WORLD TRADE  
ORGANIZATION   
WT/DS394/AB/R 
WT/DS395/AB/R 
WT/DS398/AB/R 
30 January 2012 
 
 (12-0544) 
 Original:   English 
 
 
     
 
    
 
 
CHINA – MEASURES RELATED TO THE EXPORTATION 
OF VARIOUS RAW MATERIALS 
 
  
AB-2011-5 
 
    
 
Reports of the Appellate Body 
 
  
 
Note:  
 
The Appellate Body is issuing these Reports in the form of a single document constituting three separate 
Appellate Body Reports:  WT/DS394/AB/R;  WT/DS395/AB/R;  and WT/DS398/AB/R.  The cover page, 
preliminary pages, Sections I through VIII and the Annexes are common to all three Reports.  The page header throughout the document bears three document symbols, WT/DS394/AB/R, WT/DS395/AB/R, and 
WT/DS398/AB/R, with the following exceptions:  Sec tion IX on pages US-145 and US-146, which bears the 
document symbol for and contains the Appellate Body's findings and conclusions in the Appellate Body Report 
WT/DS394/AB/R;  Section IX on pages EU-145 and EU-146, which bears the document symbol for and 
contains the Appellate Body's findings and conclusions in the Appellate Body Report WT/DS395/AB/R;  and Section IX on pages MEX-145 and MEX-146, which bears the document symbol for and contains the 
Appellate Body's findings and conclusions in the Appellate Body Report WT/DS398/AB/R.   WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page i 
  
  I.  Introduction .................................................................................................................. ............... 1  
II.  Arguments of the Participants and the Third Participants .......................................................... 8  
A.  Claims of Error by China – Appellant ........................................................................... 8 
1.  Article 6.2 of the DSU ...................................................................................... 8  
2.  The Panel's Recommendations ....................................................................... 10  
3.  Applicability of Article XX of the GATT 1994 ............................................. 12  
(a)  Paragraph 11.3 of China's Accession Protocol .................................. 13  
(b)  Context from the WTO Agreement  .................................................... 14  
(c)  The Inherent Right to Regulate Trade ............................................... 17  
4.  Article XI:2(a) of  the GATT 1994 .................................................................. 18  
5.  Article XX(g) of the GATT 1994 ................................................................... 21  
6.  Prior Export Performance and Mi nimum Capital Requirements .................... 21  
7.  China's "Operation Capacity" Criterion and Article X:3(a) of the 
GATT 1994 ..................................................................................................... 23  
8.  China's Export Licensing Requirements and Article XI:1 of the 
GATT 1994 ..................................................................................................... 24  
B.  Arguments of the United States and Mexico – Joint Appellees .................................... 27 
1.  Article 6.2 of the DSU .................................................................................... 27  
2.  The Panel's Recommendations ....................................................................... 28  
3.  Applicability of Article XX of the GATT 1994 ............................................. 30  
(a)  Paragraph 11.3 of China's Accession Protocol .................................. 30  
(b)  Context from the WTO Agreement
 .................................................... 31  
(c)  The Inherent Right to Regulate Trade ............................................... 33  
4.  Article XI:2(a) of  the GATT 1994 .................................................................. 35  
5.  Article XX(g) of the GATT 1994 ................................................................... 38  
6.  Prior Export Performance and Mi nimum Capital Requirements .................... 38  
7.  China's Export Licensing Requirements and Article XI:1 of the 
GATT 1994 ..................................................................................................... 39  
C.  Arguments of the Europe an Union – Appellee ............................................................ 41 
1.  Article 6.2 of the DSU .................................................................................... 41  
2.  The Panel's Recommendations ....................................................................... 42  
3.  Applicability of Article XX of the GATT 1994 ............................................. 43  
(a)  Paragraph 11.3 of China's Accession Protocol .................................. 43  
(b)  Context from the WTO Agreement  .................................................... 44  
(c)  The Inherent Right to Regulate Trade ............................................... 45  
4.  Article XI:2(a) of  the GATT 1994 .................................................................. 46  
5.  Article XX(g) of the GATT 1994 ................................................................... 48  
6.  Prior Export Performance and Mi nimum Capital Requirements .................... 49  
7.  China's "Operation Capacity" Criterion and Article X:3(a) of the 
GATT 1994 ..................................................................................................... 50  
8.  China's Export Licensing Requirements and Article XI:1 of the 
GATT 1994 ..................................................................................................... 51  
D.  Claims of Error by the United States – Other Appellant ............................................. 53 
1.  Conditional Appeal regarding th e Panel's Recommendations ........................ 53  
2.  Article VIII:1(a) of the GATT 199 4 and Paragraph 11.3 of China's 
Accession Protocol ......................................................................................... 55  WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page ii 
  
  E.  Claims of Error by Mexico – Other Appellant ............................................................. 57 
1.  Conditional Appeal regarding th e Panel's Recommendations ........................ 57  
2.  Involvement of the CCCMC in the Allocation of Export Quotas and 
Article X:3(a) of  the GATT 1994 ................................................................... 57  
F.  Claims of Error by the European Union – Other Appellant ........................................ 59 
1.  Conditional Appeal regarding th e Panel's Recommendations ........................ 59  
G.  Arguments of China – Appellee ................................................................................... 61 
1.  Conditional Appeals of the United States and Mexico regarding the 
Panel's Recommendations............................................................................... 61  
2.  Conditional Appeal of the European Union regarding the Panel's 
Recommendations ........................................................................................... 63  
3.  Involvement of the CCCMC in the Allocation of Export Quotas and 
Article X:3(a) of  the GATT 1994 ................................................................... 64  
4.  Article VIII:1(a) of the GATT 199 4 and Paragraph 11.3 of China's 
Accession Protocol ......................................................................................... 68  
H.  Arguments of the Third Participants ............................................................................ 69 
1.  Brazil ............................................................................................................... 69  
2.  Canada ............................................................................................................ 70  
3.  Colombia ......................................................................................................... 72  
4.  Japan ............................................................................................................... 74  
5.  Korea ............................................................................................................... 76  
6.  Saudi Arabia ................................................................................................... 78  
7.  Turkey ............................................................................................................. 79  
III.  Issues Raised on Appeal ....................................................................................................... .... 80 
IV.  The Panel's Terms of Reference ............................................................................................... 82
 
A.  Proceedings before the Panel and the Panel's Findings ............................................. 83 
B.  Whether Section III of the Complainan ts' Panel Requests Complies with the 
Requirements of Article  6.2 of the DSU ....................................................................... 86 
V.  The Panel's Recommendations ................................................................................................. 9 4 
A.  Proceedings before the Panel and the Panel's Findings ............................................. 95 
B.  China's Appeal ........................................................................................................... 100 
1.  Arguments on Appeal ................................................................................... 100  
2.  Analysis ........................................................................................................ 102  
3.  Conclusion .................................................................................................... 108  
C.  Conditional Other Appeals of the United States, Mexico, and the 
European Union ......................................................................................................... 109 
VI.  Applicability of Article XX ................................................................................................... . 109 
A.  The Panel's Findings ................................................................................................. 110 
B.  Arguments on Appeal ................................................................................................. 111 
C.  Availability of Article XX to Justify Export Duties that Are Found to Be 
Inconsistent with Paragraph 11.3  of China's Accession Protocol ............................. 112  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page iii 
  
  1.  Paragraph 11.3 of China's Accession Protocol ............................................. 113  
2.  Paragraphs 11.1 and 11.2 of China's Accession Protocol ............................. 117  
3.  China's Arguments concerning Paragraph 170 ............................................. 118  
4.  China's Right to Regulate Trade ................................................................... 120  
5.  Conclusion .................................................................................................... 123  
VII. Article XI:2(a) of the GATT 1994 .......................................................................................... 124  
A.  The Panel's Findings and Arguments on Appeal ....................................................... 124 
B.  Article XI:2(a) of  the GATT 1994 .............................................................................. 127 
C.  The Panel's Evaluation of China's Export  Quota on Refractory-Grade Bauxite ...... 131 
VIII. Article XX(g) of the GATT 1994 ........................................................................................... 137  
A.  The Panel's Findings and Arguments on Appeal ....................................................... 137 
B.  Analysis ......................................................................................................................  140 
IX.  Findings and Conclusions in the Appellate  Body Report WT/DS394/AB/R ................... US-145 
IX. Findings and Conclusions in the Appella te Body Report WT/D S395/AB/R .................. EU-145 
IX. Findings and Conclusions in the Appella te Body Report WT/DS398/AB/R ............... MEX-145 
 
