WORLD TRADE  
ORGANIZATION   
WT/DS394/11 
WT/DS395/11 
WT/DS398/10 2 September 2011 
 
(11-4301) 
 Original:   English 
   
CHINA – MEASURES RELATED TO THE EXPORTATION 
OF VARIOUS RAW MATERIALS 
 
Notification of an Appeal by China under Article 16.4 and Article 17 
of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), and under Rule 20(1) 
of the Working Procedures for Appellate Review 
 
  The following notification, dated 31 Augus t 2011, from the Delegation of the People's 
Republic of China, is being circulated to Members. 
 
_______________ 
 
 1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review 
(WT/AB/WP/6, 16 August 2010), the People's Republic of China ("China") hereby notifies the 
Dispute Settlement Body ("DSB") of its decision to appeal certain issues of law and legal 
interpretations in the Panel Reports in China – Measures Related to the Exportation of Various Raw 
Materials  (WT/DS394, WT/DS395, WT/DS398) ("Panel Report" ).  As set out in this notice of appeal, 
and pursuant to Article 17.13 of the DSU, China requ ests that the Appellate Body reverse or modify 
various legal findings and conclusi ons of the Panel, as a result of the errors identified below. 
2. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review , this notice of 
appeal includes an indicative list of the paragraphs  of the Panel Report containing the alleged errors, 
without prejudice to China's ability to refer to othe r paragraphs of the Panel Report in the context of 
its appeal.   
I. A
PPEAL OF THE PANEL 'S FINDING THAT SECTION III OF THE COMPLAINANTS ' PANEL 
REQUESTS "PRESENTS THE PROBLEM CLEARLY " BY PROVIDING SUFFICIENT 
CONNECTIONS BETWEEN THE 37 LISTED MEASURES AND THE 13 LISTED TREATY 
PROVISIONS  
3. The Panel erred in its interpretation and applica tion of Article 6.2 of the DSU, in finding, in 
paragraph 77 of its Second Prelim inary Ruling of 1 October 2010 and paragraph 7.3(b) of the Panel 
Report, that Section III of the Complainants' Panel Requests1 complies with the requirement to 
"provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly". 
                                                      
1China – Measures Related to the Exportation of Various Raw Materials  – Request for the 
Establishment of a Panel by the European Communities, WT/DS395/7 (9 November 2009); China – Measures 
Related to the Exportation of Various Raw Materials – Request for the Establishment of a Panel by  Mexico, 
WT/DS398/6 (9 November 2009); China – Measures Related to the Exportation of Various Raw Materials – 
Request for the Establishment of a Panel by the United States, WT/DS394/7 (9 November 2009). WT/DS394/11 
WT/DS395/11 WT/DS398/10 
Page 2 
  
  4. China requests that the Appellate Body reverse this finding, and find that Section III of the 
Panel Requests does not comply with Article 6.2 of the DSU, with the exception of the Complainants' 
claims under Article X:1 of the GATT 1994 regardi ng non-publication of measures concerning zinc. 
5. As a consequence of this reversal, China also  requests that the Appellate Body reverse the 
Panel findings regarding claims pur portedly made by the Complainants on the basis of Section III of 
the Panel Requests, including the findings in paragr aphs 7.669; 7.670; 7.678; 7.756; 7.807; 7.958; 
7.1082; 7.1102; 7.1103; 8.4(a)-(b); 8.5(b); 8.6 (a)-(b ); 8.11(a), (c), (e) and (f); 8.12(b); 8.13(a)-(b); 
8.18(a)-(b); 8.19(b) and 8.20(a)-(b ) of the Panel Report.    
II. A
PPEAL OF THE PANEL 'S DECISION TO MAKE RECOMMENDATIONS WITH RESPECT TO 
THE "SERIES OF MEASURES " THAT HAVE AN ONGOING EFFECT THROUGH ANNUAL 
REPLACEMENT MEASURES  
6. China appeals the Panel's recommendations in pa ragraphs 8.8; 8.15 and 8.22 of the Panel 
Report that China must bring its export duty and quota measures into conformity with its WTO obligations, to the extent that the Panel's reco mmendations apply to annual replacement measures 
regarding export quotas and export duties on products at issue in these disputes.   
7. In making recommendations extending to measure s excluded from the dispute, the Panel 
acted inconsistently with Article 7.1 of the DSU; failed to make an objective assessment of the matter 
under Article 11 of the DSU;  and, made recommenda tions on measures that are not part of the matter, 
inconsistently with Article 19.1 of the DSU.   
8. China requests that the Appellate Body reverse the Panel's recommendations in 
paragraphs 8.8; 8.15 and 8.22 of the Panel Report to the extent that they apply to annual replacement 
measures. 
III. A
PPEAL OF THE PANEL 'S FINDING THAT CHINA DOES NOT HAVE THE RIGHT TO INVOKE 
ARTICLE XX OF THE GATT  1994  IN DEFENSE OF A CLAIM UNDER PARAGRAPH 11.3  OF 
CHINA 'S ACCESSION PROTOCOL  
9. China appeals the Panel's erroneous interpretati on and application of Pa ragraphs 1.2 and 11.3 
of China's Accession Protocol2 and Paragraphs 170 and 342 of China's Working Party Report3 as not 
according China the right to invoke Article XX of the GATT 1994 in defense of a claim under 
Paragraph 11.3 of China's Accession Protocol  and Paragraph 170 of China's Working Party Report . 
10. As a result of these errors, China requests th at the Appellate Body reverse the Panel's 
findings, in paragraphs 7.158; 7.1 59; 8.2 (b)-(c); 8.9 (b)-(c) and 8.16 (b)-(c) of the Panel Report, that 
China may not seek to justify export duti es pursuant to Article XX of the GATT 1994. 
                                                      
