WT/DS449/R  
 
27 March 2014  
(14-1816)  Page: 1/128  
  Original: English  
 
  
UNITED STATES – COUNTERVAILING AND ANTI-DUMPING MEASURES 
ON CERTAIN PRODUCTS FROM CHINA 
REPORT OF THE PANEL 
 
 WT/DS449/R 
- 2 - 
 
  TABLE OF CONTENTS 
 
1  INTRODUC TION .................................................................................................. 9  
1.1  Complaint by China .............................................................................................. 9  
1.2  Panel establishmen t and compos ition ...................................................................... 9  
1.3  Panel proceedings ................................................................................................ 9  
1.3.1  General .............................................................................................................. 9  
1.3.2  Preliminary ruling under Article 6.2 of the DSU ........................................................ 10 
2  FACTUAL ASPECTS ............................................................................................ 10  
3  PARTIES' REQUESTS FOR FI NDINGS AND RECOMMENDATIONS ........................ 11  
4  ARGUMENTS OF THE PARTIES ........................................................................... 12  
5  ARGUMENTS OF THE THIRD PARTIES ................................................................ 12  
6  INTERIM REVIEW ............................................................................................. 12  
6.1  Preliminary Ruling under Article 6.2 of the DSU ....................................................... 12 
6.2  Measures  at Issue ............................................................................................... 13 
6.3  China's claim under Ar ticle X:1 of the GATT 1994 .................................................... 13 
6.4  China's claim under Ar ticle X:2 of the GATT 1994 .................................................... 14 
6.5  Claim under Article X:3(b) of the GA TT 1994 ........................................................... 18 
6.6  "Double Remedies": Articles 19. 3, 10 and 32.1 of the SCM Agreement........................ 18 
6.7  Conclusions an d Recommen dation ......................................................................... 20 
7  FINDIN GS ......................................................................................................... 20  
7.1  Preliminary ruling under Article 6.2 of the DSU ........................................................ 20 
7.2  Claims on which findin gs have been requested ........................................................ 21 
7.3  Measures at issue ............................................................................................... 22 
7.3.1  Section 1 of PL 112-99 ........................................................................................ 22 
7.3.2  CVD investigations an d administrati ve reviews ........................................................ 24 
7.4  China's claim under Ar ticle X:1 of the GATT 1994 .................................................... 26 
7.4.1  Is Section 1 a "[l]aw[] … of general application … pertaining to rates of duty, 
taxes or other charges, or to requirements, restrictions or prohibitions on imports"? ........................................................................................................... 27
 
7.4.1.1  Law ..................................................................................................................  28 
7.4.1.2  Law of general application .................................................................................... 29 
7.4.1.3  Law pertaining to rates of duty, or other charges, or to requirements, or 
restrictions, on imports ........................................................................................ 33 
7.4.1.4  Conclusion ......................................................................................................... 34 
7.4.2  When was Sectio n 1 "made e ffective"? ................................................................... 35 
7.4.3  Was Section 1 "published promptly in such a manner as to enable governments 
and traders to beco me acquainted"? ...................................................................... 40 
7.4.4  Overall conclusi on ............................................................................................... 42 
7.5  China's claim under Ar ticle X:2 of the GATT 1994 .................................................... 42 
7.5.1  Has Section 1 been "enforced" before its official  publication? ..................................... 43 WT/DS449/R 
- 3 - 
 
  7.5.2  Is Section 1 "[a] measure of general application taken by [a Member] effecting 
an advance in a rate of duty or other charge on imports under an established 
and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibit ion on impo rts "? ................................................................... 52
 
7.5.2.1  Measure of general app lication taken by a WTO Me mber ........................................... 53 
7.5.2.2  Measure effecting an advance in a rate  of duty or other charge on imports under 
an established and uniform practice, or imposing a requirement, restriction, or 
prohibition, that is ne w or more bu rdensome .......................................................... 55 
7.5.2.3  Conclusion ......................................................................................................... 75 
7.5.3  Overall conclusi on ............................................................................................... 75 
7.5.4  Dissenting opinion ............................................................................................... 75 
7.6  Claim under Article X:3(b) of the GA TT 1994 ........................................................... 85 
7.6.1  The nature of the measure at issue ........................................................................ 87 
7.6.2  Interpretation of Article X:3(b) .............................................................................. 89 
7.6.2.1  Whether Article X:3(b) prohibits a Member from taking legislative action in the 
nature of Sectio n 1 of PL  112- 99 ........................................................................... 89 
7.6.2.2  Whether the obligation in the second sentence of Article X:3(b) is "structural" in 
nature  ............................................................................................................... 97 
7.6.3  Overall conclusi on ............................................................................................... 98 
7.7  "Double Remedies": Articles 19. 3, 10 and 32.1 of the SCM Agreement........................ 98 
7.7.1  The concept of  "double re medies".......................................................................... 99 
7.7.2  The interpretation of Article 19.3 ......................................................................... 101  
7.7.2.1  The task of the Panel in the light of the prior Appellate Body Report in DS379 ............ 102  
7.7.2.2  The meaning of the phrase "in the appropriate amounts" in Article 19.3 .................... 104  
7.7.2.3  Whether an investigating authority is under an affirmative obligation to 
investigate the existence of double remedies ........................................................ 107  
7.7.2.4  Whether the obligation in Article 19.3 applies to original investigations in the 
context of a retrospective sy stem of duty assessmen t ............................................ 112  
7.7.2.5  Overall conclusion on the interpretation of  Article 19.3 ........................................... 115  
7.7.3  The 26 investigat ions and reviews ....................................................................... 115  
7.7.3.1  The measures at issue: USDOC's failure to investigate double remedies in a 
series of investigat ions and re views ..................................................................... 115  
7.7.3.2  Proceeding 26 (Drawn Stainless Steel Sinks) ......................................................... 119  
7.7.3.3  Proceedings 1 through 25 ................................................................................... 120  
7.7.4  Claims under Articles 10 and 32.1 ....................................................................... 126  
7.7.5  Overall conclusi on ............................................................................................. 127  
8  CONCLUSIONS AND RECOMMENDAT ION ......................................................... 127  WT/DS449/R 
- 4 - 
 
  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 
 WT/DS449/R 
- 5 - 
 
  WTO AND GATT CASES CITE D IN THIS REPORT 
Short Title Full Case Title and Citation 
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167 
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/AB/R, adopted 20 Augu st 1999, DSR 1 999:III, p. 1377 
Canada – Renewable Energy 
/ Canada – Feed-in Tariff Program Panel Reports, Canada – Certain Measures Affecting the Renewable Energy 
Generation Sector / Canada – Measures Relating to the Feed-in Tariff Program , 
WT/DS412/R / WT/DS426/R / and Add.1, adopted 24 May 2013, as modified by Appellate Body Reports WT/DS412/AB/R / WT/DS426/AB/R  
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted 12 
January 2009, DSR 2009:I, p. 3 
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of Various 
Raw Materials , WT/DS394/AB/R / WT/DS395/AB /R / WT/DS398/AB/R, adopted 
22 February 2012 
China – Raw Materials  Panel Reports, China – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R / WT/DS395/R / WT/DS398/R / and Corr.1, adopted 22 
February 2012, as modified by Appellate Body Reports WT/DS394/AB/R / 
WT/DS395/AB/R / WT/DS398/AB/R 
Dominican Republic – 
Import and Sale of Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, adopted 19 May 
2005, DSR 2005:XV, p. 7367 
EC – Chicken Cuts Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 
September 2005, and Corr.1, DSR 2005:XIX, p. 9157 
EC – Computer Equipment Appellate Body Report, European Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, 
adopted 22 June 1998, DSR 1998:V, p. 1851 
EC – IT Products Panel Reports, European Communities and its me mber States – Tariff Treatment 
of Certain Information Technology Products , WT/DS375/R / WT/DS376/R / 
WT/DS377/R, adopted 21 September 2010, DSR 2010:III, p. 933 
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 1998, 
DSR 1998:V, p. 2031 
EC – Seal Products Panel Reports, European Communities – Measures  Prohibiting the Importation 
and Marketing of Seal Products , WT/DS400/R / WT/DS401/R and Add.1, 
circulated to WTO Members 25 November 2013 [adoption/appeal pending] 
EC – Selected Customs 
Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791 
EC – Selected Customs 
Matters Panel Report, European Communities – Selected Customs Matters , 
WT/DS315/R, adopted 11 December 2006, as modified by Appellate Body 
Report WT/DS315/AB/R, DSR 2006:IX, p. 3915 
EEC – Apples (US)  GATT Panel Report, European Economic Community – Restrictions on Imports 
of Apples – Complaint by the United States , L/6513, adopted 22 June 1989, 
BISD 36S, p. 135 
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain Footwear 
from China , WT/DS405/R, adopted 22 February 2012 
India – Patents (US) Appellate Body Report, India – Patent Protection  for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, p. 9 WT/DS449/R 
- 6 - 
 
  Thailand – Cigarettes 
(Philippines) Appellate Body Report, Thailand – Customs and Fiscal  Measures on Cigarettes 
from the Philippines , WT/DS371/AB/R, adopted 15 July 2011, DSR 2011:IV, 
p. 2203 
US – Anti-Dumping and 
Countervailing Duties (China) Appellate Body Report, United States – Definitive Anti-Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R, adopted 
25 March 2011, DSR 2011:V, p. 2869 
US – Anti-Dumping and 
Countervailing Duties 
(China) Panel Report, United States – Definitive Anti-D umping and Countervailing Duties 
on Certain Products from China , WT/DS379/R, adopted 25 March 2011, as 
modified by Appellate Body Report WT/DS379/AB/R, DSR 2011:VI, p. 3143 
US – Anti-Dumping 
Measures on Oil Country Tubular Goods Panel Report, United States – Anti-Dumping Measures on Oil Country Tubular 
Goods (OCTG) from Mexico , WT/DS282/R, adopted 28 November 2005, as 
modified by Appellate Body Report WT/DS282/AB/R, DSR 2005:XXI, p. 10225 
US – Carbon Steel Appellate Body Report, United States – Countervai ling Duties on Certain 
Corrosion-Resistant Carbon Stee l Flat Products from Germany , WT/DS213/AB/R 
and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779 
US – Continued Zeroing Appellate Body Report, United States – Continued Ex istence and Application of 
Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009, 
DSR 2009:III, p. 1291 
US – Countervailing 
Measures on Certain EC 
Products Appellate Body Report, United States – Countervailing Measures Concerning 
Certain Products from th e European Communities , WT/DS212/AB/R, adopted 8 
January 2003, DSR 2003:I, p. 5 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 20 April 
2005, DSR 2005:XII, p. 5663 (Corr.1, DSR 2006:XII, p. 5475) 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3 
US – Hot-Rolled Steel Panel Report, United States – Anti-Dumping Measures on Certain Hot-Rolled 
Steel Products from Japan , WT/DS184/R, adopted 23 August 2001 modified by 
Appellate Body Report WT/DS184/AB/R, DSR 2001:X, p. 4769 
US – Large Civil Aircraft 
(2nd complaint) Appellate Body Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R, adopted 23 March 2012 
US – Large Civil Aircraft 
(2nd complaint) Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft 
(Second Complaint) , WT/DS353/R, adopted 23 March 2012, as modified by 
Appellate Body Report WT/DS353/AB/R 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, p. 3257 
US – Section 129(c)(1) 
URAA Panel Report, United States – Section 129(c)(1) of the Uruguay Round 
Agreements Act , WT/DS221/R, adopted 30 August 2002, DSR 2002:VII, 
p. 2581 
US – Shrimp 
(Article 21.5 – Malaysia) Appellate Body Report, United States – Import Proh ibition of Certain Shrimp 
and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6481 
US – Stainless Steel 
(Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on 
Stainless Stee l from Mexico , WT/DS344/AB/R, adopted 20 May 2008, 
DSR 2008:II, p. 513 
US – Stainless Steel (Korea) Panel Report, United States – Anti-Dumping Measures on Stainless Steel Plate 
in Coils and Stainless Stee l Sheet and Strip from Korea , WT/DS179/R, adopted 
1 February 2001, DSR 2001:IV, p. 1295 
US – Underwear Appellate Body Report, United States – Restrictions  on Imports of Cotton and 
Man-made Fibre Underwear , WT/DS24/AB/R, adopted 25 February 1997, 
DSR 1997:I, p. 11 
US – Underwear Panel Report, United States – Restrictions on  Imports of Cotton and Man-made 
Fibre Underwear , WT/DS24/R, adopted 25 February 1997, as modified by 
Appellate Body Report WT/DS24/AB/R, DSR 1997:I, p. 31 WT/DS449/R 
- 7 - 
 
  US – Upland Cotton 
(Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse 
to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 20 June 2008, 
DSR 2008:III, p. 809 
US – Wool Shirts and 
Blouses Appellate Body Report, United States – Measure A ffecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R, adopted 23 May 1997, and 
Corr.1, DSR 1997:I, p. 323 
US – 1916 Act (EC) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by the 
European Communities , WT/DS136/R and Corr.1, adopted 26 September 2000, 
upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, p. 4593 WT/DS449/R 
- 8 - 
 
  ABBREVIATIONS USED IN THIS REPORT 
Abbreviation Description 
AD Anti-dumping 
Anti-Dumping Agreement Agreement on Implementation of Article VI  of the General Agreement on Tariffs  
and Trade 1994 
ATC Agreement on Textiles and Clothing 
CFS Paper US Court of International Trade, Governme nt of the People’s Republic of China 
v. United States, 483 F. Supp. 2d 1274 (CIT 2007) 
CAFC United States Court of Appeals for the Federal Circuit 
CIT United States Court of International Trade 
CVD Countervailing duty 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures  Governing the Settlement of Disputes 
GATT 1947 General Agreement on Tariffs and Trade 1947 
GATT 1994 General Agreement on Tariffs and Trade 1994 
GAO United States Government  Accountability Office 
Georgetown Steel US Court of Appeals for the Federal Circuit, Georgetown Steel Corp. v. 
United States, 801 F.2d 1308, 1310 (Fed. Cir. 1986) 
GPX I US Court of International Trade, GPX Int'l Tire Corp. v. United States, 587 F. 
Supp. 2d 1278 (CIT 2008) 
GPX II US Court of International Trade, GPX Int'l Tire Corp. v. United States, 645 F. 
Supp. 2d 1231 (CIT Sept. 18, 2009) 
GPX III US Court of International Trade, GPX Int'l Tire Corp. v. United States, 715 F. 
Supp. 2d 1337 (CIT Aug. 4, 2010) 
GPX IV US Court of International Trade, GPX Int'l Tire Corp. v. United States, slip op. 
2010-112 (CIT Oct. 1, 2010) 
GPX V US Court of Appeals for the Federal Circuit, GPX Int'l Tire Corp. v. 
United States, 666 F.3d 732 (Fed. Cir. 2011) 
GPX VI US Court of International Trade, GPX Int'l Tire Corp. v. United States, 678 F.3d 
1308 (Fed. Cir. 2012) 
GPX VII US Court of International Trade, GPX Int'l Tire Corp. v. United States, slip op. 
13-2, p. 12 (CIT Jan. 7, 2013) 
NME Non-market economy 
PL 112-99 US 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", 
126 Sta. 265 (Mar. 13, 2012) 
SCM Agreement Agreement on Subsid ies and Countervailing Measures 
The Shorter Oxford 
Dictionary  (1993) New Shorter Oxford English Dictionary, 1993 (4th edition), Volumes I and II 
The Shorter Oxford 
Dictionary  (2002) New Shorter Oxford English Dictionary, 2002 (5th edition), Volumes I and II 
USCBP United States Customs and Border Protection 
USDOC United States Department of Commerce 
USITC United States International Trade Commission 
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 1155 
UNTS 331; 8 International Legal Materials 679 
WTO World Trade Organization 
WTO Agreement Marrakesh Agre ement Establishing the WTO WT/DS449/R 
- 9 - 
 
  1  INTRODUCTION 
1.1  Complaint by China 1.1.  On 17 September 2012, China requested consultations with the United States pursuant to 
Article 4 of the Understanding on Rules and Pr ocedures 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), and Article 17 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994 (AD Agreement) with respect to the measures and claims set out below.
1 
1.2.  Consultations were held on 5 November 2012. These failed to resolve the dispute. 1.2  Panel establishment and composition 1.3.  On 19 November 2012, China requested the es tablishment of a panel pursuant to Articles 4.7 
and 6 of the DSU with standard terms of reference.
2 At its meeting on 17 December 2012, the 
Dispute Settlement Body (DSB) established a panel pursuant to the request of China in document WT/DS449/2, in accordance with Article 6 of the DSU.
3 
1.4.  The Panel's terms of reference are the following: 
To examine, in the light of the relevant pr ovisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by China in document 
WT/DS449/2 and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.4 
1.5.  On 21 February 2013, China requested the Director-General to determine the composition of 
the panel, pursuant to Article 8.7 of the DSU. On 4 March 2013, the Director-General accordingly 
composed the Panel as follows: 
Chairperson: Mr José Graça Lima 
 
Members:  Mr Donald Greenfield 
    Mr Arie Reich  
1.6.  Australia, Canada, the European Union, India, Japan, Russian Federation, Turkey, and 
Viet Nam notified their interest in participating in the Panel proceedings as third parties. 
1.3  Panel proceedings 1.3.1  General 
1.7.  After consultation with the parties, the Panel adopted its Working Procedures
5 on 
14 March 2013 and its timetable on 28 March 2013. 
1.8.  The Panel held a first substantive meeting with the parties on 2-3 July 2013. A session with 
the third parties took place on 3 July 2013. The Pa nel held a second substantive meeting with the 
parties on 27-28 August 2013. On 30 September 2013, the Panel issued the descriptive part of its Report to the parties. The Panel issued its Interim Report to the parties on 15 November 2013. 
The Panel issued its Final Report to the parties on 20 December 2013. 
                                               
1 China's request for cons ultations, WT/DS449/1. 
2 China's request for the establis hment of a panel, WT/DS449/2. 
3 WT/DSB/M/327. 
4 WT/DS449/3. 
5 See the Panel's Working Procedures in Annex A-1. WT/DS449/R 
- 10 - 
 
  1.3.2  Preliminary ruling under Article 6.2 of the DSU 
1.9.  On 15 March 2013, the United States submitted to the Panel a request for a preliminary 
ruling with respect to the consistency of certain aspects of China's request for the establishment of a panel (panel request) with Article 6.2 of the DSU. The United States requested that the Panel 
issue a preliminary ruling before the filing of the first written submissions of the parties.
6 In 
contrast, China argued that the Panel should rule on the preliminary ruling request at a later stage of the proceedings.
7 Ultimately, the Panel decided to issue a preliminary ruling prior to the filing of 
the first written submissions of the parties. The Panel provided the United States with an 
opportunity to submit written comments on China's panel request. As neither party requested a hearing on the preliminary ruling issue, the parties were given an opportunity to submit further written comments to respond to each other's comments on the United States' request. The Panel 
invited the third parties to submit any written comm ents they might have in response to the views 
expressed by the parties.
8 The Panel also posed several written questions to the parties and third 
parties, and gave China and the United States the opportunity to submit comments on the 
responses received.9  
1.10.  On 7 May 2013, the Panel issued its preliminary ruling to the parties and provided a copy to 
the third parties, with an indication that the ruling would become an integral part of the Panel's 
final report, subject to any changes that may be necessary in the light of comments received from 
the parties at the interim review stage. After consulting the parties, the Panel requested the Chairperson of the DSB to circulate the ruling to the WTO membership. The ruling was circulated on 7 June 2013 as document WT/DS449/4. 
2  FACTUAL ASPECTS 
2.1.  China identified the following measures in its panel request: 
a. Sections 1 and 2 of United States Public Law 112-99 , "An act to apply the countervailing 
duty provisions of the US Tariff Act of 1930 to nonmarket economy countries, and for 
other purposes " (P.L. 112-99); 
b. any and all determinations or actions by the United States Department of Commerce 
(USDOC), the United States International Trade Commission (USITC), or United States 
Customs and Border Protection (USCBP) relating to the imposition or collection of countervailing duties on products imported into the territory of the United States from the People's Republic of China, where such determinations or actions were made or 
performed in connection with countervailing duty investigations or reviews initiated 
between 20 November 2006 and 13 March 2012; 
c. the anti-dumping measures listed in Append ix B of its panel request, including the 
definitive anti-dumping duties imposed pursuant to their authority, as well as the 
combined effect of these anti-dumping measures and the parallel countervailing duty measures identified in Appendix A of its panel request; and 
d. the failure of the United States to provide th e USDOC with legal authority to identify and 
avoid the double remedies that are likely to result when the USDOC applies countervailing duties in conjunction with anti-dumping duties determined in accordance with the US non-market economy methodology, in respect of investigations or periodic 
reviews initiated between 20 November 2006 and 13 March 2012. 
                                               
6 The United States' letter to the Panel dated 15 March 2013. 
7 China's letter to the Panel dated 19 March 2013.  
8 The European Union submitted comments on the United States' preliminary ruling request on 
11 April 2013. 
9 The parties, Australia, the Euro pean Union, and Japan submitted responses to the Panel on 19 April 
2013. Furthermore, on 24 April 2013 the parties provided comments on each other's responses, and on those of the third parties.  WT/DS449/R 
- 11 - 
 
  3  PARTIES' REQUESTS FOR FI NDINGS AND RECOMMENDATIONS 
3.1.   China identified a number of claims in its panel request: 
a. Section 1 of P.L. 112-99, including the new Section 701(f) of the United States Tariff Act 
which it establishes, is inconsistent as such with Articles X:1, X:210, X:3(a), and X:3(b) 
of the GATT 1994; 
b. Section 2 of P.L. 112-99 amending Section 777A of the United States Tariff Act is 
inconsistent as such with Article X:3(a) of the GATT 1994; 
c. the United States lacks legal authority to identify and avoid double remedies in respect 
of certain investigations and reviews initiated between 20 November 2006 and 13 March 2012, and is thereby prevented in a ll such investigations and reviews, from 
ensuring that the imposition of countervailing duties is consistent with Articles 10, 15, 
19, 21, and 32 of the SCM Agreement and Article VI of the GATT 1994, and from 
ensuring that the imposition of anti-dumping duties in the associated anti-dumping investigations and reviews is consistent with Articles 9 and 11 of the AD Agreement and 
Article VI of the GATT 1994; 
d. the United States failed to investigate and avoid double remedies in certain 
investigations and reviews initiated between 20 November 2006 and 13 March 2012; 
that the resulting countervailing duty meas ures, including any countervailing duties 
collected pursuant to their authority, are inconsistent with Articles 10, 15, 19, 21, and 32 of the SCM Agreement and Article VI of  the GATT 1994; and that the associated 
anti-dumping measures in each such instance, including any anti-dumping duties 
collected pursuant to their authority, are inconsistent with Articles 9 and 11 of the AD 
Agreement and Article VI of the GATT 1994. 
3.2.  China subsequently indicated that it had de cided to narrow the scope of its claims in this 
dispute.
11 Accordingly, as elaborated in the Panel's preliminary ruling and in paragraphs 7.6-7.8, 
China requests the Panel to find that: 
a. Section 1 of P.L. 112-99, including the new Section 701(f) of the United States Tariff Act 
which it establishes, is inconsistent as such with Articles X:1, X:212, and X:3(b) of the 
GATT 1994; 
b. the United States failed to investigate and avoid double remedies in certain 
investigations and reviews initiated between 20 November 2006 and 13 March 2012; 
and that the resulting countervailing duty measures, including any countervailing duties 
collected pursuant to their authority, are inconsistent with Articles 10, 19,  and 32 of the SCM Agreement. 
3.3.  China further requests, pursuant to Article 19.1 of the DSU, that the Panel recommend that 
the United States bring its measures into conformity with its WTO obligations. 
3.4.  The United States requests that the Panel reject all of China's claims in this dispute. 
                                               
10 China further considers that all determinations or actions by the US authorities between 20 November 
2006 and 13 March 2012 relating to the imposition or collec tion of countervailing duties on Chinese products, 
as described in the second paragraph under "Measures", in its panel request, including the ongoing conduct of 
maintaining and enforcing countervailing duty measures resulting from investigations initiated during this period, are inconsistent with Article X of the GATT 1994. In China's view, this is because, inter alia, these 
determinations and actions enforce a measure of general a pplication prior to its offici al publication. (China's 
request for the establishmen t of a panel, pp. 1-2). 
11 In its letter to the Panel of 25 March 2013, China indicated that it would not pursue its claims in Parts 
C and D of its panel request, except for those under Articles 10, 19, and 32 of the SCM Agreement, as set forth 
in Part D. Moreover, in response to Panel question No. 39, China indicated that it is not pursuing its claims 
under Article X:3(a) of the GATT 1994. 
12 See fn. 10.  WT/DS449/R 
- 12 - 
 
  4  ARGUMENTS OF THE PARTIES 
4.1.  The arguments of the parties are reflecte d in their executive summaries, provided to the 
Panel in accordance with paragraph 18 of the Working Procedures adopted by the Panel (see 
Annexes B-1 and B-2). 
5  ARGUMENTS OF THE THIRD PARTIES 
5.1.  The arguments of Australia, Canada, the European Union, and Japan are reflected in their 
executive summaries, provided in accordance with paragraph 19 of the Working Procedures 
adopted by the Panel (see Annexes C-1, C-2, C-3, and C-4). Canada did not make an oral 
statement. India, Russian Federation, Turkey, and Viet Nam did not submit written or oral 
statements to the Panel. 
6  INTERIM REVIEW 
6.1.  On 15 November 2013, the Panel submitted its Interim Report to the parties. On 
29 November 2013, China and the United States each  submitted written requests for the review of 
precise aspects of the Interim Report. Neither pa rty requested an interim review meeting. On 
13 December 2013, both parties submitted comments on each other's requests for review. 
6.2.  In accordance with Article 15.3 of the DSU, this section of the Panel Report sets out the 
Panel's response to the parties' requests made at the interim review stage. The Panel modified 
aspects of its Report in the light of the parties'  comments where it considered it appropriate, as 
explained below. References to sections and paragraph numbers in this section relate to the Interim Report, except as otherwise noted.  
6.3.  In addition to the modifications specified below, the Panel also corrected a number of 
typographical and other non-substantive errors throughout the Report, including those identified 
by the parties. 
6.4.  In order to facilitate understanding of the interim review comments and changes made, the 
following section is structured to follow the organization of the findings section of this Report 
(Section 7), with the review requests of the pa rties, and their comments, addressed sequentially, 
according to the paragraph numbers that attracted comments. 
6.1  Preliminary Ruling under Article 6.2 of the DSU 
6.5.  Regarding paragraph 7.5 of the findings section, the United States considers that the findings 
contained in a preliminary ruling should be set out as a part of a panel's report, rather than being incorporated by reference. The United States submits that this would be more consistent with the 
process for drafting and review of a panel's findings set out in Article 15 of the DSU, and would 
also be of considerable benefit to Members and the public as they would not need to locate and download an additional document to be able to review all of the Panel's findings. 
6.6.  The Panel recalls that, following consultation with the parties, we publicly circulated an 
18-page preliminary ruling to the DSB as document WT/DS449/4. Paragraph 4.3 of that preliminary ruling clarified that "[t]his preliminary ruling will become an integral part of the Panel's 
final report, subject to any changes that may be necessary in the light of comments received from 
the parties at the interim review stage". We have reiterated in paragraph 7.5 of this Report that our preliminary ruling "forms an integral part of the present findings". Also, neither party provided comments on the substance of our preliminary ruling at the interim review stage. These 
considerations lead us to conclude that it is unnecessary to reproduce our preliminary ruling in this 
Report. Furthermore, the United States has not explained how Members or others who are able to locate and download this Report would have any difficulty in locating and downloading our 
preliminary ruling contained in document WT/DS4 49/4. Other panels have adopted the economical 
technique of incorporating previously-circulated preliminary rulings by reference into their reports
13, and at least one previous panel expressly declined a request to reproduce such a ruling 
                                               
13 Panel Reports, EC – Seal Products , para. 1.21 and fn. 18. WT/DS449/R 
- 13 - 
 
  in its report on the grounds that it was unnecessary.14 Based on the foregoing, we decline the 
United States' request that we reproduce the body of our 18-page preliminary ruling in our Report.  
6.2  Measures at Issue  6.7.  Regarding paragraph 7.12, the United States requests that the Panel revise this sentence to 
reflect the fact that the United States refers to the entirety of PL 112-99 as the " GPX legislation".  
6.8.  The Panel has revised paragraph 7.12 in accordance with the United States request.  6.9.  Regarding the table at paragraph 7.15, the United States notes that the second column of 
the table had been left blank, and suggests that this column be numbered to correspond to the 
table in Exhibit CHI-24. The United States fu rther requests that the phrase "Preliminary 
Determination" be added to the official name of the last two anti-dumping and countervailing proceedings.  
6.10.  The Panel added the missing information to this table, as suggested by the United States.    
6.3  China's claim under Article X:1 of the GATT 1994 6.11.   Regarding paragraph 7.23, the United States suggests inserting a reference to China's 
claim to capture more accurately the United States' arguments.  
6.12.  The Panel notes that paragraph 7.23 correctly reflects the United States' arguments. 
Nevertheless, the Panel accepted to add a phrase that appropriately clarifies the paragraph in 
question.  
6.13.  Regarding paragraph 7.26, the United Stat es suggests that the Panel avoid a duplicative 
reference when referring to the United St ates legislature in the fourth sentence. 
6.14.  The Panel made a change to paragraph 7.26 to include in the sentence what had been 
inadvertently omitted and ensure consistency with paragraph 7.67. 
6.15.  Regarding paragraphs 7.27, 7.28 and 7.29, the United States suggests that to avoid 
confusion, the Panel use the word "statute" instead of "law" in paragraph 7.27, delete a reference 
to Section 1 as an integral part of a law in paragraph 7.28, and replace the term "statutory 
provision" by "law" in paragraph 7.29. 
6.16.  The Panel does not agree that the paragraphs  in question gave rise to possible confusion, 
but has nonetheless made certain editorial changes to paragraphs 7.27, 7.28 and 7.29 to reflect 
the United States' request.  
6.17.  Regarding paragraph 7.31, the United States suggests deleting the second footnote in order 
to avoid providing an interpretation of a provision that would not appear necessary and proposes 
an alternative text. 
6.18.  The Panel deleted the footnote in question.  6.19.  Regarding paragraphs 7.32, 7.83 and 7.109, the United States suggests that the Panel not 
use the term "WTO dispute settlement practice" in the interest of clarity and to refer instead to 
"panel and Appellate Body reports". 
6.20.  The Panel made the requested change in paragraph 7.32, and made appropriate changes to 
paragraphs 7.83 and 7.109. 
6.21.  Regarding paragraph 7.39, the United States suggests that the Panel mention that the term 
"nonmarket economy country" is defined in Section 771(18) of the United States Tariff Act of 1930, as amended, and that it add the definiti on to the first footnote of the paragraph. 
                                               
14 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 6.7. WT/DS449/R 
- 14 - 
 
  6.22.  The Panel added appropriate language to the first footnote of paragraph 7.39 to explain the 
term "nonmarket economy".  
6.23.  Regarding paragraph 7.46, the United States suggests that the Panel replace the term "rule" 
with the term "statutory provision" and the term "governments" with "WTO Members". 
6.24.  The Panel replaced the word "rule" with "provision". However, we do not find it appropriate 
to replace the term "Member governments", as the paragraph in question concerns Article X:1, which specifically refers in relevant part to "governments". 
6.4  China's claim under Article X:2 of the GATT 1994 
6.25.   Regarding paragraph 7.103, the United States suggests revisions of the Panel's summary of 
the United States' arguments to provide further ex planation of the United States' use of the term 
"secret", saying this would provide a more complete record of its arguments.  
6.26.  The Panel appropriately supplemented its summary of the United States' arguments in 
paragraph 7.103 on the basis of paragraph 4 of th e United States' second written submission and 
paragraph 50 of the United States' second oral statement.  
6.27.  Regarding paragraph 7.112, the United States suggests that the Panel delete the word 
"merely" and replace it with the term " inter alia " to reflect more accurately its position. 
6.28.  China requests that the Panel reject the Un ited States' request to modify this paragraph. 
According to China, the United States never identified any other purpose of Article X:2 that would 
distinguish it from the prompt publication requirement of Article X:1. In China's view, it would therefore be inaccurate to replace the word "merely" with " inter alia ". 
6.29.  The Panel deleted the word "merely" from paragraph 7.112.  
6.30.  Regarding paragraphs 7.120, 7.121, 7.122 and 7.188, the United States requests that the 
Panel add the word "pending" in a number of instances and the word "active" in one case. The United States further suggests adding references to 20 November 2006. In relation to paragraph 
7.122, the United States also argues that it would be more accurate to state that Section 1(b) 
"was applicable" to relevant CVD proceedings predating the publication of Section 1 rather than "applied" by US administrative agencies. The United States notes in this respect that the second 
sentence of paragraph 7.257 also discusses Section 1(b) and uses the word "applicable". 
6.31.  China submits that the Panel should reject the United States' request to modify the 
identified paragraphs. Section 1(b) contains neither the term "pending" nor the term "active". In China's view, the addition of these terms would therefore not more accurately reflect the language 
of the relevant provision. Regarding the separa te comment about paragraph 7.122, China submits 
that the Panel should reject the United States' request to make the suggested change. China submits hat the United States has failed to explain how or why a statutory provision could "apply 
to" countervailing duty proceedings initiated on or after 20 November 2006 without requiring the 
relevant administrative agencies to "apply" the provision to these proceedings as a matter of law. 
China further argues that the Panel's statement in paragraph 7.122 follows directly from its 
analysis of the text of Section 1 in paragraph 7.120.  
6.32.  The Panel notes that the United States did not explain the asserted inaccuracy that in its 
view would make it appropriate to add the words "pending" and "active". Also, these words are not 
actually used in Section 1(b). Therefore, we did not make these changes to paragraphs 7.120, 
7.121, 7.122 and 7.188. Moreover, a careful reading of paragraph 7.121 indicates that the 
suggested references to 20 November 2006 are unnecessary. As regards paragraph 7.122, we added explicit references to the relevant time-periods. While we had no difficulty deleting two 
parallel phrases in response to the United States' suggestion, we do not agree with the United 
States that it is more accurate to use the phrase "was applicable" when referring to Section 1(b). Indeed, the text of Section 1(b) uses the term "applies to". For this reason, we also modified 
paragraph 7.257 to use the actual statutory term there as well. As part of its comments on 
paragraph 7.122, the United States asserts that relevant United States administering agencies did not take any affirmative actions to apply or administer Section 1(b) to the CVD proceedings WT/DS449/R 
- 15 - 
 
  initiated between 20 November 2006 and 13 March 2012. Even if true, however, this would not 
detract from our statements at, for instance, paragraphs 7.122, 7.125 or 7.188. Section 1(b) required United States administering agencies to apply the new Section 701(f). Also, the absence 
of "affirmative actions" would not imply that Section 701(f) has not been applied since 13 March 
2012 with a view to ensuring its observance. Rather, it would indicate that in the view of the 
administering agencies there was no need to disco ntinue previous actions, or take additional 
actions, after Section 1(b) had entered into force. 
6.33.  Regarding paragraph 7.124, the United States requests that the Panel replace the phrase 
"relies on the fact" in the first sentence with "argues". The United States submits that Section 1 did not replace the underlying legal authority for USDOC to initiate CVD investigations from 20 November 2006 to 13 March 2012. 
6.34.  China submits that the Panel should reject the United States' request to modify the 
paragraph, because the statement in relevant part reflects a fact, not an "argument". In China's view, Section 701(f) provided the legal basis for th e application of countervailing duties to imports 
from NME countries after 20 November 2006. China further notes that the parties disagree as to 
whether Section 701(a) also provided legal authority for USDOC to apply countervailing duties to imports from NME countries prior to the enactment of Section 701(f).  
6.35.  The Panel made appropriate changes to the first sentence of paragraph 7.124. 
6.36.  Regarding paragraph 7.150, the United St ates requests that the Panel provide a summary 
of the United States' explanation in response to an argument by China that the CAFC failed to vacate in GPX V .  
6.37.  The Panel added two sentences at the end of paragraph 7.150, noting, however, that the 
United States' position was already reflected in footnote 293. 
6.38.  Regarding paragraph 7.162, China requests that the Panel delete part of, or make a change 
to, the second sentence to avoid the appearance that it is making a finding regarding whether 
Section 701(a) provided a legal basis for applying CVDs to imports from NME countries. China considers that this is a contested issue of fact and that the Panel majority need not make a finding 
in this respect to resolve China's claim.  
6.39.  The United States does not support Chin a's request to modify the second sentence of 
paragraph 7.162, because the sentence describes the Panel's understanding of the statutory authority for USDOC's application of United States CVD law to imports from a country, including an 
NME country. According to the United States, that understanding is based on the plain text of 
Section 701(a) of the United States' Tariff Act, wh ich states that where USDOC determines that "a 
country" is providing a countervailable subsidy, a countervailing duty "shall be" imposed upon the 
imported merchandise. 
6.40.  The Panel added a reference to USDOC in the second sentence in order to clarify the 
sentence. 
6.41.  Regarding paragraph 7.163, the United States suggests that in the fifth sentence the Panel 
replace the term "would" with "must", as this wo uld more accurately reflect the requirements of 
United States law. 
6.42.  The Panel made the requested change in the fifth sentence of paragraph 7.163.  
6.43.  Regarding paragraph 7.170, the United States suggests that the Panel delete the word 
"general" from the last sentence. 
6.44.  The Panel made the requested change in the last sentence of paragraph 7.170. 
6.45.  Regarding paragraph 7.174, China requests that the Panel delete part of, or make a change 
to, the fourth sentence in order to avoid what it views as a factually inaccurate statement regarding whether the scope of the CAFC's decision in Georgetown Steel  was resolved prior to 
enactment of Section 1 of PL 112-99. WT/DS449/R 
- 16 - 
 
  6.46.  The United States does not support China's request to delete or modify the fourth sentence 
of paragraph 7.174. The United States considers that the Panel's statement that the disagreement 
over the scope of the Georgetown Steel  ruling was not resolved is clear and accurate. According to 
the United States, the evidence before the Panel established that no United States court had 
resolved the disagreement over the scope of the Georgetown Steel  ruling prior to the enactment of 
Section 1 of PL 112-99. The United States further observes that the issue was also not resolved by the CAFC's opinion in GPX V , because an appeal was pending when Section was enacted and a 
mandate was never issued for the GPX V  opinion. 
6.47.  The Panel made an addition to the fourth sentence in order to enhance clarity. 6.48.  Regarding paragraph 7.183, the United States suggests that the Panel add a reference in 
the footnote to the United States' comments on China's response to Panel question No. 96,  
concerning application  of the Appellate Body's guidance in  US – Shrimp (Article 21.5 – Malaysia)  to 
the treatment of the CAFC's opinion in GPX V . 
6.49.  China submits that the Panel should reject the United States' request for a citation to its 
arguments about the Appellate Body report in US – Shrimp (Article 21.5 – Malaysia) . In China's 
view, if the Panel considers that the Appellate Body report in that dispute supports its reasoning, then a citation to that report is sufficient and there is no need to refer to one party's argument 
concerning that Appellate Body report.   
6.50.  The Panel does not find it appropriate to refer to the United States' arguments in a footnote 
that relates to the Panel's analysis. We also note that the United States' comments on China's response to Panel question No. 96 are already referenced in footnote 299. 
6.51.  Regarding paragraph 7.190, China requests th at the Panel restate part of the final sentence. 
China argues that this would ensure that the Panel's statement about the lawfulness aspect is not misconstrued. China recalls that in its view USDOC's application of CVDs to imports from China 
prior to 13 March 2012 was unlawful in the sense that it was not in accordance with United States 
law as it then existed.  
6.52.  The United States believes that the Panel's statement in paragraph 7.190 is clear and an 
accurate assessment of the record, and therefore should not be modified. According to the United 
States, the evidence before the Panel demonstrates  that USDOC's interpretation of United States' 
CVD law as being applicable to NME countries has been and is governing United States law. As there has been no final court decision finding that USDOC's interpretation is unreasonable or 
contrary to the plain text of the statute, th ere is no evidence demonstrating that USDOC's 
interpretation was unlawful. 
6.53.  The Panel clarified the last sentence in a manner that is consistent with paragraphs 7.165 
and 7.171.  
6.54.  Regarding paragraph 7.203, the United States suggests insertion of the term "published" 
when describing the practice or interpretation of an administering agency under United States law. 
The United States submits that USDOC notified China and other interested parties of the 
application of United States CVD law to China on multiple occasions since November 2006. 
6.55.  China submits that the Panel should reject th e United States' request for modification of this 
paragraph. In China's view, it would be inaccurate and misleading to suggest that USDOC had a 
published practice or published interpretation concer ning the application of countervailing duties to 
imports from NME countries. China contends that the last "practice" or "interpretation" published by USDOC concerning the application of countervailing duties to imports from NME countries was 
and remains the statement in the preamble to its 1998 countervailing duty regulations. According 
to China, the Panel should not modify the paragraph to imply that that USDOC published its subsequent practice or interpretation in the same manner as its 1998 countervailing duty 
regulations.   
6.56.  The Panel made appropriate changes to the first, second and sixth sentences of paragraph 
7.203 in response to the United States' request that  it reflect that USDOC notified China and other 
interested parties. WT/DS449/R 
- 17 - 
 
  6.57.  Regarding paragraph 7.212, the United States suggests that it would be helpful to identify 
with greater precision the findings of the majority opinion that the dissenting panelist agrees with and those that he does not agree with. 
6.58.  The dissenting panelist appropriately clarified paragraph 7.212. 
6.59.  Regarding paragraph 7.216, the United States suggests that the dissenting panelist delete 
the penultimate sentence and footnote, as the United States does not agree that it did not have the authority or could not apply CVDs to NME countries prior to the enactment of Section 1. 
6.60.  The dissenting panelist amended the relevant sentence and footnote from paragraph 7.216. 
6.61.  Regarding paragraph 7.225, the United States suggests that to ensure consistency with 
regard to how the United States constitutional law experts relied on by the parties are referred to in the dissenting opinion, the dissenting panelist delete certain terms from the last sentence of the 
paragraph.  
6.62.  The dissenting panelist made an appropriate change to the last sentence of paragraph 
7.225. 
6.63.  Regarding paragraph 7.226, the United States suggests that the phrase relating to USDOC 
in the fourth sentence be replaced by the term "Congress", because USDOC has no legal authority to enact or ensure passage of proposed legislation.  
6.64.  China submits that the United States' reques t in respect of this paragraph is unfounded and 
unnecessary. China considers that the dissenting panelist should therefore reject the United States' request. In China's view, the statement in question does not imply that USDOC has any legal authority to enact or ensure passage of proposed legislation. China argues that, rather, 
consistent with the CAFC's holding in GPX V , USDOC was "seeking" the enactment of new 
legislation to amend the Tariff Act and to have that amendment applied retroactively to ensure that the CAFC's decision did not become final. 
6.65.  The dissenting panelist does not consider it necessary to change the wording of paragraph 
7.226. The phrase relating to USDOC does not say that USDOC enacted the proposed legislation, but only that it heeded the CAFC's advice to "seek  legislative change" (these were the words of the 
Court). USDOC did so by turning to Congress and asking it to make this legislative change, as 
reflected in the Letter from the United States Se cretary of Commerce and the United States Trade 
Representative to the Chairman of the House Ways and Means Committee (Exhibit CHI-12).  
6.66.  Regarding paragraph 7.228, the United States  suggests that the description of its position 
regarding the relevant baseline for the determination of whether there has been a covered change 
under Article X:2 be revised to accurately reflect its position. 
6.67.  China submits that the statement by the di ssenting panelist that the United States seeks to 
modify is correct, as it correctly characterizes the United States' position. China contends that the 
United States did take the position that it is irrelevant for purposes of Article X:2 whether USDOC's existing approach of applying countervailing duties to imports from China was consistent with 
United States law. China further observes that having started from the position that the 
consistency of USDOC's approach with United States law was irrelevant for purposes of establishing the baseline under Article X:2, the United States now, at the very end of the proceedings, seems to be taking the position that it is relevant. 
6.68.  The dissenting panelist made appropriate ch anges to the description of the United States' 
position on the baseline issue at the end of paragraph 7.228. 
6.69.  Regarding paragraph 7.239, the United States suggests that the description fails to 
accurately reflect the United States' response to the Panel's question and that it would therefore 
be more accurate to describe the other elements by adding a sentence at the end. 
6.70.  The dissenting panelist added a sentence toward the end of paragraph 7.239 relating to the 
United States' response to Panel question No. 94 and also corrected internal quotation marks. WT/DS449/R 
- 18 - 
 
  6.5  Claim under Article X:3(b) of the GATT 1994  
6.71.  Regarding paragraphs 7.256 and 7.258, China requests that the Panel delete certain 
statements that could be construed as endorsing the United States' view that Section 1 of PL 112-99 was a "clarification" of existing Un ited States law. China argues that such an 
endorsement would be inconsistent with the st atements at paragraph 7.184 and 7.225 of the 
Report, and therefore it does not appear to be the Panel's intention to make such a finding. China also reiterates its argument that there is no evidence on record to support the United States' 
"clarification" theory. China requests, in the alternative, that the Panel qualify each statement to 
indicate that it is "the USDOC's opinion" that Section 1 "confirmed" or "re-affirmed" its prior interpretation of the statute.  
6.72.  The United States requests that the Panel reject China's proposed deletions or amendments 
to the first sentence of paragraph 7.256 or the first sentence of paragraph 7.258. The 
United States notes that the Panel describes the objective of the GPX legislation by citing to 
statements of the CAFC and to United States submissions to the Panel, and submits that these 
statements, along with the plain text of Section 1(a) of the GPX legislation, clearly demonstrate 
that the law "confirmed" and "affirmed" USDOC's inte rpretation of the United States CVD law. The 
United States observes that the objective of the GPX legislation was to settle or make firm whether 
the United States CVD law was applicable to NME countries following the issuance of the CAFC 
opinion in GPX V , a non-binding court opinion concerning USDOC's longstanding interpretation of 
the law, and that in response to the CAFC opinion in GPX V , the GPX legislation strengthened and 
supported USDOC's existing interpretati on of the United States CVD law. 
6.73.  The Panel observes that China's comments concern our statements that Congress enacted 
PL 112-99 to overrule and supersede the CAFC decision in GPX V , "thus effectively confirming 
USDOC's understanding of United States CVD law", and that the objective of the legislation 
appears to have been to "reaffirm and continue the interpretation of United States CVD law that 
had been applied by USDOC since 2006". These statements were not intended to constitute findings on the contested issue of whether Section 1 was a mere "clarification" of the law, rather 
than a "change" to the law. To avoid any mi sunderstanding, we nonetheless rephrased these 
statements in paragraphs 7.256 and 7.258. 
6.74.  Regarding paragraph 7.259, the United States suggests the insertion of the term "pending" 
before the phrase "judicial proceedings" in the third sentence of the paragraph to more accurately 
reflect the language of Section 1(b) of the GPX legislation. 
6.75.  China disagrees with the United States' suggestion to add the term "pending" in paragraph 
7.259 to more accurately reflect the language of Section 1(b), because Section 1(b) does not 
contain the term "pending". 
6.76.  The Panel, as indicated above in respect of the United States' requests regarding 
paragraphs 7.120, 7.121, 7.122, and 7.188, considers that the United States has not explained 
why adding the word "pending" before the phrase "judicial proceedings" would more accurately 
reflect the language of Section 1(b). Accordingly, the Panel has not modified paragraph 7.259 as requested by the United States. 
6.77.  Regarding paragraph 7.261, the United States suggests that the reference to 
"trade-restrictive" measures in the last sentence  be changed to "trade-remedy" measures. In the 
United States' view, antidumping and countervailin g duties are considered remedial in nature 
rather than trade-restrictive.   
6.78.  The Panel deleted the phrase "trade-restrictive" from the last sentence of paragraph 7.261.     
6.6  "Double Remedies": Articles 19. 3, 10 and 32.1 of the SCM Agreement  
6.79.  Regarding paragraphs 7.315 to 7.317, the United States argues that the language used in 
these paragraphs could be read as indicating the view that a panel need not conduct an objective 
assessment of the matter referred to it by the DSB if there are relevant prior Appellate Body reports. The United States elaborates on the multiple bases underlying its disagreement with that view, noting its view that the di scussion by the Appellate Body in US – Stainless Steel (Mexico)  WT/DS449/R 
- 19 - 
 
  appeared to be at best obiter dicta , given that the Appellate Body ultimately did not find that the 
panel in that dispute acted inconsistently with Ar ticle 11 of the DSU. The United States requests 
that the Panel delete most of paragraph 7.317, and that the Panel modify paragraphs 7.318, 7.326, 7.327, 7.342, 7.343, and 7.351 by deleting the references therein to "cogent reasons". 
6.80.  China submits that the Panel should reject this request for review in its entirety. China 
notes that the Panel is undoubtedly aware of the United States' position concerning the "cogent reasons" standard articulated by the Appellate Body in US – Stainless Steel (Mexico) , and recalls 
that during the course of the Panel proceedi ngs, the United States presented extensive 
argumentation in support of its position that a panel may depart from an adopted Appellate Body report if it finds the reasoning of that report to be unpersuasive. According to China, it is evident from the Interim Report that the Panel considered  these arguments but did not find them to be 
persuasive. China submits that it is inappropriate for the United States to try to use the interim 
review process to re-argue an issue that was discu ssed in detail in its prior submissions, when the 
Panel has already considered and rejected the United States interpretation.  
6.81.  The Panel is not convinced that the Appe llate Body statements that we refer to at 
paragraphs 7.315 to 7.317 are themselves incorrect or inappropriate, or that we have proceeded incorrectly or improperly in referring to, and taking into account, those statements. Even if these 
statements by the Appellate Body were not a basi s for a finding by the Appellate Body that the 
panel in US – Stainless Steel (Mexico)  acted inconsistently with Article 11 of the DSU, the 
Appellate Body made it clear that those statements were not intended to be limited in their relevance to the case before it.
15 We are also not convinced that there is any contradiction 
between the proposition that a panel is obliged under Article 11 of the DSU to conduct an 
"objective assessment" of the matter put before it, and the proposition that, in the absence of cogent reasons, a panel should not depart from an earlier finding by the Appellate Body in an 
adopted report when that finding concerns the very same interpretative question that is put before 
the panel. Accordingly, the Panel declines the Un ited States' request that we delete most of 
paragraph 7.317, and we also decline its request that we delete the references to "cogent reasons" 
in paragraphs 7.318, 7.326, 7.327, 7.342, 7.343, and 7.351. We nonetheless made appropriate 
editorial changes to paragraphs 7.318 and 7.343. 
6.82.  Regarding paragraph 7.331, the United States requests that the Panel clarify that the 
statements in the second and third sentences therein constitute arguments of China and not 
findings of the Panel.  
6.83.  China submits that the Panel should reje ct the United States request to modify this 
paragraph, because contrary to the United States' request for review, the statements in question 
reflect undisputed facts, not "arguments of China". 
6.84.  The Panel modified paragraph 7.331 to make explicit that the statements in the second and 
third sentences therein do not constitute findings of the Panel. 
6.85.  Regarding paragraph 7.340, China and the United States both note that USDOC found that 
only certain types of domestic subsidies, referred to by USDOC as "input subsidies", had been double counted. China and the United States both request that the Panel modify paragraph 7.340 accordingly.  
6.86.  The Panel modified paragraph 7.340 to reflect the parties' comments, and to harmonize the 
wording of this paragraph with the wording of paragraph 7.378 (on which neither party commented) and where we state that "63% of the input subsidies that the USDOC had identified 
had been double counted".  
6.87.  Regarding paragraph 7.370, the United States notes the Panel's discussion of the 
Preliminary Decision Memorandum in the Drawn Stainless Steel Sinks  investigation, which confirms 
the Panel's analysis of other evidence on the record  of the dispute. The United States submits that 
panels are not in a position to consider evidence  that has not been submitted by a party to the 
                                               
15 The Appellate Body stated that "[s]ince we have corrected the Panel's errone ous legal interpretation 
and have reversed all of the Panel's findings and conclusions that have been appealed, we do not, in this case , 
make an additional finding that the Panel also failed to discharge its duties under Article 11 of the DSU". 
(Appellate Body Report, US – Stainless Steel (Mexico) , para. 162, emphasis added). WT/DS449/R 
- 20 - 
 
  dispute, but that Article 13 of the DSU supplies a panel with authority to request information from 
a party. The United States considers that the Panel is authorized under Article 13 to request a copy of the Preliminary Decision Memorandum, and the Un ited States is therefore providing a copy of 
the Preliminary Decision Memorandum as Exhibit USA-126. 
6.88.  The Panel found it appropriate to consult the electronic version of the Preliminary Decision 
Memorandum that is explicitly referenced in Exhibit CHI-78, taking into account the very particular circumstances and limited purpose set forth in para graph 7.370. While the United States provided 
a copy of this document as Exhibit USA-126 at the interim review stage, it has not requested that 
we make any change to paragraph 7.370. Insofar as the United States should be understood as having requested that we modify paragraph 7.370 so as to make reference to Exhibit USA-126, we are not convinced that such a change would be appropriate.    
6.89.  Regarding paragraph 7.379, the United States suggests revising the first sentence to 
acknowledge that the CIT decisions in GPX II  and GPX III  were ultimately vacated by the CAFC in 
GPX VI , but remain instructive for the Panel's analysis.   
6.90.  The Panel modified the first sentence of paragraph 7.379 to reflect that the CIT decisions in 
GPX II  and GPX III  were ultimately vacated, and to explain why these decisions are still instructive 
for the Panel's analysis of whether USDOC was taking steps to investigate and avoid double 
remedies during the relevant period of time. 
6.7  Conclusions and Recommendation  6.91.  Regarding paragraph 8.3, the United States requests that the Panel specify which measures 
are subject to its recommendation to avoid any ambiguity.  
6.92.  The Panel modified paragraph 8.3 to specif y which investigations and reviews are subject to 
its recommendation. 
7  FINDINGS 
7.1  Preliminary ruling under Article 6.2 of the DSU  
7.1.  As noted in paragraphs 1.9 to 1.10 above, on 15 March 2013, the United States submitted a 
request for a preliminary ruling to the Panel with respect to the consistency of certain aspects of 
China's panel request with Article 6.2 of the DSU. The United States argued that Parts C and D of 
China's panel request, regarding USDOC's alleged failure to investigate and avoid "double remedies", fail to meet the requirement in Arti cle 6.2 to "provide a brief summary of the legal 
basis of the complaint sufficient to present the pr oblem clearly" and, therefore, are not within the 
Panel's terms of reference.
16 The United States requested that the Panel issue a preliminary ruling 
before the filing of the partie s' first written submissions.17  
7.2.  In response, China indicated that it would no t pursue certain claims that were the subject of 
the United States' preliminary ruling request. More specifically, China indicated that it would not 
pursue its claims in Parts C and D of its panel request, except for those under Articles 10, 19, and 32 of the SCM Agreement as set forth in Part D of its panel request.
18 China argued that with 
respect to China's claims under Articles 10, 19, and 32 of the SCM Agreement, Part D is consistent 
with the requirements of Article 6.2 of the DSU19, and requested the Panel to reject the 
United States' preliminary ruling request. China argued that the Panel should rule on the preliminary ruling request at the first substantive meeting or a later stage of the proceedings, 
rather than before the filing of the parties' first written submissions.
20  
7.3.  The Panel ultimately decided to issue a preliminary ruling prior to the filing of the first written 
submissions of the parties. On 7 May 2013, the Pane l issued its preliminary ruling to the parties 
                                               
16 United States' preliminary ruling request, dated 15 March 2013. 
17 The United States' letter to the Panel dated 15 March 2013. 
18 China's response to the United States' preliminar y ruling request, dated 8 April 2013, paras. 1 and 
10; China's letter to the Panel dated 25 March 2013, pp. 1-2. 
19 Ibid. 
20 China's letter to the Panel dated 19 March 2013. WT/DS449/R 
- 21 - 
 
  and provided a copy to the third parties. After consulting the parties, the Panel requested the 
Chairperson of the DSB to circulate the ruling to the WTO membership. The ruling was circulated on 7 June 2013 as document WT/DS449/4.  
7.4.  As set out in further detail in its preliminary ruling, the Panel declined to rule on whether the 
panel request is consistent with Article 6.2 of the DSU insofar as it relates to certain claims, in the 
light of China's representation that it would not pursue those claims.
21  Thus, the Panel concluded 
that it was appropriate to limit the scope of its preliminary ruling and make findings on the 
consistency with Article 6.2 of the DSU only with re gard to Part D of China's panel request, insofar 
as it specifies claims under Articles 10, 19, and 32 of the SCM Agreement. The Panel concluded that the United States had failed to establish that Part C and Part D of China's panel request, insofar as they specify claims under Articl es 10, 19, and 32 of the SCM Agreement, are 
inconsistent with Article 6.2 of the DSU on the grounds that they do not provide a brief summary 
of the legal basis sufficient to present the problem clearly. In this regard, the Panel found that the general references to Articles 10, 19, and 32 contained in Part D of the panel request warrant the 
inference that the obligations at issue are those contained in Articles 10, 19.3, and 32.1 of the 
SCM Agreement, and that the United States had not established that Part D of China's panel request fails to "plainly connect" the challenged measures with those obligations. In sum, the 
Panel: (i) declined the United States' request that it rule on whether the panel request in its Part C 
and Part D, insofar as it specifies claims other than those under Articles 10, 19, and 32 of the SCM Agreement, is inconsistent with Article 6.2; and (ii) rejected the United States' request that it rule that Part D, insofar as it specifies claims under Articles 10, 19, and 32 of the SCM Agreement, is 
inconsistent with Article 6.2 of the DSU.  
7.5.  The Panel's preliminary ruling, as set forth in document WT/DS449/4, forms an integral part 
of the present findings. 
7.2  Claims on which findings have been requested 
7.6.  China identified the following claims in  Parts A, B, C, and D of its panel request: 
a. Section 1 of Public Law (PL) 112-99 is inconsistent as such with Articles X:1, X:2
22, 
X:3(a), and X:3(b) of the GATT 1994; 
b. Section 2 of PL 112-99, amending Section 777A of the United States Tariff Act, is 
inconsistent as such with Article X:3(a) of the GATT 1994; 
c. the United States lacks legal authority to identify and avoid double remedies in respect 
of certain investigations and reviews initiated between 20 November 2006 and 
13 March 2012, and is thereby prevented in a ll such investigations and reviews, from 
ensuring that the imposition of countervailing duties is consistent with Articles 10, 15, 
19, 21, and 32 of the SCM Agreement and Article VI of the GATT 1994, and from 
ensuring that the imposition of anti-dumping duties in the associated anti-dumping investigations and reviews is consistent with Articles 9 and 11 of the Anti-Dumping 
Agreement and Article VI of the GATT 1994; and  
d. the United States failed to investigate and avoid double remedies in certain 
investigations and reviews initiated between 20 November 2006 and 13 March 2012; that the resulting countervailing duty meas ures, including any countervailing duties 
collected pursuant to their authority, are inconsistent with Articles 10, 15, 19, 21, and 
32 of the SCM Agreement and Article VI of  the GATT 1994; and that the associated 
anti-dumping measures in each such instance, including any anti-dumping duties 
collected pursuant to their authority, are inconsistent with Articles 9 and 11 of the Anti-
Dumping Agreement and Article VI of the GATT 1994. 
7.7.  China subsequently narrowed the scope of  its claims in this dispute, as follows: 
                                               
21 Those claims include Part C of China's panel request in its entirety, and the refe rences in Part D of the 
China's panel request to Articles 15 and 21 of the SCM Ag reement, Article VI of the GATT 1994, and Articles 9 
and 11 of the Anti-Dumping Agreement. 
22 See fn. 10. WT/DS449/R 
- 22 - 
 
  a. China indicated that it was not pursuing the claim, contained in Part A of its panel 
request, that Section 1 of PL 112-99 is inconsistent with Article X:3(a) of the GATT 1994
23;  
b. China indicated that it was not pursuing the claim, contained in Part B of its panel 
request, that Section 2 of PL 112-99, amending Section 777A of the United States Tariff 
Act, is inconsistent as such with Article X:3(a) of the GATT 199424; 
c. China indicated that it was not pursuing the claims, contained in Part C of its panel 
request, that the United States lacks authorit y to identify and avoid double remedies in 
respect of certain investigations and reviews initiated between 20 November 2006 and 13 March 2012
25; and 
d. China indicated that with respect to the claims in Part D of its panel request, regarding 
the USDOC's alleged failure to investigate and avoid double remedies in certain 
investigations and reviews initiated between 20 November 2006 and 13 March 2012, China would only pursue its claims under Ar ticles 10, 19, and 32 of the SCM Agreement. 
Furthermore, the Panel, in its preliminary ruling, ruled that the general references to 
Articles 10, 19, and 32 contained in Part D of the panel request warrant the inference that the obligations at issue are those cont ained in Articles 10, 19.3, and 32.1 of the 
SCM Agreement.
26   
7.8.  Based on the foregoing, China requests the Panel to find that: 
a. Section 1 of PL 112-99 is inconsistent as such with Articles X:1, X:227, and X:3(b) of the 
GATT 1994; and 
b. the United States failed to investigate and avoid double remedies in certain 
investigations and reviews initiated between 20 November 2006 and 13 March 2012, and the resulting countervailing duty measures are therefore inconsistent with Articles 10, 
19.3, and 32.1 of the SCM Agreement.  
7.9.  The United States requests that the Panel reject all of China's claims in this dispute. 7.3  Measures at issue 
7.3.1  Section 1 of PL 112-99 
7.10.  On 13 March 2012, the United States enacted PL 112-99, entitled "An Act to apply the 
countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries, and for other purposes". Section 1 of PL 112-99 is the measure at issue with respect to China's claims 
under Articles X:1, X:2, and X:3(b) of the GATT 1994.  
7.11.  The text of PL 112-99
28, including Sections 1 and 2 thereof, is reproduced below:  
Public Law 112-99—March 13, 2012 
Public Law 112-99 
112th Congress An Act 
                                               