 ANNEX I Request for the Establishment of a Panel by the United States, WT/DS394/7 
 
ANNEX II Request for the Establishment of a Panel by the European Communities, 
WT/DS395/7 
 ANNEX III Request for the Establishmen t of a Panel by Mexico, WT/DS398/6 
 
ANNEX IV Notification of an Appeal by China, WT/DS394/11, WT/DS395/11, WT/DS398/10 
 ANNEX V Notification of an Other Appeal by the United States, WT/DS394/12  ANNEX VI Notification of an Other Appeal  by the European Union, WT/DS395/12 
 
ANNEX VII Notification of an Other Appeal by Mexico, WT/DS398/11 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page iv 
  
  CASES CITED IN THESE REPORTS 
 
Short title Full case title and citation 
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 
515 
Argentina – Hides and Leather Panel Report, Argentina – Measures Affecting the Export of Bovine 
Hides and Import of Finished Leather , WT/DS155/R and Corr.1, 
adopted 16 February 2001, DSR 2001:V, 1779 
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation 
of Apples from New Zealand , WT/DS367/AB/R, adopted 17 December 
2010 
Australia – Apples Panel Report, Australia – Measures Affecting the Importation of Apples 
from New Zealand , WT/DS367/R, a dopted 17 December 2010, as 
modified by Appe llate Body Report WT/DS367/AB/R 
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of 
Salmon , WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 
3327 
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated 
Coconut , WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167 
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R, adopted 17 December 2007, as modified by Appellate 
Body Report WT/DS332/AB/R, DSR 2007:V, 1649 
Canada – Aircraft (Article 21.5 – Brazil) Appellate Body Report, Canada – Measures Affecting the Export of 
Civilian Aircraft – Recourse by Brazil to Article 21.5 of the DSU , 
WT/DS70/AB/RW, adopted 4 August 2000, DSR 2000:IX, 4299 
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the 
Automotive Industry , WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 
June 2000, DSR 2000:VI, 2985 
Canada – Herring and Salmon  GATT Panel Report, Canada – Measures Affecting Exports of 
Unprocessed Herring and Salmon , L/6268, adopted 22 March 1988, 
BISD 35S/98 
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard 
Measures Relating to Certain Agricultural Products , WT/DS207/AB/R, 
adopted  
23 October 2002, DSR 2002:VIII, 30 45 (Corr.1, DSR 2006:XII, 5473) 
Chile – Price Band System Panel Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/R, adopted 23 
October 2002, as modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, 3127  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page v 
  
  Short title Full case title and citation 
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile 
Parts , WT/DS339/R / WT/DS340/R / WT/DS342/R / and Add.1 and 
Add.2, adopted  12 January 2009, upheld (WT/DS339/R) and as modified (WT/DS340/R / WT/DS342/R) by Appellate Body Reports 
WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R 
China – Publications and Audiovisual Products Appellate Body Report, China –  Measures Affecting Trading Rights 
and Distribution Services for Certain Publications and Audiovisual 
Entertainment Products , WT/DS363/AB/R, adopted 19 January 2010 
China – Raw Materials  Panel Reports, China – Measures Related to the Exportation of Various 
Raw Materials , WT/DS394/R and Corr.1/WT/DS395/R and 
Corr.1/WT/DS398/R and Corr.1, circulated to WTO Members 5 July 2011 [appeal in progress] 
Colombia – Ports of Entry  Panel Report, Colombia – Indicative Prices and Restrictions on Ports of 
Entry , WT/DS366/R and Corr.1, adopted 20 May 2009 
Dominican Republic – 
Import and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/R, adopted 19 
May 2005, as modified by Appellate Body Report WT/DS302/AB/R, 
DSR 2005:XV, 7425 
EC and certain member States – Large Civil 
Aircraft Appellate Body Report, European Communities and Certain Member 
States – Measures Affecting Trade in Large Civil Aircraft , 
WT/DS316/AB/R, adopted 1 June 2011 
EC – Approval and Marketing of Biotech Products Panel Report, European Communities – Measures Affecting the 
Approval and Marketing of Biotech Products , WT/DS291/R, 
WT/DS292/R, WT/DS293/R, Add.1 to Add.9, and Corr.1, adopted 21 November 2006, DSR 2006:III-VIII, 847 
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting 
Asbestos and Asbestos-Containing Products , WT/DS135/AB/R, 
adopted  
5 April 2001, DSR 2001:VII, 3243 
EC – Bananas III Appellate Body Report, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas , WT/DS27/AB/R, 
adopted 25 September 1997, DSR 1997:II, 591 
EC – Bananas III  Panel Reports, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas ("EC – Bananas III "), 
WT/DS27/R/ECU (Ecuador)  / WT/DS27/R/GTM, WT/DS27/R/HND 
(Guatemala and Honduras)  / WT/DS27/R/MEX (Mexico)  / 
WT/DS27/R/USA (US), adopted 25 September 1997, as modified by 
Appellate Body Report WT/DS 27/AB/R, DSR 1997:II, 695 to DSR 
1997:III, 1085 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page vi 
  
  Short title Full case title and citation 
EC – Bananas III 
(Article 21.5 – Ecuador II)/ EC – Bananas III (Article 21.5 – US) Appellate Body Reports, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Second Recourse to 
Article 21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU, adopted 
11 December 2008, and Corr.1 / European Communities – Regime for 
the Importation, Sale and Distribution of Bananas – Recourse to 
Article 21.5 of the DSU by the United States , WT/DS27/AB/RW/USA 
and Corr.1, adopted 22 December 2008 
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-
Dumping Measures on Certain Iron or Steel Fasteners from China , 
WT/DS397/AB/R, adopted 28 July 2011 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat 
Products (Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 
February 1998, DSR 1998:I, 135 
EC – Sardines Appellate Body Report, European Communities – Trade Description of 
Sardines , WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 
3359 
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs 
Matters , WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, 
3791 
EC – Trademarks and Geographical Indications Panel Reports,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs , 
WT/DS290/R (Australia)  / WT/DS174/R (US) , adopted 20 April 2005, 
DSR 2005:VIII, 3499 to DSR 2005: X, 4603 
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation 
Regarding Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 
November 1998, DSR 1998:IX, 3767 
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical 
and Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 
January 1998, DSR 1998:I, 9 
India – Quantitative Restrictions Panel Report, India – Quantitative Restrictions on Imports of 
Agricultural, Textile and Industrial Products , WT/DS90/R, adopted 22 
September 1999, upheld by Appella te Body Report WT/DS90/AB/R, 
DSR 1999:V, 1799 
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile 
Industry , WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and 
Corr.1 and 2, adopted 23 July 1998, and Corr. 3 and 4, DSR 1998:VI, 2201 
Japan – Alcoholic  Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97 
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of 
Apples , WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 
4391  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page vii 
  
  Short title Full case title and citation 
Korea – Alcoholic 
Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages , 
WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, 3 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on 
Imports of Certain Dairy Products , WT/DS98/AB/R, adopted 12 
January 2000, DSR 2000:I, 3 
Korea – Various Measures on Beef Appellate Body Report, Korea – Measures Affecting Imports of Fresh, 
Chilled and Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 
10 January 2001, DSR 2001:I, 5 
Thailand – Cigarettes (Philippines) Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes 
from the Philippines , WT/DS371/R, adopted 15 July 2011, as modified 
by Appellate Body Report WT/DS371/AB/R 
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice , 
WT/DS334/R, adopted 22 October 2007, DSR 2007:VI, 2151 
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on 
Certain Corrosion-Resistant Carbon Steel Flat Products from 
Germany , WT/DS213/AB/R and Corr.1, adopted 19 December 2002, 
DSR 2002:IX, 3779 
US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain 
Products from the European Communities , WT/DS165/AB/R, adopted 
10 January 2001, DSR 2001:I, 373 
US – Certain EC Products Panel Report, United States – Import Measures on Certain Products 
from the European Communities , WT/DS165/R and Add.1, adopted 10 
January 2001, as modified by Appellate Body Report 
WT/DS165/AB/R, DSR 2001:II, 413 
US – Customs User Fee  GATT Panel Report, United States – Customs User Fee , L/6264, 
adopted 2 February 1988, BISD 35S/245 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and 
Application of Zeroing Methodology , WT/DS350/AB/R, adopted 19 
February 2009 
US – Gambling Appellate Body Report, United States – Measures Affecting the 
Cross-Border Supply of Gambling and Betting Services , 
WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, 5663 (Corr.1, DSR 2006:XII, 5475) 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated 
and Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, 
DSR 1996:I, 3 
US – Oil Country Tubular Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of 
Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina , WT/DS268/AB/R, adopted 17 December 2004, DSR 
2004:VII, 3257 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page viii 
  
