WT/DS437/4  
 
21 February 2013  
(13-0934)  Page: 1/13  
  Original: English  
 
 UNITED STATES – COUNTERVAILING DUTY MEASURES  
ON CERTAIN PRODUCTS FROM CHINA 
 
COMMUNICATION FROM THE PANEL 
 The following communication, dated 14 February 2013, was received from the Chairperson 
of the Panel with the request that it be circulated to the Dispute Settlement Body ("DSB"). 
 
_______________ 
  
 On 14 December 2012, the United States submitted to the Panel a request for a preliminary 
ruling concerning the consistency of China's request for the establishment of a Panel (WT/DS437/2) with Article 6.2 of the Understa nding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU"). 
 
On 8 February 2013, the Panel issued the encl osed preliminary ruling to the parties. The 
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 during Interim Review.  
After consulting the parties to the dispute, the Panel decided to inform the DSB of the 
content of its preliminary ruling. Therefore, I woul d be grateful if you would circulate the body of 
this letter and the enclosed preliminary ruling as document WT/DS437/4.  WT/DS437/4 
 
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  COMMUNICATION FROM THE PANEL 
PRELIMINARY RULING 
  
1  PROCEDURAL BACKGROUND 
1.1.  On 14 December 2012, the United States submitted to the Panel a request for a preliminary 
ruling concerning the consistency of China's request for the establishment of a Panel 
(WT/DS437/2) with Article 6.2 of the Understa nding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU").  
1.2.  The United States requested that the Panel ru le on the preliminary issue before the filing of 
first written submissions. In contrast, China argued that the Panel should rule on the preliminary 
request at a later stage of proceedings. Ultimately, the Panel decided it would issue a 
communication to the parties on the preliminary ruling request prior to the filing of first written submissions. As a result of this decision, some third parties communicated concerns to the Panel 
about their rights to participate in the preliminar y ruling process. The Panel sought the views of 
the parties on this issue, and both the United St ates and China supported third parties being given 
the opportunity to comment during the preliminary ruling process. 
1.3.  The Panel decided to allow third parties th e opportunity to comment on the preliminary ruling 
request. In reaching this decision, the Panel reas oned that, while Article 10.2 of the DSU provides 
third parties with an "opportunity to be heard", it does not explicitly state whether this extends to commenting on a preliminary review process, in circumstances where a panel has decided to make 
its ruling prior to the receipt of the first written submissions of the parties and third parties. 
Therefore, the Panel was of the view that it had some discretion in this regard. The Panel decided 
to exercise its discretion in favour of the third pa rties in this dispute for a number of reasons. In 
particular, the Panel noted that neither party had objected to this course of action. Further, the 
Panel was of the view that the jurisdictional issue before it was a systemic one and that the consequences of the Panel accepting the United States' request not to assume jurisdiction on a 
particular issue would be serious.
1 Finally, in the particular circumstances of this dispute, the Panel 
noted that one of the United States' arguments in its preliminary ruling request was that Article 6.2 protects the rights of third partie s, and that these third party rights had been 
prejudiced due to China's allegedly deficient panel request.
2 In the Panel's view, given that the 
issues of substance relate to third party rights, it  was particularly important that third parties be 
given the opportunity to comment on the preliminary ruling request. 
1.4.  Finally, although the United States proposed that the Panel meet with the parties to consider 
the preliminary ruling request, the Panel did not consider this necessary. 
2  ARGUMENTS OF THE PARTIES 2.1  United States 
2.1.  The United States requests the Panel to find that China's "as applied" challenge to "instances" 
in which the United States Department of Commerce ("USDOC") "used facts available" is not within its terms of reference because China's pa nel request does not meet the requirements of 
Article 6.2 of the DSU.  
2.2.  The United States' request relates to the section of China's panel request that sets out the 
"legal basis of the complaint" in relation to China's "as applied" claims. This section of the panel request commences with the following paragraph: 
China considers that the initiation and conduct of the identified countervailing duty 
investigations, as well as the countervailing duty determinations, orders, and any definitive countervailing duties imposed pursuant thereto, are inconsistent, at a 
minimum, with the obligations of the United States specified below. 
                                               
1 In this regard, see also Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.6. 
2 United States' preliminary ruling request, para. 29. WT/DS437/4 
 