23 China's response to Panel question No. 39. 
24 Ibid. 
25 See para. 7.2. 
26 See para. 7.4.   
27 See fn. 10. 
28 Exhibit CHI-01. WT/DS449/R 
- 23 - 
 
  To apply the countervailing duty provisions of the Tariff Act of 1930 to nonmarket 
economy countries, and for other purposes. 
 Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, 
SECTION 1. APPLICATION OF COUNTE RVAILING DUTY PROVISIONS TO 
NONMARKET ECONOMY COUNTRIES. 
(a) I N GENERAL .—Section 701 of the Tariff Act of 1930 (19 U.S.C. 1671) is amended 
by adding at the end the following: 
"(f) A PPLICABILITY TO PROCEEDINGS INVOLVING NONMARKET ECONOMY COUNTRIES .—  
"(1) I N GENERAL .--Except as provided in paragraph (2), the merchandise on which 
countervailing duties shall be imposed under subsection (a) includes a class or kind of 
merchandise imported, or sold (or likely to be sold) for importation, into the 
United States from a nonmarket economy country. 
"(2) E XCEPTION .—A countervailing duty is not required to be imposed under subsection 
(a) on a class or kind of merchandise imported, or sold (or likely to be sold) for 
importation, into the United States from a nonmarket economy country if the administering authority is unable to identify and measure subsidies provided by the 
government of the nonmarket economy country or a public entity within the territory 
of the nonmarket economy country because the economy of that country is essentially comprised of a single entity.''. 
(b) E
FFECTIVE DATE.—Subsection (f) of section 701 of the Tariff Act of 1930, as added 
by subsection (a) of this section, applies to— 
(1) all proceedings initiated under subtitle A of title VII of that Act (19 U.S.C. 1671 et 
seq.) on or after November 20, 2006; 
(2) all resulting actions by U.S. Customs and Border Protection; and 
(3) all civil actions, criminal proceedings, and other proceedings before a Federal court 
relating to proceedings referred to in paragraph (1) or actions referred to in 
paragraph (2). 
SEC. 2. ADJUSTMENT OF ANTIDUMPING DUTY IN CERTAIN PROCEEDINGS 
RELATING TO IMPORTS FROM NONMARKET ECONOMY COUNTRIES. 
(a) I N GENERAL .—Section 777A of the Tariff Act of 1930 (19 U.S.C. 1677f-1) is 
amended by adding at the end the following: 
"(f) A DJUSTMENT OF ANTIDUMPING DUTY IN CERTAIN PROCEEDINGS RELATING TO IMPORTS FROM 
NONMARKET ECONOMY COUNTRIES .—  
"(1) I N GENERAL .—If the administering authority determines, with respect to a class or 
kind of merchandise from a nonmarket economy country for which an antidumping duty is determined using normal value pursuant to section 773(c), that— 
"(A) pursuant to section 701(a)(1), a countervailable subsidy (other than an export 
subsidy referred to in section 772(c)(1)(C)) has been provided with respect to the class or kind of merchandise, 
"(B) such countervailable subsidy has been demonstrated to have reduced the 
average price of imports of the class or kind of merchandise during the relevant 
period, and WT/DS449/R 
- 24 - 
 
  "(C) the administering authority can reasonably  estimate the extent to which the 
countervailable subsidy referred to in subparagraph (B), in combination with the use of normal value determined pursuant to section 773(c), has increased the weighted average dumping margin for the class or kind of merchandise, 
the administering authority shall, except as provided in paragraph (2), reduce the 
antidumping duty by the amount of the in crease in the weighted average dumping 
margin estimated by the administering authority under subparagraph (C). 
"(2) M
AXIMUM REDUCTION IN ANTIDUMPING DUTY .—The administering authority may not 
reduce the antidumping duty applicable to  a class or kind of merchandise from a 
nonmarket economy country under this subsection by more than the portion of the countervailing duty rate attributable to a countervailable subsidy that is provided with 
respect to the class or kind of merchandise and that meets the conditions described in 
subparagraphs (A), (B), an d (C) of paragraph (1).''. 
(b) E
FFECTIVE DATE.—Subsection (f) of section 777A of the Tariff Act of 1930, as 
added by subsection (a) of this section, applies to— 
(1) all investigations and reviews initiated pursuant to title VII of that Act (19 U.S.C. 
1671 et seq.) on or after the date of  the enactment of this Act; and 
(2) subject to subsection (c) of section 129 of the Uruguay Round Agreements Act (19 
U.S.C. 3538), all determinations issued under subsection (b)(2) of that section on or after the date of the enactment of this Act. 
Approved March 13, 2012. 
7.12.  The United States refers to PL 112-99 as the "GPX legislation".
29  
7.3.2  CVD investigations and administrative reviews 7.13.  The measures at issue with respect to China's claims under Articles 10, 19.3, and 32.1 of 
the SCM Agreement include a number of CVD inve stigations and reviews initiated between 20 
November 2006 and 13 March 2012.  
7.14.  China asserts that between 20 November 2006 and 13 March 2012, the United States 
authorities initiated a series of anti-dumping and CVD investigations and reviews that resulted in 
the imposition of anti-dumping duties and CVDs in respect of the same imported products from 
China. China asserts that in none of these investigations or reviews did the United States authorities take steps to investigate and avoid "double remedies". 
7.15.  The CVD investigations and reviews at issue in this dispute are specified in Appendix A to 
China's panel request, and again in Exhibit CHI-24. Table 1 lists these investigations and reviews and includes the parallel anti-dumping investigations and reviews. We discuss these investigations 
and reviews further below, in the context of addressing China's claims under Articles 10, 19.3, and 
32.1 of the SCM Agreement.   
                                               
29 United States' first written submission, para. 1.   WT/DS449/R 
- 25 - 
 
  Table 1: List of Investigations and Reviews Cited by China30 
WT/DS449/2 Exhibit 
CHI-24 OFFICIAL NAME CVD AD 
1*  Coated Free Sheet Paper from the People's 
Republic of China C-570-907 A-570-906 
2*  Circular Welded Carbon Quality Steel Pipe 
from the People's Republic of China C-570-911 A-570-910 
3*  Light-Walled Rectangu lar Pipe and Tube from 
the People's Republic of China C-570-915 A-570-916 
4*  Laminated Woven Sacks from the People's 
Republic of China C-570-917 A-570-914 
5*  Certain New Pneumatic Off-The-Road Tires 
from the People's Republic of China C-570-913 A-570-912 
5a 1   Certain New Pneumatic Off-The-Road Tires 
from the People's Republic of China [Administrative Review ] C-570-913 A-570-912 
6 2   Raw Flexible Magnets from the People's 
Republic of China C-570-923 A-570-922 
7 3   Lightweight Thermal Paper from the People's 
Republic of China C-570-921 A-570-920 
8 4   Sodium Nitrite from the People's Republic of 
China C-570-926 A-570-925 
9 5   Circular Welded Austenitic Stainless Pressure 
Pipe from the People's Republic of China C-570-931 A-570-930 
10 6   Certain Circular Welded  Carbon Quality Steel 
Line Pipe from the People 's Republic of China C-570-936 A-570-935 
11 7   Citric Acid and Certain Citrate Salts From the 
People's Republic of China C-570-938 A-570-937 
11a 8   Citric Acid and Certain Citrate Salts From the 
People's Republic of China [ Administrative 
Review ] C-570-938 A-570-937 
12 9   Certain Tow Behind Lawn Groomers and 
Certain Parts Thereof from the People's Republic of China C-570-940 A-570-939 
13 10   Certain Kitchen Appliance Shelving and Racks 
From the People's Republic of China C-570-942 A-570-941 
13a 11   Certain Kitchen Appliance Shelving and Racks 
From the People's Republic of China [Administrative Review ] C-570-942 A-570-941 
14 12   Certain Oil Country Tubular Goods from the 
People's Republic of China C-570-944 A-570-943 
15 13   Prestressed Concrete St eel Wire Strand From 
the People's Republic of China C-570-946 A-570-945 
16 14   Certain Steel Grating From the People's 
Republic of China C-570-948 A-570-947 
17*  Wire Decking from the People's Republic of 
China C-570-950 A-570-949 
18 15   Narrow Woven Ribbons With Woven Selvedge 
From the People's Republic of China C-570-953 A-570-952 
19 16   Certain Magnesia Carbon Bricks From the 
People's Republic of China C-570-955 A-570-954 
20 17   Certain Seamless Carbon and Alloy Steel 
Standard, Line, and Pressure Pipe from the People's Republic of China C-570-957 A-570-956 
21 18   Certain Coated Paper Suitable for High-
Quality Print Graphics Using Sheet-Fed Presses  From the People's Republic of China C-570-959 A-570-958 
22 19   Certain Potassium Phosphate Salts from the 
People's Republic of China C-570-963 A-570-962 
23 20   Drill Pipe From the People's Republic of China C-570-966 A-570-965 
                                               
30 The investigations and reviews marked with an aste risk (*) are listed in Appendix A to China's panel 
request, but China explains, in footno te 6 of its panel request, that it excludes these proceedings from the 
scope of its claims under Articles 19.3, 10, and 32.1 of  the SCM Agreement because (i) they are investigations 
that resulted in a negative injury determination by the US International Trade Commission, and therefore did 
not result in the imposition of anti-d umping and countervailing duties; or (i i) they were already the subject of 
the recommendations and rulings of the DSB in DS379. WT/DS449/R 
- 26 - 
 
  WT/DS449/2 Exhibit 
CHI-24 OFFICIAL NAME CVD AD 
24 21   Aluminum Extrusions From the People's 
Republic of China C-570-968 A-570-967 
25 22   Multilayered Wood Floor ing From the People's 
Republic of China C-570-971 A-570-970 
26*  Certain Steel Wheels From the People's 
Republic of China C-570-974 A-570-973 
27*  Galvanized Steel Wire From the People's 
Republic of China C-570-976 A-570-975 
28 23   High Pressure Steel Cylinders From the 
People's Republic of China C-570-978 A-570-977 
29 24   Crystalline Silicon Photovoltaic Cells, Whether 
or Not Assembled Into Modules, From the People's Republic of China C-570-980 A-570-979 
30 25   Utility Scale Wind Towers From the People's 
Republic of China [ Preliminary Determination ] C-570-982 A-570-981 
31 26   Drawn Stainless Steel Sinks From the People's 
Republic of China [ Preliminary Determination ] C-570-984 A-570-983 
 
7.4  China's claim under Article X:1 of the GATT 1994 
7.16.  The Panel begins its examination of the four claims of violation in respect of which China 
requested findings with the claim under Article X:1 of the GATT 1994. Article X:1 provides as follows:   
Laws, regulations, judicial decisions and administrative rulings of general application, 
made effective by any [Member
31], pertaining to the classification or the valuation of 
products for customs purposes, or to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports or on the transfer of 
payments therefor, or affecting their sale, distribution, transportation, insurance, 
warehousing inspection, exhibition, processing , mixing or other use, shall be published 
promptly in such a manner as to enable governments and traders to become 
acquainted with them.  Agreements affecting international trade policy which are in 
force between the government or a governmental agency of any contracting party and the government or governmental agency of any other contracting party shall also be 
published.  The provisions of this paragraph shall not require any contracting party to 
disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private. 
7.17.  China claims that Section 1 of PL 112-99 was not "published promptly in such a manner as 
to enable governments and traders to become acquainted" with it. According to China, PL 112-99 is a law of "general application" pertaining to "rates of duty, taxes or other charges, or to 
requirements, restrictions or prohibitions on imports". China asserts further that Section 1 of 
PL 112-99 was "made effective" as of 20 November 2006. In China's view, 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 e ffective. China therefore requests the Panel to 
find that the United States has acted inconsistently with Article X:1.
32  
7.18.  The United States submits that China's claim under Article X:1 is without merit. The 
United States considers that, as an initial matter, China has failed to make a prima facie  case that 
Section 1 is a measure of the type listed in Article X:1. The United States further observes that 
PL 112-99 was published the same day that it was enacted, and that it could not have been published more promptly. In the United States' view, Article X:1 does not prohibit a measure from 
touching on events that have occurred prior to th e publication of the measure. The United States 
submits, finally, that Article X:1 is directed to th e publication of trade regulations to provide notice 
                                               
31 The text of Article X uses the term "contracti ng party" rather than "Member". Pursuant to 
paragraph 2(a) of the GATT 1994, however, "references to 'contracting party' in the provisions of GATT 1994 
shall be deemed to read 'Member'". 
32 China's first written submission, paras. 60, 62-63 and 65-66. WT/DS449/R 
- 27 - 
 
  and transparency to traders. The United States obse rves in this regard that the application of the 
United States CVD law to China has always been rigorously open and transparent.33 
7.19.  The Panel notes that the measure at issue is Section 1 of PL 112-99. China claims that the 
United States acted inconsistently with Article X:1 by failing to publish Section 1 promptly. China's 
claim of inconsistency is based on the first sentence of Article X:1. As may be inferred from the 
text of the first sentence, for the Panel to uphold China's claim, China must establish that Section 1:  
a. is a "[l]aw[], regulation[], judicial decision[] [or] administrative ruling[] of general 
application … pertaining to the classification or the valuation of products for customs purposes, or to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports or on the transfer of payments therefor, or affecting 
their sale, distribution, transportation, insurance, warehousing inspection, exhibition, 
processing, mixing or other use";  
b. was "made effective" by the United States; and 
c. was not "published promptly in such a manner as to enable governments and traders to 
become acquainted" with it. 
7.20.  The Panel will address these three elements in the order in which they have been identified.   
7.4.1  Is Section 1 a "[l]aw[] … of general application … pertaining to rates of duty, 
taxes or other charges, or to requirements, re strictions or prohibitions on imports"?   
7.21.  The first element calls for an examination of whether Section 1 falls within the types of 
measure specified in Article X:1, first sentence. 
7.22.  China submits that PL 112-99 is a "law" of the United States pertaining to "rates of duty, 
taxes or other charges, or to requirements, restrictions or prohibitions on imports". China argues that Section 1 authorizes the application of countervailing duties, which are "rates of duty" or 
alternatively "other charges", to imports from NME countries. According to a response by China to 
a Panel question, Section 1 pertains to rates of du ty or other charges because it subjects imported 
products to the imposition of an additional duty  (or charge) if the conditions of a countervailing 
duty rate are met. Specifically with regard to the investigations to which Section 1 applies prior to 
its official publication, China argues that Sectio n 1 increases the total duty (or charge) imposed on 
the imported products that are subject to the resulting orders, as it increases the CVD rate from no countervailing duty to whatever the countervai ling duty rate USDOC determined in respect of 
each such product. In addition, China argues that PL 112-99 also imposes a "requirement", or a 
type of "restriction", on imports by making count ervailing duties applicable to imports from NME 
countries. In response to a Panel question, China argues more particularly that the new 
Section 701(f) "requires" (i) that imports from NME countries become potentially subject to 
countervailing duty investigations, (ii) that importers participate in any such investigations to the extent it relates to them, and (iii) that importers pay any countervailing duty that may be imposed 
as a result of such investigations. China considers that the new Section 701(f)(1) is also a 
"restriction", to the extent that imports are actu ally or potentially investigated and subjected to 
the imposition of countervailing duties.
34 As regards the "general application" element, China 
submits that PL 112-99 is also a law of "general application" because it is not limited to a single 
import or single importer, but affects a range of  products, producers, importers, and countries.35 
In response to a Panel question, China further stated that Section 1 is a measure of general application, or a provision of a law of general application.
36  
7.23.  The United States contends that China fail s to state which of the types of measure listed in 
Article X:1 is applicable to PL 112-99. In the Unit ed States' view, without satisfying this threshold 
                                               
33 United States' first written submission, paras. 63- 64; oral statement at th e first meeting with the 
Panel, para. 2; oral statement at the seco nd meeting with the Panel, paras. 2-4. 
34 China's first written submission, para. 62; response to Panel question No. 49. 
35 China's first written submission, pa ra. 62, referring to Panel Reports, EC – IT Products , para. 7.1034; 
and EC – Selected Customs Matters , para. 7.116. 
36 China's response to Panel question No. 36. WT/DS449/R 
- 28 - 
 
  issue, China's claim under Article X:1 must fail.37 Regarding the "general application" element, the 
United States in response to a Panel question accepts that Section 1 of PL 112-99 sets out a measure of general application with respect to th ose imports and associated proceedings that were 
not known at the time of enactment of the meas ure. However, the United States notes that 
Section 1 also applies to proceedings "initiated under  subtitle A of title VII of that Act (19 U.S.C. 
1671 et seq.) on or after November 20, 2006" thro ugh the date of enactment of the legislation. 
According to the United States, those proceedings were known as of the date of enactment of the 
measure as were the imports subject to those proceedings.
38 The United States considers that in 
relation to this limited and known set of imports and proceedings, which the United States understands is the basis of China's claim, it is difficult to see in what respect Section 1 is a measure of general application.
39 Moreover, again in response to a Panel question, the 
United States submits that, as a general matter, a measure pertaining to "rates of duty" would not 
appear to pertain, at the same time, to "requireme nts, restrictions or prohibitions" on imports, and 
China has not demonstrated otherwise in the case of Section 1.40     
7.24.  The Panel considers that, contrary to what the United States contends, China has identified 
the categories of measure listed in Article X:1 that in its view cover Section 1 of PL 112-99.41 We 
understand China's position to be that PL 112-99 is a "law" of "general application" and that its 
Section 1 "pertains" to "rates of duty" on impo rts, or "other charges" on imports, and to 
"requirements" on imports, or "restrictions" on im ports. Accordingly, we proceed with our analysis 
of China's claim.  
7.4.1.1  Law 
7.25.  The issue we consider first is whether Se ction 1 falls within the category of "laws".  
7.26.  We first address PL 112-99. It is not in dispute between the parties that PL 112-99 
constitutes a "law" within the meaning of Article X:1. We agree. PL 112-99 is, by its terms, an 
"Act" of the United States' legislature, enacted by the Senate and House of Representatives of the 
United States Congress and approved by the United States' President.42 That PL 112-99 is a law is 
confirmed by the fact that it was published in the "United States Statutes  at Large".43 
7.27.  Turning to Section 1 of PL 112-99, i.e. the measure at issue, we observe that it is a 
provision of a law and as such is part of a law. In  our view, however, the term "laws" as it appears 
in Article X:1 must be construed to include the enti re piece of legislation as well as any individual 
parts or provisions that make up these laws. Were it otherwise, Members could meet their 
obligations under Article X:1 by promptly publishing laws that do not contain all parts or 
provisions. It would also lead to the anomalous result that Article X:1 would oblige a Member to 
promptly publish a law once it has been made effective, but would not oblige that Member to 
publish any subsequent amendments to that same law. This would run counter to the basic 
principle of transparency and full disclosure of governmental acts affecting governments or traders that we consider inherent in Article X:1.
44  
7.28.  For these reasons, we find that Section 1 fa lls within the category of "laws" identified in 
Article X:1.  
                                               
37 United States' first written submission, para. 65. 
38 The United States further asse rts that for those past proceedings, the exporters subject to the 
associated investigations and resulting orders or determinations were also known as of the date of enactment of PL 112-99. (United States' comments on Ch ina's response to Panel question No. 129). 
39 United States' response to Panel question No. 24. 
40 United States' response to Panel question No. 49. 
41 China's first written submission, para. 62. 
42 Exhibit CHI-01. 
43 United States' first written subm ission, para. 80. (emphasis added) 
44 The Appellate Body in US – Underwear  observed that Article X:2 of the GATT 1994 embodies the 
policy principle of promoting "full disclosure of gove rnmental acts affe cting Members and private parties and 
enterprises" and "transparenc y" (Appellate Body Report,  US – Underwear , p. 20). As Article X:1 imposes an 
obligation to promptly publish the listed types of measure, we consider that the Appellate Body's observation 
about the policy principle underpinning  Article X:2 holds true also for Arti cle X:1. In this respect, see Panel 
Reports, EC – IT Products , fn. 1312. WT/DS449/R 
- 29 - 
 
  7.4.1.2  Law of general application 
7.29.  The issue we turn to next is whether Section 1 in addition falls within the category of laws of 
"general application".  
7.30.  As an initial matter, we note that the phrase "of general application" appears in the text of 
Article X:1 after the listed items "laws", "regulations", "judicial decisions" and "administrative 
rulings". In the view of prior panels45 as well as the parties to this dispute46, the phrase "of general 
application" qualifies not just the immediately preceding item "administrative rulings", or the more 
encompassing phrase "judicial decisions and administ rative rulings", but the entire series of items. 
This means that where, as in the present dispute, th e category at issue is that of "laws", only laws 
that are "of general application" can fall within the scope of Article X:1.  
7.31.  Under customary rules of treaty interpretati on, we are to ascertain the ordinary meaning of 
the terms of a treaty by reference, inter alia , to "their context".47 A modifier such as "of general 
application" that follows a list of items may in some contexts qualify only the immediately preceding term or phrase. But we consider that it would not be in accord with contextual 
interpretation to assume that this would necessarily  be the case in other contexts. Thus, consistent 
with the view of prior panels interpreting Article X:1, the relevant context may indicate that the same modifier should be interpreted so as to qualify each of the preceding terms.
48 We further 
observe that the term "laws" accords well with th e phrase "of general application". Based on these 
considerations, we have no difficulty accepting that Article X:1 applies to laws of general application, provided they also fall within the su bject-matter categories identified in Article X:1. 
7.32.  Before proceeding to examine whether Section 1 is a provision of general application, we 
need to address in more detail what is a provision of "general application". The ordinary meaning 
of the word "general", when used as in Article X:1 to refer to certain measures "of general application", is "[n]ot specifically limited in application; relating to a whole class of objects, cases, 
occasions, etc.".
49 The ordinary meaning of the word "class", in turn, is "[a] group of people or 
things having some attribute in common; a set, a category".50 Thus, a measure of "general 
application" can be understood to refer to a measur e that applies to a class, or a set or category, 
of persons, entities, situations or cases that have some attribute in common. Prior panel and 
Appellate Body reports afford further guidance in this respect. The panel in US – Underwear  found 
a country-specific safeguard measure on cotton and man-made fibre underwear to be of "general application". It observed in this respect: 
Nor does the fact that it was a country-specific measure exclude the possibility of it 
being a measure of general application.  If, for instance, the restraint was addressed to a specific company or applied to a specific shipment, it would not have qualified as 
a measure of general application.  However, to the extent that the restraint affects an 
unidentified number of economic operators, including domestic and foreign producers, we find it to be a measure of general application.
51 
7.33.  On appeal in the same dispute, the Appellate Body agreed with the panel's conclusion, 
stating that: 
While the restraint measure was addressed to particular, i.e. named, exporting 
Members, including Appellant Costa Rica …, we note that the measure did not try to 
become specific as to the individual persons or entities engaged in exporting the 
                                               
45 Panel Reports, EC – Selected Customs Matters , para. 7.116 and EC – IT Products , paras. 7.1016, 
7.1022. 
46 China's first written submission , para. 62; United States' respon se to Panel question No. 37. 
47 Article 31(1) of the Vienna Convention. 
48 Panel Reports, EC – Selected Customs Matters , para. 7.116 and EC – IT Products , paras. 7.1016 and 
7.1022. 
49 The Shorter Oxford English Dictionary , (2002), p. 1082 
50 Ibid. p. 420 
51 Panel Report, US – Underwear , para. 7.65. WT/DS449/R 
- 30 - 
 
  specified textile or clothing items to the importing Member and hence affected by the 
proposed restraint.52  
7.34.  Subsequently, the panel in EC – Selected Customs Matters  stated that the types of measure 
covered by Article X:1 apply to "a range of situatio ns or cases, rather than being limited in their 
scope of application".53 And finally, we note that the panel in EC – IT Products  concluded that the 
draft amendments to the European Community's Explanatory Notes to the Combined Nomenclature (CNENs) that were at issue in that dispute were of "general application". The panel 
reasoned that "the application of a CNEN is not limited to a single import or a single importer" and 
that the objective of CNENs was "to ensure the uniform application of the Common Customs Tariff to all products falling under a specific CN code…".
54  
7.35.  These various statements lead us to the view that two aspects are usefully distinguished 
when assessing whether a law or another relevant measure is of "general application" within the 
meaning of Article X:1: (i) its subject-matter or cont ent; and (ii) the persons or entities to whom it 
applies, or the situations or cases in which it applies. The subject-matter or content of a relevant 
measure may be narrowly drawn – e.g. it may regulate imports of only one or a few named 
products from only one or a few named countries – yet this would not preclude it being considered a measure of general application, insofar as it applies to a class of persons or entities, e.g. all 
those engaged in importing the product(s) concerned. The fact that a relevant measure has a 
narrow regulatory scope does not demonstrate that this measure is not generally applicable. As regards the second aspect, a relevant measure that applies to a class or category of people, entities, situations, or cases, that have some attribute in common would, in principle, constitute a 
measure of general application. In contrast, a relevant measure that applies to named or 
otherwise specifically identified persons, entities, situations, or cases would not be a measure of general application, but one of particular application.
55  
7.36.  This interpretation accords well with the provisions of Article X:1, in particular the 
requirement of prompt publication and the principle of transparency that is inherent in Article X:1, as mentioned above. Article X:1 is addressed, fundamentally, to situations of rule-making and, 
notably in the case of judicial decisions and administrative rulings of general application, rule 
interpretation or rule clarification. In cases where, for example, a new rule or interpretation applies t o  a n  e n t i r e  c l a s s  o f  p e o p l e  o r  e n t i t i e s ,  public  notice in the form of prompt publication of the 
relevant measure is desirable, but it is understan dable that individual members of that class would 
not require individual  notice thereof.  
7.37.  Having elucidated what is a law of general application, it is well to also explain our analytical 
approach. As the argument summary above makes clear, China at least initially addressed the 
issue of "general application" at the level of PL 112-99.
56 In the circumstances of this case, we 
consider it more appropriate to focus our inquiry on Section 1 of PL 112-99. If Section 1 did not contain a provision of general application, PL 112-99 would not, to that extent, fall within the 
scope of Article X:1, and China's Article X:1 claim would fail because it relates to Section 1. 
Conversely, if Section 1 did contain a provision of  general application, PL 112-99 would, to that 
extent, fall within the scope of Article X:1, even if other parts or provisions of PL 112-99 were not 
of general application, and China's claim would not fail on that ground. To find otherwise would be 
to accept that Members can escape the requirement to promptly publish their laws of general 
application by incorporating them in measures that contain parts or provisions that are not of general application.   
7.38.  We recall that Section 1 has two subsections. Section 1(a) amends Section 701 of the 
United States Tariff Act of 1930 so as to provide, in a new Section 701(f), for the applicability of United States countervailing duty provisions to im ports from NME countries, except in cases where 
the administering authority (USDOC) is unable to identify and measure subsidies provided by the 
government or a public entity of an NME country because the economy of that country is 
                                               
52 Appellate Body Report, US – Underwear , p. 20. 
53 Panel Report, EC – Selected Customs Matters , para. 7.116. 
54 Panel Reports, EC – IT Products , para. 7.1034. (Emphasis in original). 
55 We believe that when the panel in  EC – Selected Customs Matters  referred to the scope of application 
of measures, it was thinking of the second aspect an d not the subject-matter or content of measures.   
56 Subsequently, China argued that Section 1 of  PL 112-99 is the relevant measure of general 
application at issue (e.g. China's responses to Pane l question Nos. 113 and 116; China's comments on the 
United States' response to Panel question No. 118). WT/DS449/R 
- 31 - 
 
  essentially composed of a single entity. Section 1( b) provides that Section 701(f) applies to: (1) all 
proceedings initiated under subtitle A of title VII of the United States Tariff Act of 1930 on or after 
20 November 2006; (2) all resulting actions by United States Customs and Border Protection (USCBP); and (3) all civil actions, criminal proceedings, and other proceedings before a 
United States Federal court relating to proceedi ngs referred to under (1) or actions referred to 
under (2).  
7.39.  We commence our analysis with Section 1(a), which adds the new Section 701(f) to 
United States law. The introductory clause of Se ction 1(a) states that Section 701 is amended by 
adding a new subsection (f), and Section 1(a) then goes on to set out in full the text of the new subsection. The introductory clause is not addressed only to specifically identified persons or entities, but rather generally to all those who are actually or potentially interested in knowing 
about the amendment. As concerns the new Section 701(f), it is in one sense quite narrow in its 
regulatory scope. It concerns the applicability of  United States' countervailing duty provisions to 
imports of unspecified goods from NME countries.
57 While there is no limitation on the kind of 
goods that fall within its scope, i.e. the potentially affected industries, Section 701(f) does not 
concern the applicability of countervailing duty provisions to countries other than NME countries. However, for the reason explained earlier, the mere fact that Section 701(f) concerns only imports 
from NME countries does not warrant the conclusion that Section 1(a) adds a measure that is of 
particular rather than of general application.
58 This view also draws support from the passages of 
the panel and Appellate Body reports in US – Underwear  that we quoted above.59 Furthermore, we 
observe that Section 701(f) does not name or otherwise specifically identify any persons or entities 
that engage, or are involved, in the importation (or sale for importation) of goods from NME 
countries and to whom it applies. By its terms, Section 701(f) applies to imports of goods from such countries generally, regardless of who imports them (or sells them for importation).   
7.40.  We now proceed to consider the three paragraphs of Section 1(b). Section 1(b)(1) provides 
that Section 701(f) applies to CVD proceedings initiated on or after 20 November. This necessarily implies that it applies to any proceedings whose initiation pre-dates the publication of PL 112-99 
on 13 March 2012
60 (provided they were initiated on or after 20 November 2006) as well as to any 
proceedings whose initiation post-dates the publication of PL 112-99. As we understand it, Section 1(b)(1) concerns not just USDOC determinations made, or actions taken, in the context of covered proceedings, but also those made or taken by USITC. Section 1(b)(2) clarifies that 
Section 701(f) also applies to actions by USCBP that result from the proceedings covered by 
Section 1(b)(1). Any relevant actions carried ou t by USCBP before the publication of PL 112-99 
(but not before 20 November 2006) are accordingly covered by Section 701(f) as well as any such 
actions undertaken after the publication of PL 112-99. Finally, Section 1(b)(3) makes clear that 
Section 701(f) applies to Federal court proceedings relating to the proceedings and actions identified in Sections 1(b)(1) and (2). The covered court proceedings therefore comprise any 
relevant court proceedings initiated either before  the publication of PL 112-99 (but not before 
20 November 2006) or after the publication of PL 112-99.  
7.41.  As we understand it, China's claim under Article X:1 arises out of the fact that 
Section 701(f) is to be applied by USDOC, USITC, USCBP and Federal courts to events or 
circumstances that occurred prior to the date of publication of Section 1 of PL 112-99, which we 
recall is 13 March 2012.
61 The United States considers that to the extent that Section 701(f) 
applies to events or circumstances that occurred prior to the date of publication of Section 1, 
                                               
57 Section 1 does not define the term "nonmarket ec onomy country". The term is  defined, however, in 
Section 771(18)(A) of the United States Tariff Act of 1930 as meaning "any foreign country that the administering authority determines does not operate on mark et principles of cost or pricing structures, so that 
sales of merchandise in such countr y do not reflect the fair value of the merchandise". (Exhibit USA-06). 
58 The United States indicated that it does not consider that application to an NME country would result 
in Section 1 not being a measure of general application. (United States' response to Panel question No. 36). 
China argued along similar lines that Section 1 is a meas ure of general application. (China's response to Panel 
question No. 36). 
59 See paras. 7.32- 7.33. 
60 It is not in dispute that PL 112-99 was published on 13 March 2012. See para. 7.86.  
61 China's request for the establishment of a panel, pp . 1-2. Hereafter, we will  not separately identify 
USITC when referring to proceedings wi thin the meaning of Section 1(b)(1).  Our relevant references to USDOC 
proceedings should be understood to cover USITC determinations or acti ons, as appropriate. WT/DS449/R 
- 32 - 
 
  Section 1 cannot be regarded as a measure of general application because it applies to a known 
and identifiable set of proceedings and imports subject to those proceedings.62  
7.42.  In examining this issue, we note that Section 1(b) does not specifically identify, by name or 
otherwise, any relevant individual USDOC proceedings, USCBP actions or Federal court 
proceedings. Nor does it specifically identify any persons or entities involved in such proceedings 
or directly affected by such actions. Instead, Section 1(b) identifies the covered proceedings and actions generically, referring broadly and by its express terms to "all" proceedings initiated under 
subtitle A of title VII of the United States Tariff Act of 1930, "all" resulting USCBP actions, and "all" 
associated proceedings before a Federal court. In other words, Section 1(b), in each of its three 
paragraphs, identifies a class of situations in which Section 701(f) applies. 
7.43.  We recognize that to the extent that Section 701(f) applies to proceedings initiated or 
actions taken before the date of publication of PL 112-99, the generic descriptions in Section 1(b) 
could have enabled identification of relevant individual proceedings and actions and perhaps individual persons or entities involved or directly affected, provided relevant information was 
accessible to Congress at the time.
63 This is ultimately a consequence of the fact that Section 1(b) 
brings within the scope of Section 701(f) past events and circumstances. That is to say, it is a consequence of the fact that the past is known rather than unknown.  
7.44.  The fact remains, however, that Section 1(b) uses broad generic descriptions to identify 
relevant proceedings and actions that pre-date the publication of PL 112-99. Moreover, the three paragraphs of Section 1(b) are drafted in a mann er that ensures that Section 701(f) is applied 
comprehensively and across the board in all relevant situations – USDOC proceedings, USCBP 
actions and Federal court proceedings – that arose during a past period (20 November 2006 to 
13 March 2012) or that arose, or will arise, subsequently, in the period beginning from the date of publication of PL 112-99. To us, these features of Section 1(b) do not suggest that Section 701(f) 
is concerned, insofar as it applies to past events  or circumstances, with individual proceedings and 
actions as such, or with individual persons or entities as such, or that it selectively targets any of these. Rather, these features indicate that it is  concerned with individual proceedings and actions 
only insofar as they are part of a comprehensive class of relevant proceedings and actions.  
7.45.  The United States argued at the second su bstantive meeting with the Panel that in keeping 
with China's claim, our analysis should focus on the part of Section 1(b) that concerns proceedings initiated between 20 November 2006 and 12 March 2012.
64 The United States argues in this 
respect that Congress could have chosen to pass, in lieu of a single law, two separate laws to 
address the matter of application of its CVD prov isions to imports from NME countries: one whose 
Section 1(b) would provide that Section 701(f)  applies to proceedings initiated between 
20 November 2006 and 12 March 2012, and another whose Section 1(b) would be identical, 
except that it would provide that Section 701(f)  applies to proceedings initiated on or after 
13 March 2012. The United States argues that our conclusions should therefore not be based on 
the part of Section 1(b) that relates to procee dings initiated on or after 13 March 2012. China 
submits that a measure cannot be a measure of general application for some purposes (e.g. to the extent it applies to past events or circumstances) and not a measure of general application for other purposes. We note in this respect that our analysis of Section 1(b) does not hinge upon its 
integrated nature, i.e. the fact that it renders Section 701(f) applicable to proceedings or actions 
that either pre- or post-date the publication of  PL 112-99. Indeed, our analysis focuses on those 
aspects and elements of the text of Section 1 that  concern events or circumstances that pre-date 
the publication of PL 112-99. We do not therefore co nsider that the alternative legislative approach 
that the United States says was open to it calls into question the preceding examination of Section 1(b).
65 
                                               
62 United States' responses to Pa nel question Nos. 24 and 118. 
63 We note in this respect that, for instance, informat ion about the date of initiation of relevant USDOC 
proceedings appears to have been published in the United States Federal Register. (Exhibit CHI-24). 
64 United States' oral comments on Chin a's response to Panel question No. 116. 
65 It is also worth noting that even if the United States had enacted a separa te law whose Section 1(b) 
would provide that Section 701(f) applies only to proceedings initiated between 20 November 2006 and 13 March 2012, Section 701(f) would still not apply exclusively to a known set of persons, entities, situations, 
or cases. For instance, some CVD orders imposed prior to 13 March 2012 would have still remained in place 
after that date. Accordingly, this hypothetical Section 1(b) would not enable identification of all relevant individual proceedings or actions, or all individual pers ons or entities involved or directly affected, merely WT/DS449/R 
- 33 - 
 
  7.46.  As an additional matter, we note the United States' view that Section 701(f) is not of 
general application to the extent that it applies to events or circumstances that pre-date the publication of PL 112-99, but is of general application to the extent that it applies to events or circumstances that post-date the publication of PL  112-99. Having regard to the actual terms in 
which Section 1(a) and (b) have been cast, we consider that Section 1 is about rule-making, and 
that the new provision that it adds – the new Section 701(f) – applies to future events or circumstances as well as past ones. In the light of this, we are not persuaded that it would be 
appropriate to accept the curiously asymmetric result to which the United States' view leads. 
Moreover, we see no convincing rationale for why public notice in the form of publication would be warranted only to the extent that Section 701(f) ap plies to events or circumstances that post-date 
the publication of PL 112-99. It appears to us that persons or entities that are affected by the fact 
that Section 701(f) applies to past events or circumstances would likewise wish to become 
acquainted promptly with its terms. It is true that they could not undo any past import transactions. But they could seek a modification of Section 1 by using any political or legal means 
available. Also, upon becoming aware of Section 1, they might decide to discontinue any ongoing 
proceedings before Federal courts concerning covered USDOC proceedings or USCBP actions, or, in the case of Member governments, they might see fit to file a complaint with the WTO.  
7.47.  Finally, looking at all other parts of the te xt of PL 112-99, we see nothing there that would 
suggest that Section 1 contains a provision that is not of general application.  
7.48.  In sum, having reviewed both subsections of Section 1 as well as PL 112-99 as a whole, we 
find that Section 1 contains a provision of general application. That this provision applies to events 
or circumstances that pre-date the publication of PL 112-99 does not detract from it being a 
provision of general application.   
7.4.1.3  Law pertaining to rates of duty, or other charges, or to requirements, or 
restrictions, on imports 
7.49.  The final issue that remains for us to consider  in relation to the first element of Article X:1 is 
whether Section 1 falls within the type of laws that "pertain" to "rates of duty", or "other charges", 
or to "requirements", or "restrictions", on imports. 
7.50.  The text of Article X:1 separates the terms "rates of duty" and "other charges", on the one 
hand, and "requirements" and "restrictions" on impo rts, on the other hand, by the disjunctive "or". 
We deduce from this that a law pertaining to one of the two categories of subject-matter is subject 
to Article X:1, provided that it has also been made effective by a Member, as specified in the 
earlier part of the provision. Consequently, once a panel has determined that a law pertains to one category, it need not go on to examine whether that law pertains, at the same time, to the other. 
7.51.  We begin our analysis with the "rates of  duty" category. The term "rates of duty" is 
unqualified and therefore capable of encompassing various types of duty. As is apparent from, for 
example, Article II of the GATT 1994, the GATT 1994 distinguishes such duties as ordinary 
customs duties, other duties imposed on or in connection with the importation of products, anti-
dumping duties and, most pertinent to our analysis of Section 1, countervailing duties.
66 The latter 
term is defined in Article VI:3 of the GATT 1994 as "a special duty levied for the purpose of 
offsetting any bounty or subsidy bestowed directly , or indirectly, on the manufacture, production 
or export of any merchandise".67 Also, the SCM Agreement explicitly uses the term "countervailing 
duty rate".68 There is therefore no question that the term "rates of duty" includes rates of 
countervailing duty.   
                                                                                                                                               
because it provides for the application of Section 701(f) to proceedings initiated between 20 November 2006 
and 13 March 2012. In the light of this, the logic of the United States' own argument suggests that even with 
this hypothetical Section 1(b), Section 701(f) would – at least in part – be of general application.      
66 See Articles II:1(b) and II:2(b) of the GATT 1994. 
67 See also footnote 36 of the SCM Agreement. 
68 Article 19.3 of the SCM Agreement states in releva nt part that "[a]ny exporter whose exports are 
subject to a definitive countervaili ng duty but who was not actually in vestigated for reasons other than a 
refusal to cooperate, shall be entitled to an expedite d review in order that th e investigating authorities 
promptly establish an individual counterv ailing duty rate for that exporter". WT/DS449/R 
- 34 - 
 
  7.52.  Article X:1 contemplates laws "pertaining" to rates of duty. The verb "pertain to" is defined, 
inter alia , as "[h]ave reference or relation to, relate to".69 This definition indicates that Article X:1 
does not seek to limit the prompt publication requirement to only those relevant measures that directly set or determine particular rates of duty. Indeed, Article X:1 does not refer, narrowly, to 
laws "establishing" rates of duty, but uses the broader term "pertain". To "pertain" to rates of 
duty, a law simply needs to have refere nce, or relate, to rates of duty.  
7.53.  With these observations in mind, we now assess whether Section 1 "pertains" to "rates of 
d u t y " ,  a s  a s s e r t e d  b y  C h i n a .  W e  o b s e r v e ,  f i r s t ,  t h a t  S e c t i o n  1  i s  e n t i t l e d  " A p p l i c a t i o n  o f  
countervailing duty provisions to nonmarket economy countries".
70 Additionally, we note that 
Section 1(a) adds a new Section 701(f) to the United States Tariff Act of 1930. It stipulates that "the merchandise on which countervailing duties  shall be imposed under subsection (a)"
71 includes 
imports from NME countries. At the same time, howe ver, the new Section 701(f) provides that "[a] 
countervailing duty is not required to be imposed under subsection (a)"72 on imports from NME 
countries, if the administering authority is unable to identify and measure subsidies provided in 
NME countries. As these textual elements demons trate, Section 1 unquestionably has reference, 
and relates, to a particular type of "duty", specifically, countervailing duties. 
7.54.  Section 1 does not itself set particular "rates" of duty. But it provides a basis for the 
imposition of countervailing duties on imports from NME countries. That is to say, it makes clear 
that, in appropriate cases, greater-than-zero (positive) rates of countervailing duty may (and must) be applied to imports from NME countries.
73 In the light of this, Section 1 in our view also 
has reference, and relates, to "rates" of counterva iling duty and thus "pertains" to such rates. 
7.55.  This view accords well with, and gives prop er effect to, the prompt publication requirement 
in Article X:1. It would be incongruous to interpre t Article X:1 to require prompt publication of the 
particular rate(s) of countervailing duty applicable to imports of a specific product from an NME 
country74, but not of the law that authorizes the application of countervailing duties to imports 
from NME countries at rates greater than zero. Tr aders have a legitimate interest in becoming 
acquainted not just with the particular rate(s) of countervailing duty applied to imports of a 
specific product from NME countries, but also with the basis for applying any rate greater than 
zero to imports of that product.  
7.56.  For these reasons, we determine that Section 1 "pertains" to "rates of duty" within the 
meaning of Article X:1. In view of this affirmative determination, there is no need to go on to 
examine whether Section 1 also "pertains" to "req uirements", or "restrictions", on imports, as 
China maintains. 
7.4.1.4  Conclusion 
7.57.  Having regard to the foregoing considerations, we conclude that Section 1 meets the first 
element of our Article X:1 analysis. Section 1 is an integral part of a law. As such, it falls within the category of "laws". It also contains a provision that is of "general application" and "pertains" to 
"rates of duty".  
                                               
69 The Shorter Oxford English Dictionary  (2002), p. 2170. 
70 Emphasis added. In this respect, the preamble  to PL 112-99 describes PL 112-99 as an Act "[t]o 
apply the countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries, and for 
other purposes". (emphasis added) 
71 Emphasis added. 
72 Emphasis added. 
73 The new Section 701(f)(1) states in relevant part that "the merchandise on which countervailing 
duties shall be imposed under subsection (a) includes a class or kind of merchandise imported, or sold (or 
likely to be sold) for importation, into the Un ited States from a nonmarket economy country". 
Section 701(f)(2) then goes on to address in what circum stances "[a] countervailing duty is not required to be 
imposed under subsection (a)" on a relevant class or kind of merchandise. Subsection (a) of Section 701 states 
that where the relevant conditions ar e met, "there shall be imposed upon  such merchandise a countervailing 
duty … equal to the amount of the net countervailable subsidy". 
74 In this regard, see also the public notice re quirements in Article 22.5 of the SCM Agreement. WT/DS449/R 
- 35 - 
 
  7.4.2  When was Section 1 "made effective"? 
7.58.  The Panel now turns to the second element of its Article X:1 analysis, which concerns the 
issue whether, and if so when, the United States made Section 1 "effective".  
7.59.  China asserts that, by its express terms, Section 1 was "made effective" as of 20 November 
2006, because Section 1(b) refers to that date as the "effective date" of this section. China argues 
by reference to the panel reports in EC – IT Products  that the term "made effective" refers to when 
the measure became "operative", i.e. when it coul d have an actual effect "in practice", not the 
date on which it was formally promulgated or formally entered into force.75 According to China, 
Section 1 became "operative" on 20 November 2006, because that is the date on which the new Section 701(f) of the United States Tariff Act came into effect as a legal basis for the USDOC to apply countervailing duties to imports from NME countries.
76    
7.60.  China also considers that Article X:1 would be meaningless if it were interpreted to permit 
the retroactive application of Section 1 to imports that occurred prior to its publication. China refers in this connection to the report of the GATT panel in  EEC – Apples (US) . According to China, 
the situation before this Panel is analogous to the backdated import quota which that panel found 
to be inconsistent with Article X:1.
77 China recalls that the panel in that dispute interpreted 
Article X:1 as prohibiting back-dated quotas and found the EEC in breach of Article X:1 "since it 
had given public notice of the quota allocation only about two months after the quota period had 
begun".78 China submits that in the case of Section 1 of PL 112-99, the United States backdated 
USDOC's legal authority to conduct countervailing duty investigations in respect of imports from NME countries and did not provide public notice of this authority until more than five years after it 
became effective.
79 
7.61.  The United States rejects China's assertion, arguing that PL 112-99 was "made effective" on 
the date of its enactment, i.e. on 13 March 2012.80 The United States observes in this connection 
that the starting point of Article X:1 is the existence of a measure of general application: the laws, 
regulations, etc., to which Article X:1 applies must be in existence for the prompt publication obligation to apply. According to the United States, the "made effective" clause serves, however, 
to exclude from the scope of Article X:1 measures that may be in existence, but have not been 
made effective. The United States submits that  the ordinary meaning of the "made effective" 
clause confirms that it is aimed at limiting the application of Article X:1 to measures that have been adopted or brought into operation.
81 On that basis, the United States considers that PL 112-
99 came into existence and was made effective on 13 March 2012.82  
7.62.  The United States adds that China's vi ew finds no support in the panel reports in EC – IT 
Products . The United States notes in this respect that at no time before the date of enactment and 
publication of the law (13 March 2012) could any pe rson or entity in the United States rely on 
Section 1 of PL 112-99 to assert legal rights or consequences, and that there is no evidence that any entity applied Section 1 prior to its adoption to bring it into effect in practice.
83 
7.63.  The United States further considers that China's claim rests on an implausible reading of 
Article X:1 that would require publication before the existence of a measure.84 In the 
                                               
75 Panel Reports, EC – IT Products , paras. 7.1045-7.1046 and 7.1048. 
76 China's first written submission, para. 63; response to Panel question No. 18; second written 
submission, para. 11; oral statement at the second meeting with the Panel, para. 7 (stating that on that date the new Section 701(f) "had legal effect in practice, by supplying a statutory basis for countervailing duty 
investigations initiated on or after that date"). 
77 China's second written submission, paras. 9 and 11. 
78 China refers to the GATT Panel Report, EEC –Apples (US) , para. 5.23. 
79 China's first written submission, fn. 64; second written submission, paras. 5-10. 
80 United States' responses to Panel question Nos. 25 and 92. 
81 The United States refe rs to Panel Reports, EC – IT Products , para. 7.1045; and Appellate Body 
Reports, China – Raw Materials , para. 356. 
82 United States' first written submission, paras. 70-71, 73 and 78; United States' second written 
submission, para. 9. 
83 United States' second written submission, para. 10. The United States also observes in this context 
that in the United States a draft or proposed law has no legal effect and cannot be  brought into effect until 
adopted by Congress and signed by the President. (United States' response to Panel question No. 25). 
84 United States' first written submission, para. 62. WT/DS449/R 
- 36 - 
 
  United States' view, Article X:1 does not prohibit a measure from touching on events that have 
occurred prior to its publication.85 The "made effective" clause cannot be read as a substantive 
obligation to the effect that measures of general application must not apply to past factual situations.
86 According to the United States, the title to Article X – "Publication … of Trade 
Regulations" – suggests that Article X:1 does not impose an obligation concerning the substantive 
content of measures, but a procedural requirement on publication.87 The United States further 
argues that the term "made effective" is used in the past tense, indicating that the relevant 
measures have been enacted or adopted at some po int in the past. In addition, the requirement in 
Article X:2 that certain measures not be "enforced" before publication presumes, in the United States' view, that measures could be effe ctive before publication, just not enforced, and 
that some set of other measures could be enforced before publication. The United States submits 
that this confirms that measures may affect events prior to their publication.
88 Finally, the 
United States argues that public international law and the parties' own legal systems refute any proposition that a measure may not affect events that have occurred prior to its publication.
89  
7.64.  Regarding the GATT panel report cited by Ch ina, the United States submits that the panel 
does not provide a discussion of the interpretation of Article X:1. The United States observes that the panel's conclusions on Article X:1 regarding th e use of so-called backdated quotas appear to 
be an afterthought to the panel's analysis of the substantive obligations of Article XIII:3 of the 
GATT 1947. According to the United States, withou t an interpretation of the requirements of 
Article X:1, there is no reasoning for the panel findings, and therefore no reasoning that has any persuasive value.
90 
7.65.  China responds that it is hard to see how the statute was "made effective" on 
13 March 2012 when the statute itself has an "effective date" of 20 November 2006. China further argues that nothing in Article X:1 refers to the "existence" of a measure as the baseline for 
determining whether it was published promptly. It refers, instead, to when the measure was 
"made effective". China submits that a measure can be "made effective" prior to the date on which the measure might be said to have "existed", "in some sense".
91 
7.66.  The Panel recalls that in accordance with the terms of Article X:1 only relevant measures 
that have been "made effective" by a Member need to be "published promptly in such a manner as to enable governments and traders to become acquainted with them". The phrase "made effective" was the subject of a detailed interpretive inquiry by the panel in EC – IT Products . According to 
that panel, a measure of the type covered by Arti cle X:1 has been "made effective" if it has been 
"brought into effect, or made operative, in practice and is not limited to measures formally promulgated or that have formally 'entered into force'".
92 This finding identifies two distinct types 
of situations in which relevant measures would be found to have been "made effective" within the 
meaning of Article X:1: (i) situations where the relevant measures have been formally promulgated or have formally entered into force; and (ii) situations where they have not, or not 
yet, been formally promulgated or formally entered into force, but have nevertheless been brought 
                                               
85 The Panel notes that the United States avoided using the term "retroactive", or  "retroactivity", in the 
context of addressing China's claims under Article X, arguing that Article X "does not discuss the term 'retroactivity'" and that the term has different meanings in diffe rent legal systems. The United States maintains 
that it is therefore not in a position to determine whether PL 112-99 may be characterized as legislation that applies "retroactively". The United States explained th at it preferred to refer, for example, to a measure 
"touching on events that ha ve occurred prior to the publication of th e measure". (United St ates' oral statement 
at the first meeting with the Panel, para. 11; response to Panel question No. 26). 
86 The United States observes in this context that Article X:1 applies to "judicial decisions and 
administrative rulings of general a pplication". According to the United States, such decisions and rulings 
necessarily impose legal consequences on past events, as  an action must first have  occurred before a judicial 
or administrative tribunal is able to evaluate its legali ty. (United States' first written submission, para. 84).   
87 United States' first written submission, paras. 62, 64, 71, 76, 81, and 90. Along similar lines, the 
United States observes that Article X:1 does not a ddress what facts a measure may affect, as it is a 
procedural, publication obligation. (United States' response to Panel question No. 93(b)). 
88 United States' oral statement at the first meeting with the Panel, para. 18. 
89 The United States refers to Article 28 of the Vi enna Convention , a memorandum of understanding 
(MOU) between China and the United States, US court decisions, and a Chinese law. (United States' first 
written submission, paras. 87-89). 
90 United States' response to Panel question No. 50; comments on China's response to Panel question 
No. 90. 
91 China's oral statement at the first me eting with the Panel, paras. 27 and 31. 
92 Panel Report,  EC – IT Products , para. 7.1048. WT/DS449/R 
- 37 - 
 
  into effect, or made operative, in practice. We understand the second type of situation to concern 
measures that have been brought into effect de facto  ("in practice") as dist inct from measures that 
have been brought into effect de jure  ("formally").93 This interpretation ensures that Members 
cannot escape their prompt publication obligation  by putting relevant measures into effect de 
facto, without completing all, or any, of the steps necessary to put them into effect de jure . We 
find the panel's interpretation of the phrase "m ade effective" persuasive for purposes of our 
consideration of China's claim, and we will therefore base our analysis on it.   
7.67.  Having elucidated the meaning of "made effective", we proceed to examine whether, and if 
so when, Section 1 was "made effective". It is apparent from the face of PL 112-99 that it was "enacted by the [United States] Senate and House of Representatives"
94 and that it was 
"approved", and thereby enacted, on 13 March 2012.95 Furthermore, it is undisputed that 
PL 112-99 was published on 13 March 2012.96 According to the United States, PL 112-99 entered 
into force that same day, which China has not contested.97 Taken together, these elements 
support the inference that PL 112-99 was formally brought into effect on 13 March 2012. There is 
no evidence on the record to indicate that the United States brought PL 112-99 into effect "in 
practice", or de facto , prior to 13 March 2012. In the light of the foregoing, we conclude that 
PL 112-99 was indeed "made effective" by the United States, and more particularly that it was 
"made effective" on 13 March 2012. 
7.68.  The measure at issue, Section 1, is unqu estionably part of PL 112-99. As emphasized by 
China, however, Section 1(b) sets forth a specific "effective date". Relying on Section 1(b), China submits that Section 1 was "made effective", not on 13 March 2012, but on 20 November 2006. 
Before addressing this argument, it is well to re call once more the content of the two subsections 
of Section 1. Section 1(a) "amends" United States law, "adding" a new Section 701(f) to the United States Tariff Act of 1930.
98 Section 1(b) is entitled "Effective Date". It provides that the 
new Section 701(f) "applies to" (i) all proceedings initiated under subtitle A of title VII of the 
United States Tariff Act of 1930 "on or after November 20, 2006", (ii) all resulting USCBP actions, and (iii) all proceedings before Federal courts linked to (i) or (ii).  
7.69.  A careful reading of the text of Section 1 thus calls attention to two issues that it is 
important not to conflate: first, "When was the new Section 701(f) added  to United States law?", 
and second, "To which proceedings and actions does Section 701(f) apply ?". We first consider 
when Section 701(f) was added to United States law. Section 1(b) does not speak to this issue. In 
fact, its text takes as a point of departure that Section 701(f) has been added to United States law 
by Section 1(a).
99 Section 1(a) does not specify any date. But Section 1 is part of PL 112-99, 
which entered into force on 13 March 2012. Absent an  indication to the contrary in Section 1(a), 
we infer that Section 1(a), and with it the new Section 701(f) that it adds, formally entered into 
force on the same date as PL 112-99. This means that, as from that date, Section 701(f) has provided a legal basis for the United States to apply countervailing duty provisions to NME 
countries.  
                                               
93 The measures at issue in EC – IT Products  – certain amendments proposed by the European 
Commission to the CNENs – had not been formally adopte d by the European Commission  at the time of review. 
The panel nevertheless found that the particular constell ation of facts in that dispute supported the conclusion 
that the draft CNENs had been made effe ctive. It noted in this context that in a number of instances, some EC 
member States had used the draft CNENs in making classification decisions. (Panel Reports,  EC – IT Products , 
paras. 7.1065-7.1066). 
94 China stated that PL 112-99 was passed by the House and Senate, respectively, on 6 and 7 March 
2012. 
95 Exhibit CHI-01; China's first written submission, para. 49; United States' first written submission, 
para. 51; United States' response to Panel question No. 110. China stated that 13 March 2012 is the date on which the President signed, or "approved", the bill. 
96 China's first written submission , para. 46; United States' first written submission, paras. 77-78; 
United States' response to Panel question No. 11. 
97 United States' responses to Panel question No s. 11 and 92. China observed that PL 112-99 was 
officially published on 13 March 2012 as a "slip law" and that a slip law "constitutes legal evidence of its 
enactment". (China's first written submission, fn. 37). 
98 Section 1(a) states that "Section 701 of the Tariff Act of 1930 … is amended by adding at the end the 
following …" 
99 Section 1(b) states that "Subsection (f) of section 701 of the Tariff Act of 1930, as added by 
subsection (a) of this section , applies to …". (emphasis added) WT/DS449/R 
- 38 - 
 
  7.70.  The second issue relates to the proceeding s and actions to which Section 701(f) applies. 
This issue is addressed in Section 1(b).100 As is suggested by its textual elements "Effective 
Date"101 and "applies to", Section 1(b) serves, inter alia , to define the temporal scope of 
application of Section 701(f). It makes clear that once Section 701(f) has entered into force, it 
applies to all relevant proceedings initiated on or after 20 November 2006, to all resulting USCBP 
actions, and to all proceedings before Federal cour ts relating to the aforementioned proceedings or 
actions.102 Thus, Section 701(f) applies also to events or circumstances that pre-date its formal 
entry into force on 13 March 2012. Or, to put it another way and with particular reference to the 
title of Section 1(b) (" Effective  Date"103), the new Section 701(f) produces legal effects also with 
regard to past events or circumstances.  
7.71.  It is worth recalling in respect of Section 1(b) that the mere fact that the phrase "Effective 
Date" bears a certain textual resemblance to the phrase "made effective" in Article X:1 is not 
dispositive of the characterization of Section 1(b) under WTO law.104 Indeed, our analysis in the 
preceding paragraph indicates that Section 1(b) does not set forth the date on which Section 1 
was formally "made effective".105 Nor does Section 1(b) imply or otherwise document, as China 
suggests106, that Section 701(f) entered into force, or became operable, "in practice" ( de facto ) on 
20 November 2006 and produced legal effects as from that date in respect of proceedings and 
actions that occurred on or after that date. As  explained, it was not until 13 March 2012 that 
Section 701(f) began to produce any legal effects in respect of proceedings or actions relating to the period between 20 November 2006 and 12 March 2012. Finally, we note that there is also no evidence on the record to indicate that Section 701(f) was brought into effect, in practice, at any 
point prior to its formal entry into force.
107    
7.72.  We are therefore unable to accept China's position that 20 November 2006 is the date on 
which Section 701(f) was brought into effect either formally or in practice. In our view, 20 
November 2006 is a date that serves to circumscr ibe the temporal scope of application of the new 
Section 701(f). More specifically, pursuant to Section 1(b), proceedings initiated on or after 20 November 2006 fall within the temporal scope of application of Section 701(f), as do any resulting 
USCBP actions and associated Federal court procee dings. Accordingly, 20 November 2006 is the 
earliest date of a covered event or circumstance in respect of which Section 701(f) produces any legal effects. This view is consistent with the text of Section 1(b), which provides that Section 701(f) "applies" to proceedings initiated on or after 20 November 2006. Furthermore, our 
reading of Section 1(b) gives meaning to its title ("Effective Date") in that, on our view, 
Section 1(b) identifies by date the proceedings or actions in respect of which it produces legal effects. 
7.73.  Were we to accept that 20 November 2006 is the date on which Section 1 was "made 
effective", we would also have to conclude that, pursuant to Article X:1, Section 1 should have been "published promptly" after that date. This, of course, would have been impossible, for 
Section 1 did not exist at that time. Indeed, the practical consequence of adopting China's view 
would render inconsistent with Article X:1 a wide range of measures that bring within their temporal scope of application events or circumstances that occurred before their entry into force. A s  w e  e x p l a i n  b e l o w ,  w e  c o n s i d e r  t h a t  A r t i c l e X:2 precludes enforcement of certain types of 
restrictive measures in respect of events or circumstances that occurred prior to their date of 
                                               
