WORLD TRADE  
ORGANIZATION  WT/DS394/9 
WT/DS395/9 
WT/DS398/8 
18 May 2010 
 
 (10-2762) 
 Original:   English 
 
 
 
CHINA – MEASURES RELATED TO THE EXPORTATION  
OF VARIOUS RAW MATERIALS 
 
Communication from the Panel  
 
  The Panel has asked the Chairman of the Di spute Settlement Body to circulate to the 
Members for their information, the following commun ication dated 7 May 2010 from the Panel to the 
Parties. 
 
_______________ 
 
 
By means of this communication, the Panel hereby responds to China's request for a 
preliminary ruling dated 30 March 2010, regardi ng the compliance of the Complainants' panel 
requests with the requirements of Article 6.2 of the DSU in the above-mentioned disputes. 
The Panel has carefully examined the views expressed by all Parties and Third Parties with 
respect to China's request.  The Panel has decided to  rule today on some parts of China's request and 
to reserve its decision on other parts.   
 In sum, the Panel today rules as follows: 
• The Panel finds that its terms of reference ar e limited to those measures explicitly identified 
by bullet points in each of the three secti ons of the Complainants' panel requests. 
• Of these measures, the Panel finds that the term "related measures" as referred to in the last 
bullet point in each of the listed measures, is  too broad and undefined a term and therefore 
falls outside the Panel's terms of reference. 
• The Panel decides that its terms of reference are not
 limited to those products falling under 
the tariff lines described in footnotes one to nine  of the panel requests.  The Panel concludes 
that these tariff lines are only indicative of the broad scope of the challenge.   
• The Panel rules that the panel requests include  the two corrected tariff lines regarding zinc. 
• The Panel finds that the Complainants' clai ms under paragraph 342 of the Report of the 
Working Party on the Accession of China fall outside its terms of reference. 
• The Panel will not consider the preliminar y ruling submitted by the Complainants from a 
separate, ongoing panel proceeding. 
 Until it has examined the Complainants' first written submissions and in order to preserve 
fully China's ability to defend itself, the Panel decides to reserve its decision on: WT/DS394/9 
WT/DS395/9 WT/DS398/8 
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  • Whether the Complainants' panel requests suffici ently identify the measures at issue and the 
products possibly affected by such measures.  
• Whether the Complainants' panel requests provide  for a summary of the legal basis of the 
complaint sufficient to present the problem clearly. 
 The Panel's detailed analysis of the issues unde r consideration and rulings with respect to 
these issues is hereby annexed.  
For purposes of transparency and due process, and having consulted the Parties, the Panel 
intends to send a copy of this communication to a ll Third Parties in the proceedings and will also 
request that this communication be circulated to all WTO Members. 
 
 
  WT/DS394/9 
 WT/DS395/9 
 WT/DS398/8 
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  ANALYSIS AND RULINGS BY THE PANEL 
  
1. On 30 March 2010, China filed a request befo re this Panel for a preliminary ruling.
1  China 
asserted that specific sections of the Complainants' panel requests2 for the establishment of this Panel 
(panel requests) are inconsistent with Article 6. 2 of the Understanding on the Rules and Procedures 
Governing the Settlement of Disputes (DSU).3  The Parties presented preliminary written 
submissions.  China commented on the Complainants ' Joint Response to Chin a's preliminary ruling 
request whereas the Complainants di d not comment on China's comments.4  On 29 April 2010, the 
Panel held a hearing with the Parties and a separat e session with the Third Parties on China's request.  
On the same date, the Panel sent written questions to the Parties on China's request.  The Parties 
responded to the Panel's questions on 3 May 20 10 and submitted comments on 5 May 2010 on each 
other's responses. 
2. Essentially, China argues that the Complainan ts' panel requests do not comply with the 
requirements of Article 6.2 of the DSU because th ey do not identify clearly and specifically enough 
which measures are challenged and for which specifi c products.  China also argues that the panel 
requests do not provide a brief summary of the legal basis sufficient to present the problem clearly, as 
the measures identified in Section III of the panel requests are not plainly connected to the list of 
provisions that the Complainants consider to be infringed. 
3. The Panel recalls that the DSU  does not provide for preliminary rulings requests by parties 
although their occurrence has increased recently, nota bly in challenging the jurisdiction of panels 
traditionally based on the Complaining party's panel request. 
4. Article 6.2 of the DSU requires, inter alia , that a panel request identifies the "specific 
measures at issue" and provides "a brief summary of  the legal basis (...) sufficient to present the 
problem clearly".  The need for precision in th e panel requests flows from the two essential purposes 
of the terms of reference, namely, to define the " scope of the dispute" and to serve the "due process" 
objective of notifying the parties and third par ties of the nature of the complainants' case.5  
Compliance with the requirements of Article 6.2 mu st be determined on the merits of each case, 
having considered the panel request as a whole and the parties' first written submission if necessary, 
and in the light of attendant circumstances.6 
                                                      