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  2.3.  The United States' position is that su bparagraph (d), following the above introductory 
paragraph, does not satisfy Article 6.2 of the DSU. It provides: 
In connection with all the identified countervailing duty investigations in which the 
USDOC has issued a preliminary or final countervailing duty determination: 
(1) Article 12.7 of the SCM Agreement, because the USDOC resorted to facts 
available, and used facts available, includ ing so-called "adverse" facts available, in 
manners that were inconsistent with that provision.10 
_______________ 
10 This claim arises in respect of each instan ce in which the USDOC used facts available , including 
"adverse" facts available, to support its findings of financial contribution, specificity, and benefit in the investigations and determinations identified in Appendix 1. 
2.4.  The United States' principal complaint is that China's panel request does not adequately 
identify the "instances" of the use of facts av ailable by USDOC that China is challenging and 
consequently, does not present the problem clearly. According to the United States, the reference 
to each "instance" in which facts available were used could refer to any of the hundreds of applications of facts available by USDOC in support of its findings of financial contribution, benefit 
and specificity, at any stage of the investigation, wherever made, and whether the determination 
was preliminary or final in nature. The United States contends that China's decision to present a panel request with an extremely broad scope in relation to the multiple stages of each investigation contributes to the panel request's lack of clarity.  
2.5.  The United States variously complains that China has failed to "plainly connect" the cited 
WTO obligation and the measures listed in the panel request
3; has failed to "provide a brief 
summary" of the legal basis of its claim "sufficient to present the problem clearly"4; and has failed 
to explain "how or why" the measure at issue is considered by China to be inconsistent with 
Article 12.7 of the Agreement on Subsidies an d Countervailing Measures ("SCM Agreement").5 The 
United States contends that each of these defici encies in the panel request arises because of the 
failure to identify the "instances" of the use of facts available challenged by China. 
2.6.  We note that in its preliminary ruling requ est, the United States submits that an explanation 
of "how or why" the measures at issue violates  Article 12.7 of the SCM Agreement required China 
to "indicate what portions of the various documents … are the alleged breach of the facts available 
obligations in Article 12.7".6 However, in response to a Panel question, the United States adds that 
in order to explain "how or why" a measure has breached Article 12.7, a complainant could state, for example, that "a Member has breached Article 12.7 because it improperly rejected necessary 
information provided by an importer in an investigation".
7  
2.7.  The United States also refers to "another  source of ambiguity in China's panel request", 
namely that China did not specify which of the obligations found within Article 12.7 of the 
SCM Agreement USDOC is alleged to have breached.8 However, in its preliminary ruling request, 
the United States "does not assert that this lack of clarity, standing alone, necessarily renders this or any other panel request deficient".
9  
                                               
3 United States' preliminary ruling  request, paras. 23 and 25 and Unit ed States' comments on China's 
response to the preliminary ruli ng request, paras. 13 and 16. 
4 United States' preliminary ruling request, paras. 3, 23, 25, 26 and 27 and United States' comments on 
China's response to the preliminary ru ling request, paras. 1, 3 and 17. 
5 United States' preliminary ruling  request, para. 26 and United Stat es' comments on China's response 
to the preliminary ruli ng request, para. 18. 
6 United States' preliminary ruling request, para. 26. 
7 United States' response to Panel question 4, para. 7. 
8 United States' preliminary ruling request, para. 22. 
9 United States' preliminary ruling request, para. 22.  In response to China's rebuttal about whether it 
needed to specify which obligations under Article 12.7 of the SCM Agreement it is challenging, the 
United States again reiterates that it  does not assert the "lack of clarity" surrounding the obligations at issue 
under Article 12.7 necessarily renders the panel request in consistent with Article 6.2 of the DSU (United States' 
comments on China's response to the preliminary ruling request, para. 14). WT/DS437/4 
 
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  2.8.  Finally, in relation to China's submissions on the preliminary ruling request, the United States 
argues that China provides new descriptions of its facts available claims, which only serve to demonstrate that the claims, as described in the panel request, fail adequately to present the problem. The United States also refutes the suggestion from China that it should be able to discern 
the content of the facts available claims on the basi s of the content of the United States' claims in 
China – GOES . According to the United States, the claims in China – GOES  have no relationship to 
China's claims in this dispute. 
2.2  China 
2.9.  China argues that the United States' preliminary ruling request is essentially based upon the 
proposition that the large number of instances in which USDOC used facts available in the determinations at issue imposed an enhanced obligation under Article 6.2 of the DSU. China 
contends that the United States has no authority for this proposition. Rather, China's position is 
that the instances in which USDOC used facts available are identified within each of the determinations at issue. Further, the panel request plainly states that "each" such instance is 
inconsistent with Article 12.7 of the SCM Agreement. Therefore, China has met its obligations 
under Article 6.2 of the DSU. 
2.10.  In its first submission to the Panel, many  of China's submissions refer to USDOC's use of 
"adverse" facts available. However, in its second submission, China clarifies that its position is that 
the panel request states that China is challenging "each instance" in which USDOC used facts available, "including so-called 'adverse' facts available". However, virtually all of the instances in which USDOC used facts available involved the use of "adverse" facts available, as is evident on 
the face of the determinations at issue. This is why it is China's principal concern. 
2.11.  According to China, the specific instance s in which USDOC used "adverse" facts available 
are simple to discern. The only measures at i ssue in which USDOC would have used "adverse" 
facts available for any purpose are the 19 final determinations and the three preliminary 
determinations listed in Appendix 1 to the panel request. China notes that USDOC releases an "Issues and Decision Memorandum" and a Federal Register notice to explain its reasoning in 
relation to final and preliminary determinations respectively. These documents set forth USDOC's 
rationale for the use of facts available, including "adverse" facts available. Therefore, China argues 
that it is preposterous for the United States to argue that "it is not possible to discern" the "instances" in which China considers USDOC to have used facts available. 
2.12.  According to China, it is apparent that the United States' actual concern is not its ability to 
identify  the instances in which USDOC used "adverse" facts available, but rather the number of 
instances  in which USDOC did so. However, China notes that regardless of the number of instances 
of a violation involved in a claim, a Member is only ever required to connect the challenged 
measures to the provision of the covered agreemen ts claimed to have been infringed. China has 
fulfilled this requirement by indicating that "each instance" of the use of "adverse" facts available 
infringes Article 12.7 of the SCM Agreement, wher e the ordinary meaning of "each" is "every". 
2.13.  China asserts that it was not required to explain in its panel request which aspects  of 
Article 12.7 it considers the United States to have violated. This would amount to arguments, 
which are not required in a panel request. 
2.14.  According to China, the United States fails to identify any prior decision under Article 6.2 of 
the DSU that is even remotely analogous to what th e United States is requesting from the Panel in 
this case. Further, China submits that the United States should understand China's "adverse" facts 
available claim, given that it recently successfully litigated the same issue against China in China – 
GOES. Therefore, it should have been obvious to the United States that China's claim in 
subsection (d)(1) of the panel request relates, at least in part, to the issue of whether an 
investigating authority may resort to "adverse" facts available under Article 12.7 of the 
SCM Agreement. WT/DS437/4 
 