  Short title Full case title and citation 
US – Orange Juice (Brazil) Panel Report, United States – Anti-Dumping Administrative Reviews 
and Other Measures Related to Imports of Certain Orange Juice from 
Brazil , WT/DS382/R, adopted 17 June 2011 
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of 
Poultry from China , WT/DS392/R, adopted 25 October 2010 
US – Section 301 Trade 
Act Panel Report, United States – Sections 301-310 of the Trade Act of 
1974 , WT/DS152/R, adopted 27 January 2000, DSR 2000:II, 815 
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain 
Shrimp and Shrimp Products , WT/DS58/AB/R, adopted 6 November 
1998, DSR 1998:VII, 2755 
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada , 
WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, 571 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3 
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures 
on Imports of Wheat Gluten from the European Communities , 
WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, 717 
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of 
Woven Wool Shirts and Blouses from India , WT/DS33/AB/R, adopted 
23 May 1997, and Corr.1, DSR 1997:I, 323 
US – Wool Shirts and Blouses Panel Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/R, adopted 23 May 
1997, upheld by Appellate Body Report WT/DS33/AB/R, DSR 1997:I, 343 
US – Zeroing (EC)  (Article 21.5 – EC) Appellate Body Report, United States – Laws, Regulations and 
Methodology for Calculating Dumpin g Margins ("Zeroing") – Recourse 
to Article 21.5 of the DSU by the European Communities , 
WT/DS294/AB/RW and Corr.1, adopted 11 June 2009 
US – Zeroing (Japan)  (Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing 
and Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW, adopted 31 August 2009 
  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page ix 
  
  ABBREVIATIONS USED IN THESE REPORTS 
 
Abbreviation Definition 
2008 Export Licence 
Administration Measures Measures for the Administration of Licence for the Export of Goods, 
Order of the Ministry of Commerce (2008) No. 11, 1 July 2008 (Panel Exhibits CHN-342 and JE-74) 
2008 Export Licensing Working Rules Working Rules on Issuing Export Licences, Ministry of Commerce, 
Shangpeifa (2008) No. 398, 9 October 2008 (Panel Exhibits CHN-344 
and JE-97) 
2009 Announcement of Second Bidding Round for 
Talc and Silicon Carbide  Announcement on the Second Invitation for the Bidding of Select 
Industrial Product Export Quotas in 2009, Committee for the 
Invitation for bid for Export Commodity Quotas, 16 September 2009 (Panel Exhibit JE-132) 
2009 Export Licensing Catalogue Notice "2009 Export Licensing Management Commodities List", 
Ministry of Commerce and General Administration of Customs, 
Notice (2008) No. 100, 1 January 2009 (Panel Exhibits CHN-6 and 
JE-22) 
2009 Export Quota Amounts Notice Regarding 2009 Export Quota Amounts for Agricultural and 
Industrial Products, Ministry of Commerce, Notice (2008) No. 83, 
1 January 2009 (Panel Exhibit JE-79) 
2009 First Round Bauxite 
Bidding Procedures Quotas of Bauxite of 2009, Committee for the Invitation for bid for 
Export Commodity Quotas, 10 December 2008 (Panel Exhibit JE-94) 
2009 First Round Export 
Quota Bidding 
Announcement Announcement of Ministry of Commerce on Matters regarding the 
First Bidding for Export Quotas of Industrial Products in 2009, 
Ministry of Commerce, Announcement (2008) No. 85, 30 October 
2008 (Panel Exhibits CHN-309 and JE-90) 
2009 Graded Export Licensing Entities Catalogue  Announcement of the Ministry of Commerce Issuing the "2009 
Graded Licence-Issuing List of Commodities Subject to Export 
Licence Administration", Ministry of Commerce, Notice (2008) 
No. 124, 1 January 2009 (Panel Exhibit JE-96) 
2009 Second Round Export 
Quota Bidding 
Announcement  Announcement of Ministry of Commerce on the Notice for the Second 
Invitation for the Bidding for Industrial Product Export Quotas in 
2009, Ministry of Commerce, Announcement (2009) No. 42, 8 June 2009 (Panel Exhibits CHN-310 and JE-91) 
2009 Tariff Implementation Program Notice Regarding the 2009 Tariff Implementation Program, State 
Council Tariff Policy Commission, Shuiweihui (2008) No. 40, 
1 January 2009 (Panel Exhibit JE-21) 
2010 Tariff Implementation Plan  Circular of the State Council Tariff Commission on the 2010 Tariff 
Implementation Plan, Shui Wei Hui [2009] No. 28, promulgated by 
the Customs Tariff Commission of the State Council on 8 December 
2009 (Panel Exhibit CHN-5) 
CCCMC Chamber of Commerce of Metals, Minerals and Chemicals Importers 
and Exporters of the People's Republic of China 
China's Accession Protocol Protocol on the Acce ssion of the People's Republic of China to the 
WTO, WT/L/432 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page x 
  
  Abbreviation Definition 
China's Accession Working 
Party Report Report of the Working Party on the Accession of China, 
WT/ACC/CHN/49 and Corr.1 
China's request for a preliminary ruling Communication from China to the Panel:  China's request for a 
preliminary ruling pursuant to Article 6.2 of the DSU, 30 March 2010 
Complainants United States, European Union, and Mexico 
Complainants' response to China's request for a preliminary ruling Joint Communication from the United States, the European Union, and 
Mexico to the Request for a Preliminary Ruling submitted by China, 21 April 2010 
Customs Law Customs Law of the People's Republic of China, adopted at the 19th 
Meeting of the Standing Committee of the Sixth National People's Congress on 22 January 1987, amended 8 July 2000 (Panel Exhibits 
CHN-14 and JE-68) 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
EU Panel Report Panel Report, China – Measures Related to the Exportation of Various 
Raw Materials , complaint by the European Union (WT/DS395/R) 
Export Quota 
Administration Measures Measures for the Administration of Export Commodities Quotas, 
Order No. 12, promulgated by MOFTEC (now MOFCOM) on 20 December 2001 (Panel Exhibits CHN-312 and JE-76) 
Export Quota Bidding Implementation Rules Implementation Rules of Export Quota Bidding for Industrial 
Products, Ministry of Foreign Trade and Economic Cooperation, 
8 November 2001 (Panel Exhibits CHN-305 and JE-78) 
Export Quota Bidding 
Measures Measures of Quota Bidding for Export Commodities, Decree of the 
Ministry of Foreign Trade and Ec onomic Cooperation No. 11, adopted 
at the 9th ministerial office meeting of the Ministry of Foreign Trade and Economic Co-operation, 1 Ja nuary 2002 (Panel Exhibits 
CHN-304 and JE-77) 
GATS General Agreement on Trade in Services 
GATT 1994 General Agreement on Tariffs and Trade 1994 
Import Licensing Agreement Agreement on Import Licensing Procedures 
MEP minimum export price 
Mexico Panel Report Panel Report, China – Measures Related to the Exportation of Various 
Raw Materials , complaint by Mexico (WT/DS398/R) 
MOFCOM Ministry of Commerce of the People's Republic of China 
MOFTEC Ministry of Trade and Economic  Cooperation of the People's Republic 
of China 
Panel  Panel in China – Measures Related to the Exportation of Various Raw 
Materials   WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page xi 
  
  Abbreviation Definition 
Panel's preliminary ruling 
(first phase)  First phase of the Preliminary Ruling by the Panel dated 7 May 2010, 
Panel Reports, Annex F-1 
Panel's preliminary ruling (second phase)  Second phase of the Preliminary Ruling by the Panel dated 1 October 
2010, Panel Reports, Annex F-2 
Panel Reports Panel Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/R/WT/DS395/R/WT/DS398 
Raw materials Certain forms of bauxite , coke, fluorspar, magnesium, manganese, 
silicon carbide, silicon metal, yellow phosphorous, and zinc 
Regulation on Import and 
Export Administration  Regulation of the People's Republic of China on the Administration of 
the Import and Export of Goods, passed at the forty-sixth executive 
meeting of the State Council on 31 October 2001, 1 January 2002 
(Panel Exhibits CHN-152 and JE-73) 
Regulations on Import and Export Duties Regulations of the People's Republic of China on Import and Export 
Duties, Order of the State Council (2003) No. 392, adopted at the 26th 
executive meeting of the State Council on 29 October 2003, 1 January 
2004 (Panel Exhibits CHN-13 and JE-67) 
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures  
TBT Agreement Agreement on Technical Barriers to Trade  
TRIMS Agreement Agreement on Trade-Related Investment Measures 
TRIPS Agreement Agreement on Trade-Related Aspects of Intellectual Property Rights  
US Panel Report Panel Report,  China – Measures Related to the Exportation of Various 
Raw Materials , complaint by the United States  (WT/DS394/R)  
Vienna Convention Vienna Convention on the Law of Treaties , done at Vienna, 23 May 
1969, 1155 UNTS 331;  8 International Legal Materials 679.  
Working Procedures Working Procedures for Appellate Review , WT/AB/WP/6, 
16 August 2010 
WTO World Trade Organization 
WTO Agreement  Marrakesh Agreement Es tablishing the World Trade Organization  
 
