law was published on the date of its adoption; the law 
could not have been published any sooner. 
 8. China's argument is based on an unsupportable reading of Article X:1.  In particular,  China 
argues that "the United States acted inconsiste n t l y  w i t h  A r t i c l e  X : 1  o f  t h e  G A T T  b y  f a i l i n g  t o  
publish section 1 of [the GPX legislation] 'promptly' in relation to its effective date of 20 November 
2006."  This argument departs from the plain te xt – nowhere does Article X:1 of the GATT 1994 
mention an "effective date" of the measure.  Article X:1 does not, as China proposes, impose 
substantive obligations about how a measure may apply to particular situations that occurred in the past.    
9. A number of elements of Article X:1 of the GATT 1994 makes this clear.  First, the starting 
point of Article X:1 of the GATT 1994 is that it appl ies to "laws, regulations, judicial decisions, and 
administrative  rulings of general application" pe rtaining to certain enumerated subjects.  At the 
risk of stating the obvious, these law, regulations,  etc. must be in existence for Article X:1 of the 
GATT 1994 to apply.  In addition, Article X:1 of  the GATT 1994 only applies if these types of 
measures have been "made effective by any [Member]."  This "made effective" clause is a 
limitation on Article X:1 of the GATT 1994 – that is, it excludes from the scope measures that may 
be in existence, but have not been made effectiv e by a Member.  Also, the past tense of the term 
"made effective" shows that the obligation in Article X:1 of the GATT 1994 applies to measures 
that have been adopted at some point in the past.  The "made effective" clause cannot be read, as 
China implies, as some sort of additional, substa ntive obligation to the effect that measures of 
general application must not apply to past factual situations.    
10. Once a measure of general obligation falls within the scope of Article X:1, the article 
imposes two obligations on the Member that has adopted the measure: the measure must be published (i) "promptly"  and (ii) "in such a manner as to enable governments and traders to 
become acquainted with [it]."       
 11. The plain meaning of "promptly" is "[i]n a prompt manner; without delay."  Because the starting point of Article X:1 of the GATT 1994 is the existence of a measure of general application, 
the timing issue of "promptness" or "delay" must be considered in relation to the time when the 
measure has come into existence and been made e ffective.  Therefore, under the plain text of 
Article X:1 of the GATT 1994, a measure cannot be found to be inconsistent with the prompt 
publication obligation if the Member publishes the measure as soon as the measure comes into 
existence.  It would not be possible to publish the measure with any less delay.    
12. China proposes to reinterpret Article X:1 of the GATT 1994 not as a procedural requirement 
on publication, but instead as a substantive ob ligation.  China's argument, however, cannot be 
squared with the plain text of Article X:1 of the GATT 1994.  On the undisputed facts of this 
dispute, China presents no basis for a finding that the GPX legislation was not published promptly.  
Indeed, China itself states that "[t]he bill was signed by President Obama on 13 March 2012 and 
officially published on the same date."  Given that, as China agrees, the GPX legislation was 
published on the same day that it came into existence, China has no basis for any claim that the 
measure was not published "promptly" under Article X:1 of the GATT 1994.  
    13. China argues that "the Government of China and Chinese producers could not possibly have 
become acquainted with section 1 of P.L. 112-99 before it took effect, since the law was not 
published until long after it took effect as a legal basis for the USDOC to apply countervailing duties to imports from NME countries."  The plain meaning of "manner" is "the way in which something is done, the mode or procedure."  China has presented no basis for a claim that the 
U.S. publication of the GPX legislation was inconsistent with the obligation in Article X:1 of the WT/DS449/R/Add.1 
 
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  GATT 1994 regarding the manner of publication.  In fact, the GPX legislation was published in the 
United States Statutes at Large, on the same day it was enacted.  The United States Statutes at 
Large  is readily available to China, Chinese traders and other members of the public.  Accordingly, 
the publication of the GPX legislation met the Article X:1 of the GATT 1994 obligation regarding the 
manner of publication. 
 14. Notwithstanding a lack of any textual basis, China is apparently arguing that Article X:1 of 
the GATT 1994 acts as a substantive obligation on the content of a measure.  In particular, China 
argues that Article X:1 must be read so as to prohibit a measure from touching on events that have occurred prior to the publication of the measure.  China argument skips over any textual support, and instead relies on the theory that the panel must recognize some sort of general 
proposition that Members cannot adopt measures that relate to situations that occurred in the 
past.   
15. This argument is flawed on several levels.  As a starting point, China's argument is not in 
accord with customary rules of interpretation of public international law.  Under Article 31 of the Vienna Convention, a treaty shall be interpreted in good faith in accordance with the ordinary 
meaning to be given to the terms of the treaty in  their context and in the light of its object and 
purpose.   One cannot, as China suggests, start with some supposed principle regarding "retroactivity," and then use that supposed principle as a basis for reaching an untenable interpretation. 
 
16. Although China's failure to follow the correct rules of treaty interpretation could end this discussion, the United States also notes a fundamental disagreement with China's proposition that 
there exists some general principle of public international law that a measure may not affect 
events that may have occurred prior to a measure's publication.  
17. In fact, Article X:1 of the GATT 1994 itself recognizes that measures may affect events that 
occurred prior to the publication of a measure.  Looking further afield than the text of Article X:1 of the GATT 1994, the application of legal oblig ations to previous actions is embodied in 
international law and the parties' own legal systems.  
 
IV. CHINA'S CLAIM UNDER ARTICLE X:2 OF THE GATT 1994 IS WITHOUT MERIT  
18. For three separate reasons, China has presented no valid basis for its claim under Article X:2 
of the GATT 1994.  The first two reasons in volve China's failure to prove that the GPX legislation 
falls within the scope of Article X:2 of the GATT 1994.   The third reason is that China fails to prove 
that the GPX legislation, even if found to be within the scope of Article X:2 of the GATT 1994, is 
somehow inconsistent with the Article X:2 obligation.    
   19. Before turning to the substance of China's Article X:2 claim, it is useful to provide a general comment on the relationship between this dispute under the WTO Agreement and litigation in U.S. 
courts.  In its first submission, China essentially repeats the arguments on "retroactivity" as 
presented in the GPX domestic litigation – in particular, th e exporters in domestic litigation have 
argued that Commerce acted ultra vires  pursuant to U.S. domestic law in applying the U.S. 
countervailing duty laws to NME imports.  These arguments are matters of U.S. domestic law; 
China has not and cannot show that they are somehow relevant or transferable to questions concerning obligations under Article X:2 of the GATT 1994.   
 
20. In addition, the United States would emphasiz e – as noted in the statement of facts – that 
to the extent there has been any change in Commerce's approach to CVDs as applied to China, that change occurred in 2006.  At that time, th e United States published an official notice 
regarding Commerce's approach; in particular, on November 27, 2006, Commerce published in the 
U.S. Federal Register the notice of the initiation of the first CVD investigation on certain imports from China, an NME country.  Nothing in the GPX legislation – which served to affirm Commerce's 
interpretation of U.S. CVD law with respect to su bsidized Chinese imports – modified the approach 
announced in 2006.     
21. The requirements for a measure to be covered by Article X:2 of the GATT 1994 can be 
separated into two parts: the general type of measure, and the requirement that the measure 
represents a certain type of change from a prior measure.  The general types of measures covered 
by Article X:2 of the GATT 1994 are either a measur e of general application effecting a duty rate WT/DS449/R/Add.1 
 
- B-30 - 
 
  or other charge on imports under an established and uniform practice, or a measure of general 
application imposing a requirement, restriction or prohibition on imports.  China has failed to explain how the GPX legislation falls under either category.  As such, China has failed to present a 
prima facie  case.   
 
22. Although it is China's burden to present its ca se in the first instance, the United States notes 
that it is difficult to understand how China would intend to try to fit the GPX legislation within the 
scope of Article X:2 of the GATT 1994.  First, laws involving CVDs do not "effect a an advance in a 
rate of duty or other charge on imports under an established and uniform practice."  Unlike, for example, an ordinary customs duty, countervailing duties do not "effect" (which means to "bring 
about" or "produce") any particular "rate" or level of a CVD duty under established or uniform 
practice, unlike a customs tariff which sets out rates of duty.  In contrast, CVD laws describe a 
process for determining a special CVD duty, and CVD laws themselves do not bring about or produce any particular duty rate.   
 
23. Second, China fails to establish that the GPX legislation imposes a "requirement, restriction 
or prohibition" under Article X:2 of the GATT 1994.  Rather, China asserts that the GPX legislation 
"'impos[es] a new or more burdensome requirement, restriction or prohibition on imports' in so far 
as it makes certain categories of imports subject to the initiation and conduct of countervailing duty investigations, as well as to the potential imposition of countervailing duties."  China's argument assumes the conclusion, and fails to explain how the GPX legislation imposes a 
requirement, restriction, or prohibition.     
 24. China argument – that GPX legislation falls within the scope of Article X:2 of the GATT 1994 
"in so far as it makes certain categories of imports potentially subject to the imposition of 
countervailing duties" – is without merit.   First, legislation relating to the application of the CVD law does not itself change or effect the "rate" of duty or other import charge, much less an 
"advance in a rate" of duty.  Second, contrary to China's theory that the GPX legislation could 
effect an advance in the rate of duty because it changed  the applicability of CVDs, as discussed 
above in Part II, the GPX legislation maintains the status quo  on procedures relating to the 
application of CVDs to NME countries.  Thus, the GPX legislation did not, as China puts it, make 
imports from NME countries potentially  subject to the imposition of countervailing duties; these 
imports were already  subject to the imposition of countervailing duties well prior to the adoption of 
the GPX legislation.     
 
25. Because there was no change to Commerce's existing approach in how it interpreted the U.S. CVD law with respect to NME imports, Section 1 of the GPX legislation could not effect an 
increase in a rate of a duty.  The Oxford English Dictionary defines "rate" as "[t]he total quantity, 
amount, or sum of something, esp. as a basis for calculation."  Section 1 of the GPX legislation 
imposes no such change, advance or decrease, in the total quantity, amount or sum of CVDs.  The rate remains the same as previous to the enactment of the GPX legislation. 
 
26. Further, China's argument ignores the requirement under Article X:2 of the GATT 1994 that the initial duty rate (that is, prior to the "advance" in the rate, there must have been "an 
established and uniform practice.").  Even if the GPX legislation could be considered as modifying 
U.S. law (which it did not), it could never be said that the situation prior to the GPX legislation 
could be described as an "established and uniform pr actice" not to apply CVDs to imports of China.  
To the contrary, as explained above, the established and uniform practice since at least 2006 was 
to apply CVDs to China.  Moreover, even before  that time, Commerce maintained procedures for 
applying the U.S. CVD law to any country where a countervailable subsidy (or bounty or grant) could be determined.     
   
27. Even if for purposes of argument one assumes the GPX legislation could be found as the 
general type of measure under Article X:2 of  the GATT 1994 that imposes a requirement, 
restriction, or prohibition, China cannot show that  the GPX legislation is "new" or "more 
burdensome"  as compared to the situation faced by imports from China prior to the adoption of 
the measure.     
 
28. Section 1 of the 
GPX legislation was neither a change in the law, nor did it result in any 
change in the treatment of imports from China.   Rather, the legislation reaffirmed Commerce's 
interpretation of existing law for the purposes of resolving confusion in ongoing litigation.  Prior to 
the law's enactment, Commerce acted pursuant its reasonable interpretation of the Tariff Act of WT/DS449/R/Add.1 
 
- B-31 - 
 
  1930 to apply the U.S. CVD law to China when it could identify a countervailable subsidy in China.  
For the past seven years, the U.S. CVD laws  have applied to imports from China.   
 29. Though challenged on a number of occasions as being ultra vires , Commerce's decision was 
upheld by a number of U.S. courts.  China relies on the fact that five years following its initial 
judicial challenge of Commerce's decision and numerous CVD proceedings later, the U.S. Federal Circuit issued a contradictory opinion based on legislative silence.  The only effect of this opinion, 
which was not final, was to provide China notice that the state of the relevant U.S. CVD law was 
unsettled.  Section 1 of the GPX legislation does not impose any "new or more burdensome" 
requirements, restrictions or prohibitions.  Rather, it maintains Commerce's existing approach.    
30. Given that the GPX legislation resulted in no change in the treatment of imports from China, 
and no change in U.S. law, the United States submits that the GPX legislation is not a measure 
covered by Article X:2 of the GATT 1994.  Nonethel ess, the United States also notes that China 
has failed to show that the GPX legislation is inconsistent with the obligation set out in Article X:2 
of the GATT 1994.  Although the United States is no t in a position to respond to an argument that 
China has not made, the United States notes that the facts in this case do not support a contention 
that the GPX legislation is inconsistent with this obligation.  In particular, the GPX legislation was 
officially published on its date of adoption, March 13, 2012.  And Commerce took no action prior to that date to enforce the measure.    
31. Instead of addressing the specific language  of the WTO provision and the facts of this 
dispute, China primarily relies on the Appellate Body's findings in US – Underwear  to support a 
general proposition that Article X:2 of the GATT 199 4 "precludes retroactivity."   China's approach 
fails for a number of reasons.  First, citation to  a prior Appellate Body report does not substitute 
for the application of the specific language in Article X:2 of the GATT 1994 to the specific facts in this dispute.  Second, a discussion focused on the general concept of "retroactivity" does not lead 
to any conclusion with respect any specific issue under the WTO Agreement.  "Retroactivity" is not 
a term used anywhere in the GATT 1994.      32. Third, and finally, China misrepresents the Appellate Body findings in US -Underwear.  What 
China fails to point out is that, although the Appellate Body discussed both the relevant ATC 
provisions and Article X:2 of the GATT 1994, the Appellate Body's ruling in favor of Costa Rica was based on the ATC provision (and not Article X:2 of the GATT 1994).  In fact, the Appellate Body 
rejected the argument that Article X:2 precluded the application of the safeguard to imports that 
entered prior to the June 1995 adoption of the measure.       
V. CHINA HAS NO BASIS FOR A CLAIM UNDER ARTICLE X:3(B) OF THE GATT 1994 
33. China's claim under Article X:3(b) of the GATT 1994 has no basis either in the text of the 
WTO Agreement, or in the facts in this dispute.  China apparently would interpret Article X:3(b) of 
the GATT 1994 to require an administrative agency to change its practice each and every time a 
judicial body issues some sort of statement on the meaning of domestic law.  Although 
Article X:3(b) of the GATT 1994 is generally a ddressed to the interaction between administrative 
agencies and judicial, arbitral and administrative tribunals, Article X:3(b) of the GATT 1994 does 
not contain such a requirement.  Rather, it contains specific language with specific obligations; 
China has not shown, and cannot show, any br each of Article X:3(b) of the GATT 1994. 
 