100 The United States observes in th is respect that Section 1(b) defines what facts (proceedings, actions, 
etc.) will be affected by Section 701(f). (United States' response to Panel question No. 93(a)). 
101 Emphasis added. 
102 The United States confirmed that the term "applies to" in Section 1(b) means that Section 701(f) 
applies automatically with its entry into force, and that there is no need for any additional implementing act. (United States' response to Panel question No. 58). 
103 Emphasis added. 
104 See e.g. Appellate Body Reports, China – Auto Parts , para. 178. 
105 The United States contends that the "effective date" as that term is used in PL 112-99 does not refer 
to when the legislation is brought into effect, but to the universe of facts to which the legislation applies. The United States further maintains that 13 March 2012 is no t an "effective date" within the meaning of PL 112-99. 
(United States' response to Panel question No. 93(b)). 
106 China's comments on the United States' response to Panel question No. 93. 
107 More specifically, there is no evidence that Section 701(f) was applied in practice by the relevant 
United States' authorities as from 20 November 2006, or any time before its formal entry into force, such that 
it could be inferred from such practice that Section 701(f) was de facto  "made effective" before its formal entry 
into force on 13 March 2012. WT/DS449/R 
- 39 - 
 
  publication.108 But we see nothing in Article X:1 that prohibits Members from "making effective" 
measures of the type that fall within the ambit of Article X:1 and that apply to events or circumstances that occurred before their entry into force, provided such measures are promptly published. It is worth mentioning in this connection that some such measures may be remedial or 
otherwise non-restrictive in nature. These considerations reinforce our view that it is important, in 
the context of an Article X:1 inquiry, not to conf late the issue of when a relevant measure entered 
into force – i.e. was "made effective" within the me aning of Article X:1 – with the separate issue of 
its temporal scope of application, about which the text of Article X:1 says nothing.
109  
7.74.  According to China, its submission that  Section 1 was "made effective" on 20 November 
2006 draws support, by analogy, from the adopted report of the GATT panel in EEC – Apples (US). 
The panel in that dispute concluded that the operation of a backdated EEC restriction on imports of 
apples in respect of, inter alia , the United States was inconsistent with Article X:1.110 In support of 
its conclusion, the panel reasoned, in two short sentences, that Article X:1 prohibits "back-dated quotas", and that the EEC was therefore in breach of Article X:1 as "it had given public notice of 
the quota allocation only about two months after the quota period had begun".
111    
7.75.  As the panel offered no interpretative analysis of Article X:1, it is not clear why the panel 
considered that Article X:1 prohibits backdated quotas. What is clear is that the panel's conclusion 
on the United States' Article X:1 claim is immediately preceded by an examination of another claim 
put forward by the United States, under Article XIII:3(c) of the GATT 1947. That Article concerns the allocation of quotas among supplying countries.
112 The panel read it together with 
Article XIII:3(b) of the GATT 1947, which requires th at public notice be given of the total quantity 
or value of the product that will be permitted to be imported "during a specified future period". The 
panel deduced from these two provisions that "bot h the total quota and the shares allocated in it 
had to be publicly notified for a specified future period".113 According to the panel, the requirement 
in Article XIII:3(c) "to promptly notify other contracting parties with an interest in supplying the 
product would otherwise be meaningless, as would the Article XIII:3(b) provision for supplies en route to be counted against quota entitlement".
114 The panel concluded on that basis that the 
allocation by the EEC of backdated quotas was inconsistent with Article XIII:3(b) and (c).115 
7.76.  We note in respect of Article X:1 that, unlike Article XIII:3(b), it does not refer to a 
"specified future period" of application or a specified future date of application. Nor do we see any justification for reading such a reference into the text. We consider that Article X:1 is by no means 
"meaningless", to use the GATT panel's term, if it does not prohibit such measures as Section 1 
that apply to events or circumstances that pre-da te their publication. We have already explained 
above that Article X:1 serves a useful purpose, including in respect of such measures.
116 
Furthermore, it must be remembered that Article X:2 imposes relevant disciplines: the measures it 
covers may not be enforced before they have been officially published.117 It is noteworthy that the 
GATT panel's interpretation of Article X:1 pays no regard to Article X:2.  
7.77.  Consequently, we do not consider that the GATT panel report assists China in establishing 
that Section 1 was made effective on 20 November 2006.   
                                               
108 See subsection 7.5.1. 
109 To further illustrate the importan ce of this conceptual distinction,  assume that a relevant measure 
that has just entered into force provides that it applies on ly to events or circumstances that occur, if at all, on 
some future date, e.g. three years after the entry into fo rce of the measure. If this future date of application 
constituted the "made effective" date for purposes of Article X:1, the Member concerned would not be required 
to publish the measure promptly after its entry into forc e. Instead, the Member coul d hold off publishing the 
measure until it has been "made effective" three years later, even though the measure plainly exists and it is therefore possible to publish it, and traders and governments would lik ely benefit from knowing to what 
requirements they, or the enacting Members' authorit ies, would need to confor m in three years' time. 
110 GATT Panel Report, EEC –Apples (US) , para. 5.26. 
111 Ibid. para. 5.23. 
112 Article XIII:3(c) requires that "[i]n the case of quotas allocated among supplying countries, the 
contracting party applying the restrictio ns shall promptly inform all other contracting part ies having an interest 
in supplying the product concerned of the shares in the quota currently allocated, by quantity or value, to the various supplying countries and shall give public notice thereof". 
113 GATT Panel Report, EEC –Apples (US) , para. 5.23. 
114 Ibid. para. 5.23. 
115 Ibid. 
116 See para. 7.46. 
117 See in this respec t subsection 7.5.1. WT/DS449/R 
- 40 - 
 
  7.78.  For all the reasons cited above, we thus conclude that Section 1 was "made effective" by 
the United States, and more particularly that both Section 1(a) (and with it the new Section 701(f)) and Section 1(b) were "made effective" on 13 March 2012 and not on 20 November 2006 or any other date prior to 13 March 2012.  
7.4.3  Was Section 1 "published promptly in  such a manner as to enable governments 
and traders to become acquainted"? 
7.79.  The third and final element of our Articl e X:1 analysis requires the Panel to consider 
whether, as claimed by China, Section 1 was not published promptly in such a manner as to 
enable governments and traders to become acquainted with it.   
7.80.  China argues that the appropriate reference point for determining whether a measure was 
"published promptly" is the date on which it was made effective.
118 China further argues that in 
evaluating whether a measure was published promptly, it is necessary to consider whether the 
measure was published in a sufficiently timely manner to enable "governments and traders to become acquainted" with the content of the measure. China notes that, as it pertains here, the 
ordinary meaning of the term "promptly" is "quickly" and "without undue delay".
119 In response to 
a Panel question, China stated that ordinarily, publ ication would occur prior to the date on which a 
measure is made effective, but that there may be circumstances, such as measures to address an 
emergency situation, in which a measure could be published shortly after it is made effective.120 
According to China, PL 112-99 was, however, published nearly five and a half years after the date on which it was made effective.
121 China submits that this was not "prompt" by any conceivable 
standard. In China's view, this conclusion is under scored by the fact that the Government of China 
and Chinese producers could not possibly have become acquainted with Section 1 of PL 112-99 
before it took effect, since the law was not published until long after it took effect. China considers that this is inconsistent with the due process and transparency requirements that underlie all of 
Article X.
122 
7.81.  The United States argues that Article X:1 imposes two requirements. The first is that 
measures be "promptly published" upon their adop tion. According to the United States, the issue 
of "promptness" must be evaluated in relation to the time when a measure has come into 
existence and been made effective. In the United States' view, a measure cannot be inconsistent with the prompt publication obligation if it is published as soon as the measure comes into existence; it would not be possible to publish the measure with any less delay. The United States 
observes that PL 112-99 was published on the same  day that it came into existence. Therefore, 
the United States maintains, China has no basis for any claim that the measure was not published "promptly" under Article X:1.
123 
7.82.  The second requirement imposed by Article X:1 is that relevant measures be published in 
such a "manner as to enable governments and traders to become acquainted" with them. The United States submits in this respect that PL 11 2-99 was published in the "United States Statutes 
at Large", which is readily available to China, Chinese traders and other members of the public. 
The United States considers, therefore, that Section 1 was published in such a "manner as to enable governments and traders to become acquainted" with it.
124 In response to China's 
argument that governments and traders could not have become acquainted with Section 1 before 
it took effect, the United States observes that the obligation in Article X:1 regarding the "manner" 
of publication involves how the measure is published, not the timing of publication.125  
                                               
118 China's response to Panel question No . 17. China refers to Panel Reports, EC – IT Products , 
para. 7.1069 and China – Raw Materials , para. 7.1101. 
119 China refers to Panel Reports, EC – IT Products , para. 7.1074. 
120 China's response to Panel question Nos. 11 and 17. 
121 China considers that Section 1 of PL 112-99 was "made effective" on 20 November 2006, but not 
published until 13 March 2012. (China's second written submission, para. 2). 
122 China's first written submission, paras. 64-65. 
123 United States' first written submission, paras. 75 an d 78; oral statement at the first meeting with the 
Panel, para. 14; second wr itten submission, para. 11. 
124 The United States refers to "P.L. 112-99, 126 Sta. 265 (Mar. 13, 2012)", which it indicates is 
available at http://www.gpo.gov/fdsys/pkg/PLAW-112publ99/pdf/PLAW-112publ99.pdf . 
125 United States' first written submission, paras. 79-80. WT/DS449/R 
- 41 - 
 
  7.83.  The Panel, relying on the wording of Article X:1, agrees with the United States that a breach 
of that Article may arise from (i) a failure to publish a relevant measure "promptly" or (ii) a failure to publish a relevant measure in such a "manner" as to enable governments and traders to become acquainted with it. Prior panel reports indi cate that the "manner" of publication relates, 
not to the date of publication, but to such aspect s as the medium of publication or the content or 
quality of what is published.
126  
7.84.  We understand China to raise a claim that the United States did not publish Section 1 
"promptly", and not that the United States did not publish Section 1 in an appropriate "manner". 
China argues that its view about prompt publication is "underscored" by the fact that China and Chinese producers could not have become acquainted with Section 1, since it was not published "until long after" it took effect, which China considers was on 20 November 2006.
127 This 
argument, however, concerns the timing of publication, and not the "manner" of publication as a 
distinct issue. In any event, as explained by the United States, PL 112-99 was published in the "United States Statutes at Large" official publication series. China did not assert that this did not 
meet the requirement to publish Section 1 in such a manner as to enable governments and traders 
to become acquainted with it.
128 Furthermore, as we have determined above, Section 1 was not 
made effective on 20 November 2006, but on 13 March 2012. We therefore see no need to 
address further the issue of the manner of publication.    
7.85.  As regards the issue whether Section 1 was published "promptly", we agree with the panel 
in EC – IT Products , and the parties, that the "promptness" of publication, or lack thereof, must be 
assessed by reference to the date on which the relevant measure has been "made effective".129 
We likewise agree with the view of that panel that "promptly" as that term is used in Article X:1 
means "quickly" and "without undue delay", an d that whether a measure has been published 
"promptly" must be determined on a case-specific basis.130 We infer from these elements that 
Article X:1 requires Members to publish measures falling within its ambit quickly and without 
undue delay, once they have been made effective.131 This interpretation ensures that Members 
enable governments and traders to become acquai nted with the content of these measures in a 
timely fashion.      
7.86.  Applying this interpretation to Section 1,  we recall our earlier finding that Section 1 was 
made effective on 13 March 2012 and not, as China argues, on 20 November 2006. Moreover, it is common ground that Section 1 was published on 13 March 2012. As the date on which Section 1 
was made effective and the date on which it was published coincide, we consider that Section 1 
was published both quickly and without any delay, once it had been made effective.  
                                               
126 The panel in EC – IT Products  observed in this regard that "if me asures are to be published 'in such a 
manner as to enable governments and traders to become acquainted with them", it follows that they must be 
generally available through an appropriate medium rather than simply making them publicly available". (Panel 
Reports,  EC – IT Products , para. 7.1084). In Thailand – Cigarettes  (Philippines ), the panel found that "the 
relevant documents referred to by Thaila nd do not clearly indicate a definite right to the release of guarantees  
for the internal taxes upon final asse ssment of the goods" and that in such circumstances "importers will not 
be able to become acquainted with the exact nature of the right they have in respect of the release of 
guarantees for the internal taxes within th e meaning of Article X:1". (Panel Report, Thailand – Cigarettes  
(Philippines ), para. 7.860). 
127 China's first written submission, para. 65. 
128 China stated that PL 112-99 was published as a so-called slip law on 13 March 2012, explaining that 
a "slip law" is (i) an "official publication" and constitutes legal evidence of its enactment and (ii) is later compiled into the United States Statutes at Large. (China's first written submis sion, fn. 37). China did not 
address when PL 112-99 was compiled into the United Stat es Statutes at Large. The United States maintained 
that PL 112-99 was published in the United States Stat utes at Large on 13 March 2012. (United States first 
written submission, para. 80).    
129 Panel Reports, EC – IT Products , para. 7.1069 and China – Raw Materials , para. 7.1101.   
130 Panel Reports, EC – IT Products , para. 7.1074. 
131 In our view, the promptness requirement in Article X:1 is concerned with when a measure must be 
published at the latest and does not therefore preclude proper publication of a measure before it has been 
made effective. We do not therefore suggest that wher e a measure had already been published by the time it 
was made effective, it would need to be re-published after having been made effe ctive, provided, however, 
that it had been published in a manner so as to enable  governments and traders to become acquainted with it 
and that the measure that was made effective is the same as the published measure. WT/DS449/R 
- 42 - 
 
  7.87.  In the light of the above, we conclude that Section 1 was published "promptly".132  
7.4.4  Overall conclusion 7.88.  In sum, the Panel has determined above that: 
a. Section 1 is part of a "law" and contains a provision that is of "general application" and 
"pertains" to "rates of duty"; 
b. Section 1 as a whole was "made effective" by the United States on 13 March 2012; and 
c. Section 1 was published "promptly", on ce it had been made effective. 
7.89.  Whereas we thus agree with China that Sect ion 1 falls within the scope of Article X:1, we 
are unable to agree with China that, contrary to Article X:1, Section 1 was not published promptly. We therefore come to the overall conclusion that China has failed to establish its claim that the United States has acted inconsistently with Article X:1 in respect of Section 1. 
7.5  China's claim under Article X:2 of the GATT 1994 
7.90.  The Panel now turns to examine China's claim of violation under Article X:2 of the 
GATT 1994. The text of Article X:2 provides in full that:   
No measure of general application taken by any contracting party effecting an 
advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or 
prohibition on imports, or on the transfer  of payments therefor, shall be enforced 
before such measure has been officially published. 
7.91.  China requests the Panel to find that Section 1 of PL 112-99 is a measure of general 
application effecting an advance in a rate of duty and imposing a new or more burdensome 
requirement or restriction on imports, which the United States enforced prior to its official 
publication on 13 March 2012, in violation of Arti cle X:2. China contends that the United States 
enforced that measure of general application in Section 1(b) of PL 112-99 by having the measure 
provide retroactive legal authority for the imposition and continued maintenance of countervailing 
duty measures on Chinese products resulting from investigations initiated between 20 November 2006 and 13 March 2012. China submits 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".
133 
7.92.  The United States submits that China has presented no valid basis for its claim under 
Article X:2. The United States maintains that China has failed to prove that PL 112-99 (i) falls 
within the scope of Article X:2 or (ii) is somehow inconsistent with the Article X:2 obligation. In the 
United States' view, Section 1 is not of general ap plication and neither effects an advance in a rate 
of duty nor imposes a new or more burdensome requirement or restriction on imports. The 
United States further contends that Section 1 was not enforced until its publication on 
13 March 2012.134    
7.93.  The Panel notes that the measure taken by the United States that China alleges was 
enforced prior to its official publication – Sectio n 1 of PL 112-99 – is the same measure that China 
said was not published promptly contrary to the requirements of Article X:1. China claims that the United States acted inconsistently with Article X:2 by enforcing Section 1 before its official publication. The text of Article X:2 indicates that, to sustain its claim, China has to establish that 
Section 1:  
                                               
132 As explained, China did not cl aim that Section 1 was not publis hed in an appropriate "manner". 
133 China's first written submission, paras. 3 and 80; second written submission, para. 13. 
134 United States' first written submission, para. 91;  first oral statement, para. 21; second written 
submission, paras. 12-16. WT/DS449/R 
- 43 - 
 
  a. is a "measure of general application taken by [a Member] effecting an advance in a rate 
of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor"; and 
b. has been "enforced before [it] has been officially published". 
7.94.  As these two elements are cumulative in na ture, we need not address them in any particular 
order. In the specific circumstances of this proceed ing, we find it appropriate to first address the 
second element, for three main reasons. To begin with, the parties in this dispute differ not only 
on whether Section 1 is a measure of the type that falls within the scope of Article X:2 (element a). They also hold starkly opposing views as to whether the United States has even engaged in the conduct that is prohibited in resp ect of any measure covered by Article X:2, namely 
enforcement of such a measure prior to its official publication (element b). In the interest of 
efficiency, we therefore consider this issue before any other. Another reason is that in any event we need to amplify a point that we made succinctly above
135 when examining China's claim under 
Article X:1, and to which we will again revert below136 when we examine China's claim under 
Article X:3(b). This point, which relates to our understanding of what constitutes prohibited conduct under Article X:2, is not linked to the question of whether or not Section 1 falls within the 
scope of Article X:2. Finally, one member of th e Panel disagrees with the majority about whether 
Section 1 is covered by Article X:2. It is appropriate also for that reason to address first whether Section 1 has been enforced before  its official publication.   
7.5.1  Has Section 1 been "enforced"  before its official publication? 
7.95.  The Panel thus begins its analysis with an examination of whether Section 1 has been 
"enforced", in the sense of Article X:2, be fore it has been officially published.  
7.96.  China contends that in the context of la ws and regulations, the ordinary meaning of the 
term "enforce" includes to "carry out effectively"  and to "compel the observance of", and that a 
common synonym is "to apply".
137 China observes that this view finds support in the panel reports 
in EC – IT Products138, in which the panel considered that "proof that a measure has been applied 
would establish that it was enforced".139 China also refers to the dispute in US – Underwear , noting 
the Appellate Body's statement that "[t]o apply a measure is to make it effective with respect to things or events or acts falling within its scope".
140   
7.97.  China recalls that, according to the Appellate Body141, Article X:2 reflects "basic principles of 
transparency and due process". China argues that  these principles compel the conclusion that 
measures of general application affecting the co nduct of governments and traders should apply 
only in respect of actions taken after the publication of the measure. China considers 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. In China's view, the principle of due process is nece ssarily offended 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 occu rred. China argues that this is why "prior 
publication is required for all measures falling within the scope of Article X:2"
142  – "prior", that is, 
to the application of the measure to particular conduct or actions. China infers from this that 
Article X:2 "precludes retroactive application of a measure"143 in all cases.144 According to China, 
                                               
135 See para. 7.73. 
136 See para. 7.292. 
137 China refers to Merriam Webster's Collegiate Dictionary , p. 383 (Springfield: Merriam Webster, Inc., 
1997) (Exhibit CHI-22); the Shorter Oxford English Dictionary (1993), p. 820 (Exhibit CHI-21); and Roget's 
International Thesaurus , p. 665.11 (London: Harper & Row, 1979)  (Exhibit CHI-23). 
138 China refers to Panel Reports, EC – IT Products , para. 7.1129. 
139 China's first written submission, para. 72; second written submission, para. 93. 
140 China's first oral statement, para. 42 (referring to Appellate Body Report, US – Underwear , p. 14). 
141 China refers to Appellate Body Report, US – Underwear , p. 21. 
142 Appellate Body Report, US – Underwear , p. 21. 
143 Panel Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 7.181.   WT/DS449/R 
- 44 - 
 
  there are a variety of different ways in which a Member might apply a measure of general 
application prior to its official publication in violation of Article X:2. China observes that the essential inquiry in all cases is whether such a measure was applied to events and circumstances that occurred prior to its official publication.
145   
7.98.  With regard to the measure at issue, China considers 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. China recalls that pursuant to Section 1(b), Section 1 "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 Federa l court relating to [such] proceedings …". In 
China's view, 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. China submits 
that it is therefore 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.
146 
7.99.  China argues that the fact that the United States has applied Section 1 prior to its official 
publication is confirmed by the United States having imposed countervailing duty orders on 
imports from China at a time when existing United States law did not permit this action, and then 
continuing to maintain these pre-existing orders  subsequent to the official publication of the 
measure. China maintains that in the absence of the retroactive application of Section 1, USDOC would have been required under United States law to revoke these pre-existing orders. According to China, the fact that the United States has continued to maintain these orders subsequent to the 
official publication of PL 112-99 provides further evidence and confirms that the United States has 
applied Section 1 to events and circumstances that occurred prior to its official publication.
147 
7.100.  For these reasons, China is of the view th at the United States has enforced Section 1 prior 
to its official publication, and that the United States has enforced that measure through 
Section 1(b), which provides retroactive legal authority for the imposition and continued maintenance of countervailing duty measures on Chinese products resulting from investigations 
initiated between 20 November 2006 and 13 March 2012. China further considers that as 
measures that enforce Section 1 prior to its official publication, the CVD investigations initiated prior to 13 March 2012, and the resulting CVD order, are themselves inconsistent with Article X:2.
148 Thus, China contends that Section 1(b), and the countervailing duty measures for 
which it provides retroactive legal authority, are inconsistent with Article X:2 because they 
constitute the enforcement of a measure of general application prior to its official publication.149   
7.101.  The United States submits that China has not established that the measure at issue was 
enforced before it was officially published. The United States contends that PL 112-99 was officially 
published on 13 March 2012, and that USDOC or United States courts took no action prior to that date to enforce the measure.
150 The United States observes that instead of addressing the specific 
                                                                                                                                               
144 China also stated that Article X: 2 "prohibits any set of facts in which a measure falling within its 
scope is applied to events that occurred prior to its o fficial publication". (China's second written submission, 
para. 92). 
145 China's first written submission, paras. 69-70 and 73- 74; first oral statement,  para. 45; response to 
Panel question No. 12. 
146 China's first written submission, para. 77; oral stat ement at the first meeting with the Panel, paras. 4 
and 42; response to Panel question No. 12; second writte n submission, para. 90 (stating that the United States 
"enforced the new Section 701(f) of th e Tariff Act before its official public ation"); oral statem ent at the second 
meeting with the Panel, para. 20. 
147 China's first written submission, para. 78; response to Panel question No. 19. 
148 China refers in this connec tion to its panel request whic h provides in relevant part: 
China further considers that all determinations  or actions by the U.S. authorities between 
November 20, 2006 and March 13, 2012 relating to the imposition or collection of countervailing duties on Chinese products (as described in th e second paragraph under "Measures"), including 
the ongoing conduct of maintaining and enforcin g countervailing duty measures resulting from 
investigations initiated during this period, are inconsistent with Article X of GATT 1994.  This is because, inter alia , these determinations and actions enfo rce a measure of general application 
prior to its official publication. (China's re quest for the establishmen t of a panel, p. 3). 
149 China's first written submission, para. 80; response to Panel question No. 20. 
150 The United States observes that to the extent it could be considered to have "compelled the 
observance" of PL 112-99, this occurred after its official publication. (United States' response to Panel question No. 11). WT/DS449/R 
- 45 - 
 
  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 precludes 
retroactivity.151 The United States notes that citation to a prior Appellate Body report does not 
substitute for the application of the specific language in Article X:2 to the specific facts in this 
dispute, and that "retroactivity" is not a term us ed anywhere in the GATT 1994. The United States 
further contends that China also misrepresents the Appellate Body findings in US – Underwear , 
which related to a safeguard measure taken under the Agreement on Textiles and Clothing. 
According to the United States, China notably fails to mention that the Appellate Body stated that 
it was improper for the panel in US – Underwear  to rely on Article X:2 to analyse the permissibility 
of whether a textiles safeguard could be backda ted. The Appellate Body observed that "we are 
bound to observe that Article X:2 of the General Agreement does not speak to, and hence does not 
resolve, the issue of permissibility of giving retroactive effect to a safeguard restraint measure". 
The United States submits that the answer must  lie in the relevant covered agreement. The 
United States recalls in this regard that in US – Underwear , the Appellate Body interpreted a 
specific article of the Agreement on Textiles and Clothing as creating a presumption that "a 
measure may be applied only prospectively".152 The United States considers that, as the present 
dispute involves neither a safeguard, nor claims under the Agreement on Textiles and Clothing, the 
Appellate Body finding does not support China's claims.153    
7.102.  China disagrees with the United States' understanding of the Appellate Body Report in US 
– Underwear . According to China, the panel in that dispute had held that the application of a 
measure to imports that occurred prior to its official publication would be inconsistent with 
Article X:2. China notes that the Appellate Body considered this interpretation of Article X:2 
"appropriately protective" of the basic principle of due process that Article X:2 embodies, even 
though the Appellate Body did not consider that the panel's finding resolved the specific issue in 
that dispute. China submits in this respect that the Appellate Body's statement that Article X:2 
does not speak to the issue of permissibility of giving retroactive effect to a safeguard restraint 
measure meant only that Article X:2 did not reso lve the question of whether Article 6.10 of the 
Agreement on Textiles and Clothing permitted the application of such a measure to imports that 
occurred prior to the expiration of the 60-day period for consultations mandated by that provision.
154   
7.103.  The United States responds that China cannot impute or import a legal concept that is not 
addressed in the plain text of Article X:2. The United States contends that Article X:2 is a 
procedural obligation that does not discipline the substance of the covered measures. In the United States' view, China's so-called principle of retroactivity does not apply to measures in the 
absence of a textual basis. The United States considers that any challenge concerning whether a 
measure may affect events or actions that predate its enactment must be based on a treaty article other than Article X, i.e. a treaty article that imposes a substantive obligation. According to the 
United States, consistent with the title and focus of Article X, Article X:2 links a requirement for 
transparency with the administration of a meas ure to ensure that Members do not enforce a 
"secret" measure on imports effecting an advance in a rate of duty or imposing a new or more burdensome requirement, restriction, or prohibitio n. For those changes, the United States submits, 
Article X:2 requires a Member to publish the measure in an official publication prior to its 
enforcement. The United States considers that this  understanding flows directly from the text of 
Article X:2 and the Appellate Body's observation in US – Underwear  that Article X:2 serves to 
promote full disclosure of governmental acts affecting Members, private persons and 
enterprises.
155   
                                               
151 The United States notes that China also references a panel statement in US – Anti-Dumping 
Measures on Oil Country Tubular Goods  to the effect that Article X:2 precludes retroactive application of a 
measure. In the United States' view, it is unclear ho w the panel came to this conclusion, as it did not 
undertake any analysis of the treaty obligation. More over, the United States considers that the panel's 
statement is at odds with the Appellate Body's interpretation of Article X:2. 
152 Appellate Body Report, US – Underwear , p. 14. 
153 United States' first written submission, paras. 95 and 119-123; oral statement at the first meeting of 
the Panel, paras. 11 and 28; response  to Panel question No. 65; second written submission, para. 12; oral 
statement at the second meeting of the Panel, paras. 5, 46 and 49. 
154 China's first oral statement, para. 47; second written submission, para. 127. 
155 United States' second written submission, paras. 4, 17-19 and 69-71; responses to Panel question 
Nos.12 and 65; oral statement at the second meeting with the Panel, paras. 47 and 50. WT/DS449/R 
- 46 - 
 
  7.104.  The United States further calls attention to Article 20 of the SCM Agreement and Article 10 
of the Anti-Dumping Agreement. According to the Un ited States, they provide explicit instructions 
for when countervailing duties and anti-dumping duties may be levied retroactively. The United States submits that if Article X:2 had already imposed a blanket prohibition on retroactivity, 
as argued by China, then the Article 20 and Arti cle 10 elements that discipline the application of 
countervailing duties and anti-dumping duties with respect to past entries would have been unnecessary. The United States further notes that these two provisions also include exceptions 
that allow for the application of countervailing duties and anti-dumping duties to entries made 
prior to the completion of proceedings.
156 
7.105.  The Panel begins its analysis by addressi ng the meaning of the phrase "[n]o measure of 
general application … shall be enforced before such  measure has been officially published", with a 
particular focus on the term "enforced". The verb "enforce" is defi ned as "carr[ied] out 
effectively"157 or "[c]ompel the observance of (a law, rule, practice, etc.); support (a demand, 
claim, etc.) by force"158. The panel in EC – IT Products  looked at the equivalent term in the 
Spanish version of Article X:2, which is "aplicada" and means "applied", whereas the French 
version uses "mise en vigueur", which the panel said means "put into application".159 On that 
basis, the term "enforce" as it is used in Article X:2 may in our view be understood as meaning 
"apply", particularly "apply with a view to ensuring  observance of a law, rule, practice, etc.".  
7.106.  Article X:3(b) of the GATT 1994, which is part of the context of Article X:2, refers to 
"agencies entrusted with administrative enforcemen t". The Appellate Body observed in respect of 
this reference that agencies that "enforce" rules are agencies that "'apply' relevant rules".160 In our 
view, the term "enforcement" is used in Article X:3(b) in the same sense in which it is used in 
Article X:2. It is important to bear in mind, however, that Article X:3(b) qualifies "enforcement" by the adjective "administrative". Article X:2 lacks such a qualification of the verb "enforce". We 
consider that the term "enforce" is susceptible of an interpretation that encompasses 
administrative enforcement, but is not limited to it. Like administrative agencies, courts play a significant part in the enforcement of Members' domestic laws. They, too, apply measures of 
general application, such as laws and regulations, with a view to ensuring their observance. In the 
light of this, we consider that Article X: 2 covers also judicial enforcement.   
7.107.  The panel in EC – IT Products  expressed the view that "proof that a measure has been 
applied would establish that it was enforced".
161 We concur that instances of actual application 
may constitute proof of enforcement. By its te rms, however, Article X:2 does not talk about 
instances of actual enforcement. Therefore, we do  not consider that absence of an instance of 
actual  application necessarily demonstrates lack of enforcement. As we see it, a showing that a 
measure of general application requires a Member's competent authorities to apply that measure 
may in appropriate circumstances be sufficient to demonstrate that the Member concerned is acting inconsistently with the requirement not to en force a measure before its official publication.  
7.108.  As an additional matter, we observe that, conceptually, it is important to distinguish two 
aspects of administrative and judicial enforcement. The first relates to when an entity such as a court or administrative agency enforces a particular measure. The second relates to the question whether a particular measure is enforced in respect of past, current and/or future events or 
circumstances. As a linguistic and logical matter, a measure can only be "enforced" if it has first 
been "made effective", either formally or informal ly. But once a measure enters into force, agency 
officials and judges can apply it, if, for instance, a law so provides, in respect of events or 
circumstances that occurred in the past, that is to say, that occurred before the measure entered 
into force. 
7.109.  Concordant with the finding of another panel, we consider that Article X:2 addresses the 
first aspect by prohibiting an administrative agency or court from taking action to enforce a 
                                               
156 United States' second written submission, para. 81. 
157 Panel Reports, EC – IT Products , para. 7.1129. 
158 The Shorter Oxford English Dictionary  (1993), p. 820. 
159 We note that in US – Underwear , the Appellate Body likewise appears to have assumed that 
"enforce" means "apply" when, with reference to action th at would raise no concern under Article X:2, it spoke 
of "publishing the measure someti me before its actual application". (Appellate Body Report, US – Underwear , 
p. 20). 
160 Appellate Body Report, Thailand – Cigarettes  (Philippines ), para. 195.  
161 Panel Reports, EC – IT Products , para. 7.1129. WT/DS449/R 
- 47 - 
 
  relevant measure of general application before it has been officially published.162 The question this 
presents, then, is whether Article X:2 is also concerned with the second aspect and likewise prohibits an agency or court from enforcing a relevant measure in respect of events or circumstances that occurred before it has been officially published. To answer this question, which 
is not explicitly resolved by the text of Article X:2
163, we consider the immediate context of the 
term "enforce" in Article X:2 as well as the object and purpose of the GATT 1994 and the WTO Agreement.  
7.110.  By its terms, Article X:2 applies only to  measures of general application "effecting an 
advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor". What these types of measures have in common is that they are 
restrictive in nature, in the sense that they make the importing Member's trade regime more 
restrictive rather than less.
164 Having regard to the object and purpose of the GATT 1994 and the 
WTO Agreement, which include providing security and predictability to the multilateral trading 
system165, it is understandable why Article X:2 would not permit restrictive measures of the 
identified kind to apply and thereby affect past trade. If it did, traders and governments might suffer actual losses or an actual reduction in profits on long-completed international 
transactions.
166 Also, traders and governments might be deterred from trading in the first place, 
because there would then be uncertainty as to the conditions of access to other Members' markets. The situation would be different in a case where a Member introduces a similar measure that is non-restrictive in nature (and, hence, not covered by Article X:2), such as a measure that 
lowers a rate of duty on imports. If such a measure were applied to past trade, it might turn out 
that some traders or governments could have realized bigger potential profits had that measure been in place from the beginning. But they would not conclude that they should have engaged in 
less trade than they actually did. Thus, certainly in the case of the restrictive measures falling 
within the scope of Article X:2, it makes sense to supplement the publication requirement laid down in Article X:1 by a prohibition on pre-public ation enforcement, as this additional discipline 
removes a potential element of insecurity and unpredictability in relation to Members' trade 
regimes which could impact negatively on trade.  
7.111.  Consideration of the immediate context and the object and purpose of the GATT 1994 and 
the WTO Agreement thus supports the view that Article X:2 should be construed to prohibit the 
competent authorities from enforcing a measure within its scope in respect of events or 
circumstances that occurred before it has been offi cially published. We find further support for this 
view in the interpretative principle according to  which a treaty interpreter should guard against 
interpretations of treaty provisions that could deprive them of any useful effect.
167 If Article X:2 
only prohibited an administrative agency or a court from taking action to enforce a relevant measure prior to its official publication, a Member could instruct that agency or court to take action 
to enforce a law only after its official publication, but that same law could then consistently with 
Article X:2 provide for enforcement in respect of events or circumstances that occurred before publication. Such an interpretation of Article X:2 would put in doubt the practical significance of 
                                               
162 See Panel Reports, EC – IT Products , para. 7.1134 (stating that "the April 2007 CNEN amendment 
was enforced by at least some EC member States before its official publication in the EU Official Journal as 
CNEN 2008/C 112/03 on 7 May 2008"). 
163 Notwithstanding this, however, the panel in US – Underwear  found that "in so far as the [safeguard] 
restraint [measure] was applied to exports from Costa Ri ca which had taken place prior to the publication, it 
was implemented and therefore enforced within the me aning of Article X:2 of GATT 1994". (Panel Report, US – 
Underwear , para. 7.69).  
164 We use the term "restrictive" as a shorthand expression to refer to the measures within the scope of 
Article X:2. These measures are apt to impose new or a dditional costs or burdens on  traders and governments. 
Moreover, Article XI:1 of the GATT 1994 indicates that duties or other charges may be viewed as restrictions. 
165 We note that along similar lines, the Appellate Body found that "the security an d predictability of 'the 
reciprocal and mutually advantageous arrangements dire cted to the substantial redu ction of tariffs and other 
barriers to trade' is an object and purpose of the WT O Agreement, generally, as well as of the GATT 1994". 
(Appellate Body Report, EC – Computer Equipment , para. 82). We further note that Article 3.2 of the DSU 
states that the WTO dispute settlement system is a "centr al element in providing secu rity and predictability to 
the multilateral trading system".     
166 Indeed, under this scenario, a Member could arguab ly increase its applied tariff rate to the bound 
rate and enforce that advance in a rate of duty in re spect of import transactions  that occurred several years 
ago. 
167 Appellate Body Report, US – Gasoline , p. 23. WT/DS449/R 
- 48 - 
 
  the prohibition in Article X:2 against pre-publication enforcement, because this interpretation 
would permit a Member to do indirectly what it would not be permitted to do directly.168   
7.112.  According to the United States, Article X:2 serves to ensure that Members do not enforce 
"secret" measures that are of the type described in Article X:2. However, Article X:2 does not use 
the term "secret", and the United States itself has emphasized that a treaty interpreter should not 
read words into a treaty provision.169 We note that the text of Article X:2 enjoins Members not to 
enforce certain measures "before" they have been  officially published. In our view, the term 
"before" is important, in that it indicates that en forcement must in no case precede publication. In 
contrast, the United States' interpretation implies that as soon as a measure falling within the scope of Article X:2 is no longer secret, it may be enforced, even in respect of events or circumstances that have occurred before it has been published. As an additional matter, we 
observe that the United States' interpretation appe ars to focus on a concern – lack of transparency 
– that is already addressed by the prompt publication requirement in Article X:1. Indeed, secret measures that are being enforced are measures that have been made effective, either formally or 
informally, and that should have been promptly published.
170    
7.113.  The United States further contends that Article X:2 is a procedural obligation that does not 
discipline the substance of the covered measures. As an initial matter, we note that the substance, 
or content, of a measure is plainly relevant to an Article X:2 analysis, inasmuch as it covers only 
measures effecting an advance in a rate of duty or other charge, or imposing a relevant new or 
more burdensome requirement, restrictions or prohibition on imports, or on the transfer of payments therefor. Even disregardi ng that, interpreting Article X:2 to prohibit relevant measures 
from being enforced in respect of events or circumstances that have occurred before they have 
been officially published does not turn that Article into an essentially substantive obligation. Indeed, under this interpretation Members remain  free to determine the substantive details of 
their measures, e.g. the extent of an advance in a rate of duty on imports or the range of products 
subject to any such advance. Interpreted in this way, Article X:2 merely imposes disciplines with 
regard to the temporal scope of application of relevant measures. It makes clear that whatever the 
specific content of a relevant measure, a Member may not enforce that specific content in respect 
of events or circumstances that occurred before the official publication of the measure. We note, finally, that according to the Appellate Body, Article X:2 has "due process dimensions", in that it ensures that traders and governments have an opportunity "to protect and adjust their activities 
or alternatively to seek modification of such measures".
171 It is fully consistent with this 
observation to interpret Article X:2 to prohibit en forcement of a measure in respect of events or 
circumstances that have occurred before it has b een published, because such a prohibition ensures 
that traders and governments are in a position to protect or adjust their activities and also to seek 
a modification of the measure. 
7.114.  The United States also cites Article 20 of the SCM Agreement and Article 10 of the Anti-
Dumping Agreement, arguing that these provisions would be redundant if Article X:2 prohibited 
the enforcement of a measure in respect of events  or circumstances that occurred before it was 
officially published. China considers that these provisions help to confirm that Article X:2 precludes the application of a measure falling within its scope to conduct that took place prior to its official 
publication, and that there is no question of these provisions being made redundant if Article X:2 
were interpreted in the manner described by the United States.
172 Articles 20 and 10 apply to 
provisional measures, countervailing duties and anti-dumping duties. Even assuming that such 
measures fall within the scope of Article X:2 (and we make no finding in this regard), we note that 
Articles 20 and 10 are different from Article X: 2 in that unlike the latter, which talks about 
enforcement of a measure before that same measure has been published, Articles 20.1 and 10.1 
talk about application of a measure (e.g. a countervailing duty) after the entry into force of 
another measure (e.g. the preliminary or final determination). Due to these differences, it is not 
                                               
168 As also noted by China, in prac tical terms it does not appear to make any real difference whether a 
measure is applied to certain events  or circumstances and only later pu blished, or whether the measure is 
promptly published and then applied, consistent with its own terms, with respect to events or circumstances 
that occurred before its publication. (China's second written submission, para. 105). 
169 United States' second written submission , para. 78 (citing Appellate Body Report, India – Patents  
(US), para. 45). 
170 China states along similar lines that "a measure that is actually  being enforced is one that already 
has been 'made effective'". (China's second written submission, para. 107). 
171 Appellate Body Report, US – Underwear , p. 20. 
172 China's responses to Panel question Nos. 38 and 115. WT/DS449/R 
- 49 - 
 
  apparent to us that Articles 20 and 10 are simply "unnecessary"173 in view of Article X:2 as we 
interpret it. Furthermore, as the United States itself notes, Articles 20.2 and 10.2 stipulate important exceptions to permit the retroactive le vying of countervailing duties and anti-dumping 
duties in certain situations. These provisions woul d not be redundant if Article X:2 also applied in 
the situations covered by Articles 20.2 and 10.2. This is because even if Article X:2 applied in 
these situations, the SCM Agreement and the Anti-Dumping Agreement would be leges speciales  in 
relation to Article X:2. Consequently, it is th e provisions of these agreements that would be 
applied rather than Article X:2. Furthermore, the fa ct that Articles 20.2 and 10.1 on an exceptional 
basis permit the retroactive levy of countervailing duties and anti-dumping duties does not support 
the conclusion that Article X:2 permits enforc ement of a measure in respect of events or 
circumstances that have occurred before its official publication.  
7.115.  Finally, we turn to address the United States' arguments about the Appellate Body's 
interpretation of Article X:2 in US – Underwear . The United States considers that this Appellate 
Body report supports its view that Article X:2 does not prohibit the enforcement of a measure in 
respect of events or circumstances that have occurred before its official publication. The panel in 
that dispute found, in essence, that the United States was in breach of its obligations under Article X:2 and Article 6.10 of the Agreement on Textiles and Clothing because it applied a 
safeguard restraint measure as from 27 March 1995 in respect of imports that took place prior to 
the publication of the measure on 21 April 1995. The panel also observed, however, that there would have been no breach of Article X:2 or Ar ticle 6.10 if the United States had applied the 
measure as from 21 April 1995. The Appellate Body disagreed, however, with the latter 
observation.
174 It is in this context that the Appellate Body made a statement about Article X:2, 
which it is useful to set out in full:  
At the same time, we are bound to observe that Article X:2 of the General Agreement , 
does not speak to, and hence does not resolve, the issue of permissibility of giving 
retroactive effect to a safeguard restraint measure. The presumption of prospective effect only does, of course, relate to the basic principles of transparency and due 
process, being grounded on, among other things, these principles. But prior 
publication is required for all measures falling within the scope of Article X:2, not just ATC safeguard restraint measures sought to be applied retrospectively. Prior 
publication may be an autonomous condition for giving effect at all to a restraint 
measure. Where no authority exists to give retroactive effect to a restrictive 
governmental measure, that deficiency is not cured by publishing the measure sometime before its actual application. The necessary authorization is not supplied by 
Article X:2 of the General Agreement .
175 
7.116.  We agree with China that the first sentence of the above statement should not be 
understood to make a general point about Article X:2. Rather, it makes clear that Article X:2 does 
not address itself to the specific issue of whether retroactive effect may be given to a "safeguard 
restraint measure" taken under the provisions of the Agreement on Textiles and Clothing. 
Consistent with this understanding, the Appellate Body later in the paragraph observes, in effect, 
that the Agreement on Textiles and Clothing may impose disciplines on the use of safeguard 
restraint measures that go further than those that Article X:2 imposes on the use of such 
measures.176 If, then, the Agreement on Textiles and Clothing prohibits177 Members from giving 
retroactive effect to safeguard restraint measures even in situations where Article X:2 does not, it 
would not be sufficient for a Member that applied such a measure to claim compliance with 
Article X:2 in order to avoid a finding of violation.178 Or, as the Appellate Body put it, conduct that 
                                               
173 United States' second written submission, para. 81. 
174 Appellate Body Report, US – Underwear,  pp. 12 and 21. 
175 Ibid. p. 21. 
176 That is why, contrary to the Unit ed States' argument, it is not illogical to say that "Article X:2 would 
not resolve the issue of retroactivity for a safeguard re straint measure", but would re solve the matter for other 
types of measure. (United States' oral statement at the second meeting, para. 49). 
177 We note that the Agreement on Textiles  and Clothing is no longer in force. 
178 As mentioned earlier, in US – Underwear , the panel was of the view that there would have been no 
breach of Article X:2 or Article 6.10 if the United St ates had applied the measure on 21 April 1995 rather than 
already on 27 March 1995. The Appellate Body disagreed, sa ying that the panel erred in concluding that "'had 
[the United States] set the restraint period starting on 21 April 1995 ... it would not have acted inconsistently 
with GATT 1994 or the ATC in respect of the restraint period'". (Appellate Body Report, US – Underwear , p. 21, 
emphasis added). WT/DS449/R 
- 50 - 
 
  is consistent with Article X:2 does not "cure" conduct that is inconsistent with the Agreement on 
Textiles and Clothing. Indeed, the Appellate Body in that dispute found that it was contrary to Article 6.10 of the Agreement on Textiles and Cl othing to back-date the effective date of a 
safeguard restraint measure even in a situation wh ere the panel had said that there would be no 
breach of Article X:2.
179 
7.117.  Based on the foregoing observations, we consider that the Appellate Body report in US – 
Underwear  does not stand for the proposition that Article X:2 permits safeguard restraint 
measures, and by implication other covered measures, to be applied to imports which have taken 
place prior to the publication of such measures. The panel in that dispute had found that this was contrary to Article X:2.
180 And the Appellate Body did not find that this conclusion on Article X:2 
was in error. To the contrary, it stated that "the Panel here gave to Article X:2 ... an interpretation 
that is appropriately protective of the basic principle here projected", i.e. the principle of 
transparency and due process that allows traders and governments "to protect and adjust their activities or alternatively to seek modification of [relevant] measures".
181 In addition, we consider 
that the Appellate Body report does not support the United States' view that any challenge 
concerning whether a measure may affect events or circumstances that predate its official publication must be based on a treaty article other than Article X:2, namely one that imposes a 
substantive obligation. Rather, as we have explaine d, what the Appellate Body report indicates is 
that treaty articles other than Article X:2 may provide a basis for challenging a measure that provides for its application to past events or circumstances even where Article X:2 does not.  
7.118.  In the light of all of the above, we conclude that Article X:2 prohibits administrative 
agencies or courts of a Member from (i) taking action to enforce (or apply) a measure that falls 
within the scope of Article X:2 before it has been officially published, or (ii) enforcing (or applying) such a measure in respect of events or circumstances that occurred before it has been officially 
published. 
7.119.  Having developed an interpretation of the term "enforced" in Article X:2, we now proceed 
to apply it to the measure at issue, Section 1 of PL 112-99. For purposes of this part of our 
analysis, we will assume that Section 1 falls within the scope of Article X:2, as China asserts. We 
will address this matter in detail below.
182 The first issue we address here is when Section 1 was 
"officially published". We note that it is undisputed that Section 1 was published officially on 13 March 2012.
183 What we must examine, therefore, is whether Section 1 has been enforced, or 
applied with a view to ensuring its observance, before 13 March 2012.  
7.120.  We agree with the United States that ther e is no evidence on the record to suggest that 
United States administrative agencies or courts took action prior to 13 March 2012 to enforce 
Section 1. China relies, however, on Section 1(b).184 To recall, Section 1(b) states that the new 
Section 701(f) "applies to" (1) all CVD proceedings initiated on or after 20 November 2006, (2) all resulting USCBP actions, and (3) all Federal court proceedings relating to (1) or (2), which include 
proceedings before the CIT and the CAFC relating to CVD proceedings initiated on or after 20 
November 2006.
185 The United States has confirmed that Section 1(b) is directly applicable and 
does not require any implementing action.186 Consequently, we understand Section 1(b) to direct 
                                               
179 Appellate Body Report, US – Underwear , p. 21. 
180 Panel Report, US – Underwear , para. 7.69. 
181 Appellate Body Report, US – Underwear , p. 20. 
182 See subsection 7.5.2. 
183 China's first written submission, fn. 37; United St ates' first written submission, paras. 80 and 119. 
184 China clarified that its claim is that, pursuant to  Section 1(b), the United States enforced Section 1 
prior to its official publication, and that this clai m "is not in respect of particular subparagraphs of 
[Section 1(b)]", which we understand to mean that it concerns all three subparagraphs. (China's responses to 
Panel question Nos. 113 and 114). The United States observed that China failed to explain how Section 1(b)(3) gives rise to an inconsistency with Article X:2. (United States' comments on China's response to Panel question No. 114). We note, however, that China has addressed th e relevance and operation of Section 1(b)(3) notably 
in the context of discussing the CAFC decision in GPX VI . See para. 7.151; and China's responses to Panel 
question Nos. 10 and 61(a).  
185 China's response to Panel question No. 10.  
186 The United States explained that once Section 1 was enacted, USDOC, as the administering authority 
of US CVD laws, was required to apply it, and that PL 112-99 required no additional implementing acts before 
it was applied. (United States' response to Panel ques tion No. 58). China agrees that there was no need for 
further action by US author ities for Section 1 to "apply" to the iden tified proceedings and actions. (China's 
response to Panel question No. 58). WT/DS449/R 
- 51 - 
 
  USDOC, USITC, USCBP and Federal courts to "apply" the new Section 701(f), once Section 1 has 
been made effective, to the identified events or circumstances that are relevant to each authority. 
We found previously that Article X:2 applies irrespective of whether a relevant measure is enforced by an administrative agency, such as USDOC, USITC or USCBP, or a court, such as Federal courts.  
7.121.  Some of the events or circumstances that fall within the temporal scope of application of 
the new Section 701(f) predate 13 March 2012. This is the case for all CVD proceedings initiated on or after 20 November 2006 and before 13 March 2012. The same is true for all resulting USCBP 
actions that predate 13 March 2012 as well as for all Federal court proceedings concerning CVD 
proceedings initiated between 20 November 2006 and 13 March 2012 or resulting USCBP actions taken before 13 March 2012.  
7.122.  It follows that Section 1(b) requires relevant United States administrative agencies to 
apply the new Section 701(f) in respect of all CVD proceedings initiated, and resulting USCBP 
actions taken, between 20 November 2006 and 13 March 2012, i.e. in respect of events or circumstances that occurred before Section 1 was published on 13 March 2012.
187 It further 
requires Federal courts to apply the new Section 701(f) in all judicial proceedings concerning CVD 
proceedings initiated, and resulting USCBP actions taken, between 20 November 2006 and 13 March 2012, i.e. in judicial proceedings concerning events or circumstances that predate the 
publication of Section 1.  
7.123.  China claims that Section 1 is inconsistent, as such, with Article X:2.
188 As Section 1(b) in 
our view requires United States authorities to apply the new Section 701(f) to events or circumstances that occurred before 13 March 2012, it is not necessary for China to present 
evidence showing that the new Section 701(f) was actually applied in this manner. We nonetheless 
note that the record indicates that there were, in fact, 33 CVD investigations and reviews that were initiated in the relevant period and to which Section 701(f) applied as from 13 March 2012.
189 
We also note that the CAFC decision in GPX VI  is a decision that was based on the new 
Section 701(f) and that concerns a CVD proceeding initiated before 13 March 2012.190  
7.124.  In addition to relying on Section 1(b), China submits that as from 13 March 2012, the 
United States used Section 1 as the legal basis for the initiation of CVD investigations in respect of 
imports from China and issuance of CVD orders on Chinese products, including for investigations initiated and orders issued between 20 November 2006 and 13 March 2012. More specifically, China seeks a finding that "all determinations  or actions by the U.S. authorities between 
November 20, 2006 and March 13, 2012 relating to the imposition or collection of countervailing 
duties on Chinese products …, including the ongoing conduct of maintaining and enforcing countervailing duty measures resulting from investigations initiated during this period"
191, are 
inconsistent with Article X:2, because, in China's view, they enforced Section 1 prior to 
13 March 2012.192 By "US authorities", China means USDOC, USITC and USCBP.193 
                                               
187 China confirmed that it is not relevant to its clai ms that Section 1(b) "also provides a legal basis for 
the initiation and subsequent conduct of any countervailing duty investigation involving imports from [an NME] country initiated by the USDOC after 13 March 2012". (China's response to Panel question No. 61(a)). 
188 China's request for the establ ishment of a panel, p. 3. 
189 These include the 25 investigations and reviews that we address below in connection with China's 
claims under Articles 19.3, 10, and 32.1 of the SCM Agreem ent, as well as the four investigations at issue in 
DS379, and four investigations where no CVDs were imposed as a result of a negative injury determination. See also China's panel request, Appendix A, and the table of relevant investigations and reviews at para. 7.15.  
190 As noted by China, the CVD investigation at issue in GPX V and VI was an investigation of off-road 
tires from China that had been initiated on 27 November 2006. It therefore fell within the temporal scope of Section 1. (China's response to Panel question No. 61(a)). 
191 China's request for the establishment of a pane l, p. 3. According to China's request for the 
establishment of a panel, "[s]uch determinations and actions include, inter alia,  any determination to initiate a 
countervailing duty investigation, the conduct of any such investigation, any preliminary or final determination of subsidization or injury, the imposition of provisional countervailing duties, the imposition or maintenance of any countervailing duty order, the co nduct of any periodic (administrativ e) review, any fina l assessment of 
countervailing duties made as a result of a periodic (adm inistrative) review, and the im position or collection of 
countervailing duties pursuant to an y such investigations, determinations, orders, or reviews". (China's request 
for the establishment of a panel, fn. 2).    
192 The United States similarly indicated that, in its understanding, the proceedings referred to by China 
"appear simply to serve as evidence to support Chin a's argument that Section 1 … was enforced prior to 
publication". (United States' comments on Ch ina's response to Panel question No. 111).  WT/DS449/R 
- 52 - 
 
  7.125.   We consider that the "determinations and actions" referred to by China cannot properly be 
viewed as actions taken on dates prior to 13 March 2012 to enforce Section 1 before its official publication. As we have said, there is no evidence that the United States took any enforcement action, based on Section 1, prior to 13 March 2012. These determinations and actions were taken 
pursuant to authority which USDOC considered it had under pre-existing CVD law, not in 
anticipation of authority that Congress would subsequently provide in Section 1. We do agree, however, that these determinations and actions serve to demonstrate that, as from 
13 March 2012, Section 701(f) has been enforced, or applied, as a legal basis for specific  conduct 
of USDOC, USITC and USCBP that occurred before the aforementioned date and concerned imports 
from China, such as the initiation by USDOC on 27 November 2006 of an investigation of CFS paper from China. 
7.126.  We note that China seeks also to include "the ongoing conduct of maintaining and 
enforcing countervailing duty measures resulting from investigations initiated during this period". To the extent that this phrase is meant to encompass any distinct and new determinations or 
actions by USDOC, USITC or USCBP that occurred after 13 March 2012 (but follow different 
determinations or actions that occurred prior to 13 March 2012 and concern imports of the same subject product from China), we are unable to agree. Any distinct determinations and actions 
made or taken after 13 March 2012 do not assist China in demonstrating that Section 701(f) has 
been enforced before 13 March 2012.  
7.127.  For all these reasons, we conclude, based on Section 1(b) and relevant determinations or 
actions made or taken by United States authorities between 20 November 2006 and 
13 March 2012 in respect of imports from China, that the United States "enforced" Section 1 
(which adds the new Section 701(f) to the United States Tariff Act of 1930) before it had been officially published. Section 1 therefore meets the fi rst element of our two-part Article X:2 inquiry.  
7.5.2  Is Section 1 "[a] measure of general application taken by [a Member] effecting an 
advance in a rate of duty or other charge on imports under an established and uniform 
practice, or imposing a new or more burdenso me requirement, restriction or prohibition 
on imports "?   
7.128.  The Panel now turns to examine whether Section 1 is a measure of the type that falls 
within the scope of Article X:2. This involves a two-part analysis. First, we must determine whether Section 1 is a measure of general appl ication taken by a Member. Second, we must 
determine whether Section 1 effects an advance in a rate of duty or other charge on imports under 
an established and uniform practice, or imposes a requirement, restriction, or prohibition, that is new or more burdensome.
194 Only if Section 1 satisfies both parts of this test, does it fall within 
the scope of Article X:2. 
7.129.  China maintains that Section 1 is "plainly" within the scope of Article X:2. In China's view, 
Section 1 is a "measure" of "general application", "taken by the United States" that "effect[s] an 
advance in a rate of duty or other charge on imports under an established and uniform practice, or 
impos[es] a new or more burdensome requirement, restriction or prohibition on imports".195 
7.130.  The United States argues that China has failed to make a prima facie  case that PL 112-99 
is the type of measure covered by Article X:2. According to the United States, China has not 
established that a measure involving countervailing duties falls within the general type of measure 
covered by Article X:2. In the present dispute, th e relevant covered types of measures are either a 
measure of general application effecting a duty rate 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. The United States considers that China has failed to explain how PL 112-99 falls under either category. The United States further argues that for a measure to 
be covered by Article X:2, it must be one that de parts in a particular way from some prior measure 
of general application, that is, the measure must e ffect an advance in a duty rate or other charge 
on imports under an established and uniform practice, or impose a new or more burdensome requirement, restriction or prohibition. The United States maintains that CVD laws provide the 
                                                                                                                                               
193 China's request for the establ ishment of a panel, p. 1. 
194 China did not assert that Section 1 imposes a new or more burdensome requirement, restriction or 
prohibition on the "transfer of payments" for imports. 
195 China's first written submission, paras. 75-76. WT/DS449/R 
- 53 - 
 
  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. The United States considers that imports are affected only once the separate and distinct legal process of an investigation is completed. The United States submits 
that PL 112-99 made no change in USDOC's applic ation of countervailing duties, and that China 
cannot therefore show that it either effected an "advance" in  a rate of duty under an established or 
uniform practice, or imposed a "new or more burdensome  requirement, restriction, or prohibition" 
on imports.
196   
7.5.2.1  Measure of general app lication taken by a WTO Member 
7.131.  The Panel will first examine whether Section 1 is a measure of general application taken by 
a WTO Member.  
7.132.  China submits that Section 1 of PL 112-99 is a "measure of general application" taken by 
the United States. In China's view, PL 112-99 is a "measure of general application" because it prescribes a rule of law that is applicable to different products, producers, importers, and 
countries.
197 
7.133.  The United States argues that China has failed to prove that the challenged section of 
PL 112-99 – the application of Section 1(a) to the 27 CVD proceedings that were initiated prior to 
the enactment of PL 112-99 – is "of general application". According to the United States, the 
challenged section, which affects an identifiable number of proceedings and subject imports, does not fall under the plain meaning of the term of "general application" in Article X:2. More specifically, the United States contends that China's claim under Article X:2 relates to the part of 
Section 1(b)(1) that applies to proceedings already initiated prior to the enactment of PL 112-99 
and that had resulted in an order, and that China's claim of violation is limited to this set of proceedings. The United States considers that these 27
198 proceedings were known as of the date 
of enactment of PL 112-99, as were the pr oducts subject to those proceedings and the 
investigated parties. The United States notes th at these 27 proceedings have fixed and identified 
subject imports, because USDOC had already initiated or conducted an investigation on the subject 
imports. In the United States' view, Section 1(b)(1) is not a law of "general application" as regards 
this limited and known set of imports and proceedings.199 
7.134.  China counters that Section 1 is the relevant measure of general application, and that 
Section 1 does not need to be a measure of general application in relation to a particular set of 
proceedings or imports. China considers that Section 1(b) is not a distinct measure, but rather 
evidence on the face of the statute that the new Section 701(f) was enforced before its official publication. In China's view, it cannot be the case that Section 1 is a measure of general 
application for some purposes, but not for other purposes. China considers that if that were the 
case, there could never be a violation of Article X:2, because any measure of general application could be seen as not being a measure of general application when viewed in relation to particular 
conduct that took place prior to its official publication. China further argues that even if 
Section 1(b) were deemed to apply to a known se t of investigations and products, the exporters 
subject to the resulting countervailing duty orders  would constitute an unidentified number of 
economic operators.
200 China notes that this is because any exporter – past, present, or future, 
and whether investigated or not – that exports th e goods subject to the countervailing duty orders 
will be liable for an assessment of countervailing duties. Accordingly, China maintains, even if it were possible to view Section 1(b) as a distinct measure, it would still constitute a measure of 
                                               
196 United States' first written submission, paras. 93-94, 98 and 101; first oral statement, para. 22. 
197 China's first written submission, paras. 75-76. 
198 The United States notes that one of these CVD investigations was initiated on 27 March 2012, that is 
to say, after the enactment of PL 112-99. It is unclear to the United States why China included this investigation in its claim. (United States' second written submission, fn. 54). 
199 United States' response to Pa nel question No. 24; second written submission, paras. 15, 47, 56 
and 58. 
200 China explained that within the US system, all countervailing du ty determinations apply to any 
exporter of the subject merchandise,  whether or not that exporter was individually investigated. China's 
response to Panel question No. 129. WT/DS449/R 
- 54 - 
 
  general application, because the economic operators who are potentially subject to the imposition 
of countervailing duties under those orders are not a defined set.201 
7.135.  The United States responds that if it is appropriate to separate Section 1 from Section 2, 
then there also would be a basis to further separate Section 1(a) from Section 1(b). As China's 
claims relate to the application of Section 1(a) to those CVD proceedings that were initiated prior 
to the enactment of the GPX legislation, the United States considers that it would indeed reflect 
China's claim to consider the measure as actually challenged by China, and to consider the 
measure in respect of those proceedings initiated prior to the law's enactment from those that 
were initiated after the law's enactment. The United  States further argues that the possibility that 
a CVD order may reach an unknown set of exporters in the future is irrelevant to China's claim. According to the United States, for the past proceedings that are the subject of China's claim, the 
exporters subject to those investigations and resulting orders or determinations were known as of 
the date of enactment of PL 112-99; past export ers are therefore necessarily a defined set. The 
United States notes, finally, that China's claims are with respect to Section 1, not each of the CVD 
orders on imports from China that resulted from the named CVD proceedings. The United States 
submits that if China had wished to support claims on each CVD order as a measure of general application, it would have had to allege that each order was enforced prior to publication.
202 
7.136.  The Panel begins by recalling its earlier find ing that Section 1, as an integral part of a law 
(PL 112-99), falls within the category of "laws" identified in Article X:1.203 The term "measure" in 
Article X:2 undoubtedly encompasses "laws" as envisaged in Article X:1.204 Indeed, Article X:1 
requires certain laws to be published under Article X:1, and pursuant to Article X:2, a subset of 
such laws205 may not be enforced before they have been officially published. In the light of this, 
Section 1, as an integral part of a law, falls within the category of "measure" as contemplated in Article X:2. Moreover, PL 112-99, being a measure taken by the United States, is a measure taken 
by a Member. In sum, we consider that Sectio n 1 is part of a measure taken by a Member.  
7.137.  We address, next, whether Section 1 is a statutory provision of "general application". As an 
initial matter, we note that the identical term – "of general application" – appears in both 
Article X:1 and Article X:2. We agree with the panel in EC – IT Products  that it can be presumed 
that the term has the same meaning in both articles, which are closely related.
206 Therefore, for 
purposes of our Article X:2 analysis, we adopt th e same interpretation of the term "of general 
application" and follow the same analytical approach as we have for purposes of our Article X:1 
analysis.207   
7.138.  The measure at issue in respect of China's claim under Article X:2 is Section 1, which, to 
recall, is the same as the measure at issue in respect of China's claim under Article X:1. For this 
reason, and because we adopt the same interpretation of and analytical approach to the concept of 
"general application", we consider that it is not necessary to repeat, in this subsection of our Report, our previous analysis of the same issue.  With the necessary modifications, our earlier 
considerations are equally applicable in the context of China's claim under Article X:2. We 
therefore rely on them in support of our conclusion here.
208   
7.139.  Consequently, we find that Section 1 contains a provision of general application, 
notwithstanding the fact that, in relevant part, it applies to events or circumstances that pre-date 
the official publication of PL 112-99. 
                                               