1 China's request for a preliminary ruling pursuant to Article 6.2 of the DSU, 30 March 2010 (China's 
request). 
2 Request for the Establishment of a Panel by the United States (WT/DS394/7); Request for the 
Establishment of a Panel by the European Communities (WT/DS395/7) and Request for the Establishment of a 
Panel by Mexico (WT/DS398/6). 
3 For instance, see China's request, paras. 3 an d 30, as well as the Annex of China's request. 
4 See China's request; Response of the United States, European Union,  and Mexico to China's request 
(Joint response on 21 April 2010) and China's Comments on the Joint Response (China's comments) (23 April 2010).  The Complainants sent emails on 25 April informing the Panel that they chose not to comment in 
writing on China's comments. This was an optional procedure in the Panel’s timetable for the Preliminary ruling 
proceedings. 
5 Appellate Body Report on EC – Chicken Cuts , para 155 referring to Appellate Body Report on US – 
Carbon Steel, para. 126 (quoting Appellate Body Report on Brazil – Desiccated Coconut , DSR 1997:I, 167, at 
186 (emphasis omitted); and referring to Appellate Body Report on EC – Bananas III , para. 142). 
6 Appellate Body Report on Korea – Dairy , paras. 124-127.  See also, Appellate Body Report on US – 
Carbon Steel, para. 127 WT/DS394/9 
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  5. The Panel has given due consideration to the Par ties' requests and arguments.  It has carefully 
examined the Complainants' panel requests in light of both the letter and the spirit of Article 6.2 of the DSU
7, as they define its jurisdiction and terms of refe rence.  The Panel has also taken into account the 
need to ensure China's ability to defend itself8 and its right to be well informed of the Complainants' 
case, as well as the right of the Complainants to  have a prompt resolution of the disputes9 in 
accordance with Article 3.3 of the DSU, while keepi ng in mind that "[t]he procedural rules of WTO 
dispute settlement are designed to promote, not th e development of litigation techniques, but simply 
the fair, prompt and effective resolution of trade disputes."10 
6. Taking into account all these elements, the Panel issues its preliminary ruling on the 
following aspects. 
THE MEASURES CHALLENGED  
7. China claims that in their panel requests the Complainants failed to sufficiently identify the 
measures they challenge.11  China's main focus is on the allege d lack of defined products covered by 
each challenged measure.  Before addressing this argument from China, the Panel will discuss two 
sets of terms used by the Complainants in thei r panel requests of concern to the Panel itself:12 the use 
of "among others" preceding the lists of challenged measures and the reference to "any amendments 
or extensions; related measures; replacement measures; renewal measures; and implementing 
measures" to any of the listed measures, as identifie d in the last bullet point of each of the listed 
measures in each of the three sections of the Complainants' panel requests.  
8. The Panel recalls that within the meaning of Article 6.2 of the DSU, a panel request must 
specify the measures challenged.  The Panel is aw are that the obligation to identify the specific 
measure at issue does not oblige the complainant to set forth the "precise content" of the measure in 
its panel request.  Instead, the Appellate Body f ound that "although a measure cannot be identified 
without some indication of its contents, the iden tification of a measure within the meaning of 
Article 6.2 needs be framed only with sufficient pa rticularity so as to indicate the nature of the 
measure and the gist of what is at issue."13  A measure may thus be identified by its substance or 
nature14, so long as what is referred for adjudicatio n by a panel may be discerned from the panel 
request.15 
9. As the goal of such requirements is, inter alia , to ensure that the defendant is well aware of 
the scope of the challenge it faces in a dispute, the Panel believes that the defendant in any panel 
procedure must know clearly which of its measure s are challenged.  So "as a general rule, the 
                                                      