  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 1 
  
  W
ORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
China – Measures Related to the Exportation of 
Various Raw Materials 
 China, Appellant , Appellee 
United States,  Other Appellant , Appellee  
European Union
1, Other Appellant , Appellee  
Mexico, Other Appellant , Appellee  
 
Argentina, Third Participant  
Brazil, Third Participant 
Canada, Third Participant 
Chile, Third Participant 
Colombia, Third Participant 
Ecuador, Third Participant  
India, Third Participant 
Japan, Third Participant 
Korea,  Third Participant 
Norway, Third Participant 
Saudi Arabia, Third Participant  
Separate Customs Territo ry of Taiwan, Penghu, 
 Kinmen and Matsu, Third Participant   
Turkey, Third Participant 
  AB-2011-5 
  Present: 
 
 Ramírez-Hernández, Presiding Member  Hillman, Member  Oshima, Member  
 
 
 I. Introduction 
1. China and the United States each appeals certain  issues of law and legal interpretations 
developed in the Panel Report, China – Measures Related to the Exportation of Various Raw 
Materials, Complaint by the United States  (WT/DS394/R) (the "US Panel Report");  China and the 
                                                      
1This dispute began before the entry into force of the Treaty of Lisbon amending the Treaty on 
European Union and the Treaty establishing the European Community  (done at Lisbon, 13 December 2007) on 
1 December 2009.  On 29 November 2009, the World Trade Organization (t he "WTO") received a Verbal Note 
(WT/L/779) from the Council of the European Union and the Commission of the European Communities stating 
that, by virtue of the Treaty of Lisbon , as of 1 December 2009, the "Europ ean Union" replaces and succeeds the 
"European Community".  On 13 July 2010, the WTO re ceived a second Verbal Note (WT/Let/679) from the 
Council of the European Union conf irming that, with effect from 1 December 2009, the European Union 
replaced the European Community and assumed all the rights and obligations of the European Community in 
respect of all Agreements for which the Director-General  of the World Trade Organization is the depositary and 
to which the European Community is a signatory or a c ontracting party.  We understand the reference in the 
Verbal Notes to the "European Community" to be a reference to the "European Communities".  Thus, although 
the European Communities was a party in the Panel proceedings, it is the European Union that filed a Notice of Appeal in this dispute after the entry into force of the Treaty of Lisbon , and we will thus refer to the 
European Union in this Report in its capacity as appellee and other appellant. WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
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  European Union each appeals certain issues of law and legal interpretations developed in the Panel 
Report, China – Measures Related to the Exportation of  Various Raw Materials, Complaint by the 
European Union  (WT/DS395/R) (the "EU Panel Report");  and China and Mexico each appeals 
certain issues of law and legal interpre tations developed in the Panel Report, China – Measures 
Related to the Exportation of Various Raw Materials, Complaint by Mexico  (WT/DS398/R) (the 
"Mexico Panel Report") (collectively, the "Panel Reports").
2  The Panel was established to consider 
complaints by the United States3, the European Union4, and Mexico5 (the "complainants") regarding 
the consistency of certain measures imposed by Ch ina on the exportation of certain forms of bauxite, 
coke, fluorspar, magnesium, manga nese, silicon carbide, silicon me tal, yellow phosphorous, and zinc6 
(the "raw materials") with the General Agreement on Tariffs and Trade 1994  (the "GATT 1994"), the 
Protocol on the Accession of the People's Republic of China7 ("China's Accession Protocol"), and the 
Report of the Working Party on the Accession of China8 ("China's Accession Working Party Report"). 
2. Before the Panel, the complainants challenged four types of restraints imposed by China on 
the exportation of the raw materials:  (i) export duti es;  (ii) export quotas;  (iii) export licensing;  and 
(iv) minimum export price requirements.9  The complainants also challenged certain aspects of 
China's allocation and administration of export quotas, export licences, and minimum export prices, as well as the alleged non-publica tion of certain export measures.
10  The complainants alleged that these 
export restraints were inconsistent with Chin a's commitments under China's Accession Protocol and 
China's Accession Working Party Report, and with Artic les VIII:1(a), VIII:4, X:1, X:3(a), and XI:1 of 
the GATT 1994. 
                                                      
2WT/DS394/R;  WT/DS395/R;  WT/DS398/R, 5 July 2011 (collectively, the "Panel Reports").  At its 
meeting on 21 December 2009, the Disput e Settlement Body (the "DSB") esta blished a single Panel for all three 
complaints in accordance with  Article 9.1 of the DSU (WT/DSB/M/277).  Pursuant to a joint request by the 
United States and Mexico, the Panel issued its findings in the form of a single document containing three separate reports, with common descriptive and analytical sections, but separate conclusions and 
recommendations for each complaining party, each of wh ich bears only the document symbol for that report. 
(Panel Reports, paras. 6.74 and 8.1)  In our Reports, when referring to more than one of the complainants, we mostly refer to the United States first, then to the European Union, and then to Mexico, in keeping with the 
chronology of the DS numbers assigned to these disputes. 
3Request for the Establishment of a Panel by the United States, WT/DS394/7. 
4Request for the Establishment of a Panel by the European Communities, WT/DS395/7. 
5Request for the Establishment of a Panel by Mexico, WT/DS398/6. 
6Further details regarding the products at issues in  this dispute are provided in paragraph 2.2 of the 
Panel Reports. 
7WT/L/432. 
8WT/ACC/CHN/49 and Corr. 1. 
9Panel Reports, para. 2.1. 
10Panel Reports, para. 2.1.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
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  3. On 30 March 2010, China requested a preliminary ruling by the Panel regarding the 
consistency of the complainants' panel requests
11 with the requirements of Article 6.2 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  (the "DSU").  In 
particular, China alleged that the complainants' pa nel requests:  (i) did not clearly and specifically 
identify which measures were bei ng challenged and for which raw ma terials;  and (ii) failed to 
provide a brief summary of the legal basis of the co mplaint sufficient to present the problem clearly, 
because the measures identified in Section III of each of the panel requests were not plainly connected 
to the list of treaty provisions that the complainan ts claimed were being infringed.  The Panel issued 
its preliminary ruling in two phases.12  With the exception of one claim by the European Union, the 
Panel found the complainants' panel requests suffici ent to comply with Article 6.2 of the DSU.13 
4. As regards the substantive claims raised by th e complainants, the Panel addressed each of the 
four types of export restraints imposed by Ch ina, as well as aspects of the administration and 
application of certain export measures.  The Panel first considered whether the export duties imposed 
by China on certain forms of bauxite, coke, fluo rspar, magnesium, manganese, silicon metal, yellow 
phosphorous, and zinc were incons istent with Paragraph 11.3 of  China's Accession Protocol.  
Paragraph 11.3 requires the elimination of all taxes and charges applied to exports, except as 
specifically provided for in Annex 6 to the Protocol or as applied in conformity with Article VIII of 
the GATT 1994.  The Panel found that, with the ex ception of yellow phosphorous, none of the raw 
materials at issue is listed in Annex 6, and thus the materials are not exempt from the requirement to eliminate export duties.  With respect to yellow phosphorous, the Panel found that the 50-per cent duty imposed on exports of yellow phosphorous, cha llenged by the complainants, had been removed 
prior to the establishment of the Panel, and therefor e did not make findings with regard to that duty.
14  
5. In its defence, China contended that the e xport duties on certain forms of coke, fluorspar, 
magnesium, manganese, and zinc were justifie d under Article XX(b) and (g) of the GATT 1994 
because these raw materials were exhaustible natura l resources, or because the duties were applied in 
                                                      