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  3  ARGUMENTS OF THE THIRD PARTIES 
3.1  Australia 3.1.  In Australia's view, due process requires that responding parties receive details about the 
complaint that are sufficient to enable them to frame their response, particularly in the light of the 
tight timeframes associated with panel proceedings. 
3.2  Brazil 3.2.  Brazil contends that in order for a panel re quest to comply with Article 6.2 of the DSU, it 
must identify the measure targeted in the dispute and must provide a brief summary of the legal 
basis of the claims. There is no obligation under Article 6.2 for the complaining party to develop in the panel request the legal arguments that support its claims or to provide a detailed explanation of why and how the measures at issue are inconsistent with a provision of a covered agreement. 
However, Brazil does not advocate that permissive  standards of specificity should prevail in DSU 
proceedings and notes that greater precision and clarity in panel requests would contribute to better define the boundaries of a panel's jurisdiction. 
3.3.  In Brazil's view, China's panel request identifies the measures at issue with sufficient 
particularity to allow the defendant to identify their "nature and the gist of what is at issue".
10 
Brazil notes that merely listing the provisions of the covered agreements allegedly violated may 
not always satisfy Article 6.2 of the DSU. However,  in the circumstances of this case, the language 
of Article 12.7 of the SCM Agreement raises no doubt regarding the legal problem identified by 
China.  
3.3  European Union 
3.4.  The European Union provides detailed submissions regarding why, in its view, third parties 
have a right to be heard on a preliminary ruling  request before any communication on the request 
is issued by the panel.  
3.5.  Regarding the substance of the preliminary ru ling request, the European Union notes that it 
is not persuaded that the mere fact that the scope of a particular proceeding is broad is relevant to the analysis under Article 6.2 of the DSU. 
3.6.  The European Union observes that there are different issues that might arise under 
Article 12.7 of the SCM Agreement in connection with the use of facts available. According to the European Union, if at the time of submitting the panel request the complaining member has already worked out which of the issues best describes the problem, it might indicate this in the 
panel request. In relation to China's panel reques t, the European Union notes that China expressly 
referred to the use of "adverse" facts available and indicated that this was inconsistent with Article 12.7. Therefore, in the European Union's view, China's challenge to the use of adverse facts 
available falls within the Panel's jurisdiction. However, with respect to the use of facts available 
other than the use of adverse facts available, the European Union is of the view that "some further 
effort to specify the problem … might have been reasonable".
11 
4  EVALUATION BY THE PANEL 
4.1  The provision at issue 4.1.  Article 6.2 of the DSU provides, relevantly: 
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem clearly. 
                                               
10 Brazil's comments on the preliminary ruling request, para. 8. 
11 European Union's commen ts on the preliminary ruling request, para. 17. WT/DS437/4 
 