201 China's second written submission, paras. 23-24; response to Panel question No. 116; comments on 
the United States' response to Panel question No. 118. 
202 United States' response to Panel question No. 118; comments on China's responses to Panel 
question Nos. 116 and 129. 
203 See para. 7.28. 
204 We note in this connection that the parties appear to agree that me asures that fall within the scope 
of Article X:2 also fall within the scope of Article X:1. (Parties' responses to Panel question No. 57). 
205 For instance those that effect an  advance in a rate of duty or other charge on imports under an 
established and uni form practice. 
206 Panel Reports, EC – IT Products , para. 7.1097.  
207 See paras. 7.30-7.37. 
208 The relevant considerations ar e set out at paras. 7.38-7.47. WT/DS449/R 
- 55 - 
 
  7.5.2.2  Measure effecting an advance in a rate  of duty or other charge on imports under 
an established and uniform practice, or im posing a requirement, restriction, or 
prohibition, that is new or more burdensome  
7.140.  In view of the Panel's finding in the prec eding subsection, the Panel must continue with its 
examination of whether Section 1 falls within the sco pe of Article X:2. Specifically, the Panel must 
examine whether, as China asserts, Section 1 is a measure effecting an advance in a rate of duty 
or other charge on imports under an established and uniform practice, and also a measure 
imposing a requirement, restriction, or prohibition, that is new or more burdensome. The Panel will 
begin its analysis with the first po ssibility identified by China.  
7.5.2.2.1  Whether Section 1 effects an advanc e in a rate of duty or other charge on 
imports under an established and uniform practice  
7.141.  China submits that Section 1 "effect[s] an advance in a rate of duty" or a "charge on 
imports" insofar as it makes certain categories of imports potentially subject to the imposition of countervailing duties. China maintains that this potential charge on imports is pursuant to an 
"established and uniform practice", because the imposition of countervailing duties (the "practice") 
is required in each instance ("uniform") in which the conditions set forth in the law ("established") are satisfied.
209 
7.142.  China considers that in evaluating whether Section 1 advances a rate of duty the 
fundamental inquiry is whether it effects an advance in a rate of duty in relation to prior municipal law, properly determined as a question of fact. China submits that the relevant baseline of comparison under Article X:2 is the prior municipal law of the importing Member, as reflected in its 
previously published measures of general application, including judicial decisions interpreting those 
laws and regulations. China contends that it is on the basis of these previously published measures, including judicial decisions, that governments and traders come to understand the 
requirements of the municipal law of the import ing Member, and develop their expectations about 
what law the importing Member will apply until such time as the Member publishes a superseding measure. The meaning of prior municipal law must be determined as a matter of fact, by reference 
to the laws themselves and the manner in which those laws have been interpreted by domestic 
courts. Regarding the meaning of prior United States law, China asserts that it should be understood not to have permitted the application of countervailing duties to imports from NME countries.
210   
7.143.  In relation to whether Sect ion 1 "effect[s] an advance in a ra te of duty or other charge on 
imports under an established and uniform practice", China argues that it does, not only because, in its view, 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 a 
considerable number of pre-existing countervailing duty orders which, in the absence of this legislation, would have been revoked. China su bmits that in these instances, at a minimum, 
PL 112-99 has effected an advance in the duty or charge applicable to imports. According to China, 
the applicable countervailing duty rate went from zero – i.e. the countervailing duty rate in the absence of any legal basis to impose countervailing duties – to whatever countervailing duty rate the USDOC had established in the particular investigations at issue.
211  
7.144.  The United States counters that China has failed to explain how PL 112-99 is a measure 
effecting a duty rate or other charge on import s under an established and uniform practice. The 
United States further submits that China has provided no basis for a finding that PL 112-99 
effected an "advance" in a duty rate or other ch arge on imports as compared to the duty rate 
under an established and uniform practice. According to the United States, legislation relating to the application of the CVD law does not "effect" the "rate" of duty or other import charge, much 
less an "advance" in a rate of duty or other char ge on imports. The United States argues that 
countervailing duties do not "effect" (which, the United States maintains, means to "bring about" or "produce") any particular "rate" or level of a CVD duty under established or uniform practice, 
                                               
209 China's first written submission, para. 76. 
210 China's response to Panel question No. 54; second written submission, paras. 14-15 and 19-20, 38, 
41-43 and 55; oral statement at the second meeting with  the Panel, para. 16; response to Panel question 
No. 95(b) and (c). 
211 China's first oral statement, para. 38; second written submission, fn. 20. WT/DS449/R 
- 56 - 
 
  unlike a customs tariff which sets out rates of duty. In the United States' view, 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. The United States further argues that PL 112-99 does not establish the rate of CVDs for the proceedings at issue. The United States considers that PL 112-99 
maintains the status quo and did not make imports from NME countries potentially subject to the 
imposition of countervailing duties; these import s were already subject to the imposition of 
countervailing duties well prior to the adoption of PL 112-99.
212 
7.145.  As to whether PL 112-99 effected an advance in a rate of duty on imports, the 
United States argues that Article X:2 does not address the issue whether USDOC's approach was legally permissible under United States law. The United States submits that China's "prior municipal law" baseline would compel the Panel to speculate on the content of United States law 
and determine whether USDOC's interpretation was in conformity with United States law. 
According to the United States, the legal issue whether USDOC was prohibited from applying the United States CVD law to China has not been resolved by United States courts. The United States 
maintains that in the absence of a final, binding, and legally authoritative decision by the judiciary, 
USDOC's understanding of the United States CVD law remains lawful as a matter of United States law. In the United States' view, given that the courts have not finally spoken to the contrary and 
therefore USDOC's interpretation remains valid as a matter of United States law, the Panel has no 
basis under United States law to substitute its judgment for that of USDOC.
213  
7.146.  The United States argues, in addition, that Section 1 of PL 112-99 did not change the 
existing manner in which USDOC applied the United States CVD law to NME countries.214 The 
United States observes that dating back to th e determinations from the 1980s involving imports 
from the Soviet-bloc countries, USDOC has acknowledged that the United States CVD law applied to NME imports, but refrained from doing so given the inherent difficulties in identifying and 
measuring subsidies in those centralized command-and-control economies. The United States 
notes that by 2006, USDOC recognized that China was sufficiently distinct from such economies to permit the identification and measurement of counte rvailable subsidies. In the United States' view, 
because there was no change to USDOC's existing a pproach in how it interpreted the United States 
CVD law with respect to imports from NME countries , Section 1 could not effect an increase in a 
rate of a duty. Rather, the United States maintains, Section 1 "is Congress' statement on an existing USDOC approach".
215 The United States notes that Congress enacted PL 112-99 to end the 
longstanding domestic litigation regarding whether Congress intended the United States CVD law 
to apply to NME countries in cases where subsidies can be identified. According to the United States, PL 112-99 confirmed that USDOC had legal authority to apply the CVD provisions of 
the United States Tariff Act of 1930 to imports from China and thus ratified its application of those 
provisions to China with respect to the challenged CVD measures. Specifically, the United States contends that PL 112-99 has not changed or otherwise affected any part of the CVD proceedings 
and orders listed in Appendix A of China's panel request. The United States notes that the CVD 
rates established through those proceedings remain the same as prior to the enactment of PL 112-99, that is to say, the law maintains the status quo for these orders.
216  
7.147.  The United States further argues that, even if PL 112-99 could be considered as modifying 
United States law, it could never be said that the situation prior to PL 112-99 could be described 
as an "established and uniform practice" not to apply CVDs to imports of China. The United States 
observes that the established and uniform practice since 2006 was to apply CVDs to China. 
Moreover, even before that time, USDOC maintain ed procedures for applying the United States 
                                               
212 United States' first written submission, paras. 98-99, 103 and 109; second written submission, 
para. 16. 
213 United States' response to Panel question No. 54; oral statement at the second meeting of the Panel, 
para. 12. 
214 The United States notes that without a "practice"  before the purported adva nce, there would be no 
basis from which to evaluate the change. (United States' second written submission, para. 41). 
215 United States' first written submission, para. 106. The United States contends that the state of 
US law has always been that USDOC is not prohibit ed from applying the US CVD law to NME countries. 
(United States' first oral stat ement, para. 29). The United States refers to the legislative record of PL 112-99, 
which states that "Commerce has always had the auth ority to apply countervail ing duties to nonmarket 
economies such as China". (Exhibit USA-44). 
216 United States' first written submission, paras. 105-106; oral statement at the first meeting of the 
Panel, paras. 14 and 24; oral statement at the second meeting of the Pa nel, paras. 5 and 15. WT/DS449/R 
- 57 - 
 
  CVD law to any country where a countervailable subsidy (or bounty or grant) could be 
determined.217  
7.148.  China disagrees with the contention by the United States that Congress was merely 
clarifying existing law or resolving confusion in ongoing litigation. China considers that the 
proposition that PL 112-99 did not effect a substant ive change in United States law is refuted both 
by the plain language of the statute itself and by the facts and circumstances leading up to its enactment. China notes that PL 112-99 is enti tled "an act to apply the countervailing duty 
provisions of the Tariff Act of 1930 to nonmarket economy countries". China argues that 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 economy countries. China further contends that it is the new Section 701(f), not the old 
Section 701(a), that creates the legal basis for the imposition of countervailing duties on imports 
from NME countries. China considers that if the statute was merely restating the law that already existed, then there would have been no need for Congress to make the new law retroactive to a 
specific date in the past. China adds that it is no coincidence that PL 112-99 is commonly referred 
to as the "GPX legislation". This is because, according to China, the purpose of PL 112-99 was to change the law in response to the CAFC's holding in GPX V .
218  
7.149.  China observes that the CAFC's decision in GPX V  held that what the United States tries to 
characterize as the "status quo" was, in fact, inconsistent with United States law as it then existed.  China notes that the CAFC ruled that the United  States Tariff Act of 1930 did not permit the 
application of countervailing duties to imports from  NME countries. In China's view, this "ruling of 
law" constitutes the relevant status quo prior to the enactment of PL 112-99, not USDOC's prior 
interpretation of its authority, which the CAFC had considered and found to be incorrect. China asserts that the CAFC's decision in GPX V  is a published, precedential decision of a United States 
court. China notes that the decision is bound in the official reports of the United States courts of 
appeals, notwithstanding the repeated attempts by  the United States to have the CAFC "vacate" 
this decision, which the court has declined to do. China considers that GPX V  is therefore a valid 
statement of United States law as it existed prior to the enactment of the statute at issue in this 
dispute.
219   
7.150.  The United States counters that the opinion of the CAFC in GPX V  never became final or 
legally binding on USDOC, and it therefore could not be implemented by USDOC.220 The 
United States notes that a "mandate" is required to finalize a United States appellate court 
opinion, and that the CAFC itself stated that a mandate was not issued for the GPX V  opinion 
because the case was still under appeal.221 Therefore, the United States maintains, GPX V  was not 
a final decision and has no legal effect under United States law, and the CIT, as the court of first 
instance, could not direct its implementation prior to the CAFC's issuance of a mandate.222 The 
United States notes that prior to the issuance of a mandate, the GPX V  opinion was still subject to 
change. The United States explains that such ch anges could be made by either the three-person 
panel of the CAFC that heard the GPX V  case, the CAFC sitting en banc , or the United States 
Supreme Court.223 In GPX V , the United States filed a timely petition for rehearing before the CAFC 
                                               
217 United States' first written submission, para. 108; response to Panel question No. 56(b). According 
to the United States, prior to the enactment of Sectio n 1, USDOC applied the US CVD law to imports from NME 
countries subject to an impossibility (or "single entity") exception, that is to say, an exception applicable in the event that USDOC found it impossible to identify and measure countervailable subsidies in the NME country concerned. (United States' comments on Ch ina's response to Panel question No. 97). 
218 China's first oral statement, paras. 9, 11-12, 14 and 36; second written submission, para. 52. 
219 China's first oral statement, paras. 16 an d 20; second written submission, para. 84. 
220 The United States further observes that the non-final GPX V  opinion is not precedent under US law. 
According to the United States, the statement by the CAFC in GPX V  on US law cannot be the basis for future 
cases involving similar facts or issues; it has no au thority to change USDOC's existing approach to the 
application of the US CVD law to the relevant 27 pr oceedings. (United States' se cond written submission, 
para. 30). 
221 The United States refers to GPX VI  (Exhibit CHI-07), p. 1311. 
222 The United States draws attention to the fact that a US appellate court held that it was improper for 
a court of first instance to implement the appellate court's opinion prior to the issuance of the mandate. The US appellate court explained that "[u]ntil the mandate issues, the case is 'in' the court of appeals, and any action by the district court [or the co urt of first instance] is a nullity". ( Kusay v. United States , 62 F.3d 192, 
194 (7th Cir. 1995); Exhibit USA-75). 
223 The United States observes that there is established jurisprudence of US appellate courts changing 
their opinions prior to the issuance of the mandate, eith er because of a clarification of the law or facts. The WT/DS449/R 
- 58 - 
 
  sitting en banc .224 According to the United States, this means that the proceedings in that case 
had not concluded and that the United States had not exhausted its rights to appeal. The United States notes that in the subsequent final decision, in GPX VI , the CAFC found that USDOC 
was not prohibited from applying the United States CVD law to China. The United States notes that 
a mandate was issued for this decision in GPX VI . Further, in response to China's arguments about 
the CAFC's failure to vacate the decision in GPX V , the United States contends that regardless of 
whether a decision is formally vacated, the original decision of a United States appeals court loses 
any effect when an appeals court grants a rehearing. The United States also points out that the 
CAFC granted a motion by the United States and amended its judgment in GPX VI  to state that the 
judgment of the CIT was vacated.
225 
7.151.  China responds that in GPX VI , the CAFC began its decision by reiterating its prior holding 
in GPX V  that the United States Tariff Act did not permit the application of countervailing duties to 
imports from NME countries.226 China notes that the court then observed, however, that Congress 
had subsequently "enacted legislation to apply countervailing duty law to NME countries".227 China 
notes that the court explained that this new legislation "applies retroactively" to countervailing 
duty investigations initiated on or after 20 November 2006, including any appeals in Federal courts relating to those investigations.
228 Therefore, China contends, the CAFC applied the new law 
retroactively to alter the outcome of the case, without casting any doubt upon its decision in GPX V  
as a valid interpretation of the prior law.229 
7.152.  China further states that the Panel should not accept the United States' characterization of 
what United States law meant prior to the enactment of PL 112-99, when the CAFC has already 
considered those arguments and found them unpersuasive. China submits that the meaning of 
United States law is not a matter for the Panel to resolve through its own interpretation, but rather a fact to be discerned from the laws themselves and from the manner in which those laws have 
been interpreted by the United States courts. China argues that like prior panels, the Panel should 
take notice of the fact that "under the US legal system, the judicial branch of the government is 
the final authority regarding the meaning of federal laws".
230 In China's view, the CAFC's decisions 
in GPX V and GPX VI  establish the "determinative meaning"231 of United States law both before 
and after Congress enacted the legislation at issue in this dispute. China maintains that United States law is not synonymous with USDOC's treatment of imports from China.
232 
7.153.  The United States responds that the issue of whether PL 112-99 was a change or 
clarification of United States law has not been determined by the United States courts in the 
ongoing GPX litigation or other pending court challenges. The United States submits that the Panel 
need not make a finding on this issue because ev en if China's suggestions were taken at face 
value, its claim would still fail. The United States argues that, contrary to China's assertions, the 
inquiry under Article X:2 is not whether there has been some theoretical change in United States law; the correct approach is to evaluate the treatment given to imports before and after the 
challenged measure. According to the United States, the text of Article X:2 itself indicates that the 
issue is whether there has been an advance in a rate of duty "on imports". The United States therefore considers that the term "advance" must be evaluated in the context of the "imports" at 
                                                                                                                                               
United States refers  to, for instance, Carver v. Lehman , 558 F.3d 869, 878 (9th Cir. 2009) (Exhibit USA-70); 
and Beardslee v. Brown , 393 F.3d 899, 901 (9th Cir. 2004) (Exhibit USA-71). The United States notes, by way 
of example, that a US appellate court in First Gibraltar Bank v. Morales  held that "[b]ecause the mandate is 
still within our control, we have the powe r to alter or to modify our judgment". ( First Gibraltar Bank v. Morales , 
42 F.3d 895, 898 (5th Cir. 1995); Exhibit USA-72). The United States points out that the court went on to significantly alter its original opinion based on a clarifying law that had been enacted while the case was pending on appeal. 
224 The United States filed its petition for rehear ing on 5 March 2012. Congress enacted PL 112-99 on 
13 March 2012, and on 9 May the CAFC granted the United St ates' petition for a rehearing. (United States' first 
written submission, annex paras. 54, 56 and 63). 
225 United States' first oral statemen t, paras. 15 and 32-37;  response to Panel question No. 54; second 
written submission, paras. 27-28; response to Panel question No. 120.  
226 China refers to GPX VI  (Exhibit CHI-07), p. 1310. 
227 GPX VI  (Exhibit CHI-07), p. 1310. 
228 Ibid. 
229 China's first oral statement, para. 19;  second written submission, para. 86. 
230 Panel Report, US – 1916 Act (EC) , para. 2.14. 
231 Panel Report, US – Countervailing Measures on Certain EC Products , para. 7.154.   
232 China's oral statement at the first meeting with  the Panel, paras. 21-22;  oral statement at the 
second meeting with the Panel, para. 14. WT/DS449/R 
- 59 - 
 
  issue. The United States submits that the correct "b aseline" is the rate of duty on imports prior to 
the new measure. The United States notes that the "imports" at issue are those subject to the CVD investigations listed by China in its panel request that resulted in a CVD order. The United States submits that PL 112-99 did not increase the CVD rates already in place for the subject imports; the 
most that could be said of PL 112-99 is that it maintained the CVD rates at whatever rate was 
determined for each product prior to its enactment. The United States adds that at no point, even in the immediate aftermath of the CAFC's opinion in GPX V , were the Chinese products at issue in 
this dispute ever exempt from CVD rates, as the CVD orders remained in place, undisturbed.
233  
7.154.  The Panel begins by addressing the meaning of the phrase "measure … effecting an 
advance in a rate of duty or other charge on imports under an established and uniform practice". We note that the panel in EC – IT Products  interpreted the first part of that phrase – "effecting an 
advance in a rate of duty or other charge on imports" – to mean "of a type that 'bring[s] about an 
'increase' in a rate of duty [or other charge on imports]".
234 We concur. We also agree with that 
panel that the remaining part of the phrase in  question – "under an established and uniform 
practice" – "must relate to both 'rate of duty' and 'other charge' and that it should not be read to 
refer to 'other charge' only".235 
7.155.  The ordinary meaning of the word "advan ce", when used together with the term "in a 
rate", is "[a] rise in amount, value, or price".236 Conceptually, the term "advance in a rate" calls for 
a comparison of two rates of duty or charge: a ne w rate on imports of a particular product and a 
prior, initial237 rate on imports of that product. It is only if the new rate is higher than the prior 
rate that an "advance", or increase, in a rate has been effected. In the light of this, it is clear to us 
that the term "under an established and uniform practice" serves to define the relevant prior rate 
that is to be used to establish whether or not an advance in a rate has been effected. It follows, then, that the relevant comparison contemplated by Article X:2 is between the new rate effected 
by the measure at issue and the rate that was previously applicable under an established and 
uniform practice.
238   
7.156.  Regarding the term "established", similarly to the panel in EC – IT Products , we consider 
that this term indicates that the practice in qu estion has been securely in place for some time.239 
As concerns the term "uniform", we note that the panel in EC – Selected Customs Matters  found 
that the dictionary defines "uniform" as meaning "of one unchanging form, character, or kind; that is or stays the same in different places or circumstances or at different times".
240 A "uniform" 
practice, then, is one that does not change according to the time or place of importation, or 
depending on the traders or governments involved.   
7.157.  Our interpretation of the phrase "effecting an advance in a rate of duty or other charge on 
imports under an established and uniform practice" accords well with its immediate context, in 
particular the prohibition in Article X:2 against "enforcement" of a measure effecting an advance in a rate before its official publication. When, as Arti cle X:2 contemplates, a rate of duty or charge is 
applied on imports under an established and uniform practice, such practice is liable to give rise to 
expectations on the part of traders and governments as to the rate of duty or charge applicable to future imports of that product. More particularly, where there is an "established and uniform" practice with regard to the applicable rate of duty or charge, economic operators are likely to rely 
on it when making business decisions, including production, sourcing and investment decisions. 
                                               
233 United States' second written submission, para s. 14, 21-25 and 64; response to Panel question 
No. 54; oral statement at the second meeting of the Panel, paras. 13-14; response to panel Question No. 95(a). 
234 Panel Reports, EC – IT Products , para. 7.1107. 
235 Ibid. para. 7.1116. The parties, likewise, appear to  agree that the phrase "under an established and 
uniform practice" modifies also the term "rate of du ty". (Parties' responses to Panel question No. 127).  
236 The Shorter Oxford English Dictionary  (2002), p. 31. 
237 The United States uses the term "initial duty rate". (United States' first written submission, 
para. 108). 
238 We note that the panel in EC – IT Products  expressed the view that the phrase "under an established 
and uniform practice" qualifies, not the nearer antecedent s "rate of duty" or "other charge on imports", but the 
term "advance", which it said relate s to both "rate of duty", and "or ot her charge on imports". The panel did 
not further explain its view. (Panel Reports, EC – IT Products , para. 7.1116).  
239 Panel Reports, EC – IT Products , para. 7.1119 (indicating that "est ablished" entail an element of 
duration and that the dictionary defines "established" as meaning, inter alia , "set up on a permanent or secure 
basis").  
240 Panel Report, EC – Selected Customs Matters , para. 7.123. WT/DS449/R 
- 60 - 
 
  Viewed in this light, the aforementioned proh ibition in Article X:2 safeguards traders and 
governments against the risk of basing decisions on a formerly established and uniform practice 
when they should no longer do so because the practice changed or was discontinued before public notice thereof was given. Indeed, the prohibition means that traders and governments can rest 
secure in the knowledge that no adverse "change in  practice" will occur, in the sense that no new 
restrictive measure or practice will be "enforced", or  applied, until and unless public notice is given 
(in the form of official publication) of the relevant measure effecting such change.
241 
7.158.  There is one additional issue that is pr esented by the term "under an established and 
uniform practice" and that arises in the dispute before us. The issue was raised notably by China.
242 It concerns whether, for purposes of an anal ysis under Article X:2, a distinction should be 
made between, on the one hand, established an d uniform practices that are lawful under the 
domestic law of the importing Member and, on the other hand, practices of the same type that are 
unlawful under the domestic law of that Member.  
7.159.  As both parties have presented argument and evidence regarding whether USDOC's 
practice prior to enactment of Section 1 was lawful under United States law, we will proceed on 
the basis that it is potentially relevant, and at a minimum not inappropriate243, to address this 
i s s u e  f o r  p u r p o s e s  o f  a n  a n a l y s i s  u n d e r  A r t i c l e  X : 2 .  I t  i s  o n l y  i f  w e  f i n d  t h a t  s a i d  p r a c t i c e  w a s  
unlawful that we would need to determine whether or not that practice can nonetheless be relied 
on for purposes of our analysis under Article X:2. We will revert to this matter below, as appropriate, once we have completed our examination of USDOC's practice. 
7.160.  China argues that in evaluating whether Section 1 effected an advance in a rate of duty on 
imports under an established and uniform USDOC practice, the relevant baseline of comparison is 
the prior municipal law of the United States, properly determined as a question of fact. According to China, it is by reference to the relevant United States laws themselves and the manner in which 
those laws have been interpreted by United States courts that we should determine whether there 
has been an advance in a rate of duty. The United States rejects what it terms China's "speculate and substitute" baseline, arguing that China is asking the Panel to determine whether USDOC 
acted in a manner that was not provided for under municipal law. The United States considers that 
the relevant question under Article X:2 is whether there has been a relevant change to the treatment of imports, and not whether an administering authority "properly" interpreted domestic law or "properly" acted in accordance with domestic law. In the United States' view, the Panel 
should not substitute its own judgment on domestic law for that of USDOC.
244 The United States 
further contends that China's "prior municipal law" approach also "would not make sense". According to the United States, this approach would mean, for example, that if domestic law 
requires a particular rate of duty, but a lower rate  has been mistakenly applied, then an increase 
in the rate to the required level would not amount to an "advance" in a rate of duty and would not be subject to the requirements of Article X:2.
245 
7.161.  In our view, it is neither necessary nor appropriate to follow the "prior municipal law" 
approach advocated by China. China is in effect asking us to put to one side, from the beginning, the practice of USDOC – followed since 2006 or at least 2007
246 – of applying CVDs to imports 
                                               
241 The Appellate Body stated along si milar lines that "Members and othe r persons affected, or likely to 
be affected, by governmental measur es [falling within the scope of Arti cle X:2] 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". (Appellate Body Report, US – Underwear , 
p. 21).  
242 See e.g. China's second written submission, para. 18. 
243 The United States initially noted that Articl e X:2 does not address the issue whether USDOC's 
practice was permissible under US law. It subsequently indicated, however, that wh ether a measure effects an 
advance in a rate of duty under an established and un iform practice "would nece ssarily be determined by 
considering the entire record" and the "totality of the evidence". In this context, the United States also addressed "the state of law" in the United States prior to the enactment of Section 1. (United States' responses to Panel question Nos. 94 and 95(a) and (c); comments  on China's responses to Panel question Nos. 95 
and 96). 
244 United States' second written submission, para. 36; oral statement at the second meeting with the 
Panel, paras. 12-13 and 21; and comments on China's response to Panel question No. 95. 
245 United States' response to Panel question No. 54. 
246 November 2006 is the date on which USDOC initiated a CVD investigation of CFS paper from China, 
indicating its intent to determine whether US CVD law could be applied to imports from China; April 2007 is the WT/DS449/R 
- 61 - 
 
  from NME countries. China would then have us consider the published text of relevant 
United States laws and such judicial decisions as may exist to shed light on their meaning, and make a determination on that basis as to the rate(s) applicable under prior United States law to imports from NME countries. It appears peculiar to us, however, to use as an analytical point of 
departure anything other than the practice of USDOC as the primary agency administering the 
United States Tariff Act of 1930. This is because the text of Article X:2 directs us to compare any new, changed rates of duty with the rates of duty under a prior established and uniform 
practice.
247 
7.162.  Even assuming that our analysis could properly focus on determining what was required 
under United States law before Section 1 entered into force, such determination would need to be based, in keeping with Appellate Body guidance, on "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".
248 However, China has offered virtually no 
specific analysis of the text of Section 701(a) of the United States Tariff Act of 1930, which we 
understand was relied on by USDOC as the legal basis for applying CVDs to imports from any country, including NME countries, before the new Section 701(f) came into force.
249 Instead China 
referred us to the text of Section 1, the measure th at China says effected an advance in a rate of 
duty.250 It is not apparent to us that the analysis should focus, not on the actual text of 
Section 701(a) and the meaning and effect that may permissibly be given to it, but on indirect inferences that might be drawn from a subsequent enactment of Congress, Section 1 of PL 112-
99.
251  
7.163.  Furthermore, the above-quoted statement of the Appellate Body indicates that "evidence 
of consistent application" of a law may be taken into account, as appropriate, in determining what 
that law requires. An established and uniform practice  of an agency reflecting an interpretation of 
a law which that agency administers would undoubtedly be "evidence of consistent application" of that law. Moreover, certainly in the case of United States law, it is appropriate to take account of 
any practice of an administering agency.
252 As the United States explained, under United States 
law, even when a court reviews the interpretation of a law that underlies action taken by an agency administering that law, the agency's interp retation of the law "governs in the absence of 
                                                                                                                                               
date on which USDOC made an affirmative preliminary determination that US CVD law could be applied to 
imports from China. (Exhibit USA-119).  
247 China rejects the United States' arguments based on the existing USDOC approach, saying that it 
"completely disconnect[s]" USDOC's "treatment of trad e-related conduct" (i.e. its practice) from US law. 
(China's second written submission, para. 72; response to  Panel question No. 95(b)). However, it seems to us 
that in view, inter alia , of the wording of Article X:2 it could be sa id, with no less justification, that China's 
approach disconnects the issue of what prior United St ates law permitted from USDOC's actual treatment of 
trade-related conduct.  
248 Appellate Body Report, US – Carbon Steel,  para. 157. 
249 We note that China itself stated that "the relevant comparison is between the Tariff Act as it existed 
prior to the enactment of Section 1 of P.L. 112-99 and the Tariff Act as it existed following the enactment and official publication of this new provision". (C hina's second written submission, para. 49).  
The United States observed that USDOC's practice was based on Section 701(a) of the United States 
Tariff Act of 1930, which states th at "if the administering authority determines that the government of a 
country  … is providing, directly or indirectly, a countervailable subsidy" (emphasis added) and an industry is 
materially injured by reason of imports of that me rchandise, "then there shall be imposed upon such 
merchandise a countervailing duty…". (United States' response to Panel question No. 64(a) and Exhibit USA-119). The United States contends that the term "country" in the CVD law is not limited to countries with market economie s; it refers to all countries. The United  States further obse rves that the term 
"nonmarket economy" did not appear in the CVD law pr ior to enactment of Section 1. (United States' first 
written submission, para. 62).  
250 China's oral statement at the second meeting of th e Panel, para. 17. China stated that, in its view, 
Section 1 would be sufficient, on its fa ce, to establish that it is a measure of general application that advanced 
a rate of duty. (China's second written submission, para . 56). Although China contends that it has presented a 
prima facie case that Section 1 effects an advance in a rate of duty based on its text, China has provided and discussed relevant "pronouncements of domestic courts". We will revert to these fu rther below, as necessary.  
251 It should be mentioned in this connection that the parties fundamentally disagree about the nature 
and effect of Section 1. Whereas China understands Section 1 to have changed pre-existing law, the United States considers that it merely clarified pre-existing  law. It is only on the fo rmer view, i.e. China's view, 
that it might conceivably be inferred fro m Section 1 that it permits or requir es what prior US law did not permit 
or did not require.  
252 E.g., supplemental expert report of  Professor Richard Fallon, para. 18 (Exhibit CHI-124) (stating that 
"agencies often have the function of in terpreting laws enacted by Congress"). WT/DS449/R 
- 62 - 
 
  unambiguous statutory language to the contrary or unreasonable resolution of language that is 
ambiguous".253 This means that, within these limits, a reviewing United States court must defer to 
the agency's interpretation rather than impose its own interpretation.254 Consequently, it is clear 
that even were we to follow China's "prior munici pal law" approach, it would be improper, certainly 
when ascertaining the meaning of United States la w, to disregard from the outset an established 
and uniform practice by USDOC that reflects the latter's interpretation of Section 701(a). Any such practice would need to be given due weight in our factual analysis.
255 This would be required to 
correctly establish the meaning of United States law as a matter of fact, and would not amount to 
"defer[ring] to the assertions by the United St ates about the meaning of its own municipal law".256 
7.164.  As a final consideration concerning Chin a's "prior municipal law" approach, we observe 
that, in accordance with Article X:3(b) of the GATT 1994257, it is the role of domestic "judicial, 
arbitral or administrative tribunals", and not WTO panels, to determine whether agency practices 
relating to customs matters are unlawful under domestic law. In contrast, under China's approach, a WTO panel might very well find that what a Member's law requires is not what an administering 
agency of that Member considers it requires. In so doing, a WTO panel would end up taking a 
position, either expressly or in effect, about the conformity of an agency practice with "prior municipal law" as determined by that panel. We do not mean to suggest that this would never be 
necessary or justifiable in the context of an ex amination of a claim based on the WTO Agreement. 
But we consider that panels should not needlessly venture into the domestic law arena.
258 We are 
not persuaded that there is any need to do so in the present dispute.     
7.165.  In view of our misgivings about China's "prior municipal law" approach, we adopt a 
different approach to establishing whether USDO C's practice was lawful before enactment of 
Section 1. This involves examining whether a relevant agency practice has been judicially determined to be unlawful by a domestic court, including, where an appeal is lodged, a domestic 
court of superior jurisdiction, such that the practice needed to be either discontinued or 
appropriately changed. Absent a determination of  this kind, the agency practice should be 
regarded as presumptively lawful, unless the domest ic law of the Member concerned precludes this 
presumption.  
7.166.  This approach sits comfortably with Article X:3(b). It states that "decisions" of domestic 
courts must "be implemented by, and … govern the practice of, … agencies ['entrusted with 
                                               
253 United States v. Eurodif S.A ., 555 U.S. 305 (2009) at 316 (citations omitted) (Exhibit USA-15). See 
also United States' responses to Panel question Nos. 28 and 117.  
254 Chevron, U.S.A., Inc. v. Natura l Resources Defense Council, Inc ., 467 U.S. 837 (1984) at 843 
(Exhibit USA-14). 
255 Notwithstanding this, China rests its claim on only  "two sources of law: the terms of the measure 
itself in relation to the prior version of the statute that it amends, and the meaning of prior municipal law as 
established by the pronouncements of domestic courts on the meaning of that law". (China's second written 
submission, para. 48). 
256 China's response to Panel question No. 96. It is useful in this context to note also the following 
statement by the panel in US – 1916 Act  (EC): "[W]e consider that we should no t limit ourselves to an analysis 
of the text of the 1916 Act [the US statute at issue in th at dispute] in isolation from its interpretation by US 
courts or other US authorities, even if we were to find that text to be clear on its face. If we were to do so, we 
might develop an understanding of that  law different from the way it is actually understood and applied by the 
US authorities. This would be contrary to our obligatio n to make an objective assessment of the facts of the 
case, pursuant to Article 11 of the DSU". (Panel Report, US – 1916 Act  (EC), para. 6.48). 
257 Article X:3(b) requires Members to maintain or institute judicial, arbitral or administrative tribunals 
for the purpose of the prompt review and correction of administrative action relating to customs matters. 
258 We note that prior panels expressed similar views. See e.g. Panel Reports, US – Stainless Steel 
(Korea) , para. 6.50 (footnote omitted) (stating that "the WT O dispute settlement system … was not in our view 
intended to function as a mechanism to test the consiste ncy of a Member's particular  decisions or rulings with 
the Member's own domestic la w and practice; that is a function reserv ed for each Member's domestic judicial 
system, and a function WTO panels would be particularly ill-suited to perform. An incautious adoption of the approach advocated by Korea could howe ver effectively convert every claim that an action is inconsistent with 
domestic law or practice  into a claim under the WTO Agreement "); US – Hot-Rolled Steel , para. 7.267 
(observing that "[s]ome of Japan's arguments concer ning the alleged lack of uniform, impartial, and 
reasonable administration of the US anti-dumping law as sert that USDOC made differe nt decisions in this case 
than it has made in other cases, or that the decisions were in violation of controlling US legal authority. It is not, in our view, properly a panel's task to consider  whether a Member has acted consistently with its own 
domestic legislation"); and EU – Footwear  (China ), para. 7.858 (stating that "we agree that whether or not EU 
law requires an explanation of a change in methodology is irrelevant to our analysis, as it is not our role to enforce EU law"). WT/DS449/R 
- 63 - 
 
  administrative enforcement'] unless an appeal is lodged with a court … of superior jurisdiction 
within the time prescribed". Thus, once a judicial determination has been made that a particular agency practice is unlawful, the agency may no longer follow that practice. Interpreting Article X:3(b) a contrario  supports the further inference that in situations where there is no such 
judicial determination that governs the practice of an agency, it is in principle the agency's own 
practice that governs, unless the domestic law of the Member concerned indicates otherwise. This interpretation is reinforced by the reference in Article X:3(b) to agencies "entrusted with 
administrative enforcement". Indeed, such agencies can effectively discharge their mandated 
function of "administrative enforcement" only if their practice is permitted to govern absent a 
binding judicial determination that it is unlawful. Contextual considerations therefore lend strength to the view that a relevant agency practice should be considered presumptively lawful under 
domestic law until and unless there is a binding domestic court decision to the contrary or 
domestic law precludes this presumption.
259 
7.167.  China appears to consider that an analytic al approach other than its "prior municipal law" 
approach would open the door to Members evading the prohibition laid down in Article X:2. 
Specifically, China maintains, a Member could then act in open disregard of its previously published measures of general application, su bsequently adopt and publish a new measure of 
general application that expressly applies to conduct occurring prior to its official publication, and 
avoid being found in breach of Article X:2 because the new measure is substantively the same as its pre-existing practice.
260 In our view, this hypothetical scenario does not establish that the 
approach we have said we will follow will effectively convert the prohibition in Article X:2 into a 
nullity.261 The only thing that China's hypothetical scenario establishes is the significance of 
Article X:3(b), which enjoins Members to maintain procedures for the prompt review and, where appropriate, correction of administrative action relating to customs matters. Article X:3(b) serves 
precisely as a deterrent or corrective to Members taking administrative action "in open disregard" 
of their published measures of general publication.   
7.168.  With these general considerations in mind, we now proceed to examine as a first step 
whether prior to the enactment of Section 1 ther e was an established and uniform USDOC practice 
concerning the rates of countervailing duty applicable to imports from NME countries. Should this be the case, we will examine as a second step whether that practice was unlawful under United States law.  
7.169.  The record shows that, in November 2006, USDOC published the initiation of a CVD 
investigation of CFS paper from China, and that in December 2006, it published a notice of opportunity to comment on whether the CVD law "should now be applied to imports from the 
PRC".
262 In April 2007, USDOC published an affirmative preliminary determination in the CVD 
investigation of CFS paper, in which it preliminarily determined that the United States CVD law could be applied to imports from China.
263 In October 2007, USDOC issued an affirmative final 
determination in the CVD investigation concerned.264 The record further shows that between 
November 2006 and March 2012, USDOC initiated 33 investigations and reviews in respect of imports from China under United States CVD law, notifying China and other parties of its application of United States CVD law to China
265, and that in many of those proceedings USDOC 
                                               
259 We note in passing that a measure by a Member wo uld similarly be regarded as presumptively lawful 
under WTO law absent a DSB ruling to the contrary. The Appellate Body has confirmed, for instance, that "a 
responding Member's law will be treated as WTO- consistent  until proven otherwise" . (Appellate Body Report, 
US – Carbon Steel , para. 157; original emphasis). 
260 China's second written submission, para. 16; response to Panel question No. 54. 
261 We find questionable the premise of China's scena rio – an agency openly an d knowingly disregarding 
published measures of general applic ation of the Member concerned. In our view, perhaps a more realistic 
scenario would be one in which it is debatable whether there has actually been any departure by an agency from such measures. In other words, there may be disa greement between the agency and interested parties 
regarding the correct interpretation  of the underlying measures.  
262 CFS Paper Initiation , 71 Fed. Reg. at 68,549 (Exhibit USA-23). 
263 Coated Free Sheet Paper from the People's Republ ic of China: Amended Affirmative Preliminary 
Countervailing Duty Determination , 72 Fed. Reg. 17,484, 17,486 (Dep't of Commerce Apr. 9, 2007) 
(Preliminary Determination) (Exhibit USA-25). 
264 Coated Free Sheet Paper from the PRC: Final Affirmative CVD Determination , 72 Fed. Reg. 60,645 
(Dep't of Commerce Oct. 25, 2007) (Exhibit USA-27). 
265 Exhibit USA-119 (listing notifications from November 2006 to March 2012). WT/DS449/R 
- 64 - 
 
  issued CVD orders.266 USDOC undertook those investigations and reviews, and issued those 
orders, even though, then as later, the United States designated China as an NME country. The United States contends that these facts reflect an established and uniform practice. For its part, China has not identified any instance pertaining to the relevant time-period in which USDOC 
determined that it lacked authority under domestic law to apply countervailing duties to imports 
from NME countries. In our view, these elemen ts therefore support the view that between 
November 2006, or at least April 2007
267, and March 2012, there was indeed a USDOC practice 
with regard to the application of countervailing duties to imports from China as an NME country 
that was securely in place (established) and that did not change over time (uniform).  
7.170.  We further consider that this USDOC practice constituted a practice regarding "rates of 
duty" applicable to imports from China as an NME country. This is because under this practice, the 
rates of countervailing duty applicable to import s from China were whatever rates of countervailing 
duty that were warranted, in cases where countervailable subsidies could be determined, by the application of United States CVD law to such imports.
268 
7.171.  Having determined that prior to the enactment of Section 1 there was an established and 
uniform USDOC practice concerning the rates of countervailing duty applicable to imports from China as an NME country, we proceed to examine whether that practice was unlawful under 
United States law, as China contends. Consistent wi th the approach we set out above, we will thus 
consider whether the relevant USDOC practice
269, or the interpretation of United States CVD law 
on which it is based, has been determined to be  unlawful by a United States court, including, 
where an appeal was lodged, a United States court of appeals (such as the CAFC) or the 
United States Supreme Court, such that the practice  needed to be changed. We add in this respect 
that the United States has confirmed that, in the absence of a United States court decision that would govern the practice of USDOC, it is USDO C's own practice or interpretation that governs 
under United States law.
270 
7.172.  The parties have extensively discussed various relevant decisions by United States courts, 
specifically the CIT, which is a first-instance Federal court, and the CAFC.271 Those decisions arose 
from USDOC actions relating to the application of United States CVD law to imports from China. 
Among the decisions that prompted the most discussion were the decisions in Georgetown Steel 
(CAFC), CFS Paper  (CIT), as well as a series of decisions emanating from the so-called GPX 
litigation, and particularly the decisions in GPX I (CIT),  II (CIT),  V (CAFC)  and VI (CAFC). The 
parties have offered divergent views as to the holdings in some of these court decisions, or their 
legal import. Significantly, however, neither party contends, and nothing in the record indicates, 
                                               
266 The 33 investigations and reviews include the 25 investigations and reviews that we address in 
connection with China's claims under Articles 19.3, 10,  and 32.1 of the SCM Agreem ent, as well as the four 
investigations at issue in DS379, and four investigations  where no CVDs were imposed as a result of  a negative 
injury determination. See also China's request for the es tablishment of a panel, Appendix A, and the table of 
relevant investigations and reviews at para. 7.15. 
267 In April 2007, USDOC made a preliminary affirmat ive determination that US CVD law as it then 
existed could be applied to imports from China. (Exhibit USA-119). 
268 We determined above that countervailing duties ar e duties for purposes of Article X:1. The same 
holds true for Article X:2. We also note that Section 701(a) of the United States Tariff Act of 1930 states that where the relevant conditions are met, "there shall be imposed upon such merchandise a countervailing duty … 
equal to the amount of the net countervailable subsidy".  
269 We use the term "relevant practice" hereafter to refer to the established and uniform practice 
followed by USDOC between at least April 2007 and March 2012 in respect of applying countervailing duties to imports from NME countries. 
270 Specifically, the United States observed that "und er recognized principles of U.S. law, Commerce's 
interpretation of the U.S. CVD law is presumed  to be the governing interpretati on of the U.S. Tariff Act until 
and unless a court finds that Commerce's  interpretation is unreasonable or contrary to the plain text of the 
statute in a final and binding decisi on". (United States' response to Panel question No. 95(a) (emphasis 
added), referring to the previo usly mentioned United States Supreme Court decisions in Chevron  and Eurodif ). 
See also United States' comments on China's responses to  Panel question Nos. 91, 95 and 96; expert report of 
Dean John Jeffries, para. 27 (Exhibit USA-115) (noting that "there is no debate that interpretations of statutes 
by the administrative agencies tasked to implement th em are binding and have legal effect until and unless 
they are reversed or overturned by a court"); and expe rt report of Professor Ri chard Fallon, paras. 19-20 
(Exhibit CHI-83) (stating that agencies' interpretation sometimes get " Chevron  deference" and that "ultimate 
responsibility to determine whether ag encies have acted lawfully, including in their interpretation of vague 
statutes, always remains with the judicial branch"). 
271 China's first written submission, paras. 10-57; Unit ed States' first written su bmission, paras. 24-61. 
There apparently have not yet been any directly rele vant decisions of the United States Supreme Court. WT/DS449/R 
- 65 - 
 
  that in relation to any of the court decisions su bmitted to us by the parties, USDOC received an 
order from a United States court to either change or discontinue its practice of applying United States CVD law to imports from NME countries, or to give a different interpretation to United States CVD law. Nor has either party asserted that there are any other United States court 
decisions that resulted in such orders.
272  
7.173.  Thus, there is no evidence that up until the time of our review of China's claim the relevant 
USDOC practice has been determined unlawful by a United States court, either at first instance or 
following appeal(s), such that USDOC would have been required to change its practice or 
interpretation of United States CVD law.273 In fact, in the 33 investigations and reviews cited by 
China, USDOC proceeded on the basis, since at least April 2007, that it had the authority to apply United States CVD law to imports from NME countries. It is altogether implausible that USDOC 
would have been able to do so in the face of a court order to the contrary. As the United States 
explained, if an administrative agency did not comply with a court order, it would be subject to severe sanctions.
274 China similarly referred us to a decision by a United States court of appeals 
which stated that "once a court has issued a legal ruling on a dispute, the Board [i.e. the National 
Labour Relations Board as one particular administrative agency] is bound to follow the court's judgment unless and until it is reversed by the Supreme Court".
275 According to China, USDOC is 
similarly bound by the CAFC's decisions "not just in  the specific case decided, but also in relation 
to other cases that raise the same issue of law".276  
7.174.  Despite the fact that these court decisions did not require USDOC to change or discontinue 
its relevant practice, it is useful briefly to address them. We start with the 1986 CAFC decision in 
Georgetown Steel , in which the CAFC upheld USDOC's decision not to apply CVD measures to NME 
countries.277 The parties agree that this decision was a final, unappealed decision, and was 
governing and controlling under United States law.278 However, the scope of the CAFC holding in 
Georgetown Steel  was the subject of disagreement in the United States throughout the period 
2006-2012279, and that disagreement was not resolved prior to the enactment of Section 1 by any 
                                               
272 In response to a question from the Panel, the United States noted that "Commerce has never been 
ordered or otherwise required by a U. S. court to change its approach of  applying the U.S. CVD law to NME 
countries on the grounds that such an approach was based on an incorrect interpretation of the law". 
(United States' response to Panel question No. 130; see also response to Panel question No. 95(a); comments 
on China's response to Panel question No. 91). The United States nonetheless drew attention to the fact that in one case, GPX III , USDOC was initially ordered by the CIT not to apply United States CVD law to certain 
imports from China due to a concern about the potential for overlapping anti-dumping and countervailing duty 
remedies. Specifically, the CIT stated that "Commerce fa iled to comply with the court's remand instructions. 
Commerce must forego the impositi on of the countervailing duty la w on the nonmarket economy ('NME') 
products before the court because its actions on remand clearly demonstrate its inability, at this time, to use 
improved methodologies to determine whether, an d to what degree double  counting occurs". ( GPX III  
(Exhibit CHI-04), pp. 6-7). The United  States added that this order was vacated on appeal by the CAFC. 
(United States' response to Panel question No. 130). 
273 The United States notes in this re gard that "there is no conclusive and authoritative interpretation by 
U.S. courts overturning Commerce's interpretation and directing a different treatm ent of those imports [from 
China]". (United States' or al statement at the second meeting with the Panel, paras. 14 and 23). The legal 
opinion submitted by the United States observes that USDOC had the authority to apply the CVD provisions to 
imports from China unless and until a Federal court said otherwise and was affirmed in a final decision on 
appeal. The opinion adds that this has not happened. (Expert report of Dean John Jeffries, para. 29 (Exhibit 
USA-115)). 
274 United States' response to Panel question No. 14. The United States  observed in this regard that 
"officials of the Department [of Commerce]  may be held in contempt of court,  and even jailed, if they were to 
fail to carry out such decisi ons [of reviewing courts]". (United States' or al statement at the first meeting of the 
Panel, para. 3).  
275 Vincent Indus. Plastics Inc. v. N.L.R.B ., 209 F.3d 727 (D.C. Cir. 2000) at 739 (Exhibit CHI-82). 
276 China's response to Panel question No. 69. China further stated that there are a variety of legal 
means available to interested parties to compel USDOC to comply with a CAFC decision. More specifically, 
China mentioned that interested parties can file suit dire ctly in the CIT, seeking a judicial order requiring the 
USDOC to take any necessary steps on the basis of the binding precedent set by the CAFC decision. (China's 
second written submission, fn. 20). 
277 Exhibit CHI-02.  
278 Parties' responses to Panel question No. 51. 
279 We note that the disagreement over the scope of the holding in Georgetown Steel  actually predates 
this period. For example, a 2005 GAO Report submitted by China states that "[s]ome legal experts have taken 
the position that Georgetown Steel merely upheld Commerce’s decision that it could not apply CVD law to NME 
countries, and that Commerce could therefore change its policy so long as the change could be defended as 
reasonable". (Exhibit CHI-16, p. 15).   WT/DS449/R 
- 66 - 
 
  decision of a United States court that was final, non-appealable, and governing and controlling 
under United States law. Throughout this pe riod, USDOC interpreted the CAFC decision in 
Georgetown Steel  as affirming USDOC's discretion to determine whether to apply countervailing 
duties to imports from NME countries, and not as a broader holding that United States CVD law did 
not apply to imports from NME countries. USDOC's interpretation of Georgetown Steel  was 
reflected in the notice of initiation280 and preliminary determination281 in the CFS Paper  
investigation that was initiated in 2006. Also, USDOC reiterated its interpretation of Georgetown 
Steel in a series of subsequent CVD determinations over the period 2006-2012.282  
7.175.  China also referred to the final countervailing duty regulations issued by USDOC to 
conform to the results of the Uruguay Round of multilateral trade negotiations, which date from November 1998. There, USDOC referred to its past practice of "not applying the CVD law to non-
market economies". It went on to say that the CAFC "upheld this practice" in Georgetown Steel , 
and noted that USDOC intended to continue to follow this practice.
283 In our view, the 
countervailing duty regulations from 1998 do not detract from what we have said about the 
holding in Georgetown Steel . As explained, that decision has been understood by USDOC to have 
left it within its discretion to determine whether in a given case United States CVD law could be applied to particular imports from NME countries.    
7.176.  In CFS Paper , the CIT appeared to accept USDOC's interpretation of Georgetown Steel , 
stating that "the Georgetown Steel court only affirmed Commerce's decision not to apply 
countervailing duty law to the NMEs in question in that particular case and recognized the continuing 'broad discretion' of the agency to determine whether to apply countervailing duty law 
to NMEs".
284 Subsequently, in GPX I , the CIT stated that it was "not clear" whether Georgetown 
Steel "was deferring to a determination of Commerce based on ambiguity in the statute or whether 
the Court held that there was only one legally valid interpretation of the statute"; the CIT further 
stated that "in a case of this type of ambiguity, that is, when we are not sure what the court 
meant", United States Supreme Court precedent established that "we are to read the case as deciding that the agency determination at issue did not conflict with the statute, not that a new 
agency reading, not before the court at the time, must be rejected".
285 Furthermore, in GPX II , the 
CIT recalled that "[t]he court previously noted that the leading case upholding Commerce's 
                                               
280 CFS Paper Initiation , 71 Fed. Reg. at 68,549 (USA-23) (stating that "[g]iven the complex legal and 
policy issues involved, and on the basis of the Department’s discre tion as affirmed in Georgetown Steel , the 
Department intends during the course of this investigation to determine whether the countervailing duty law 
should now be applied to imports from the PRC.") 
281 Coated Free Sheet Paper from the People's Republ ic of China: Amended Affirmative Preliminary 
Countervailing Duty Determination , 72 Fed. Reg. 17,484, 17,486 (Dep't of Commerce Apr. 9, 2007)  
(Preliminary Determination) (emphasis added) (USA-25) (concluding that "based on our assessment of the 
differences between the PRC’s economy today and the Soviet and Soviet-style economies that were the subject 
of Georgetown Steel Corp . v. United States , 801 F.2d 1308 (Fed. Cir. 1986), we preliminarily determine that 
the countervailing duty law can be applied to imports from the PRC.") 
282 See e.g. Issues and Decision Memorandum for the Final Results in the Countervailing Duty Review of 
Certain New Pneumatic Off-the-Road Tires from the People's Republic of China (April 26, 2011) (Exhibit CHI-27), pp. 5-6 (concluding that "[t]he Georgetown Steel  Court did not hold that the statute 
prohibited application of the CVD law to NMEs, nor did it  hold that Congress spoke to the precise question at 
issue. Instead, as explained above, the Court held that the question was within the discretion of the Department.") See also Exhibit CHI-28, pp. 12-13; Exhibit CHI-29, pp. 31-32; Exhibit CHI-31, pp. 33-34; Exhibit CHI-32, p. 61; Exhibit CHI-33, pp. 33-34; Exhibit CHI-34, pp. 38-39; Exhibit CHI-35, pp. 24-25; Exhibit CHI-36, p. 26; Exhibit CHI-38, pp. 35-37; Exhibit CHI-39, pp. 51-52; Exhibit CHI-40, pp. 30-31; Exhibit CHI-41, p. 16; Exhibit CHI-42, pp. 26-27; Exhibit CHI-43, pp. 43-44; Exhibit CHI-44, p. 34; Exhibit CHI-46, p. 43; Exhibit CHI-47, pp. 46-47; Exhibit CHI-48, pp. 31-32.   
283 Countervailing Duties: Final Rule, 63 Fed. Reg. 65348, 65360 (USDOC Nov. 25, 1998) 
(Exhibit CHI-14). 
284 CFS Paper  (Exhibit USA-28), p. 1282 (stating that "[a]lthough Plaintiffs allege that '[t]he CAFC has 
definitively ruled that the CVD law was not intended to be applied against NMEs' (Pls.' Prelim. Inj. Mem. 14), the Georgetown Steel court did not go as far as Plaintiffs claim an d find that the countervailing duty law is not 
applicable to NMEs, Georgetown Steel, 801 F.2d at 1318. Rather, the Georgetown Steel court only affirmed 
Commerce's decision not to apply countervailing duty law to the NMEs in question in that particular case and recognized the continuing 'broad discretion' of the agen cy to determine whether to apply countervailing duty 
law to NMEs. Id."). The CIT also stated that "it is not clea r that Commerce is prohibited from applying 
countervailing duty law to NMEs. Noth ing in the language of the countervailing duty statute excludes NMEs". 
(Ibid.) 
285 GPX I  (Exhibit USA-93), pp. 1289-1290, citing National Cable & Telecommunications Ass 'n v. Brand X 
Internet Services, 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). WT/DS449/R 
- 67 - 
 
  decision not to apply CVD remedies to imports from an NME country, Georgetown Steel Corp. v. 
United States, 801 F.2d 1308 (Fed.Cir.1986), is ambiguous".286   
7.177.  We are not persuaded that the decision in Georgetown Steel demonstrates that USDOC's 
practice, since at least April 2007, of applying United States CVD law to imports from China had, in 
effect, been judicially determined to be unlaw ful under United States law well before USDOC 
developed the practice. USDOC clearly considered  its practice to be consistent with the 
Georgetown Steel  decision. Also, the CIT, being a first-instance court required to follow the CAFC's 
decisions, concluded on at least three occasions that the holding in Georgetown Steel  was at the 
very least "ambiguous". Finally, at the time that Section 1 was enacted, there was no final court decision determining that USDOC's interpretation of Georgetown Steel  was impermissible. In these 
circumstances, we have no basis upon whic h to find that USDOC's interpretation of Georgetown 
Steel was incorrect as a matter of United States law.  
7.178.  China also finds significant the 2011 CAFC decision in GPX V .
287 There, the CAFC held that, 
contrary to USDOC's practice, it was not in accordance with United States law for USDOC to apply 
United States CVD law to imports from NME countries, including China.288 However, the CAFC 
issued no "mandate" in that proceeding.289 The reason why the CAFC did not issue a mandate is 
that following a request by the United States Government, the CAFC granted a rehearing.290 When 
Section 1 was enacted, the rehearing of the case was still pending. A mandate was finally issued in 
the GPX VI  decision.291 Relying on United States Supreme Court precedent292, the CAFC in GPX VI  
based its decision on the new Section 1, even thou gh the case was still pending on appeal at the 
time Section 1 entered into force.  
7.179.  In the United States' view, the fact that the CAFC issued no mandate means that the 
decision never became final293 and was of no binding legal effect.294 The United States considers 
                                               
286 GPX II  (Exhibit CHI-03), p. 1237. The court also observed that it "cannot say from the statutory 
language alone that Commerce does not have the au thority to impose CVDs on products from an NME-
designated country". (Ibid. p. 1240). 
287 We use the term "decision" in connection with the GPX V  case in the knowledge that the CAFC 
decision did not become final. In us ing that term, we express no view as  to whether the CAFC decision in GPX 
V constitutes a court "decision" within the meaning of Ar ticle X:3(b) of the GATT 1994. The United States has 
explained that in United States legal parlance, the terms "opinion" and "decision" are often used 
interchangeably. (United States' response to Panel question No.76).   
288 GPX V  (Exhibit CHI-06), p. 745. 
289 GPX VI  (Exhibit CHI-07), p. 1312; expert report of Professor Richard Fallon, para. 54 
(Exhibit CHI-83); expert report of Dean John Jeffries , para. 8 (Exhibit USA-115). The mandate documents the 
finality of a court's determination and remands the case to a lower court for further proceedings. (Expert report 
of Professor Richard Fallon, para. 54 (Exhibit CHI-83)).  The United States explained that the reason why 
Federal appellate courts do not issue opinions and mandates  at the same time is to permit parties to seek an 
appeal of an opinion with which they disagree. The United States further explained that if an appeal is filed, the 
mandate is stayed. (United States' response to Panel question No. 27). 
290 Referring to applicable Federal regulations, the legal expert opinion submitted by China indicates that 
the timely filing of a petition for rehearing en banc  or by the same panel of judges stays the mandate until 
disposition of the petition, except where the court orders  otherwise. (Expert report of Professor Richard Fallon, 
fn. 120 (Exhibit CHI-83)). In GPX VI , the rehearing was not conducted by the CAFC en banc , as originally 
requested by the United States Government, but by the same three-judge panel that heard the GPX V  case. 
(China's response to Panel question No. 68; second wr itten submission, para. 83; ex pert report of Professor 
Richard Fallon, paras. 13 and 50 (Exhibit CHI-83); United  States' response to Pane l question No. 68; oral 
statement at the second meeting with the Panel, para. 39).  
291 GPX VI  (Exhibit CHI-07), para. 1313. 
292 Plaut v. Spendthrift Farm , Inc., 514 U.S. 211, 226 (1995) (Exhibit USA-85). 
293 The United States notes that at the time Section 1 was enacted, the right of the parties to the GPX 
case to appeal had not been exhausted. (United St ates' responses to Panel Nos. 15(b) and 97(b)). The 
United States explained in this respect that if ther e had been no rehearing before the CAFC and the CAFC 
decision in GPX V  had become final, the parties would have had 90 days from the date the decision was issued, 
which was on 19 December 2011, to file a petition asking the United States Supreme Court to review the decision. (United States' respon se to Panel question No. 72). 
294 United States' responses to Panel question Nos.  15(c) and (e) and 27. The legal expert opinion 
submitted by the United States points out, correctly, that the same panel of CAFC judges that heard the GPX V  
case subsequently conducted a rehearing of the case in GPX VI , and there, the CAFC relied on a decision of 
another United States court of appeals which stated that an appellate court's decision is not final until its 
mandate has been issued. (Expert report of Dean  John Jeffries, paras. 7 and 9 (Exhibit USA-115); GPX VI  
(Exhibit CHI-07), p. 1312 (referring to Beardslee v. Brown , 303 F.3d 899, 901 (9th Cir. 2004)). WT/DS449/R 
- 68 - 
 
  that the decision in GPX V  has therefore no legal status under United States law.295 The legal 
expert opinion submitted by China accepts that the decision in GPX V  was not final during the 
subsequent pendency period for rehearing en banc , and that it did not conclusively determine the 
rights and obligations of the parties in that case.296 T h e  s a m e  o p i n i o n  a l s o  r e f e r s  t o  t w o  
United States court of appeals decisions whose correctness it describes as "reasonably disputable", 
however. The legal expert opinion argues that in view of these court of appeals decisions and the 
fact that the decision in GPX V  was not vacated297, a United States court could "very plausibly 
regard" the decision in GPX V  as having established and continuing to establish that 
Section 701(a) of the United States Tariff Act of 1930, prior to the enactment of PL 112-99, did not apply to imports from NME countries.
298 Ultimately, though, the opinion seeks to advance a 
"much narrower conclusion", which is that the CAFC in GPX VI  – the decision that the CAFC issued 
after granting and conducting a rehearing of the GPX V  case – "permissibly relied on the analysis 
in GPX V  to help it establish the prior state of the law" for purposes of determining whether 
Section 1 improperly interfered with the judicial function.299   
7.180.  For purposes of our analysis, we need not determine whether under United States law a 
United States court could justifiably rely on the decision in GPX V  to establish what the law was 
prior to enactment of Section 1.300 What matters is that USDOC was not legally required to adjust 
its relevant practice as a consequence of the CAFC decision in GPX V , be it in the GPX case itself or 
any other case. As indicated, the CAFC did not issue a mandate in GPX V  and its decision therefore 
never became final. Moreover, the decision in GPX V  did not result in any order to USDOC 
requiring it to adjust its practice or follow the CAFC's interpretation of United States CVD law in 
GPX V .301 Consequently, the decision in GPX V  in our view does not assist China in demonstrating 
that USDOC's practice has been judicially determin ed to be unlawful under United States law, such 
that USDOC had to change its practice of applying  United States CVD law to imports from China.  
                                               