11See supra , footnotes 3-5. 
12The first phase of the preliminary ruling was issued to the parties on 7 May 2010 and circulated to 
WTO Members on 18 May 2010 as document WT/DS394/9, WT/DS395/9, WT/DS/396/8 ("Panel's preliminary 
ruling (first phase)").  The second phase of the prelimin ary ruling was issued to the parties on 1 October 2010 
and, at the request of the United Stat es and Mexico, circulated only to th e third parties ("Panel's preliminary 
ruling (second phase)").  The first an d second phases of the preliminary ruling were attached as Annexes F-1 
and F-2 to the Panel Reports. (See Panel Reports, paras. 1.12 and 1.13) 
13Panel Reports, paras. 7.1-7.3. 
14Panel Reports, sections VII.B.1-VII.B.4. WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
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  order to reduce pollution and to protect human health.
15  However, the Panel found that China could 
not invoke exceptions under Article XX to jus tify measures found to be inconsistent with 
Paragraph 11.3 of China's Accessi on Protocol, because these exceptions  apply only to violations of 
the GATT 1994, unless specifically incorporated into a non-GATT provision or instrument.  The 
Panel found that Paragraph 11.3 of China's Accessi on Protocol does not contain any language or 
reference that would allow recourse to Article XX of the GATT 1994 for justifying China's export 
duties found to be inconsis tent with Paragraph 11.3.16  Even assuming, arguendo , that the exceptions 
under Article XX(b) and (g) were available to Ch ina under Paragraph 11.3 of  its Accession Protocol, 
the Panel found that China had failed to satisfy the requirements of those provisions for the raw 
materials at issue.17 
6. With regard to export quotas, the Panel found that the quotas imposed on certain forms of 
bauxite, coke, fluorspar, silicon carbide, and zinc are inconsistent with Article XI:1 of the 
GATT 1994.  In addressing China's defence that the export quota applied to one form of bauxite 
known as "refractory-grade bauxite"18 is justified under Article XI:2(a) of the GATT 1994, the Panel 
found that the export quota had not been "temporarily a pplied" in order to "preve nt or relieve a critical 
shortage" of refractory-grade bauxite w ithin the meaning of Article XI:2(a).19  The Panel also found 
that China had not demonstrated that its export quotas on refractory-grade bauxite, coke, and silicon 
carbide were justified under Artic le XX(b) or (g) of the GATT 1994.20 
7. Next, the Panel addressed certain aspects of Ch ina's administration and allocation of its export 
quotas.  The Panel found that the export performan ce and minimum registered capital requirements 
imposed by China on the allocation of certain e xport quotas are inconsistent with China's "trading 
                                                      
15China did not seek to justify under Article XX the export duties imposed on bauxite, other forms of 
manganese, or silicon metal. 
16Panel Reports, section VII.B.5. 
17Panel Reports, sections VII.D.2-VII.D.4. 
18We note that the complainants and the Panel sometimes referred to this form of bauxite as "high 
alumina clay".  We will refer to this material th roughout these Reports as "refractory-grade bauxite". 
19Panel Reports, section VII.D.1. 
20Panel Reports, sections VII.D.2-VII.D.4.  The Panel found that China had not demonstrated that its 
export quotas on coke and silicon carbide are necessary wi thin the meaning of Article  XX(b) of the GATT 1994. 
(Ibid., para. 7.615)  The Panel also found that China had not demonstrated that its export quota on refractory-
grade bauxite relates to the conservation of exhaustible natural resources and was made effective in conjunction 
with restrictions on domestic production or consumption pursuant to Article XX(g) of the GATT 1994. ( Ibid., 
para. 7.613)  China does not appeal these findings by the Panel.  We also note that, before the Panel, China did 
not seek to justify under Article XX the quotas imposed on other forms of bauxite, fluorspar, or zinc.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
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  rights" obligations under its Accession Pr otocol and Accession Working Party Report.
21  The Panel, 
however, rejected the cl aim that China's prior export perfo rmance requirement operates to the 
detriment and exclusion of foreign enterprises.22  Furthermore, the Panel found that China's allocation 
of export quotas through the use of an "operation capac ity" criterion contained in Article 19 of China's 
Measures for the Administration of Export Commodities Quotas23 ("Export Quota Administration 
Measures ") is inconsistent with Article X:3(a) of the GATT 1994, because the lack of any definition, 
guidelines, or standards on how to  apply this criterion necessarily results in unreasonable and non-
uniform administration.24  The Panel also found that China has acted inconsistently with Article X:1 
of the GATT 1994 because it failed to publish promptly the total amount and procedure for the 
allocation of export quotas for zinc.25  The Panel rejected the claim by the United States and Mexico 
that China's administration of its export quot as through the involvement of China's Chamber of 
Commerce of Metals, Minerals and Chemicals Impor ters and Exporters (the "CCCMC") results in 
partial or unreasonable administration inconsis tent with Article X:3(a) of the GATT 1994.26  T h e  
Panel also rejected the claims by the United States and Mexico that China's allocation of export 
quotas for certain forms of bauxite, fluorspar, and silicon carbide through a quota-bidding process, based on a "bid-winning price", is inconsiste nt with Article VIII:1(a) of the GATT 1994 and 
Paragraph 11.3 of China's Accession Protocol.
27 
8. Regarding China's export licensing system for certain forms of bauxite, coke, fluorspar, 
manganese, silicon carbide, and zinc, the Panel found that the system is not per se  inconsistent with 
China's obligations under Article XI:1 of the GATT 1994.28  However, the Panel found that China's 
export licensing authorities had the discretion to re quest undefined "other" documents or materials 
from enterprises applying for such licences, and that this creates uncertainty and constitutes an export 
restriction prohibited under Article XI:1.29  The Panel declined to make findings on other claims 
                                                      
21Specifically, the Panel found China's prior expo rt performance and minimum registered capital 
requirements to be inconsistent with Paragraphs 1.2 and 5.1 of China's Accession Protocol, read with 
Paragraphs 83(a), 83(b), 83(d), 84(a), and 84(b) of China's Accession Working Party Report. (Panel Reports, 
paras. 7.657-7.670) 
22The Panel concluded that China's prior export performance requirement is not inconsistent with 
Paragraph 5.2 of China's Accession Protocol, read with Paragraphs 84(a) and 84(b) of China's Accession 
Working Party Report. (Panel Reports, paras. 7.671-7.677) 
23Measures for the Administration of Export Commodities Quotas, Order No. 12, promulgated by 
MOFTEC (now MOFCOM) on 20 December 2001  (Panel Exhibits CHN-312 and JE-76). 
24Panel Reports, paras. 7.746 and 7.752. 
25Panel Reports, para. 7.807. 
26Panel Reports, paras. 7.787 and 7.796. 
27Panel Reports, paras. 7.851 and 7.860. 
28Panel Reports, para. 7.938. 
29Panel Reports, para. 7.948. WT/DS394/AB/R 
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  regarding China's export licensing system.
30  In addition, the Panel found that China imposes a 
requirement to export at a coordinated minimum ex port price ("MEP") certain forms of bauxite, coke, 
fluorspar, magnesium, silicon carbide, yellow phosphorous , and zinc that also constitutes a prohibited 
export restriction under Article XI:1.  The Pane l also found that, by failing to publish promptly 
measures through which it administers its MEP require ment, China has acted inconsistently with its 
obligations under Article X:1 of the GATT 1994.31  The Panel, however, declined to make a finding 
on whether China's administration of the MEP require ment alleged to apply to yellow phosphorous is 
inconsistent with its obligations under Article X:3(a) of the GATT 1994.32 
9. On 31 August 2011, China notified the Dispute Settl ement Body (the "DSB") of its intention 
to appeal certain issues of law covered in the Pane l Reports and certain legal interpretations developed 
by the Panel, pursuant to Articles 16.4 and 17 of the DSU, and filed a Notice of Appeal33 and an 
appellant's submission pursuant to Rules 20 and 21, respectively, of the Working Procedures for 
Appellate Review34 (the " Working Procedures "). 
10. On 1 September 2011, the United States, the European Union, and Mexico requested the 
Appellate Body Division hearing these appeals to ex tend certain time periods for filing submissions.  
In their joint request, the complainan ts referred to Rule 16(2) of the Working Procedures  and the 
extensive nature of China's appeal.  The complainants  also indicated that they wished to coordinate 
their efforts and submissions to the greatest extent  possible.  On the same day, the Division invited 
China and the third participants to comment on the complainants' request.  Written comments were 
received from China, Japan, and Saudi Arabia on 2 September 2011.35  On the same day, the Division 
informed the participants and third participants th at it had decided to extend the deadline for the filing 
                                                      