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  4.2  The measures at issue 
4.2.  At the outset, we note that the "specific measures at issue" in relation to China's claims 
under Article 12.7 are identified in the panel request. While the introduction to the "as applied" section of China's panel request refers to the initiation and conduct of investigations, the 
determinations, orders and definitive duties, it is clear that for the purposes of a facts available 
claim under Article 12.7 of the SCM Agreement, the only measures in which USDOC could have applied facts available are the final and preliminary countervailing duty determinations. Therefore, 
the "specific measures at issue" are the 19 final and the three preliminary countervailing duty 
determinations listed in Appendix 1 to the panel request. 
4.3  Did China adequately identify the "instanc es" of the use of facts available that it is 
challenging? 
4.3.  The United States' principal complaint is that China's panel request does not adequately 
identify the "instances" of the use of facts av ailable by USDOC that China is challenging and 
therefore does not "present the problem clearly". The United States variously complains that China 
has failed to "plainly connect" the cited WTO obligation and the measures listed in the panel 
request
12; has failed to "provide a brief summary" of the legal basis of its claim "sufficient to 
present the problem clearly"13; and has failed to explain "how or why" the measure at issue is 
considered by China to be inconsistent with Article 12.7 of the SCM Agreement.14 The 
United States contends that each of these defici encies in the panel request arises because of the 
failure to identify the "instances" of the use of facts available that are challenged by China. 
4.4.  The Panel notes that the measures at issue in relation to the facts available claims include 
the Issues and Decisions Memoranda and Federal Register Notices, which are incorporated by 
reference into the final and preliminary determinations respectively.15 The Panel has examined the 
memoranda and notices which are incorporated into the determinations listed in Appendix 1 to the 
panel request, and which are publicly available. In our view, in these documents the "instances" in 
which USDOC applied facts available are readily identifiable. Consequently, we are not persuaded by the United States' argument that "it is not possible to discern what are those 'instances' in 
which China considers the investigating authority used facts available".
16  
4.5.  The United States' complaint that China did not adequately identify the "instances" of the use 
of facts available at issue appears to be premised upon an assumption that China is not intending to challenge every application of facts available by USDOC. For example, the United States argues 
that China fails to indicate "which of the potentially hundreds of applications of facts available are 
of concern for purposes of the dispute".
17 However, the panel request states that China will 
challenge "each" instance of the use of facts avai lable and China insists that this should be read 
literally. In particular, China argues that it will challenge "each", in the sense of "every", use of 
facts available by USDOC.18 If the panel request were to state that China challenges "some" or 
"numerous" applications of facts available, we would consider the United States to have a valid 
argument. However, in our view, the panel request is clear that all "instances" of the use of facts 
available will be challenged, and China confirms this in its submissions to the panel. 
4.6.  Therefore, in our view, it is possible to identify the specific aspects of each measure that will 
be challenged by China under Article 12.7 of the SCM Agreement, namely, all instances of the use 
of facts available, as found in the relevant I ssues and Decisions Memoranda and Federal Register 
notices. Although the number of applications of facts available is indeed large, as argued by the 
                                               
12 United States' preliminary ruling  request, paras. 23 and 25 and Unit ed States' comments on China's 
response to the preliminary ruli ng request, paras. 13 and 16. 
13 United States' preliminary ruling  request, paras. 3, 23, 25, 26 and 27 and United States' comments 
on China's response to the preliminary ruling request, pa ras. 1, 3 and 17. 
14 United States' preliminary ruling  request, para. 26 and United Stat es' comments on China's response 
to the preliminary ruli ng request, para. 18. 
15 The panel request expressly states that the preliminary and countervailing duty measures include 
"any notices [and] decision memorand a … issued by the United States in connection with the … measures" 
("WT/DS437/2, p.1, part A). 
16 United States' preliminary ruling request, para. 18. 
17 United States' preliminary ruling request, para. 3. 
18 See China's response to the United Stat es' preliminary ruling  request, para. 4. WT/DS437/4 
 
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  United States, this does not prevent the United St ates, third parties and the Panel from being able 
to identify all of the "instances" in which USDOC applied facts available. 
4.7.  The Panel is not convinced that the situation before the Panel is equivalent to that before the 
Appellate Body in China – Raw Materials. In that case, it was not clear on the face of the panel 
request which of the listed measures allegedly vi olated which of the listed provisions of the 
covered agreements. However, in the case before  the Panel, it is clear that every final and 
preliminary determination listed in Appendix 1 to the panel request is alleged to be inconsistent 
with a single provision of the SCM Agreement, namely 12.7. Therefore, in our view, the panel 
request "plainly connects" the measures to the provision at issue. 
4.4  Did China otherwise "provide a brief su mmary of the legal basis of the complaint 
sufficient to present the problem clearly"? 
4.8.  In its preliminary ruling request and its comments on China's response to the request, the 
United States' argument that China did not "provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly" is based upon the contention that China did 
not adequately identify the "instances" of the use of facts available that are at issue. For example, 
the United States' reliance on the Appellate Body's statement in EC – Selected Customs Matters, 
namely  that Article 6.2 of the DSU requires a succinct explanation of "how or why" the measure at 
issue is considered to be violating the WTO obligation in question, is rather limited.
19 It does not 
suggest that, in order to explain "how or why" the measure was inconsistent with Article 12.7 of the SCM Agreement, China was required to include further details of which aspects of the obligations under Article 12.7 it would be challenging in the dispute. Rather, the United States 
argues that "by failing to indicate what portions of the various documents in the 22 covered 
investigations are the alleged breach of the facts available obligations in Article 12.7, China's panel request includes no explanation - succinct or otherwise - on how or why these measures violate 
Article 12.7".
20  
4.9.  However, in response to a Panel question, the United States perhaps presents a broader view 
of how the "instances" of application of facts available could have been identified. In particular, the 
United States notes that: 
China might have described the uses of fact s available (e.g., the specific proceeding, 
respondent, and type of fact) that it wished to challenge and the bases for challenging those uses. Or, perhaps China could have described a specific class or type of facts 
available determination that it intended to challenge and the basis for that 
challenge.
21 
Further, in responding to a Panel question regarding the distinction between, on the one hand, 
"how and why" a measure violates a WTO obligation and, on the other hand, the arguments 
supporting a claim of violation, the United States argues:  
A complaining party bringing a facts available claim could summarize it in a number of 
ways, depending on the facts and legal theori es at issue. For example, a complainant 
could state that a Member has breached Article 12.7 because it improperly rejected necessary information provided by an importer in an investigation, or because it applied facts available to an importer who was not a respondent in an investigation. 
Such a description would explain how or why a Member is alleged to have breached 
Article 12.7 but does not involve argumentation.
22 
4.10.  The United States' responses to these panel questions appear to be related to the 
United States' submission in its preliminary ruling request in which it refers to "another source of 
ambiguity in China's panel request", namely that China did not specify which of the obligations found within Article 12.7 of the SCM Agreement USDOC is alleged to have breached.
23 However, 
                                               