295 United States' response to Panel question No. 75(b). The United States considers that the decision in 
GPX V  is not authoritative or precedential. According to the United States, the undisputed failure by the CAFC 
to vacate its decision in GPX V  does not mean that that decision is authoritative or precedential. The Panel 
notes in this regard that the concept of "vacation" under United States law relates to whether a court should withdraw an earlier opinion of the same or a lower cour t. (Expert report of Professor Richard Fallon, para. 51 
(Exhibit CHI-83)). The United States submits that, regardless of whether a de cision is formally vacated, when a 
panel of appellate court judges grants a rehearing, th e original decision loses any effect. (United States' 
responses to Panel question Nos. 97(b) and 120; second written submission, para. 30; oral statement at the second meeting with the Panel, para. 41). The legal expe rt opinion submitted by the United States observes 
along similar lines that although the CAFC did not vacate its decision in GPX V , the history of the case supports 
the conclusion that the decision in GPX V  was rendered inoperative and lost any effect when the CAFC granted 
a rehearing. (Expert report of Dean John Jeffries, paras. 10 and 15-16 (Exhibit USA-115) (referring to Key 
Enters. Of Del., In c. v. Venice Hosp ., 9 F.3d 893, 898 (11
th Cir. 1993)). 
296 Supplemental expert report of Professor Richard Fallon, para. 10 (Exhibit CHI-124). 
297 Expert report of Professor Richar d Fallon, para. 53 (Exhibit CHI-83).  
298 Ibid. paras. 53-56 (referring to Wedbush, Noble, Cooke, Inc. v. SEC , 714 F.2d 923, 924 (9th Cir. 
1983) and United States v. Gomez-Lopez , 62 F.3d 304, 306 (9th Cir. 1995); supplemental expert report of 
Professor Richard Fallon, para. 10 (Exhibit CHI-124). The legal expert opinion submitted by China also indicates that it is not "asserting that GPX V  had of its own force attained the status of a generally binding 
precedent prior to the issuance of the [CAFC's] decision in GPX VI ". (Supplemental expert report of Professor 
Richard Fallon, para. 10 (Exhibit CHI-124)).  
299 Supplemental expert report of Professor Richard Fallon, para. 11 (Exhibit CHI-124). Relying on 
another decision of a United  States court of appeals, the legal opinio n submitted by China also states that a 
court can take note "of even a formally vacated opinion for the limited purpose of identifying what the prior law 
was in order to gauge the effect of a newly enacted statute in changing or not changing the prior law". 
(Supplemental expert report of Professor Richard Fallon, para. 12 (Exhibit CHI-124) (referring to City of 
Chicago v. U.S. Dep't of the Treasury , 423 F.3d 777 (7th Cir. 2005); China's response to Panel question 
No. 96).  
300 We also need not determine whether the CAFC in GPX VI  relied on its decision in GPX V  to establish 
the prior state of the law in the United States. See para. 7.184. The legal expert opinions submitted by the parties come to different conclusions in this regard. (Expert report of Pr ofessor Richard Fallon, paras. 57-58 
(Exhibit CHI-83) (arguing that the CAFC in GPX VI  reasserted its holding in GPX V ); expert report of Dean John 
Jeffries, para. 18 (Exhibit USA-115) (arguing that the CAFC in GPX VI  did not reassert its holding in GPX V )). 
301 The United States confirmed this, stating that "Commerce was not ordered to and could not have 
implemented GPX V " and that the " GPX V  opinion never altered Commerce's approach of applying U.S. CVD 
law to the imports at issue – the Federal Circuit never or dered Commerce to do or ch ange anything in relation 
to those imports". The United States further stated that the decision in GPX V  "cannot be the basis for future 
cases involving similar facts or issues". (United States' oral statement at the second meeting with the Panel, para. 45; comments on China's response to Panel question No. 96; and second written submission, para. 30).  WT/DS449/R 
- 69 - 
 
  7.181.  Given that at the time of our review we have been made aware of no final court decision 
determining that USDOC's relevant practice or interpretation was unlawful and requiring USDOC to change its relevant practice, there is, under our analytical approach, neither a need nor a justification for speculating about what the CAFC on rehearing the case would have concluded 
regarding the lawfulness of USDOC's relevant practice, if Section 1 had not been enacted.
302 Nor 
will we try to anticipate the conclusion of ongoing judicial proceedings in the United States that may have a bearing on this question.
303  
7.182.  We observe that the panel in US – Shrimp (Article 21.5 – Malaysia) was confronted with a 
similar situation. In that dispute, the question was whether the panel should have taken account of the fact that a United States CIT decision, of wh ich it had taken note in its findings, was under 
appeal at the time of the panel's review. The Appellate Body stated in this respect that:   
It would have been an exercise in speculation on the part of the Panel to predict either 
w h e n  o r  h o w  t h a t  c a s e  m a y  b e  c o n c l u d e d ,  o r  t o  a s s u m e  t h a t  i n j u n c t i v e  r e l i e f  ultimately would be granted and that the United States Court of Appeals or the 
Supreme Court of the United States eventually would compel the Department of State 
to modify the Revised Guidelines. The Panel was correct not to indulge in such speculation, which would have been contrary to the duty of the Panel, under Article 11 
of the DSU, to make "an objective assessment of the matter … including an objective 
assessment of the facts of the case".
304 
                                               
302 China submitted a letter of 18 January 2012 from the US Secretary of Commerce and the US Trade 
Representative (USTR) to a Ranking Member of th e House Ways and Means Co mmittee wherein USDOC and 
USTR offered to "work with the Cong ress to enact specific legislation that would remedy the court's flawed 
ruling [in GPX V ]". (Exhibit CHI-12). China suggested that the letter indicates that, absent corrective legislative 
action, "Commerce will be required to revoke all CVD orders and terminate all CVD proceedings involving non-
market economy countries, including 24 existing CVD or ders on imports from China and Vietnam, as well as 
five pending investigations and two recently filed petitions". (Exhibit CHI-12). However, what the letter actually says is that "absent legislation, should the decision of the court [in GPX V ] become final", Commerce would be 
required to revoke the relevant orders. In our view , the letter does not perm it the inference that the 
United States' Government was of the vi ew that a further appeal – before th e CAFC in the form of a rehearing, 
or the United States Supreme Court – was highly unlike ly to be granted or, even if a further appeal were 
granted, was virtually certain to be unsuccessful, and that the only option to prevent the decision in GPX V  
from becoming binding was a legislative override. In fact, th e letter states, to the contrary, that judicial options 
were among those being reviewed because "we believe the court's decision misreads the CVD statute, precedent, and Congressional intent and historic bipartisan support of strong CVD laws. Notwithstanding the strength of our legal position, prompt legislative action is necessary to clarify the law and avoid harm from 
injurious, subsidized goods". (Exhibit CHI-12). We further recall that a petition for rehearing en banc was, of 
course, filed with the CAFC.  
China submitted another letter, dated 5 March 2012, from the Director of the Congressional Budget 
Office to the Chairman of the House Ways and Means Co mmittee. In it, the CBO explained that, "[a]s a result 
of the Federal Circ uit's decision [in GPX V ], CBO updated its projections of  revenues under current law to 
reflect the expectation that the Department of Commerce will stop imposing countervailing duties on goods 
imported from nonmarket economies." (Exhibit CHI-13). It  is sufficient to note in this respect that the 
United States' Government f iled a petition for rehearing with the CAFC on the same day. (Exhibit USA-43). It 
may be inferred from this that the comp etent services of the United States ' Government were not of the view 
that it was inevitable that revenues from the imposition of countervailing duties on  imports from NME countries 
would decrease as a result of the decision in GPX V . 
303 The United States pointed out that the GPX litigation is ongoing as to the determination of the 
constitutionality of PL 112-99 and resolution of vari ous methodological issues. The United States further 
observed that USDOC's interpretation of United States la w as permitting application of CVDs to China has been 
challenged, for instance, in  Guangdong Wireking Housewares & Hardware Co. v. United States , 900 F. Supp. 
2d 1362 (Ct. Int'l Trade 2013) (Exhibit USA-46), which is pe nding in the CAFC, and in ten cases still pending in 
the CIT. Finally, the United States noted that the issue whether the decision in GPX V  was an authoritative 
statement of the law prior to the passage of PL 112-99 had been raised by the plaintiffs before the CAFC in the 
pending Wireking  appeal. (United States' second  written submission, para. 37; oral statement at the second 
meeting with the Panel, paras. 20, 28-30; response to Panel question No. 96; comments on China's response 
to Panel question No. 91).  
304 Appellate Body Report, US – Shrimp  (Article 21.5 – Malaysia ), para. 95. The Appellate Body also 
stated that "[i]n response to our questions at the oral hearing, the United States confirmed that the 
Department of State has received no order from the CIT to change its practice , and, therefore, the Department 
of State continues to apply the Revised Guid elines as before". (Appellate Body Report, US – Shrimp  
(Article 21.5 – Malaysia) , para. 94 (emphasis added)). WT/DS449/R 
- 70 - 
 
  7.183.  Consistent with this guidance, our examin ation of the question of the lawfulness of the 
relevant USDOC practice takes account of the stat us of United States law in respect of this 
question, up until the time of our review of China's claim.305  
7.184.  The parties' submissions go into some detail about whether Section 1 simply confirmed, 
and made more explicit, what United States CVD law already provided (if correctly interpreted), or 
whether it added something that United States CVD law did not already contain.306 The former 
view is supported by the United States; the latter vi ew by China. In our view, it is not necessary to 
address, let alone to try to resolve, this issue which is still being litigated before United States 
courts.307 Even assuming that Section 1 added something to United States CVD law that it did not 
already contain308, and that it could be inferred from this that USDOC's relevant practice rested on 
an incorrect interpretation of United States CVD law as it stood at the time, this would not detract 
from the fact that, up until our review of China's claim, USDOC was not ordered by a United States 
court to modify or discontinue its relevant practice or interpretation.  
7.185.  In the light of the foregoing, it is clear to us that we have no basis for concluding that 
USDOC's relevant practice was unlawful under United  States law, because no United States court 
ordered USDOC to cease applying United States CVD law as it stood at the time to imports from China. To the contrary, the evidence before us suggests that this practice was presumptively 
lawful under United States law, as USDOC's interpretation of United States CVD law governed in 
the absence of a binding judicial determination indicating otherwise. This finding obviates the need for further analysis of whether we could rely on that practice in our Article X:2 inquiry if a United States court had determined it to be unlawful. 
7.186.  Based on the evidence before us, we thus come to the conclusion that between 
November 2006, or at least April 2007, and March 2012 there was an established and uniform practice by USDOC regarding "rates of duty" applicable to imports from China as an NME country, 
and that there is no basis on which to find that, under United States law as it stood at the time, 
USDOC could not lawfully develop and maintain that practice of applying rates of countervailing duty to imports from China.  
7.187.  The issue we turn to examine next is whether Section 1 effected an " advance  in a rate of 
duty or charge on imports under an established and uniform practice".
309 We recall at the outset 
our view that Section 1 relates to countervailing duties and that the term "duty" in Article X:2 covers countervailing duties. We further recall our finding above
310, in the context of our analysis 
of China's claim under Article X:1, that Section 1 pe rtains to "rates of duty". Accordingly, we must 
determine whether Section 1 has brought about ("effected") an increase ("advance") in rates of countervailing duty on imports from China as an NME country, relative to the rates of 
countervailing duty applicable to such imports under USDOC's prior established and uniform 
practice.   
                                               
305 The Appellate Body in US – Shrimp  (Article 21.5 – Malaysia ) stated that "[r]ightly, when examining 
the United States measure, the Panel took into account the status of municipal law at the time". (Appellate Body Report, US – Shrimp  (Article 21.5 – Malaysia ), para. 94). 
306 E.g. China's second written submission, paras. 52  and 63-68; expert repo rt of Professor Richard 
Fallon, paras. 26-46 (Exhibit CHI-83) and supplemental expert report of Pr ofessor Richard Fallon, paras. 15-26 
(Exhibit CHI-124); United States' oral statement at the second meeting with the Panel, paras. 33-36; comments on China's response to Pa nel question No. 97; expert report of Dean John Jeffries, paras. 19 and 
24-29 (Exhibit USA-115). 
307 Neither party suggested that this issue is a material one. China indicated that it does not consider 
the "change" versus "clarification" issue to be material. According to China, these characterizations are "nothing more than labels"; what matters, in its view, is whether Section 1 had the effects described in Article X:2. (China's response to Panel question No. 52; second written submission, paras. 60-61). The 
United States similarly states that "[ t]he question whether a new measure may be labelled as a 'clarification' or 
'change' in the Member's domestic law is, in the end,  not material to this inqu iry [regarding whether the 
challenged measure has effected or imposed a change th at is listed in Article X:2 on the treatment of the 
imports at issue]" and "is at best an academic exercise that does not help resolve the dispute". (United States' 
statement at the second meeting, para. 14; comments on China's response to Panel question No. 97; and responses to Panel question Nos. 52 and 119). 
308 The parties disagree, for instance, about whether the so-called "single entity" exception in Section 1 
was already contained in United States CVD law prior to the enactment of Section 1. (China's response to Panel 
question No. 91; United States' comments on China's response to Panel question No. 91). 
309 Emphasis added. 
310 See para. 7.56. WT/DS449/R 
- 71 - 
 
  7.188.  To reiterate, the new Section 701(f), which is added by Section 1(a) of PL 112-99, 
provides that, except in cases where countervailable subsidies cannot be identified or measured, countervailing duties must be imposed on imports from NME countries. Section 1(b) then provides that Section 701(f) applies to (i) all USDOC CVD proceedings initiated on or after 20 November 
2006, (ii) all resulting USCBP actions, and (iii) all Federal court proceedings relating to (i) or (ii). 
This means that as a consequence of Section 1(a), and the new Section 701(f) which it adds, USDOC as from 13 March 2012 was required to impose, in all CVD proceedings involving NME 
countries that were initiated between 20 November 2006 and 13 March 2012, countervailing 
duties, if any, at the rates that were warranted by  the application of (pre-existing) United States 
countervailing duty provisions to the imports at issue in each proceeding. It also means that in respect of any duties imposed at rates determin ed by USDOC, USCBP was required to take any 
resulting actions, and that Federal courts likewise were required to uphold any rates of duty 
lawfully imposed under United States countervailing duty provisions by USDOC in the context of relevant proceedings.  
7.189.  Having addressed the content of Section 1, we can proceed to compare the new rates of 
duty on imports of NME products resulting from Section 1 with the prior rates applicable under USDOC's established and uniform practice. In undertaking this comparison, it is important to 
remember that the United States countervailing duty provisions that the new Section 701(f) 
requires to be applied are the exact same United States countervailing duty provisions that USDOC applied to imports from China before the entry into force of Section 1. Hence, in respect of the relevant CVD proceedings, the new rates of countervailing duty applicable to imports from China 
as a consequence of Section 1, like the prior rates applicable under USDOC's established and 
uniform practice, were whatever rates of countervailing duty that were warranted by the application of United States countervailing duty provisions to such imports. Since the facts of the 
underlying CVD proceedings initiated between November 2006 and 13 March 2012 were not 
affected by the entry into force of Section 1, USDOC was neither required nor authorized by Section 1 to impose countervailing duties at rates that differed from the rates that USDOC 
established in these proceedings before Section 1 entered into force. Indeed, neither party 
suggested that following the entry into force of Section 1, USDOC proceeded to change any of the 
rates established in the context of the rele vant CVD proceedings. It follows from these 
considerations that, in respect of the relevant CVD proceedings, Section 1 did not bring about an 
increase, and thus did not effect an advance, in rates of countervailing duty on imports from China 
as an NME country. 
7.190.  Our finding that Section 1 did not effect an advance in a rate of duty is based on the fact 
that this provision maintained the same rates of duty that were already applied, pursuant to 
USDOC's established and uniform practice, prior to the enactment of Section 1. Our finding is the 
same irrespective of whether or not we conduct an assessment of the lawfulness of that practice 
under United States law, because there is no evidence in the record demonstrating that this 
practice was found to be unlawful, such that th e practice needed to be discontinued or changed 
before Section 1 was enacted.  
7.191.  For all the above reasons, we conclude that China has not established that Section 1 is a 
provision "effecting an advance in a rate of duty or other charge on imports under an established 
and uniform practice". 
7.5.2.2.2  Whether Section 1 imposes a new or more burdensome requirement, 
restriction, or prohibition 
7.192.  As the Panel does not agree with China th at Section 1 is a provision "effecting an advance 
in a rate of duty or other charge on imports under an established and uniform practice", it is 
necessary to examine whether Section 1 nevertheless falls within the scope of Article X:2 because 
it "imposes a new or more burdensome requirement, restriction or prohibition on imports". China considers that it does; the United States considers that it does not.  
7.193.  China contends that PL 112-99 "impos[es] a new or more burdensome requirement, 
restriction or prohibition on imports" insofar 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 notes that Section 1 of PL 112-99 amends section 701 of 
the United States Tariff Act to add a new subsection (f), the express purpose of which is "to apply 
the countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries". WT/DS449/R 
- 72 - 
 
  According to China, 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". In China's view, being subject to CVD investigations and procedures, as well as the actual imposition of countervailing duties, is a "requirement" or "restriction" on 
imports.
311   
7.194.  China further submits that this requirement or restriction is "new" and "more 
burdensome". According to China, this is evident not only from the text of the statute itself, but 
from the fact that this provision was enacted in direct response to the CAFC's holding in GPX V .  
China argues that the new subsection 701(f) that the statute creates was plainly intended to establish a new rule of law in response to the CAFC's decision that existing United States law did not permit the application of countervailing duties to imports from NME countries. China submits 
that it is this new rule of law that has been applied, and is being applied, to maintain the 
countervailing duty orders issued by Commerce prior to the enactment of this legislation. China therefore considers that Section 701(f) "impos[es] a new or more burdensome requirement, 
restriction or prohibition on imports", and that it is this new provision of law that provides the legal 
basis for the imposition and continued maintenance of countervailing duty orders on products from China. According to China, going from a situation in which imports were not subject to 
countervailing duty procedures to a situation in which they are subject to countervailing duty 
procedures is, without question, "new" and "more burdensome".
312  
7.195.  The United States observes that requirements, restrictions and prohibitions are different 
types of measures, and that China fails to explai n which of these three types China believes apply 
to PL 112-99, and how PL 112-99 imposes a requir ement, restriction, or prohibition. In the 
United States' view, PL 112-99 does not impose any requirement on imports subject to the relevant CVD investigations involving imports from China. The United States argues that CVD laws 
generally are not "restrictions" on imports; they establish the framework for the application, if any, 
of countervailing duties. The United States further argues that a CVD proceeding is not a "requirement" on imports, as it does not impose requirements or conditions on the importation of 
goods. The United States points out that in a CVD proceeding, all of the reviewed goods have 
already entered the importing country. The United States also considers, more specifically, that Section 1 of PL 112-99 is not a "restriction" on the imports subject to the CVD proceedings at issue. The United States submits that CVD laws do not restrict imports, but establish the 
framework under which any alleged subsidies might be investigated and any resulting 
countervailing duties might be imposed.
313     
7.196.  The United States considers, in addition, that China cannot show that PL 112-99 is "new" 
or "more burdensome" as compared to the situation faced by imports from China prior to the 
adoption of the measure at issue. The United States notes that the term "new" is defined as "not existing before" or "existing for the first time"
314, and that the term "more" is defined as "in a 
greater degree" or "to a greater extent"315. Thus, the United States maintains, 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 PL 112-99, or face a burden that is of a greater 
degree than prior to PL 112-99.
316   
7.197.  In the United States' view, Section 1 of PL 112-99 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 USDOC's interpretation of existing law for the purposes of resolving confusion in ongoing litigation. 
The United States observes that prior to the law's enactment, USDOC acted pursuant to its 
reasonable interpretation of the United States Tariff Act of 1930 to apply the United States CVD law to China when it could identify a countervailable subsidy in China, and so imports from China 
were already subject to the United States CVD law. Thus, according to the United States, PL 112-
99 did not impose any condition that had not existed before, nor did it impose a greater degree of burden on such imports. The United States also notes that none of the CVD proceedings cited in China's panel request have been disturbed by PL 112-99. The United States submits that PL 112-
                                               
311 China's first written submission, para. 76; first oral  statement, para. 39; response to Panel question 
No. 49; second written submission, para. 32. 
312 China's first oral statement, paras. 40-41; second written submission, para. 32. 
313 United States' first written submission, para. 100; second written submission, paras. 16 and 66-67. 
314 The Shorter Oxford English Dictionary  (1993), p. 1912.  
315 Ibid. p. 1829.  
316 United States' first written submission, paras. 110-111; first oral statement, para. 25. WT/DS449/R 
- 73 - 
 
  99 instead simply maintained the status quo for USDOC's existing approach and the existing CVD 
orders. The United States submits that, for these reasons, Section 1 does not impose any "new or more burdensome" requirements, restrictions or prohibitions, but rather maintains USDOC's existing approach.
317   
7.198.  The Panel notes that Section 1 falls within  the scope of Article X:2 only if two distinct 
conditions are met: (i) Section 1 must impose a "requirement" or "restriction"318 on "imports" and 
(ii) such requirement or restriction as it imposes must be "new" or "more burdensome". For 
purposes of assessing China's Article X:2 claim, it is convenient to begin our review with the 
second condition.  
7.199.  China argues that Section 1 subjects imports from NME countries to CVD investigations 
and procedures and to the actual imposition of  CVDs. According to China, Section 1 therefore 
imposes a "requirement" or "restriction" on imports. To examine whether the second condition 
mentioned in the preceding paragraph is met, we will assume for the sake of argument that China is correct in its view that Section 1 imposes either a "requirement" or a "restriction" on "imports" 
within the meaning of Article X:2 because it subjects imports from NME countries to CVD 
investigations and procedures and to the imposition of CVDs. 
7.200.  Turning to the issue whether Section 1 imposes a "new" or "more burdensome" 
requirement, we note the dictionary meaning of "new", which is "not existing before" or "existing 
for the first time", and also that of "more", which is "in a greater degree" or "to a greater extent".
319 The term "burdensome" is defined as "[o]f the nature of a burden, oppressive, 
wearisome".320 Taken together, these definitions indicate that a new or more burdensome 
requirement or restriction on imports is one that has not previously been imposed ("new") or one 
that is of the nature of a burden in a greater degree, or is onerous to a greater extent ("more 
burdensome"). The comparative form "more burdensome" implies that the measure imposing the 
requirement or restriction at issue must be examined with reference to a pre-existing requirement 
or restriction.  
7.201.  Like the parties, we consider that the analytical approach used to determine whether 
Section 1 imposes a "new" or "more burdensome" requirement or restriction should be the same 
as is used to determine whether Section 1 effects an advance in a rate of duty under an established and uniform practice. Otherwise, Members' obligations under Article X:2 with regard to enforcement of tax measures
321 and enforcement of regulatory measures could be different in 
scope, because, for instance, a tax measure might fall within the scope of Article X:2 when a 
comparable regulatory measure would not. 
7.202.  China submits that the Panel should follow  its suggested "prior municipal law" approach.322 
We have explained above when examining whether Se ction 1 effected an advance in a rate of duty 
under an established and uniform practice why we are not persuaded by China's approach. For 
essentially the same reasons, it is in our view neither necessary nor appropriate to follow China's 
approach to conduct a proper analysis of whether a "new" or "more burdensome" requirement or 
restriction has been imposed.323  
7.203.  Thus, and recalling also the reference to an established and uniform practice in the part of 
Article X:2 that relates to advances in rates of duty, we do not consider it appropriate, in the 
context of an analysis involving United States law, to pay no regard to a publicly known practice of 
agencies charged with administering a relevant requirement or restriction on imports. Indeed, Article X:2 does not indicate that account may be taken only of a relevant pre-existing 
requirement or restriction that is set out in explicit terms in a published measure of general 
application, but not of a requirement or restriction that results from, and reflects, an interpretation of such a measure adopted and publicly communica ted by an administering agency. Furthermore, 
                                               
317 United States' first written submission, paras. 113 and 115; oral statement at the first meeting with 
the Panel, para. 26; oral st atement at the second meeting with the Panel, para. 16. 
318 China does not contend that Section 1 is a "prohibition" on imports within the meaning of Article X:2. 
319 See the United States' argument at para. 7.196. 
320 The Shorter Oxford English Dictionary  (2002), p. 308. 
321 We note that, for instance, ordinary customs or co untervailing duties on imports are ultimately taxes 
on imports. 
322 See paras. 7.142 and 7.160. 
323 See notably paras. 7.163 and 7.164. WT/DS449/R 
- 74 - 
 
  Article X:2 is concerned, in relevant part, not with new or more burdensome requirements or 
restrictions per se , but with the "enforcement", or application, of the measure imposing them. In 
the light of this, it would be counterintuitive to proceed on the basis that it is irrelevant for 
analytical purposes how a measure containing a relevant pre-existing requirement or restriction 
has actually been applied. We agree that traders and governments develop expectations regarding 
any applicable requirements or restrictions on imports by taking into account a Member's published measures.
324 But we are unable to accept any notion that they develop their 
expectations without regard for the actual practice that is publicly known to have been adopted 
under those published measures by administering agencies such as USDOC.325 Finally, as regards 
the issue, raised by China, whether USDOC lawfully  applied a particular requirement or restriction 
that it considered was imposed under Section 701(a) before the enactment of Section 1, we once 
again proceed on the basis that it is potentially relevant and not inappropriate to address this 
issue. We also follow the same approach to establishing whether USDOC's practice prior to Section 1 was lawful under United States law.
326   
7.204.  We recall our earlier finding that between November 2006, or at least April 2007, and 
March 2012, USDOC applied United States CVD law as it stood at the time, and notably Section 701(a), to imports from China as an NME country, and it imposed CVDs on imports from 
China in various proceedings.
327 This indicates that as from at least 2007 and on the basis of the 
published United States CVD law then in force, USDOC subjected imports from China as an NME country to CVD proceedings and imposed CVD duties on  such imports. To the extent that it can be 
properly said (and we make no finding in this regard) that in doing so, USDOC subjected imports 
from China to a "requirement" or "restriction", as  China asserts, it is the same "requirement" or 
"restriction" that China says was subsequently imposed by the new Section 701(f) that Section 1 added to the United States Tariff Act of 1930. There is nothing surprising about this conclusion. 
Both before and following the enactment of Section 1, USDOC applied United States CVD law to 
imports from China as an NME country, and it did so pursuant to the same substantive and procedural provisions of United States CVD law, namely the "countervailing duty provisions" of the 
United States Tariff Act of 1930 to which the heading of Section 1 and its preamble refer.
328   
7.205.  As concerns the issue whether USDOC's practice was lawful under United States law, there 
is no need to repeat here what we have said above regarding the same issue.329 It is sufficient to 
recall what we have concluded, which is that the evidence before us suggests that USDOC's 
relevant practice was presumptively lawful under United States law.330 Thus, we need not examine 
whether we could rely for purposes of our Article X:2 analysis on a "requirement" or "restriction" if a United States court had determined its application by USDOC to be unlawful. 
7.206.  In the light of the foregoing, we consider that Section 701(f) does not impose a 
"requirement" or "restriction" on imports from China as an NME country that was not previously imposed on such imports by USDOC under its prior practice, since at least April 2007, of applying 
United States CVD law to imports from China. It follows that Section 701(f), and by extension 
Section 1, does not impose any "new" or "more burdensome" "requirement " or "restriction" on 
imports from China.  
7.207.  Having thus found that China has not demonstrated that Section 1 imposes a "new" or 
"more burdensome" requirement or restriction even if we accept China's contention regarding why 
and how Section 1 imposes a "requirement" or "restriction", it is unnecessary to go on and determine whether China is in fact correct in arguing that Section 1 imposes a "requirement" or 
"restriction" within the meaning of Article X:2. It is clear already at this juncture that Section 1 
does not fall within the category of measures of general application "imposing a new or more burdensome requirement [or] restriction".   
                                               
324 See China's argument at para. 7.142. 
325 It is not apparent to us, for instance, how at least from April 2007 traders and governments could 
have expected anything other than that, absent a cour t order to the contrary, USDO C would normally continue 
its changed practice with regard to application of US CVD law to imports from China as an NME country. 
326 See paras. 7.159 and 7.165.  
327 See para. 7.169; Exhibit USA-119. 
328 We recall in this context that neither party suggested that following, and in response to, the entry 
into force of Section 1, USDOC proc eeded to change any aspect of the CVD proceedings at issue that were 
initiated between 20 November 2006 and 13 March 2012. See also para. 7.189.  
329 See paras. 7.172-7.185. 
330 See para. 7.185. WT/DS449/R 
- 75 - 
 
  7.208.  For all these reasons, we conclude that China has not established that Section 1 is a 
provision "imposing a new or more burdensome requirement, restriction or prohibition on imports". 
7.5.2.3  Conclusion 
7.209.  Having regard to the foregoing, the Panel concludes that Section 1 does not meet the 
second element of its Article X:2 analysis. Although Section 1 contains a measure of general application taken by the United States, we are unable to agree with China that Section 1 falls 
within the scope of Article X:2. This is because we are not persuaded that Section 1 contains a 
provision that (i) effects an advance in a rate of duty or other charge on imports under an established and uniform practice, or (ii) impo ses a new or more burdensome requirement, 
restriction or prohibition on imports. 
7.5.3  Overall conclusion 
7.210.  In sum, the Panel has determined  the following: 
a. Section 1 has been "enforced" before its of ficial publication through Section 1(b) and 
relevant determinations or actions made or taken by the United States between 
20 November 2006 and 13 March 2012 in respect of imports from China;  
b. Section 1 is part of a United States law, and hence a "measure" taken by the 
United States, and contains a provision that is of "general application"; but  
c. S e c t i o n  1  d o e s  n o t  e f f e c t  a n  " a d v a n c e "  i n  a  r a t e  o f  d u t y  o r  o t h e r  c h a r g e  o n  i m p o r t s  
under an established and uniform practice, nor does it impose a requirement, restriction, or prohibition, on imports that is "new or more burdensome". 
7.211.  Whereas we thus agree with China that Section 1 has been enforced before its official 
publication, we are ultimately unable to agree with China that the prohibition laid down in Article X:2 against pre-publication enforcement cove rs Section 1. We therefore come to the overall 
conclusion that China has failed to establish its claim that the United States has acted 
inconsistently with Article X:2 in respect of Section 1. 
7.5.4  Dissenting opinion  
7.212.  I agree with my fellow panelists that Section 1 of PL 112-99 is a measure of "general 
application" (as explained in subsection 7.5.2.1 ab ove), and that it was "enforced" before it was 
officially published (as explained in subsection  7.5.1). However, my understanding of whether 
Section 1 of PL 112-99 "effect[s] an advance in a rate of duty or other charge on imports under an 
established and uniform practice, or impos[es] a new or more burdensome requirement, restriction 
or prohibition on imports" differs from that of the majority opinion of my fellow panelists. I therefore do not agree with the findings and co nclusions in subsections 7.5.2.2.1, 7.5.2.2.2, 
7.5.2.3 and 7.5.3 (specifically the conclusions set out in paragraph 7.210c)).  
7.213.  My analysis starts with ascertaining the meaning of "effecting". In this regard I note that 
dictionaries define this term as "to bring about, produce as a result, cause, accomplish".
331 I, like 
the majority opinion,  also agree with the panel in EC – IT Products  which interpreted the first part 
of that phrase – "effecting an advance in a rate of duty or other charge on imports" – to mean "of a type that 'bring[s] about an 'increase' in a rate of duty [or other charge on imports]".
332 Hence, 
we have to examine whether Section 1 of PL 112-99 caused or brought about an increase in a rate 
of duty or other charge on imports. We will also have to examine whether it imposed "a new or 
more burdensome requirement, restriction or prohibition on imports." 
                                               
331 E.g. Webster New World College Dictionary  (3rd Ed.) p. 432. See also Panel Reports, EC – IT 
Products , para. 7.1103 (referring to the Merriam-Webster Online Dictionary ), and Appellate Body Report, US – 
Upland Cotton , para. 435 (referring to The Shorter Oxford English Dictionary  in the context of observing that 
"Article 6.3(c) [of the SCM Agreement] does not use the wo rd 'cause'; rather, it states  that 'the effect of the 
subsidy is ... significant price suppres sion'. However, the ordina ry meaning of the noun 'effect' is '[s]omething 
... caused or produced; a result, a consequence'.") 
332 Panel Reports, EC – IT Products , para. 7.1107. WT/DS449/R 
- 76 - 
 
  7.214.  Such an examination must start with the legislative measure at issue, namely PL 112-99. 
In this regard, the Appellate Body has instructed panels examining the meaning of domestic law implicated in a WTO dispute to start with "the text of the relevant legislation or legal instruments", and for further support, in appropriate cases, to ex amine "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."
333 In the specific context of the comparison 
required by Article X:2, this entails a comparison  of the measure at issue with the prior municipal 
law (if any) that it replaces, amends, or otherwise supersedes. In this case, the relevant 
comparison is between the United States Tariff Act as it existed prior to the enactment of Section 1 of PL 112-99 and the United States Tariff Act as  it existed following the enactment and official 
publication of this new provision.  
7.215.  PL 112-99 is entitled "an act to apply  the countervailing duty provisions of the Tariff Act of 
1930 to nonmarket economy countries". Section 1 of the law, which is at issue here, is entitled "Application of Countervailing Duty Provisions to Non-Market Economy Countries". The section 
adds a subsection (f) to section 701 of the United States Tariff Act of 1930, providing that, except 
for a certain exception, "the merchandise on which countervailing duties shall be  imposed under 
subsection (a) includes a class or kind of merchandise imported, or sold (or likely to be sold) for 
importation, into the United States from a nonmarket economy country."
334 This is a new provision 
that did not previously exist in the United States Tariff Act of 1930. This legislation from 2012 then goes on and provides in subsection 1(b) that this new provision shall apply to all CVD proceedings "initiated on or after November 26, 2006."  
7.216.  It is therefore readily apparent from the text of the legislation itself that what Section 1 of 
PL 112-99 did was "to apply the countervailing duty provisions of the US Tariff Act of 1930 to nonmarket economy countries" and to do so in relation to events that occurred before its official 
publication. It is also readily apparent from the text of the law that prior to its enactment, the 
United States Tariff Act of 1930 did not apply to nonmarket economy countries. Otherwise, what was the purpose of the legislation if those prov isions already "applied" to imports from those 
countries? Section 1 of PL 112-99 thus effects an "advance in duties", namely an increase in 
countervailing duties that can be applied – and th at were applied in practice – to imports from 
NMEs, in that previously no such duties could be  applied (an effective rate of zero) and following 
the new law CVDs can and must be applied at the rates duly determined by USDOC.  I note in this 
regard how the United States itself characterized the effect of this law in a Letter Brief in Response 
to Court Order dated March 23, 2012: "the new statute requires that Commerce apply CVDs to imports from NMEs, including China".
335 And this new amendment to the law was made effective 
from a date preceding the official public ation of the amendment by several years. 
7.217.  PL 112-99 also imposed "a new or more burdensome requirement …. on imports". Being 
subject to CVD investigations is definitely a "requirement" that is imposed on imports. It is well 
known to anybody involved in this field that importers and exporters of the products under a CVD 
investigation are required to respond to lengthy questionnaires sent to them by the administering authorities of the importing country and to pr esent documents and other relevant evidence 
requested by such authorities.
336 If they refuse access to such documents, they run the risk that 
the administering authorities will base their dete rminations "on the basis of the facts available".337 
Such importers and exporters will usually need to retain legal and professional counsel to 
represent them in the CVD proceedings, to prep are responses and to appear in the various 
hearings scheduled by the authorities, all of which obviously imposes a significant financial burden. 
This requirement is "more burdensome" than bein g exempt from CVD proceedings, and it is also 
"new" to the extent that it did not exist in the absence of PL 112-99. Having said that, however, 
one should stress that under Article X:2 the requirement needs to be either "new" or "more 
burdensome", and does not have to fulfill both of these conditions in order to fall under the provision.  
7.218.  The new subsection 701(f)(2) of the United States Tariff Act of 1930 created by 
Section 1(a)(2) of PL 112-99 establishes an "exception" from the imposition of countervailing 
                                               
333 Appellate Body Report, US – Carbon Steel , para. 157.  
334 Exhibit CHI-01. (emphasis added) 
335 Exhibit CHI-10, p. 2. 
336 See Article 12 of the SCM Agreement. 
337 Article 12.7 of the SCM Agreement. WT/DS449/R 
- 77 - 
 
  duties for imports from countries in respect of which USDOC is "unable to identify and measure 
subsidies … because the economy of that country is essentially comprised of a single entity". No such exception previously existed anywhere in the United States Tariff Act of 1930. If the general countervailing duty provisions of the United States Tariff Act of 1930, as set forth in 
Section 701(a), previously applied to imports from nonmarket economy countries, then this new 
exception would have been the only substantive change that was required. In that case, the United States Congress could simply have enacted the exception created by Section 1(a)(2) and 
codified it under Section 701(a). Instead, the United States Congress enacted a new subsection, 
701(f), aimed at applying the countervailing duty pr ovisions of the United States Tariff Act of 1930 
to imports from NME countries, and it codified the exception in this new subsection. This reconfirms the above conclusion that the application of CVDs to imports from NME countries is an 
entirely new subject under the United States Tariff Act of 1930. The new Section 701(f) establishes 
an affirmative rule (the duty to apply countervailing duties to imports from NMEs) and an exception to that rule, all in its own subsection.  
7.219.  In an attempt to rebut this conclusion, the United States argues that Section 1 of 
PL 112-99 was nothing more than a "clarification" of the United States Tariff Act of 1930 as it always existed. It was a law that "confirmed" that USDOC always had the legal authority to apply 
the countervailing duty provisions of the United  States Tariff Act of 1930 to imports from NMEs.
338 
China disputes this assertion and argues that th ere is no basis whatsoever in the text of the 
legislation itself or in any of the surrounding circumstances to support this assertion.  
7.220.  It is questionable whether the United States assertion regarding the clarifying nature of 
PL 112-99 is capable of changing the conclusion that this is legislation "effecting an advance in a 
rate of duty". Even assuming, arguendo,  that PL 112-99 only clarified the law, it did have the 
effect – in the words of th e United States – of "superseding" the decision of the  Federal Circuit, in 
GPX V "by amending … the CVD statute such that it expressly, and retroactively, requires 
Commerce to impose CVDs to NME imports".339 Since the CAFC, in GPX V  had found that USDOC 
did not have the authority to impose CVDs on NME countries, and if this ruling had become binding 
– again in the words of the United States – "Co mmerce [would have been] required to revoke all 
CVD orders and terminate all CVD proceedings involving non-market economy countries"340, the 
new legislation clearly had an effect on these CV D orders. Its effect was to enable the continued 
imposition of the CVD duties that had originally be en imposed before the official publication of the 
law, including on products imported before such publication. Furthermore, even according to the 
United States' position, while USDOC had the authority to impose CVDs on products from NME countries, they certainly were not required to do so.
341 That situation was changed by PL 112-99 
which imposed an obligation to do so ("counterva iling duties shall be imposed") and applied it 
retroactively to proceedings initiated on or after 20 November 2006.  
7.221.  In any case, I do not find the United States' assertion about the clarifying nature of 
PL 112-99 persuasive. I reach this conclusion after having followed the Appellate Body's instruction 
to examine "evidence of the consistent application of [United States CVD laws], the pronouncements of domestic courts on the meaning of such laws, the opinions of legal experts and the writings of recognized scholars."
342 
7.222.  Starting with evidence of the consistent application of United States CVD laws, I note the 
pronouncement of USDOC itself in its countervailing duty regulations, as published in the Federal Register in 1998, about its practice:   
In this regard, it is important to note here our practice of not applying the CVD law to 
non-market economies. The CAFC upheld this practice in Georgetown Steel Corp. v. 
United States , 801 F.2d 1308 (Fed. Cir. 1986). See also GIA at 37261. We intend to 
continue to follow this practice. Where the Department determines that a change in 
                                               
338 See e.g. United States' first written submission, paras. 56, 106; United States' responses to Panel 
question No. 26, para. 37; Panel question No. 58, para. 151; Panel question No. 64(a), para. 154.   
339 Defendant-Appellant United States' Motion to Recall and Amend (May 21, 2012) (Exhibit CHI-26), 
p. 3.   
340 Letter from the Secretary of Commerce and the U. S. Trade Representative to the Chairman of the 
House Ways and Means Committee (January 18, 2012) (Exhibit CHI-12).   
341 See para. 7.215. 
342 Appellate Body Report, US –Carbon Steel , para. 157. WT/DS449/R 
- 78 - 
 
  status from non-market to market is warranted, subsidies bestowed by that country 
after the change in status would become subject to the CVD law.343 
If Section 1 of PL 112-99 was merely a clarification of existing law, which did not change 
United States law or make it stricter towards imports from NMEs, this would mean that USDOC 
was always under an obligation to impose CVDs on subsidized goods from NMEs. That this was not 
the case can be seen clearly from the above pronouncement by USDOC. Clearly, if USDOC was under such a legal obligation it could not have followed a "practice of not applying the CVD law to 
non-market economies." 
 7.223.  I now proceed to examine "the pronouncements of domestic courts on the meaning of [United States CVD] laws", prior to the passing of PL 112-99. I start my examination with the 
judgment of the CAFC, in Georgetown Steel Corp. v. United States .
344 In this case, the appellant 
challenged USDOC's position that it was not authorized under United States law to impose CVDs on imports from NME countries because the relevant section in the United States Tariff Act of 1930 
did not apply to such imports. As explained by the court in its opening statement: 
The substantive issue in this case, here on appeal from the Court of International 
Trade, is whether the countervailing duty provisions in section 303 of the Tariff Act of 
1930, as amended, 19 U.S.C. § 1303 (1982), apply to alleged subsidies granted by 
countries with so-called nonmarket economies for goods exported to the United States. The International Trade Administration of the Department of Commerce (Administration) held that section 303 does not apply to nonmarket economies.
345 
It is hence clear that USDOC itself did not consider itself at the time authorized to apply CVDs on 
NMEs. This is so, because if the countervailing duty provisions of United States law, as it then was, did not apply to NMEs, that means that USDOC had no legal authority to impose such duties on 
NMEs. The court then went on to define the legal question that it had to rule on:  
 
In other words, we must determine, as be st we can, whether wh en Congress enacted 
the countervailing duty law in 1897 it would have applied the statute to nonmarket 
economies, if they then had existed.
346 
The court reached the conclusion that Congress would not have done so, and in the many years 
that passed since 1897 never wanted to do so (i.e., apply CVD law to NMEs): 
 
Further support for our conclusion is furnished by the more recent actions of Congress in dealing with the problem of export s by nonmarket economies through other 
statutory provisions. Those statutes indicate that Congress intended 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 those statutes, or their legislative 
history, that Congress intended or understood that the countervailing duty law also 
would apply.
347 
The court then discussed the 1974 amendments to the CVD laws and noted: 
 
There is no indication, however, that in doing so Congress intended to change the 
scope of that law or believed that it covered nonmarket economies. If Congress had so intended or believed, it is curious that the legislature gave no such indication, 
particularly in view of the specific changes it made in the antidumping law to deal with 
the problem.
348 
                                               
343 Countervailing Duties: Final Rule, 63 Fed. Reg. 65348, 65360 (USDOC Nov. 25, 1998) 
(Exhibit CHI-14). 
344 Georgetown Steel (Exhibit CHI-02). 
345 Ibid.  p. 1309. 
346 Ibid.  p. 1314. 
347 Ibid. p. 1316. 
348 Ibid. WT/DS449/R 
- 79 - 
 
  The court concluded its analysis with the following statement: 
 
Congress … has decided that the proper method for protecting the American market against selling by nonmarket economies at unreasonably low prices is through the 
antidumping law. This law is designed to protect domestic industry from injury 
resulting from the sale in the United States of foreign merchandise that is priced below its fair value, and provides a remedy therefor in 19 U.S.C. § 1677b(c). If that 
remedy is inadequate to protect American industry from such foreign competition — a 
question we could not possibly answer — it is up to Congress to provide any additional remedies it deems appropriate.
349 
This judgment is a final and binding decision, and as can be seen by the pronouncement of USDOC 
published in the Federal Register,350 USDOC itself saw it as such and based its practice of not 
applying CVDs on imports from NMEs on this judgment. Indeed, the parties agree that this decision was a final, unappealed decision, and wa s governing and controlling under United States 
law.
351 
 7.224.  Several years later, the CAFC, was again seized with the same issue, this time in a 
challenge against USDOC, which had decided to change its practice and to conduct CVD 
proceedings against imports from China, notwithstanding that the United States continued to designate China as an NME country. USDOC did so, starting from 2006, although the relevant CVD legislation had not been changed yet by Congress. In its judgment in GPX V
352 from 2011, the 
Court of Appeals confirmed its previous judgment in Georgetown Steel  and held: 
[W]e find that when amending and reenacting countervailing duty law in 1988 and 
1994, Congress legislatively ratified earlier consistent administrative and judicial 
interpretations that government payments cannot be characterized as "subsidies" in a 
non-market economy context, and thus that countervailing duty law does not apply to NME countries.
353 
It went on to hold: 
 
We thus find that in amending and re-enacting the trade laws in 1988 and 1994, Congress adopted the position that countervailing duty law does not apply to NME 
countries. Although Commerce has wide discretion in administering countervailing 
duty and antidumping law, it cannot exercise  this discretion contrary to congressional 
intent. We confirm the holding of the Trade Court that countervailing duties cannot be 
applied to goods from NME countries. 
Hence, the CAFC rejected the argument by the Unit ed States administration that the United States 
Tariff Act permitted USDOC to impose countervailing duties on imports from nonmarket economy 
countries if it was "possible to identify a subsidy" in such countries. The court concluded by stating 
that if USDOC wished to impose countervailing duties on imports from NME countries, "the appropriate approach is to seek legislative change".
354 I t  w a s  o n  t h i s  b a c k g r o u n d  t h a t  t h e  
United States authorities did in fact turn to Co ngress and requested it to adopt PL 112-99, which 
as noted above is entitled "an act to apply  the countervailing duty provisions of the Tariff Act of 
1930 to nonmarket economy countries".    
7.225.  It should be noted that these are two judgments by the most superior courts in the 
United States ever to examine this issue. They have both ruled loud and clear that prior to the 
passing of PL 112-99, United States countervailing duty law did not apply to imports from NMEs. 
Also the CIT had previously ruled in several decisions that USDOC could not impose CVDs on 
products from China.
355 We can therefore safely conclude that PL 112-99 did not "clarify" an 
                                               
349 Georgetown Steel (Exhibit CHI-02), p. 1318. 
350 See fn. 343. 
351 Parties' responses to Panel question No. 51. 
352 GPX V  (Exhibit CHI-06).  
353 Ibid.  p. 734. 
354 Ibid.  p. 745.  
355 To be precise: the United States Court of Intern ational Trade had initially determined that USDOC's 
imposition of CVDs was based on an unreasonable interpretation of the United States Tariff Act of 1930, as amended, unless USDOC developed a methodology to ensu re that goods covered by  concurrent AD and CVD WT/DS449/R 
- 80 - 
 
  existing legal situation, but rather changed the law from one under which countervailing duties 
could not be imposed on imports from NMEs to one where USDOC not only could, but also is 
obliged to do so. This conclusion is also confirmed by the opinion of the legal expert Prof. Richard Fallon.
356  
7.226.  The majority opinion attributes significant weight to the fact that the Court of Appeals' 
decision in GPX V  never became a final binding judgment and that "USDOC [never] received an 
order from a United States court to either change or discontinue its practice of applying 
United States CVD law to imports from NME countries, or to give a different interpretation to 
United States CVD law.357 In my opinion, whether the GPX V  decision became final or not is 
immaterial. It was never overturned by a higher United States court. Rather, it was prevented from becoming final through the actions of USDOC,  which heeded the advice of the court "to seek 
legislative change". To claim that no change has occurred - after "a legislative change" was sought 
and effected -  is a contradiction in terms. The significance of the GPX V  decision is that it provides 
us with an authoritative interpretation of what United States law was prior to the enactment of 
PL 112-99. The United States agrees that the Georgetown Steel decision by the CAFC was a final 
and binding judgment, but argues that this deci sion is ambiguous and can be interpreted to 
support USDOC's practice between 2006 and 2012. But who could be more authorized to interpret 
the meaning of this judgment by the CAFC than the CAFC itself? In fact, the United States has not 
presented us with any other United States court de cision, especially not by a United States court 
at a similar or higher level that upheld USDOC's practice of applying CVDs on products from China before the enactment of PL 112-99. Not even in the expert opinion submitted by the 
United States, written by Prof. John Jeffries
358, can one find any support to the clarification theory 
advanced by the United States. The facts of this case therefore lead to the inevitable conclusion 
that it was PL 112-99 that enabled the imposition of CVDs on products from China.  
7.227.  I have thus concluded that the effect of PL 112-99 was to authorize and obligate the 
imposition of CVDs on imports from NMEs and that this was done retroactively on proceedings initiated on or after 20 November 20 2006. This re confirms my previous conclusion that Section 1 
of PL 112-99 effects an "advance in duties", namely an increase in countervailing duties that can 
be applied – and that were applied in practice – to NMEs, in that previously no such duties could be applied (an effective rate of zero) and following the new law, CVDs can be applied at the rates duly determined by USDOC. Since this advance wa s effected prior to the official publication of 
PL 112-99 (namely in relation to proceedings initiated on or after 20 November 20 2006, although 
the official publication was in 2012), it amounts to a violation of Article X:2. 
7.228.  In the course of the pleadings, the parties have devoted considerable attention to the 
question of what the relevant baseline of comparison is under Article X:2 in order to determine 
whether a certain measure of general application adva nces (i.e., increases) a rate of duty. In other 
words: to what does one compare the new rate of duty, effected by the measure, in order to 
determine whether it amounts to "an advance"? China considers the relevant baseline to be  prior 
municipal law of the importing Member, properly determined  as a question of fact .
359 China 
submits that this law should be determined based on how it is reflected in the importing Member's previously published measures of general application, including judicial decisions interpreting those 
laws and regulations. The United States, in contrast, considers the relevant baseline to be the 
existing approach followed by the administrative agency, provided that it is "a measure of general application".
360 The United States notes, however, that th ere is no singular approach to determine 
                                                                                                                                               
orders would not be subject to overlapping remedies. ( GPX Int'l Tire Corp. v. United States , 645 F. Supp. 2d 
1231, 1251 (CIT 2009) (" GPX II ")). Upon remand, USDOC informed the court that it did not have a method for 
identifying any overlapping remedies, and therefore, it  decided under protest to offset AD rates by the 
calculated CVD rates. ( GPX Int'l Tire Corp v. United States , 715 F. Supp. 2d 1337, 1345 (CIT 2010) (" GPX 
III")). Because this was considered by the court to be contrary to law and rendered  the CVD investigation and 
resulting duties meaningless, the cour t ordered USDOC to forgo the impositi on of CVDs in the case at hand. 
(Ibid. p. 1354.) Under protest again, USDOC complied, and the CIT issued final judgment sustaining that 
determination. ( GPX Int'l Tire Corp. v. United States , Slip Op. 10–112, 2010 WL 3835022 (CIT Oct. 1, 2010) 
("GPX IV ")). This decision was appealed to the CAFC. The CA FC's decision on appeal is discussed in the text 
above. 
356 Expert report of Professor Ri chard Fallon (Exhibit CHI-83). 
357 See para. 7.172. 
358 Expert report of Dean John Jeffries (Exhibit USA-115). 
359 China's second written submission, para. 20. 
360 United States' response to Pa nel question No. 95, para. 19. WT/DS449/R 
- 81 - 
 
  the relevant baseline for an Article X:2 analysis that must be followed in each and every dispute. 
According to the United States, the determination sh ould be based on the totality of the evidence 
of how the imports were treated before and after the publication of the measure at issue.361  
7.229.  My own view on the proper baseline is so mewhat different from both of these suggestions. 
Rather, I am of the opinion that in order to determine whether "a measure of general application" 
has "effect[ed] an advance in a rate of duty or other charge on imports", we need to compare the rate of duty effected by such measure to the rate that would exist in its absence.
362 This is how we 
would ascertain the "effect" of the measure. Applied to our case, this would entail a comparison of 
the rate (or rates) of duty introduced by Section 1 of PL 112-99 to the rate (or rates) of duty that 
would exist if Section 1 of PL 112-99 had not been  passed by the United States Congress. This is 
so, because whenever one is examining what a certain measure "caused" or "brought about", one 
compares the situation introduced by such a measure to the situation that would exist in its 
absence. Thus, if one says, for instance, that "the latest amendment of the tax legislation effected an increase in the tax rate", it means that if it was not for the latest amendment of the tax 
legislation, the tax rate had not been increased. This is in line with the general principle of 
ascertaining causation in law which is based on the "but for" principle, or in its Latin term causa  
sine qua non .
363  
7.230.  In order to apply this test to the facts of this case, we need to ask ourselves what would 
have happened if the United States Congress had refused to pass PL 112-99, or if for any other reason Section 1 of PL 112-99 had not become a binding law within the United States legal system. The answer to this question is quite ap parent and was provided by the United States 
Secretary of Commerce and the United States Trade Representative in their letter to Congress 
explaining the importance of passing PL 112-99. In this letter, dated 18 January 2012, they write: 
[a]bsent legislation, should the decision of the court [in GPX V ] become final, 
Commerce will be required to revoke all CVD orders and terminate all CVD 
proceedings involving non-market economy countries, including 24 existing CVD orders on imports from China and Vietnam, as well as five pending investigations and 
two recently filed petitions.
364 
7.231.  In other words, absent legislation the decision of the CAFC in GPX V  was likely to become 
final, and in such case USDOC would be required to revoke all CVD orders and terminate all CVD proceedings involving non-market economy countries, including those covered by this dispute. 
Thus, the rates of those countervailing duties would go from whatever rates they were set at by 
USDOC in each of the investigation at issue to zero (i.e. the countervailing duty rate in the absence of any legal basis to impose countervailing duties). But since Congress did in fact pass 
PL 112-99, the existing CVDs were legalized retroactively and did not have to be revoked. Thus 
the effect of PL 112-99 was to maintain counterva iling duties on imports from NMEs that otherwise 
would have had to be revoked. PL 112-99 thus ca used an increase, i.e., "an advance", in these 
duties from zero to certain rates that were higher, and in most cases significantly higher, than 
zero.  
7.232.  This effect can also be seen clearly from what happened when the case was brought back 
to the CAFC, following the passage of PL 112-99. When the United States motioned the CAFC to 
                                               
361 Ibid.   
362 China appears to allude to this approach in its response to Panel question No. 52. In the context of 
responding to the United States assertion that Section 1 was merely a "clarification", China states that "within 
this narrative, however, the United States cannot help but admit that the enactment of P.L. 112-99 had a substantive effect – to 'affirm' the USDOC's 'approach' and to ensure that the United States Tariff Act would be 
applied 'in accordance with Commerce's interpreta tion, not that of the U.S. Federal Circuit in GPX V '.  In so 
doing, section 1 of P.L. 112-99 ensured that 27 countervailing duty investigations in respect of Chinese products could now be considered lawful and that the re sulting countervailing duty orders imposed on Chinese 
products would remain in place, when otherwise the US DOC would have been required to revoke these orders 
in accordance with the Federal Circuit's decision in GPX V ." (China's response to Panel question No. 52, 
para. 101).  
363 Black's Law Dictionary  (5th Ed.), p. 1242. See also Stroud’s Judicial Dictionary of Words and Phrases  
(8th ed.), p. 881, entry "effect": "The  'effect' of a cause, is  anything which would not have happened but for 
that cause".   
364 Letter from the Secretary of Commerce and the Unit ed States Trade Representative to the Chairman 
of the House Ways and Means Committee (January 18, 2012) (Exhibit CHI-12).   WT/DS449/R 
- 82 - 
 
  amend and repeal its previous judgment, it described the effect of PL 112-99 as: "superseding" 
the decision of the Federal Circuit in GPX V "by amending … the CVD statute such that it expressly, 
and retroactively , requires Commerce to impose CVDs to NME imports".365 Hence, USDOC itself 
described PL 112-99 as effecting a change in United States CVD law and introducing a new 
requirement that "retroactively requires Commerce to impose CVDs to NME imports". Clearly, a 
retroactive imposition of duties, that is, one that takes effect prior to its official publication, is precisely what Article X:2 prohibits.
366  
7.233.  In response to this motion, the Court of A ppeals issued its decision on rehearing in which it 
considered the implications of PL 112-99. The Court noted that Section 1 of this new law "applies retroactively" to "(1) all proceedings initiated under  subtitle A of title VII of [the Tariff Act of 1930] 
on or after November 20, 2006; (2) all resulting actions by United States Customs and Border 
Protection; and (3) all civil actions, criminal pr oceedings, and other proceedings before a Federal 
court relating to [those] proceedings."
367 The court then went on to note the ruling of the 
United States Supreme Court Plaut v. Spendthrift Farm, Inc.368 according to which "[w]hen a new 
law makes clear that it is retroactive, an appellate court must apply that law in reviewing 
judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly." On this basis, the Court of Appeals held that it was required to apply the 
new law retroactively, even though the court had previously held in GPX V that the United States 
laws in effect at the time of the underlying countervailing duty investigation did not allow USDOC to apply countervailing duties to imports from NME countries.
369 Hence, the Court in effect 
overturned its own decision which would have led to, as explained by the United States Secretary 
of Commerce and the United States International Trade Representative,370 a revocation of all CVD 
orders and termination of all CVD proceedings involving NMEs. It is undisputed that it was PL 112-99 that effected this change in the Court' s ruling, the result of which was to prevent such a 
revocation. Thus, in effect, PL 112-99 authorized the imposition of countervailing duties on 
products that had already been imported into the United States prior to the official publication of the law, and retroactively legalized CVD proceedin gs that had taken place in the approximately 
five-year period preceding this official publication (i.e., between 20 November 2006 and 
13 March 2012). In my view this clearly amounts to an advance, i.e., an increase, in the rates of 
countervailing duties, and one which is effected before PL 112-99 was officially published. As 
explained above,
371 it also amounts to "imposing a new or more burdensome requirement … on 
imports". 
7.234.  In reaching this conclusion I am guid ed by the holding of the Appellate Body in US – 
Underwear .372 There the Appellate Body explained the nature and objective of Article X:2: 
Article X:2, General Agreement , may be seen to embody a principle of fundamental 
importance - that of promoting full disclosure of governmental acts affecting Members and private persons and enterprises, whether of domestic or foreign nationality. The 
relevant policy principle is widely known as the principle of transparency and has 
obviously due process dimensions. The essential implication 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. 
7.235.  When an amendment of a law is applied retr oactively, that is, to events and importations 
of goods that occurred before the adoption and o fficial publication of this amendment, and when 
such amendment imposes "a restraint, requirement or other burden" (such as the application of CVD procedures and countervailing duties), Member States and persons affected by such 
measures (for instance, exporters and importers) do not have a reasonable opportunity to acquire 
                                               