7 Appellate Body on EC – Bananas III , para. 142. 
8 Appellate Body Report on US – Carbon Steel, para. 127.  See also, Appellate Body Report on Korea 
– Dairy , para. 127. 
9 Regardless of the fact that ther e are three complaints (DS394, DS39 5 and DS398) which implies three 
different disputes, the Panel will refe r in its subsequent communications to "dispute" when referring to the 
process of this current Panel. 
10 Appellate Body Report on US – FSC , para. 166. 
11 For instance, see China's request , paras. 13-19 and 59-66; and China's comments, paras. 10-32. 
12 The Panel has the right and obligation to address issues even if the parties to the dispute remain silent 
on those issues.  Appellate Body Report on Mexico – Corn Syrup (Article 21.5 – US) , para. 35. 
13 Appellate Body Report on US – Continued Zeroing , para. 169. 
14 Panel Report on Argentina – Footwear (EC) , para. 8.40.  See also,  Panel Report on EC – Approval 
and Marketing of Biotech Products,  para. 7.47. 
15 Appellate Body Report on US – Continued Zeroing , para. 168.  WT/DS394/9 
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  measures included in a panel terms' of reference must be measures that are in existence at the time of 
the establishment of the panel".
16  
1. "among others" 
10. The panel requests contain an introductory para graph and then three sections.  Each section 
refers to a generic type of measure – export quotas,  export duties and additional restraints imposed on 
exportation.  Each section is composed first of na rrative paragraphs describi ng what the complainants' 
consider generally to be the "problem",  second, of  a list of challenged legal instruments and finally, 
of a list of the WTO obligations alleged to have been violated by the listed measures. 
11. The Panel is concerned with certain aspects of the three lists of challenged measures.  After 
the narrative paragraph(s) in each of the three secti ons, the Complainants identify the lists of measures 
with the following phrase: "...these Chinese measures are reflected in, among others " (emphasis 
added).  This phrase indicates that the measures listed by bullet points in the panel requests are not the 
only measures allegedly inconsiste nt with WTO obligations and leaves open the possibility that the 
Complainants might include additional me asures in subsequent submissions.   
12. The Panel is of the view that the Complain ants cannot be allowed to include additional 
measures other than those listed and identified by bul let points in the panel requests.  Such an "open 
ended" list would not contribute to the "security and predictability" of the WTO dispute settlement 
system as required by Article 3.2 of the DSU. 
13. For this reason, the Panel considers that only the listed measures explicitly identified by bullet 
points in the three sections of the Complainants' panel requests fall within the Panel's terms of 
reference and will thus be examined by the Panel. 
2. "as well as any amendments or extensio ns; related measures; replacement measures; 
 renewal measures; and implementing measures" 
14. In response to the Panel's questions during the preliminary ruling hearing, the Complainants 
suggested that they do not intend to introduce ne w measures and that the phrase "among others" is 
intended to cover the same situations as those envisag ed by the last bullet point of each of those three 
lists which reads "as well as any amendments or ex tensions; related measures;  replacement measures; 
renewal measures; and implementing measures". 
15. The Complainants add that the purpose of the "among others" phrase, as well as the last bullet 
in the list of legal instruments referring to "a ny amendments or extens ions; related measures; 
replacement measures; renewal measures; and implementing measures" is to make clear that the 
Chinese legal instruments that the Co mplainants have been able to identify to date may not be the 
only ones through which China maintains the measures at issue, and to specifically include such 
instruments within the Panel's terms of reference.17   
16. The Panel shares the concern that a respondent s hould not be allowed to unilaterally modify 
one or more of the initially challenged measures with a view to avoiding a Panel's jurisdiction.  At the 
same time, measures to be included in the Panel's te rms of reference should generally exist at the time 
of the filing of the panel request.  There are none theless situations where new governmental actions 
were considered to be so closely linked to the cha llenged measure that they were also considered to 
                                                      
