WT/DS437/24  
 
30 April 2018  
(18-2680) Page: 1/2 
  Original: English  
 
UNITED STATES – COUNTERVAILING DUTY MEASURES  
ON CERTAIN PRODUCTS FROM CHINA  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY C HINA 
NOTIFICATION OF AN A PPEAL BY THE UNITED STATES UNDER ARTICLE 16.4 A ND  
ARTICLE 17 OF THE UN DERSTANDING ON RULES  AND PROCEDURES GOVER NING  
THE SETTLEMENT OF DI SPUTES (DSU), AND UN DER RULE 20(1)  
OF THE WORKING PROCE DURES FOR APPELLATE REVIEW  
The following communication , dated 27 April 2018 , from the delegation of the United States, is 
being circulated to Members.  
 
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1. Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, th e 
United States hereby notifies its decision to appeal to the Appellate Body certain issues of law 
covered in the report of the compliance Panel in United States – Countervailing Duty Measures on 
Certain Products from China: Recourse to Article 21.5 of the  DSU by China  (WT/DS437/RW and 
WT/DS437/RW/Add.1) and certain legal interpretations developed by the compliance Panel.  
2. The United States seeks review by the Appellate Body of the compliance Panel 's finding that 
the Public Bodies Memorandum1 is a measure within the scope of the compliance Panel 's terms of 
reference under Article 21.5 of the DSU.2 This finding is in error and is based on erroneous findings 
on issues of law and legal interpretations. The Public Bodies Memorandum is not a measur e taken 
to comply with the DSB 's recommendations in this dispute. Furthermore, China could have 
attempted to challenge the Public Bodies Memorandum "as such" in the original panel proceeding, 
but China opted not to do so. Accordingly, China 's "as such" cla im against the Public Bodies 
Memorandum is outside the scope of the compliance Panel 's jurisdiction under Article 21.5 of the 
DSU. The United States respectfully requests that the Appellate Body reverse the compliance 
Panel 's findings.  
3. The United States se eks review by the Appellate Body of the compliance Panel 's finding that 
"the Public Bodies Memorandum can be challenged 'as such ' as a rule or norm of general or 
prospective application."3 This finding is in error and is based on erroneous findings on issu es of 
law and legal interpretations. The compliance Panel erred in its interpretation and application of 
Articles 3.3, 4.4, and 6.2 of the DSU in considering that the Public Bodies Memorandum is a 
"measure" that can be challenged. Contrary to the complianc e Panel 's finding, the Public Bodies 
Memorandum does not have normative value, does not have general application, and does not 
have prospective application. The United States respectfully requests that the Appellate Body 
reverse the compliance Panel 's find ings. 
4. The United States seeks review of the compliance Panel 's findings that the U.S. Department 
of Commerce 's benchmark determinations in the OCTG , Solar Panels , Pressure Pipe , and Line Pipe  
                                                
1 See Panel Report, para. 2.1.b.  
2 See, e.g., Panel Report, para. 7.120; see also id. , paras. 7.114 -7.120.   
3 See, e.g., Panel Report , para. 7.133; see also id. , paras. 7.124 -7.133.  WT/DS437/24  
 
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  Section 129 proceedings4 are inconsistent with Articles 1.1(b) and 14(d) of the Agreement on 
Subsidies and Countervailing Measures  ("SCM Agreement").5 These findings are in error and are 
based on erroneous findings on issues of law and legal interpretations. In finding that the 
United States "failed to explain ... how government intervention in the market resulted in domestic 
prices for the inputs at issue deviating from a market -determined price" and "failed to provide a 
reasoned and adequate explanation for its rejection of in -country prices in its benchmark 
determinations,"6 the compliance Panel erred in its interpretation and application of Articles 1.1(b) 
and 14(d) of the SCM Agreement.7 The United States respectfully requests that the Appellate Body 
reverse the compliance Pan el's findings.  
5. The United States seeks review of the compliance Panel 's finding that the United States 
failed to appropriately find specificity under Article 2.1(c) of the SCM Agreement in the Pressure 
Pipe, Line Pipe , Lawn Groomers , Kitchen Shelving , OCTG , Wire Strand , Seamless Pipe , Print 
Graphics , Aluminum Extrusions , Steel Cylinders , and Solar Panels  Section 129 proceedings.8 This 
finding is in error and is based on erroneous findings on issues of law and legal interpretations.9 
The compliance Panel err ed in its interpretation and application of Article 2.1(c) in finding that " the 
United States did not comply with the requirement contained in Article 2.1 (c) to 'take account of 
the length of time during which the subsidy programme has been in operation ' because it failed to 
adequately explain its conclusions regarding the existence of the relevant subsidy programme."10 
The United States respectfully requests that the Appellate Body reverse the compliance Panel 's 
findings.  
6. The United States seeks review of the compliance Panel 's finding that the final determination 
in the original Solar Panels  investigation11 and certain12 subsequent administrative reviews and 
sunset reviews were within the scope of this proceeding under Article 21.5 of the DSU .13 These 
findings are in error and are based on erroneous findings on issues of law and legal 
interpretations.14 The compliance Panel erred in its interpretation and application of Article 21.5 of 
the DSU in finding that these proceedings "fall within [the] terms of reference under Article 21.5 of 
the DSU by virtue of their close relationship to the recommendations and rulings of the DSB and 
the relevant Section 129 determinations. "15 The United States respectfully requests that the 
Appellate B ody reverse the compliance Panel 's findings.  
 
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4 See Panel Report, para. 7.152.  
5 See, e.g., Panel Report , paras. 7.199 -200, 7.205 -206, 7.209 -211, 7.218 -220, 7.223 -224, and 8.1(c).  
6 Panel Report, para. 7.223.  
7 The United States considers these errors to be issues of law, based on the compliance Panel’s 
erroneous findings on issues of law and leg al interpretations.   If the Appellate Body were to consider instead 
that the issues set out in this paragraph are issues of fact, then the United States requests the Appellate Body 
find that the compliance Panel failed to make an objective assessment of th e matter before it as called for by 
Article 11 of the DSU by reaching a conclusion based on factual findings that were without a sufficient 
evidentiary basis, without assessing the totality of the evidence, and without adequate explanation.  
8 See Panel Rep ort, paras. 7.275 -276, 7.281, and 7.292 -293. 
9 See, e.g., Panel Report, paras. 7.287 -293 and 8.1(e).  
10 Panel Report, paras. 7.292 -293 and 8.1(e).  
11 See Panel Report, para. 2.1.c; see also id. , paras 7.319 -325 and 8.1(g).  
12 See Panel Report, para. 2.1.d.  
13 See Panel Report, paras. 7.347, 7.357, 7.361, 7.362, 7.367, 7.378, 7.379, 7.384, 7.391, 7.392, 
7.401, 7.404, 7.432, 7.439, 7.443, 7.447, 7.451, 7.455, 7.458, 7.462, 7.466, 7.470, 7.471, 8.1(h)(i), 
8.1(h)(ii), 8.1(h)(iv), and 8.1(h)(vi).  
14 See, e.g.,  Panel Report, paras. 7.335 -347. 
15 Panel Report, para. 7.347.