34. Article X:3(b) of the GATT 1994 expressly re cognizes that an agency need not implement a 
judicial decision that is under appeal:  it st ates that judicial decisions be implemented " unless  an 
appeal is lodged with a court or tribunal of superior jurisdiction within a prescribed time period."  Further, this language recognizes the fact that Members may want to provide for an appeal from 
the decisions of first instance tribunals. 
 35. China's claim fails as a matter of fact.  The GPX V  opinion was not finalized under the U.S. 
judicial appeals process, and was under appeal, and therefore there was no final decision to 
implement.  Such non-binding opinions are not "decisions" under Article X:3(b) of the GATT 1994.  A decision of a U.S. appeals court is not final until the court issues what is known as a "mandate."  
If an appeal is timely filed, the mandate is stayed.  In GPX V , the United States filed a timely 
petition for rehearing before all of the judges of the U.S. Federal Circuit, or en banc . Prior to the 
issuance of a mandate, U.S. federal appellate tribunals have broad discretion to alter their WT/DS449/R/Add.1 
 
- B-32 - 
 
  judgments.  Importantly, it is the issuance of  the mandate that, if appropriate, transfers 
jurisdiction from the appellate court to the first instance tribunal.  VI. CHINA'S CLAIM THAT THE UNITED STATES ACTED INCONSISTENTLY WITH 
ARTICLE 19.3 OF THE SCM AGREEMENT MUST BE REJECTED  
36. China has not made a prima facie  case for its claim under the SCM Agreement; and it 
erroneously interprets Article 19.3 of the SCM Agreement.  As a result, its claim that the United 
States acted inconsistently with Article 19.3 of the SCM Agreement is baseless. 
 37. China fails to put forward legal arguments to make out a prima facie  case.   Instead, China 
merely argues that the findings of the Appellate Body in DS379 should be applied to the 
investigations and reviews at issue in the instan t dispute.  Rather than present the evidence 
necessary to support its legal claims, China makes conclusory and generalized allegations as to what Commerce found across 31 sets of determinations without even a cursory citation to a single 
piece of evidence.  To make out a prima facie  case, China must establish the facts of each 
determination to demonstrate evidence adequate to make out its case under the legal theory that it advances.  However, China makes no mention of Commerce's determinations at all except to 
cite the list of challenged de terminations in CHI-24.     
 38. Even had China actually presented the Panel with evidence and analysis in its first written submission, an examination of the 31 challenged sets of determinations would reveal that 
respondent parties had the opportunity to present Commerce with evidence and arguments 
demonstrating the existence of overlapping remedies and that Commerce fully addressed such evidence, or lack thereof.  At the time of the determinations, Commerce was willing to consider 
any evidence of overlapping remedies.  But in none  of the 31 challenged sets of determinations did 
parties present such evidence.  To the extent that parties submitted any information at all on the issue of overlapping remedies, it was in the form of theoretical economic arguments 
unsubstantiated with any evidence.  China's submission contains absolutely no discussion of the 
facts at issue in the determinations made by Commerce.  Therefore, China has failed to make a prima facie  case.  
 
39. China's failure to make a prima facie  case is especially striking given that China's legal claim 
under the SCM Agreement is limited in scope.  China, in its first written submission, purports to argue that the United States acted inconsistently with Article 19.3 of the SCM Agreement, and as a 
consequence, Articles 10 and 32.1.  China, however, makes no effort to interpret Article 19.3 of 
the SCM Agreement, or apply this provision to the fa cts of this dispute.  Rather than engage in an 
analysis of the text of Article 19.3 of the SCM Agreement pursuant to customary rules of 
interpretation, China relies exclusively statements made in the Appellate Body report in DS379.  
Statements of the Appellate Body, however, are not a source of WTO obligations, but instead constitute an interpretation of WTO obligations for the purpose of resolving that particular dispute.  
 
40. Article 19.3 is essentially a non-discrimination provision.  Article 19.3 first requires that a 
"countervailing duty" be levied "on imports of such product from all sources found to be subsidized and causing injury."   That is, the CVD must be levied on "all" such sources, and not just some of 
them.  Second, the text directs a Member to apply CVDs "on a non-discriminatory basis" on those 
imports.  That is, when CVDs are levied on imports from all such sources, the Member is not to discriminate between those sources. Rather, a Member will impose a CVD on all imports of a 
product from each Member where the importing Member finds the product to be subsidized and 
causing injury.  Third, Article 19.3 sets out that CVDs levied on a non-discriminatory basis on imports from all sources found to be subsidized and causing injury shall be "levied in the appropriate amounts in each case."      
 
41. Moreover, use of the definite article "the" before "appropriate amounts" suggests that "the appropriate amounts in each case" is not an open-e nded or subjective concept.   Instead, "the 
appropriate amounts" is an objective concept.  To be objective, the metric for "the appropriate 
amounts" must be known and defined.  In othe r words, the amount of CVDs imposed should 
correspond to the subsidies identified for imports from a particular source, and not from any other.  
 
42. Furthermore, the United States notes that no thing on the face of the phrase "levied in the 
appropriate amounts in each case" (nor any other language in the SCM Agreement) has any tie to the question of whether or not other measures, such as anti-dumping  duties, have been applied, WT/DS449/R/Add.1 
 
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  nor any relation to rules outside the SCM Agreement.  To read "in the appropriate amounts" as 
permitting consideration of the application of other measures or other, non-SCM Agreement rules, would convert "in the appropriate amounts" into a subjective standard, with bounds only set by the eyes of the particular interpreter.    
  
43. The context provided by the SCM Agreement an d its structure support this understanding of 
Article 19.3.  Articles 1 and 2 of the SCM Agreemen t define what a subsidy is.  Part V of the SCM 
Agreement addresses "Countervailing Measures" and, through its various articles in sequential 
order, traces each phase of a countervailing duty  proceeding.  Article 11 of the SCM Agreement, 
for instance, concerns the initiation and subsequent conduct of a CVD investigation.  Article 12 imposes certain evidentiary, due process, and transparency requirements on Members in the 
conduct of a CVD investigation.  Article 14 provides guidelines when calculating the amount of a 
countervailable subsidy in terms of the benefit to the recipient.  Article 19, by its terms, is limited 
only to the "Imposition and Collection of Countervailing Duties."   
 
44. Viewing Article 19 of the SCM Agreement in light of this context, it is evident that Article 19 
is concerned with the primarily ministerial function of imposing and collecting CVDs once those 
duties are calculated and determined in accordan ce with the obligations imposed by the preceding 
articles of the SCM Agreement.  This context shows that the phrase in Article 19.3 – which 
requires that a Member levy CVD duties in "the appropriate amounts in each case" is not a general rule – unconnected to the nondiscrimination context of 19.3 – that applies to all aspects of the 
CVD duty.      
 45.   There is one provision in the WTO agr eement that disciplines the concurrent use of 
antidumping and countervailing duties on the same product, and it is not Article 19.3 of the SCM 
Agreement.  Rather, it is Article VI:5 of the GA TT 1994, and that article only applies to export 
subsidies.  As the only provision linking the remedy in an AD proceeding with the remedy in a CVD 
proceeding, Article VI:5 reveals that Members considered when it would be appropriate to 
constrain Members' resort to the concurrent app lication of AD and CVD remedies, and agreed that 
it would be appropriate only where imposing AD duties together with CVDs would compensate for 
"the same situation of dumping and export subsidization."   
 
46. Further, Article 15 of the Tokyo Round Subsidies Code, specifically prohibiting the concurrent application of AD and CVD measures to certain co untries, and the absence of a similar provision in 
the WTO agreements, provides additional evidence  that the WTO Agreements do not concern the 
concurrent imposition of AD and CVD measures, other than in the circumstances of export subsidization expressly addressed by Article VI:5 of the GATT 1994.   
 
47. China's legal argument under Article 19.3 relies entirely on the understanding of that provision expressed by the Appellate Body in its report in DS379.  However, a WTO panel is not 
bound to follow the reasoning set forth in any adop ted panel or Appellate Body report.  The rights 
and obligations of the Members flow, not from ad option by the DSB of panel or Appellate Body 
reports, but from the text of th e covered agreements. The Appellate Body itself has stated that its 
reports are not binding on panels.     
 
48. In DS379, the Appellate Body disagreed with the legal interpretation set out by the panel and reached certain findings with respect to Articl e 19.3 of the SCM Agreement.  The United States 
respectfully disagrees with these Appellate Body findings.  In particular, we consider that the 
Appellate Body in DS379 erred in its interpretation of Article 19.3 and consider that the interpretation set out above is a correct understanding of Article 19.3 pursuant to customary rules of interpretation.  Notably, China did not argue for the interpretation of Article 19.3 that the 
Appellate Body in DS379 adopted.  In fact, China largely based it claims on Article 19.4.   
 49. The Appellate Body's reasoning in DS379, and its consequent assigning of an indeterminate 
and subjective meaning to the phrase "in the appropriate amounts", is problematic in several 
ways.  First, despite the fact that Article 19 of the SCM Agreement is entitled "Imposition and Collection of Countervailing Duties," the Appellate Body rejected an interpretation of Article 19 of 
the SCM Agreement as concerned with the "[i]mposition and [c]ollection" of countervailing duties.  
Instead, the Appellate Body considered that Arti cle 19 of the SCM Agreement also relates to the 
existence or calculation of countervailing duties.   That understanding does not derive from the text.     
 WT/DS449/R/Add.1 
 
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  50. Second, contrary to other panel findings regarding the context surrounding the Article 19.3 
text, the Appellate Body relied heavily on the non-binding "lesser duty" provision of Article 19.2, which expresses that it would be "desirable" if a "duty be less than the total amount of the subsidy i f  s u c h  l e s s e r  d u t y  w o u l d  b e  a d e q u a t e  t o  r e m o v e  t h e  i n j u r y  t o  t h e  d o m e s t i c  i n d u s t r y . "    T h e  
Appellate Body used the non-mandatory lesser duty concept embodied in Article 19.2 as context 
for informing its interpretation of Article 19.3, which is a binding obligation.   However, the permissive nature of Article 19.2 does not suppo rt a reading that the mandatory requirement in 
19.3 to levy CVD duties "in the appropriate amounts in each case" was intended to be a general 
obligation regarding all aspects of a CVD duty.    51. Third, the Appellate Body ob served that the Panel's interpretation of "appropriate" amount 
under Article 19.3 of the SCM Agreement, based on Article 19.4 of the SCM Agreement, would 
render Article 19.3 redundant.   But this is incorrect.  Article 19.4 of the SCM Agreement requires that CVDs not exceed the amount of subsidization found to exist; Article 19.4 does not provide 
instructions on how this obligation applies to specific exporters.  Article 19.3 specifies that 
Members must apply CVDs on a non-discriminatory basis, and "in the appropriate amounts", for all sources found to be subsidized and causing injury.  These are distinct obligations different from 
the obligation established in Article 19.4. 
 52. Fourth, in reaching its findings in DS379, the Appellate Body did not identify any limiting 
principle to provide some bounds for its interpretation of the term "in the appropriate amounts".  
Rather than clarify the meaning of "the approp riate amounts," the Appellate Body infused that 
term with an indeterminate, subjective meaning reliant upon how it interpreted provisions of covered agreements other than the SCM Agreemen t, which could have unknown or unintended 
consequences.  One consequence of the Appellate Body report in DS379 is that an exporting 
Member, contrary to other situations, need not demonstrate that CVDs duties are not levied in appropriate amounts in each case in the case of simultaneous AD and CVD investigations.  
Instead, under the Appellate Body's rationale, the burden would appear to fall on the importing 
Member to prove that CVDs are levied in the appropriate amounts in each case, regardless of whether the exporting Member presented evidence to indicate otherwise.    
53. Fifth, the Appellate Body in DS379 presumed that domestic subsidies automatically lower 
export prices to some degree, but such a presum ption is speculative.  This Panel should not 
assume the same findings of the panel in DS379 but rather should make its own objective 
assessment.  Further, neither the Panel nor the Appellate Body in DS379, in considering the 
impact of domestic subsidies upon export prices, recognized that the form of the subsidy is important because some domestic subsidies give domestic producers a greater incentive to 
increase production than others.  Nor did the Ap pellate Body in DS379 consider that, even if all 
producers in an NME country do respond to domestic subsidies by increasing production, it is by no means certain that this increase will result in lower export prices.  If the world market price is going up, it is not realistic to assume that an NME producer that receives a domestic subsidy 
automatically will reduce its export prices by the full amount of the subsidy 
 54. Finally, even where the producer or producers in question supplies a substantial share of the 
world market, so that the additional production will likely drive down prices in that market, this will 
take time and will not occur if other producers in the market reduce production to avoid a price war.  Market forces determine prices, and as a result, the Appellate Body's pronouncements in 
DS379 on the relationship of domestic subsidies to export prices are speculative. 
 55. For all of these reasons, the Panel should reject China's legal arguments and find that the United States did not act inconsistently with Article 19.3 in any of the 31 challenged sets of 
determinations.  
 VII. THE UNITED STATES ACTED CONSISTE NTLY WITH ARTICLES 10 AND 32.1 OF THE 
SCM AGREEMENT 
56. China argues that, because the United States  acted inconsistently with Article 19.3 of the 
SCM Agreement, it has also acted inconsistently with Articles 10 and 32.1 of the SCM Agreement.  
China provides no other basis for its claims und er Articles 10 and 32.1 of the SCM Agreement.  
Because China's claims under Article 19.3 of the SCM Agreement fail, its consequential claims under Articles 10 and 32.1 of the SCM Agreement must also fail.    WT/DS449/R/Add.1 
 
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  Executive Summary of the Opening Statement of the United States  
at the First Substantive Meeting of the Panel 
1. It may be useful to begin by taking a step back and considering why are we here?  The 
provisions of Article X:1 and X:2 are directed to the publication of trade regulations to provide 
notice and transparency to traders.  China canno t seriously contend that the U.S. CVD regime, and 
its application to China, has suffered from a lack of transparency.  Similarly, the provisions of Article X:3(b) are directed to ensuring that Members set up an appropriate structure so that 
tribunals or procedures may review administrative action and that administrative agencies will 
then implement those decisions.  And again, China cannot seriously contend that the United States has failed to set up such a structure for review or that the U.S. Department of Commerce is not bound by or does not implement such review decisions.   
 
2. In relation to China's claim under Articl e 19.3 of the SCM Agreement, you may also be 
asking yourself why we are here.  As noted, th e U.S. Congress has acted already to require the 
Department of Commerce to investigate the extent of any so-called double remedy and to adjust 
the amount of antidumping duty imposed if nece ssary.  Therefore, the U.S. argument in this 
dispute is not directed to changing the U.S. approa ch to this issue in the future.  But there are two 
reasons we bring this issue of interpretation to the Panel.   
 3. First, we consider the Appellate Body's approa ch in interpretation to be erroneous, and the 
more one reads its rationale the less appropriate its interpretation of Article 19.3 appears.  The 
Appellate Body report starts with the identificati on of a supposed problem and then seeks to find 
an interpretive solution to that problem.  But this interpretive approach has it backwards: if the provision claimed to be breached is properly interpreted and then not found to be applicable to the 
situation the complaining party has brought forward, there is no "problem" under the covered 
agreements.  Second, the Appellate Body's readin g of the phrase "in the appropriate amounts" 
gives a meaning to that phrase which is not connected to its context in Article 19 or the rules for 
determining "appropriate amounts" in the SCM Agreement  
 4. Both sets of claims raised by China are flawed  and should be rejected.  In this statement we 
proceed to further detail some of those many flaws. 
 
I. CHINA HAS CONFLATED THE LEGAL REQU IREMENTS AND CONCEPTS OF DOMESTIC 
LAW WITH THE REQUIREM ENTS OF ARTICLE X 
 
5. In this dispute, China has failed to provide a prima facie  case that the GPX legislation is 
inconsistent with a plain reading of Articles X:1 an d X:2, and that the U.S. actions with regard to 
the GPX V  opinion is inconsistent with a plain reading of Article X:3(b).   
 6. As the United States will explain further below, the GPX legislation did not change or 
otherwise affect Commerce's existing approach of applying the U.S. CVD law to China.  
Specifically, the orders for the CVD proceedings listed in Appendix A of China's panel request have 
not been changed or otherwise affected by the GPX legislation.  The law maintains the status quo  
for these orders. 
 