30The Panel declined to make a finding on whether Ch ina's export licensing syst em for certain forms of 
bauxite, coke, fluorspar, manganese, silicon carbide, and zinc is inconsistent with Paragraphs 162 and 165 of 
China's Accession Working Party Report  and Paragraph 1.2 of China's Acce ssion Protocol. (Panel Reports, 
paras. 7.960-7.973)  The Panel also declined to make a finding regarding the inconsistency of China's export licensing system for certain forms of bauxite, coke, fluorspar, manganese, silicon carbide, and zinc with 
Paragraphs 83 and 84 of China's Accession Working Party Report and Paragraphs 1.2 and 5.1 of China's 
Accession Protocol. ( Ibid., paras. 7.974-7.983) 
31Panel Reports, paras. 7.1088-7.1102. 
32Panel Reports, paras. 7.1083-7.1087. 
33WT/DS394/11, WT/DS395/11, WT/DS398/10 (attached as Annex IV to these Reports). 
34WT/AB/WP/6, 16 August 2010. 
35China informed the Division that it opposed the complainants' request.  China argued, inter alia , that 
the length of its appeal did not justify a departure from the deadlines contained in the Working Procedures  for 
the filing of other appellants' or appellees' submissions.  Japan and Saudi Arabia indicated that they had no 
objection to the extension of time-limits requested by the complainants.  They asked, however, that additional 
time also be granted to third participants for the filing of their submissions, in the event that the Division were to decide to grant additional time to the participants.  No other third participants submitted comments to the 
Division.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
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  of any Notice of Other Appeal and other appellant 's submission until 6 September 2011;  the deadline 
for the filing of the complainants' appellees' subm issions until 22 September 2011;  the deadline for 
the filing of China's appellee's submission until 26 September 2011;  and the deadline for the filing of 
third participants' submissions and notifications until 29 September 2011. 
11. On 6 September 2011, the United States, the Eur opean Union, and Mexico each notified the 
DSB of its intention to appeal certain issues of la w and certain legal interpretations developed by the 
Panel in Panel Reports WT/DS394/R, WT/DS395/R , and WT/DS398/R, respectively, pursuant to 
Articles 16.4 and 17 of the DSU, and filed a Notice of Other Appeal
36 and an other appellant's 
submission pursuant to Rules 23(1) and (3) and 26(2) of the Working Procedures .  On 22 September 
2011, the United States and Mexico filed a joint appellees' submission37 and the European Union filed 
an appellee's submission.38  On 26 September 2011, China filed an appellee's submission.39 
12. On 28 September 2011, Colombia filed a third participant's submission.40  On the same day, 
Ecuador notified its intention to appear at  the oral hearing as a third participant.41  On 29 September 
2011, Brazil, Canada, Japan, Korea, Saudi Arabia , and Turkey each filed a third participant's 
submission.42  On the same day, Argentina, Chile, Indi a, and Norway each notified its intention to 
appear at the oral hearing as a third participant.43  On 2 November 2011, the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu also no tified the Secretariat of its intention to appear 
at the oral hearing as a third participant.44 
13. On 29 October 2011, the Chair of the Appellate Body informed the Chair of the DSB that, 
due to the significant size, scope, and timing of this appeal and the demands that it, along with the two 
other appeals under review, placed on the Appe llate Body and translation services, the 
                                                      
36WT/DS394/12;  WT/DS395/12;  WT/DS398/11 (attached as Annexes V, VI, and VII to these 
Reports, respectively). 
37Pursuant to Rules 22, 23(4), and 26(2) of the Working Procedures . 
38Pursuant to Rules 22, 23(4), and 26(2) of the Working Procedures . 
39Pursuant to Rules 22, 23(4), and 26(2) of the Working Procedures . 
40Pursuant to Rules 24(1) and 26(2) of the Working Procedures . 
41Pursuant to Rules 24(2) and 26(2) of the Working Procedures . 
42Pursuant to Rules 24(1) and 26(2) of the Working Procedures . 
43Pursuant to Rules 24(2) and 26(2) of the Working Procedures . 
44On 2 November 2011, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
submitted its delegation list for the oral hearing to the Ap pellate Body Secretariat and the participants and third 
participants in this dispute.  For the purpose of this appeal, we have interpreted this action as a notification 
expressing its intention to attend the oral hearing pursuant to Rule 24(4) of the Working Procedures . WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
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  Appellate Body Report in this appeal would be ci rculated to WTO Members no later than 31 January 
2012.
45 
14. On 1 November 2011, China requested an extension of the time allocated for its opening 
statement at the oral hearing.  On the same day,  the Division invited the other participants and the 
third participants to comment on China's re quest.  Written comments were submitted by the 
United States, the European Union, and Mexico on 2 November 2011.46  By letter of 3 November 
2011, the Division informed the participants and third participants that it considered the time allocated 
for opening statements to reflect an  appropriate balance in the light of the high number of participants 
and third participants in the dispute and the time requi red in order to provide the participants and third 
participants with a full opportunity to respond to qu estions that would be posed by the Division at the 
oral hearing.  Consequently, the Division decided not  to adjust the amount of time it had allocated to 
the participants for their opening statements at the oral hearing. 
15. The oral hearing in this appeal was held on 7-9 November 2011.  The participants and 11 of 
the third participants—Brazil, Canada, Chile, Co lombia, Ecuador, India, Japan, Korea, Norway, 
Saudi Arabia, and Turkey—made oral statements.  The participants and thir d participants responded 
to questions posed by the Members of the A ppellate Body Division hearing the appeal. 
II. Arguments of the Participants  and the Third Participants 
A. Claims of Error by China – Appellant 
1. Article 6.2 of the DSU 
16. China requests the Appellate Body to reverse th e Panel's finding that Section III of each of the 
complainants' panel requests, entitled "Additional R estraints Imposed on Exportation", complies with 
the requirements of Article 6.2 of the DSU, and to find, instead, that Section III of the panel requests 
does not comply with Article 6.2, with the excep tion of the complainants' claims regarding the 
non-publication of export measures concerning zinc.47  Consequently, China requests the 
                                                      
45WT/DS394/13, WT/DS395/13, WT/DS398/12.   
46The United States, the European Union, and Mexico  opposed China's request for additional time.  
They submitted that the time allocated to China was greater than in other appeals involving multiple 
complainants, and was also al ready proportionally greater than that give n to other participants in situations 
comparable to that of China in this dispute. 
47China's appellant's submission, para. 5 (referring to  Panel's preliminary ruling (second phase), Panel 
Reports, Annex F-2, para. 77;  and Panel Reports, para. 7.3(b)).  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
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  Appellate Body to reverse the Panel's findings made  pursuant to other claims allegedly contained in 
Section III of the panel requests.
48 
17. China contends that the Panel correctly concl uded that the panel requests set out subsets of 
claims concerning subsets of measures, rather than raising all claims listed in Section III of the panel 
requests in relation to all measures listed in that section of the panel requests.  However, the panel 
requests fail to identify which claims were made with  respect to which measures.  For China, in order 
to comply with Article 6.2 of the DSU, the complain ants were required plainly to connect the 37 listed 
measures with the 13 listed treaty provisions with  sufficient precision to identify the specific 
combination of measure(s) and claim(s) at issue. 
18. China explains that subsequent submissions  by the complainants reveal substantial 
differences between the United States and Mexico, on the one hand, and the Eu ropean Union, on the 
other hand, with respect to the specific combination of  measures and claims at issue.  Therefore, while 
the panel requests are nearly identical, the "probl ems" presented in the three panel requests are 
considerably different, thus giving the misleading impression that the three complainants referred the same matter to the DSB, when in reality the matters are different. 
19. Furthermore, China alleges that the Panel found that the panel requests comply with 
Article 6.2 not on the basis of the panel requests themselves, but, rather, on additional information 
contained in subsequent submissions by the parties.   China submits that this amounts to legal error, 
because, as found by the Appellate Body in EC and certain member States – Large Civil Aircraft , 
Article 6.2 requires that a panel request, as it existed at  the time of filing, comply with Article 6.2, and 
that a party's submissions during a panel proceeding cannot cure a defect in a panel request.
49  China 
alleges that the Panel, rather than respecting th ese findings, instead encourag ed the complainants to 
correct defects in the panel requests in subsequent submissions.50 
20. China contends that the Panel observed defects in Section III of the pa nel requests, and points 
to several features of the Panel's reasoning that, in  China's view, demonstrate that the Panel itself 
recognized that the panel requests did not prov ide the necessary connection between the 37 listed 
measures and the 13 listed treaty provisions.  Fi rst, the Panel did not accept the complainants' 
                                                      