19 United States' preliminary ruling  request, para. 26 and United Stat es' comments on China's response 
to the preliminary ruli ng request, para. 18. 
20 United States' preliminary ruling request, para. 26. 
21 United States' response to Panel question 3, para. 6. 
22 United States' response to Panel question 4, para. 7. 
23 United States' preliminary ruling request, para. 22. WT/DS437/4 
 
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  this argument is not forcefully pursued by the United States. In particular, the United States "does 
not assert that this lack of clarity, standing alone, necessarily renders this or any other panel 
request deficient".24  
4.11.  We note that the Appellate Body has arti culated various means by which a panel request is 
able to "provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly". In particular, the Appellate Body has noted that a panel request must "plainly connect" the challenged measures with the provisions of the covered agreements at issue.
25 
Further, the Appellate Body has stated that a brief summary of the legal basis of the complaint 
"aims to explain succinctly how or why the measure at issue is considered by the complaining 
Member to be violating the WTO obligation in question".26 However, the Appellate Body has 
consistently held that "Article 6.2 of the DSU requires that the claims , but not the arguments , 
must all be specified sufficiently in the request for the establishment of a panel".27 Finally, the 
Appellate Body has noted that whether a particular panel request meets the requirements of Article 6.2 must be assessed on a case-by-case basis.
28 
4.12.  While the Appellate Body has articulated these broad statements, the precise manner in 
which they should be applied is not entirely clear. In particular, it is not always clear how a summary of claims should be distinguished from arguments in support of a claim. In our view, 
some guidance on the application of these stat ements, and the requirement to "provide a brief 
summary of the legal basis of a complaint" can be found by examining the Appellate Body's own 
application of Article 6.2 in specific cases.  
4.13.  In US – Carbon Steel, the Appellate Body noted that whether merely listing a treaty 
provision is sufficient to constitute a brief summary of the legal basis of the complaint under 
Article 6.2 of the DSU "will depend on the circumstances of each case, and in particular on the extent to which mere reference to a treaty provision sheds light on the nature of the obligation at 
issue".
29 In US – Certain EC Products, the panel request stated that the "European Communities 
considers that this US measure is in flagrant breach of…Article 23 of the DSU".30 The 
Appellate Body held that this was sufficient to include a claim of violation of Article 23.2(a) of the 
DSU within the panel's terms of reference. The Appellate Body reasoned that there is a close link 
between the all the obligations listed in the sub-pa ragraphs of Article 23, in that they all concern 
the obligation on WTO members not to have recourse to unilateral action, and so concluded that the general reference to Article 23 of the DSU was sufficient to include a claim under 
Article 23.2(a) of the DSU within the panel's jurisdiction.
31 Therefore, it seems the Appellate Body 
accepted the reference to the "flagrant breach of Article 23" as sufficient to "provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly". Similarly in 
Thailand – H-Beams, both the Panel and the Appellate Body held the panel request at issue to be 
consistent with Article 6.2 of the DSU. The panel request provided, relevantly, that "Thai authorities initiated and conducted this investigation in violation of the procedural and evidentiary 
requirements of … Article 5 … of  the Anti-Dumping Agreement".
32 Ultimately, Poland's claims under 
Article 5 were brought under Articles 5.2, 5.3 and 5.5 of the Anti-Dumping Agreement. However, the Appellate Body held that due to the "interlinked nature of the obligations in Article 5, we are of 
the view that, in the facts and circumstances of this case, Poland's reference to 'the 
procedural…requirements' of Article 5 was sufficient to meet the minimum requirements of 
Article 6.2".
33 
4.14.  In a more recent case, EC – Fasteners (China), the Appellate Body held that although a 
complainant need not provide arguments in a panel request, in the circumstances of the case 
before it, it did not consider the mere listing of Articles 6.2 and 6.4 of the Anti-Dumping 
                                               
24 United States' preliminary ruling  request, para. 22 and United Stat es' comments on China's response 
to the preliminary ruli ng request, para. 14. 
25 Appellate Body Reports, US – Oil Country Tubular Goods Sunset Reviews, para. 162 and China – Raw 
Materials, para. 220. 
26 Appellate Body Report, EC – Selected Customs Matters, para. 130 . 
27See, for example, Appellate Body Report, EC – Bananas III, para. 143. 
28 See, for example, Appellate Body Report, Korea – Dairy, para. 127. 
29 Appellate Body Report, US – Carbon Steel, para. 130. 
30 See, Appellate Body Report, US – Certain EC Products, para. 109. 
31 Appellate Body Report, US – Certain EC Products, para. 111. 
32 See Appellate Body Report, Thailand – H-Beams, para. 89. 
33 Appellate Body Report, Thailand – H-Beams, para. 93. WT/DS437/4 
 