II. CHINA'S CLAIMS UNDER ARTICLE X:1 OF THE GATT 1994 ARE WITHOUT  MERIT 
7. We will first address China's claims under Article X:1.  China's claims depend on reading 
words into Article X:1 that simply are not there, and these claims thus are without merit.  
Article X:1 imposes two procedural requirements for the publication of certain measures that have been "made effective."  The first is that the meas ure be "promptly published." The second is that 
the measure be published in such a "manner as to enable governments and traders to become 
acquainted" with it.  China has not demonstrated that the U.S. publication of the GPX legislation 
was inconsistent with these obligations.  Article X:1 does not address how a measure should be applied following its publication.  In fact and contrary to China's assertions, Article X:1 itself 
recognizes that measures may affect events that have occurred prior to the publication of a 
measure.    WT/DS449/R/Add.1 
 
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  III. CHINA'S CLAIM UNDER ARTICLE X:2 OF THE GATT 1994 IS WITHOUT MERIT 
 8. Next, we will address China's claim that the GPX legislation is inconsistent with Article X:2.  
China's claim fails for the following reasons.  First, China has failed to prove that the GPX 
legislation is covered by Article X:2.  Second, even if found to be within the scope of Article X:2, 
China has failed to prove that the GPX legislation is somehow inconsistent with the obligation. 
 
9. In order to fall within the scope of Article X:2, a measure of general application must be of a 
type that either (1) effects an advance in a rate of duty or other charge on imports under an established and uniform practice, or (2) imposes a new or more burdensome  requirement, 
restriction or prohibition on imports.  China has failed to explain how the GPX legislation falls 
under either type.  While the burden is on China to make a prima facie  case, the United States 
notes that CVD laws provide the framework for determining a CVD duty.  The law itself does not prescribe any particular duty rate, let alone effect an "advance" in such a rate, nor does it impose 
a requirement, restriction or prohibition on imports.  Imports are affected once the separate and 
distinct legal process of an investigation is completed.  
10. The GPX legislation does not effect an advance in a rate of duty.  Consistent with the plain 
text of Article X:2, the panel in EC – IT Products  found that a covered measure must change an 
existing approach in order to bring about an incr ease in a rate of duty.  In this dispute, the GPX 
legislation has not changed Commerce's existing approach to apply the U.S. CVD law to China.  
Further, the GPX legislation has not changed any part of the CVD proceedings and orders listed in 
Appendix A of China's panel request.  The CVD rates established through those proceedings remain the same as previous to the enactment of the GPX legislation. 
 
11. Similarly, the GPX legislation does not impose a new or more burdensome requirement, 
restriction, or prohibition on imports.  The term "new" is defined as "not existing before" or 
"existing for the first time."  The term "more" is  defined as "in a greater degree" or "to a greater 
extent."  Thus, in order to fall within the scope of Article X:2, imports from China must face a requirement, restriction or prohibition that did not previously exist prior to the enactment of the GPX legislation, or face a burden that is  of a greater degree than prior to the  GPX legislation.   
 
12. The GPX legislation imposes neither such condition.  Prior to the enactment of the GPX 
legislation, imports from China were already subject to the U.S. CVD law.  Thus, the law did not 
impose any condition that had not existed before.  Further, the GPX legislation did not impose a 
greater degree of burden on such imports.  None  of the CVD proceedings cited in China's panel 
request have been disturbed by the GPX legislation.  Rather, the law maintained the status quo  for 
Commerce's existing approach and the existing CVD orders.  Based on these facts, China has 
failed to prove that the GPX legislation is within the scope of Article X:2.  
  IV. CHINA HAS NO BASIS FOR A CLAIM UNDER ARTICLE X:3(b) OF THE GATT 1994 
 
13. Next, we will move on to China's claims under Article X:3(b).  China has alleged that the U.S. failure to implement a judicial opinion that was pending on appeal, known as the GPX V  
opinion, is inconsistent with Article X:3(b).  Such a claim fails as a matter of fact and law.   
 14. As a factual matter, China is incorrect in its assertion that the GPX V  opinion was a final 
decision that was not subject to appeal and had legal effect under the U.S. judicial system.  
Specifically, China fails to account for the fact that a "mandate" is required to finalize a U.S. appellate court opinion.  The U.S. Federal Circuit itself has stated that a mandate was not issued for the GPX V  opinion because the case was still under appeal. Therefore, GPX V  was not a final 
decision that could direct the court of first instance.   
 15. Further, because the mandate had not issued, the court of first instance could not 
implement the GPX V  opinion as a matter of U.S. law.  Thus, contrary to China's assertion that the 
appeal of the GPX V  opinion was a mere technicality, the issuance of a mandate in the U.S. judicial 
system is crucial to finalizing what is, up until that point, a non-binding opinion.  Prior to the 
issuance of the mandate, such an opinion is not within the scope of Article X:3. 
 16. The United States notes that even if the GPX V  opinion could be considered a "decision" 
under Article X:3(b), the requirements of the treaty article still would not be applicable to GPX V.  
Article X:3(b) expressly recognizes that an administering authority need not implement a judicial WT/DS449/R/Add.1 
 
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  decision that is under appeal.  Specifically, it states that judicial decisions must be implemented 
"unless  an appeal is lodged with a court or tribunal of superior jurisdiction within a prescribed time 
period." In GPX V , the United States filed a timely petition for rehearing before the U.S. Federal 
Circuit sitting en banc .  In other words, the proceedings had not concluded and the United States 
had not exhausted its rights to appeal.  In fact, the GPX litigation is still on-going.   
 17. As a matter of law, China's claim under Article X:3(b) is not based on the text of the 
relevant WTO provision, but instead on other vague or irrelevant legal concepts.  China has no 
basis for such an interpretation, as it must prove its allegations based on the specific language of the specific obligations of Article X:3(b).    
18. As an example, China argues that "the inte rvention in a pending judicial proceeding by the 
legislative branch of the U.S. government" is incompatible with Article X:3(b).  China's claim has no support in the text of the article.  Article X:3(b) does not dictate the relationship between a 
domestic legislature and the judicial branch.  Nor do es it not prohibit the timing of when a piece of 
legislation may be enacted.  Article X:3(b)  does not prohibit the enactment of the GPX legislation 
because of pending domestic litigation.  As the GPX litigation has been ongoing for the past five 
years, China's interpretation of Article X:3(b) would paralyze the ability of legislatures to enact 
laws and is unsupported by the plain text of the obligation.    V. CHINA'S CLAIM THAT THE UNITED STATES ACTED INCONSISTENTLY WITH 
ARTICLE 19.3 OF THE SCM AGREEMENT MUST BE REJECTED 
 19. China has advanced claims with respect to 31 sets of determinations.  Yet, at each step in 
this case – in particular its panel request, and, most importantly, in its first written submission – 
China has failed to present and substantiate its claims through a discussion of the facts, and arguments.  Despite advancing claims that dozens  of Commerce's findings were inconsistent with 
the SCM Agreement, China barely discusses Commerce's determinations at all.   
 20. China declined to include in its first written submission virtually any discussion of the facts at issue in the determinations it challenges here.  Accordingly, China has failed to establish a prima 
facie case.  China's lackluster effort in making its legal argument raises an eyebrow.  Rather than 
engage in a textual or contextual analysis of the obligations imposed by Article 19.3 of the SCM Agreement, it relies exclusively on statemen ts made in the Appellate Body report in United States 
— Definitive Anti-Dumping and Countervailing Duties on Certain Products from China (DS379).     
 21. Now, aside from the defects in China's approach, the United States would like to take this 
opportunity to make a few points about the Appe l l a t e  B o d y  r e p o r t  i n  D S 3 7 9  a n d  a l s o  t h e  U . S .  
interpretation of Article 19.3 of the SCM Agreement.  First, this Panel is not bound by the Appellate 
Body report in DS379, particularly as the Appellate Body erred in its interpretation of Article 19.3.  
Second, with respect to the interpretation of Ar ticle 19.3 of the SCM Agreement, the Panel is to 
undertake its own interpretations of that term by applying the customary rules of interpretation of 
public international law.    
22. When that text is analyzed pursuant to cust omary rules of interpretation, it becomes evident 
that 19.3 of the SCM Agreement is first and foremo st a non-discrimination provision to ensure that 
the amount of countervailing duties levied corresponds to the amount of subsidies identified.  
Third, the context provided by the SCM Agreement and its structure support this understanding of 
Article 19.3.  Viewing Article 19 of the SCM Agreemen t in light of this context, it is evident that 
Article 19 is concerned with the primarily ministerial function of imposing and collecting CVDs once those duties are calculated and determined in accordance with the obligations imposed by the 
preceding articles of the SCM Agreement.   
 23. Therefore, because China has not alleged that Commerce's imposition or collection of CVDs 
was discriminatory, or did not correspond to the am ount of subsidies identified in any of the 31 
sets of determinations at issue in this dispute, China's claim that the United States acted inconsistently with Article 19.3 should be rejected. 
24. Lastly, China contends that, because the United States acted inconsistently with Article 19.3 
of the SCM Agreement, it also acted inconsis tently with Articles 10 and 32.1 of the SCM 
Agreement.  Because China's claims under Article 19.3 of the SCM Agreement fail, its consequential claims under Articles 10 and 32.1 of the SCM Agreement also must fail.WT/DS449/R/Add.1 
 
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  Executive Summary of the Second Written Submission of the United States of America 
I. INTRODUCTION 1. China has made valiant efforts to make simple facts opaque and straightforward WTO 
obligations convoluted.  But the relevant facts and law are simple and straightforward in this 
dispute.  These facts establish that China's claims under Articles X:1, X:2 and X:3(b) of the 
GATT 1994 are without merit.  Nonetheless, China a ttempts to explain away these facts by offering 
interpretations of U.S. law that have not yet been settled by the U.S. domestic courts and 
interpretation of Articles X:1, X:2 and X:3(b) that are unsupported by the plain text of the 
obligations.  As set out in this submission, China's arguments do not withstand scrutiny. 
2. Regarding its claim under Article 19.3 of the SCM Agreement, China's failure to make its 
prima facie  case persists.  China continues to misinterpret Article 19.3 of the SCM Agreement and 
simply has not addressed the U.S. interpretation or explained how it does not comport with 
customary rules of interpretation of public international law.  Contrary to China's assertions, Article 19.3 of the SCM Agreement does not es tablish any requirement that administering 
authorities investigate and avoid overlapping remedies.  China's legal arguments, which rely 
exclusively on the erroneous reasoning of the Appellate Body in DS379, should therefore be 
rejected. 
II. CHINA'S CLAIM UNDER ARTICLE X:1 OF THE GATT 1994 IS WITHOUT MERIT  
3. The substance of China's claim under Article X:1 of the GATT 1994 is primarily premised on 
the purported connection between the term "made effective" in Article X:1 and the term "effective date" in Section 1(b) of the GPX legislation. China asserts that the term "promptly" under 
Article X:1 must be evaluated in relation to the "effective date" in Section 1(b) rather than the 
date when the law was adopted.  
4. However, the United States explained in its First Written Submission and during the first 
substantive Panel meeting that the ordinary meanin g of "made effective" confirms that the clause 
limits the application of Article X:1 of the GATT 1994 to measures that have been adopted or brought into operation. Otherwise, without the exis tence of the law, there is nothing to apply or 
make effective.  China's approach also finds no support in the EC – IT Products panel report.  In 
short, Article X:1 requires that measures be published promptly upon their adoption.  With respect to the measure at issue in this dispute, the United States did just that:  the GPX legislation was published as soon as the law was enacted or brought into existence. As such, China has no basis 
for any claim that the United States acted inconsistently with Article X:1 of the GATT 1994.  
III. CHINA'S CLAIM UNDER ARTICLE X:2 OF THE GATT 1994 IS WITHOUT MERIT 5. China's claim under Article X:2 of the GATT 1994 fails for a simple reason: the GPX 
legislation was not enforced until its publication on March 13, 2012, and there were no 
administrative actions by Commerce or judicial actions by the courts on March 12, or any other prior date, to the contrary.  This fa ct is fatal to China's claim.   
6. Faced with that simple and compelling fact, China attempts to significantly complicate the 
facts and the law relating to its Article X:2 claim.  But even on China's erroneous approach, its claim fails.  China has made clear that its challenge to the GPX legislation is limited; it is based on 
that portion of the statute that is applicable to 27 proceedings that were initiated prior to the date 
of enactment of the legislation.  China cannot establish that the challenged legislation falls within 
the scope of or breaches Article X:2. 
7. The plain text of Article X:2 requires a determination of whether there has been an 
applicable change – an advance, or something new or more burdensome – "on imports."  Thus, 
the terms "advance" and "new" or "more burdenso me" must be evaluated in the context of the 
"imports" at issue.  In this dispute, China has clarified that its challenge to Section 1 of the GPX 
legislation is only in respect of the 27 proceedings initiated prior to the date of enactment.  Thus, 
the only "imports" at issue are those subject to the 27 CVD investigations listed by China in its panel request that resulted in a CVD order.  Even if China is able to show that the GPX legislation WT/DS449/R/Add.1 
 