48Referring specifically to the findings in the Panel Reports in paragraphs 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). 
49China's appellant's submission, para. 65 (referring to Appellate Body Report, EC and certain member 
States – Large Civil Aircraft , para. 642). 
50China's appellant's submission, para. 66. WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 10 
  
  argument that there was no need to establish any connection between the measures and the claims.  
Second, in the first phase of its preliminary ruling,  the Panel requested the complainants to clarify 
which of the listed measures were alleged to be in consistent with which specific WTO obligation.  
Third, the Panel requested again, after the first Pane l meeting with the parties, that the complainants 
clarify which specific WTO provision(s) each of the measures was allegedly violating.  Finally, the Panel pointed to no language in th e panel requests that indicated that the complainants had in fact 
established the connection, but in stead relied on the complainants' subsequent submissions as the 
basis for its finding that the panel requests comply with Article 6.2. 
21. China further argues that, although the Panel stated that the complainants' first written 
submissions provided "sufficient connections" between the measures and the claims at issue, the 
complainants in fact provided the connections only in their response to Panel Question 2 following the 
first Panel meeting.  The Panel expressly acknowledge d this fact when it noted that, in their first 
written submissions, the complainants failed to "directly address" the connections between the 
measures and claims at issue.
51  Instead, submits China, all three examples listed by the Panel to 
illustrate that the complainants had in fact connect ed the measures and claims  at issue are taken from 
the complainants' response to Panel Question 2 afte r the first Panel meeting, and not from the panel 
requests or the first written submissions. 
22. Finally, China claims that the Panel frustrate d China's due process rights under Article 6.2 of 
the DSU, in particular, China's right to begin prep aring its defence on the basis of the panel requests 
and its right to have the scope of the dispute una ltered during the course of the proceedings.  China 
argues that, with respect to the claims listed in Section III of the panel requests, it was impossible for 
China to begin preparing its defence when the panel requests were filed, because the measures 
implicated by the different narrative paragraphs, and the claims made regarding those measures, could 
not be identified. 
2. The Panel's Recommendations 
23. On appeal, China seeks review of the Panel' s recommendations concerning export duties and 
export quotas "to the extent that [these] recomme ndations apply to annual replacement measures" 
adopted after the establishment of the Panel on 21 December 2009.52  China argues that the 
complainants had excluded such measures from th e scope of the dispute and hence, by making 
                                                      
51China's appellant's submission, para. 74 (referring to Panel's preliminary ruling (second phase), Panel 
Reports, Annex F-2, para. 32). 
52China's appellant's submission, paras. 99 and 136.  WT/DS394/AB/R 
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  recommendations extending to such measures, the Pa nel acted inconsistently with its obligations 
under Article 7.1 of the DSU;  failed to make an  objective assessment of the matter under Article 11 
of the DSU;  and made recommendations on measur es that were not part of the matter before it, 
inconsistently with Article 19.1 of the DSU. 
24. China highlights that, under Article 7.1 of the DSU, a panel must respect the mandate 
conferred upon it through its terms of reference.  This conclusion has been "consistently repeated" by 
panels and the Appellate Body
53, and it is well established that "panels 'cannot assume jurisdiction 
that [they] do not have'."54  Although, typically, a panel's terms of  reference are established by a panel 
request, a complainant can limit the panel's terms of reference in several ways—for example, by 
withdrawing a claim regarding a measure or by abandoning a complaint entirely.  In the present 
dispute, the complainants' decision to abandon certain  of their claims meant that the Panel could not 
make recommendations regarding such claims.  In Ch ina's view, the Panel acted inconsistently with 
Article 7.1 of the DSU by permitting the complain ants to "evade" the consequences of their own 
decision to withdraw annual replacement measures from the scope of the dispute.55 
25. China further submits that, by making r ecommendations regarding annual replacement 
measures, the Panel failed to make an objective assessment of the matter before it as required under 
Article 11 of the DSU.  When a panel makes reco mmendations regarding measures that are not a part 
of the "matter" before it, it confers an "advantag e" on the complainant, in that it benefits from 
recommendations regarding measures that it did not challenge, and places the respondent at a 
"disadvantage", by subjecting it to implementati on obligations regarding measures that were not 
within the scope of the dispute.56  China asserts that such an appro ach lacks the "objectivity" required 
under Article 11.57 
26. China further argues that, in making recommenda tions regarding the "series of measures" 
with a prospective life extended through annual repl acement measures, the Panel acted inconsistently 
with Article 19.1 of the DSU.58  In China's view, there is a textual link between a panel's terms of 
                                                      
53China's appellant's submission, para. 137 (referring to Appellate Body Report, Chile – Price Band 
System , para. 168;  Appellate Body Report, India – Patents  (US) , para. 92;  Appellate Body Report, US – 
Carbon Steel , paras. 172-174;  Panel Report, US – Continued Zeroing , para. 7.63;  and Appellate Body Report, 
US – Gambling , para. 281). 
54China's appellant's submission, para. 137 (referring to Appellate Body Report, India – Patents (US) , 
para. 92). 
55China's appellant's submission, paras. 141-143. (emphasis omitted) 
56China's appellant's submission, paras. 145 and 146. 
57China's appellant's submission, para. 146. 
58China's appellant's submission, para. 153. WT/DS394/AB/R 
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  reference under Article 7.1, its duty to make an objective assessment under Article 11, and its 
authority to make recommendations under Article 19.1.  Specifically, the measures that may be the subject of recommendations under Article 19.1 are the same measures to which Articles 7.1 and 11 
refer, that is, the measures included in the panel's te rms of reference.  China highlights that the Panel 
made recommendations regarding a "so-called 'series of measures'", attributing to this concept an 
"ongoing legal character stretching into the future", despite the fact that the complainants had argued 
that no recommendations could or should be made regarding annual replacement measures.  China 
also notes that the complainants never argued that  the export duty and export quota measures at issue 
in this dispute have prospective app lication through annual replacement measures.
59 
27. China also takes issue with the Panel's c onclusion that it could make recommendations 
extending to annual replacement me asures in order to "ensure that the dispute settlement system 
functions efficiently in resolving disputes".60  Referring to Articles 3.4 and 3.7 of the DSU, the Panel 
was "concerned" that, if it did not address annua l replacement measures, it would not effectively 
resolve the dispute.61  However, since the complainants ha d decided to exclude annual replacement 
measures from the dispute, there was no dispute to resolve regarding annual replacement measures.  
Past disputes, including US – Continued Zeroing , show that the WTO dispute settlement system is 
"perfectly effective" in resolving disputes re garding measures with general and prospective 
application.62  China asserts that there is a crucial di fference between such disputes and the present 
one, in which the complainants "actively decided to  exclude" annual replacem ent measures from the 
dispute.63  Since the complainants were "well aware" that they could pursue a claim against annual 
replacement measures, but chose not to, the comp lainants must bear the consequences of their 
decision.64 
3. Applicability of Article XX of the GATT 1994  
28. China alleges various errors in the Panel's anal ysis and requests the Appellate Body to reverse 
the Panel's finding that China may not seek to just ify export duties found to be inconsistent with 
Paragraph 11.3 of China's Accession Protocol  pursuant to Article XX of the GATT 1994.  
Specifically, China contends that the Panel erred in determining that there is "no textual basis" in 
China's Accession Protocol for its right to invoke Article XX in defence of a claim under 
                                                      