16 Appellate Body Report on EC – Chicken Cuts , paras. 156. 
17 Complainants' answer to the Panel's questions after the preliminary ruling hearing, para. 19. WT/DS394/9 
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  have been captured by the Panel's initial terms of reference.  Amendments to challenged legislation 
that do not change the "essence" of the initial m easure bring the amended measure under the initial 
terms of reference.
18  The same was said when the initial m easure expired and was replaced by a new 
one or when the effect of the new (implemen ting) measure is the same as the expired one.19  However, 
in EC – Chicken Cuts  two related measures were adopted  during the panel process but were 
considered to be excluded from the terms of reference because, alt hough related to the same matter 
and having the same effect, they were not amendments  to the original measure s with the same essence 
as the original measures. 
17. In the Panel's view, undefined "related measur es" is too broad a term and does not allow 
China to know clearly what specifi c measures are being challenged in the current disputes.  For this 
reason, the Panel believes that the Complainants cannot add to their list of challenged measures a 
broad scope of "related measures".20   
18. Therefore, the Panel will not read the last bulle t point of each of the three lists of specific 
measures as referring to any "related measures". 
19. With regard to the reference to "implemen ting measures", it is not clear whether the 
Complainants refer to domestic implementing measur es or whether they seek to include the measures 
that China may have to implement if the Complainan ts were to succeed in this current challenge.  The 
Panel reads these terms to refer to actions ta ken by China to implement existing challenged 
measures.21  
20. For this reason, the Panel considers that only the listed measures explicitly identified by bullet 
points in the three sections of the Complainants' panel requests - as well as any future amendment(s) 
or extensions, replacement measures, renewal measures and implementing measures, as described above by the Panel - fall within the Panel's terms of reference and will thus be examined by the Panel. 
3. Whether the identification of the measures requires the specification of the products 
 concerned 
21. China claims that in their panel requests the Complainants failed to sufficiently identify the 
measures they challenge because the Complainants do not adequately specify which specific products 
are covered by each challenged measure.
 22  In order to properly identif y the challenged measures, and 
since many of the listed measures are laws of genera l application, China argu es that the Complainants 
should have identified the specific products for each of  the measures.  In response, the Complainants 
assert that they have clearly listed the basic products concerned by the dispute.23  The Complainants 
argue that the reference to "various forms " of the nine materials mentioned in the introductory 
paragraph of the panel requests, as well as th e descriptive list of tariff lines included through 
footnotes one to nine, seek to provide exampl es of the broad scope of their challenge.24  In turn, China 
                                                      
18 Appellate Body Report on Chile – Price Band System , para. 139. 
19 Appellate Body Report on US – Upland Cotton  (21.5), para. 270 
20 The Appellate Body noted in a case that the phrase "implementing measures and other related 
measures" does not identify th e specific measures at issue as required in Article 6.2 of the DSU.  Appellate 
Body Report on EC – Selected Customs Matters , para. 152, footnote 369. 
21 The Panel will not read this phrase as involving a measure subject to proceed ings under Article 21.5 
of the DSU. 
22 For instance, see China's request , paras. 13-19 and 59-66; and China's comments, paras. 10-32. 
23 Joint Response, paras. 13-22. 
24 Ibid.  WT/DS394/9 
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  seeks to have the scope of the disputes limited to th e explicit tariff lines listed in footnotes one to nine 
regarding each product mentioned in the intr oductory paragraph of those panel requests.
25  
22. The Panel notes that the Complainants identifie d in their panel requests nine "materials"26: 
bauxite, coke, fluorspar, magnesium, manganese, silicon carbide, silicon metal, yellow phosphorus 
and zinc.27  The Complainants added a footnote to each of these materials.  In each footnote, the 
Complainants stated that each material "incl udes but is not limited to" a series of tariff lines.28  The 
Panel understands that the introduc tory paragraph of the Complain ants' panel requests serves to 
describe generally the scope of the Complainants' ch allenge.  In that introductory paragraph, the 
Complainants state, in a general manner their concer ns over export-related rest rictions alleged to be 
imposed by China through measures concerned with those nine materials.  Then, in each of the 
following three sections in their panel requests, the Complainants submit the legal description or 
framework of their challenge against the specific measures imposing generally "export quotas", 
"export duties" and "additional restraints imposed on  exportation", alleged to be maintained by China 
on (some of) those nine products.  Accordingly, the Panel understands that each of the listed measures 
identified in each of the three sections of the panel requests will cover one, some or all of the nine 
materials mentioned in the introducto ry paragraph of the panel requests. 
23. The Panel considers that the Complainants could also have identified for the nine materials at 
issue, each and every potentially rele vant tariff line, or they could have  stated that their claims target 
"all" tariff lines between X,Y or Z HS lines concerned by each of the nine products identified.  But the 
Complainants chose to only announce the broad scope of their challenge and seem to have wanted to 
provide more specificity only in the following thr ee sections of their panel requests.  Indeed, the 
following three sections of each panel request then list the specific measures covering, one or more of 
the nine materials listed in the introductory paragraph.   
24. In the Panel's view, the introductory paragraph offers a general presentation of the dispute and 
the more specific elements of the challenge are incl uded in Sections I, II and III of the panel requests.  
If the first general listing of products mentioned in  the introductory paragraph does not fully inform 
China of the exact scope of the products concer ned by the dispute, the measures listed in the 
following sections - the Chinese legal instruments - are alleged to provide more specificity.  In other 
words, each of these Chinese legal instruments has a specific product application that covers one, 
some or all of the products listed in the introductory paragraph of the panel request.29 
25. The Panel, therefore, rejects China's claim that the terms of reference of this Panel are limited 
to the measures represented by the tariff lines listed in the footnotes to the products mentioned in the 
introductory paragraph of the Complainants' panel requests.   
26. The Panel agrees with China that the claims n eed to be as clear as possible and as early as 
possible in the panel process so as to allow China to  defend itself fully.  The Panel is also aware that 
pursuant to Article 19 of the DSU, it can u ltimately only make recommendations on specific 
provisions of specific measures and therefore may need  to consider and examine the specific situation 
of specific challenged instruments as they apply to specific products or group of products.  
                                                      