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  falls within one of the types of measures listed in Article X:2, it cannot show that there has been 
any "new or more burdensome" change with respect to the "imports" at issue in this dispute. 
8. In making its arguments under Article X:2, China is asking the Panel to accept China's 
unsupported proposition that the GPX V  opinion was "governing and controlling" law. Further, 
China argues that the U.S. Federal Circuit found in Georgetown Steel that Congress must amend 
the U.S. CVD law in order for it to be applied to NME countries and that such a "finding" also constitutes "governing and controlling" law.  Such an assertion regarding the findings of 
Georgetown Steel is not accurate.  China's Article X:2 argument is based entirely on the false 
premise that the GPX V  opinion had been finalized, not appealed by the United States, and is 
legally binding on and was implemented by Commerce.  As will be explained further below, China's claims are baseless for two reasons: (1) its premise is false, and (2) China cannot admit on one 
hand in its Article X:3(b) arguments that Commerce did not implement the GPX V  opinion and on 
the other hand argue in its Article X:2 claim that the GPX V  opinion was implemented.   
9. China treats GPX V  as it were the final word of U.S. law on the issue of whether Commerce 
may apply the U.S. CVD law to China.  As the United States has shown in its response to Question 
72 from the Panel, such an assertion is erroneous. The GPX V  opinion is not a final decision of the 
U.S. Federal Circuit and has no legal effect under U.S. law. As such, Commerce was not obligated 
to implement its findings and, under U.S. law, was prohibited from such implementation. 
10. China's arguments regarding a supposed change in U.S. law are internally inconsistent.  On 
the one hand, China argues in the context of its Article X:3(b) arguments that the United States 
did not implement the GPX V  opinion and that it did not "govern the practice of" Commerce in 
applying the U.S. CVD law.  On the other hand, for the purpose of its Article X:2 claim, China 
treats the non-binding opinion as having already changed Commerce's treatment of the imports subject to the 27 challenged proceedings (i.e., th at it governed Commerce's approach), and then 
proceeds to argue that the GPX legislation amounted to a retroactive reversal of that change.  
China cannot have it both ways. 
11. In the context of its Article X:3(b) claim, China recognizes that the non-final GPX V  opinion 
was not implemented by Commerce and did not gove rn its approach. This fact is the basis of 
China's challenge of Section 1(b) of the GPX legislation under Article X:3(b) of the GATT 1994.  
Specifically, Part VI(D) of China's First Written Submission discusses in detail its argument that the "United States has Fail[ed] to Ensure that the Federal Circuit's Decision in GPX V  was 
'Implemented by ', and 'Governed the Practice of' , the USDOC."  
12. The United States agrees that the non-binding GPX V  opinion was never implemented by 
Commerce and that GPX V  did not govern Commerce's approach to applying the U.S. CVD law.  
The United States has previously explained that Commerce was not required to implement the GPX 
V opinion because it was non-final and Commerce would have violated U.S. law if it did implement 
the opinion. 
13. At the first substantive Panel meeting and in its Response to Panel Questions, China clarified 
that it is not challenging in this dispute whether Commerce's actions were ultra vires .  China has 
stated that Article X:2 does not provide for the evaluation of alleged ultra vires  actions.  Further, 
in paragraph 120 of its Response to Panel Questions, China states that it "does not consider it 
directly relevant under Article X:2 whether a particular practice or requirement followed by 
domestic authorities was consistent with municipal law." 
14. Despite these clear statements from China, in paragraph 121 of its Response to Panel 
Questions, China immediately contradicts itself by stating that Commerce's actions must be 
evaluated on whether it was "provided for under municipal law."  In other words, China is asking the Panel to determine whether Commerce's actions were provided for under municipal law, or if 
Commerce acted in a manner that was not provided for under municipal law.  Such a claim is the 
definition of an ultra vires  challenge.  Again, China's arguments are contradictory and 
unsustainable.  China cannot admit that Article X:2 does not provide for an evaluation of an alleged ultra vires  action while at the same time asking the Panel to make an ultra vires 
determination under Article X:2. WT/DS449/R/Add.1 
 
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  15. Further, and separate from China's legal inconsistencies, as a factual clarification on this 
issue, it should be noted that the U.S. courts  have yet to issue conclusive findings on the 
application of the U.S. CVD laws to NME countries.  The GPX litigation is on-going as to a 
determination of the constitutionality of the GPX legislation and resolution of various 
methodological issues.  Further, parallel litigation  is on-going on the application of the U.S. CVD 
law to NME countries.  China cannot treat GPX V , a non-binding opinion, as "governing and 
controlling" law given the series of decisions that have been issued after the opinion in the on-
going litigation.  Nor can China claim that the opinions of GPX V  constitute a definitive 
interpretation of the implications and reach of Georgetown Steel , particularly when the United 
States and domestic parties successfully petitioned the Federal Circuit for rehearing of the GPX V  
opinion.  Because the petition was granted, the United States did not have an opportunity to seek 
further appeal rights. 
16. China also claims that Section 1 of the GPX legislation falls within the scope of Article X:2 
because it effected "an advance in a rate of duty  or other charge on imports under an established 
and uniform practice."  China argues that the law "increases the countervailing duty rate from no 
countervailing duty to whatever countervailing duty  rate the USDOC determined in respect of each 
such product."  The United States explained ab ove that China's statement is erroneous.  The GPX 
legislation in no way increased the rate of duties or other charge for the imports subject to the 27 
proceedings challenged by China. 
17. Further, China has failed to prove that any purported advance was with respect to "an 
established and uniform practice."  That term indicates that there must have been an "an 
established and uniform practice" prior to the advance in a rate of duty or other charge on imports 
and also "an established and uniform practice" after the advance.  Otherwise, without a "practice" 
before the purported advance, there would be no basis from which to evaluate the change.   
18. Although China has used the terms "P.L. 112-99," "Section 1 of P.L. 112-99" and 
"Section 1(b) of P.L. 112-99" interchangeably in its Article X arguments, at this stage of the 
proceeding China has settled on its position as to what it is challenging in this dispute.  China's 
claim under Article X:2 relates to the part of Section 1(b)(1) that applies to proceedings that had 
already been initiated prior to the enactment of the GPX legislation, and China's claims of breach 
are limited to this set of proceedings.  This iden tifiable number of proceedings and subject imports 
does not fall within the ordinary meaning of the term "of general application" under Article X:2 of 
the GATT 1994. 
19. As evident from China's panel request, subm issions, and statements, these 27 proceedings 
were known as of the date of enactment of the GPX legislation, as were the products subject to 
those proceedings.  In relation to this limited and known set of imports and proceedings, 
Section 1(b)(1) is not a law "of general application" under the ordinary meaning of the term as used in Article X:2. 
20. China's only claim under Article X:2 is with respect to the portion of Section 1(b) that 
applies to proceedings that had already been  initiated prior to the enactment of the GPX 
legislation.  By identifying a determinate number of proceedings and subject imports, the challenged aspect of the measure is not "of general application."  As such, the challenged section 
of the GPX legislation is not within the scope of Article X:2 of the GATT 1994. 
21. Contrary to China's assertion, the challenged section of the GPX legislation does not pertain 
to the "rate" of CVD duties for the 27 proceedings at  issue in this dispute.  In its response to the 
Panel's Questions, China has continued to ignore the ordinary meaning of the term "rate," which is 
defined as "[t]he total quantity, amount, or sum of something, esp. as a basis for calculation."  
The GPX legislation is a statutory provision that makes clear the scope of the application of the 
U.S. CVD laws.  It does not pertain to the total qu antity, amount or sum of any particular CVD rate 
and is distinguishable from measures such as tariff classifications that do pertain to the "rate" of a duty.   
22. China also has failed to show that the challenged section of the GPX legislation pertains to a 
requirement or restriction on imports subject to the 27 proceedings. China argues that Section 1 of 
the GPX
 legislation pertains to a "requirement … on imports" in that once a CVD investigation is 
initiated, "importers are required to participate in the countervailing duty investigation or face the WT/DS449/R/Add.1 
 
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  imposition of a countervailing duty determined on the basis of the facts available." Such a 
statement is false for the challenged imports. 
23. First, a CVD proceeding is not a "requirement " on imports.  That is, it does not impose 
requirements or conditions on the importation of goods.  Second, Section 1 of the GPX legislation 
is not a "restriction" on the imports subject to the 27 proceedings.  China has argued that U.S. 
CVD laws like the GPX legislation impose a "limiting condition" on imports.  CVD laws do not 
restrict or limit imports, but establish the framework under which any alleged subsidies might be 
investigated and any resulting countervailing duties might be imposed.  The laws themselves have 
no effect on imports.   
24. China asserts that the United States has neve r provided an interpretation of Article X:2.  
This is incorrect.  The United States has also been clear on what Article X:2 is not.  Article X:2 
does not address the issue of the application of measures to events or actions that predate its 
enactment.  Thus, any challenge of whether a meas ure may affect such events or actions must be 
based on a treaty article imposing a substantive obligation.  Just as Article X:2 does not address 
the content or scope of a measure of general application, notably, neither do Article X:1 or 
Article X:3(a).   
25. The Appellate Body has observed that Articl e X does not address the "substantive content" 
of measures. This observation that Article X does not discipline the content or scope of measures is 
reinforced by the very title of Article X, "Public ation and Administration of Trade Regulations."  
China cannot impute into such obligations requirements on the scope and content of covered measures.  In other words, Article X:2 cannot be interpreted as a substantive obligation to prohibit 
so-called "retroactive effect" for all measures of  general application, as proposed by China.  
26. For measures that do fall within its scope, Article X:2 links transparency and administration 
of a measure to ensure that Members would not enforce a secret measure on imports effecting an 
a d v a n c e  i n  a  r a t e  o f  d u t y  o r  i m p o s i n g  a  n e w  o r  more burdensome requirement, restriction, or 
prohibition.  For those changes, Article X:2 requires a Member to publish the measure in an official publication prior to its enforcement.   
27. The Appellate Body has observed that the fundamental importance of Article X:2 is to 
"promot[e] full disclosure of governmental acts affecting Members and private persons and enterprises, whether of domestic or foreign nati onality."  China and other interested parties had 
full knowledge of the GPX legislation upon enactment and prior to its enforcement; Congressional 
consideration of the legislation was also widely publicized.  Furthermore, the U.S. legal system 
does not lack for disclosure.  Article X:2 is silent on matters relating to the substance of a measure.  China argues that the Panel should read into this silence an implied absolute prohibition 
on so-called "retroactivity."  However, Article X:2 cannot be interpreted to contain such a 
prohibition.   
28. In summary, Article X:2 does not address the issue of retroactivity.  Previous Appellate Body 
and panel proceedings have looked to an article imposing a substantive obligation in order to 
evaluate whether a measure may affect events or actions prior to the enactment of the measure. Such an approach is consistent with the plain text of Article X:2 of the GATT 1994.  China has not made an allegation that Section 1 of the GPX legislation has breached a substantive obligation of 
the covered agreements, and its claim under Article X:2 is baseless. 
IV. CHINA'S CLAIMS UNDER ARTICLE X:3(B) OF THE GATT 1994 ARE UNSUPPORTED 
BY THE PLAIN TEXT OF THE OBLIGATION 
29. China now appears to raise a broader and potentially new claim, seemingly asking the Panel 
to find that Article X:3(b) imposes restrictions on national legislatures to define the scope of duly enacted legislation if there is pending or on-going litigation that may interpret a related provision 
of law.  Nothing in the text of the GATT 1994 supports China's argument. 
30. China's reformulated claim under Article X:3(b) is based exclusively on the actions of "the 
national legislature."  Article X:3(b), however, does not speak to, and therefore does not impose, any limitations on the ability of a national legislature to enact legislation or how that legislation 
may be applied. Article X:3(b) requires Members to establish and maintain a "judicial, arbitral or WT/DS449/R/Add.1 
 
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  administrative tribunal[ ] or procedure[ ] for the purpose … of the prompt review and correction of 
administrative action relating to customs matters."  No additional requirements are imposed for this review and correction mechanism aside from the following: 
The tribunal or procedures must be "independent of the agencies entrusted with 
administrative enforcement"; and  
The "decisions" issued from the tribunal or pr ocedures "shall be implemented by, and shall 
govern the practice of," the administering agency unless certain criteria are met. 
31. Outside of these two requirements, Article X:3(b) does not dictate how a tribunal or 
procedures must review and correct an administrati ve action relating to customs matters.  Despite 
the plain text of Article X:3(b), China is asking the Panel to decide the merits of the on-going GPX 
litigation by making a definitive conclusion on unsettled U.S. law (i.e., that the United States is 
prohibited, as a matter of U.S. law, from applying the U.S. CVD law to China).  Further, China is 
asking the Panel to find that U.S. courts are prohibited from ever applying newly enacted laws to pending court cases, even though such application is a fundamental principle of U.S. law. 
32. China's argument, however, is unsupported by the principles of treaty interpretation. 
Applying those principles here, where the plain text  of Article X:3(b) does not impose a limitation 
on national legislatures, China cannot impute one.     
33. The United States also notes that such an interpretation would result in unreasonable and 
extreme outcomes.  For example, a national legislature may mistakenly set a tariff rate for certain imports at 100 percent as a typographical error, when the rate should have been 10 percent.  
When 100 percent tariffs are collected by the cu stoms authority, importers immediately challenge 
the over collection in domestic courts.  Under China's interpretation of Article X:3(b), the court 
could not apply a legislative clarification or change  of the rate to its intended 10 percent rate 
because the case was pending in domestic courts.  However, for those importers that waited until 
after the legislative clarification or change, the courts could apply the lower rate.  Article X:3(b) 
does not require such an outcome nor did it restrict Congress from enacting the GPX legislation.  
As such, China's claim under Article X:3(b) must fail. 
34. China argues that the actions of the U.S. Fede ral Circuit in following established U.S. law to 
apply the GPX legislation to a case that was pending before the court was a violation of 
Article X:3(b).  Specifically China states that "[ a]n intervention by the national legislature to 
change the applicable law retroactively and thereby direct the outcome of an appeal is not among 
the exceptions set forth in Article X:3(b)."  Such an assertion has ramifications far beyond the 
judicial proceeding raised by China in this dispute in its Panel Request ( GPX V ).  China's claim now 
suggests that the legal system of Members with re spect to the review of customs matters would be 
flawed if a Member's legislature could carry out their role and enact laws while litigation is 
pending.  But nowhere have Members agreed to th is, and we are doubtful WTO Members with their 
disparate legal systems could abide by such a radical intrusion into the relationship between their 
legislatures and judiciaries (or other review mechanisms).   
35. The United States has established a judicial system that allows for the full possibility of 
independent review and correction of every agency  entrusted with administrative enforcement of 
customs matters.  The GPX litigation amply demonstrates that independence, and the numerous 
implementing actions by Commerce in relation to antidumping and countervailing duty litigation 
amply demonstrates that final court decisions ar e implemented by and govern the practice of 
Commerce.  As such, China has failed to prove that the United States has acted inconsistently with 
Article X:3(b). 
V. CHINA HAS NOT ESTABLISHED EITHER A FACTUAL BASIS OR A LEGAL BASIS FOR 
ITS CLAIM UNDER ARTICLE 19.3 OF THE SCM AGREEMENT 
36. China continues to rely on unsupported assertions and other shortcuts instead of meeting its 
burden to make its prima facie  case.  Although this approach may be expedient for China, it is not 
sufficient to establish a prima facie  case. WT/DS449/R/Add.1 
 
