WT/DS437/25  
 
4 May 2018  
(18-2752) Page: 1/2 
  Original: English  
 
 
UNITED STATES – COUNTERVAILING DUTY MEASURES  
ON CERTAIN PRODUCTS FROM CHINA  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY C HINA 
NOTIFICATION OF AN O THER APPEAL BY CHINA  UNDER ARTICLE S 16.4 AND 17 .1  
OF THE UNDERSTANDING  ON RULES AND PROCEDU RES GOVERNING  
THE SETTLEMENT OF DISPUT ES (DSU), AND UNDER RULE 2 3(1) OF  
THE WORKING PROCEDUR ES FOR APPELLATE REV IEW 
The following communication, dated 2 May 2018, from the delegation of China , is being circulated 
to Members.  
 
_______________  
 
1. Pursuant to Article 16.4 and A rticle 17.1 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU) and Rule 23 of the W orking Procedures for 
Appellate  Review (WT/AB/WP/6) ("Working Procedures"), China hereby notifies its decision to 
appeal certain issues of law and legal interpretation contained in the Report of the Panel in 
United  States – Countervailing Duty Measures on Certain Products from China (Article 21.5 – 
China) (WT/DS437/RW) ("Panel Report").  
2. Pursuant to Rule 23(1) of the Working Procedures, Ch ina files this Notice of Other Appeal 
with the Appellate Body Secretariat, along with a written submission prepared in accordance with 
Rule 21(2) of the Working Procedures as required by Rule 23(3).  
3. Pursuant to Rule 23(2)(c)(ii)(C) of the Working Procedure s, this Notice of Other Appeal 
provides an indicative list of paragraphs of the Panel Report containing the errors of law and legal 
interpretation alleged herein, without prejudice to China's ability to refer to other paragraphs of 
the Panel Report in the context of its appeal.  
Review of the Panel's Findings under Article 1.1(a)(1) of the SCM Agreement  
4. China seeks review by the Appellate Body of the Panel's interpretation and application of 
Article 1.1(a)(1) of the SCM Agreement. In particular, China seeks review of the Panel's finding 
that the legal standard for "public body" determinations under Article 1.1(a)(1) does not " require a 
particular degree or nature of connection in all cases between an identified government function 
and the particular financial  contribution at issue".  China respectfully requests that the 
Appellate  Body reverse  this finding, articulated in paragraphs 7.36 and 7.106, as well as the 
Panel's conclusion that  "China failed to demonstrate that the USDOC's public body determinations 
in the relevant Section 129 proceedings are inconsistent wi th Article 1.1(a)(1) of the 
SCM Agreement because they are based on an improper legal standard."  
5. China requests that the Appellate Body  reverse  the Panel's finding in paragraph 7.72 that 
China "failed  to demonstrate that the USDOC misconstrued the concept of 'meaningful control' and 
its relevance to the substantive legal standard for a public body inquiry", as well as the Panel's 
conclusion in paragraph 7.105 that it did "not consider that the USDOC's determinations were 
based on 'mere ownership or control over an entity by a government, without more'", because the 
Panel's conclusions were premised on its disagreement with China concerning the proper legal 
standard.   WT/DS437/25  
 
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  6. China requests that the Appellate Bo dy reverse  the Panel's conclusion in paragraphs 7.103 
and 7.106 that China did not demonstrate that the USDOC acted inconsistently with 
Article 1.1(a)(1) of the SCM  Agreement for having failed to consider relevant evidence on the 
record in the five investigations in which China participated, because this conclusion was also 
premised on the Panel's disagreement with China concerning the proper legal standard.  
7. China r equests that the Appellate Body reverse  the Panel's ultimate conclusion in 
paragraphs 7.107 and 8.1(a) that China did not demonstrate that the United States acted 
inconsistently with Article 1.1(a)(1) of the SCM Agreement in the Pressure Pipe, Line Pipe, L awn 
Groomers, Kitchen Shelving, OCTG, Wire Strand, Seamless Pipe, Print Graphics, Aluminum 
Extrusions, Steel Cylinders, and Solar Panels Section 129 proceedings.  
8. China further requests that the Appellate Body complete the analysis  and find that the 
USDOC' s public body determinations in the relevant Section 129 proceedings are inconsistent with 
Article 1.1(a)(1) of the SCM Agreement because they are based on an improper legal standard.  
9. In relation to the Panel's finding that China failed to demonstrate that  the Public Bodies 
Memorandum is inconsistent "as such" with Article 1.1(a)(1) of the SCM Agreement, China 
requests that the Appellate Body reverse  the Panel's conclusion in paragraph 7.136 that China did  
not demonstrate that the Public Bodies Memorandum i s inco nsistent "as such" with 
Article  1.1(a)(1) of the SCM Agreement because the Public Bodies Memorandum is based on an 
improper legal standard. China requests that the Appellate Body reverse  the Panel's conclusion in 
paragraph 7.142 that the Public Bodie s Memorandum does not restrict in a material way the 
USDOC's discretion to act consistently with Article 1.1(a)(1), as well as the Panel's ultimate 
conclusion to that effect in paragraph 8.1(b).  
10. China further requests that the Appellate Body complete the analysis  and find that the Public 
Bodies Memorandum is inconsistent "as such" with Article 1.1(a)(1) of the SCM Agreement 
because it is premised on an erroneous legal standard and restricts in a material way the USDOC's 
discretion to make a determination c onsistent with Article 1.1(a)(1) of the SCM Agreement.  
Review of the Panel's Findings under Articles 1.1(b) and 14(d) of the SCM Agreement  
11. China seeks review by the Appellate Body of the Panel's interpretation and application of 
Articles 1.1(b) and 14(d) of the SCM Agreement. In particular, China seeks review of the Panel's 
finding that "an investigating authority may reject in -country prices if there is evidence of price 
distortion, and not only if there is evidence that a government 'effectively determin es' the price of 
the goods at issue."1 The Panel found that an investigating authority may reject available in -
country benchmark prices if the investigating authority provides a sufficient explanation of "how 
government intervention in the market resulted in domestic prices for the inputs at issue deviating 
from a market -determined price".2 In reaching these conclusions, the Panel failed to interpret and 
give effect to the term "market" in Article 14(d) of the SCM Agreement, including as that term 
appears w ithin the context of the phrase "prevailing market conditions … in the country of 
provision".  
12. China respectfully requests that the Appellate Body correct the Panel's errors of legal 
interpretation and application, and accordingly modify  the basis for the Panel's conclusion that the 
United States acted inconsistently with Articles 1.1(b) and 14(d) of the SCM Agreement in the 
OCTG, Solar Panels, Pressure Pipe, and Line Pipe Section 129 proceedings.3 
 
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1 Panel Report, para. 7.168.  
2 Panel Report, paras. 7.206.  See also Panel Report, paras. 7.158, 7.205, 7.223.   
3 Panel Report, para. 8.1(c).