25 China's request, paras. 13-19.  See also, China's comments, para. 31. 
26 By "materials", the Panel also understands "products". 
27 As noted in para. 29 of China's request, the Co mplainant's panel requests are nearly identical.  
Therefore, any reference to the panel requests refer to any of the documents referred to in footnote 2. 
28 See footnotes one to nine of the panel requests. 
29 Appellate Body Report on EC – Chicken Cuts , para. 165-66. WT/DS394/9 
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  27. Even if, as noted above, the Complainants' panel requests could have been more detailed, in 
that the Complainants could have identified the measures and the materials they referred to
30, the 
Panel is of the view that when it is requested to ass ess the clarity of a panel request, with reference to 
the requirements of Article 6.2 of the DSU, it has to consider the panel request as a whole31 and as 
part of an integrated and evolving panel process.  The Panel believes that there is a possibility that the 
parameters of some challenged measures will be clarified by the Complainants' first written submissions.  Therefore, in the Panel's view, the ove rall sufficiency of a panel request and whether the 
right of the respondent to defend itself adequate ly was or was not prejudiced, may be better 
determined in light of the Pa rties' first written submissions.
32 
28. In that context, the Panel notes in particular the undertaking by a representative of the 
Complainants that this preliminary procedure is somewhat premature and that all possible concerns 
over the undefined scope of their challenge will be  answered once China and the Panel receive the 
Complainants' first written submissions. 
29. In light of the above, the Panel decides to reserve  its decision on this part of China's request 
and to rule on it at a later stage once it has examined the Parties' first written submissions and is able to take full account of China's ability to defend itsel f.  In that context, the Panel notes that it has 
provided China with a long period of time to res pond to the Complainants' first written submissions.  
The Panel is not saying that all flaws in a pane l request can be cured by a first written submission
33 
but rather that after the parties' first written s ubmission, the Panel will be in a better position to 
determine whether China has suffered any prejud ice by the Complainants' panel requests while 
ensuring that this panel pr ocess is not unduly delayed. 
4. The specific problem of the typographica l error of the HS line regarding the zinc 
30. China requested that the Panel exclude from its terms of reference any claims concerning two 
tariff lines erroneously identified by the Complainants in the context of zinc.34  As soon as they 
became aware of this error, the Complainants admi tted that these two tariff lines were typographical 
errors and referred (the Pa nel and the complainants) to the correct tariff lines.35  In response to a Panel 
question and at the request of the Panel, China accepted the correction of these two typographical 
errors and it made clear that China's understanding of the panel requests includes the "corrected tariff 
lines".36 
31. In light of China's response, the Panel will al so read the panel requests as including the two 
corrected tariff lines.   
                                                      