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  37. Instead of attempting to make its case through a careful examination and explication of 
each challenged determination, China resorted to a shortcut.  China has argued that it need not do 
more to establish a breach under Article 19.3 of the SCM Agreement than to point to Commerce's purported lack of legal authority under U.S. law to account for the potential of overlapping 
remedies when countervailing duties are imposed concurrently with antidumping duties calculated 
under the alternative methodology for imports from NME countries.  
38. Exhibits USA-99 and USA-100 demonstrate China's failure to establish that Commerce 
lacked authority to address overlapping remedies.  The United States has explained that in these 
determinations by Commerce it never stated that it lacked authority under U.S. law to address the potential of overlapping remedies arising from the concurrent application of countervailing and antidumping duties to imports from NME countries .  If that were the case, Commerce would have 
simply responded to China and Chinese respondents by invoking that lack of authority.  Instead, 
Commerce engaged in a full response to the evidence and arguments relating to allegedly overlapping remedies that China and Chinese respondents presented.  While China introduced 
submitted Exhibits CHI-27 through CHI-78 with its answers to questions, China does not point to 
or discuss the relevant portions of these determinations (with two exceptions, discussed below) to attempt to establish that Commerce stated it lacked legal authority.  Thus, these bare exhibits do 
not satisfy China's burden to support its assertions.   
39. China also attempts to address its evidenti ary deficit by citing to an excerpt from the 
Appellate Body report in DS379.  This effort is una vailing.  First, the Appellate Body statement only 
relates to the CVD side of concurrent AD and CV D proceedings, and in fact was not supported by 
the record in DS379.  Further, a statement in a re port in a different dispute does not constitute 
evidence with respect to the proceedings at issue here.  
40. The Appellate Body report in DS379 did not cite any findings in the panel report to support 
the factual statements on which China relies.  Instead, the panel report notes that, in the context 
of the anti-dumping investigations, the United States had rejected China's suggestion that Commerce had made any broad statement as to whether it lacked legal authority.   
41. China has steadfastly avoided any meaningful discussion of the relevant facts of the 
determinations that China claims are inconsistent with U.S. obligations under Article 19.3 of the SCM Agreement.  Rather than present evidence from each of the challenged determinations 
necessary to support its claims under Article 19.3 of the SCM Agreement, China continues to make 
conclusory and generalized allegations as to what Commerce found in those determinations and 
cites almost no evidence from those determinations.   
42. China continues to rely on the Appellate Body report in DS379, which is unpersuasive.  As 
detailed extensively by the United States in its written responses to questions following the first 
Panel meeting, a panel is not bound to follow the reasoning set forth in any adopted panel or Appellate Body report.  As explained above, Chin a has yet to establish that the reasoning of the 
Appellate Body report is persuasive or that its reading of Article 19.3 makes sense under 
customary rules of interpretation.  Nor has China established that the Appellate Body's interpretation would in fact be applicable to the facts in this dispute. 
43. The Appellate Body's reasoning in DS379 is fl awed.   Nowhere does Article 19.3 of the SCM 
Agreement contain an obligation that would require an administering authority to engage in any 
sort of investigative function.  The Appellate Bo dy report in DS379 also fails to recognize that 
Article 19.3 of the SCM Agreement is first and foremost a non-discrimination provision. China has 
done nothing to demonstrate that this reading is flawed in any respect. 
44. China errs when it argues that investigations  are subject to Article 19.3.  China ignores the 
text of the SCM Agreement in conflating investigations and reviews for purposes of assessing its 
claim under Article 19.3.  China commits a similar error when it argues that preliminary 
determinations are subject to Article 19.3.   
45. As noted in the first written submission and the U.S. answers to panel questions, the 
Appellate Body did not benefit from the full ar gumentation of the parties before reaching its 
conclusions in DS379.  For example, the Appellate Body misconstrued Article 19.3 in articulating a 
duty for an authority to engage in an investigative function. The Appellate Body also misconstrued WT/DS449/R/Add.1 
 
- B-44 - 
 
  the findings in US – Countervailing Measures on Certain EC Products.  In particular, the Appellate 
Body interpreted Article VI:3 using Article 19.4 of the SCM agreement as context.  By contrast, the 
Appellate Body in DS379 viewed the  US – Countervailing Measures on Certain EC Products  analysis 
without any context, and drew false parallels as a result.  Nothing in Article 19.3 requires an 
investigating authority to determine or investigate the amount of the subsidy before levying a 
duty.  These arguments were not presented in DS379. 
46. The path the Appellate Body followed to reac h its conclusions departed significantly from the 
arguments made by the parties.  First, in DS379, Article 19.4 of the SCM Agreement was the 
primary focus of the parties in their submissions before the Appellate Body.  Although the Appellate Body in DS379 did address EC – Salmon (Norway)  in its report, its analysis and 
reasoning went far beyond what was argued by the parties.  For instance, the Appellate Body 
relied on Article 19.2 as context to interpret Article 19.3 despite the fact that no party in that 
dispute made such an argument.  It did the same  in relying upon Articles 21.1 and 32.1 of the 
SCM Agreement as context, although no parties raised these arguments before the panel or the 
Appellate Body. 
47. Article 19.3 of the SCM Agreement seeks to  ensure that, after the subsidy amount is 
calculated, the level of CVDs imposed by an administering authority accurately and objectively 
reflects the subsidy amounts calculated for each country and each company investigated under the 
rules of the SCM Agreement.  China has not allege d that Commerce's imposition or collection of 
CVDs was discriminatory or did not correspond to the amount of subsidies identified in any of the sets of determinations at issue in this dispute.  Therefore, China's legal arguments, which rely 
exclusively on the erroneous reasoning of the Appe llate Body in DS379, should be rejected and the 
United States respectfully requests the Panel to find that the United States did not act inconsistently with Article 19.3 in the challenged determinations. 
VI. THE UNITED STATES ACTED CONSISTENT LY WITH ARTICLES 10 AND 32.1 OF THE 
SCM AGREEMENT 
48. As previously noted by the United States, the sole basis for China's claims under Articles 10 
and 32.1 of the SCM Agreement derives from China's contention that the United States acted 
inconsistently with Article 19.3 of the SCM Agreement.  Because China's claims under Article 19.3 of the SCM Agreement fail, its consequential claims under Articles 10 and 32.1 of the SCM 
Agreement must also fail.   
VII. CONCLUSION 
49. For the foregoing reasons, the United States respectfully requests that the Panel reject 
China's claims. 
 WT/DS449/R/Add.1 
 
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  Executive Summary of the Opening Statem ent of the United States of America 
at the Second Substantive Meeting of the Panel 
1. In our oral presentation, the United States will address how China has continued to fail to 
prove its claims under Article X of the GATT 1994 and Article 19.3 of the SCM Agreement, 
addressing certain key legal and factual deficiencies in China’s Second Written Submission.  And 
while we address those issues in some depth, that we do not address other of China’s arguments in this statement does not reflect agreement with China but rather our interest in economizing 
time.  
2. We do wish to summarize briefly where we are.  While China has spent pages upon pages 
spinning forth, to be charitable, a “creative” approach to GATT 1994 Article X, that very creativity should give the Panel pause.  And we ask you to ask yourself, is it really the case that these 
provisions from the GATT 1947 were intended to proh ibit the application of measures touching on 
any events prior to publication and to regulate the constitutional relationship between a Member’s legislature and judiciary?  Can those texts fairly be read to reflect such far-reaching and profound 
limitations on Member’s rights? 
3. To the United States, the answer is no, and this explains why China finds no support in 
previous reports examining claims under these provisions.  As we have explained, Article X is by 
its own terms directed to the transparency and administration of certain measures bearing on 
trade.  With respect to the U.S. measure at issue in this dispute, P.L. 112-99, the United States has amply satisfied those obligations.  Indeed, what is truly astonishing is that China would claim that the U.S. legislation lacks transparency or that  the U.S. courts do not issue decisions that bind 
the U.S. Department of Commerce.  Such propositions are contrary to common sense as well as 
the facts leading to this dispute. 
4. As a result, the United States believes the resolution of China’s claims in this dispute is 
straightforward and requires no mental gymnastics.  First, China’s Article X:1 claim has no merit.  
The United States published the GPX legislation on the same day it was enacted on March 13, 2012, fulfilling the transparency called for in that provision.   
5. Second, China’s Article X:2 claim fails on multiple grounds.  Fundamentally, the claim fails 
because the GPX legislation was not enforced before  the date of its publication; no U.S. entity 
gave any legal effect to that legislation on any day prior to its publication, nor could they have.  The United States has also demonstrated, at leng th, other failings of China’s arguments, including 
that China has not demonstrated that the GPX legislation is a measure of general application with 
respect to its application to previously initiated proceedings, that China has not demonstrated the legislation advances a rate of duty or imposes a restriction or requirement, and that China has not 
demonstrated that the legislation imposes any “advance” in a rate of duty or a “new or more 
burdensome” restriction or requirement.  On this last point, as we will address in more detail in this statement, the fact is that the GPX legislatio n did not change or affect the U.S. Department of 
Commerce’s existing and well-known treatment of the imports subject to the 27 proceedings at 
issue in this dispute.   
6. Third, Article X:3(b) imposes a structural obligation to establish or maintain review 
procedures meeting certain criteria.  The United States has met those obligations, and China has 
failed to prove that Article X:3(b) imposes any limitations on the ability of a legislative body to 
enact laws, whether or not judicial proceedings are pending. 
7. The United States recalls that China’s Protocol of Accession gives every WTO Member the 
right to apply CVDs to imports from China while concurrently treating China as a NME country for 
purposes of its AD law, and China is not challenging that concurrent application in itself.  The United States has exercised this right since 2006.  China nevertheless claims that the United 
States, of all WTO Members, could not apply CVDs to exports from China during the period from 
2006 until 2012, and that WTO law should prohibit the application of legislation enacted by the U.S. Congress to preserve Commerce’s existing prac tice of applying CVDs to exports from China.  
That is an astonishing argument, and as we set out in this statement, one entirely dependent not 
only on the Panel committing a series of interpretive errors, but also for the Panel to resolve issues 
of U.S. law contrary to Commerce’s interpretation, contrary to the intent and expectation of the U.S. Congress, and which the U.S. courts are cons idering but have not resolved.  The Panel should WT/DS449/R/Add.1 
 
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  not engage in that speculative exercise and it can resolve China’s claims on simpler grounds under 
Article X of the GATT 1994. 
8. Finally, with respect to China’s claims under Article 19.3 of the SCM Agreement, the United 
States in this statement will explain why China’s arguments fail to set out a valid interpretation of 
that provision and fail to make out a case even und er the Appellate Body’s flawed interpretation of 
that provision in DS379.  Indeed, given China’s failure to engage on the interpretation of Article 19.3 and to address U.S. arguments under customary rules of interpretation of public international 
law, it is clear that China’s entire legal argument rests on its “expectation” that the Panel will 
simply accept the Appellate Body’s approach without any further engagement by the parties.  The lack of engagement by China confirms the U.S. vi ew that it does a profound disservice to Members 
and the dispute settlement system for any panel to accept the view that, once the Appellate Body 
has made a finding on an issue of law, it must foll ow that interpretation uncritically.  But such an 
approach is, in fact, contrary to the text and structure of the DSU, and as we will continue to point out in these proceedings, it is not an “expectation” that China itself holds when it disagrees with 
Appellate Body findings.  
I. CHINA’S ARTICLE X CLAIMS ARE WITHOUT MERIT 
9. The United States has provided multiple bases on which China’s claims can be rejected.  
Thus, it would not be necessary to make findings on every distinct basis on which those claims are 
flawed.  However, because China expends a signific ant amount of effort and space attempting  to 
read two uniquely domestic legal concepts into Ar ticle X, we will spend some time today rebutting 
those arguments to demonstrate that none of China’s arguments withstand scrutiny.  Those 
arguments are (1) that Commerce has acted ultra vire s, and as a result, has violated Article X:2, 
and (2) that Articles X:1 and X:2 prohibit the “ret roactive” application of domestic laws.  Although 
China has stopped referring to these terms explicitly, it has continued to pursue them in its Second 
Written Submission.   
10. While neither of these concepts applies under Article X, China’s arguments under Article X 
depend entirely on its being able to obtain findings from the Panel on these concepts.  However, in 
doing so, China is asking the Panel to make factual findings on issues of U.S. constitutional and 
other domestic law issues that are unresolved and currently being litigated in U.S. courts.  The Panel should avoid making findings that at this point would simply involve speculation as to the outcome of domestic legal proceedings and that are not necessary to the resolution of China’s 
Article X claims.   
II. CHINA’S ARGUMENT THAT THE PANEL SHOULD SPECULATE AND SUBSTITUTE ITS 
JUDGMENT ON U.S. LAW UNDER ARTICLE X:2 IS WITHOUT MERIT 
11. China has continued to advance its ultra vires claim, this time as an issue of how domestic 
law should be “properly determined” for purposes of  a so-called “baseline” for Article X:2.  There 
are two fundamental problems with China’s “properly determined” argument.  First, Article X:2 
does not address allegedly ultra vires actions by an administering agency.  Thus, whether or not 
an administering agency’s actions were ultra vires under domestic law is irrelevant for an evaluation of the consistency of a measure with Article X:2.   
12. Second, China’s argument would compel the Panel to speculate on the content of U.S. law 
and find that Commerce’s interpretation was contrary to law.  But the legal issue of whether 
Commerce was prohibited from applying the U.S. CV D law to China has not been resolved by U.S. 
domestic courts.  Given that the courts have not finally spoken to the contrary and therefore 
Commerce’s interpretation remains valid as a matter of U.S. law, the Panel has no basis under 
U.S. law to substitute its judgment for that of Commerce. The United States would caution that, if the Panel were to speculate and substitute its ju dgment on the content of U.S. law for Commerce’s 
interpretation, it would run a significant risk of making a factual error.   
13. Further, despite pending domestic litigation on these issues, China asserts in its Second 
Written Submission that a statement by Professor Ri chard Fallon will “put an end” to and “properly 
determine” whether the GPX legislation was a clarification or change of existing law and whether 
the GPX V opinion has any legal effect under U.S. law.  China’s assertion has no legal basis.  First, 
the conclusions in the statement that Professor Fallon prepared for China are incorrect.  Second, WT/DS449/R/Add.1 
 
- B-47 - 
 
  under the U.S. legal system, law professors have no special or authoritative role in interpreting 
U.S. law.  Nonetheless, to the extent the panel is interested in the views of U.S. law professors, the United States has requested the views of Dean  John Jeffries, a noted U.S. constitutional law 
expert.  Dean Jeffries’ expert statement, su bmitted as exhibit USA-115, explains numerous 
shortcomings in Professor Fallon’s statement.   
14. As an initial matter, Professor Fallon – even though he prepared the statement on behalf of 
China – does not state and cannot state that the U.S. courts would find or have found that the GPX 
legislation is a change from previous law.  His conclusion is only that it would be “unlikely” for a 
court to find that the law was a legislative clarification.  On the legal status of GPX V, he states that “a U.S. court could very plausibly regard” the opinion to have binding legal effect.  Such conclusions are speculative and cannot be treated as putting an end to the matter, as asserted by 
China. 
15. First, on the issue of whether the GPX legislation is a change or clarification of the law, 
Professor Fallon’s statement fails to provide the indicia that the courts have used to determine 
whether a law is a change or clarification.  Rather, the statement focuses on whether there is “an 
explicit indication in the title or text of a statute that its purpose is solely to clarify prior law.”  This indication, in Professor Fallon’s opinion, is one of the “most important” indicia. 
16. This is incorrect.  Several U.S. federal appellate courts have come to the opposite 
conclusion.  In 2008, the U.S. Court of Appeals for the Third Circuit stated that it “did not consider an enacting body’s description of an amendment as a ‘clarification’ of the pre-amendment law to 
necessarily be relevant to the judicial analysis.”  The case is submitted as USA-116.  Such a 
conclusion was also reached by the U.S. Courts of  Appeals for the Fourth and Eleventh Circuits in 
decisions previously submitted as USA-56 and USA-57.   
17. After surveying U.S. case law on  the issue, the Court of Appeals for the Third Circuit found 
that there is “no bright-line test” to determine whether a law or regulation “clarifies” the existing 
law.  The court noted that it did not “take the fa ct that an amendment conflicts with a judicial 
interpretation of the pre-amendment law to mean that the amendment is a substantive change 
and not just a clarification.” The court reasoned that “one could posit that quite the opposite was 
the case – that the new language was fashioned to clarify the ambiguity made apparent by the case law.” 
18. Second, regarding the issue of the legal status of GPX V, China’s reliance on Professor 
Fallon’s statement in no way advances China’s argument.  Further, the opinion stated by Professor 
Fallon is contrary to the overwhelming weight of authority under U.S. law.  Importantly, it is contrary to the Federal Circuit’s own decision in GPX VI, in which it stated that “an appellate 
court’s decision is not final until its mandate issues.”  Further, Dean Jeffries explains that the U.S. 
Federal Circuit’s position that the grant of rehearing suspended any legal effect of GPX V accords with settled law.  Under U.S. law, when a panel grants rehearing, its original decision loses any 
effect.   As a senior federal appellate judge stat ed, “[t]he first procedural consequence of a grant 
of rehearing is that the original panel's judgment is vacated.” 
III. CHINA’S RETROACTIVITY CLAIM UNDER ARTICLE X:2 IS WITHOUT MERIT  
19. In addition to insisting that the Panel shou ld speculate and substitute its judgment for 
that of the administering authority, China continues to read into Article X:2 a prohibition against 
the so-called concept of “retroactivity.”  On this issue, the United States has been clear:  such a 
concept of domestic law is not addressed under Article X:2.  China’s arguments to the contrary 
have no merit. 
IV. ARTICLE X:3(B) DOES NOT ADDRESS HOW A LEGISLATIVE BODY CAN ENACT 
LEGISLATION 
20. In its Second Written Submission, China continues to argue that “the intervention by the 
U.S. Congress in ongoing judicial proceedings” is inconsistent with Article X:3(b).  As the United States has explained, Article X:3(b) does not impo se any limitations on the ability of a legislative 
body to enact laws altering the substantive content of the law. WT/DS449/R/Add.1 
 
