WORLD TRADE  
ORGANIZATION   
WT/DS440/2 
18 September 2012  
 
(12-5005) 
 Original:   English 
  
 
CHINA – ANTI-DUMPING AND COUNTERVAILING DUTIES 
ON CERTAIN AUTOMOBILES FROM THE UNITED STATES 
 
Request for the Establishment of a Panel by the United States 
 
 
 The following communication, dated 17 Sept ember 2012, from the delegation of the 
United States to the Chairperson of the Dispute Settl ement Body, is circulated pursuant to Article 6.2 
of the DSU.  
_______________ 
 
 
On July 5, 2012, the United States Governme nt requested consultations with China pursuant 
to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes ( "DSU"), Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 
("GATT 1994"), Article 30 of the Agreement on Subsidies and Countervailing Measures ("SCM 
Agreement") (to the extent that Article 30 inco rporates Article XXIII of the GATT 1994), and Article 
17.3 of the Agreement on Implementation of Article VI of  the General Agreement on Tariffs and Trade 
1994 ("AD Agreement") with respect to China' s measures imposing anti-dumping duties and 
countervailing duties on certain automobiles from the United States.
1  The United States and China 
held such consultations on August 23, 2012.  Unfo rtunately these consultations were unsuccessful in 
resolving this dispute.    
The United States considers that China's me asures imposing anti-dumping and countervailing 
duties on certain automobiles from the United States , as set forth in Ministry of Commerce of the 
People's Republic of China ("MOFCOM") Notice No. 20 [2011] and Notice No. 84 [2011], including 
any and all annexes, are inconsistent with China' s obligations under the following provisions of the 
AD Agreement, SCM Agreement, and GATT 1994:  
Initiation of the Investigation:  Support for the Application  
 1. Article 5.4 of the AD Agreement, and Article  11.4 of the SCM Agreement, because:   
(a) (a)China failed to examine the degree of s upport for, or opposition to, the application 
expressed by domestic producers of the like product prior to initiating the antidumping and countervailing duty investigations; and 
(b) China initiated the investigations when dom estic producers supporting the application 
accounted for less than 25 per cent of tota l production of the like product produced by 
the domestic industry. 
                                                      
1 WT/DS440/1. WT/DS440/2 
Page 2  
 
  All Others Subsidy Rate Determination 
 
2. Article 12.7 of the SCM Agreement, because Ch ina improperly based its determinations on 
the "facts available" in the case of exporters that were not known at the time of the investigation, 
including exporters that were not given notice of the information required by the investigating 
authority.   
3. Article 12.8 of the SCM Agreement, because Ch ina failed to disclose the essential facts under 
consideration which formed the basis of its determin ation regarding the all ot hers subsidy rate, thus 
impairing the interested parties' ability to defend their interests. 
4. Article 22.3 of the SCM Agreement, because Chin a failed to provide in sufficient detail the 
findings and conclusions it reached on all issues of f act and law it considered material in making its 
preliminary and final determinations.  
5. Article 22.5 of the SCM Agreement because Chin a failed to make available all relevant 
information on the matters of fact and law and reasons which led to the imposition of the final 
measure. 
Antidumping Margin:  Disclosure of Data and Calculations   
 
6. Article 6.9 of the AD Agreement, because Ch ina failed to disclose the essential facts under 
consideration which formed the basis of its determ ination, thus impairing the respondents' ability to 
defend their interests.       
All Others Dumping Determination  
 
7. Article 6.8 and paragraph 1 of Annex II of the AD Agreement, because China improperly 
applied facts available in determining the duty rate applicable to exporters that were not known at the 
time of the investigation, including exporters that we re not given notice of the information required by 
the investigating authority.    
8. Article 6.9 of the AD Agreement, because Chin a failed to disclose the "essential facts" under 
consideration which formed the b asis of its determination regardi ng the all others dumping margin, 
thus impairing the respondents' ability to defend their interests.  
9. Article 12.2 of the AD Agreement, because Ch ina failed to provide in sufficient detail the 
findings and conclusions it reached on all issues of fact and law it considered in making its preliminary or final determinations.   
10. Article 12.2.2 of the AD Agreement because Chin a failed to make available all relevant 
information on the matters of fact and law and reasons which led to the imposition of the final 
measure. 
Confidential Information 
 
11. Article  6.5.1 of the AD Agreement, and Ar ticle 12.4.1 of the SCM Agreement, because 
China failed to require the applicant to provide  adequate non-confidentia l summaries of allegedly 
confidential information.  China's treatment of c onfidential information did not allow the interested 
parties to obtain a reasonable understanding of the s ubstance of the confidential information prior to 
the preliminary and final determinations, such that  they could prepare presentations on the basis of 
this information.  China did not give any indicati on that the information could not be summarized and 
did not provide the reasons why summarization was not practicable.   WT/DS440/2 
 Page 3 
 
 
  Injury Determination:  Definition of the Domestic Industry  
 
12. Articles 3.1 and 4.1 of the AD Agreement and Ar ticles 15.1 and 16.1 of the SCM Agreement, 
because China made a determination of injury usin g an improper definition of the domestic industry 
and as a result failed to base its determinati on on positive evidence or conduct an objective 
examination of the facts with respect to the domestic industry producing the subject imports.  
Injury Determination:  Price Effects Analysis 
 
13. Articles 3.1 and 3.2 of the AD Agreement and Ar ticles 15.1 and 15.2 of the SCM Agreement, 
because China failed to establish that  the effect of the allegedly du mped and subsidized imports was 
to depress prices to a significant degree or prevent price increases, which otherwise would have 
occurred, to a significant degree, on the basis of an objective examination of the record and positive 
evidence.  
Injury Determination: Causation  
 14. Article 3.1 of the AD Agreement and Article 15.1 of the SCM Agreement, because China's 
analysis of the alleged causal link was not based  upon an objective examination of the record and 
positive evidence. 
15. Article 3.4 of the AD Agreement and Article 15.4 of the SCM Agreement, because China's 
analysis of the alleged causal link was not based upon an evaluation of all relevant economic factors 
and indices having a bearing on the state of the industry. 
16. Article 3.5 of the AD Agreement and Article 15.5 of the SCM Agreement, because: 
(a) China's analysis of the alleged causal link was not based upon an examination of any 
known factors other than allegedly dumped a nd subsidized imports which at the same 
time were injuring the domestic industry; and 
(b) China failed to meet the requirement that injuries caused by other factors must not be 
attributed to the allegedly dum ped and subsidized imports.  
In view of the claims set forth above, the Un ited States considers that China has also acted 
inconsistently with Article VI of the GATT 1994, Article 1 of the AD Agreement, and Article 10 of 
the SCM Agreement, which only permit antidumpi ng or countervailing duty measures to be applied 
under the circumstances provided for in Article  VI of the GATT 1994 and conducted in accordance 
with the AD Agreement and the SCM Agreement.   
 
These measures also appear to nullify or impair  the benefits accruing to the United States 
directly or indirectly under the cited agreements.   
Therefore, the United States respectfully requ ests, pursuant to Article 6 of the DSU and 
Article 17.4 of the AD Agreement, the Dispute Se ttlement Body establish a panel to examine this 
matter, with the standard terms of reference as set out in Article 7.1 of the DSU.   
__________