30 Appellate Body Report on EC – Chicken Cuts , para. 165-66.  However, in paragraph 167 of this 
same ruling, the Appellate Body recognized that under some circumstances it may be necessary to identify the 
products at issue. 
31 Appellate Body Report on Korea – Dairy , paras. 124-127.  See also: Appellate Body Report on US – 
Carbon Steel, para. 127. 
32 Appellate Body Report on US – Carbon Steel , para. 127. 
33 Appellate Body Report on EC – Bananas III , para. 143. 
34 China's request, para. 66 and China's comments, para. 32. 
35 Footnote 15 and para. 18 of the Joint Response.  During the hearing for the preliminary ruling 
request, a representative of  the Complainants admitted that they b ecame aware of it in the course of the 
proceedings. 
36 China's answer to the Panel's questions afte r the preliminary ruling hearing, paras. 4-5.  WT/DS394/9 
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  T
HE REQUIREMENT TO PROVIDE A BRIEF SUMM ARY OF THE LEGAL BASIS OF THE COMPLAINT 
SUFFICIENT TO PRESENT THE PRO BLEM CLEARLY WITH REGARD TO SECTION III OF THE PANEL 
REQUESTS  
32. China submits that the Section III of the Comp lainants' panel requests do not provide a brief 
summary of the legal basis of the complaint suffici ent to present the problem clearly, contrary to the 
requirements of Article 6.2 of the DSU.  For China,  this is because in Section III there is no clear 
connection between the listed measures, the list of WTO provisions claimed to be violated and the 
narrative paragraphs that describe generally how "som e" of the listed measures are inconsistent with 
"some" WTO disciplines.37  China claims that this lack of cl arity is exacerbated by the Complainants' 
subsequent contradictory argument that "all" 37 listed measures are inconsistent with "all" 13 listed 
WTO obligations.  According to China, such a "double listing" approach is contrary to the 
requirement of Article 6.2 of the DSU to provide a brief summary of the legal basis of the complaint 
sufficient to present the problem clearly.38 
33. In the Panel's view, whether the mere listing of articles of a particular WTO agreement is 
sufficient to comply with the requirement to provi de a summary of the legal basis of the complaint39, 
is to be determined on a case-by-case basis.40  In some instances, especially if a provision contains 
multiple obligations within it, a mere listing would not be sufficient to satisfy the obligation in 
Article 6.2.41    
34. In that context, the Panel notes in particular that: 
"a 'brief summary of the legal basis of the complaint' required by Article 6.2 of the 
DSU 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.  This brief 
summary must be sufficient to present the problem clearly.  Taken together [with the identification of the measures at issue], these different aspects of a panel request 
serve not only to define the scope of a dispute, but also to meet the due process 
requirements."
42 
35. The Panel recalls that Section III of the pa nel requests, entitled "Additional Restraints 
Imposed on Exportation", comprises three sub-parts: fi rst, it contains narrative paragraphs, then a list 
of measures and, finally, the WTO provisions that  the Complainants consider are infringed by the 
listed measures.  The narrative paragraphs descr ibe generally the types of measures that the 
Complainants are challenging and points to some of their WTO inconsistency.  In the Panel's view, 
these narrative paragraphs aim at explaining su ccinctly how and why some of the challenged 
measures at issue are inconsistent with some of the WTO principles. Then, the listed legislative instruments identified by bullet points appear to be the more specific measures alluded to in the 
narrative paragraphs; the final part provides a list of  all WTO obligations that would be violated by 
one or all of the listed measure. 
                                                     