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  21. Rather, Article X:3(b) imposes an obligation  regarding the structure or framework of a 
judicial review system.  The United States has acted consistently with Article X:3(b). Specifically, the United States has established a judicial sy stem that allows for the full possibility of 
independent review and correction of every agency  entrusted with administrative enforcement of 
customs matters.  As such, China’s claim under Article X:3(b) is without merit. 
V. CHINA HAS NOT ESTABLISHED EITHER A FACTUAL BASIS OR A LEGAL BASIS FOR 
ITS CLAIM UNDER ARTICLE 19.3 OF THE SCM AGREEMENT 
22. After several months, and with numerous opport unities to substantiate its claim, China still 
cannot justify its claim under Article 19.3 of the SCM Agreement.  China continues to make shortcuts in arguing its case -- making generalized allegations relating to Commerce’s determinations, and citing almost no evidence from those determinations.   And China continues to 
misinterpret Article 19 of the SCM Agreement.    China has refused to address the U.S. 
interpretation, which is based on customary rules of interpretation of public international law.   In particular, China’s entire Article 19.3 case fails, for four reasons.   
23. First, China continues to rely on the Appellate Body report in DS379.  China also argues that 
the United States has failed to provide “cogent reas ons” to depart from the Appellate Body report 
in DS379.   But one example of a “cogent reason” to depart from Appellate Body findings is where 
Appellate Body findings are not persuasive.  As detailed at length in our submissions, the Appellate 
Body findings in DS379 are legally erroneous and therefore cannot be persuasive. 
24. The Appellate Body’s interpretation goes far beyond the principles of non-discrimination and, 
as already noted, imposes an investigative function not reflected in that Article.   Article 19.3 of 
the SCM Agreement seeks to ensure that, after the subsidy amount is calculated, the level of CVDs 
imposed by an administering authority accurately and objectively reflects the subsidy amounts calculated for each country and each company investigated.  China has not alleged that 
Commerce’s imposition or collection of CVDs was discriminatory or did not correspond to the 
amount of subsidies identified in any of the sets of determinations at issue in this dispute.  Therefore, China’s arguments should be rejected. 
25. Finally, in relation to the Appellate Body’s findin g that there is a breach of Article 19.3 if an 
investigating authority fails to investigate the extent of any alleged double remedy, we would pose a simple question.  If the investigating authority does not “investigate” the extent of any possible double remedy, but imposes an antidumping duty at a rate of zero, is there any breach of the 
obligation under Article 19.3, under which a “countervailing duty shall be levied, in the appropriate 
amounts in all cases, on a non-discriminatory basis on imports … from all sources…”?  Is it possible to “levy” a duty in an amount that is not appropriate, based on a concern that a double remedy 
may be imposed, if there is no anti-dumping duty levied at all?  The Appellate Body’s 
interpretation of Article 19.3 would suggest the answer is “yes”, but the United States sees no basis in the text of Article 19 for that result. 
26. Second, in the rare instances in which China offers its own interpretation of Article 19.3, the 
interpretation is flawed, and unsupported by th e text of the covered agreements.  China, for 
example, errs when it argues that original investigations are subject to Article 19.3.  “Levy” is defined under footnote 51 of the SCM Agreement as “the definitive or final legal assessment or 
collection of a duty or tax.”  In the U.S. system, the “definitive or final legal assessment or 
collection of a duty or tax” does not occur until th e review stage.  The obligation in Article 19.3 on 
its own terms applies to the levying of duties, which does not result from investigations in the U.S. 
system.   
27. Third, the United States has noted that in China’s submissions and responses to questions 
from the Panel, it has taken various shortcuts, failed to analyze the specific facts, and failed to 
make a prima facie case.   
28. China refuses to analyze the specific facts of ea ch determination.  Consistent with Articles 11 
and 3.2 of the DSU, the Panel should undertake its own interpretative analysis in accordance with 
the customary rules of interpretation, because the DSU tasks each panel with making its own 
“objective assessment of the matter before it, incl uding an objective assessment of the facts of the WT/DS449/R/Add.1 
 
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  case and the applicability of and conformity with  the relevant covered agreements.”  The Panel 
should address the arguments that the parties have put before it here. 
29. China makes no effort to demonstrate the existe nce of an overlapping remedy in any of the 
challenged determinations or to identify evidence from any of the challenged determinations that 
would support the theory adopted by the panel in DS379.   In making as-applied challenges, China 
cannot simply rely on factual findings from a prior dispute.   
30. Fourth, China unduly ignores the record in this dispute in asserting that “it is not enough for 
the investigating authority to ‘fully consider[] the factual evidence and arguments made by 
respondent parties’ if the investigating authority never solicits relevant evidence in the first place.”  But in fact, Commerce requested public comment in 2006 on the applicability of CVD law to China, and China, in addition to other parties, presented their views.  And in 2007, Commerce further 
indicated that it would consider any and all eviden ce that would support any claims of overlapping 
remedies.  Thus, Commerce solicited the views of respondents; it evaluated these views; and it offered its conclusions based on the arguments pr esented.  To the extent Article 19.3 entails a 
duty to investigate, Commerce met this standard. 
31. In sum, China’s arguments with respect to Article 19.3 fail. 
 
 
_______________ 
  WT/DS449/R/Add.1  
 
- C-1 - 
 
  ANNEX C 
ARGUMENTS OF THIRD PARTIES 
Contents Page 
Annex C-1 Executive summary of the arguments of Australia C-2 
Annex C-2 Executive summary of the arguments of Canada  C-5 
Annex C-3 Executive summary of the arguments of the European Union  C-7 
Annex C-4 Executive summary of the arguments of Japan  C-11 
 
 WT/DS449/R/Add.1  
 
- C-2 - 
 
  ANNEX C-1 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA 
Executive Summary of the Wri tten Submission of Australia 
I. INTRODUCTION 
1. This dispute raises important issues concerning Article X of the GATT 1994 and its reach into 
Members' domestic legal orders.  
II. ARTICLE X:1 
2. Article X:1 of the GATT 1994 requires Members to "promptly publish in such a manner as to 
enable governments and traders to become famili ar with them", laws, regulations, judicial 
decisions and administrative rulings of general application pertaining to the range of subject 
matters listed in this paragraph.  Article X:1 outlines a World Trade Organization (WTO) Member's 
obligations in relation to the publication of trade regulations and is fundamentally a provision about transparency. 
 
3. Article X:1 is silent on whether "laws, regulations, judicial decisions and administrative rulings" can be applied retrospectively from the date of publication.  This is notwithstanding the 
term "made effective", in the first sentence of Article X:1 which, in Australia's view, could, in the 
context of domestic legislation, mean "in force".  This is consistent with the Appellate Body's interpretation of the term "made effective" in the context of Article XX(g) of the GATT 1994  in US 
– Gasoline .
1 
 
4. We note that the Panel in EC – IT Products found in relation to "made effective" that 
Article X:1 "covers measures that were brought into effect, or made operative, in practice and is 
not limited to  measures formally promulgated or that have formally "entered into force"" 
(emphasis added).2  However, this was in the context of an inquiry into whether Article X:1 
extended to measures that were applied in pr actice, despite not being formally binding under 
European Union law.3 
 5. The factual situation at issue in this case is different.  In our view, the Panel's statement in EC – IT Products  cannot be read as meaning that publishing a law upon its enactment would be a 
violation of Article X:1 if the law has effects in the past.   In Australia's view, Article X:1 does not 
render laws which have retroactive effects inconsistent with this provision.  
6. Finally, it is important that Article X:1, which concerns a procedural obligation to publish, 
and X:2, which deals with the enforcement or operation of measures, not be conflated.  
III. ARTICLE X:2 
7. The Appellate Body in  US – Underwear  stated that the "essential implication" of Article X:2 is 
that "Members and other persons affected, or likely to be 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".
4  The Appellate Body also noted 
that "prior publication is required for all measures falling within the scope of Article X:2, not just  
                                               
1 Appellate Body Report, US – Gasoline , p. 20. 
2 Panel Report, EC – IT Products , para. 7.1048. 
3 "This being so, in circumstances where the relevant measure has been "made effective", the 
requirement to publish promptly will arise regardless of its formal adoption or whether it remains a "draft" 
measure under the Member's municipal legal order." Panel Report, EC – IT Products , para. 7.1048. 
4 Appellate Body Report, US – Underwear , p. 21. WT/DS449/R/Add.1  
 
- C-3 - 
 
  ATC [Agreement on Textiles and Clothing] safeguard restraint measures sought to be applied 
retrospectively".5 
 8. The Panel in US – Anti-Dumping Measures on Oil Country Tubular Goods  noted that 
Article X:2 can preclude retroactive application of a measure.  It also noted, however, that 
compliance with this obligation depends on "the timing of the publication of a measure, and its enforcement in particular circumstances affecting the rights of WTO Members " (emphasis added).
6   
 
9. In Australia's view, where a measure does not "advance in a rate of duty or other charge on imports", or impose a "new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor ", failure to publish that measure would not fall 
foul of Article X:2.  This is consistent with th e purpose of Article X:2 to protect the fundamental 
principle of transparency by ensuring due process where parties' interests are concretely affected 
by a particular measure.
7 
 
IV. ARTICLE X:3(B) 
10. Article X:3 of the GATT 1994 establishes certain minimum standards for transparency and 
procedural fairness.8  It requires a balance between a trader's fundamental right to procedural 
fairness and the sovereign right of WTO Members to manage the manner in which they administer their own laws and regulations.
9 
 
11. Article X:3(b) contains a number of specific obligations.  This includes that WTO Members 
are required to maintain independent tribunals in respect of the review of customs actions which "shall be implemented by and shall govern the practice of" the agencies concerned "unless an 
appeal is lodged …". 
 12. However, the relationship between the legi slative, executive and judicial branches of 
government is not otherwise addressed in this provision and remains a matter for each WTO 
Member in accordance with its own constitution and system of government.
10 
 13. Article X:3(b) does not prevent WTO Members from legislating and having such legislation 
applied by their courts so long as they comply with the specific obligations of the provision.  A 
WTO Member's ability to legislate retroactively on a matter that is being considered by a court is a matter for each Member's domestic legal system. 
 
                                               
5 Ibid. 
6 Panel Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 7.181. 
7 Appellate Body Report, US – Underwear , p. 21. 
8 Appellate Body Report, US – Shrimp , para. 183. 
9 Panel Report, Thailand – Cigarettes , para. 7.874. 
10 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 205. WT/DS449/R/Add.1  
 
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  Executive Summary of the Third Party Oral Statement of Australia and  
Responses to Questions from the Panel 
INTRODUCTION 
1. This dispute raises important issues concerni ng Article X of the General Agreement on Tariffs 
and Trade 1994 (GATT 1994) as well as the Agreement on Subsidies and Countervailing Measures.   
2. Australia, in a separate written submission, has already addressed issues concerning 
Article X.  This Executive Summary of the Third Party Oral Statement of Australia and Responses 
to Questions from the Panel considers what a party needs to demonstrate in order to establish a 
violation of World Trade Organization (WTO) law. 
II. AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES 3. It is a well-established principle that to establish a violation of WTO law, a party needs to 
adduce evidence and make arguments as to how a measure or measures are inconsistent, as such 
or as applied, with an obligation under relevant provisions of the WTO Agreement.
1  
4. Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes (DSU) states that the WTO dispute settlement system “serves to preserve the rights and 
obligations of Members under the covered agreemen ts, and to clarify the existing provisions of 
those agreements in accordance with customary rules of interpretation of public international law.  
Recommendations and rulings of the [Dispute Settl ement Body (DSB)] cannot add to or diminish 
the rights and obligations provided in the covere d agreements.”  Taken together with Articles 7 
and 11 of the DSU, it is clear that panels are obliged to consider each dispute on its merits under the relevant provisions of the covered agreements. 
5. While there is no binding rule of preced ent in the WTO dispute settlement system, the 
Appellate Body has previously stated that “ensur ing ‘security and predictability’ in the dispute 
settlement system, as contemplated in Article 3.2 of the DSU, implies that, absent cogent reasons, 
an adjudicatory body will resolve the same legal question in the same way in a subsequent case.”
2  
This is consistent with the view it previously expressed that panel decision give rise to “legitimate expectations among WTO Members”
3 and “should be taken into account where they are relevant to 
any dispute.”4 
6. Australia considers that there may be instances where it would be appropriate for a panel to 
depart from prior Appellate Body findings, includ ing where the evidence presented in a particular 
case gives rise to a different factua l situation that could distinguish it. 
7. For Australia, it is nevertheless important to distinguish the question of the role of precedent  
in the WTO dispute settlement system from the question of the status of prior panel and Appellate 
Body findings for WTO Members’ rights and obligations under WTO Law .  Australia considers that 
while previous decisions of the Appellate Body ma y be highly persuasive in how a provision of a 
covered agreement should be interpreted , these interpretations do not in themselves give rise to 
substantive obligations.  To establish a violation of WTO law it remains necessary to identify the 
relevant WTO provision and obligation contained th erein, and to explain the basis for the claimed 
inconsistency of the measure with that provision on the basis of evidence.5  
                                               
1 Appellate Body report, US – Gambling , paras. 140-141.   
2 Appellate Body Report, US – Stainless Steel (Mexico) , para. 160. 
3 Appellate Body Report, Japan – Alcoholic Beverages II , p. 14. 
4 Ibid. 
5 See, for example, Appellate Body Report, US – Gambling , para. 141. WT/DS449/R/Add.1  
 