2Protocol on the Accession of the People’s Republic of China , WT/L/432 (23 November 2001) 
("Accession Protocol "). 
3Report of the Working Party on the Accession of China , WT/MIN(01)/3  (10 November 2001) 
("Working Party Report ").   WT/DS394/11 
 WT/DS395/11 
 WT/DS398/10 
 Page 3 
  
  IV. A
PPEAL OF THE PANEL 'S INTERPRETATION AND APPLICATION OF THE TERM 
"TEMPORARILY " AND THE PANEL 'S INTERPRETATION OF THE TERM "CRITICAL 
SHORTAGES " IN ARTICLE XI:2( A) OF THE GATT  1994,  AND THE PANEL 'S ASSESSMENT 
OF THE MATTER , UNDER ARTICLE 11 OF THE DSU 
11. China appeals the Panel's erroneous interpreta tion and application of the term "temporarily" 
and the Panel's erroneous interpretation of the term  "critical shortages", in Article XI:2(a) of the 
GATT 1994.  The Panel also failed to make an obj ective assessment of the matter, as required under 
Article 11 of the DSU.  Specifically, the Panel fa iled to assess properly evidence that China's export 
restriction is annually reviewed a nd renewed, and employed interna lly inconsistent and incoherent 
reasoning in its assessment of the possibility to prevent or relieve critical shortages of exhaustible 
natural resources through the temporary application of export restrictions. 
12. As a result of these errors, China requests th at the Appellate Body reverse the Panel's 
interpretation and application of the term "tempor arily" and the Panel's interpretation of the term 
"critical shortages", as set out in paragraphs 7.2 57-7.258; 7.297-7.302; 7.305; 7.306; 7.346; 7.349; 
7.351 ; 7.354 and 7.355 of the Panel Report. 
V. APPEAL OF THE PANEL 'S INTERPRETATION OF THE PHRASE "MADE EFFECTIVE IN 
CONJUNCTION WITH" IN ARTICLE XX( G) OF THE GATT  1994   
13. China appeals the Panel's erroneous interpre tation of the phrase "… made effective in 
conjunction with …", in Article XX(g) of th e GATT 1994.  Specifically, the Panel erred in 
interpreting this phrase to require a showing that th e "purpose" of a challenged measure is to make 
effective restrictions on domestic production or consumption.  As a result of this error, China requests 
that the Appellate Body reverse the Panel's fi nding in paragraph 7.397 of the Panel Report. 
VI. APPEAL OF THE PANEL 'S INTERPRETATION  AND APPLICATION OF PARAGRAPHS 1.2 
AND 5.1 OF CHINA 'S ACCESSION PROTOCOL AND PARAGRAPHS 83 AND 84 OF THE 
WORKING PARTY REPORT IN CONNECTION WITH THE PRIOR EXPORT PERFORMANCE 
AND MINIMUM CAPITAL REQUIREMENTS  
14. China appeals the Panel's erroneous interpretati on and application of Pa ragraphs 1.2 and 5.1 
of China's Accession Protocol , read in combination with Para graphs 83(a), 83(b), 83(d), 84(a), 
and 84(b) of China's Working Party Report , to prohibit any "examination and approval system" for 
WTO-consistent export quotas opera ted subsequent to 11 December 2004, including elimination of 
"export performance" and "prior experience re quirements" and minimum registered capital 
requirements.  As a result of these errors, China re quests that the Appellate Body reverse the Panel's 
findings in paragraphs 7.655; 7.6 65; 7.669; 7.670; 7.678; 8.4(a)-(b); 8.11(a); 8.11(c) and 8.18(a)-(b) 
of the Panel Report.   
VII. APPEAL OF THE PANEL 'S INTERPRETATION AND APPLICATION OF ARTICLE XI:1  OF THE 
GATT  1994,  AND ITS ASSESSMENT OF THE MATTER UNDER ARTICLE 11 OF THE DSU,  IN 
CONNECTION WITH CHINA 'S EXPORT LICENSING REGIME  
15. China appeals various elements of the Panel' s findings under Article XI:1 of the GATT 1994 
in connection with China's export licensing requirement.   
16. First, the Panel erred in interpreting Article XI:1 to prohibit a measure as such , even where, as 
a matter of municipal law, the measure can always  be—and has always been—interpreted and applied 
in a WTO-consistent manner.   WT/DS394/11 
WT/DS395/11 WT/DS398/10 
Page 4 
  