365 Defendant-Appellant United States' Motion to Recall and Amend, p. 3 (May 21, 2012) 
(Exhibit CHI-26). (emphasis added) 
366 See e.g. Appellate Body Report, US – Underwear , p. 21 and the discussion below, para. 7.223. 
367 GPX VI  (Exhibit CHI-07), p. 1310. 
368 Plaut v. Spendthrift Farm, Inc ., 514 U.S. 211, 226, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). 
369 As explained above in para. 7.223 of this opinion. 
370 Letter from the Secretary of Commerce and the Unit ed States Trade Representative to the Chairman 
of the House Ways and Means Committee (January 18, 2012) (Exhibit CHI-12). 
371 See para. 7.217. 
372 Appellate Body Report, US – Underwear , p. 21.  WT/DS449/R 
- 83 - 
 
  authentic information about such a measure. Since in the years prior to the passage of PL 112-99 
there was no way of knowing if such law would be passed by Congress and what its contents 
would be, the importers and exporters of products from NME countries could not possibly have had any reasonable opportunity at the time to acquire authentic information about this measure or to 
adjust their activities in view of it. I theref ore reach the conclusion that such a retroactive 
application of PL 112-99 is in violation of Article X:2. 
7.236.  In order to complete my analysis of Article X:2, I also need to explore the meaning of the 
words "under an established and uniform practice". These words, based on their location in the 
sentence, seem to relate to the framework under wh ich the "advance in the rate of duty or other 
charge on imports" has been effected. In other words, the provision requires that the advance in the rate of duty or other charge on imports has been effected within the framework of ("under") 
"an established and uniform practice". In EC – IT Products the panel reached the conclusion that 
"uniform practice", in its context, refers to the similar application of a measure in the whole customs territory of a Member.
373 As for the term "established", the panel noted that the ordinary 
meaning of "established" is "[i]nstitute[d] or or dain[ed] permanently by enactment or agreement" 
or "set up on a permanent or secure basis". "Accordingly, "established" entails an element of duration. Hence, under Article X:2, measures must be of a type that effect an advance in a rate of 
duty under an established and uniform practice, which means that the advance in a rate of duty 
must be applied ("practice") in the whole custom s territory ("uniform") and its application should 
be on a secure basis ("established")."
 374 I agree with this interpretation. Applied to our case, we 
need to examine whether the measure at hand – namely Section 1 of PL 112-99 – was applied in 
the whole customs territory of the United States an d on a secure basis. From the evidence before 
us, I can conclude that the answer is yes. Since CVD proceedings are conducted by the United States Federal administration and countervailing duties are imposed and collected by the 
United States Federal administration, they are applied in the whole customs territory of the 
United States, and they are applied on a secure and established basis. In this context I recall that PL 112-99 imposes an obligation to impose CVDs on imports from NMEs fulfilling the conditions for 
such duties. Thus, one can safely presume that USDOC fulfills its obligation under United States 
Law and that the required CVDs are applied on a se cure basis. Put slightly differently, one can say 
that the imposition of CVDs on NME countries effected by PL 112-99 is pursuant to an "established and uniform practice" because it is required in each instance ("uniform") and it is done within the 
framework of an "established… practice", namely the United States countervailing duty 
procedures.  
7.237.  My fellow panelists are of the opinion "that the term 'under an established and uniform 
practice' serves to define the relevant prior rate that is to be used to establish whether or not an 
advance in a rate has been effected."
375 From this reading they therefore conclude "that the 
relevant comparison contemplated by Article X:2 is between the new rate effected by the measure 
at issue and the rate that was previously applicable under an established and uniform practice"376. 
I respectfully disagree. Like the panel in EC – IT Products, I understand the words "under an 
established and uniform practice" to relate to the "measure of general application" which effects an advance in a duty etc.
377 These words describe  the measure of general application in the sense 
t h a t  " t h e  a d v a n c e  i n  a  r a t e  o f  d u t y  o r  o t h e r  c h a r g e  o n  i m p o r t s "  m u s t  b e  m a d e  under  "an 
established and uniform practice", and not to the situation existing prior to this measure to which one should compare the new increased duty. This prior situation is not mentioned or alluded to in 
Article X:2, and therefore, unlike my fellow panelists, I fail to see how these words can describe 
                                               
373 Panel Reports, EC – IT Products , para. 7.1119.  
374 Ibid. para. 7.1120.  
375 See para. 7.155. 
376 Ibid. See also para. 7.155: "[I]t is clear to us that the term 'under an established and uniform 
practice' serves to define th e relevant prior rate that is to be used to establish whether or not an advance in a 
rate has been effected. It follows, th en, that the relevant comparison contemplated by Article X:2 is between 
the new rate effected by the measure at issue and the ra te that was previously applicable under an established 
and uniform practice."  
377 See, for instance, the following passage from the Panel Reports in EC – IT Products : "In line with 
these considerations, we find that 'u niform practice', in its context, refers to the similar application of a 
measure in the customs territory of a Member.  Acco rdingly, 'uniform practice ' means that the customs 
authorities of the EC member States apply the measures  at issue similarly and consistently throughout the 
customs territory of the European Comm unities…. Hence, under Article X:2, measures must be of a type that 
effect an advance in a rate of duty under an establis hed and uniform practice, whic h means that the advance in 
a rate of duty must be applied ('prac tice') in the whole customs territory ('uniform') and its application should 
be on a secure basis ('established')." (Panel Reports, EC – IT Products , paras. 7.1119-7.1120). WT/DS449/R 
- 84 - 
 
  the baseline to which to compare the new duty or charge. I believe that my interpretation is in line 
with Article X:2's wording and plain meaning, where clearly the term refers to the measures mentioned in the beginning of the sentence and de scribes them, and does not serve as a basis for 
comparison of the "advance in a rate of duty" or "other charge on imports". The provision does not 
say "an advance in a rate of duty in comparison to  (or "in relation to ") an "established and uniform 
practice". I believe that generally, in the cour se of interpreting provisions of the covered 
agreements, an interpreter may not add words that are not there and I can see no justification to 
do so in this case where the plain and ordinary  meaning of Article X:2 is clear and has already 
been established by a previous WTO panel.  
7.238.  In addition to being hard to reconcile with  the ordinary meaning of the provision, I am also 
of the opinion that the approach adopted by my fellow panelists is inimical to the very substance of 
Article X:2 and to its objective. Generally speaking, the objective of the provision is to prohibit the 
enforcement of higher rates of duties, new charges on imports or other new or burdensome requirements, restrictions or prohibitions before the official publication of such measures. 
According to the majority opinion, to enforce such a measure before its official publication may 
actually be a good thing for a Member to do, because then when one compares the new law (which increased the rates of duties or introduced new and more burdensome requirements, restrictions 
or prohibitions in relation to what would have existed in its absence) to the "uniform and 
established practice" that existed prior to its enac tment, one will actually find (like the majority 
opinion found in this case) that there was no increase in the rates of duties, nor any new or more burdensome requirements. Under this interpretation, it is hard to see how there would ever be a 
violation of Article X, since the conduct that it prohibits would constitute proof that there was no 
violation. I find it hard to believe that this was what the Members had in mind when they agreed to Article X:2. 
7.239.  Indeed, the Panel asked the United States to respond to the following hypothetical 
question: 
Assume that Country A's unbound tariff rate  on a certain product is x%, and that it 
has been published properly in its official gazette. On January 1, 2013, Country A's 
customs authorities start collecting customs du ties on this product at the rate of 2x%, 
although the published tariff rate is x%, and in spite of protests by importers of the product in question. On June 1, 2013, Country A's Minister of Finance signs an order 
to raise the duty on this product to 2x% with an effective date of January 1, 2013. 
The order, which is within his authority under the laws of Country A, is published promptly on the same day that it was signed. Would Country A's actions be consistent 
with GATT Articl es X:1 and X:2?
378 
The United States responded inter alia that if Country A's customs authorities were acting pursuant 
to a measure of general application, which was not published, then Country A's actions could be 
inconsistent with Article X:2 as from January 1, as the measure was enforced before publication. 
However, "the collection of a duty at the rate of 2x% by only certain customs authorities (perhaps at certain ports or at certain times) would not appear to be a measure of general application"
379 
and thus not prohibited by Article X:2. The United States further responded that  "the Minister of 
Finance's order on June 1 … would not fall under one of the listed changes under Article X:2 in the 
scenario in which there was a measure of general application pursuant to which the customs authorities applied a rate of 2x%. That is, the or der was not an 'advance' on a rate of duty or 
other charge on imports under an established and uniform practice, nor was it a 'new' or 'more 
burdensome' requirement, restriction or prohibition on imports".
380 
 
7.240.  I find this result, which is a necessary outcome of the interpretation proposed by the 
United States to be very troubling and in clear co nflict with the ordinary meaning of Article X:2, in 
its context and in light of its objective and purpose. I also find it hard to believe that this was the intention of the drafters and of the Members when  they agreed to Article X:2. The alternative 
interpretation offered by my fellow panelists, namely that the benchmark for comparison of the 
"advance" and "new or more burdensome requiremen t" is the previous practice of the authorities 
of the importing county so long as such practice has not been found to be illegal by a domestic 
                                               
378 Panel's Questions to the Parties following the Second Substantive Meeting, Question No. 94.  
379 United States' response to Pa nel Question No. 94, para. 14. 
380 Ibid. paras. 15-16.  WT/DS449/R 
- 85 - 
 
  court in a final and binding decision (and ordered to be discontinued), does not really solve the 
problem. It is quite unlikely that importers can obtain a final binding judgment within six months (as were the facts in the above hypothetical), considering that most domestic legal systems require a much longer time to resolve such an issu e. Even if the unauthorized practice of collecting 
a duty at a higher rate than was officially publis hed continued for two or three years, it would be 
unlikely that importers could obtain a final binding judgment against this practice in time to stop it, since the authorities of the importing country could always file an appeal against a such a 
judgment and thereby prevent it from becoming bi nding and final. Eventually, a new order could 
be issued and published with the effect of lega lizing the higher charge retroactively, and no 
violation of Article X:2 could be found. I am of the opinion that such a result is clearly unsatisfactory.  
7.241.  For all of the reasons set out above, I have reached the conclusion that in adopting 
Section 1 of PL 112-99, the United States did not comply with Article X:2 of the GATT 1994.  
7.6  Claim under Article X:3(b) of the GATT 1994  
7.242.  The Panel now turns to China's claim that Section 1 of PL 112-99 violates the 
United States' obligations under Article X:3(b) of the GATT 1994.
381  
7.243.  China submits that Section 1 violates the obligation in the second sentence of 
Article X:3(b).382 Article X:3(b) reads in full: 
Each [Member] shall maintain, or institute as soon as practicable, judicial, arbitral or 
administrative tribunals or procedures for the purpose, inter alia , of the prompt review 
and correction of administrative action relating to customs matters.  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;  
Provided  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. 
(Emphasis added) 
7.244.  China claims that Section 1 of PL 112-99 is inconsistent, as such383, with the obligation in 
the second sentence of Article X:3(b). According to China, Section 1 of PL 112-99 is inconsistent 
with Article X:3(b) "because it amends United States law retroactively and makes it applicable to 
judicial proceedings concerning administrative actions taken prior to its enactment".384 China 
argues that "the intervention in a pending judicial  proceeding by the legislative branch of the U.S. 
government was incompatible with the obligations of the United States under Article X:3(b)".385 
China argues that the text of Article X:3(b) contem plates only two "exceptions" to the rule that an 
agency is required to implement and be governed in  its practice by a decision of the court of first 
instance – the first being where a party appeals the decision to a court of superior jurisdiction, and 
the second being the possibility of a "collateral challenge" in another proceeding.386 China argues, 
inter alia , that if the drafters of Article X:3(b) "had intended that the decisions of courts or 
tribunals could be superseded by legislative enac tments, as opposed to the decisions of superior 
courts or tribunals, they would have referred to this possibility in the text".387  
                                               
381 See para. 7.11. 
382 China's first written submission, paras. 81-105; oral statement at the first meeting with the Panel, 
paras. 49-57; second written submission, paras. 130-155;  oral statement at the second meeting with the 
Panel, paras. 21-23. See also China's responses to Panel questions Nos. 16, 22, 23, 67, 68, 69, 79, 98, 99, 100, 121, 122, 123, and 131, and comments  on the United States' response to Panel question Nos. 102 and 
104.   
383 China's request for the establ ishment of a panel, p. 3.  
384 China's first written submission, para. 105. 
385 China's first written submission, para. 85.  
386 China's first written submission, paras. 89-90; second written submission, paras. 148-150.  
387 China's response to Panel question No. 121.  WT/DS449/R 
- 86 - 
 
  7.245.  According to China, if superseding decisions of courts or tribunals by legislative action were 
permissible under Article X:3(b), there would be "no point"388 to seeking judicial review of what an 
interested party considers to be unlawful agency conduct, since even a correct understanding of 
the law, confirmed as such by an independent tribunal, could always be superseded by the 
enactment of a new law that renders the agency's actions lawful after the fact. China submits that 
"[t]his outcome is clearly inimical to Article X:3( b) and to the principles of due process that it 
embodies".389 China's claim "relates to the requirement that the decisions of reviewing tribunals 
'shall be implemented by, and shall govern the pr actice of' the agency whose action is under 
review".390 China argues that the United States' actions in this case were contrary to both the 
letter and the spirit of Article X:3(b), and were inconsistent with "the role that independent judicial review is meant to serve" and the "role of independent tribunals".
391 
7.246.  The United States submits that the Panel should reject China's claim under 
Article X:3(b).392 The United States argues that insofar as  China's claim is that USDOC should have 
implemented the decision in GPX V , then China's claim fails because the CAFC opinion in GPX V  
never became a final decision with legal effect.393 The United States argues that insofar as China is 
not claiming that USDOC should have implemented the GPX V , and is instead claiming that 
Section 1 of PL 112-99 violates Article X:3(b), China's claim still fails for two other reasons. First, 
the United States argues that Article X:3(b) "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".
394 The United States further argues that Article X:3(b) contains a "structural" 
obligation, and that "[f]or there to be a breach of  Article X:3(b), the Member must have failed to 
establish tribunals that issue final decisions that shall be implemented by agencies".395   
7.247.  Several third parties made written and oral submissions in this dispute, and each that did 
took the position that Article X:3(b) does not pr ohibit a Member's legislature from enacting a law 
that overrides a decision by a reviewing tribunal. In this regard, Australia submits that 
Article X:3(b) contains specific obligations requiring WTO Members to maintain systems of independent review and to implement the outcomes of such reviews if they are not appealed, and 
"does not otherwise address the relationship be tween the legislative, executive and judicial 
branches of government, nor can any obligation in this regard be implied".
396 Canada submits that 
"there is nothing in the ordinary meaning or cont ext of GATT Article X:3(b) indicating that this 
provision disciplines actions of Members' legislatures".397  According to the European Union, 
"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".
398 Japan submits that "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".399 
7.248.  The Panel will begin its analysis of Chin a's claim by discussing the nature of the measure 
a t  i s s u e .  W e  w i l l  t h e n  t u r n  t o  w h a t  w e  c o n s i d e r  t o  b e  t h e  t w o  m a i n  i s s u e s  c o n c e r n i n g  t h e  
interpretation of Article X:3(b): first, whether Article X:3(b) prohibits a Member from taking 
                                               
388 China's first written submission, para. 101.  
389 Ibid. para. 101.  
390 China's first written submission, para. 86; response to Panel question No. 131. 
391 China's first written submission, paras. 83 and 91; second written submission, para. 152; response 
to Panel question No. 121. 
392 United States' first written submission, paras. 125-146; oral statement at the first meeting with the 
Panel, paras. 11-20; second written submission, paras. 85-101; and oral statement at the second meeting with 
the Panel, paras. 52-54. See also United States' responses to Panel questions Nos. 14, 15, 16, 27, 67, 68, 71, 73, 74, 75, 76, 77, 98, 103, 104, 101, 102, 121, and 123,  and comments on the China's response to Panel 
question Nos. 99, 100, 104, and 122.  
393 United States' first written submission, paras. 134-146. 
394 United States' second written submission, para. 89.  
395 United States' response to  Panel question No. 14.  
396 Australia's third-party response  to Panel question No. 15.  
397 Canada's third-party response  to Panel question No. 15. 
398 European Union's third-party writ ten submission, para. 43. See also the European Union's third-party 
response to Panel question No. 15. 
399 Japan's third-party response  to Panel question No. 15. WT/DS449/R 
- 87 - 
 
  legislative action in the nature of Section 1 of PL 112-99; second, the United States' argument that 
the obligation in Article X:3(b) is only "structural" in nature.400  
7.6.1  The nature of the measure at issue  7.249.  As indicated, the Panel begins its analysis by examining the nature of the legislative action 
that is at issue in this dispute. Once we have determined the nature of the legislative action that is 
at issue, we will proceed to consider whether that legislative action is inconsistent with the requirement, in Article X:3(b), that the decision s of reviewing tribunals be implemented by, and 
govern the practice of, administrative agencies.   
7.250.  We have been presented with arguments fr om the parties and third parties that formulate 
the issue before us in relatively broad and abstra ct terms. They variously described the issue as 
being whether Article X:3(b) applies to the "legislative branch", the "actions of Members' 
legislatures", and "legislative actions".
401  We are not persuaded that the issue before us can or 
should be formulated in such broad terms. First, we consider that formulating the issue so broadly, 
e.g. in terms of the applicability of Article X:3(b) to the "legislative branch", may lead to confusion, 
insofar as it could be taken to suggest that what is legally relevant is the source  of action – i.e. the 
legislature – rather than the nature  of the action – i.e. the nature of  the legislative action at issue. 
The United States is not arguing that it is not responsible for the actions of the legislature, and it is 
well established in WTO jurisprudence that, consistent with principles of general international law, 
a Member is responsible for the conduct of all State organs, including the legislature.402 In 
addition, we question whether such an analytical approach is consistent with the approach taken 
by the Appellate Body, in the context of interpreti ng and applying other provisions of the covered 
agreements, that a panel must carefully consider th e nature of the measure at issue, including its 
"principal characteristics". Thus, we must first ch aracterize the nature of the measure that is at 
issue in this dispute. Only then, once the measure at issue has been properly characterized, should 
we "proceed to assess whether a measure of that nature" falls within the disciplines of 
Article X:3(b).403  
7.251.  In its 1986 decision in Georgetown Steel , the CAFC affirmed USDOC' s decision to not apply 
CVD measures to imports from NME countries.404 USDOC's understanding (documented in several 
sources, including the June 2005 GAO Report405) was that in Georgetown Steel , the CAFC had 
ruled only that USDOC was not required to apply the CVD law in factual circumstances where USDOC judged that it was impossible to identify and measure subsidies as a consequence of the 
economic situation in the NME country in question.  
7.252.  Between 1986 and 2006, Congress on several occasions considered the enactment of new 
legislation relating to the applicability of United States CVD law to imports from NME countries, 
including in the form of bills in 1988, 1998, 2004, and 2005. However, none of these initiatives 
                                               
400 Thus, in addressing the firs t issue, we proceed on the arguendo  assumption that the obligation in the 
second sentence of Article X:3(b) is not merely "structural" in nature.  
401 See e.g. United States' second written submission, para. 5, and above at para. 7.247. 
402 See e.g. Appellate Body Reports, US – Gasoline , page 28, and US – Shrimp , para. 173.  
403 For example, in US – Large Civil Aircraft (2nd complaint) , the Appellate Body faulted the panel's 
analytical approach to the issue of whether "purchases of services" are excluded from the scope of 
Article 1.1(a)(1)(i) of the SCM Agreem ent. The Appellate Body stated that  "[i]t would seem more logical to 
determine first the issue of the proper characterization of the measures at issue and, once the measures have been properly determined, to examine the question of wh ether such types of measures fall within the scope" of 
the provision at issue. (Appellate Body Report, US – Large Civil Aircraft (2
nd complaint) , para. 585). The 
Appellate Body recalled its earlier statements, in China – Auto Parts , that a "panel must thoroughly scrutinize 
the measure before it, both in its design and in its op eration, and identify its principal characteristics", and 
that, "[i]n making its objective assessment of the applicability of specific provisions of the covered agreements to a measure properly before it, a panel must identify all relevant characteristics of the measure, and recognize 
which features are the most central to that measure itse lf, and which are to be acco rded the most significance 
for purposes of characterizing the re levant [measure] and, thereby, properly determining the discipline(s) to 
which it is subject under the covered agreements". (Appellate Body Report, US – Large Civil Aircraft (2
nd 
complaint) , para. 586, citing Appellate Body Report, China – Auto Parts , para. 171).  
404 China's first written submission, paras. 10-16; United States' first written submission, Annex, 
paras. 13-20.  
405 GAO Report (Exhibit CHI-16), p. 15, and Comment 1 on p. 44. WT/DS449/R 
- 88 - 
 
  ultimately resulted in the enactment of new legisl ation, explicitly to give the USDOC the authority 
to apply United States CVD law to imports from NME countries.406 
7.253.  Pursuant to a CVD investigation on CFS Paper  initiated on 27 November 2006, USDOC 
began applying United States CVD law to im ports from China, notwithstanding that the 
United States continued to designate China as an NME country. USDOC did so after reaching the 
conclusion that it was possible to identify and measure subsidies as a consequence of the economic situation in China, and its understanding that this action was in accordance with then-
existing United States law. This understanding was based, in part, on its interpretation of the CAFC 
decision Georgetown Steel .
407  
7.254.  Following the initiation of the CFS Paper  investigation in 2006, years of litigation before the 
United States courts over this issue ensued. On at least three occasions, the CIT decided that the 
applicable United States law and the CAFC decision in Georgetown Steel  were "ambiguous" 
regarding whether United States CVD law could be applied to imports from China. The first such decision was in CFS Paper
408, followed by the CIT decision in GPX I409, and then its decision 
GPX II.410  
7.255.  However, in its 19 December 2011 decision in GPX V , the CAFC held that, contrary to the 
understanding and ongoing practice of USDOC, it was not in accordance with United States law for 
USDOC to apply United States CVD law to imports from NME countries, including China. Following 
the issuance of this decision, the United Stat es government petitioned the CAFC to grant a 
rehearing en banc  to reconsider its decision. Both parties consider that the United States 
government's request for a rehearing by the CAFC en banc  was "equivalent to an appeal to a court 
of superior jurisdiction"411 within the meaning of Article X:3(b). 
7.256.  On 13 March 2012, Congress enacted PL 112-99 to "overrule"412 and supersede the CAFC 
decision in GPX V , thus effectively ensuring that USDOC would continue to apply United States 
CVD law to imports from China. The United States agrees that Congress enacted Section 1 of 
PL 112-99 to "overturn" the CAFC decision in GPX V413; as previously noted, the United States 
refers to this measure as "the GPX legislation", and states, for example, that it "ensured that GPX 
V would never have any effect under U.S. law".414 
7.257.  To recall, Section 1(a) of PL 112-99 amends United States law to render United States CVD 
law applicable to imports from NME countries, except in circumstances where USDOC judges that it is impossible to identify and measure subsidies as a result of the economic situation in the NME 
country in question. Pursuant to Section 1(b) of PL 112-99, this amendment applies to all CVD 
proceedings initiated on or after 20 November 2006 (as well as all resulting USCBP actions and associated Federal court proceedings).  
7.258.  Based on the foregoing, we consider that the principal characteristics of the measure at 
issue are (i) the measure at issue is part of a law enacted by Congress, i.e. the legislative branch of the United States government; (ii) the objective of the legislation appears to have been to 
continue the application by USDOC of United States CVD law to imports from NME countries like 
China, by effectively "overruling" the CAFC decision in GPX V ; (iii) this legislation was enacted 
                                               
406 China's first written submission, paras. 17-25; United States' first written submission, Annex, 
paras. 21-28. 
407 China's first written submission, paras. 26-31; United States' first written submission, Annex, 
paras. 29-33. 
408 CFS Paper  (Exhibit USA-28), p. 1282. 
409 GPX I  (Exhibit USA-93), pp. 1289-1290. 
410 GPX II  (Exhibit CHI-03), p. 1237. 
411 China's first written submission, para. 103; China' s and United States' responses to Panel question 
No. 16(b). 
412 For example, in GPX VI , the CAFC stated that "Congress clearl y sought to overrule our decision in 
GPX. The language of section 1(b) is clea r in this respect. Moreover, during  the floor debate, our decision in 
GPX was referenced by name and discussed at length. One of the bill's sponsors specifically noted that the new 
legislation “overturns an erroneous decision by the Fede ral circuit [sic] that the De partment of Commerce does 
not have the authority to apply these countervailing duty rules to nonmarket economies." ( GPX VI  
(Exhibit CHI-07), p. 1311). 
413 See e.g. United States' first writ ten submission, paras. 50 and 57.  
414 See e.g. United States' first written submission, para. 59.  WT/DS449/R 
- 89 - 
 
  following the issuance of the CAFC decision in GPX V , but before that decision could become final 
and legally binding, and therefore did not involv e the reopening of a court decision that had 
become final; and (iv) the legislation applies to all CVD proceedings (and resulting USCBP actions and Federal court proceedings) initiated on or after 20 November 2006.  
7.259.  In its panel request, China defines the measure as "Section 1" of PL 112-99. However, 
China has also made statements to the effect that its claim under Article X:3(b) relates more particularly to Section 1(b) of PL 112-99.
415  As noted, Section 1(b) of PL 112-99 makes the new 
rule in Section 1(a), Section 701(f), applicable to all CVD proceedings (and resulting actions and 
judicial proceedings) initiated on or after 20 November 2006. In this regard, as we have explained
416, Section 1(b) is not an autonomous provision, and must be considered together with 
the new rule in Section 1(a). Accordingly, and taking into account how the measure is defined in 
the panel request, and the relationship between Se ction 1(a) and 1(b), we conduct our analysis on 
the understanding that the measure at issue is Section 1.  
7.6.2  Interpretation of Article X:3(b) 
7.6.2.1  Whether Article X:3(b) prohibits a Me mber from taking legislative action in the 
nature of Section 1 of PL 112-99 
7.260.  Having considered the nature of the measure at issue, we will now turn to the 
interpretation of Article X:3(b).   
7.261.  We note at the outset that there are two interpretative issues arising from the text of 
Article X:3(b) in respect of which there appears to be agreement between the parties. First, the parties agree that the phrase "administrative action relating to customs matters" includes 
administrative action relating to countervailing an d anti-dumping duty proceedings in general, and 
that the CAFC decision in GPX V , for instance, involved a "review" of administrative action relating 
to customs matters.
417 In this regard, the parties are of the view that the obligations in 
Article X:3(b), Article 23 of the SCM Agreement418, and Article 13 of the Anti-Dumping 
Agreement419 are cumulative in nature. The latter provisions contain judicial review obligations 
regarding countervailing duty and anti-dumping duty determinations. We see no reason to 
disagree with the parties' understanding of the ph rase "administrative action relating to customs 
matters". The dictionary definition of the word "customs" is "such duty levied by a government on imports", which suggests that the term "customs" is broad enough to include countervailing duties.
420 As previously noted, the term "countervailin g duty" is defined in Article VI:3 of the GATT 
1994, and footnote 36 to Article 10 of the SCM Agreement, as "a special duty levied for the 
purpose of offsetting any bounty or subsidy bestowed, directly, or indirectly, upon the 
manufacture, production or export of any merchandise". In addition, we note that in Thailand – 
Cigarettes (Philippines) , the Appellate Body considered the meaning of "administrative action 
relating to customs matters". The Appellate Body stated that "the obligation contained in Article X:3(b) is not limited to particular types of customs-related 'administrative action'", and 
agreed with the panel that the phrase "administrative action relating to customs matters" 
encompasses "a wide range of acts applying legal instruments that have a rational relationship with customs matters".
421 Furthermore, as the obligations in Article 23 of the SCM Agreement and 
                                               
415 China's first written submission, para. 105; response to Panel question No. 23. 
416 See subsection 7.4.2 of this Report. 
417 Responses by China and the United States  to Panel question Nos. 15 and 40.  
418 Article 23 of the SCM Agreement, entitled "Judicial Review", states that "[e]ach Member whose 
national legislation contains provisions on countervailin g duty measures shall maintain judicial, arbitral or 
administrative tribunals or procedures for the purpose, inter alia , of the prompt review of administrative 
actions relating to final determinations and reviews of determinations within the me aning of Article 21. Such 
tribunals or procedures shall be independent of the auth orities responsible for the de termination or review in 
question, and shall provide all interested parties who participated in the administrative proceeding and are directly and individually affected by the ad ministrative actions with access to review." 
419 Article 13 of the Anti-Dumping Agreement, entitled "Judicial Review", states that "[e]ach Member 
whose national legislation contains pr ovisions on anti-dumping measures shall maintain judicial, arbitral or 
administrative tribunals or procedures for the purpose, inter alia , of the prompt review of administrative 
actions relating to final determinations and reviews of determinations within the me aning of Article 11. Such 
tribunals or procedures shall be independent of the auth orities responsible for the de termination or review in 
question." 
420 The Shorter Oxford English Dictionary  (2002), p. 584. 
421 Appellate Body Report, Thailand – Cigarettes (Philippines) , paras. 197 and 202. WT/DS449/R 
- 90 - 
 
  Article 13 of the Anti-Dumping Agreement only came into existence in 1995, interpreting the 
phrase "administrative action relating to customs matters" in Article X:3(b) so as to exclude countervailing duty and anti-dumping duty determinations would have meant that, prior to 1995, there was no obligation to provide for the prompt  review and correction of such measures.   
7.262.  Second, the parties agree that the "decisions" that must be implemented under 
Article X:3(b) include the decisions of courts or tr ibunals of superior jurisdiction such as the CAFC 
(once their decisions are final and legally binding), and not only those of "first instance" review 
tribunals.
422 Thus, the United States accepts that in the context of its domestic system of judicial 
review and with specific reference to USDOC, Article X:3(b) requires that USDOC implement and be governed not only by the decisions of the CIT, which, as we have said, is the court of first instance review in respect of USDOC actions, but also the decisions of the CAFC and, where 
appropriate, the United States Supreme Court.
423 We see no reason to disagree. In EC – Selected 
Customs Matters , the Appellate Body stated that Article X:3(b) "relates to first instance review", 
and "requires that first instance  review decisions 'shall be implemented by, and shall govern the 
practice of, such agencies' (that is, agencies entrusted with the administration of customs 
matters)".424 However, the Appellate Body did not state that the obligation in Article X:3(b) relates 
exclusively  to first instance review decisions. Indeed, once a final decision has been reached after 
an appeal, the rationale for an administrative agency to implement that decision is no less 
compelling than the rationale for an administrative agency to implement a first instance decision that has not been appealed. 
7.263.  We will now proceed to address whether Article X:3(b), which requires that administrative 
agencies implement and be governed by decision s of the tribunals maintained to review their 
administrative action relating to customs matters, prohibits a Member from taking legislative action in the nature of Section 1 of PL 112-99. We will examine the text of Article X:3(b), its 
context, the object and purpose underlying Article X:3(b), as well as preparatory work relating to 
Article X:3(b).  
7.6.2.1.1  The text of Article X:3(b) 
7.264.  The first sentence of Article X:3(b) provides that each Member "shall maintain, or institute 
as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia , of the prompt review and correction of administrative action relating to customs 
matters". The second sentence of Article X:3(b), which is the one on which China's claim rests, 
goes on to state that "[s]uch tribunals or procedures shall be independent of the agencies 
entrusted with administrative enforcement and th eir decisions shall be implemented by, and shall 
govern the practice of, such agencies", unless an appeal is lodged.  
7.265.  The Panel notes that the wording of the second sentence of Article X:3(b) refers only to 
"tribunals" and "agencies", and not to the legislature (or other entities). It provides that "such tribunals" shall be independent of the "agencies", and requires that the decisions of "such 
tribunals" be implemented by, and govern the practi ce of, "such agencies". Notably, the obligation 
to implement and be governed by the decisions of reviewing tribunals is addressed to "such agencies". Therefore, by its express terms, Article X:3(b) establishes an obligation directed at the 
reviewing tribunals and the administrative agencies. There is no textual reference to the legislative 
branch or any other entity.   
7.266.  We also note that Article X:3(b) says that it is "decisions" that shall be implemented by the 
administrative agencies concerned. It is useful to point out in this connection that Section 1(b)(3) 
of PL 112-99 does not reopen any cases that have  already been decided by Federal courts. Rather, 
the text of Section 1(b) refers to all relevant proceedings "before a Federal court". This indicates that it applies both to cases that were still pending before a Federal court when the PL 112-99 was 
enacted, and that it applies prospectively to any cases brought after its enactment. It does not, 
however, apply to any decided cases. This view is also supported by the fact that Section 1(b)(3) 
                                               
422 United States' response to Panel question No. 103. See also China's second written submission, 
para. 142 (referring to United States' respon se to Panel question No. 14, para. 17).  
423 We understand that within the United States legal system: (i) USDOC makes determinations, (ii) 
these are reviewed by the CIT, (iii) decisions of the CIT may be appealed to the CAFC , and (iv) decisions of the 
CAFC may be further appealed to the Un ited States Supreme Court, subject to certiorari  having been granted. 
424 Appellate Body Report, EC – Selected Customs Matters , paras. 294-295. WT/DS449/R 
- 91 - 
 
  provides for application of the new Section 701(f) to "proceedings" and "actions" before Federal 
courts, and not to "decisions" by such courts. Thus, Section 1(b)(3) does not prevent USDOC from implementing any final court decisions that had been made as of 13 March 2012.
425   
7.267.  We agree with China that the text of Arti cle X:3(b) contemplates only two "exceptions" to 
the rule that an agency is required to implement an d be governed in its practice by a decision of a 
court of first instance – the first being situations where a party appeals the decision to a court or tribunal of superior jurisdiction, and the second being the possibility of a "collateral challenge" in 
another proceeding initiated by the central administration of the agency at issue.
426 We further 
agree with China that legislative action in the nature of Section 1 of PL 112-99 would not fall within the scope of either of those "exceptions". However, the fact that there are only two "exceptions" to justify actions by administrative agencies that might otherwise be inconsistent with 
the requirement in Article X:3(b) that administrati ve agencies implement and be governed in their 
practice by decisions by reviewing tribunals, does not bring within the scope of Article X:3(b) actions such as the type of legislative action at issue in this dispute.  
7.268.  In sum, an analysis of the text of Article X:3(b) suggests that the kind of legislative action 
at issue in this dispute does not fall within the scope of the obligation in the second sentence of 
Article X:3(b).  
7.6.2.1.2  The contex t of Article X:3(b) 
7.269.  We address next the question whether the context of Article X:3(b) suggests that the 
obligation in the second sentence thereof prohibits legislative action in the nature of Section 1 of PL 112-99. In our view, the obligation in Article X: 2 is relevant context with regard to the issue 
before us.   
7.270.  As we have discussed in the context of addressing China's claim under Article X:2, this 
provision explicitly provides that no measure falling within the scope of Article X:2 shall be 
enforced prior to its official publication. The measures that fall within the scope of Article X:2 
include any measure of general application effecting "an advance in a rate of duty or other charge 
on imports under an established and uniform practi ce", or imposing "a new or more burdensome 
requirement, restriction or prohibition on imports". We have explained above that the kind of 
restrictive measures that falls within the scope of Article X:2 may not be enforced in respect of events or circumstances that occurred before  they have been officially published.  
7.271.  The structure of Article X suggests that each of its paragraphs addresses a different issue. 
Article X:1 concerns, inter alia , the prompt publication of measures. Article X:2 addresses, inter 
alia, measures of general application, including legislative actions of general application, that are 
enforced in respect of events or circumstances that occurred prior to their official publication. 
Finally, Article X:3(b) concerns the prompt review  and correction of certain administrative actions 
by independent tribunals. Article X:3(b) contains no language resembling that found in Article X:2, and it contains no textual link to the obligation in Article X:2. This suggests to us that the same 
matter, namely legislative actions of general application, is not covered in Article X:3(b) nor is it 
contemplated by it. 
7.272.  In this regard, we note China's argument, regarding the interpretation of the obligation in 
Article X:3(b), that "[t]o be sure, the national legislature may enact new laws, and national courts 
may be required to interpret and apply those laws in future cases. But consistent with Article X:1 
and Article X:2, any such law must apply prospectively, and may not have the effect of altering the outcome of a judicial decision that was based on the laws in effect at the time the relevant 
administrative actions were taken".
427 Along similar lines, China argues, again in the context of 
interpreting Article X:3(b), that "Members are free to change their domestic laws and regulations 
                                               
425 Initially, there was disagreement between the parties as to whether the CAFC decision in GPX V  was 
a "decision" within the meaning of Article X:3(b). However, in the light of China's clarification that its claim concerns Section 1 as such, as opposed to GPX V  or any other individual court de cision, the parties appeared to 
agree that this issue became moot. See United States' second written submission, paras. 85-86, and United States' response to Panel question No. 104; Ch ina's response to Panel questions Nos. 22 and 23, and 
China's comments on the United States ' response to Panel question No. 104. 
426 China's first written submission, paras. 89-90; second written submission, paras. 148-150.  
427 China's first written submission, fn. 91.  WT/DS449/R 
- 92 - 
 
  as they see fit, provided that they are otherwis e in accordance with relevant provisions of the 
covered agreements. Under Article X:2, however, any such amended laws and regulations can be 
applied only in respect of action or conduct that occurs after the official publication of the amending measure, to the extent that the measure advances a rate of duty or other charge on 
imports, or imposes a new or more burdenso me requirement or restriction on imports."
428    
7.273.  We consider that China's argument amounts to reading the obligation in Article X:2 into 
Article X:3(b). We find it useful to recall the findings by the panel and the Appellate Body in EC – 
Selected Customs Matters  when presented with a similar argument. In that case, the issue was the 
relationship between Article X:3(b) and the obligation in Article X:3(a). The panel rejected an interpretation that would amount to "merging different requirements that are currently contained in separate sub-paragraphs of Article X".
429 The Appellate Body agreed: 
The Panel, however, noted that Article X:3(b) of the GATT 1994 does not contain an 
express textual link to the obligation of uniform administration of customs laws in Article X:3(a).  The Panel contrasted this with Article X:3(c) of the GATT 1994, which 
explicitly cross-references Article X:3(b).
430 Against this background, the Panel 
considered that it was not possible to infer that the drafters of the GATT 1994 intended the obligation of Article X:3(b) to be read as simultaneously requiring 
uniform administration in accordance with Article X:3(a). In the Panel's view, this 
would amount to 'merging different requirements that are currently contained in separate sub-paragraphs of Article X'.
431  W e  s e e  n o  r e a s o n  t o  d i s a g r e e  w i t h  t h e  
Panel's interpretation. We are also of the view that the requirement of "uniformity" 
contained in Article X:3(a) does not imply that under Article X:3(b) decisions of review 
tribunals must govern the practice of all agencies entrusted with customs enforcement throughout the territory of a WTO Member.  Article X:3(a) requires, inter alia , 
uniformity of administration.  In contrast, Article X:3(b) relates to the review and 
correction of administrative action by independent mechanisms.
432   
7.274.  In the light of the foregoing, the Panel cons iders that the context of Article X:3(b) does not 
support the view that the obligation in the second sentence thereof prohibits legislative action in 
the nature of Section 1 of PL 112-99.   
7.6.2.1.3  The object and purpose of Article X:3(b) 
7.275.  The Panel now considers whether the object and purpose of the GATT 1994, as reflected in 
Article X:3(b)433, supports the view that the obligation in Article X:3(b) prohibits a Member from 
taking legislative action in the nature of Section 1 of PL 112-99.  
7.276.  China argues in this connection that if legislative intervention in pending judicial 
proceedings of the kind at issue here were permissible, an interested party could (i) develop a 
correct  understanding of municipal law through its review  of "[l]aws, regulations, judicial decisions 
and administrative rulings of general application"; (ii) bring an action in a domestic court to 
enforce its correct understanding of the law against unlawful agency conduct; (iii) have its 
understanding of municipal law confirmed  by the court; but then (iv) have that decision undone by 
a legislative intervention that amends the law re troactively and directs the courts to apply the 
                                               
428 China's second written submission, para. 151.  
429 Panel Report, EC – Selected Customs Matters , para. 7.534. 
430 (footnote original ) Likewise, this is in contrast with Article X:3(a), which contains a cross-reference 
to Article X:1. 
431 (footnote original ) Panel Report, paras. 7.534. 
432 Appellate Body Report, EC – Selected Customs Matters, para. 301.  
433 The Appellate Body has explained that Article 31(1) of the Vienna Convention does not exclude an 
interpreter from "taking into account the object and purpos e of particular treaty terms, if doing so assists the 
interpreter in determining the treaty's object and purp ose on the whole", and that  it is not necessary "to 
divorce a treaty's object and purpose from the object and purpose of specific  treaty provisions, or vice versa". 
(Appellate Body Report, EC – Chicken Cuts , para. 238). As an example, discussed further below, in Thailand – 
Cigarettes (Philippines)  the Appellate Body stated that "[a] basic object and purpose of the GATT 1994, as 
reflected in Article X:3(b), is to ensure due process in  relation to customs matters". (Appellate Body Report, 
Thailand – Cigarettes (Philippines),  para. 202). WT/DS449/R 
- 93 - 
 
  amended law to the administrative action under review. China submits that this outcome is 
"clearly inimical" to Article X:3(b) and to the principles of "due process" that it embodies.434 
7.277.  We will begin by considering the question of "due process". We note that in Thailand – 
Cigarettes (Philippines) , the Appellate Body discussed the principle of due process as it relates 
specifically to Article X:3(b). The Appellate Body stated: 
A basic object and purpose of the GATT 1994, as reflected in Article X:3(b), is to 
ensure due process in relation to customs matters.  The Appellate Body referred to 
this due process objective in EC – Selected Customs Matters .435  I n  t h a t  v e i n ,  t h e  
panel in EC – Selected Customs Matters  stated that Article X:3(b) seeks to 'ensure 
that a trader who has been adversely affected by a decision of an administrative agency has the ability to have that adverse decision reviewed.'
436  In addition, relating 
more broadly to Article X:3 of the GATT 1994,  the Appellate Body has found that this 
provision establishes certain minimum standards for transparency and procedural fairness in Members' administration of their trade regulations.
437 While recognizing 
WTO Members' discretion to design and administer their own laws and regulations, 
Article X:3 also serves to ensure that Members afford the protection of due process to individual traders.  As we see it, the obligation under Article X:3(b) to maintain 
tribunals or procedures for the prompt review and correction of administrative action 
relating to customs matters is an expression of this due process objective of Article X:3.
438 
7.278.  Thus, the Appellate Body has clarified that Article X:3 serves to ensure that Members 
afford the protection of due process to individual traders. In EC – Selected Customs Matters , the 
Appellate Body addressed what is demanded by "due process" in the particular context of Article X:3(b). Specifically, the Appellate Body stated that "this due process objective is not 
undermined even if first instance review decisions do not govern the practice of all the agencies 
entrusted with customs enforcement throughout the territory of a WTO Member, so long as there is a possibility of an independent review and co rrection of the administrative action of every 
agency".
439 In a similar vein, we will now address whether Section 1 undermines the objective of 
"independent review and correction" of USDOC, US ITC or USCBP administrative action relating to 
customs matters. 
7.279.  China argues that the actions of the United States in this case were contrary to both the 
letter and the spirit of Article X:3(b), and were inconsistent with "the role that independent judicial 
review is meant to serve" and the "role of independent tribunals".440 China further argues that one 
function of tribunals established in accordance with Article X:3(b) is to "review and correct" 
administrative actions, and this "based on the interpretation and application of the relevant laws 
and regulations in effect at the time the administrative action was taken".441   
7.280.  The Panel recalls that Article X:3(b) requires Members to establish and maintain such 
courts "for the purpose", inter alia , of "prompt review and correction" of administrative action. 
Article X:3(b) further provides that courts must be "independent" of the administrative agencies whose decisions are being reviewed.
442 Reading Article X:3(b) in context, Article 23 of the SCM 
Agreement and Article 13 of the Anti-Dumping Ag reement, which as explained above establish 
requirements for judicial review that operate cumulatively with Article X:3(b)443, also require that 
reviewing courts be independent "of the authoritie s responsible for the determination or review in 
                                               
434 China's first written submission, para. 101.  
435 (footnote original ) Appellate Body Report, EC – Selected Customs Matters , para. 302. 
436 (footnote original ) Panel Report, EC – Selected Customs Matters,  para. 7.536.  
437 (footnote original ) See Appellate Body Report, US – Shrimp , para. 183. 
438 Appellate Body Report, Thailand – Cigarettes (Philippines),  para. 202.  
439 Appellate Body Report, EC – Selected Customs Matters , para. 302.  
440 China's first written submission, paras. 83, 91; second written submission, para. 152; response to 
Panel question No. 121. 
441 China's first written submission, paras. 91-92.  
442 As the panel in EC – Selected Customs Matters stated, this means that such courts should be "free of 
control or influence from the administrative agencies whos e decisions are the subject of review, [so as to act] 
with freedom in institutional and practical terms from interference by the agencies whose decisions are being 
reviewed". (Panel Report, EC – Selected Customs Matters , para. 7.520). 
443 See para. 7.261. WT/DS449/R 
- 94 - 
 
  question". In addition, Article X:3(c) confirms th at the independence requirement in Article X:3(b) 
reflects an objective to ensure that the review be "objective and impartial" as between an affected trader and the administering agency.
444 In our view, legislative action in the nature of Section 1 
does not adversely affect a court's ability to engage in "objective and impartial" review. 
Section 1(b) does not itself speak to, much less direct, how Federal courts are to review USDOC, 
USITC or USCBP actions, or otherwise interfere with the courts' discharge of their reviewing 
function. Rather, it speaks to the scope of applic ation of a new substantive rule of United States 
law, the new Section 701(f). Furthermore, it is tr ue that Article X:3(b) requires that traders be 
afforded the possibility of seeking and obtaining ju dicial review. Contrary to China, however, we 
see nothing in Article X:3(b) that explicitly or by necessary implication requires review under the 
law as it was in force at the time when the agency took the action under review. While we agree 
that Article X:3(b) contemplates review based on law (as would appear to be confirmed, inter alia , 
by the reference in the proviso  to "established principles of law"), it is ordinarily the case, as also 
noted by China445, that courts interpret the law and apply it to facts, but that the legislature makes 
or amends the law. In the absence of any specif ic requirement to the contrary, the concepts of 
"review and correction" based on law by an independent, objective and impartial court do not suggest to us that the legislature is thereby prec luded from changing the law, even in respect of 
pending cases.
446  
7.281.  In addition, having regard to the subject-matter of Article X:3(b), i.e. judicial review, we 
recall that the panel in EC – Selected Customs Matters  considered how judicial review functions in 
domestic legal systems, and we consider that such an examination may usefully inform our 
interpretation of that provision as well.447 In this regard, it is common ground between the parties 
that under United States constitutional law, when a new Federal law makes clear that it is retroactive, a United States appellate court must in principle apply that law in reviewing lower-
court judgments still under appeal that were render ed before the law entered into force, and must 
alter the outcome accordingly.
448 In GPX VI , the CAFC observed that "Congress clearly sought to 
overrule our decision in GPX [V] ", but found that this did not constitute an impermissible 
interference with the judicial process: 
Although the scope of the new legislation is clear, appellees nonetheless contend that 
the new legislation is unconstitutional because (1) it attempts to prescribe a rule of decision for this case after our decision in GPX was rendered … 
                                               
444 Article X:3(c) provides in relevant pa rt: "The provisions of sub-paragraph ( b) of this paragraph shall 
not require the elimination or substitution of procedures in force in the territory of a contracting party on the 
date of this Agreement which in fact provide for an obje ctive and impartial review of administrative action even 
though such procedures are not fully or formally independent of the agencies entrusted with administrative 
enforcement." 
445 See para. 7.279. 
446 In Thailand – Cigarettes (Philippines) , the Appellate Body stated that:  
"Article X:3(b) refe rs to 'review and correction' of administ rative action.  The word 'review' is 
defined as '[a]n inspection, an examination', or in the legal context as '[c]onsideration of a judgment, sentence, etc., by some higher court or authority'. The word 'co rrection' is defined as 
'[t]he action of putting right or indicating errors '.  The reference to 'co rrection' indicates that 
Article X:3(b) requires more th an mere declarat ory action or ex post  review of whether 
administrative action conforms to domest ic law or not." (Appellate Body Report, Thailand – 
Cigarettes (Philippines) , para. 204. Footnotes omitted).  
447 The panel in EC – Selected Customs Matters  interpreted the obligation in  Article X:3(b) based on its 
understanding of how judicial review functions "in most legal systems". The panel stated that "[i]n this regard, 
the Panel does not consider that it wo uld be reasonable to infer that first instance independent review tribunals 
and bodies, whose jurisdiction in most legal systems is normally limited in substantive and geographical terms, 
should have the authority to bind all agencies entr usted with administrative enforcement throughout the 
territory of a Member."  Based on its understanding of how judicial review functions in domestic legal systems, 
the panel concluded that the interpretation of the obligation in Article X:3(b) that was advanced by the complaining Member in that case "would go beyond what  is demanded by this due process objective". (Panel 
Report, EC – Selected Customs Matters , para. 7.538). 
448 China's response to Panel question No. 100; United  States' comments on China's response to Panel 
question No. 100. In its response to Panel question No. 100, China refers to the fact that, under United States 
municipal law, Congress is permitted "to change the law applicable to pending judicial proceedings, at least in 
certain circumstances". There may, however, be limita tions on what Congress can do in this regard, as 
discussed in the legal expert opinio ns submitted by China of the "separ ation of powers" doctrine under US 
constitutional law. (Expert report of Professor Richard Fallon (Exhibit  CHI-83), para. 24 and supplemental 
expert report of Professor Richard Fallon (Exhibit CHI-124), para. 6).   WT/DS449/R 
- 95 - 
 
  We think the first of these arguments is without merit. The Supreme Court has 
counselled that “[w]hen a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly." Plaut v. 
Spendthrift Farm, Inc., 514 U.S. 211, 226, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). 
Unlike Plaut, where Congress attempted to undo a final judgment, see id. at 227, 115 
S.Ct. 1447, this case was still pending on appeal when Congress enacted the new 
legislation, as our mandate had not yet issued, see Fed. R.App. P. 41(b)-(c); see also 
Beardslee v. Brown, 393 F.3d 899, 901 (9th Cir.2004) (“An appellate court's decision 
is not final until its mandate issues."). It makes no difference that Congress, in the legislative history, addressed the decision in this case by name. See, e.g., Ileto v. 
Glock, Inc., 565 F.3d 1126, 1139 (9th Cir.2009) (“[A] statute affecting pending cases, 
indeed designating them by name and number, [does] not offend separation of powers because Congress was changing the law applicable to those cases rather than 
impermissibly interfering with the judicial process." (citing Robertson v. Seattle 
Audubon Soc'y, 503 U.S. 429, 440, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992))). Thus, 
no issue is raised by the fact that our decision in GPX had issued prior to enactment of 
the new legislation because this case remained pending on appeal.
449 
7.282.  Thus, legislative intervention in pending cases is not necessarily viewed – even by courts – 
as impermissible interference with the judicial review function. Having regard to Section 1 of 
PL 112-99, we consider that the CAFC decision in GPX VI  at a minimum indicates that legislative 
action in the nature of Section 1 is not "inimical", per se , to principles of "independent judicial 
review", as China contends.450  
7.283.  China contends that if legislative action of the nature at issue in this dispute was 
permissible under Article X:3(b), there would be "no point"451 to seeking judicial review of what an 
interested party considers to be unlawful agency conduct, since even a correct understanding of 
the law, confirmed by an independent tribunal, co uld always be superseded by the enactment of a 
new law that renders the agency's actions lawful after the fact. China argues that this type of 
legislative intervention, if accepted, would render independent judicial review "meaningless".452 
7.284.  The Panel is not persuaded that the possibility of taking legislative action in the nature of 
Section 1 of PL 112-99 has as a consequence that there would be "no point"453 to seeking judicial 
review of what an interested party considers to be unlawful agency conduct. First, China's 
argument seems to assume that such legislative action would always side with and favour the view of the administering agency. We see no basis for that assumption.
454 Second, China's argument 
focuses on outcomes, yet Article X:3(b) does no t guarantee any outcome. Rather, Article X:3(b) 
guarantees access to judicial review, i.e. "a possib ility of an independent review and correction of 
the administrative action of every agency".455 Third, the argument seems to assume that the only 
relevant perspective is that of any interested party that is adversely affected by such legislative 
action. However, from the perspective of the legi slature, for example, there may be legitimate 
reasons for making sure that the new law is applied across the board in all relevant fact situations. Article X:3(b) does not indicate or suggest that the desire that some interested parties may have 
for judicial review to proceed on the basis of the la w in place prevails over the legislature's interest 
in using its prerogative to make or change the law. Fourth, we note the United States argument
456 
                                               
449 GPX VI ( Exhibit CHI-07), p. 4.  
450 I n  t h i s  c o n t e x t ,  i t  i s  u s e f u l  t o  r e c a l l  a n d  b e a r  i n  m i n d  a l s o  t h a t  o n e  o f  t h e  p a r t i c u l a r  f e a t u r e s  o f  
Section 1 is that it amends United States law not just in respect of pending Federal court cases but also in respect of future court proceedings as well as in re spect of USDOC and USITC proceedings and USCBP actions. 
Thus, Section 1 amends the law across  the board and does not narrowly addr ess itself only to pending court 
cases. Indeed, Section 1 is arguably directed as much  at administering agencies – USDOC, USITC and USCBP – 
as it is directed at Federal courts.  
451 China's first written submission, para. 101.  
452 Ibid.  
453 Ibid.  
454 To the contrary, Article 23 of the SCM Agreement ex plicitly guarantees access to judicial review to 
"all interested parties who participated in the administ rative proceeding and are directly and individually 
affected by the outcome". The neutral wording of Article 23 confirms that  such interested parties may well 
include domestic interested parties who would seek to cha llenge a decision by an admi nistrative agency that is 
beneficial to the exporters in a particular case.  
455 Appellate Body Report, EC – Selected Customs Matters , para. 302.  
456 United States' response to  Panel question No. 74.  WT/DS449/R 
- 96 - 
 
  that there is no reason to assume that legislative action in the nature of Section 1 of PL 112-99 
would, if not prohibited by Article X:3(b), become a "routine" occurrence. While we understand that this may be of no consolation to China in the context of the present case
457, the apparent 
exceptional nature of this kind of legislative action has a direct bearing on China's assertion that 
there would be "no point" to seeking judicial review if this kind of legislative action is possible. If, 
as we consider, such legislative action can be expected to be infrequent (see paragraph 7.288 below), due to the time and effort ordinarily required to initiate and successfully 
complete legislative action, then it is difficult to see how such infrequent legislative action would 
warrant the conclusion that there would be no point to seeking judicial review.  
7.285.  In the light of the foregoing, we are no t persuaded that the object and purpose of the 
GATT 1994, as reflected in Article X:3(b), supports th e view that Article X:3(b) prohibits legislative 
action in the nature of Section 1 of PL 112-99.  
7.6.2.1.4  Recourse to supplementary means of interpretation  7.286.   Having reviewed the text of Article X:3( b), relevant context, and its object and purpose, 
we do not consider it necessary to have recourse to supplementary means of interpretation under 
Article 32 of the Vienna Convention. However, we note that preparatory work relating to 
Article X:3(b) tends to confirm the meaning resulting from the application of the customary rules 
of interpretation reflected in Article 31 of the Vienna Convention.
458  
7.287.  The initial version of the text that ultimately became Article X:3(b) included an obligation 
for administrative agencies to implement and be go verned by judicial decisions, unless an appeal 
were lodged within the prescribed time-frame. In the context of the negotiations, the 
United States proposed that there should, in addition, be a possibility of allowing the 
administrative agency the right to seek review of the same matter in a subsequent proceeding (i.e. a so-called collateral challenge). 
7.288.  When explaining the purpose behind an amendment to include what became the proviso
459 
regarding the right to seek review of the same matter in a subsequent proceeding, the 
United States delegate explained that such a proviso was desirable because "it is extremely 
difficult and rare to introduce legislation to correct a judicial decision in customs matters, which is 
not in line with intended policy". The United States delegate continued by stating that "therefore the central authority must have the right to test such a decision in new cases".
460 The preparatory 
work further records that "[i]n the ensuing discussion several delegates made it clear that the 
practice in their respective countries was similar", with the United Kingdom delegate stating that 
"in his country customs authorities are bound by court decisions for all like cases, and corrections could be achieved only by new legislation which was not always easy".
461 While the need for such a 
proviso was the subject of discussion among delegations during the negotiations, it was ultimately 
included in the final text.  
7.289.  It thus appears that the drafters proceeded on the assumption that Article X:3(b) was 
without prejudice to the right of GATT Contracting Parties to introduce legislation to "correct" a 
judicial decision in customs matters. We recognize that the United States delegate could have been referring to legislative correction that would occur after a binding judicial decision has been issued by a reviewing tribunal and thus would affect only subsequent judicial decisions. In this 
regard, the United States delegate indicated that the proposed proviso regarding the right to seek 
review of the same matter in a subsequent proceedi ng was not intended to reopen final decisions, 
                                               
457 China's second written submission, para. 153.  
458 Pursuant to Article 32 of the Vienna Convention, a treaty interpreter may have recourse to 
supplementary means of interpretation "in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 leaves the meaning ambiguous or obscure or leads to a result wh ich is manifestly absurd or unreasonable." 
459 The proviso reads "… Provided  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." 
460 United Nations Economic and Social Council, Se cond Session of the Preparatory Committee of the 
United Nations Conference on Trade and Employment, Working Group on "Technical Articles", Summary Record 
of the Meeting of the ad hoc Sub-Committee appointed for the discussion of Article 21, paragraph 2, 
E/PC/T/WP.1/SR/3, dated 22 May 1947, p. 1.  
461 Ibid.  WT/DS449/R 
- 97 - 
 
  stating that "[t]he implementation of any final decision in the specific case to which it refers 
remains, however, unaffected". But the identified  statements nonetheless indicate that even 
though the legislature is not referred to in the text  of Article X:3(b), its dr afters were well aware, 
and apparently did not question, that legislatures can and do choose to use their legislative powers 
to respond to judicial decisions. Significantly, this possibility appears to have been viewed by 
delegations as unremarkable, even though Article X:3(b) requires that judicial decisions must 
govern the practice of agencies.  
7.290.  Thus, the Panel considers that the preparatory work of Article X:3(b) at a minimum 
confirms that Article X:3(b) does not prohibit legislatures from making or changing the law in a manner consistent with its terms. 
7.6.2.1.5  Conclusion  
7.291.  For the reasons set forth above, the Panel finds that Article X:3(b), which requires that 
administrative agencies implement and be governed  by decisions of the tribunals maintained to 
review their administrative action relating to customs matters, does not prohibit a Member from 
taking legislative action in the nature of Section 1 of PL 112-99. 
7.292.  In reaching this conclusion, it is useful to recall that we have examined whether Section 1, 
i.e. a measure with particular characteristics, is inconsistent with Article X:3(b). One of the 
particular features of Section 1 is that it amends United States law not just in respect of pending 
cases but also in respect of future cases as well as USDOC proceedings and USCBP actions. In that sense, Section 1 amends the law across the board and does not narrowly target pending court cases. In addition, we recall our finding that Article X:2 contains relevant disciplines addressing 
measures of general application within its scope, including laws of general application, that are 
enforced in respect of events or circumstances that occurred prior to their official publication.
462 
7.6.2.2  Whether the obligation in the second se ntence of Article X:3(b) is "structural" in 
nature  
7.293.  The Panel turns, finally, to the United St ates' argument that the obligation in the second 
sentence of Article X:3(b) is "structural" in nature. 
7.294.  The United States argues that Article X:3( b) imposes nothing more than what it calls an 
obligation of "structure".463 In this regard, the United States argued that 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. According to the United States, once a Member has put in place a 
"structure" of independent tribunals to review and correct agency action, it has no obligation to ensure that specific  court decisions are actually "implemented by" and "govern the practice of" the 
government agency whose action is subject to revi ew. The United States explains that "[f]or there 
to be a breach of Article X:3(b), the Member must have failed to establish tribunals that issue final decisions that shall be implemented by agencies".
464  In response to a question from the Panel, the 
United States submits that the first and second sentences of Article X:3(b) establish a single 
obligation, which is structural in nature.465 The United States refers to certain statements by the 
panel and the Appellate Body in Thailand – Cigarettes (Philippines) in support of its view that the 
obligation in Article X:3(b) is structural in nature.466    
7.295.  China rejects the United States' interpretation of the obligations under Article X:3(b).467 In 
this regard, China argues that the United States' "structural" interpretation is based exclusively on 
                                               