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 ANNEX C-2 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA 
I. INTRODUCTION 
1. Canada is participating in this panel proceeding because it has a substantial systemic 
interest in the interpretation of WTO subsidy rules.  Canada's submission will address the 
concurrent application of anti-dumping and countervailing duties in cases in which normal values are calculated using costs or prices from outside the export nation in question. 
II. THE CONCURRENT APPL ICATION OF ANTI-DUMPING AND COUNTERVAILING 
DUTIES WHERE NORMAL VALUE IS CALCULATED USING COSTS OR PRICES OUTSIDE CHINA 
2. Canada submits that the WTO Agreements permit the concurrent application of anti-
dumping and countervailing duties even where the investigating authority has calculated normal 
values using costs or prices from outside the home market in the dumping investigation.  Canada agrees with the United States that this view is confirmed by the text of the relevant agreements, 
the Tokyo Round Subsidies Code and specifically confirmed with respect to China as a result of its 
accession protocol. 
3. First, dumping and subsidization are acknowle d g e d  a s  t w o  d i f f e r e n t  c a u s e s  o f  i n j u r y  t o  
domestic industries with distinct sets of rules giving rise to separate remedies: an anti-dumping 
duty to remedy injurious dumping and a counterva iling duty to remedy injurious subsidization. 
4. When an imported product happens to be bo th dumped and subsidized, and causes injury, 
an importing Member may impose both an anti-dum ping duty up to the margin of dumping and a 
countervailing duty up to the amount of the subsidy. 
5. Second, Article VI:5 of GATT 1994 confirms th is right to impose concurrent anti-dumping 
and countervailing duties and expressly limits it in the particular circumstances of export 
subsidization. 
6. Furthermore, the second supplementary prov ision to Ad Article V:1 of GATT 1994 provides 
that an importing WTO Member may calculate the normal value of products from centrally planned 
(i.e. non-market) economies using costs or prices in a surrogate country, instead of domestic 
prices (which is the norm under Article VI:1 of GATT 1994 and the Anti-dumping Agreement). 
7. Third, the Tokyo Round Subsidies Code prohibited importing countries from applying both 
anti-dumping duties determined on this basis and countervailing duties.  However, while WTO 
Members could have transferred this prohibition into the SCM Agreement during the Uruguay 
Round, they chose not to.  If WTO Members had inte nded for the prohibition to be carried forward, 
they would have expressly provided for this. 
8. Fourth, with respect to Chinese products spec ifically, the possibility of imposing concurrent 
anti-dumping and countervailing duties even if they  are not based on the prices or costs found in 
China is also confirmed by China's Accession Protocol.  
9. Subparagraph 15(a)(ii) of China's Accession Protocol expressly permits importing WTO 
Members to calculate normal value on the basis of costs or prices outside China, if the Chinese producers under investigation fail to show clearly that market economy conditions prevail in their industry.  Subparagraph 15(b) of China's Accession Protocol also contemplates that importing WTO 
Members may impose countervailing duties on Chinese products, allowing them to calculate 
Chinese subsidies on the basis of benchmarks outside China if there are "special difficulties" in the application of Article 14 of the SCM Agreement.  WT/DS449/R/Add.1  
 
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 10. If WTO Members had intended to prohibit the concurrent application of anti-dumping duties 
calculated specifically on Chinese products on the basis of subparagraph 15(a)(ii) of China's 
Accession Protocol and countervailing duties, they would have done so in China's Accession Protocol just as they had done earlier in the Tokyo Round Subsidies Code.  Instead, China's 
Accession Protocol enables importing WTO Members to impose both anti-dumping duties calculated 
on the basis of costs or prices outside China and countervailing duties at the same time.   
11. Under GATT Article VI:3 the purpose of imposing a countervailing duty is to offset any 
subsidy.  This purpose is reflected in Article 19.1 of the SCM Agreement, which provides that a 
countervailing duty may only be imposed "in accordance with the provisions of this Article". Article 19.4 of the SCM Agreement permits importing WTO Members to impose countervailing duty up to 
"the amount of the subsidy found to exist".  A countervailing duty on a Chinese product will be in 
"the amount of the subsidy found to exist" if that amount is calculated in accordance with either: 
(a) Article 14 of the SCM Agreement ("Calculation of the Amount of a Subsidy in Terms of the 
Benefit to the Recipient"); or (b) subparagraph 15(b) of China's Accession Protocol.  No other 
method for calculating "the amount of the subsidy" is expressly prescribed.   
12. Therefore, as long as the importing WTO Member does not impose a countervailing duty in 
excess of "the amount of the subsidy found to exist" (i.e. according to Article 14 of the SCM 
Agreement or subparagraph 15(b) of China's Acce ssion Protocol), the duty will be in the 
"appropriate amount", as required by Article 19.3 of the SCM Agreement. 
13. Canada notes that while the panel endorsed this interpretation in US – Anti-Dumping and 
Countervailing Duties (China) , the Appellate Body regrettably reversed these findings.  Canada 
considers that this reversal was in error.  Nevertheless, Canada acknowledges the importance of 
security and predictability in the dispute settlement system, as contemplated in Article 3.2 of the Dispute Settlement Understanding. 
 WT/DS449/R/Add.1  
 
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 ANNEX C-3 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION 
1. EXECUTIVE SUMMARY OF THE THIRD PARTY WRITTEN SUBMISSION BY THE 
EUROPEAN UNION 
1.1. CHINA'S CLAIMS AGAINST SECTION 1 OF P.L. 112-99 
1. Whilst not taking a final position on the specific facts of the case, and in particular on the 
question of whether Section 1 of P.L. 112-99 maintains the status quo  on procedures 
relating to the application of countervailing duties to NME countries, the European Union 
would like to make the following observations on the various claims raised by China under Article X of the GATT 1994. 
1.1.1. China's claim under Article X:1 of the GATT 1994 
2. The European Union disagrees with China's in terpretation of Article X:1 of the GATT 1994 
and agrees with the United States. The European Union considers that Article X:1 of the GATT 1994 seeks to ensure that trade rules are not kept secret but are publicly known by 
governments and traders so that they know what conditions would apply to their goods 
when imported into a Member's territory. The fact that those conditions may be altered by publishing a measure of general application in the future does not mean that such a 
measure was published in breach of the obligations under Article X:1 of the GATT 1994, 
insofar as the measure was published promptly (i.e. the time span between the adoption of the measure and its publication was "quickly" and "without undue delay") and in an appropriate manner (i.e., with respect to the means employed to make it available to the 
public) so that governments and traders became aware that the measure exists, 
regardless of its application only for the future or also to past events. 
1.1.2. China's claim under Article X:2 of the GATT 1994 
3. The European Union observes that Article X:2 of the GATT 1994 precludes retroactive 
application of a measure falling under its scope. Compliance with this obligation depends on the timing of the publication of a measure and its enforcement in particular 
circumstances affecting acquired rights of WTO Members and private entities. That being 
said, the European Union notes that the Anti-Dumping Agreement (Article 10) and the SCM Agreement (Article 20) both contemplate provisions envisaging the retroactive application of duties to a date prior the imposition of provisional and/or definitive 
measures. In the European Union's view, this indicates that the prohibition against 
retroactive effect in Article X:2 of the GATT 1994 is not absolute and has to be understood by reference to whether the measure affects acquired rights or legitimate expectations of 
WTO Members and private entities. 
4. In the European Union's view, a relevant question for the Panel to examine is whether on 
13 March 2012 there were any acquired rights or legitimate expectations that were 
affected by the US legislator's decision. The European Union understands that China 
agrees that "because the [Federal Circuit] court had not yet acted on the petition for rehearing, the [OTR] case was technically still pending before the court". If on 13 March 2012 the final collection of duties was still suspended until the court proceedings were 
completed, it could be argued that on that date private entities had not yet acquired rights 
or had legitimate expectations that the final coll ection of duties was definitive and final. In 
contrast, in cases where countervailing duties were imposed and finally collected and all 
judicial instances had been completed, those entities would have acquired a legitimate 
right and the legitimate expectation to have th eir duties revoked. The application of P.L. 
112-99 to those events would be retroactive, contrary to Article X:2 of the GATT 1994. 
Therefore, the European Union considers th at Article X:2 of the GATT 1994 protects 
acquired rights and legitimate expectations of WTO Members and private entities. In view 
of the transparency objective contained in Article X, Article X:2 permits operators to protect and adjust their activities in accordance with new laws and requirements affecting WT/DS449/R/Add.1  
 
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 their business and, thus, ensures that measures will not be applied to completed events or 
situations (e.g., where decisions under municipal law are final).  
1.1.3. China's claim under Article X:3(b) of the GATT 1994 
5. Article X:3(b) of the GATT 1994 relates to first instance review. It requires WTO Members 
to have procedures to review actions taken by administrative bodies relating to customs 
matters, thereby including the imposition of anti-dumping and countervailing duties. In this respect, Article X:3(b) ensures due process in relation to customs matters, and 
establishes certain minimum standards for transparency and procedural fairness in 
Members' administration of their trade regulations. Article X:3(b) further requires that the decisions issued by those review procedures  must be implemented and followed by the 
administrative bodies. Indeed, otherwise, the obligation under Article X:3(b) to establish 
such review procedures would be useless. Thus, WTO Members are required to ensure that 
their system of review provides for the relevant administrative action to be set right. Article X:3(b) also establishes the possibility to have the decision issued under the review 
procedures appealed before a court or a tribunal. In other words, it provides a guarantee 
of several instances of legal review of decisions issued by administrative bodies. 
6. The European Union disagrees with China's interpretation. The fact that Article X:3(b) does 
not contemplate explicitly enacting a new law and directing national courts to apply the 
law retroactively to change the outcome of a case does not imply that there is an obligation to refrain from doing so in this provision. Silence on this issue should not be interpreted as imposing such obligation upon WTO Members. Article X:3(b) of the GATT 
1994 establishes a due process obligation and minimum standards for transparency and 
procedural fairness in Members' administration  relating to customs matters. However, this 
provision does not alter the possibility of legislators modifying rules or setting the 
temporal application of those rules. In the European Union's view, legislators should be 
allowed to change the law and confer it retroactive effect insofar as acquired rights and legitimate expectations are preserved.   
7. In sum, the European Union considers that Article X:3(b) of the GATT 1994 should not be 
interpreted as prohibiting Members from taking legislative actions which would impact the decisions issued under the review procedures required under that provision. This is even more the case in situations where those decisions are not yet final. 
1.2. DOUBLE REMEDIES 
8. In DS379  the AB explained that "double remedies" arise when the simultaneous 
application of ADDs and CVDs offset the same subsidization twice. "Double remedies" are 
"likely" to occur if an NME methodology is used. When authorities calculate a dumping 
margin for a product from an NME, they compare the export price to a NV that is based on surrogate costs or prices from a third country. Because prices and costs in the NME are 
unreliable, prices or COP in a market economy are used to calculate NV. Authorities 
compare the product's constructed NV (not reflecting any subsidy) with the product's actual export price (which, when subsidies have been received, is presumed lower than it would otherwise be). The dumping margin is thus based on an asymmetric comparison 
and is higher than it would otherwise be. Thus, dumping margins calculated with an NME 
methodology reflect not only dumping, but also subsidies affecting the producer's COP. An ADD calculated with an NME methodology may "r emedy" or "offset" a domestic subsidy, if 
such subsidy has contributed to a lowering of the export price. The subsidization is 
"counted" within the overall dumping margin. When a CVD is levied against the same imports, the same domestic subsidy is also "counted" in the calculation of the rate of 
subsidization and, therefore, the resulting CVD offsets the same subsidy a second time. 
Accordingly, the concurrent imposition of an  ADD calculated with an NME methodology, 
and a CVD results in a subsidy being offset twice. Double remedies may also arise in the context of domestic subsidies granted within market economies when ADDs and CVDs are 
concurrently imposed and an unsubsidized, constructed, or third country NV is used.  
9. Article 19.3 ADA requires that CVDs be levi ed in the appropriate amounts in each case; 
and on a non-discriminatory basis. The term "appropriate" is not an absolute standard, but 
a relative one. The two requirements in the first sentence of Article 19.3 inform each 
other. Thus, it would not be appropriate for an importing Member to levy CVDs on imports WT/DS449/R/Add.1  
 
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 from sources that have renounced subsidies, or if price undertakings have been accepted. 
Similarly, the requirement that the duty be imposed on a non-discriminatory basis should not be read in an overly formalistic manner. While leaving to the importing Member the decision as to whether the amount of the CVD to be imposed shall be the full amount of 
the subsidy or less, Article 19.2 states that it is "desirable" that "the duty should be less 
than the total amount of the subsidy if such lesser duty would be adequate to remove the 
injury". Article 19.2 thus encourages authorit ies to link the amount of the CVD to the 
injury. Once a causal link is demonstrated, the imposition of CVDs is not isolated from any 
consideration related to injury. A link between  the amount of the CVD and the injury is 
also reflected in Article 19.3, which provides th at a "CVD shall be levied, in the appropriate 
amounts in each case ... on imports of such product ... found to be subsidized and causing 
injury". Other provisions of the ASCM link th e CVD to the injury. Article 19.1 allows for the 
imposition of CVDs when subsidized imports "a re causing injury".  The use of the present 
tense in this provision suggests that injury is a continuing prerequisite for the imposition 
and levying of CVDs. This is confirmed by Article 21.1.  
10. Article 10 establishes that Part V relates to the application of Article VI GATT 1994, and 
that CVDs must conform to that provision. By providing that "only one form of relief shall 
be available", footnote 35 makes clear that there can be no "double remedies". Footnote 
36 defines a "CVD" as a special duty levied for the purpose of "offsetting" a subsidy. The link between the GATT 1994 and the ASCM also figures in Article 32.1. Article VI:5 prohibits the concurrent application of ADDs and CVDs to compensate for the same 
situation of dumping or export subsidization. The term "same situation" is central to an 
understanding of the rationale underpinning this prohibition, which in turn sheds light on the reason why, in the case of domestic subsidies, an express prohibition is absent. An 
export subsidy will result in a pro rata reduction in export price, but will not affect the 
domestic price.  The subsidy will lead to a higher margin of dumping. The situation of subsidization and the situation of dumping are the "same situation", and the application of 
concurrent duties would amount to the application of "double remedies". By comparison, 
domestic subsidies will affect domestic and export prices in the same way. Since any lowering of prices attributable to the subsidy will be reflected on both sides of the calculation, the overall dumping margin will not be affected. In such circumstances, the 
concurrent application of duties would not compensate for the same situation. 
11. Thus, the presence of an express prohibitio n on the concurrent application of duties to 
counteract the "same situation" of dumping or export subsidization is logical, when NV is 
calculated on the basis of domestic sales prices. Article VI:1(a) GATT 1994, like Article 2.1 
ADA, provides that the usual method for calculating NV will be based on the comparable price for the like product in the exporter's domestic market. Thus, in anti-dumping 
investigations, NV will typically be based on domestic sales prices and any domestic 
subsidy will have no impact on the calculation of the dumping margin. Nonetheless, Article VI:1(b), like Article 2.2 ADA, sets out exceptional methods for the calculation of NV, which are not based on actual prices in the exporter's domestic market. The second Ad Note to 
Article VI:1, which provides the legal basis for the use of surrogate values for NMEs in 
anti-dumping investigations, also authorizes recourse to exceptional methods for the calculation of NV in investigations of imports from NMEs.  In case of domestic 
subsidization, it is only in these exceptional situations that there is any possibility that the 
concurrent application of anti-dumping and CVDs on the same product could lead to "double remedies". The references to Article VI GATT 1994 in Articles 10 and 32.1 ASCM, 
Article VI itself, and the many parallels between the obligations that apply to Members 
imposing ADDs or CVDs, suggest that any inte rpretation of "the appropriate amounts" of 
CVDs must not be based on a refusal to take account of the context offered both by Article VI GATT 1994 and by the provisions of the AD A. Members have entered into cumulative 
obligations under the covered agreements and should thus be mindful of their actions 
under one agreement when taking action under an other. This view is reinforced by the fact 
that, although the disciplines that apply to a Member's use of ADDs and its use of CVDs 
are legally distinct, the remedies that result are, from the perspective of producers and 
exporters, indistinguishable. 
12. It follows that a proper understanding of the "appropriate amounts" of CVDs cannot be 
achieved without regard to relevant provisions of the ADA and recognition of the way in 
which the two legal regimes, and the remedies which they authorize, operate. The requirement that any amounts be "appropriate" means that authorities may not, in fixing WT/DS449/R/Add.1  
 