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  Agreement as adequate to "provide a brief summary of the legal basis of the complaint sufficient 
to present the problem clearly". The Appellate Body reasoned that the obligations in Articles 6.2 and 6.4 of the Anti-Dumping Agreement are "relat ively broad in scope and apply on a continuous 
basis throughout an investigation".
34 
4.15.  Therefore, the Appellate Body has held that  merely listing the provision that forms the legal 
basis of the complaint will not always be sufficien t to meet the requirement of Article 6.2 of the 
DSU to provide a brief summary of the legal basis of the complaint, but that in some 
circumstances it may be. We note that many panels have made similar statements and in certain 
circumstances have found that the listing of a provision is sufficient to satisfy the obligations encompassed in Article 6.2 of the DSU.
35 
4.16.  In the circumstances of this case, we note that China has provided more detail than the 
complainants in, for example, US – Certain EC Products and Thailand – H-Beams, in that it has not 
merely listed the Article at issue, but has referenced the specific sub-paragraph of Article 12 under which it brings its claim (namely, 12.7 of the SC M Agreement). In our view, in the circumstances 
of this case, the reference to Article 12.7 sheds suffi cient "light on the nature of the obligation at 
issue" to satisfy Article 6.2 of the DSU.
36 Article 12.7 sets out a relatively limited range of 
circumstances in which it is permissible for an investigating authority to apply "facts available". In 
addition, the panel request indicates that China will challenge the manner that USDOC resorted to 
and used facts available. It also provides a higher  level of precision with respect to one aspect of 
its claim, namely that China will challenge USDOC's use of "adverse" facts available. 
4.17.  While we have some sympathy for the United States' position, namely that more detail 
could have been provided in the panel request regarding what in particular about the manner in 
which the United States resorted to and used facts available is allegedly inconsistent with Article 12.7 of the SCM Agreement, we are not conv inced that Article 6.2 of the DSU requires this. 
We also note that the United States itself concedes that this is not necessarily required under 
Article 6.2.
37 Our analysis of the application of Article 6.2 in previous cases seems to suggest that 
relatively general summaries of the "legal basis of complaint" have been accepted as sufficient to 
"present the problem clearly". Further, providing more precise details regarding what aspects of 
the resort to and use of facts available are ch allenged under Article 12.7 of the SCM Agreement 
could perhaps best be characterized as the argume nts in support of the claim, rather than the 
summary of the claim itself.  
4.18.  We note that Article 6.2 of the DSU has been characterized by the Appellate Body as serving 
the due process objective of notifying the part ies and third parties of the nature of the 
complainant's case38. We concur with this view and believe that Article 6.2 serves an important 
function in this regard. In the circumstances of this case, in our view, China has met the minimum 
requirements to fulfil this due process objective. While more precision in the panel request may have allowed the United States to prepare a detailed defence prior to receiving China's first written 
submission, we are of the view that the summary of the legal basis of the complaint provided by 
China was sufficient to put the United States on notice of the case against it to allow the United States to "begin" preparing its defence.
39 Therefore, we are not convinced that the 
United States' ability to defend itself has been prejudiced.  
4.19.  Finally, we note that the Appellate Body in EC – Selected Customs Matters held that the 
summary of the legal basis of the complaint "aims to explain succinctly how or why the measure at 
issue is considered by the complaining Member to be violating the WTO obligation in question".40 
                                               
34 Appellate Body Report, EC – Fasteners (China), paras. 597-598. 
35 See, for example, Panel Reports, EC – Approval and Market ing of Biotech Products, para. 7.47 (sub-
paragraphs 51-86) and EU – Footwear, para. 7.50. 
36 Appellate Body Report, US – Carbon Steel, para. 130. 
37 United States' preliminary ruling  request, para. 22 and United Stat es' comments on China's response 
to the preliminary ruli ng request, para. 14. 
38 See, for example, Appellate Body Reports, US – Carbon Steel, para. 126 and EC – Selected Customs 
Matters, para. 130. 
39 See, for example, Appellate Body Report, Thailand – H-Beams, para. 88. In particular, in our view the 
United States was in a position to "begin" preparing a defence to an allegation that the manner in which it 
applies "adverse" facts available is inconsistent with Article 12.7 of the SCM Agreement and to consider the 
consistency of its other uses of facts available with Article 12.7.   
40 Appellate Body Report, EC – Selected Customs Matters, para. 130. WT/DS437/4 
 