462 See subsection 7.5.1 of this Report.  
463 United States' oral statement at first meeting wi th the Panel, para. 3; second written submission, 
paras. 98-101; oral statement at the second meeting wi th the Panel, paras. 6, 53-54; responses to Panel 
questions Nos. 15, 71, 98, 124, 132, and comments on China's response to Panel question No. 122.  
464 United States' response to  Panel question No. 14.  
465 United States' response to Panel question No. 124(a). 
466 United States' response to  Panel question No. 98(a).  
467 China's second written submission, paras. 132-138; oral statement at the second meeting with the 
Panel, para. 21; responses to Panel questions Nos. 98 and 122, and comments on the United States' responses 
to Panel questions No. 102.  WT/DS449/R 
- 98 - 
 
  the first sentence of Article X:3(b). China submits th at even if the word "maintain" in this sentence 
could be construed to refer only to the initial establishment of such tribunals – a doubtful proposition according to China – it is the next sentence of Article X:3(b) that establishes the 
relevant obligation in this dispute. According to China, the wording of the second sentence of 
Article X:3(b) makes clear that it is a separate and mandatory obligation. This obligation relates to 
the "decisions" of independent tribunals, i.e. their actual  decisions, not just their decisions in some 
abstract legal "framework". Among other things, China argues that the use of the word "the" in 
this proviso confirms that the obligation in this sentence refers to specific  "decisions", not just 
"decisions" in the abstract. China argues that the claims under Article X:3(b) in Thailand – 
Cigarettes (Philippines) concerned the first sentence of Article X:3(b), and is not particularly 
relevant to the issues before the Panel in this dispute.
468   
7.296.  The Panel has analysed whether Article X:3(b) prohibits a Member from taking legislative 
action in the nature of Section 1 of PL 112-99. We conducted this analysis on the arguendo  
assumption that the obligation in the second sentence of Article X:3(b) goes beyond what the 
United States terms an obligation of "structure".  We have already found that the obligation in the 
second sentence of Article X:3(b) does not prohibit a Member from taking legislative action in the nature of Section 1 of PL 112-99. As a consequence, we found that Section 1 of PL 112-99 is not 
inconsistent with the United States' obligation in the second sentence of Article X:3(b), even on 
the assumption that China is correct in its view that the obligation in the second sentence of Article X:3(b) is more than a "structural" obligation. In these circumstances, it is not necessary for us to go on and examine whether that obligation is only in the nature of a "structural" obligation: 
were we to agree with the United States on this interpretative issue, this would merely serve to 
establish a separate basis for our overall conclusion that Section 1 is not inconsistent with Article X:3(b)
469; were we to agree with China on this issue, it would not affect our overall 
conclusion, as we would remain of the view that the obligation in the second sentence of 
Article X:3(b) does not prohibit a Member from taking legislative action in the nature of Section 1 of PL 112-99. Thus, we consider it unnecessary to resolve the parties' disagreement on whether 
the obligation in the second sentence of Article X:3(b) is in the nature of a "structural" obligation. 
We recall that "[j]ust as a panel has the discretion to address only those claims which must be 
addressed in order to dispose of the matter at issue in a dispute, so too does a panel have the discretion to address only those arguments it deems necessary to resolve a particular claim".
470 
7.6.3  Overall conclusion 
7.297.  For the reasons set forth above, the Panel finds that the United States has not acted 
inconsistently with Article X:3(b) of the GATT 1994, as Article X:3(b), which requires that 
administrative agencies implement and be governed  by decisions of the tribunals maintained to 
review their administrative action relating to customs matters, does not prohibit a Member from taking legislative action in the nature of Section 1 of PL 112-99. 
7.7  "Double Remedies": Articles 19. 3, 10 and 32.1 of the SCM Agreement  
7.298.  The Panel now turns to address China's claims that the United States acted inconsistently 
with Articles 19.3, 10 and 32.1 of the SCM Agreem ent. As the claims under Articles 10 and 32.1 
are in the nature of consequential claims
471, we will first examine the claim under Article 19.3.  
7.299.  Article 19 of the SCM Agreement is entitled "Imposition and Collection of Countervailing 
Duties". Article 19.3 contains several obligations, including an obligation to levy countervailing duties "in the appropriate amounts" in each case. The text of Article 19.3 reads: 
When a countervailing duty is imposed in respect of any product, such countervailing 
duty shall be levied, in the appropriate amounts in each case, on a non-discriminatory basis on imports from all sources found to be subsidized and causing injury, except as 
                                               
468 China response to Panel question No. 124(a). 
469 It is not in dispute that the United States' maintains independent tribunals for the prompt review and 
correction of administration action relating to customs matters, and that their deci sions must be implemented 
by and govern the practice of the ad ministrative agencies. See e.g. China' s first written submission, para. 88. 
470 Appellate Body Report, EC – Poultry , para. 135. See also Appellate Body Report, Dominican Republic 
– Import and Sale of Cigarettes , paras. 116-127.  
471 See paras. 7.393-7.395. WT/DS449/R 
- 99 - 
 
  to imports from those sources which have renounced any subsidies in question or 
from which undertakings under the terms of  this Agreement have been accepted. Any 
exporter whose exports are subject to a defi nitive countervailing duty but who was not 
actually investigated for reasons other than a refusal to cooperate, shall be entitled to 
an expedited review in order that the investigating authorities promptly establish an 
individual countervailing duty rate for that exporter. 
7.300.  China challenges what it describes as USDOC's "failure to investigate and avoid double 
remedies" in 26 countervailing duty (CVD) investigations and administrative reviews initiated over 
the period 2008-2012. Relying on the Appellate Body report in US – Anti-Dumping and 
Countervailing Duties (China)  (hereafter DS379), China argues that Article 19.3 obliges an 
investigating authority to "investigate" and determine, on the basis of "positive evidence", whether 
double remedies arise in situations when an investigating authority concurrently imposes CVDs 
and anti-dumping duties calculated under a nonmarket economy (NME) methodology. China submits that the United States has presented no "cogent reasons" to deviate from the Appellate 
Body's finding. China asserts that USDOC failed to take any steps to investigate and avoid double 
remedies in the investigations and reviews at issue in this dispute. Accordingly, China argues that any CVDs collected pursuant to the resulting CVD measures are inconsistent with Article 19.3.
472 
7.301.  The United States submits that China's claims are baseless both legally and factually. 
Regarding the legal basis of the claims, the United States argues that China's claim is "founded on an erroneous interpretation" of Article 19.3, and that the Appellate Body's reasoning in DS379 is 
"not persuasive". Regarding the factual basis of the claims, the United States argues that China 
has failed to substantiate its assertions regarding USDOC's alleged failure to investigate and avoid 
double remedies. Accordingly, the United States asks the Panel to reject China's claims under Article 19.3.
473  
7.302.  The Panel notes that there are two main issues. The first issue is whether, as China 
contends, Article 19.3 obliges an investigating authority to investigate and avoid double remedies when concurrently imposing CVDs and anti-dumping duties calculated under an NME methodology. 
The second issue is whether, in the CVD investigations and reviews at issue in this dispute, USDOC 
imposed CVDs concurrently with anti-dumping duties calculated under an NME methodology without investigating whether double remedies aros e. We will begin by explaining what is meant 
by "double remedies". We will then address the two main issues in turn.  
7.7.1  The concept of "double remedies"  
7.303.  The Panel considers it useful to explain what is meant by the concept of "double 
remedies", because it underlies China's claims in this dispute. In short, to the extent that a 
subsidy leads to a reduction in the export price of a product, that subsidy will necessarily be 
captured in the dumping margin if that dumping margin, and the resulting anti-dumping duty, are 
calculated using a nonmarket economy methodology that calculates normal value based on 
surrogate values from a third country. From this, it follows that if a Member imposes a CVD in an 
amount equivalent to the full amount of the subs idy in such circumstances, and an anti-dumping 
duty equivalent to the full amount of the dumping margin is concurrently imposed on the same products to offset the dumping, this will result in the subsidy being offset twice, i.e. a double 
remedy. Thus, whether or not a double remedy will arise in a particular case depends on whether 
(and to what extent) a subsidy leads to a reduction in the export price of the product at issue.  
7.304.  In DS379, both the panel and the Appellate Body elaborated on what is meant by "double 
remedies". The Appellate Body, drawing upon the panel's explanation
474, stated: 
                                               
472 China's first written submission, paras. 106-126; oral  statement at the first meeting with the Panel, 
paras. 58-74; second written submission, paras. 156-180;  oral statement at the second meeting with the 
Panel, paras. 24-31. 
473 United States' first written submission, paras. 147-203; oral statement at the first meeting with the 
Panel, paras. 41-55; second written submission, paras. 102-148; oral statement at the second meeting with 
the Panel, paras. 55-72. 
474 A detailed explanation of how and why double reme dies may arise is set out in paras. 14.67 through 
14.75 of the panel report in DS379.  WT/DS449/R 
- 100 - 
 
  In essence, "double remedies" may arise when both countervailing duties and anti-
dumping duties are imposed on the same imported products.  The term "double 
remedies" does not, however, refer simply to  the fact that both an anti-dumping and a 
countervailing duty are imposed on the same product.  Rather, as explained below, 
"double remedies", also referred to as "double counting", refers to circumstances in 
which the simultaneous application of anti-dumping and countervailing duties on the same imported products results, at least to some extent, in the offsetting of the same 
subsidization twice. [...] 
[...] When investigating authorities calcul ate a dumping margin in an anti-dumping 
investigation involving a product from an NME, they compare the export price to a normal value that is calculated based on surrogate costs or prices from a third 
country.
475  Because prices and costs in the NME are considered unreliable, prices, or, 
more commonly, costs of production, in a market economy are used as the basis for calculating normal value.
476  In the dumping margin calculation, investigating 
authorities compare the product's constructed normal value (not reflecting the amount 
of any subsidy received by the producer) with the product's actual export price (which, when subsidies have been received by the producer, is presumably lower than 
it would otherwise have been). The resulting dumping margin is thus based on an 
asymmetric comparison and is generally higher than would otherwise be the case.
477   
As the Panel explained, the dumping margin calculated under an NME methodology 
"reflects not only price discrimination by the investigated producer between the 
domestic and export markets ('dumping')", but also "economic distortions that affect 
the producer's costs of production", including specific subsidies to the investigated producer of the relevant product in respect of that product.
478  An anti-dumping duty 
calculated based on an NME methodology may, therefore, "remedy" or "offset" a 
domestic subsidy, to the extent that such subsidy has contributed to a lowering of the export price.
479 Put differently, the subsidization is "counted" within the overall 
dumping margin.  When a countervailing duty 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 countervailing  duty offsets the same subsidy a second 
time.  Accordingly, the concurrent imposition of an anti-dumping duty calculated 
based on an NME methodology, and a countervailing duty may result in a subsidy 
being offset more than once, that is, in a double remedy.  Double remedies may also arise in the context of domestic subsidies granted within market economies when anti-
dumping and countervailing duties are concurrently imposed on the same products 
and an unsubsidized, constructed, or third country normal value is used in the anti-dumping investigation.
480 
The Panel understood the United States to have accepted the principle that double 
remedies may result from the concurrent imposition, on the same product, of countervailing duties and anti-dumping  duties calculated using an NME 
methodology.
481  The United States nevertheless argued that the existence of a double 
remedy depends on whether the subsidy leads to a reduction in the export price in 
                                               
475 (footnote original ) Panel Report, para. 14.68. 
476 (footnote original ) Panel Report, para. 14.68.  The use of surrogate, market economy values 
presumptively puts the producer in the position of having  unsubsidized costs of production. (Ibid. footnote 965 
to para. 14.69) 
477 (footnote original ) The asymmetry is due to the comparison of an actual , subsidized  export price to a 
constructed , unsubsidized  normal value, rather than to an actual , subsidized normal value. (Panel Report, 
paras. 14.69 and 14.72) 
478 (footnote original ) Panel Report, para. 14.69. 
479 (footnote original ) Panel Report, para. 14.70.  The potential for double remedies is even greater in 
the context of export subsidies, which benefit only ex ported goods and therefore pr esumably lower the export 
price. ( Ibid. footnote 972 to para. 14.72) 
480 (footnote original ) However, double remedies are unlikely to result in the context of domestic 
subsidies granted within market economies if normal value is based on domestic sales.  In such cases, both the 
normal value and the export price will be lowered as a result of the domestic subsidy, so that the dumping 
margin should not be affected. (See Panel Report, footnote 972 to paragraph 14.72) 
481 (footnote original ) Panel Report, para. 14.71. WT/DS449/R 
- 101 - 
 
  any given instance, and contended that it cannot be presumed that domestic subsidies 
lower export prices pro rata,  or one-for-one.482 483   
7.305.  The parties use the term "double remedies" in the same sense in this dispute, and so do 
we. Likewise, when referring to an "NME method ology" in this Report, we are referring to a 
methodology for the calculation of dumping margins under which the export price is compared to a 
normal value that is constructed on the basis of "surrogate" costs or prices from a third country. In other words, we use the term "NME methodolog y" in the same sense as the panel and the 
Appellate Body in DS379.
484 
7.306.  In outlining the concept of double remedies above, we have sought to explain what is 
meant by "double remedies". This entails an explanation of why and how double remedies potentially  arise when CVDs are imposed concurrently with anti-dumping duties calculated under 
an NME methodology. The likelihood  of double remedies arising is a disputed issue in this case. We 
will address that issue at a subsequent step of our analysis.
485  
7.307.  Having defined the concept of "double remedies", we will now proceed to address the first 
main issue in this dispute, which relates to the interpretation of Article 19.3.  
7.7.2  The interpretation of Article 19.3  7.308.  In DS379, China argued that the imposition of double remedies is inconsistent with 
Article 19.3 and 19.4 of the SCM Agreement (and certain other WTO provisions), whereas the 
United States argued that Article 19.3 and 19.4 do not relate to the issue of double remedies. The 
panel agreed with the United States.
486 On appeal, the Appellate Body reversed the panel's 
interpretation of Article 19.3, and in this connection made two findings regarding the interpretation 
of Article 19.3, which are relevant to the present dispute: (i) the imposition of double remedies 
arising from the concurrent imposition of CVDs and anti-dumping duties calculated under an NME 
methodology is inconsistent with the obligation in Article 19.3 to levy CVDs "in the appropriate 
amounts"487; and (ii) the burden is on an investigating authority imposing such concurrent duties 
to "investigate" whether it is offsetting the same subsidies twice.488 The Appellate Body proceeded 
to complete the analysis, and found, based on the panel's factual findings and the undisputed facts 
in the panel record, that the United States acted inconsistently with Article 19.3 by virtue of 
USDOC's failure to assess whether double remedies arose in the four sets of investigations at issue in that dispute.
489  
7.309.  China agrees with both of the Appellate Body's interpretations of Article 19.3 above, and 
argues that the Panel should adopt those same interpretations in this dispute. The United States 
disagrees with both interpretations developed by  the Appellate Body. The United States also 
argues that any obligation to investigate double remedies would not apply to CVD investigations in 
the context of the United States retrospective system of duty assessment.  
7.310.  The Panel considers that the relevant issue raised in respect of China's claim under 
Article 19.3 is whether that provision obliges an investigating authority to assess the existence of 
double remedies when concurrently imposing CVDs  and anti-dumping duties calculated under an 
NME methodology, and if so, whether such an obligation applies not only to administrative 
                                               
482 (footnote original ) Panel Report, footnote 968 to para. 14.71, and para. 14.73.  The United States 
observed that, while certain domestic production subsidies will result in increased production and a reduction in 
export prices, other more general subs idies may be used for other purposes  (payments of dividends, severance 
payments, research and development), thus not resulting in any increase in production. (Panel Report, para. 14.71 and footnote 968 thereto;  United States' responses to Panel Questions 72 and 73 after the first 
Panel meeting)  A similar point is made by the European Union in its third participant's submission, at paragraph 56. 
483 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , paras. 541-544.  
484 Panel Report, US – Anti-Dumping and Countervailing Duties (China) , para. 14.68; Appellate Body 
Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 542. 
485 See para. 7.335.  
486 Panel Report, US – Anti-Dumping and Countervailing Duties (China) , paras. 14.104-14.130. 
487 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , paras. 547-583, 
and 611(d)(i) and (ii).  
488 Ibid. paras. 596-602. 
489 Ibid. paras. 603-606. WT/DS449/R 
- 102 - 
 
  reviews, but also to original investigations, in  the context of a retrospective system of duty 
assessment such as that of the United States.490 To address this issue, we will consider the 
following: first, whether we should revisit the interpretation of Article 19.3 notwithstanding the Appellate Body Report in DS379; second, whether the phrase "in the appropriate amounts" in 
Article 19.3 relates to only the non-discrimination obligation in that provision, as the United States 
contends; third, whether an investigating authority is under an affirmative obligation to investigate the existence of double remedies; and fourth, whether the obligation in Article 19.3 applies to 
original investigations in the context of the United States retrospective system of duty assessment. 
We will address these issues in this order.   
7.7.2.1  The task of the Panel in the light of the prior Appellate Body Report in DS379 
7.311.  The United States argues that with respect to the interpretation of Article 19.3, the Panel is 
to undertake its own interpretation of that provision by applying the customary rules of 
interpretation of public international law. The United States submits that a WTO panel is not bound to follow the reasoning set forth in any adopted panel or Appellate Body report. In its view, the 
rights and obligations of the Members flow not fr om adoption by the DSB of panel or Appellate 
Body reports, but from the text of the covered ag reements. The United States argues that "a prior 
Appellate Body report is to be taken into account only to the extent it is relevant and a panel 
should follow the reasoning in a prior Appellate Body report only if that panel found the reasoning 
to be persuasive".
491 The United States recalls that the Appellate Body has also itself recognized 
that at a minimum panels are "free to depart"492 from prior Appellate Body findings where there 
are "cogent reasons", and one example of a coge nt reason would be where the Appellate Body 
findings are not persuasive or not in keeping with the covered agreements.493  
7.312.  The United States also submits that it has presented new arguments regarding the 
interpretation of Article 19.3 that were not consid ered by the Appellate Body in DS379, and states 
that Article 19.3 was not the focus of China’s ar guments in DS379. According to the United States, 
China did not argue for the interpretation of Arti cle 19.3 that the Appellate Body adopted in DS379 
and largely based it claims on Article 19.4. For this reason, the United States submits that it never 
had an opportunity to address the interpretation  adopted by the Appellate Body in DS379, and 
that the reasoning of the Appella te Body "strayed far afield"494 from the arguments presented by 
the parties in DS379. Thus, this dispute represents the first opportunity the United States has had to address rationales first introduced by the Appellate Body in DS379.
495 
7.313.  China argues that the Panel should reject the United States' invitation to revisit the 
interpretation of Article 19.3. China recalls prio r Appellate Body statements to the effect that 
panels are expected to follow Appellate Body interpretations where the issues are the same, 
including the need for "cogent reasons" to deviate from a prior Appellate Body interpretation. The 
Appellate Body has not defined the concept of "cog ent reasons", but, according to China, it cannot 
be the case that rehearsing arguments that are materially indistinguishable from arguments that 
the Appellate Body considered and rejected in DS379 would qualify. Likewise, China argues that 
the mere assertion that the Appellate Body findings are "not persuasive or not in keeping with the covered agreements" is not a "cogent reason" for the Panel to decline to follow the Appellate Body's interpretation. China argues also that this is particularly true in a dispute, such as this one, 
                                               
490 In US – Section 129(c)(1) URAA , the panel provided the following description of the US retrospective 
duty assessment system: "The United States employs a 'retrospective' duty assessment system under which definitive liability for antidumping or countervailing duties is determined after merchandise subject to an 
antidumping or countervailing duty measure enters the United States. The determination of definitive duty liability is made at the end of "administrative reviews"  which are initiated by th e Department of Commerce 
each year on request by an interested party (such as th e foreign exporter or the US importer of the imports), 
beginning one year from the date of the order.  In addition to calculating an assessment rate in respect of the entries under review, administrative reviews also dete rmine the cash deposit rates for estimated antidumping 
or countervailing duties that will be required as a security on future entries, until subsequent administrative reviews are conducted with respect to those entries." (Panel Report, US – Section 129(c)(1) URAA , para. 1.6). 
491 United States' response to  Panel question No. 41.   
492 Ibid.   
493 United States' first written submission, paras. 190-192; oral statement at the first meeting of the 
Panel, paras. 49-50; response to Panel question No. 41; second written submission, para. 129; oral statement 
at the second meeting of  the Panel, para. 56. 
494 United States' second written submission, para. 142. 
495 United States' first written submission, paras. 189, 192; oral statement at the first meeting of the 
Panel, para. 49; response to Panel question No. 31; second written submission, paras. 137, 142-145.   WT/DS449/R 
- 103 - 
 
  that involves the same litigants, the same types of measures, and the same claims, in relation to 
an issue of interpretation that was analysed exhaustively by the Appellate Body in its report. China asserts that the attempt by the United States to re-litigate an interpretative issue that the Appellate Body has already resolved is "even more surprising and inappropriate"
496 in light of the 
fact that Congress enacted a new provision of United States law to comply with that decision. 
China charges that it is "wasteful in the extreme"497 to continue litigating these issues when the 
United States has already taken steps to bring itself into compliance, and inconsistent with the 
goal of bringing security and predictability to the multilateral trading system.498   
7.314.  China further argues that in its appeal of the panel report in DS379, China advocated 
precisely the interpretation of Article 19.3 that the Appellate Body adopted. China submits that the 
United States had every opportunity to present arguments in opposition to this interpretation. 
China further argues that the "new" arguments that the United States put forward in this case are 
"materially indistinguishable"499 from those considered by the Appellate Body in DS379, and 
amount to "nothing more than taking issue" wi th the Appellate Body's detailed interpretative 
analysis of this provision.500   
7.315.  The Panel is presented with an interpretative issue that has already been resolved in an 
adopted Appellate Body report in another dispute.  The Appellate Body has stated that its legal 
interpretation of a provision in the covered agre ements "is not limited to the application of a 
particular provision in a specific case".501 The Appellate Body has emphasized that "following the 
Appellate Body's conclusions in earlier disputes is not only appropriate, but is what would be expected from panels, especially where the issues are the same".
502 In the Appellate Body's view, 
this expectation supports "a key objective of the dispute settlement system", namely, "to provide 
security and predictability to the multilateral trading system".503 The Appellate Body has stated 
that a failure to acknowledge the "hierarchica l structure" contemplated in the DSU would 
"undermine[] the development of a coherent and predictable body of jurisprudence clarifying 
Members' rights and obligations under the covered agreements".504 In US – Stainless Steel 
(Mexico) , the Appellate Body stated that it was "deeply concerned about the Panel's decision to 
depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same 
legal issues", and explained that the panel's approach in that dispute had "serious implications for the proper functioning of the WTO dispute settlement system".
505 The Appellate Body explained 
that the DSU contains a number of provisions that support this view, including, among others, 
Articles 3.2, 17.6, and 17.13.506 
7.316.  We understand these considerations to underlie the Appellate Body's conclusion that, 
absent "cogent reasons"507, an adjudicatory body will resolve the same legal question in the same 
way in a subsequent case. The Appellate Body ha s not defined the concept of "cogent reasons". 
However, the Appellate Body's reference to "cogent reasons" must in our view be considered in the 
context of the Appellate Body's other statements regarding the hierarchy provided for in the DSU 
between itself and panels, the objectives that ar e served through the development of a consistent, 
coherent and predictable body of jurisprudence,  and the concerns that it has expressed when 
panels have departed from its prior jurisprudence.  
7.317.  From the foregoing we conclude that a panel must take the Appellate Body's prior 
interpretation as a point of departure in its inte rpretative analysis. However, a panel may confront 
the issue, e.g. because it has been raised by a party, of whether there are any arguments or there 
                                               
496 China's oral statement at the first meeting, para. 67.  
497 Ibid. 
498 China's oral statement at the first meeting, paras. 62-67; response to Panel question No. 41; second 
written submission, para 31.  
499 China's oral statement at the first meeting, para. 67; response to Panel question No. 41.  
500 China's oral statement at the first meetin g, paras. 65-66; second written submission, 
paras. 173-175; oral statement at the second meeting, para. 31.  
501 Appellate Body Report, US – Stainless Steel (Mexico) , para. 161. 
502 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 188. 
503 Appellate Body Report, US – Continued Zeroing , para. 362. 
504 Appellate Body Report, US – Stainless Steel (Mexico) , para. 161. 
505 Ibid. paras. 160 and 162. 
506 Ibid. para. 161. 
507 Appellate Body Report, US – Stainless Steel (Mexico) , para. 160; Panel Report, US – Continued 
Zeroing , paras. 7.174, 7.179-7.180; Appellate Body Report, US – Continued Zeroing , para. 362.  WT/DS449/R 
- 104 - 
 
  is any evidence submitted to the panel that would provide "cogent reasons" to reach a different 
interpretation. In our view, bearing in mind the Appellate Body's particular function in the WTO dispute settlement system, reasons that could support but would not compel a different interpretative result to the one ultimately adop ted by the Appellate Body would not rise to the 
level of "cogent" reasons. To our minds, "cogent"  reasons, i.e. reasons that could in appropriate 
cases justify a panel in adopting a different interpretation, would encompass, inter alia : (i) a 
multilateral interpretation of a provision of the covered agreements under Article IX:2 of the WTO 
Agreement that departs from a prior Appellate Body interpretation; (ii) a demonstration that a 
prior Appellate Body interpretation proved to be unworkable in a particular set of circumstances falling within the scope of the relevant obligation at issue; (iii) a demonstration that the Appellate Body's prior interpretation leads to a conflict with another provision of a covered agreement that 
was not raised before the Appellate Body; or (iv) a demonstration that the Appellate Body's 
interpretation was based on a factually incorrect premise.  
7.7.2.2  The meaning of the phrase "in th e appropriate amounts" in Article 19.3  
7.318.  With the above observations in mind, the Panel now turns to the meaning of the phrase "in 
the appropriate amounts" in Article 19.3. We recall that in DS379, the Appellate Body found that the imposition of double remedies would be inconsistent with Article 19.3, specifically with the 
obligation to levy CVDs "in the appropriate amounts" in each case.
508 The issue which the United 
States' arguments present us with is whether there are cogent reasons to depart from the Appellate Body's interpretation of the phrase "in the appropriate amounts" in Article 19.3.  
7.319.  The United States argues that Article 19.3 is essentially a non-discrimination provision 
requiring that CVDs be levied "on a non-discriminatory basis on imports ... from all sources" found 
to be subsidized and causing injury, and that th e phrase "the appropriate amounts in each case" 
simply means that a Member is permitted to im pose different amounts of CVDs upon different 
exporters because different producers and exporters of the product in question may have received 
different amounts of subsidies. The United States argues that the Appellate Body's interpretation of the phrase "appropriate amounts", which results in a subjective and open-ended concept and 
goes far beyond the non-discrimination principle in Article 19.3, is not persuasive.
509 In support of 
its interpretation of the phrase "in the appropriate amounts", the United States presents arguments based on a textual analysis of these terms and the remainder of Article 19.3
510; a 
contextual analysis of the structure of the SCM Agreement and the nature and scope of the 
obligations in Articles 19.1, 19.2, and 19.4511; the interpretation developed by the panel in EC – 
Salmon (Norway)512; and the rules that govern(ed) the concurrent application of CVDs and anti-
dumping duties in Article VI:5 of the GATT 19 94 and Article 15 of the Tokyo Round Subsidies 
Code.513 In the context of providing comments on Chin a's responses to the second set of questions 
from the Panel, the United States presents an argument based on what it terms the "negotiating history" of Article 19.3.
514 
7.320.  China relies on the Appellate Body's interpretation of the phrase "in the appropriate 
amounts" in DS379. In this regard, China recalls that the Appellate Body found that the amount of a CVD cannot be "appropriate" within the meaning of Article 19.3 in situations where that duty 
represents the full amount of the subsidy and where antidumping duties, calculated at least to 
some extent on the basis of the same subsidization, are imposed concurrently to remove the same 
injury to the domestic industry.
515 China counters that the "new" arguments that the United States 
put forward in this case are "materially indistingu ishable" from those considered by the Appellate 
                                               
508 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , paras. 547-583.  
509 United States' first written submission, paras. 163-188, and 193-196; oral statement at the first 
meeting, paras. 51-53; response to Panel question No. 44; second written submission, para. 131; oral 
statement at the second meeting, paras. 58-59. 
510 United States' first written submission, paras. 163-170; oral statement at the first meeting, para. 51. 
511 United States' first written submission, paras. 171-176 and 193-195; oral statement at the first 
meeting, para. 52. 
512 United States' first written submission, paras. 177-181. 
513 Ibid. paras. 183-188. 
514 United States' comments on China's response to Panel question No. 108. 
515 China's first written submission, paras. 120-121; oral  statement at the first meeting, paras. 60-61; 
second written submission, para. 168. WT/DS449/R 
- 105 - 
 
  Body in DS379, and amount to "nothing more than  taking issue with the Appellate Body's detailed 
interpretative analysis of this provision".516   
7.321.  The Panel agrees with China that most of the arguments that the United States has 
presented in this case are similar to those considered by the Appellate Body in DS379. At a 
minimum, this holds true for the United States' arguments regarding the interpretation developed 
by the panel in EC – Salmon (Norway)517, and the provisions governing the concurrent application 
of CVDs and anti-dumping duties in Article VI :5 of the GATT 1994 and Article 15 of the Tokyo 
Round Subsidies Code.518 As regards the United States' textual analysis of the phrase "in the 
appropriate amounts" and the remainder of Article 19.3519, and its contextual analysis of the 
structure of the SCM Agreement and the nature and scope of the obligations in Article 19.1, 19.2, 
and 19.4520, this appears to be an elaboration of the same interpretation that the Appellate Body 
considered and rejected in DS379. The Appellate Body devoted nine pages of analysis to the text 
of Article 19.3521 and its context522, including but not limited to express consideration of Articles 
10, 19.1, 19.2, 19.3, 21.1, 32.1 of the SCM Agreement, the parallel provisions of the Anti-
Dumping Agreement, and Article VI:5 and the Ad Note to Article VI:1 of the GATT 1994. The 
Appellate Body reached a different conclusion regard ing the interpretation of these provisions from 
that advanced by the United States.523 
7.322.  We do not agree with the United States that it was Article 19.4, and not Article 19.3, that 
was the focus of China’s arguments in DS379.524 It is clear from the panel report in DS379 that a 
number of the interpretative arguments advanced by the parties and considered by the panel, were relevant both to Articles 19.3 and 19.4. Rather than repeating its analysis, the panel simply 
incorporated it by reference in the context of its relatively brief section on Article 19.3. As the 
Appellate Body noted in its own report: 
The Panel reviewed what it considered to be relevant contextual elements for its 
interpretation of Article 19.4 of the SCM Agreement .  However, the Panel also recalled 
these contextual elements in its interpretation of Article 19.3 and noted that "[t]he same considerations likewise suggest that it was not the intention of the drafters [of] 
the SCM Agreement to address the question of  double remedies in Article 19.3 of the 
SCM Agreement". (Panel Report, para. 14.129)
525 
7.323.  We consider that the United States' arguments in this case rebut a position that the 
Appellate Body did not actually take in DS379. According to the United States, "[t]he 
interpretation advanced by the Appellate Body … does not relate the phrase 'in the appropriate 
amounts' at all to the non-discrimination obligations of Article 19.3".526  However, it appears to us 
that the Appellate Body accepted that the meaning of the phrase "in the appropriate amounts" is 
informed by, and linked to, the non-discrimination obligation in Article 19.3. The Appellate Body 
observed in this regard that the first sentence of Article 19.3 contains two elements: first, a requirement that CVDs be levied in the appropriate amounts in each case, and, second, a 
requirement that these duties be levied on a non-discriminatory basis on imports of such product 
from all sources found to be subsidized and causing injury, except for imports from sources that 
                                               
516 China's oral statement at the first meetin g, paras. 65-66; second written submission, 
paras. 173-175; oral statement at the second meeting, para. 31. 
517 United States' first written submission, paras. 177-181; Appellate Body Report, US – Anti-Dumping 
and Countervailing Duties (China) , para. 575. 
518 United States' first written submission, paras. 183-188; Appellate Body Report, US – Anti-Dumping 
and Countervailing Duties (China) , paras. 565-569, 576-581. 
519 United States' first written submission, paras. 163-170; oral statement at the first meeting, para. 51. 
520 United States' first written submission, paras. 171-176 and 193-195; oral statement at the first 
meeting, para. 52. 
521 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , paras. 551-553. 
522 Ibid. paras. 554-572. 
523 China's second written submission, paras. 173-174. See Appellate Body Report, US – Anti-Dumping 
and Countervailing Duties (China) , paras. 550-572. 
524 United States' first written submission, paras. 189, 192; oral statement at the first meeting of the 
Panel, para. 49; response to Panel question No. 31; second written submission, paras. 137, 142-145.   
525 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , fn. 533. 
526 United States' first written submission, para. 193. WT/DS449/R 
- 106 - 
 
  have renounced the relevant subsidies or fr om which undertakings have been accepted.527 The 
Appellate Body then explained that: 
We consider that 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 
countervailing duties on imports from sources that have renounced relevant subsidies, 
or on imports from sources whose price undertakings have been accepted.  Similarly, 
because the requirement that the duty be levied in "appropriate amounts" implies a 
certain tailoring of the amounts according to circumstances, this suggests that the 
requirement that the duty be imposed on a non-discriminatory basis on imports from 
all subsidized sources should not be read in an overly formalistic or rigid manner.   The 
second sentence of Article 19.3 provides a specific example of circumstances in which 
it is permissible not to differentiate amongst individual exporters, as well as of when 
and how differentiated treatment in the esta blishment of a countervailing duty rate is 
required.528 
7.324.  Thus, the Appellate Body did not read the phrase "in the appropriate amounts" in isolation 
from the non-discrimination obligation in Article 19.3. Rather, the Appellate Body determined that these two obligations "inform" one another. Howeve r, the Appellate Body's analysis of the phrase 
"in the appropriate amounts" shows that it did not read this phrase as being linked exclusively  to, 
or informed exclusively by, the non-discriminatio n obligation in Article 19.3. Put differently, it 
appears that both the United States and the Appe llate Body considered that the phrase "in the 
appropriate amounts" must be interpreted having regard to its context. The United States 
understood the relevant context to consist of the non-discrimination obligation in Article 19.3. The 
Appellate Body understood the relevant context to include  the non-discrimination obligation in 
Article 19.3, but also other  obligations in the SCM Agreement and Anti-Dumping Agreement. This 
is a significant difference, and so we are not sugge sting that the Appellate Body's interpretation of 
Article 19.3 is essentially the same as the interpretation advocated by the United States. The critical point is that the Appellate Body did not suggest that the phrase "in the appropriate 
amounts" is unconnected to the non-discrimination obligation in Article 19.3. Rather, it concluded 
that the phrase "in the appropriate amounts" is not unconnected to other  obligations contained in 
the SCM Agreement, as well as the Anti-Dumping Agreement. Accordingly, we consider that the 
United States' argument intended to demonstrate that the phrase "in the appropriate amounts" 
must be interpreted in a manner that links it to the non-discrimination obligation in Article 19.3 
does not invalidate the Appellate Body's interpretation of that phrase.  
7.325.  This leads us to the United States' arguments relating to the origins of the phrase "in the 
appropriate amounts". At the second meeting with the Panel, and again in the context of providing 
comments on China's written responses to the second and final set of questions from the Panel, the United States presented an argument based on  what it termed the "negotiating history" of 
Article 19.3.
529  In this regard, the United States traces the phrase "in the appropriate amounts" 
back to the 1960 "Second Report of the Group of  Experts on Anti-Dumping and Countervailing 
Duties" (L/1141); a 1965 "Draft International Code on Anti-Dumping Procedure and Practice" (Spec(65)86); a 1966 Secretariat document on "Draft Elements to Be Considered for Inclusion in 
an Anti-Dumping Code" (TN.64/NTB/W/13); a "Revised List" of elements (TN.64/NTB/W/14); and 
the Kennedy Round Antidumping Code, and the Tokyo Round Subsidies Code.
530 According to the 
United States, these documents suggest that the GATT Contracting Parties viewed the phrase "in 
the appropriate amounts" as being linked to the non-discrimination obligation that is now 
                                               
527 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 552. 
528 Ibid. para. 553. (emphasis added) 
529 The Panel notes that the United States presented its argument regarding the negotiating history to 
the Panel and China orally at the second panel meeting, an d provided relevant citations orally, in the context of 
providing an oral answer to a Panel qu estion on an issue relate d to the interpretation of Article 19.3. However, 
in its subsequent written response to the same question, the United States did not refer to the negotiating history. In its comments on China's responses to the second set of questions, the United States argues that "China has regrettably refused to engage  with that material", and then proceed s to present, for the first time in 
writing, its argument based on the negotiating history of Article 19.3. United States' comments on China's response to Panel question No. 108. Question No. 108 reads, "How does China respond to the US suggestion, 
at paragraphs 105 and 113 of its second written submission , that China has resorted to '"shortcuts' instead of 
making a prima facie case?" 
530 United States' comments on China's response to Panel question No. 108. WT/DS449/R 
- 107 - 
 
  contained in Article 19.3 of the SCM Agreement.531 We need not express a view on whether a 
panel could depart from a prior Appellate Body interpretation on the basis of "supplementary means of interpretation" under Article 32 of the Vienna Convention in the situation where the Appellate Body concluded that the text and context of the provision at issue were sufficiently clear 
and that it was therefore not necessary to have re course to supplementary means of interpretation 
to confirm that interpretation.
532 As we have explained above, we do not understand the Appellate 
Body report in DS379 to mean that the phrase "in the appropriate amounts" is "unconnected"533 to 
the non-discrimination obligation in Article 19.3. Therefore, even if the documents submitted by 
the United States supported the view that the phrase "in the appropriate amounts" must be read together with the non-discrimination obligation in Article 19.3, these historical documents would not invalidate the Appellate Body's interpretation in DS379. Moreover, the United States did not 
indicate to us that any of the special circumstance s of the type outlined in paragraph 7.20 above, 
which could constitute "cogent" reasons that could in appropriate cases justify a panel in adopting a different interpretation, are applicable in the current case. 
7.326.  In the light of the foregoing, the Panel considers that the United States has not presented 
"cogent reasons" to depart from the Appellate Body 's prior interpretation that the imposition of 
double remedies is inconsistent with the obligation in Article 19.3 to levy CVDs "in the appropriate 
amounts in each case".
534  Accordingly, we will base our analysis of China's claim on the Appellate 
Body's interpretation.  
7.7.2.3  Whether an investigating authorit y is under an affirmative obligation to 
investigate the existence of double remedies   
7.327.  The Panel, having considered the meaning of the phrase "in the appropriate amounts" in 
Article 19.3, will now proceed to consider whether there are cogent reasons to depart from another element of the Appellate Body's interpretation of Article 19.3. This concerns the issue, put before 
us by the United States, whether an investigating authority is under an affirmative obligation to 
investigate the existence of double remedies. We recall that in DS379, the Appellate Body found that an investigating authority is "subject to an affirmative obligation to establish the appropriate 
amount of the duty under Article 19.3", and that  this "affirmative obligation" encompasses "a 
requirement to conduct a sufficiently diligent 'investigation' into, and solicitation of, relevant facts, and to base its determination on positive evidence in the record".
535  
7.328.  The United States disagrees with the Appellate Body's finding that Article 19.3 establishes 
an affirmative obligation to investigate the existence of double remedies. On its face, Article 19 
does not contain any obligations that require an administering authority to engage in an investigative function. The United States observes that Article 19 is entitled "imposition and 
collection" of CVDs, and Article 19.3 sets out an obligation relating to the CVD "levied". The 
United States argues that nothing in Article 19.3 relates to an obligation to investigate and other provisions in the SCM Agreement govern the conduc t of investigations. The United States submits 
that, to find a duty to investigate residing in Article 19.3, the Appellate Body in DS379 states that 
it relied on the one hand on its findings in US – Countervailing Measures on Certain EC Products  to 
draw a parallel between Article VI:3 of the GA TT 1994 on the one hand, and Articles 19.3 and 19.4 
of the SCM Agreement on the other hand. However, the United States avers that the analogy is 
misplaced because no parallel exists between Arti cle VI:3 and Article 19.3, and the Appellate Body 
also misconstrued its prior findings in US – Countervailing Measures on Certain EC Products.  
7.329.  The United States also disagrees with the premise that double remedies are "likely" to 
arise when CVDs are imposed concurrently with anti-dumping duties determined in accordance 
with the United States NME methodology.
536 The United States argues that  "the Appellate Body in 
                                               
531 Ibid. 
532 The Panel recalls that in DS379, the Appellate Body concluded that "having reviewed Article 19.3 of 
the SCM Agreement  and its relevant context, we do not consider it necessary to confirm the interpretation of 
Article 19.3 of the SCM Agreement  by relying on supplementary means of  interpretation". (Appellate Body 
Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 579). 
533 United States' first written submission, paras. 174 and 176; oral statement at the first meeting with 
the Panel, para. 7. 
534 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , paras. 547-583. 
535 Ibid. para. 602.   
536 United States' first written submission, paras. 198-201; response to Panel questions Nos. 32 and 78. WT/DS449/R 
- 108 - 
 
  DS379 presumed that domestic subsidies automatically lower export prices to some degree"537; 
however, the United States argues, this depends on the form of the subsidy, market forces, and other circumstances. The United States calls upon the Panel not to assume the same findings of the panel in DS379, but rather to make its own objective assessment of the facts. The 
United States further contends that China has made no effort to demonstrate the existence of a 
double remedy in any of the challenged sets of investigations and reviews or to identify evidence from any of the challenged determinations that  would support the "presumptive" theory adopted 
by the panel, and subsequently by the Appellate Body, in DS379.  
7.330.  China relies on the Appellate Body's finding that an investigating authority is under an 
"affirmative obligation" to investigate double remedies. China recalls that the Appellate Body 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".  According to China, this includes taking into 
account "evidence of whether and to what degree the same subsidies are being offset twice", 
bearing in mind that double remedies are "likely"  when the corresponding anti-dumping duties are 
determined in accordance with the United States NME methodology.  
7.331.  China argues that the Appellate Body's legal finding that an investigating authority has an 
affirmative duty to investigate was based on the panel's finding in DS379, with which the Appellate 
Body agreed, that double remedies are "likely" to arise when CVDs are imposed concurrently with anti-dumping duties determined in accordance with the United States NME methodology. China 
notes that the United States has opted not to chal lenge this finding before the Appellate Body in 
DS379. According to China, the United States ha s presented no reason to support reaching a 
different factual conclusion from what the pane l found in DS379. Accordingly, China argues, the 
Panel can and should adopt this finding.  
7.332.  The Panel considers it useful to set out th e Appellate Body's statements on this issue in 
DS379: 
On appeal, China claims that it is "the obligation of the investigating authority to 
investigate  and make a determination as to whether it is offsetting the same subsidies 
twice", whereas the United States argues that "the burden to establish the existence of such an alleged double remedy would be on China". 
We observe that, in US – Countervailing Measures on Certain EC Products , the 
Appellate Body stated that, "under Article VI:3 of the GATT 1994, investigating authorities, before imposing countervailing duties, must ascertain the precise amount 
of a subsidy attributed to the imported products under investigation."
538  We consider 
that a parallel can be drawn between the obligation of an investigating authority under Article VI:3 of the GATT 1994 to determine th e precise amount of the subsidy, on the 
one hand, and the analogous obligations that an investigating authority has under 
Articles 19.3 and 19.4 of the SCM Agreement , on the other hand, to determine and 
levy countervailing duties in amounts that are appropriate in each case and that do not exceed the amount of the subsidy found to exist. 
In the same way, therefore, as an investig ating authority is subject to an affirmative 
obligation to ascertain the precise amount of the subsidy, so too is it subject to an affirmative obligation to establish the appropriate amount of the duty under 
Article 19.3. This obligation encompasses a requirement to conduct a sufficiently 
diligent "investigation" into, and solicitation of, relevant facts, and to base its determination on positive evidence in the record. We recall our finding above that, 
among the factors to be taken into account by an investigating authority, in 
establishing the "appropriate" amount of countervailing duty to be imposed, is evidence of whether and to what degree th e same subsidies are being offset twice 
when anti-dumping and countervailing duties are simultaneously imposed on the same 
imported products.  We also recall that such double remedies are "likely" when the 
                                               
537 United States' first written submission, para. 198. 
538 (footnote original ) Appellate Body Report, US – Countervailing Measures on Certain EC Products , 
para. 139. (footnote omitted) WT/DS449/R 
- 109 - 
 
  concurrent anti-dumping duties are calculated on the basis of an NME 
methodology.539 540 
7.333.  We agree with the United States that the text of Article 19.3 does not contain any explicit 
obligation to "investigate" the existence of double remedies. However, we do not consider that this 
is sufficient, in and of itself, to undermine the Appellate Body's conclusion. In our view, the 
Appellate Body based its finding on a necessary implication  arising from the words that are found 
in Article 19.3. That is, the Appellate Body appeared to reason that the obligation to assess and 
collect CVDs in the appropriate amounts necessarily implies an affirmative obligation to first 
establish what the appropriate amount is.  
7.334.  We do not agree with the United States  that the Appellate Body relied on a misplaced 
analogy in referring to its prior analysis in US – Countervailing Measures on Certain EC Products. 
In that dispute, the Appellate Body examined Article VI:3 of the GATT 1994.  Article VI:3 states 
t h a t  i n  o r d e r  t o  o f f s e t  o r  p r e v e n t  d u m p i n g ,  a  M e m b e r  " m a y  l e v y  o n  a n y  d u m p e d  p r o d u c t  a n  anti-dumping duty not greater in amount than the margin of dumping in respect of such product". 
In US – Countervailing Measures on Certain EC Products , the Appellate Body reasoned that these 
terms imply an obligation to "ascertain the precise amount of a subsidy attributed to the imported 
products under investigation".
541  The Appellate Body reached that view by interpreting Article VI:3 
in the context of a number of other provisions, including Articles 10 and 19.4 of the SCM 
Agreement. In DS379, the Appellate Body examin ed Article 19.3 of the SCM Agreement, which 
states that when a CVD is imposed in respect of any product, such CVD "shall be levied, in the appropriate amounts in each case …". In DS379, the Appellate Body reasoned that these terms of 
Article 19.3 implied "an affirmative obligation to establish the appropriate amount of the duty 
under Article 19.3".
542 The Appellate Body reached that view by interpreting Article 19.3 in the 
context of a number of other provisions, includin g Articles 10 and 19.4 of the SCM Agreement. 
Thus, we see the analogy on which the Appella te Body relied as apt, and not misplaced. 
7.335.  We have indicated that if there was a demonstration that an Appellate Body interpretation 
was based on a factually incorrect premise, this could amount to a "cogent reason" to depart from 
that interpretation.543 The United States argues that "the Appellate Body in DS379 presumed that 
domestic subsidies automatically lower export pric es to some degree, but such a presumption is 
speculative", and that "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".
544  
7.336.  We understand the Appellate Body's interpretation of Article 19.3 to stem, at least in part, 
from the fact that the Appellate Body, like the panel, accepted the "general proposition"545 that 
double remedies are "likely" to arise when CV Ds are imposed concurrently with anti-dumping 
duties determined in accordance with the United States NME methodology.546 China agrees with 
that proposition.547 The United States challenges that proposition, arguing that "the Appellate Body 
in DS379 presumed that domestic subsidies automatically lower export prices to some degree, but 
such a presumption is speculative".548 In the light of the United States' arguments, we will proceed 
to examine (i) what the panel and Appellate Bo dy actually said in DS379, (ii) whether the 
United States raises issues here that were not considered in DS379, and (iii) China's uncontested assertions regarding USDOC findings in the Section 129 redeterminations for the four 
investigations that were at issue in DS379.  
                                               
539 (footnote original ) Panel Report, paras. 14.67 and 14.75. We also note that the Panel expressed the 
view that the USDOC had itself recognized the potent ial for double remedies in  such circumstances. (See Ibid. 
para. 14.71, and the statements quoted in footnote 966 thereto) 
540 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , paras. 600-603.   
541 Appellate Body Report, US – Countervailing Measures on Certain EC Products , para. 139. (footnote 
omitted) 
542 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 602. 
543 See para. 7.317. 
544 United States' first written submission, paras. 198, 200. 
545 Panel Report, US – Anti-Dumping and Countervailing Duties (China) , paras. 14.67, 14.75; Appellate 
Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 599. 
546 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 602. 
547 China's first written submission, paras. 116-122; second written submission, paras. 159-161. 
548 United States' first written submission, para. 198. WT/DS449/R 
- 110 - 
 
  7.337.  First, we consider what the panel and Ap pellate Body actually said in DS379. The panel 
and the Appellate Body in DS379 both accepted the "general proposition" that double remedies are 
"likely" to arise from the concurrent imposition of CVDs and anti-dumping duties calculated under an NME methodology. The panel and the Appellate  Body discussed this general proposition in 
detail.
549 The  Appellate Body, like the panel in DS379, explicitly made clear that it was not 
convinced that double remedies necessarily  result in every instance of such concurrent application 
of CVDs and anti-dumping duties ca lculated under the NME methodology: 
We do not accept China's contention that a finding of inconsistency of the measures at 
issue must directly follow from our reversal of the Panel's interpretation of Article 19.3 of the SCM Agreement .  We have expressed the view that, as a legal matter, this 
provision prohibits double remedies.  But, we have not yet considered the question of 
when, as a factual m a t t e r ,  d o u b l e  r e m e d i e s  a r i s e .   I n  p r i n c i p l e ,  w e  a g r e e  w i t h  t h e  
statement by the Panel that double remedies would likely result from the concurrent 
application of anti-dumping duties calculat ed on the basis of an NME methodology and 
countervailing duties
550, but we are not convinced that double remedies necessarily  
result in every instance of such concurrent application of duties.  This depends, rather, on whether and to what extent domestic subsidies have lowered the export price of a 
product, and on whether the investigating authority has taken the necessary 
corrective steps to adjust its methodology to take account of this factual situation.
551 
7.338.  In the light of this, it appears to us that the United States misreads the panel and 
Appellate Body reports in DS379 when the United States argues that "the Appellate Body in DS379 
presumed that domestic subsidies automatically lower export prices to some degree".552 Second, 
insofar as the United States is actually challenging the general proposition that double remedies are "likely" to lower export prices to some degree, its arguments appear to be the same 
arguments presented to, and rejected by, the panel in DS379. In this case, the United States 
argues that whether a subsidy lowers export prices depends on the form of the subsidy, market forces, and other circumstances.
553 When presented with similar arguments, the panel in DS379 
responded:    
The United States puts forward a number of scenarios under which it is plausible that 
the subsidy would not have a one-for-one impact on the producer's costs of production or on export prices.  The United States also points out that the imposition 
of countervailing duties is not conditioned up on a demonstration of the price effects of 
the subsidy; in other words, that a Member is allowed to countervail subsidies that have no effects on the price of subsidized imports.
  
All else being equal, one would expect a domestic subsidy to lower the recipient's 
production costs, allowing that producer to lower its prices in both the domestic and export markets.
554  It would, in our view, be a rare case in which a subsidy bestowed 
upon the producer of an exported good has no effect at all  on either the producer's 
costs of production or – assuming they are relevant – export prices, such that no portion of that subsidy would be subject to a double remedy where both anti-dumping 
                                               
549 Panel Report, US – Anti-Dumping and Countervailing Duties (China) , paras. 14.67-14.75, and in 
particular paras. 14.67, 14.70, and 14.72 (double coun ting "likely to result"). Appellate Body Report, US – 
Anti-Dumping and Countervailing Duties (China) , para. 599 (agreeing with the panel's conclusion that double 
remedies "would likely result"). We no te in passing that the record contains  a report by the United States GAO 
and decisions by the CIT wherein these entities similarly determined that there is a "substantial" and "high" potential that double remedies will arise from the conc urrent imposition of CVDs and anti-dumping duties 
calculated under the United States' NME methodology. S ee GAO Report (Exhibit CHI- 16), at p. 33 (maintaining 
its view, in response to comments from USDOC, that th ere is "substantial potential" for double counting); GPX 
II (Exhibit CHI-03), at p. 1240 (referring to the "high potential for double  remedies", p. 1243 (referring to the 
"substantial potential for double counting" and conclude d that the US NME methodology "likely" accounts for 
any competitive advantages the exporter received that are measurable); GPX III  (Exhibit CHI-04), at p. 1345 
(reiterating that there is a "high likelihood" of double counting).   
550 (footnote original ) Panel Report, paras. 14.67 and 14.75. 
551 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 599. 
552 United States' first written submission, para. 198. 
553 United States' first written submission, paras. 198-201; response to Panel questions Nos. 32 and 78. 
554 (footnote original ) The USDOC itself seems to have made this assumption in the past. See 
footnote 972,  supra . WT/DS449/R 
- 111 - 
 
  duties based on an NME methodology, and countervailing duties, were imposed on 
imports of a given product. 
In sum, the United States' arguments raise the question of the extent of a double 
remedy in specific factual circumstances – whether a complete  double remedy 
necessarily  results from all instances  of concurrent imposition of anti-dumping duties 
calculated under an NME methodology and of countervailing duties.  They do not, however, invalidate the general proposition 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.   If anything, the arguments put forward 
by the United States reinforce the idea that  ascertaining the precise extent of double 
remedy in specific investigations would be a complex task, a fact which is highlighted 
by both the GAO, in its 2005 Report, and by the CIT in GPX.
555 556 
7.339.  We recall the Appellate Body's statement that while "factual findings made in prior disputes 
do not determine facts in another dispute … 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."557 It is not contested that the factual question 
facing the Panel in this dispute is the same question that was confronted by the panel in DS379, 
that the underlying NME methodology subject to that factual inquiry is identical, and that the 
dispute is between the same parties.558  
7.340.  Third, we note China's uncontested assertions regarding USDOC's Section 129 
redeterminations for the four investigations that were at issue in DS379. Specifically, the 
United States does not contest China's assertion that, in the Section 129 redeterminations for the 
four investigations at issue in DS379, USDOC estimated that 63% of the input subsidies that the USDOC had identified had been double counted.
559 Thus, insofar as the United States is arguing 
that it is impossible or incorrect to assert any general proposition regarding the likelihood (or lack 
thereof) of domestic subsidies lowering export prices, this argument is not supported by the 
USDOC's recent redeterminations for the four investigations examined in DS379. As these four 
different investigations would have involved a variety of different subsidies, and a series of 
producers, USDOC's finding that 63% of the inpu t subsidies that the USDOC had identified had 
been double counted is consistent with the general proposition, supported by the panel and the Appellate Body in DS379, that domestic subsidies are likely to lower the export price of a product 
to some extent , and that, for that reason, double remedies are "likely" to arise from the 
concurrent imposition of CVDs and anti-dumping duties calculated under the United States' NME methodology.  
7.341.  Based on all of the foregoing, we consider that the United States has failed to present us 
with any sufficient basis to reject the general pr oposition, supported by the panel and Appellate 
Body in DS379, that domestic subsidies are likely to lower the export price of a product to some 
extent , and that, for that reason, double remedies are "likely" to arise from the concurrent 
imposition of CVDs and anti-dumping duties calculated under the United States' NME methodology. Thus, we are not persuaded that the Appellate Body's interpretation of Article 19.3 was based on a factually incorrect premise. 
7.342.  In the light of the foregoing, the Panel considers that the United States has not presented 
"cogent reasons" to depart from the Appellate Body's prior interpretation that an investigating authority is under an affirmative obligation to determine, based on positive evidence, whether the 
concurrent imposition of CVDs and anti-dumping duties calculated under an NME methodology will 
                                               
555 (footnote original ) Exhibits CHI-121, p. 48; CHI-169, pp. 17-19. We note that the GAO indicated that 
the experts it consulted agreed that in theory, the doub le remedy would be significant. (Exhibit CHI-169, p. 
28). 
556 Panel Report, US – Anti-Dumping and Countervailing Duties (China) , paras. 14.73-14.75. 
557 Appellate Body Report, US – Continued Zeroing , para. 190. 
558 China's second written submission, para. 158. 
559 China's response to Panel question No. 78; second written submission, para. 167; oral statement at 
the second meeting with the Panel, pa ra. 29; China's response to Panel question No. 78 (providing a hyperlink 
to the Section 129 redeterminations for the four investigations at issue in DS379).    WT/DS449/R 
- 112 - 
 
  result in double remedies.560 Accordingly, we will base our analysis on the Appellate Body's 
interpretation. 
7.7.2.4  Whether the obligation in Article 19.3 applies to original investigations in the 
context of a retrospective system of duty assessment 
7.343.  The Panel will now consider the United States argument that, in the context of a 
retrospective system of duty assessment, th e obligations in Article 19.3 apply only to 
administrative reviews, and not to original investigations. In DS379, however, the Appellate Body 
found that the United States acted inconsistently with its obligations in Article 19.3 in the context 
of four sets of original investigations. In view of the United States argument, we will therefore proceed to consider whether there are cogent reasons to depart from the Appellate Body's interpretation of Article 19.3 insofar as it brings original investigations within the scope of 
application of Article 19.3. 
7.344.  The United States argues that the obligation in Article 19.3 does not apply to original 
investigations under the United States retrospective system of duty assessment, which results in a 
decision whether to impose a CVD, and not the am ount of duty to levy. Article 19.3 applies to 
situations when a CVD is "levied". Footnote 51 to Article 19.4 clarifies that, "[a]s used in this Agreement ‘levy’ shall mean the definitive or final legal assessment or collection of a duty or tax".  
Under the United States retrospective system of duty assessment, investigations serve as the 
basis to determine whether to issue a CVD "order" on a particular product. When USDOC issues an order following affirmative determinations of subsidization and injury, this directs the customs authority "to collect security against future liability  (cash deposits or bonds)". It is the reviews, 
which may be conducted annually after issuance of an order, that serve as the basis to determine 
the actual amount of duties to be assessed. Therefore, under the United States retrospective duty system, duties are only "levied" through review s. Accordingly, any purported obligation to 
investigate the appropriate amounts of duties to be levied would only apply in the context of 
administrative reviews (in which duties to be levied are at issue) and not in the context of investigations (in which duties to be levied are not at issue). As is evident in its report, the 
Appellate Body in DS379 did not consider the di stinction between original investigations and 
administrative reviews in the United States retrospective system in interpreting Article 19.3.
561 
7.345.  China argues that the United States argu ment that the obligations in Article 19.3 do not 
apply to original investigations in the United Stat es retrospective system has been rejected by the 
Appellate Body and by prior panels that have explicitly or implicitly addressed the issue. According 
to China, this Panel should also reject this argument.562 
7.346.  The Panel recalls that in DS379, the measures at issue encompassed four sets of original 
investigations, not administrative reviews. Therefore, the Appellate Body's finding of a violation of 
Article 19.3 in respect of those investigations, by virtue of USDOC's failure to investigate double remedies in those investigations, is an implicit finding that the obligation in Article 19.3 applies to 
CVD investigations (and not only reviews) in th e context of the United States system of duty 
assessment. We note that in DS379, the United States made the same argument before the panel that it makes before this Panel, i.e. that the obligation in Article 19.3 does not apply to original investigations under the United States retrospe ctive system of duty assessment. The panel in 
DS379 did not consider it necessary to address the United States' argument, in the light of its 
conclusion, subsequently reversed by the Appellate Body, that the obligations in Article 19.3 and 19.4 do not relate to the issue of double remedies. However, the United States' arguments on 
this issue, China's counter-arguments, and the pa nel's decision, are all reflected in the panel 
report in DS379.
563 It may be surmised that the Appellate Body would therefore have been aware 
of this issue, and did not expressly address it simply because the United States chose not to 
present this argument to the Appellate Body on appeal.  
                                               
560 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , paras. 600-603.   
561 United States' response to Panel question Nos. 29 and 88; second written submission, 
paras. 132-136; oral statement at the second meeting,  paras. 61-62; response to Panel question No. 105. 
562 China's response to Panel question No. 105. 
563 Panel Report, US – Anti-Dumping and Countervailing Duties (China) , paras. 14.81, 14.93, 14.109, 
14.123. WT/DS449/R 
- 113 - 
 
  7.347.  We note that in at least one prior dispute, the Appellate Body explicitly stated that the 
obligation in Article 19.4 is applicable to original investigations in the context of the United States retrospective system of duty assessment. In US – Countervailing Measures on Certain EC 
Products , the Appellate Body upheld the panel's finding that the United States acted inconsistently 
with Article 19.4 in its original investigation determination by failing to account for the effect of a 
privatization on the existence of a subsidy benefit.
564 In the course of its analysis, the Appellate 
Body stated that "[b]ecause the 12 determinations challenged in this dispute and on appeal 
include six original investigations, two administrati ve reviews and four sunset reviews, we must … 
examine this matter in the light of the provisions of the  SCM Agreement  covering each of these 
three types of countervailing duty determinations".565 After recalling the obligations in several 
provisions, including Article 19.4, the Appellate Body concluded that "[t]hese obligations apply to 
original investigations as well as to administrative and sunset reviews".566 We recognize that the 
obligation at issue in this case is Article 19.3, not Article 19.4. However, the United States argument relating to the interpretation of Article 19.3 is based on the use of the word "levy" in 
Article 19.3 and the corresponding definition of th e term "levy" in footnote 51 to Article 19.4. 
Accordingly, the United States argument regarding the scope of Article 19.3 would, if correct, apply equally to the interpretation of Article 19.4, because Article 19.4 refers to the amount of 
countervailing duties that may be "levied". 
7.348.  We attach significance to the consequences that would follow from the United States' 
interpretation of Article 19.3. In US – Carbon Steel , the Appellate Body offered the following 
observations on the object and purpose of the SCM Agreement: 
[T]he [SCM] Agreement contains no preamble to guide us in the task of ascertaining 
its object and purpose. In Brazil – Desiccated Coconut , we observed that the 
'SCM Agreement   contains a set of rights and obligations that go well beyond merely 
applying and interpreting Articles  VI, XVI and XXIII of the GATT 1947.'
567  T h e  
SCM Agreement  defines the concept of 'subsidy', as well as the conditions under which 
Members may not employ subsidies. It establishes remedies when Members employ 
prohibited subsidies, and sets out additional remedies available to Members whose 
trading interests are harmed by another Member's subsidization practices. Part V of the SCM Agreement  deals with one such remedy, permitting Members to levy 
countervailing duties on imported products to offset the benefits of specific subsidies 
bestowed on the manufacture, production or export of those goods.  However, Part V 
also conditions the right to apply such duties on the demonstrated existence of three substantive conditions (subsidization, injury, and a causal link between the two) and 
on compliance with its procedural and substantive rules, notably the requirement that 
the countervailing duty cannot exceed the amo unt of the subsidy.  Taken as a whole, 
the main object and purpose of the SCM Ag reement is to increase and improve GATT 
disciplines relating to the use of both subsidies and countervailing measures.  
We thus believe that the Panel properly identified, as among the objectives of the 
SCM Agreement , the establishment of a framework of rights and obligations relating 
to countervailing duties
568, and the creation of a set of rules which WTO Members 
must respect in the use of such duties.569  Part V of the Agreement is aimed at striking 
a balance between the right to impose count ervailing duties to offset subsidization 
that is causing injury, and the obligations that Members must respect in order to do 
so.570  
7.349.  Were we to accept the United States argument, the obligation in Article 19.3 (and, by 
necessary implication, the obligation in Article 19.4) would be triggered only by a final legal 
assessment of the amount of a countervailing duty. Under the United States system, such an 
assessment is in principle not made unless and until an administrative review is carried out; however, if no administrative review is requeste d, then the cash deposit rate ultimately becomes 
                                               