 
37 For instance, see China' s request, paras. 48-58. 
38 For instance, see China's comments, paras. 48-63. 
39 Appellate Body Report on Korea – Diary, para. 124.   
40 Appellate Body Report on Korea – Diary, para. 127. 
41 Appellate Body Report on Korea – Dairy , para. 124. 
42 Appellate Body Report on  EC – Selected Customs Matters , para. 130. WT/DS394/9 
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  36. The Panel agrees with China that the Compla inants' argument that all the listed measures 
violate all the listed WTO obligations seems to cont radict the substance of the narrative paragraphs 
that some (groups of) measures are inconsistent  with some of the listed WTO obligations.   
37. However, as noted before, the Panel is aware th at WTO panel proceedings are an integrated 
and evolving process and the sufficiency of a panel re quest is to be determined by taking into account 
the Parties’ first written submissions in order to  assess fully whether the ability of the respondent to 
defend itself was prejudiced.
43 
38. In that context, the Panel notes, in particul ar, the undertaking from a representative of the 
Complainants that this preliminary procedure is somewhat premature and that all possible concerns 
over the undefined scope of their challenge will be  answered once China and the Panel receive the 
Complainants' first written submissions.   
39. In light of the above, the Panel decides to reserve  its decision on this part of China's request 
and to rule on it at a later stage, once it has examined  the Parties' first written submissions and is more 
able to take fully into account Chin a's ability to defend itself.  In that  context, the Panel notes that it 
has provided China with an extensive period of time to respond to the Complainants' first written 
submissions.  The Panel has already noted that it is not saying that all flaws in a panel request can be 
cured by a first written submission44 but rather that after the parties' first written submission, the Panel 
will be in a better position to determine whet her China has suffered any prejudiced by the 
Complainants' panel requests while ensuring th at this panel process is not unduly delayed.  
THE COMPLAINANTS ' WITHDRAWAL OF THEIR CLAIMS UNDER PARAGRAPH 342 OF THE REPORT 
OF THE WORKING PARTY ON THE ACCESSION OF CHINA  
40. The Panel notes that the Complainants have in formed China and the Panel that they do not 
intend to pursue any claims regarding China's ob ligations under paragraph 342 of the Working Party 
Report on the Accession of China and referred to in S ection II of their panel request via Article 1.2 of 
China's accession Protocol.45   
41. Therefore, the Panel rules that these specific clai ms fall outside the Panel's terms of reference.  
THE REFERENCE TO A PRELIMINARY RULING FROM ANOTHER PENDING CASE  
42. The Complainants submitted in support of thei r allegations, a copy of a preliminary ruling 
issued by another panel in an ongoing case.  Korea, as the respondent in this other dispute and a Third 
Party in the present one, requests the Panel to re frain from taking into account in any way this 
preliminary ruling.  China shares Korea's concerns.46 
43. The Panel notes that this preliminary ruling w as not circulated to WTO Members and is not 
yet an official WTO document within the meaning of the Decision on Derestriction.47  The Panel 
notes also that WTO dispute proceedings are genera lly understood to be c onfidential unless otherwise 
determined by panels with the agreement of the parties.   
                                                      
43 Appellate Body Report on US – Carbon Steel , para. 127. 
44 Appellate Body Report on EC – Bananas III , para. 143. 
45 Joint Response, para. 35. 
46 China's answer to the Panel's questions af ter the preliminary ruling hearing, para. 13. 
47 Procedures for the Circulation and Derestriction of WTO Documents, WT/L/452, adopted on 
14 May 2002.  WT/DS394/9 
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  44. In light of this, the Panel will not consider th is  preliminary ruling issued in another ongoing 
panel process.  The Panel also requests the Parties to  omit any further reference to this preliminary 
ruling or any other document illustratin g panel deliberations from pending cases. 
C
ONCLUSION  
45. The Panel has decided to issue its preliminary ruling in two stages.48  In issuing the ruling in 
this manner, the Panel has kept in mind that acco rding to Article 3.10 of the DSU, the Parties are 
required to engage in dispute settlement procedures "in good faith in an effort to resolve the dispute".   
46. The Panel has ruled on issues which are relevant to its own jurisdiction and that could not be 
clarified by the parties' first written submission or at any other stage during this panel process.  The 
Panel reserves its decisions on China's request  that the Complainants' panel requests do not 
sufficiently identify the product coverage of each of the listed measure and do not comply with the 
requirements of Article 6.2 of the DSU.  The Panel expects that the Complainants will clarify in their 
first written submissions which of the listed meas ures (or group thereof) for which specific products 
(or group thereof) are inconsistent with which speci fic WTO obligations among those listed in the last 
part of Section III of their panel requests.  In ruling this way, the Panel wants to ensure that China is 
able to defend itself appropriately and that  this panel process is  not unduly delayed. 
47. The Panel reserves its decision to develop its reasoning regarding each aspect of its 
preliminary ruling in a subsequent ruling or in its final report.   
 
 
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48 We also note that there is no established jurisp rudence nor is there any established practice as to 
whether a panel needs to rule on the scope of its terms of reference on a preliminar y basis, i.e. before the 
issuance of its Report to the parties. See also Appellate Body Report, US – Carbon Steel , para. 123.