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  In our view, this is merely one articulation of a way in which a complainant can provide a brief 
summary of the legal basis of the complaint under  Article 6.2 of the DSU and does not add a new 
element to the Article 6.2 obligation. For the foregoing reasons, we are of the view that China has indeed provided an adequate summary of its complaint.  
4.20.   Consequently, we conclude that China was not required under Article 6.2 of the DSU to 
provide more precision about its challenge to the Un ited States' use of and resort to facts available 
in order to provide "a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly". 
5  CONCLUSION 5.1.  While we do not endorse a cursory approach to panel requests and acknowledge the 
important due process objectives served by Articl e 6.2 of the DSU, in the circumstances of this 
case, we are of the view that China has met the minimum requirements of the provision. For the 
foregoing reasons, we reject the United States' preliminary ruling request and conclude that China's panel request, as it relates to the facts available claim under Article 12.7 of the 
SCM Agreement, is consistent with Article 6.2 of the DSU. 
6  DISSENTING OPINION ON WHETHER CHIN A PROVIDED A SUMMARY OF THE LEGAL 
BASIS OF THE COMPLAINT SUFFICIENT TO PRESENT THE PROBLEM CLEARLY 
6.1.  While I agree with the Panel majority that China adequately identified the "instances" of the 
use of facts available that it is challenging, in my view, China did not provide a summary of the legal basis of the complaint sufficient to present the problem clearly. 
6.2.  The Appellate Body has repeatedly noted that  the identification of the specific measures at 
issue and the provision of a brief summary of the legal basis of the complaint sufficient to identify 
the problem clearly under Article 6.2 of the DSU are two "key" requirements because they 
comprise the "matter referred to the DSB", which forms the basis for a panel's terms of reference 
under Article 7.1 of the DSU.
41 It has explained further that these are distinct requirements that 
should not be confused.42 Moreover, the fulfilment of these requirements is not a mere formality 
because a panel request forms the basis for the terms of reference of the panel and, serves the 
due process objective of notifying the respondent and third parties of the nature of the 
complainant's case. Compliance with these two requirements is therefore central  to defining the 
scope of the dispute.43 Consequently, a panel "must scrutinize carefully the language used in the 
panel request".44 
6.3.  In the circumstances of this case, the United States does not contest that China has identified 
the specific measures at issue in its panel request. However, the United States alleges that China failed to present the problem clearly with respect to its "facts available" claims. 
6.4.  Since it is not contested that China has listed the measures at issue, we must ascertain, in 
light of the circumstances of this case: 
a. if China has done more, by way of providing a brief summary of the legal basis of the 
complaint; and 
b. if so, whether that brief summary is suffi cient to present the problem clearly; or 
c. whether the mere listing of the measures provides a brief summary sufficient to present 
the problem clearly. 
6.5.  The Appellate Body explained in Korea – Dairy that "Article 6.2 demands only a summary – 
and it may be a brief one – of the legal basis of the complaint"
45. In fact, what Article 6.2 demands 
is a " brief summary " which suggests that it can be minimal, but not insignificant. A summary is 
                                               
41 Appellate Body Report, US – Carbon Steel, para. 125. 
42 Appellate Body Report, EC – Selected Customs Matters, para. 132. 
43 Appellate Body Report, China – Raw Materials, para. 219. 
44 Appellate Body, China – Raw Materials, para. 220. 
45 Appellate Body Report, Korea - Dairy, para. 120. WT/DS437/4 
 
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  already brief — a brief statement or account of the main points of something; an abstract, 
abridgment, or compendium of facts or statements  — and Article 6.2 requires that the summary of 
the legal basis of the complaint contained in the request for the establishment of a panel be brief. 
However, the summary cannot be insignificant because it must be sufficient to present the 
problem clearly. 
6.6.  Article 6.2 requires a brief summary  of the legal basis of the complaint; not simply that the 
legal basis of the complaint be stated . In other words, Article 6.2 requires more than simply 
stating the legal basis of the complaint or, put in other terms, more than simply stating the claim. 
Because Article 6.2 expressly requires a summary  - albeit a brief one - it would be contrary to the 
principle of effectiveness ( ut res magis valeat quam pereat ) to strip that word of its meaning and 
equate the requirement to provide a brief summary  of the legal basis of the complaint to a 
requirement to provide a statement  of the legal basis of the complaint. Nonetheless, the 
Appellate Body has suggested that, depending on the circumstances of a case, a mere listing of 
the provisions of the covered agreement alleged to have been violated might serve as a brief 
summary of the complaint sufficient to explain the problem clearly. Thus, it would appear that in 
certain circumstances the Appellate Body would accept that stating the claim might also serve as a brief summary of the complaint sufficient to pres ent the problem clearly. In my view, these must 
be rare cases and, per force, a model of clarity, in order to avoid depriving the words "brief 
summary" of any meaning, contrary to the principle of effectiveness. Thus, if there is doubt as to whether the mere listing of the provisions alleged to be breached constitutes a brief summary of the legal basis of the complaint sufficient to present the problem clearly, in my view the conclusion 
would have to be that it does not. 
6.7.  In this case, China specifically claims: 
China considers that the initiation and conduct of the identified countervailing duty 
investigations, as well as the countervailing duty determinations, orders, and any 
definitive countervailing duties imposed pursuant thereto, are inconsistent, at a minimum, with the obligations of the United States… 
(d) In connection with all of the identified countervailing duty 
investigations in which the USDOC has issued a preliminary or final countervailing duty determination: 
(1) Article 12.7 of the SCM Agreement, because the USDOC resorted to 
facts available, and used facts available, including so-called "adverse" 
facts available, in manners that were  inconsistent with that provision.
10 
_______________ 
10 This claim arises in respect of each instan ce in which the USDOC used facts available , including 
"adverse" facts available, to support its findings of financial contribution, specificity, and benefit in the investigations and determinations identified in Appendix 1. 
6.8.  China’s specific complaint is not a model of clarity. The chapeau  is a general statement that 
serves to introduce all of China’s claims, but the elements that it contains do not necessarily apply to all of them. In the instant case, for example, the reference to the "initiation … of the identified 
countervailing duty investigations" obviously does not apply to China’s "facts available claim", 
because the resort to, and use of, facts available by the investigating authority would only come 
later in the investigation. 
6.9.  Thus, in order to scrutinize and fully understand China’s claim, it would appear that it could 
be rephrased as follows: 
The conduct of the identified countervailing duty investigations, as well as the 
countervailing duty determinations, and any definitive countervailing duties imposed 
pursuant thereto, are inconsistent with Article 12.7 of the SCM Agreement, insofar as in each instance in which USDOC resorted to facts available, and used facts available, including so-called "adverse" facts available, it did so in a manner that was 
inconsistent with that provision. WT/DS437/4 
 