- C-10 - 
 
 the appropriate amount of CVDs, simply ignore that ADDs have been imposed to offset the 
same subsidization. Each agreement sets out strict conditions that must be satisfied before the authorized remedy may be applied. The purpose of each authorized remedy may be distinct, but the form and effect of both remedies are the same. Both the ADA and the 
ASCM contain provisions requiring that the amounts of ADDs and CVDs be "appropriate in 
each case". Both agreements also set ceilings on the maximum amount of duties that can be imposed. Article 19.4 ASCM establishes that CVDs shall not exceed the amount of the 
subsidy found to exist and Article 9.3 ADA establishes that ADDs shall not exceed the 
margin of dumping. Only if these provisions are read in wilful isolation from each other can it be maintained that the respective rules on the imposition and levying of duties are complied with when double remedies are imposed. In contrast, reading the two 
agreements together suggests that the imposition of double remedies would circumvent 
the standard of appropriateness that the two agreements separately establish. In other words, considering that each agreement sets forth a standard of appropriateness and 
establishes a ceiling for the respective duties, it should not be possible to circumvent the 
rules in each agreement by taking measures under both agreements to counteract the same subsidization. It is counterintuitive to suggest that, while each agreement sets forth 
rules on the amounts of ADDs and CVDs that can be levied, there is no obstacle to the 
levying of a total amount of anti-dumping an d CVDs which, if added together, would not 
be appropriate and would exceed the combined amounts of dumping and subsidization found. 
13. The EU expects that the Panel will follow a similar line of reasoning in this case. 
2. EXECUTIVE SUMMARY OF THE ORAL STATEMENT BY THE EUROPEAN UNION 
(INCLUDING SOME RESPONSES TO THE PANEL'S QUESTIONS) 
14. As suggested by the Panel, the EU will provide preliminary answers to the questions 
advanced by the Panel relating to the GATT 1994. Starting with question 5, the EU considers that the term "enforced" in Article X:2 of the GATT 1994 speaks to the 
application of the measure in question, i.e. that the measure is being applied or has been 
put into application. In contrast, the term "made effective" under Article X:1 does not necessarily require an actual application of the measure of general application. A law may be published today and establish that it will be  applied only to actions taking place as of 1 
January 2014. Such a law will be made effective today although it will be enforced only as 
of next year. Moving on to question 6, the EU considers that there is no textual or contextual support for China's interpretation of Article X:2, according to which the 
measures falling under such a provision can be applied only with respect to actions taken 
after the publication of the measure. As explained in our written submission, Article X:2 has to be understood by reference to whether the measure affects acquired rights or 
legitimate expectations of WTO Members and pr ivate entities. With respect to question 7, 
the EU considers that Article X:2 does not relate to authority, but rather to transparency and due process. Finally, to answer question 8, the European Union considers that Article 
X:3(b) obliges agencies to implement and be governed by the decisions of courts of first 
instance as modified or complemented by the decisions of superior courts with respect to 
the same matter. 
 
 WT/DS449/R/Add.1  
 
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 ANNEX C-4 
EXECUTIVE SUMMARY OF TH E ARGUMENTS OF JAPAN 
Executive Summary of the Written Submission of Japan 
A. Prompt publication of P.L. 112-99 in  accordance with Article X:1 of the 
GATT  
1. In the First Written Submission of China ("China FWS"),1 China alleges that "Section 1 of 
P.L. 112-99 was 'made effective' as of 20 November 2006".2  China argues that the "basic inquiry 
[of Article X:1 of the GATT ] is whether the measure was 'published promptly' in relation to this 
effective date".3  China thus claims that the publication of P.L. 112-99 is inconsistent with Article 
X:1 because it was not been published for "nearly five and half years after the date on which it was made effective."
4 
2. While China submits that "in no event can publication be considered "prompt" if it takes 
place after the measure has taken effect",5 Japan is of the view that the requirement under Article 
X:1 would be satisfied even when the law is published after the effective date of the law. This 
interpretation is supported by the panel in EC – IT Products , which stated "in circumstances where 
the relevant measure has been 'made effective', the requirement to publish promptly will arise". 6  
As stated by the panel, the event triggering the application of Article X:1 is the action to make the 
measure in question, P.L. 112-99 in this case, effe ctive.  The question then is whether the P.L. 
112-99 was published promptly after it was made effective.7 The date from which the law would 
actually be applied is irrelevant to Article X:1.   
3. In this regard, Japan has doubt on China's argument that Section 1 of P.L. 112-99 was 
'made effective' within the meaning of Article X:1 as of 20 November 2006.  Section 1(b) of P.L. 
112-99, on its face, sets forth that the provisions of Section 1(a) apply to all countervailing duty proceedings initiated on or after 20 November 2006, and all resulting actions by US Customs and 
U.S. Federal courts.
8  From Japan's view, Section 1(b) of  P.L. 112-99 addresses the subject matter 
to which the law applies, not the date on which the law was enacted. Accordingly, the 20th 
November of 2006 is not the date of enactment, but the date which establishes the scope of 
application of the law. If this understanding is correct, China's approach to consider the 
relationship between the 20th N o v e m b e r  o f  2 0 0 6  a n d  t h e  d a t e  o f  p u b l i c a t i o n  i n  e x a m i n i n g  t h e  
consistency with Article X:1 is doubtful. 
4. In connection with the question whether the United States "promptly" published the P.L. 
112-99 under Article X:1, Japan agrees with the analysis by the panel in EC – IT Products .  It 
explained "an assessment of whether a measure has been published 'promptly' … necessarily requires a case-by-case assessment"
9 in light of whether such publication was made "in such a 
manner as to enable governments and trad ers to become acquainted with them." 
B. Enforcement of a Measure of Genera l Application before Publication in 
Accordance with Article X:2 of the GATT  
5. China argues that Section 1(b) of P.L. 112- 99 is inconsistent with Article X:2 of the GATT , 
stating "rights of transparency and due process to which governments and traders are entitled 
                                               
1  See China FWS , submitted to this Panel on 15 May 2013. 
2  Id., para. 63. 
3  Id., paras. 63-64. 
4  Id., para. 65. 
5 China FWS, para. 64. 
6  Panel Report, EC – IT Products , para. 7.1048. 
7 In contrast, under Article X:2 the relevant date is the date of the application of the measure because 
the provision obliges that WTO members enforce the me asure falling within its scope after the measure’s 
official publication. 
8  See Pub. L. No. 112-99, CHN-1. 
9  Panel Report, EC – IT Products , para. 7.1076.   WT/DS449/R/Add.1  
 
- C-12 - 
 
 under Article X:2 are necessarily denied when a measure is applied prior to its official 
publication."10   
6. Article X:2 makes explicit that any measure of general application, if it is "effecting an 
advance in a rate of duty or other charges on imports under an established and uniform practice, 
or imposing a new or more burdensome requirement, restriction or prohibition on imports …", shall 
be published prior to its enforcement.  Consequently, a WTO Member fails to comply with this requirement, if the Member enforces  a measure of general application before its publication. 
7. As explained by the Appellate Body
11, the prior publication requirement under Article X:2 
may embody the principles of tr ansparency and due process.  Th e publication of measures of 
general application must be made in advance to its enforcement, "so as to enable governments and traders to become acquainted with them".
12     
C. Reversal by Legislature of Co urt Decisions in Accordance with 
Article X:3(b) of the GATT  
8. China argues that P.L. 112-99 is "the interv ention in a pending judicial proceeding by the 
legislative branch of the U.S. government".13  According to China, "[t]his type of legislative 
intervention, if accepted, would render meaningl ess the independent judicial review that is 
guaranteed by Article X:3(b)." 14  China thus claims that "[e]nacting a new law and directing 
national courts to apply the law retroactively to change the outcome of a case is not permitted by 
Article X:3(b) and, if accepted, would gut in dependent judicial review of any meaning." 15   
9. Article X:3(b) set forth rules on the review  by the judicial branch of actions taken by 
administrative agencies.  This Article, however, is silent on relationship between administrative 
agencies and the legislature, or between the judici al branch and the legislature.  At minimum, no 
rules are set against actions to be taken by the legislature in response to the judicial decision.  Therefore, no express obligations to WTO Members are set forth in Article X:3(b) with respect to 
actions by the legislature in response to judicial decisions. 
10. China argues that "legislative intervention, if accepted, would render meaningless the 
independent judicial review."  Article X:3(b), however, explicitly states that the judicial review 
must be "independent of the agencies" only.  Articl e X sets forth the rules on "laws" in paragraphs 
1, and 3(a) and (b), and thus the Article explicit ly recognizes the importance of the role of the 
legislature to establish trade regulations.  If it had been contemplated that Article X:3(b) should set forth disciplines on the potential enactment of law in response to judicial decisions, Article 
X:3(b) could have been drafted to do so.  The draf ters of the Article, however, did not include any 
such requirement.  Such omission should also be given the meaning.   
11. In sum, it is Japan's view that Article X:3(b) does not provide any disciplines on the 
legislative actions in response to the judicial decision. 
D. Avoidance of Double Remedy Pursuant to Article 19.3 of the SCM 
Agreement  
12. China alleges that "the USDOC initiated 29 parallel anti-dumping and countervailing duty 
investigations and periodic reviews that resulted in the imposition of duties on products from China, either on a preliminary or final basis."
16  China claims that the "USDOC's failure to 
investigate and avoid double remedies in the identified investigations renders these determinations 
inconsistent with Article 19.3 of the SCM Agreement. " 17   
                                               
10Id., para. 70. 
11 Appellate Body Report, US – Underwear , p. 21. 
12 See Article X:1 of the GATT 1994 
13  China FWS, para. 85. 
14  Id, para. 101. 
15  Id., para. 85. 
16  Id, para. 124. 
17  Id., para. 126. WT/DS449/R/Add.1  
 
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 13.   The Appellate Body in US – Anti-Dumping and Countervailing Duties (China) examined the 
issue of the double remedy, and has reached the conclusion that the investigating authority is "subject to an affirmative obligation to establish the appropriate amount of the duty under Article 19.3" upon conducting "a sufficiently diligent 'investigation' into, and solicitation of, relevant facts, 
and to base its determination on positive evidence in the record."
 18  With respect to the question 
of when double remedies arise, the Appellate Body found that "double remedies would likely result 
from the concurrent application of anti-dumping duties calculated on the basis of an NME 
methodology and countervailing duties"19 because the use of an NME methodology in calculation of 
dumping margins "likely provides some form of remedy against subsidization".20 
14. The Appellate Body then applied this legal analysis to four countervailing investigations in 
the dispute, and found that "the USDOC made no attempt to establish whether or to what degree 
it would offset the same subsidies twice by imposing anti-dumping duties calculated under its NME 
methodology, concurrently with countervailing duties." 21  Consequently, "the USDOC failed to 
fulfill its obligation to determine the 'appropriate' amount of countervailing duties within the 
meaning of Article 19.3 of the SCM Agreement ." 22     
15. As clarified by the Appellate Body, an investigating authority has an affirmative obligation to 
make sure that double remedies would not occur when anti-dumping and countervailing duties are 
simultaneously imposed on products from NME countries.  
 
                                               
18  Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 602 (a footnote 
omitted). 
19  Id., para. 599, referring in its footnote to the Panel Report, US – Anti-Dumping and Countervailing 
Duties (China) , paras. 14.67 and 14.75 (emphasis in original). 
20  Panel Report, US – Anti-Dumping and Countervailing Duties (China) , para. 14.67. 
21  Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 604. 
22  Id., para. 606. WT/DS449/R/Add.1  
 
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Executive Summary of the Oral Submission of Japan 
1. The United States argues that the GPX legislation does not fall within the scope of Article X:2 
of the GATT .  Specifically, the United States argues that “Section 1 of the GPX legislation could not 
effect an increase in a rate of a duty” because “there was no change to Commerce’s existing 
approach in how it interpreted the U.S. CVD law with respect to NME imports.”23  The United 
States explains that the USDOC established indivi dual CVD measures in accordance with the CVD 
law that existed at the time of the establishment of these individual measures.24  The Chinese 
government and traders thus had been on notice that the USDOC would apply the CVD law to 
imports from China.25  According to the arguments of the United States, therefore, the due process 
rights under Article X:2 have been observed.  
2. The United States appears to submit that it is important whether the Chinese government 
and traders were given a prior notice of the application of the CVD law as of 20 November 2006. Japan finds the United States’ apparent approach pr oper and is of the view that the Panel should 
take the following points into consideration. 
3. As discussed in the third party submission of  Japan, Article X:2 may embody transparency 
and due process rights of WTO Members and traders by ensuring that imports may not be subject to an advance in a rate of duty or subject to a new or more burdensome requirement without prior 
public notice of such measures of general app lication.  An importing Member thus would have 
acted inconsistently with Article X:2, if the im porting Member were to apply such measures to 
imports in such situations that the exporting Member and traders had been unable to be aware 
that their imports would generally be subject to the measure.  They must be given a prior notice of 
the application of the measure to imports so that  they “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.”
26   
4. Accordingly, one question in this case under Article X:2 would be whether the Chinese 
government and traders in fact received public notice that the USDOC would apply the CVD law to imports from China prior to the application of such law.  Japan does not take any specific position 
of the factual aspect in this case.  Japan respectfully requests that the Panel review the underlying 
facts to determine whether the Chinese government and traders were appropriately informed of the application of CVD measures generally to imports from China so that they had 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. 
5. Japan recalls that the United States also states that “the GPX legislation was officially 
published on its date of adoption, March 13, 2012” , and “Commerce took no action prior to that 
date to enforce”
27 the GPX legislation even if the GPX legislation were within the scope of 
Article X:2.    
6. Japan would welcome further clarification by the United States on this argument. 
Nonetheless, to the extent that, given that the GPX legislation is the relevant measure at issue 
here (as China claims), the United States intends to argue that Article X:2 may permit the application of a more burdensome legislation to action taken by a trader before its publication 
because the actual enforcement action can occur only after the publication, Japan could not agree. 
As discussed, the rationale underlying Article X:2 is  to ensure that an exporting Member and its 
traders be given a prior notice so as to 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 before the measure is in fact  applied.  In this 
manner, Article X:2 may embody the transparency and due process in the international trade rules.  The importing Member, therefore, would have acted inconsistently with Article X:2 if it fails 
to give an exporting Member and traders such noti ce prior to the action of such traders to which 
                                               
23  First Written Submission of the United States ("US FWS"), para. 106. 
24  See US FWS, paras 44-45.  
25  See US FWS, para. 60, citing the decision by the United States Court of International Trade in GPX 
VII at 25 in CHI-8. 
26  Appellate Body Report, US – Underwear , p. 21. 
27  US FWS, para. 119. WT/DS449/R/Add.1  
 
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 the measure at issue applies.  Accordingly, the alleged retroactive application of the GPX 
legislation thus could be inconsistent with Article X:2 if Chinese traders and government did not receive the required public notice of authentic information about the state of the CVD law so as to be aware of it before such traders take action to which the measures apply in a manner that would 
respect the basic principles of transparency and due process.   
 
 
__________