564 Appellate Body Report, US – Countervailing Measures on Certain EC Products , para. 161(a); Panel 
Report, US – Countervailing Measures on Certain EC Products , para. 8.1(a). 
565 Appellate Body Report, US – Countervailing Measures on Certain EC Products , para. 135. 
566 Ibid. para. 139. 
567 (footnote original ) Appellate Body Report on Brazil – Desiccated Coconut , at 181. 
568 (footnote original ) Panel Report, para. 8.32. 
569 (footnote original ) Ibid. para. 8.68. 
570 Appellate Body Report, US – Carbon Steel , paras. 73-74. WT/DS449/R 
- 114 - 
 
  the final rate. This would mean that an investigating authority operating in a retrospective system 
of duty assessment could conduct a countervailin g duty investigation, determine the precise 
amount of the subsidy rate (e.g. 25% ad valorem ), and then proceed to impose a countervailing 
duty order in an amount that far exceeds the subsidy rate (e.g. 50% ad valorem ). It could also 
impose the countervailing duty order on a discriminatory basis, given that the obligation in 
Article 19.3 to levy countervailing duty "on a non-discriminatory basis on imports of such product from all sources found to be subsidized" also applies to the "levy" of countervailing duties. These 
actions would not be inconsistent with the obligation in Article 19.3 (to levy a countervailing duty 
"in the appropriate amounts in each case") or Article 19.4 (prohibiting countervailing duties from being levied "in excess of the amount of the su bsidy found to exist") under the United States 
interpretation of those provisions. The reason is that these obligations would not be triggered until 
such time as there was an administrative review leading to a final legal assessment, which may 
not take place for a considerable period of time after the imposition of the CVD order and the collection of cash deposits pursuant to that order
571, or may not take place at all in the absence of 
a request from an interested party. As noted, in the absence of an administrative review, the cash 
deposits collected would ultimately become the final countervailing duties levied. In our view, an interpretation of Article 19.3 that has the potential to produce the aforesaid consequences is at 
variance with the object and purpose of the SCM Agreement, which includes the imposition of 
effective disciplines on Members applying CVDs to im ports, and  in particular "the requirement that 
the countervailing duty cannot exceed the amount of the subsidy".
572 
7.350.  We have indicated that if there was evid ence that an interpretation developed by the 
Appellate Body led to a result that was unworkable in practice, this could amount to a "cogent 
reason" to depart from that interpretation.573 The United States has explained that, in the context 
of its retrospective system of duty assessment, or iginal investigations and administrative reviews 
serve different functions. Therefore, we have considered whether the application of an obligation 
to investigate double remedies to original investigations would be unworkable in the context of the United States retrospective system of duty assessme nt. In this connection, we find it relevant that 
Section 2 of PL 112-99 explicitly obliges USDOC to take steps to investigate double remedies not 
only in the context of administrative reviews, but also in the context of original investigations.
574 
Specifically, Section 2(a) obliges USDOC to take into account the potential for the simultaneous imposition of anti-dumping and countervailing duti es to result in overlapping remedies and to 
reduce the anti-dumping duty to the extent of overlap, provided certain conditions are met. 
Section 2(b)(1) then states that this obligation applies to "all investigations and reviews" initiated on or after 13 March 2012. Section 2(b)(2) further provides that it also applies to "all 
determinations" issued under Section 129(c) of the Uruguay Round Agreements Act, without 
distinguishing between different types of determin ations. Section 2 is a measure apparently taken 
by the United States to comply with the recommendations and rulings of the DSB in DS379 as they 
relate to the issue of double remedies.
575 Of course, the fact that the United States enacted this 
legislation does not suggest that it necessarily agrees with all aspects of the Appellate Body's interpretation of Article 19.3 in DS379. However, the fact that the United States enacted legislation that obliges USDOC to take steps to investigate double remedies not only in the context 
of administrative reviews, but also in the context of original investigations, suggests to us that the 
application of an obligation to investigate double remedies to original investigations is not unworkable in the context of the United States  retrospective system of duty assessment. 
7.351.  In the light of the foregoing, the Panel considers that the United States has not presented 
"cogent reasons" to depart from the Appellate Body's understanding that the obligation in Article 19.3 applies to original investigations in the context of a retrospective system of duty 
assessment.
576 Accordingly, we will follow th e Appellate Body's interpretation. 
                                               
571 See Article 9.3.1 of the Anti-Dumping Agreement. 
572 Appellate Body Report, US – Carbon Steel , para. 73. 
573 See para. 7.317. 
574 The text of Section 2 of PL 112-99 is reproduced above at paragraph 7.11. 
575 China's oral statement at the first meeting with the Panel, para. 67. See also the statement to the 
same effect in GPX VI  (Exhibit CHI-07), page 4. The United States does not dispute that Section 2 is a measure 
taken to comply with the recommendations and rulings of the DSB in DS379 as they relate to the issue of 
double remedies. 
576 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , paras. 606, 
611(d)(iii). WT/DS449/R 
- 115 - 
 
  7.7.2.5  Overall conclusion on th e interpretation of Article 19.3  
7.352.  In the light of the foregoing, the Panel considers that the United States has not presented 
any "cogent reasons" that would justify the Panel in departing from the Appellate Body's interpretation of Article 19.3 in DS379. Accordingly, we will base our analysis on the Appellate 
Body's interpretation of Article 19.3.  
7.7.3  The 26 investigations and reviews  7.353.  The Panel considers that the relevant question of fact raised in respect of China's claim 
under Article 19.3 is whether USDOC imposed CVDs concurrently with anti-dumping duties 
calculated under an NME methodology without investigating whether double remedies arose in the 26 CVD investigations and reviews at issue in this dispute. We will begin by defining the precise 
measures at issue in this dispute. We will then review the parties' evidence and arguments 
regarding the 26 investigations and reviews at issue in this dispute.   
7.7.3.1  The measures at issue: USDOC's fa ilure to investigate double remedies in a 
series of investigations and reviews   
7.354.  China's claim under Article 19.3 is based on USDOC's alleged "failure to investigate and 
avoid" double remedies in 26 identified CVD investigations and reviews.  
7.355.  The Panel sets out the relevant investigations and reviews below, in chronological order by 
reference to the date on which the investigation or  review was initiated. In our analysis, we will 
generally refer to proceedings 1 through 25 as the "25 investigations and reviews at issue". For reasons that will be set out further below, we will address the last proceeding separately, i.e. Drawn Stainless Steel Sinks (proceeding 26 below). China submitted the associated 
determinations in these investigations and reviews, and the final column indicates the relevant 
exhibit numbers.
577  
No. NAME C- Initiation Determination 
1  Raw Flexible Magnets from the People's 
Republic of China C-570-923 72 FR 59076, 
October 18 2007 CHI-28 
2  Lightweight Thermal Paper from the People's 
Republic of China C-570-921 72 FR 62209, 
November 2, 2007 CHI-29 
3  Sodium Nitrite from the People's Republic of 
China C-570-926 72 FR 68568, 
December 5, 2007 CHI-30 
4  Circular Welded Austenitic Stainless Pressure 
Pipe from the People's Republic of China C-570-931 73 FR 9994, 
February 25, 2008 CHI-31 
5  Certain Circular Welded  Carbon Quality Steel 
Line Pipe from the People 's Republic of China C-570-936 73 FR 23184, April 
29, 2008 CHI-32 
6  Citric Acid and Certain Citrate Salts From the 
People's Republic of China C-570-938 73 FR 26960, May 
12, 2008 CHI-33 
7  Certain Tow Behind Lawn Groomers and 
Certain Parts Thereof from the People's Republic of China C-570-940 73 FR 42324, July 
21, 2008 CHI-35 
8  Certain Kitchen Appliance Shelving and 
Racks From the People's Republic of China C-570-942 73 FR 50304, 
August 26, 2008 CHI-36 
USA-100 
9  Certain Oil Country Tubular Goods from the 
People's Republic of China C-570-944 74 FR 20678, May 
5, 2009 CHI-38 
10  Prestressed Concrete Steel Wire Strand 
From the People's Republic of China C-570-946 74 FR 29670, June 
23, 2009 CHI-39 
11  Certain Steel Grating From the People's 
Republic of China C-570-948 74 FR 30278, June 
25, 2009 CHI-40 
12  Narrow Woven Ribbons With Woven 
Selvedge From the People's Republic of 
China C-570-953 74 FR 39298, 
August 6, 2009 CHI-41 
13  Certain Magnesia Carbon Bricks From the 
People's Republic of China C-570-955 74 FR 42858, 
August 25, 2009 CHI-42 
                                               
577 China submitted copies of the final determinat ions for proceedings 1 through 23 (Exhibits CHI-27 
through CHI-49), and the preliminar y determinations for proceedings 24-26 (CHI-50 through CHI-52). China 
also submitted copies of the corresponding final and pr eliminary determinat ions for the parallel anti-dumping 
proceedings (Exhibits CHI-53 through CHI-78). WT/DS449/R 
- 116 - 
 
  No. NAME C- Initiation Determination 
14  Certain Seamless Carbon and Alloy Steel 
Standard, Line, and Pr essure Pipe from the 
People's Republic of China C-570-957 74 FR 52945, 
October 15, 2009 CHI-43 
15  Certain Coated Paper Suitable for High-
Quality Print Graphi cs Using Sheet-Fed 
Presses  From the People's Republic of China C-570-959 74 FR 53703, 
October 20, 2009 CHI-44 
16  Certain Potassium Phosphate Salts from the 
People's Republic of China C-570-963 74 FR 54778, 
October 23, 2009 CHI-45 
17  Certain New Pneumatic Off-The-Road Tires 
from the People's Republic of China [Administrative Review ] C-570-913 74 FR 54956, 
October 26, 2009 CHI-27 
18  Drill Pipe From the People's Republic of 
China C-570-966 75 FR 4345, 
January 27, 2010 CHI-46 
19  Aluminum Extrusions From the People's 
Republic of China C-570-968 75 FR 22114, April 
27, 2010 CHI-47 
20  Citric Acid and Certain Citrate Salts From the 
People's Republic of China [ Administrative 
Review ] C-570-938 75 FR 37759, June 
30, 2010 CHI-34 
21  Certain Kitchen Appliance Shelving and 
Racks From the People's Republic of China [Administrative Review] C-570-942 75 FR 66349, 
October 28, 2010 CHI-37 
22  Multilayered Wood Flooring From the 
People's Republic of China C-570-971 75 FR 70719, 
November 18, 
2010 CHI-48 
23  High Pressure Steel Cylinders From the 
People's Republic of China C-570-978 76 FR 33239, June 
8, 2011 CHI-49 
24  Crystalline Silicon Photovoltaic Cells, 
Whether or Not Assembled Into Modules, From the People's Republic of China C-570-980 76 FR 70966, 
November 16, 2011 CHI-50 
25  Utility Scale Wind Towers From the People's 
Republic of China C-570-982 77 FR 3447, 
January 24, 2012 CHI-51 
26  Drawn Stainless Steel Sinks From the 
People's Republic of China C-570-984 77 FR 18211, 
March 27, 2012 CHI-52 
 
7.356.  As indicated in the table above, proceedings 17, 20, and 21 are administrative reviews. 
Apart from these three administrative reviews, the remaining 23 proceedings are original investigations.  
7.357.  China identified these investigations and reviews in Appendix A to its panel request, and 
again in Appendix A of Exhibit CHI-24. In additi on to providing the information set forth above, 
China also identified the date, along with the corresponding United States Federal Register 
reference, for the associated preliminary or final determinations, orders, and amended final 
determinations and orders (where available) for each of these investigations and reviews.
578 China 
provided the same information for all of the associated anti-dumping investigations and reviews in Appendix B to its panel request, and again in Appendix B of Exhibit CHI-24.  
7.358.  In response to a Panel question
579, China explained that for the purpose of defining the 
"measure(s)" at issue, China "does not perceive a distinction" between the relevant determinations themselves and the alleged "failure to invest igate and avoid" double remedies in these 
determinations. According to China, the CVD determination is the relevant "measure" at issue in 
respect of each of the identified investigations and reviews. The CVD determination sets forth the 
evidence and reasoning that the USDOC relied upon in reaching its determination, as well as its 
disposition of issues that the USDOC was required to address in reaching its determination. The 
failure of the USDOC "to investigate and avoid double remedies" in these investigations and 
reviews is reflected in its determinations, either explicitly (e.g. in its refusal to investigate and avoid double remedies in response to requests made by interested parties) or implicitly (e.g. in its 
failure to indicate that it solicited and evaluated relevant information pertaining to double 
remedies). That being the case, China considers that the determinations and the failure to investigate and avoid double remedies are one and the same thing.  
                                               
578 China clarified the difference between "final determinations", "orders", and "amended final 
determinations and orders" in its responses to Panel question No. 9. 
579 China's response to Panel question No. 83. WT/DS449/R 
- 117 - 
 
  7.359.  Having identified the investigations and reviews at issue in this dispute, the Panel 
considers that it is important to clarify what China is challenging in respect of these investigations and reviews, and the resulting implications for what China has to prove in this dispute. In our view, two points in particular merit clarification. The first is that China is not asking the Panel to 
find that USDOC actually imposed double remedies in the investigations and reviews at issue. The 
second point, to which we shall return further below, concerns the relationship between the measure at issue, i.e. USDOC's "failure to inve stigate and avoid" double remedies, and China's 
argument, which China has advanced throughout this proceeding, that USDOC "lacked legal 
authority" to investigate and avoid double re medies over the period 20 November 2006 to 
13 March 2012.
580  
7.360.  Dealing with the first point, the measure at issue in this dispute is identified in China's 
panel request as the United States' "failure to investigate and avoid" double remedies in certain 
investigations and reviews initiated between 20 November 2006 and 13 March 2012.581 In its 
submissions, China has repeatedly framed the measure before the Panel in the same way, i.e. as 
USDOC's failure to "investigate and avoid" double remedies. For example, Section VII.B of its first 
written submission is entitled "Article 19.3 of the SCM Agreement Requires the United States to 
Investigate and Avoid 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"; Section VII.C of its first writte n submission is entitled "The USDOC Took No 
Steps to Investigate and Avoid Double Remedies in the Investigations at Issue in this Dispute"; and in its Request for Findings and Recommendations in its first written submission, China 
requests that the Panel find that "the United St ates acted inconsistently with Article 19.3 of the 
SCM Agreement by failing to investigate and avoid double remedies in the CVD determinations identified in CHI-24".
582   
7.361.  We recall that in DS379, the Appellate Body found that the United States acted 
inconsistently with Article 19.3 by failing to investigate  whether double remedies arose in the 
investigations at issue. In DS379, neither the panel nor the Appellate Body arrived at any 
conclusion as to whether double remedies actually arose (and if so, in what amounts) from any of 
the four sets of investigations at issue in that dispute. In DS379, the Appellate Body explicitly found that "in the four sets of anti-dumping and CVD investigations at issue, by virtue of the USDOC's imposition of anti-dumping duties calculated on the basis of an NME methodology, 
concurrently with the imposition of countervailing duties on the same products, without having 
assessed whether  double remedies arose from such concurrent duties, the United States acted 
inconsistently with its obligations under Article 19.3".
583 We further observe that the sections of 
the panel and Appellate Body reports in DS379 concerning the issue of "double remedies" contain 
no mention of even basic factual elements that would have to be known to support any conclusion as to whether a double remedy arose in any particular case – including (but not limited to) the 
amount of the subsid(ies) at issue, and the margin of dumping.  
7.362.  China's claim in this dispute is based on the Appellate Body's interpretation of Article 19.3. 
For the reasons already set forth above, we have also decided to base our analysis on the Appellate Body's interpretation of Article 19.3.
584  Thus, the Panel understands China's claim in this 
dispute to be that USDOC acted inconsistently with Article 19.3 by failing to discharge its 
affirmative obligation to investigate  whether double remedies arose, "irrespective of whether 
double remedies actually occurred in these investigations and reviews".585 China does not claim 
that the investigations and reviews at issue actually  resulted in the imposition of double remedies. 
Accordingly, China has neither asserted nor sought to prove that double remedies actually arose in the investigations and reviews at issue. In response to a Panel question, China confirmed that its 
position is that it does not have to demonstrate, and that to uphold its claim the Panel does not 
                                               
580 Section 2 of PL 112-99 grants USDOC legal authority to make adjustments to anti-dumping duties to 
avoid double remedies in respect of investigations and reviews initiated on or after its date of enactment, i.e. 13 March 2012. 
581 China's request for the establ ishment of a panel, p. 4. 
582 China's first written submission, para. 127(d). 
583 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 611(d)(iii). 
(emphasis added) 
584 See para. 7.352. 
585 China's response to Panel question No. 43. WT/DS449/R 
- 118 - 
 
  have to find, that double remedies actually occurred in any of the investigations or reviews at 
issue.586  
7.363.  The second point that merits clarification is the relationship between the measure at issue, 
i.e. USDOC's "failure to investigate and avoid" double remedies, and China's argument, which 
China has advanced throughout this proceeding, that USDOC "lacked legal authority" to investigate 
and avoid double remedies over the period 20 November 2006 and 13 March 2012.587 Here, we 
consider it useful to address a potential source of confusion that may arise from the manner in 
which China has formulated the measure at issue, namely USDOC's alleged failure to "investigate 
and avoid" double remedies. As we understand it, China is claiming that USDOC failed to investigate  double remedies, and, as a consequence, thereby  failed to avoid  imposing double 
remedies. In this regard, when China challenges US DOC's failure to "investigate and avoid" double 
remedies, we understand China to mean that USDOC did not investigate, for the purpose  of 
avoiding, double remedies.  
7.364.  The Panel considers it important to clarify the relationship between the measure at issue, 
i.e. USDOC's alleged "failure to investigate and avoid" double remedies in proceedings 1 through 
26, and China's argument, advanced throughout  this proceeding, that USDOC lacked legal 
authority to investigate and avoid double remedies over the period 20 November 2006 and 
13 March 2012. Section C of China's panel request identifies, as a measure at issue, the "Absence 
of Legal Authority" to identify and avoid double remedies in respect of investigations or reviews initiated between the period 20 November 2006 and 13 March 2012. In its panel request, China made an "as such" claim in respect of this alleged "omission". As reflected in our preliminary ruling 
under Article 6.2, China subsequently decided not to pursue this claim. Notwithstanding that China 
is not pursuing this claim, in attempting to substantiate its claim that USDOC failed to investigate and avoid double remedies in the 26 investigations and reviews at issue, China argues, inter alia , 
that USDOC failed to do so because it lacked legal authority to do so.
588 In its response to a Panel 
question589, China clarified that the measure at issue for the purpose of China's claims in this 
dispute is USDOC's "failure to investigate and avoid double remedies in the identified 
investigations", not the alleged "absence of legal authority" to investigate and avoid double 
remedies prior to the enactment of Section 2 of PL 112-99, and China further clarified that 
USDOC's alleged "lack of legal authority" under United States law to investigate and avoid double remedies prior to the enactment of Section 2 is on e factual basis, but not the only factual basis, 
supporting the conclusion that USDOC did not actually do so in the 26 investigations and reviews 
at issue. China explained that: 
The fact that the USDOC had no authority under U.S. law to investigate and avoid 
double remedies prior to 13 March 2012 explains why the USDOC acted inconsistently 
with Article 19.3 in the investigations and reviews at issue, but it is the USDOC's failure to conduct a "sufficiently diligent 'investigation'"
590 with respect to potential 
double remedies in the investigations and reviews at issue that is the basis for China's 
claims under Article 19.3.591 
7.365.  In sum, the relevant question of fact raised in respect of China's claim under Article 19.3 is 
whether USDOC imposed CVDs concurrently with anti-dumping duties calculated under an NME 
methodology without discharging its affirmative obligation to investigate  whether double remedies 
arose in the 26 CVD investigations and reviews at issue in this dispute. The issue is not whether double remedies actually arose, and if so in wh at amounts, in any of these investigations or 
reviews. In addition, the question whether USDOC had authority under United States law to 
investigate and avoid double remedies prior to 13 March 2012 is relevant and necessary to consider only insofar as it sheds light on whether USDOC discharged its affirmative obligation to 
                                               
586 Ibid. 
587 Section 2 of PL 112-99 grants USDOC legal authority to make adjustments to anti-dumping duties to 
avoid double remedies in respect of investigations and reviews initiated on or after its date of enactment, i.e. 13 March 2012. 
588 China's first written submission, paras. 5, 30, 38, 11, 125; oral statement at the first meeting, 
paras. 68-73; response to Panel question Nos. 51(b) and 82. 
589 China's response to Panel question No. 107. 
590 (footnote original ) Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , 
para. 602. 
591 China's response to Panel question No. 107. WT/DS449/R 
- 119 - 
 
  investigate  whether double remedies arose in the 26 CVD investigations and reviews at issue in 
this dispute.  
7.366.  For reasons that will be discussed in the context of its assessment of the facts surrounding 
proceeding 26, the Panel will discuss that investigation separately from the other 25 investigations 
and reviews that China challenges in this dispute. We will then undertake an assessment of 
proceedings 1 through 25.  
7.7.3.2  Proceeding 26 (Drawn  Stainless Steel Sinks) 
7.367.  The Panel recalls that Section 2 of PL 112-99 grants USDOC explicit legal authority to take 
certain steps to investigate and avoid double remedies in respect of investigations and reviews initiated on or after its date of enactment, i.e. 13 March 2012. China's claim in this dispute, as set forth in its panel request and as reiterated in its subsequent submissions, is that USDOC failed to 
investigate double remedies in the identified investigations and reviews initiated prior to the 
enactment of Section 2, i.e. prior to 13 March 2012.
592 China identified the CVD investigations and 
reviews at issue in Appendix A to its panel request, and again in Appendix A of Exhibit CHI-24. 
China specified the date of initiation for each of the investigations and reviews listed therein. The 
information that China provided for proceeding 26, Drawn Stainless Steel Sinks , indicates that this 
investigation was actually initiated after the enactment of Section 2 of PL 112-99: 
 OFFICIAL NAME C- Initiation Determination 
26 Drawn Stainless Steel Sinks From the 
People's Republic of China C-570-984 77 FR 18211, 
March 27, 2012 77 FR 46717, 
August 6, 2012 
(prelim ) 
 
7.368.  If one or more of the proceedings challenged by China were actually initiated after the 
enactment of Section 2 of PL 112-99, then any such proceeding would fall outside China's own 
description of the scope of its claim. In its panel request, China indicated that the date of initiation 
for proceeding 26 is actually 27 March 2012. The information contained in Exhibit CHI-24 is the 
same. In the light of the foregoing, we sought clarification from China. China responded that it included the preliminary determination in Drawn Stainless  Steel Sinks because USITC published its 
"notice of institution" of the CVD investigation on 7 March 2012, with an effective date of 
1 March 2012.
593 China did not elaborate, or provide any supporting evidence, such as the notice 
of initiation referenced in footnote 1 of the preliminary determination and in China's response. Nor did China say anything about the discrepancy between  this information, and the information that it 
had provided in its panel request and in Exhibit CHI-24. The United States, however, submitted a 
copy of the corresponding notice of initiation for Drawn Stainless Steel Sinks . This notice of 
initiation shows that the effective date for the initiation of this proceeding was indeed 
27 March 2012, that is to say after the enactment of the Section 2 of PL 112-99.
594   
7.369.  We consider that the foregoing may be a sufficient basis to conclude that the investigation 
in Drawn Stainless Steel Sinks  falls outside the scope of China's claim. However, with a view to 
clarifying this factual question and ensuring that our understanding is correct, we examined Exhibit 
CHI-78, which contains the preliminary determination in the parallel anti-dumping investigation for 
Drawn Stainless Steel Sinks . This preliminary determination, dated 4 October 2012, indicates that 
a "full description of the methodology underlying our conclusions" is contained in the "Decision 
Memorandum for Preliminary Determination for the Antidumping Duty Investigation of Drawn 
Stainless Steel Sinks from the People’s Republic of China," ("Preliminary Decision Memorandum’’) from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Operations to Paul Piquado, Assistant Secretary for Import Administration, dated concurrently with 
this determination and hereby adopted by this notice".
595 The preliminary determination further 
indicates that one of the issues addressed in th e Preliminary Decision Memorandum is a "Double 
Remedies Offset".596  
                                               
592 China's request for the establ ishment of a panel, p. 4. 
593 China's response to Panel question No. 112. 
594 See United States' comments on China's response to Panel question No. 112, citing Exhibit USA-125. 
595 Exhibit CHI-78, pp. 60673-60674. 
596 Ibid. p. 60674. WT/DS449/R 
- 120 - 
 
  7.370.  Neither party provided us with a copy of the Preliminary Decision Memorandum. However, 
the preliminary determination submitted to the Panel in Exhibit CHI-78, to which we have just referred, states that "a complete version of the Preliminary De cision Memorandum can be found on 
the Internet at http://www.trade.gov/ia/ ", and confirms that "[t]he signed Preliminary Decision 
Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in 
content".597 In the light of the fact that the exhibit submitted to the Panel specifies where this 
further information can easily be located, and with a view to confirming that our understanding of 
the facts is correct, the Panel in this case found it appropriate to consult the electronic version of 
the Preliminary Decision Memorandum that is explicitly referenced in Exhibit CHI-78.598  
7.371.  The associated Preliminary Decision Memorandum599 for the preliminary determination 
submitted as Exhibit CHI-78 makes clear that in Drawn Stainless Steel Sinks , USDOC did take 
steps to investigate double remedies. Specifically, at pp. 21-23 of the Memorandum, under the 
heading "Adjustment Under Section 777A(f) of the Act", USDOC provides a detailed explanation of 
how it arrived at the conclusion that "the Department preliminarily estimates that 61.01 percent of 
the value of the input subsidies that impact cost of manufacturing were 'passed through' to [export 
prices] for this industry during the [period of investigation]". This explanation makes clear that USDOC made this adjustment pursuant to the legal requirement contained in Section 2 of PL 112-
99. This further confirms our understanding that the investigation in Drawn Stainless Steel Sinks  
was initiated on 27 March 2012, after the enactment of Section 2 of PL 112-99.   
7.372.  Based on the foregoing, the Panel concludes that China has not established that the 
investigation in Drawn Stainless Steel Sinks  was initiated prior to the enactment of Section 2 of 
PL 112-99 and consequently falls within the description of its claim as set out in its panel request. 
In any event, China has failed to demonstrate that in Drawn Stainless Steel Sinks , USDOC 
imposed anti-dumping duties calculated on the basis of an NME methodology, and concurrently 
imposed CVDs on the same products, without having investigated, on the basis of "positive 
evidence", whether this resulted in double remedies. Accordingly, the Panel is unable to accept China's claim and finds no violation of Article 19.3 in respect of Drawn Stainless Steel Sinks .  
7.7.3.3  Proceedings 1 through 25  
7.373.  The Panel now turns to proceedings 1 through 25.  7.374.  In accordance with Article 11 of the DSU, our task is to make an "objective assessment of 
the facts of the case". Before turning to the 25 proceed ings at issue, we consider it useful to recall 
certain principles that apply in WTO dispute settlement and international law more generally
600 
with respect to the burden of proof, the assessmen t of evidence, and the level of proof required. 
We recall that the general rule on burden of proof in WTO dispute settlement is that a party 
claiming a violation of a provision of a covered agreement by another Member must assert and 
substantiate its claim.601 Moreover, any party that asserts a fact, whether the complaining party or 
the responding party, is responsible for providing proof thereof.602 Thus, in the present dispute, 
China has the burden of establishing its claim und er Article 19.3. To discharge that burden, China 
must provide evidence that is sufficient to establish a "presumption" that what is claimed is true, and if it does, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut that "presumption".
603  With respect to a panel's assessment of the evidence, it 
is well established that "precisely how much and prec isely what kind of evidence will be required to 
establish such a presumption will necessarily vary from measure to measure, provision to 
                                               
597 Ibid. p. 60675. 
598 In this regard, the Panel notes that the question of when the Drawn Stainless Steel Sinks  was 
actually initiated arose only at a relatively late stage of the proceeding, and, as a consequence, the 
United States only provided a copy of the notice of initiation in its comments on China's responses to the final set of questions from the Panel. 
599 Decision Memorandum for Preliminary Determinat ion for the Antidumping Duty Investigation of 
Drawn Stainless Steel Sinks from the People’s Republic of China," ("Preliminary Decision Memorandum") from 
Christian Marsh, Deputy Assistant Se cretary for Antidumping and Counterv ailing Duty Operations to Paul 
Piquado, Assistant Secretary for Import Administration, dated 27 September 2012, available at http://ia.ita.doc.gov/frn/summary/prc/2012-24549-1.pdf  
600 Panel Report, US – Large Civil Aircraft (2nd complaint) , para. 7.13. 
601 Appellate Body Report, US – Wool Shirts and Blouses , p. 16. 
602 Ibid. p. 16. 
603 Ibid. p. 16. WT/DS449/R 
- 121 - 
 
  provision, and case to case".604 According to the Appellate Body, the "evidence and arguments 
underlying a prima facie  case …  must be sufficient to identify the challenged measure and its basic 
import, identify the relevant WTO provision and ob ligation contained therein, and explain the basis 
for the claimed inconsistency of the measure with that provision".605 In US – Upland Cotton 
(Article 21.5 – Brazil), the Appellate Body implied that  the applicable standard of proof is whether 
there is sufficient evidence demonstrating that it is "more likely than not" that what is claimed is true.
606 In US – Continued Zeroing , the Appellate Body explained that "[i]f evidence 'necessarily 
showing' a particular fact were required, this would suggest that the evidence must in no 
circumstance permit of a conclusion other than the existence of that fact", and that "such a 
standard is more stringent than the assessmen t of whether the evidence meets the required 
burden of proof".607 
7.375.  We recall that in proceedings 1 through 25, USDOC concurrently imposed CVDs and anti-
dumping duties calculated under the United States' NME methodology. These 25 parallel CVD and anti-dumping investigations and reviews were initiated between 18 October 2007 (proceeding 1) 
and 24 January 2012 (proceeding 25). These 25 proceedings comprise all CVD investigations and 
reviews on imports from China initiated between 20 November 2006 and 13 March 2012 that included a parallel anti-dumping investigation, with the exception of (i) the four sets of 
investigations that were already examined in DS 379; and (ii) several other investigations that 
resulted in a negative injury determination and therefore did not lead to the imposition of any CVDs.
608 In every one of these cases, USDOC imposed CVDs and anti-dumping duties in the full 
amount (i.e. 100%), without making any adjustment to avoid double remedies; while the parties 
disagree on why that was, it is not in dispute that "Commerce did not make any adjustment or 
offset in the challenged determinations".609  
7.376.  We have already found that the United States has failed to present any basis to reject the 
general proposition that double remedies are "likely" to arise when CVDs are imposed concurrently 
with anti-dumping duties determined in accordan ce with the United States NME methodology. In 
reaching that conclusion, we observed, inter alia , that this factual premise was discussed in detail, 
and accepted, by both the panel and the Appellate Body in DS379.610 
7.377.  The Appellate Body has stated that "panels routinely draw inferences from the facts placed 
on the record. The inferences drawn may be inferences of fact: that is, from fact A and fact B, it is 
reasonable to infer the existence of fact C."611 In this case: (i) USDOC imposed CVDs concurrently 
with anti-dumping duties in 25 successive investigations and reviews over a four-year period 
without making any adjustment or offset to avoid double remedies, either on the anti-dumping or the CVD side
612; and (ii) the United States has failed to present us with any sufficient basis to 
reject the general proposition, supported by the panel and Appellate Body in DS379, that double 
remedies are "likely" to arise from the concurrent imposition of CVDs and anti-dumping duties calculated under the United States' NME methodology.  
7.378.  In our view, the inference to be drawn from these two points taken together is that USDOC 
failed to take steps to investigate double remedies in these investigations and reviews. We acknowledge that these two facts do not necessarily  lead to this (and only this) conclusion. That is 
to say, we are not suggesting that these facts permit of no conclusion other than this conclusion. 
The reason is that we do not presume that the concurrent imposition of CVDs and anti-dumping 
duties calculated under the United States' NME methodology will necessarily result in double remedies; rather, this "depends … on whether and to what extent domestic subsidies have lowered 
the export price of a product".
613 However, as explained above614, the United States has failed to 
                                               
604 Ibid. p. 14.  
605 Appellate Body Report, US – Gambling , para. 141.   
606 See e.g. Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , paras. 301, 321. 
607 Appellate Body Report, US – Continued Zeroing , para. 335 (emphasis original, footnote omitted). 
608 China's first written submission, para. 32. 
609 United States' second written submission, para. 112. 
610 See fn. 549.   
611 Appellate Body Report, Canada – Aircraft , para. 198. 
612 Prior to these 25 investigations and reviews, there were also the four investigations that were at 
issue in DS379.  In addition to these 25 investigations and reviews, there were several proceedings in which no 
CVDs were imposed, but this was a consequence of the US investigating authorities arriving at a negative 
injury determination. 
613 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 599. WT/DS449/R 
- 122 - 
 
  present us with any sufficient basis to reject the general proposition that it is "likely" that subsidies 
will lower the export price to some degree, and thereby result in some degree of overlapping 
remedies. It is hypothetically conceivable that USDOC would have investigated whether double remedies arose in the investigations and reviews at issue, and determined – in respect of 25 
successive proceedings, and in respect of every subs idy at issue in each one of those proceedings 
– that none of these subsidies had any effect on  the export price for any of the products in 
question. However, if as a "general proposition"
615 double remedies are "likely" to arise when CVDs 
are imposed concurrently with anti-dumping duties determined in accordance with the 
United States NME methodology, it is a remote possibility that USDOC investigated and, based on such an investigation, determined on the basis of positive evidence that none of the subsidies at 
issue in any of the investigations had any effect on  the export price of any of the products at issue 
(and then justifiably imposed CVDs concurrently with anti-dumping duties in 25 successive 
investigations and reviews without making any adjustments on account of double remedies). We consider that to reject China's claim on the basis of a remote possibility that USDOC might have 
investigated whether double remedies arose (when 100% CVDs were concurrently imposed with 
100% anti-dumping duties without making any adjustments on either the CVD side or the anti-dumping side to offset for double remedies, in 25 successive investigations and reviews, which 
comprise every CVD investigation on imports from China over a period of more than four years
616) 
would not be in keeping with the standard of proof that applies in WTO panel proceedings. We consider that "such a standard [would be] more stringent" than is required of China to meet "the required burden of proof".
617 As explained above, it is uncontested that USDOC itself has since 
concluded, in the Section 129 determinations for the four investigations at issue in DS379, which 
were initiated prior the 25 investigations at issue in this dispute, that 63% of the input subsidies that the USDOC had identified had been double counted. These are the only four redeterminations 
t h a t  w e  h a v e  b e e n  i n f o r m e d  o f ,  a n d  i n  e a c h  o f  t h o s e  r e d e t e r m i n a t i o n s ,  U S D O C  f o u n d  d o u b l e  
remedies. Thus, the foregoing suffices, in our view, to establish a presumption that what China asserts is true, namely, that USDOC failed to take steps to investigate double remedies in the 
identified 25 investigations and reviews, where USDOC made no adjustment to avoid double 
remedies.  
7.379.  We consider that this conclusion is consistent with the decisions of the CIT in GPX II  and 
GPX III, which, although subsequently vacated by the  CAFC in GPX VI , shed light on whether 
USDOC was taking steps to investigate and avoid double remedies during the period of time when 
the investigations and reviews at issue in this dispute were initiated. In its first written submission, China directed us to the CIT's 18 September 2009 ruling, in GPX II , that it was not reasonable for 
USDOC to apply CVDs in conjunction with anti-dum ping duties determined in accordance with the 
United States NME methodology, unless USDOC coul d devise appropriate methodologies to ensure 
that no double remedies would occur.
618 China submitted the subsequent USDOC remand 
determination. In that determination, USDOC recalled that in GPX II  the CIT ordered USDOC "to 
adopt additional policies and procedures to adapt the Department’s NME AD methodology and CVD methodology to account for the imposition of CVDs on merchandise from the PRC", and stated that it was "complying with the Court’s order, under protest".
619 China also directed us to the CIT's 
ruling in GPX III , reviewing the CIT's approach in this remand determination, and finding that 
USDOC's proposed solution to the problem of double remedies was a "tacit admission" that USDOC was incapable of addressing the problem of double remedies "in the absence of new statutory 
tools".
620  
7.380.  We have read the CIT decisions in GPX II  and GPX III . In GPX III , the CIT stated that 
USDOC's approach in its subsequent remand determination demonstrated that "at this time, it is 
too difficult for Commerce to determine, using impr oved methodologies, and in the absence of new 
statutory tools, whether and to what degree double counting is occurring".621 We agree with the 
United States that this statement is not a statem ent, nor necessarily tantamount to a statement, 
                                                                                                                                               
614 See para. 7.341.   
615 Panel Report, US – Anti-Dumping and Countervailing Duties (China) , paras. 14.67, 14.75; Appellate 
Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 599. 
616 See fn. 612. 
617 Appellate Body Report, US – Continued Zeroing , para. 335.  
618 China's first written submission, para. 35, citing GPX II  (Exhibit CHI-03). 
619 Final Results of Remand Pursuant to Redetermination, pp. 1-11 (September 18, 2009) 
(Exhibit CHI-09), p. 2. 
620 China's first written submission, fn. 95, citing GPX III  (Exhibit CHI-04). 
621 GPX III  (Exhibit CHI-04), at p. 1345. WT/DS449/R 
- 123 - 
 
  that USDOC necessarily lacked "legal authority" unde r United States law as it stood at the time to 
address and avoid the issue of double remedies.622 However, these statements, and the timing and 
chronology of events, in GPX II  and GPX III  are consistent with China's assertion that USDOC did 
not investigate the existence of double remedies during the time-period in question. The 
significance of this statement in the CIT's decision in GPX III , dated 4 August 2010, is that, as of 4 
August 2010, it appears that USDOC did not have any methodology to determine "whether and to what degree double counting is occurring".
623 The statements above suggest that USDOC had to 
devise a methodology to deal with the issue of do uble remedies to comply with the remand order 
of the CIT in GPX II  (dated 18 September 2009), and did so only "under protest".624 The 
methodology that USDOC devised for the purpose of  this remand determination was to make an 
adjustment to the anti-dumping duty rate equivalent  to the full amount of the CVDs found to exist. 
In GPX III , the CIT then found that the methodology that USDOC had devised for the purpose of 
the remand determination that it undertook was unreasonable625, leading the CIT to conclude, as 
already mentioned, that "at this time, it is too difficult for Commerce to determine, using improved 
methodologies, and in the absence of new statutory tools, whether and to what degree double 
counting is occurring".626 The parties have not directed us to anything in the record to suggest that 
USDOC proceeded to devise any new methodology to address the issue of double remedies during 
the time-period in question, i.e. between 20 November 2006 and 13 March 2012. We therefore 
find this contemporaneous evidence to be instructive. If it was "too difficult" for USDOC to have an appropriate methodology to determine "whether and to what degree double counting is occurring", this is consistent with the conclusion that USDOC did not take steps to investigate double remedies 
in the 25 investigations and reviews at issue.
627  
7.381.  We now turn to consider the evidence and arguments advanced by the United States to 
determine whether it has rebutted the prima facie conclusion that, in the investigations and 
reviews at issue, USDOC failed to investigate double remedies as required by Article 19.3. We 
begin by discussing the United States' argument regarding the reason why USDOC did not make any adjustment or offset in the identified determinations in proceedings 1 through 25. 
7.382.  We recall that, in attempting to substantiate its claim that USDOC failed to investigate and 
avoid double remedies in the investigations and reviews at issue, China argues, inter alia , that 
USDOC lacked legal authority to do so, and therefore did not do so.
628 The United States regards 
China's allegation that USDOC lacked legal authority to address overlapping remedies to be "the 
                                               
622 United States' response to Panel question No. 86. 
623 GPX III  (Exhibit CHI-04), at p. 1345. 
624 Final Results of Remand Pursuant to Redetermination, pp. 1-11 (September 18, 2009) 
(Exhibit CHI-09), p. 2. 
625 In GPX III , the CIT stated that "In its remand order, the court presented Commerce with a choice 
between two alternatives. Commerce could either 'reaso nably ... do all of its remedying though the NME AD 
statute, as it likely accounts for any competitive advantag es the exporter received that are measurable,' or it 
could 'apply methodologies that make such parallel re medies reasonable.' In it s remand redetermination, 
however, Commerce proposes guarding against double counting by merely offsetting CVD against NME AD 
after it uses its regular methodologies to  calculate the CVD and NME AD margins. Remand Results at 9–10. The 
court notes that with this offset, the combination of the CVD margin and the NME AD cash deposit rate will always equal the unaltered NME AD margin. See id. at 59. This result, therefore,  renders concurrent CVD and 
AD investigations unnecessary because the same remedi al price adjustment can otherwise be obtained by 
merely conducting an NME AD investig ation. As GPX and Starbright suggest,  it is not reasonable to 'force[ ] 
foreign parties to spend many months and large sums of money to go through an investigation, the end result 
of which is to calculate a CVD margin, but then to elim inate that CVD [margin] because it has been offset by 
some parallel investigation. ' (GPX's Comments 6.) Perhaps even more importantly, the offs et that Commerce 
now advances is inconsistent with 19 U.S.C. § 1677a, which lists the specific offsets to export price and constructed export  price that ar e permissible. See 19 U.S.C. § 1677a(c)–(d) . Accordingly, the court holds that 
the offset does not comply with the statute and is also unreasonable due to the expense associated with 
conducting an additional investigation that is essentially useless." ( GPX III  (Exhibit CHI-04), p. 1345, original 
footnotes omitted). 
626 GPX III  (Exhibit CHI-04), at p. 1345. 
627 In GPX II and III, the CIT was assessing the consistency of  USDOC's approach to double remedies 
with US law. In assessing China's claims under Articl e 19.3 of the SCM Agreement, the Panel has taken the CIT 
decisions in GPX II  and GPX III  into account, and the statements re ferred to above, for the purpose of 
assessing whether they shed light on  the factual question of whether US DOC did or did not take steps to 
investigate double remedies during the relevant time-period. 
628 China's first written submission, paras. 5, 30, 38, 11, 125; oral statement at the first meeting, 
paras. 68-73;  response to Panel question Nos. 51(b) and 82. WT/DS449/R 
- 124 - 
 
  centrepiece"629 o f  C h i n a ' s  a r g u m e n t  t h a t  U S D O C  f a i l e d  t o  i n v e s t i g a t e  d o u b l e  r e m e d i e s  i n  t h e  
investigations at issue. The United States disputes China's assertion.630 According to the 
United States, the reason USDOC did not make any adjustment or offset in the challenged determinations was not because it lacked the legal authority to address potential double remedies, 
but rather because Chinese parties, despite having had an opportunity to do so, failed to provide 
USDOC with sufficient evidence demonstrating the existence of double remedies. According to the United States, "Commerce could not properly address any claims of overlapping remedies because 
interested parties failed to provide sufficient evidence and presented only abstract economic 
theories".
631  
7.383.  During the first substantive meeting with the Panel, in support of its explanation why 
USDOC did not make any adjustments, the Unit ed States submitted copies of the final 
determinations in the parallel CVD and anti-dumping investigations in proceeding 6632, and 
indicated that a review of these determinations would demonstrate that it was for this reason, and not an alleged lack of legal authority to make an adjustment to offset double remedies, that 
USDOC did not make any adjustment or offset in the challenged determinations. At pages 10-11 of 
the final determination in the anti-dumping dete rmination for proceeding 6, USDOC explains its 
approach as follows: 
[G]iven the statute’s relative silence (at most) regarding the issue, the Department 
has quite properly asked respondents in combined AD and CVD proceedings to substantiate their theory that the concurrent application of such measures automatically results in a double remedy to the full extent that any CVDs are imposed 
upon domestic subsidies in China. This is especially true in light of the highly 
theoretical and hypothetical nature of the respondents’ claim, which is explained below. Respondents have declined to submit  any positive evidence on the subject. 
Respondents, including the GOC, have declined to submit any evidence to support 
their claims. Instead, they refer to the alleged double remedies as if they were an adjustment specifically provided by the AD  law, such as the adjustment for CVDs 
imposed to offset export subsidies. In the case of export subsidies, the argument that 
the Department would be required to explain how the adjustment should be made would be strong. Where the adjustment is a novel and highly theoretical construct fashioned by respondents, with little, if an y, discernible connection to the statute, the 
situation is the reverse. The respondents must provide some concrete evidence to 
support their novel theory.
633 
7.384.  In response to a Panel question, the Unit ed States confirmed that these determinations 
"can be seen as representative of China’s arguments and Commerce’s responses on the issue of 
overlapping remedies in the challenged determinations".634 For its part, China also agrees that 
these determinations are representative of USDOC's approach to double remedies in the 25 
investigations and reviews at issue.635 Our own reading of the determinations in the 25 
investigations and reviews at issue confirms the parties' view that proceeding 6 may be seen as representative of how the issue of double reme dies was addressed in the investigations and 
reviews at issue, when it was addressed. In a number of these determinations, there is no 
discussion of the issue of double remedies, because it was apparently not raised by China or other 
interested parties in the investigation in question. However, more than a dozen of the determinations do address the issue (in response  to the issue being raised by China or other 
interested parties), and there one finds explicit language to the effect that USDOC consistently 
required respondents to demonstrate, on the basi s of positive evidence, that double remedies 
would result from the simultaneous imposition of CVDs and anti-dumping duties. These 
determinations also reveal that when USDOC concluded that no such evidence was provided, 
USDOC did not take steps on its own initiative to investigate the possibility of double remedies.
636   
                                               
629 United States' second written submission, para. 114. 
630 Ibid. paras. 113-127. 
631 United States' first written submission, para. 159. 
632 Exhibits USA-100 (CVD determination) and USA-99 (associated anti-dumping determination). 
633 Exhibit US-100, pp. 10-11. 
634 United States' response to  Panel question No. 79(c). 
635 China's response to Panel question No. 79(c). 
636 See the similar statements in Exhibit CHI-53 , pages 31-32; Exhibit CHI-58, pages 35, 36, 37; 
Exhibit CHI-60, page 12; Exhibit CH I-62, pages 10-11; Exhibit CHI-64, page 36; Exhibit CHI-65, page 33; WT/DS449/R 
- 125 - 
 
  7.385.  We recall in this connection that in DS379, China claimed that it is "the obligation of the 
investigating authority  to investigate and make a determination as to whether it is offsetting the 
same subsidies twice", whereas the United States  a r g u e d  t h a t  " t h e  b u r d e n  t o  e s t a b l i s h  t h e  
existence of such an alleged double remedy would be on China".637 The Appellate Body agreed 
with China, and found that the burden rests on the investigating authority.638 The Appellate Body's 
finding, which we have said we will follow, was that an investigating authority imposing CVDs concurrently with anti-dumping duties calculated under an NME methodology is under an 
"affirmative obligation" to establish the appropriate amount of the duty under Article 19.3, and 
that this obligation "encompasses a requirement to conduct a sufficiently diligent 'investigation' into, and solicitation of, relevant facts, and to base its determination on positive evidence in the 
record ".
639   
7.386.  The foregoing, and in particular USDOC's reasoning that the burden to establish the 
existence of a double remedy would be on Chinese exporters, suggests that USDOC's determinations were based on the absence  of positive evidence demonstrating the existence of 
double remedies. As USDOC stated in the passage from proceeding 6 that we have reproduced 
above, "[r]espondents have declined to subm it any positive evidence on the subject."
640 We note 
that this is consistent with the statement by the Court of International Trade in GPX II , issued 
during the same time period as the 25 investigations/reviews at issue, that USDOC had proceeded 
by "placing the burden to demonstrate double counting on GPX" in that case.641 The CIT stated, 
"Commerce cannot avoid addressing an important aspect of the problem caused by applying CVD and AD methodologies to goods from NME countries by placing the burden to demonstrate double 
counting on GPX, because there is likely no way for any respondent to accurately prove what may 
very well be occurring".
642  
7.387.  In the light of the foregoing, we are unable to agree with China's assertion that USDOC 
lacked legal authority to investigate double remedies prior to the enactment of Section 2 of 
PL 112-99. Rather, the determinations demonstrate that USDOC declined to investigate double remedies for a different reason, namely, USDOC's view that respondents had failed to submit 
positive evidence demonstrating the existence of double remedies.  
7.388.  Apart from this aspect of the determinations, there are two other reasons why we are 
unable to accept China's contention that USDOC lacked legal authority to investigate double remedies prior to the enactment of PL 112-99, and in particular Section 2 thereof. First, the text of 
Section 2 of PL 112-99 obliges  USDOC to take into account the potential for the simultaneous 
imposition of anti-dumping and countervailing duti es to result in overlapping remedies and to 
reduce ("shall") the anti-dumping duty to the extent  of the overlap, provided certain conditions are 
met. While we have no difficulty accepting that prior to the enactment of Section 2 there was no 
obligation  under United States law for USDOC to take steps to investigate and avoid double 
remedies, it does not logically follow from this that USDOC did not have permissive authority  to do 
so, e.g. had respondents brought forward positive evidence that USDOC deemed sufficient in order 
to support their assertions regarding double remedies.
643 Second, the determinations before us 
suggest that USDOC believed that it might well have had legal authority to take steps to investigate and avoid double remedies. From our review of the investigations and reviews at issue, 
it appears that when the issue of double counting was raised by a respondent, USDOC proceeded 
in essentially the same way: (i) when the issue was raised in the context of a CVD proceeding, USDOC stated that it had no such authority in  the context of the CVD proceeding; (ii) USDOC 
explained that the possibility of an adjustment coul d only be made in the context of the associated 
anti-dumping investigation; (iii) when the issue wa s raised in the context of the associated anti-
dumping proceeding, USDOC proceeded to engage in a relatively detailed and lengthy discussion 
of the issue, as compared with the relatively cursory manner in which it disposed of the issue in 
the context of the CVD determinations; and (iv) USDOC ultimately concluded that no adjustment 
                                                                                                                                               
Exhibit CHI-69, page 19; Exhibit CH I-70, page 20; Exhibit CHI-72, pa ge 9; Exhibit CHI-73, page 17; 
Exhibit CHI-74, pp. 43-44; Exhibit CHI-75, page 15; Exhibit CHI-76, page 55. 
637 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 600. 
638 Ibid. paras. 600-602. 
639 Ibid. para. 602. (emphasis added) 
640 Exhibit US-100, pp. 10-11. 
641 GPX II  (Exhibit CHI-3), pp. 1242-1243. 
642 Ibid. 
643 In this regard, we note the co ncept of "permissive authority" as set forth in the United States' 
response to Panel question No. 89.   WT/DS449/R 
- 126 - 
 
  to anti-dumping duties was called for, on the basis that respondents failed to submit sufficient 
positive evidence in support of their assertions of double counting. We think that it is reasonable to presume that if USDOC considered that it did not have any legal authority to investigate and avoid double remedies, it would have simply responded by invoking that lack of authority – just as it did 
when the issue of double counting was raised in the context of the CVD determinations at issue. 
The manner in which USDOC actually proceeded instead suggests that USDOC considered that it had legal authority to take steps to investigat e and avoid double remedies – provided that 
respondents submitted positive evidence on this  issue that USDOC deemed to be sufficient.  
7.389.  For these reasons, we are unable to accept China's contention that USDOC lacked legal 
authority to investigate double remedies prior to  the enactment of PL 112-99, and in particular 
Section 2 thereof. We would also note a further difficulty with China's reasoning on this point. 
China reasons that (i) USDOC had no legal authority under United States law to investigate double 
remedies prior to the enactment of Section 2; and (ii) it therefore follows that USDOC did not do so. See e.g. China's first written submission, para. 125. In the present case, however, China has 
also argued, at length, that (i) USDOC had no legal authority under United States law to apply 
United States CVD law to imports from China prior to the enactment of Section 1 of PL 112-99; but that (ii) nonetheless, USDOC did in fact do so, based on USDOC's flawed (in China's view) 
understanding of United States law. Thus, even assuming arguendo  that it could be deduced from 
Section 2 of PL 112-99 that USDOC had no legal authority to investigate double remedies prior to the enactment of Section 2, it would not follow, even in China's own view, that USDOC did not in fact do so. 
7.390.  However, in our view this does not serve to rebut the prima facie conclusion that in the 
investigations and reviews at issue, USDOC failed to investigate double remedies as required by the Appellate Body in DS379. Rather, it on ly amounts to a different explanation of why it was that 
USDOC did not do so. It does not call into question the conclusion – and if anything, actually 
reinforces the conclusion – that USDOC did not discharge its "affirmative obligation" to conduct "a sufficiently diligent 'investigation' into, and solicitation of, relevant facts, and to base its 
determination on positive evidence in the record."
644   
7.391.  We now turn to the United States' second main rebuttal argument. The United States 
argues that in all of the investigations and reviews at issue, Chinese respondents had the opportunity to present USDOC with evidence and arguments demonstrating the existence of 
overlapping remedies, and USDOC fully addressed any such evidence, or lack thereof.
645 We 
accept the United States' assertion as far as it goes. However, we do not consider that this demonstrates that USDOC properly discharged its "affirmative obligation" under Article 19.3 to 
"investigate" the issue of double remedies. Th e reason is that the manner in which USDOC 
"addressed" the issue of double remedies in the de terminations at issue was by taking the position 
that the burden was on Chinese respondents to  provide positive evidence demonstrating the 
existence of double remedies. As we have found, this was inconsistent with the obligation on 
USDOC, under Article 19.3, to conduct "a sufficient ly diligent 'investigation' into, and solicitation 
of, relevant facts, and to base its determination on positive evidence in the record".
646   
7.392.  Based on the foregoing, the Panel concludes that in proceedings 1 through 25, the USDOC 
imposed anti-dumping duties calculated on the basis of an NME methodology, and concurrently 
imposed CVDs on the same products, without ha ving investigated, on the basis of positive 
evidence, whether double remedies arose. Accordingly, the Panel finds that in proceedings 1 
through 25, the United States acted inconsistently with its obligation under Article 19.3 to 
investigate whether, on the basis of positive evidence, double remedies arose from the imposition of such concurrent duties.  
7.7.4  Claims under Articles 10 and 32.1 
7.393.  In DS379, the Appellate Body found that the United States acted inconsistently with its 
obligations under Articles 10 and 32.1 of the SCM Agreement as a consequence of its acting  inconsistently with Article 19.3: 
                                               
644 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 602.  
645 United States' first written submission, paras. 155-159; response to Panel question No. 126. 
646 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 602.  WT/DS449/R 
- 127 - 
 
  We have already explained that when a Member's measures do not satisfy the express 
conditions for the imposition of a countervailing duty set out in relevant provisions of the SCM Agreement , this means that the right to impose a countervailing duty has not 
been established and, as a consequence, such measures are also inconsistent with 
Articles 10 and 32.1 of the SCM Agreement .
647  Accordingly, we are of the view that 
China was not required to advance further arguments to establish a consequential violation of Articles 10 and 32.1. Having found that the USDOC's concurrent 
imposition of anti-dumping duties calculated on the basis of its NME methodology, and 
countervailing duties on the same products in the four countervailing duty determinations at issue is inconsistent with Article 19.3 of the SCM Agreement , we 
find that this is also inconsistent with Articles 10 and 32.1 of the SCM Agreement .
648 
7.394.  In the present dispute, China argues on this basis that a violation of Article 19.3 would 
establish, by itself, a consequential violation of Articles 10 and 32.1.649 The United States does not 
challenge this argument.650  
7.395.  Having reviewed the evidence related to proceedings 1 through 25, the Panel has found 
that USDOC's concurrent imposition of anti-dumping duties calculated on the basis of its NME methodology and CVDs on the same products is in consistent with Article 19.3. Accordingly, the 
Panel finds, and concludes in addition, that the violation of Article 19.3 gives rise to a 
consequential violation of Articles 10 and 32.1 in each of these proceedings. Having found no violation of Article 19.3 in respect of Drawn Stainless Steel Sinks , we consequently reject China's 
claims under Articles 10 and 32.1 in respect of that particular investigation.  
7.7.5  Overall conclusion 
7.396.  For the reasons set forth above, the Panel finds that in proceedings 1 through 25
651, 
USDOC imposed anti-dumping duties calculated on the basis of an NME methodology, and 
concurrently imposed CVDs on the same products, without having investigated, on the basis of 
positive evidence, whether double remedies arose. As a consequence of that finding, the Panel finds that in respect of proceedings 1 through 25, the United States acted inconsistently with 
Articles 19.3, 10, and 32.1 of the SCM Agreemen t. For the reasons set forth above, the Panel 
rejects China's claims in respect of proceeding 26.  
8  CONCLUSIONS AND RECOMMENDATION 8.1.  For the reasons set forth in this Report, the Panel concludes as follows: 
a. In respect of China's panel request
652: 
i. in the light of China's representation that it would not pursue certain claims653, the 
Panel declines to rule on whether the panel request is consistent with Article 6.2 of 
the DSU insofar as it relates to those claims; and 
ii. the Panel finds that the general references to Articles 10, 19, and 32 of the SCM 
Agreement contained in Part D of the panel request are consistent with the 
requirements of Article 6.2 of the DSU, on the basis that the general references 
warrant the inference that the obligations at issue are those contained in Articles 10, 19.3, and 32.1 of the SCM Agreement, and the United States has not established 
                                               
647 (footnote original ) See supra , para. 358.  See also Appellate Body Report, US – Softwood Lumber IV , 
para. 143. 
648 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 610. See also 
para. 611(d)(iii). 
649 China's first written submission, para. 126; or al statement at the fi rst meeting, para. 74. 
650 United States first written submission, para. 203; oral statement at the first meeting, para. 55; 
second written submission, para. 148. 
651 The investigations and reviews at issue are identified above at para. 7.355. 
652 The Panel's conclusions incorporate those set forth in its preliminary ruling, which is contained in 
document WT/DS449/4 circulated on 7 June 2013 and which forms an integral part of this Report. 
653 Those claims include Part C of China's panel reques t in its entirety, and the references in Part D of 
the China's panel request to Articles 15 and 21 of the SCM Agreement, Article VI of the GATT 1994, and Articles 9 and 11 of the Anti-Dumping Agreement. WT/DS449/R 
- 128 - 
 
  that Part D of the panel request fails to "plainly connect" the challenged measures 
with those obligations. 
b. In respect of China's claims under Article X654 of the GATT 1994 concerning Section 1 of 
PL 112-99: 
i. the Panel finds that the United States  has not acted inconsistently with Article X:1 of 
the GATT 1994, as Section 1 was "made effective" by the United States on 13 March 2012 (and not on 20 November 2006), and published on the same day; 
ii. the Panel finds that although, through Section 1(b) and relevant determinations or 
actions made or taken by the United States between 20 November 2006 and 13 March 2012 in respect of imports from China, the United States has enforced Section 1 before it has been officially published, the United States has not acted 
inconsistently with Article X:2 of the GATT 1994, as Section 1 does not "effect[] an 
advance in a rate of duty or other charge on imports under an established and uniform practice, or impos[e] a new or more burdensome requirement, restriction, or 
prohibition on imports"; and    
iii. the Panel finds that the United States has not acted inconsistently with Article X:3(b) 
of the GATT 1994, as Article X:3(b), which requires that administrative agencies 
implement and be governed by decisions of the tribunals maintained to review their 
administrative action relating to customs matters, does not prohibit a Member from taking legislative action in the nature of Section 1 of PL 112-99.  
c. In respect of China's claims under the SCM Agreement concerning the United States' 
alleged failure to investigate and avoid double remedies in certain investigations and 
reviews initiated between 20 November 2006 and 13 March 2012: 
i. the Panel finds that in respect of one proceeding ( Drawn Stainless Steel Sinks From 
the People's Republic of China,  C-570-984, initiated on 27 March 2012), China has 
failed to demonstrate that the measure falls within the description of its claim as set out in its panel request, and has in any event failed to demonstrate that the 
United States has acted inconsistently with Article 19.3 of the SCM Agreement, or, 
consequently, Articles 10 or 32.1 of the SCM Agreement; and  
ii. the Panel finds that in the other 25 proceedings
655, the United States has acted 
inconsistently with Article 19.3 of the SCM Agreement, and, consequently, Articles 10 
and 32.1 of the SCM Agreement, by virtue of the USDOC's concurrent imposition of 
countervailing duties and anti-dumping duties calculated on the basis of an NME methodology on the same products, without having investigated, either in the CVD 
investigations and reviews or in the parallel anti-dumping investigations and reviews,  
whether double remedies arose from such concurrent duties.  
8.2.  Under Article 3.8 of the DSU, in cases wh ere there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. We conclude that, to the extent that the measures at issue are inconsistent with the SCM Agreement, they have nullified or impaired benefits accruing to China under that agreement. 
8.3.  Pursuant to Article 19.1 of the DSU, we recommend that the United States bring the 
investigations and reviews identified in paragraph 7.355, excluding the investigation of Drawn 
Stainless Steel Sinks from the People's Republic of China , into conformity with its obligations under 
the SCM Agreement. 
 
__________ 
                                               
654 The Panel recalls that China abandoned its claim under Article X:3(a) of the GATT 1994. See 
para. 7.7. 
655 These investigations and reviews at issue are identified above at para. 7.355.