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  6.10.  It should be noted that China’s claim is circular: in essence, its allegation is that the 
identified measures are inconsistent with Article 12.7 because certain actions of USDOC - the resort to, and use of, facts available, including so-called "adverse" facts available - are inconsistent with that provision. The footnote simply adds that this is the case of each instance in which the 
USDOC used (or resorted to) facts available. Thus, it appears that China is essentially stating its 
claim: in each instance that USDOC resorted to, and used, facts available, including so-called "adverse" facts available, it acted inconsistently with Article 12.7 of the SCM Agreement and, 
therefore, the identified measures are inconsistent with that provision. 
6.11.  A review of Appellate Body reports addressing Article 6.2 of the DSU reveals that in general 
there are three elements that the complaining party must meet to satisfy the second "key" requirement in Article 6.2 of the DSU (unless in the circumstances of the case the mere reference 
to the provision(s) alleged to be breached would suffice): 
a. it must state "the legal basis of the complaint" or, put another way, state its claim that 
an obligation contained in a specific provision of a covered agreement has been 
violated
46; 
b. it must provide a brief summary of the legal basis of the complaint, which is more than 
simply stating the claim as it requires the complaining party to explain succinctly how or 
why the measure at issue is considered to be violating the WTO obligation in question47; 
and 
c. the brief summary must be sufficient to present the problem clearly, by plainly 
connecting the challenged measure(s) with the provision(s) of the covered agreements 
claimed to have been infringed.48 
6.12.  In the circumstances of this case, China has certainly stated its claim: it alleges that the 
obligation contained in Article 12.7 of the SCM Agr eement has been violated in each instance in 
which USDOC used or resorted to facts available. China has also plainly connected the challenged 
measures with Article 12.7 of the SCM Agreement, as found by the Panel majority. The question is whether in the circumstances of this case, by plainly connecting the challenged measures with 
Article 12.7 China has satisfied the requirement to "explain succinctly how or why the measure at 
issue is considered by the complaining Member to be violating the WTO obligation in question". 
6.13.  Article 12.7 of the SCM Agreement provides: 
In cases in which any interested Member or interested party refuses access to, or 
otherwise does not provide, necessary information within a reasonable period or 
significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. 
6.14.  It contemplates different situations that may justify making affirmative or negative 
preliminary and final determinations on the basis of facts available: 
a. an interested Member or an interested part y may refuse access to necessary information 
within a reasonable period; 
b. an interested Member or an interested party may otherwise not provide necessary 
information within a reasonable period; or 
c. an interested Member or an interested party may significantly impede the investigation. 
6.15.  With reference to the Appellate Body's decision in EC – Fasteners (China), I note that 
Article 12.7 of the SCM Agreement is not as broad in scope as Articles 6.2 and 6.4 of the Anti-
                                               
46 Appellate Body Report, EC – Selected Customs Matters, para. 130. 
47 Appellate Body Report, EC – Selected Customs Matters, para. 130. 
48 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 162. WT/DS437/4 
 
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  Dumping Agreement. However, Article 12.7 does contemplate several situations and applies on a 
continuous basis throughout an investigation.49  
6.16.  In light of this: is China’s statement in item B(1)(d) of its panel request, including the 
reference to Article 12.7 of the SCM Agreement, a brief summary of the claim sufficient to present 
the problem clearly?  
6.17.  Having carefully examined the Appellate Body  cases, I find it difficult to conclude that 
China's statement that the identified measures are inconsistent with Article 12.7 of the 
SCM Agreement is anything other than simply statin g the claim; and, in the light of the content of 
that provision, in my view that is not enough to serve as a summary of the legal basis of the complaint sufficient to present the problem clearly. I would add that in this respect, China’s claim concerning facts available is different from the other claims included in its request for the 
establishment of the panel. 
6.18.  Consequently, I disagree with the Panel majority regarding whether China's panel request 
provides a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly. In my view, China's panel request is not sufficient in this regard. 
 
 
__________  
                                               
49 Appellate Body Report, EC – Fasteners (China), para. 598.