  17. Second, the Panel also erred in applying its err oneous interpretation of Article XI:1 to China's 
export licensing requirement.  Specifically, the Panel erroneously found that Article 11(7) of China's 
Measures for the Administration of License for the Export of Goods  and Articles 5(5) and 8(4) of 
China's Working Rules on Issuing Export Licenses , as such , are inconsistent with Article XI:1, 
because they accord discretion to request undefine d or unspecified documents or materials of 
applicants for export licenses.  
18. Third, the Panel erred in its assessment of the matter, under Article 11 of the DSU.  
Specifically, the Panel had no evidentiary basis on wh ich to find that any documents requested of an 
applicant pursuant to Article 11(7) of China's Measures for the Administration of License for the 
Export of Goods  and Articles 5(5) and 8(4) of China's Working Rules on Issuing Export Licenses  
would be of such a nature as to impose an export restriction.  
19. As a result of these errors, China requests that the Appellate Body reverse the Panel's findings 
and recommendations, at paragraphs 7.921; 7.946; 7. 948; 7.958; 8.5(b); 8.8; 8.12(b); 8.15; 8.19(b) 
and 8.22 of the Panel Report. 
VIII.  A
PPEAL OF THE PANEL 'S INTERPRETATION AND APPLICATION OF ARTICLE X:3( A) OF 
THE GATT  1994,  AND ITS ASSESSMENT OF THE MATTER UNDER ARTICLE 11 OF THE 
DSU,  IN CONNECTION WITH THE "OPERATION CAPACITY " CRITERION FOR EXPORT 
QUOTA ADMINISTRATION  
20. China appeals various elements of the Panel' s findings under Article X:3(a) of the GATT 
1994 in connection with the "operation capacity" cr iterion for export quota administration, under 
Article 19 of China's Measures for the Administratio n of Export Commodities Quotas .  
21. First, the Panel erred in interpreting Article X:3(a) to prohibit a measure as such , even where, 
as a matter of municipal law, the measure can al ways be—and has always been—interpreted and 
applied in such a way as to avoid WTO-inconsistent administration.   
22. Second, the Panel also erred in applying its e rroneous interpretation of Article X:3(a) to 
China's "operation capacity" criterion.  Specifically , the Panel erroneously found that Article 19 of 
China's Measures for the Administratio n of Export Commodities Quotas , as such , is inconsistent with 
Article X:3(a), because the term "operation capacity" is undefined, thus reserving the discretion for China to interpret and apply the term in such  a manner as to constitute WTO-inconsistent 
administration.  
23. Third, the Panel erred in its assessment of the matter, under Article 11 of the DSU.  
Specifically, the Panel had no evidentiary basis on wh ich to find that the term "operation capacity" 
would be interpreted and applied in  a manner that would constitute WT O-inconsistent administration.  
24. As a result of these errors, China requests that the Appellate Body reverse the Panel's findings 
and recommendations, at paragraphs 7.708; 7.742-7.7 46; 7.748-7.752; 7.756; 8.11(e) and 8.15 of the 
Panel Report. 
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