59China's appellant's submission, para. 152. 
60China's appellant's submission, para. 160 (quoting Panel Reports, para. 7.30). 
61China's appellant's submission, para. 161. 
62China's appellant's submission, para. 164. 
63China's appellant's submission, para. 165. (emphasis omitted) 
64China's appellant's submission, para. 166.  WT/DS394/AB/R 
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  Paragraph 11.3.
65  According to China, the Panel's findi ng that Paragraph 11.3 excludes recourse to 
Article XX of the GATT 1994 was based on the Panel's erroneous assumption that the absence of language expressly granting the right to regulate trad e in a manner consistent with Article XX means 
that China and other Members intended to deprive China of that right. 
(a) Paragraph 11.3 of China's Accession Protocol 
29. China observes that Paragraph 11.3 of its Acc ession Protocol requires that it eliminate export 
taxes and charges, unless they are specifically provided  for in Annex 6 thereto or applied consistently 
with Article VIII of the GATT 1994.  As such, the ob ligation under Paragraph 11 .3 is first "qualified" 
by Annex 6 of China's Accession Protocol, which provides a schedule of the maximum export duty rates applicable to 84 products, along with a Note th at "sets forth an exception to China's obligations 
regarding export duties".
66  At the Panel stage, the European Union claimed that China had violated 
its obligations under Annex 6 "by fa iling to consult with affected Members prior to the imposition of 
export duties on particular forms of bauxite, c oke, fluorspar, magnesium, manganese, silicon metal 
and zinc, none of which is among th e 84 listed products in Annex 6".67  China further emphasizes that 
the Panel ruled in favour of the European Union, co ncluding that China has acted inconsistently with 
its obligations under Annex 6 because it failed to cons ult with other affected WTO Members prior to 
imposing export duties on these products.68  Highlighting that none of the products subject to the 
European Union's claim is included in the Annex 6 schedule, China argues that  the European Union's 
claim and the Panel's ruling necessarily mean that "t he exception in Annex 6 permits China to impose 
export duties on all products, provided there are 'excep tional circumstances', and that China consults 
with affected Members."69 
30. China argues that the reference to "exceptiona l circumstances" in the Note to Annex 6 
demonstrates a "substantive overlap" between the sc opes of the exceptions set forth in Annex 6 to 
China's Accession Protocol and Article XX of the GATT 1994, respectively.70  Although the Note 
does not prescribe the specific circumstances in which the Annex 6 exception would apply, the 
ordinary meaning of "exceptional" establishes that these circumstances "must be unusual and 
                                                      
65China's appellant's submission, para. 190. 
66China's appellant's submission, para. 212. 
67China's appellant's submission, para. 213 (referring  to European Union's first written submission to 
the Panel, paras. 254, 258, 262, 266, 270, 274, 278, 282, 286, 290, 294, 298, 302, 306, and 310). 
68China's appellant's submission, para. 214. 
69China's appellant's submission, para. 215. 
70China's appellant's submission, para. 216. WT/DS394/AB/R 
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  special".
71  China asserts that the circumstances provided in the various subparagraphs of Article XX 
are "exceptional" within the meaning of the Note to Annex 6 because they allow a Member to depart 
from an "affirmative obligation", and because the ci rcumstances enumerated in Article XX "are both 
unusual and special".72  This demonstrates that the obligation to eliminate export duties is "not 
absolute" and "unqualified", and that China has "ret ained its inherent right to regulate trade using 
export duties to promote non-trade interests in 'exceptional circumstances'".73  China adds that, by 
allowing China to adopt otherwise WTO-inconsiste nt export duties in "exceptional circumstances", 
the Note to Annex 6 demonstrates China's and othe r WTO Members' shared intent that China may 
have recourse to the "exceptional circumstances" set out in Article XX to justify export duties.  China 
also argues that the Panel's finding  that a "provision-specific" excep tion in Paragraph 11.3 of China's 
Accession Protocol precludes the applicability of Article XX is erroneous, because it is not 
"uncommon" to find provision-specific exceptions coupl ed with a right of recourse to more general 
exceptions, as in Article XI:2 of the GATT 1994.74 
31. China claims that the reference to Article VIII of the GATT 1994 in Paragraph 11.3 of its 
Accession Protocol confirms the applicability of Ar ticle XX of the GATT 1994.  China reasons that 
Paragraph 11.3 requires that export ta xes and charges be applied in c onformity with the provisions of 
Article VIII of the GATT 1994.  According to China, "[i]f they are not, the measure violates both 
Paragraph 11.3 and Article VIII."75  For China, "[i]n the event that a measure violates Article VIII of 
the GATT 1994, it may, of course, be justifie d under Article XX of the GATT 1994", such that 
"[China] is not deprived of its right to justify a measure that violates Article VIII through recourse to 
Article XX simply because a complainant chooses to  bring a claim under Paragraph 11.3" of China's 
Accession Protocol.76  In China's view, the fact that Article VIII applies to certain export charges and 
fees covered by Paragraph 11.3, and not specifically to export duties, does not render the reference to 
Article VIII irrelevant, as the reference shows that the obligations under Paragraph 11.3 are not 
absolute and unqualified, and that China did not agr ee to abandon its right to resort to Article XX. 
(b) Context from the WTO Agreement 
32. China asserts that, by virtue of Paragraph 34 2 of China's Accession Working Party Report 
and Paragraph 1.2 of its Accession Protocol, Para graph 170 of the Accession Working Party Report 
                                                      
71China's appellant's submission, para. 216. 
72China's appellant's submission, para. 218. 
73China's appellant's submission, para. 219. (emphasis omitted) 
74China's appellant's submission, para. 222. 
75China's appellant's submission, para. 224. 
76China's appellant's submission, paras. 224 and 225.  WT/DS394/AB/R 
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  and Paragraph 11.3 of Chin a's Accession Protocol are on an "equ al legal footing", and are "integral 
parts" of the same accession agreement, as well as the WTO Agreement .
77  In China's view, the fact 
that the title of the subsection of China's Acce ssion Working Party Report under which Paragraph 170 
falls and the title of the provision that includes Pa ragraph 11.3 of its Accession Protocol are "exactly 
the same" provides a "powerful textual indication" that the subject matter of Paragraph 11.3 and 
Paragraph 170 overlap.78  Since both provisions apply to "'taxe s' and 'charges' on 'exports'", the use of 
identical language suggests that there is a "very c onsiderable overlap" between the measures to which 
the provisions apply and that they impose "cumul ative obligations" with respect to "taxes and 
charges".79 
33. Referring to the ordinary meaning of the term s "taxes" and "charges", and the substantive 
overlap between Paragraph 11.3 a nd Paragraph 170, China disagrees with the Panel's conclusion that 
Paragraph 170 does not apply to export duties, wher eas Paragraph 11.3 does.  In so finding, the Panel 
erred in relying on Paragraph 155 and Paragraph 156 of China's Accession Working Party Report, 
which, the Panel found, deal with export duties a nd do not incorporate Article XX of the GATT 1994.  
Unlike Paragraph 170, Paragraphs 155 and 156 are not incorporated into Chin a's Accession Protocol 
and are, therefore, of "secondary importance" in  interpreting the scope of China's obligations.80 
34. China also takes issue with the Panel's reasoni ng that Paragraph 170 does not apply to export 
duties because it applies to domestic taxes.  Ch ina argues that, similar to Paragraph 11.3, 
Paragraph 170 refers to  "'taxes' and 'charges' in relation to ' exports '", and that neither provision refers 
to "domestic " or " internal " taxes and charges.81  Although section IV.D of China's Accession Working 
Party Report, of which Paragraph 170 is a part, d eals with "internal policies", the heading of the 
subsection under which Paragraph 170 falls (IV.D.1.) is "Taxes and Charges Levied on Imports and 
Exports".82  Finally, China argues that Paragraph 171, dealing with subsidies contingent on 
exportation, shows that this subsection "may deal with" export duties.83 
35. China disagrees with the Panel's finding that Paragraph 170 essentially repeats the 
commitments existing under certain GATT 1994 rules.  The text of Paragraph 170 indicates that its 
commitments therein extend to all of its "WTO obligations", including, but not limited to, those 
                                                      
77China's appellant's submission, para. 230. 
78China's appellant's submission, para. 232. (emphasis omitted) 
79China's appellant's submission, para. 233. (emphasis omitted) 
80China's appellant's submission, para. 237. 
81China's appellant's submission, para. 239. (original emphasis) 
82China's appellant's submission, para. 239. (emphasis omitted) 
83China's appellant's submission, para. 239. WT/DS394/AB/R 
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  imposed by the GATT 1994.
84  The phrase "WTO obligations" in Paragraph 170 includes obligations 
under Paragraph 11.3 of China's Accession Protocol .  If export duties are inconsistent with its 
obligations under Paragraph 11.3, they are also in consistent with Paragraph 170.  Based on this 
observation, China argues that "any flexibilities that Paragraph 170 affords to China to adopt 
otherwise WTO-inconsistent export 'taxes' and 'c harges' must extend equally to Paragraph 11.3."85 
36. China highlights that the Panel appeared "to agree that the language in Paragraph 170 permits 
recourse to Article XX", at least in the context of Paragraphs 11.1 and 11.2 of China's Accession 
Protocol.86  Specifically, the Panel's findings that the inclusion of the phrase "shall be in conformity 
with the GATT 1994" in Paragraphs 11.1 and 11.2, a nd its "deliberate exclusion" in Paragraph 11.3, 
"reflected 'agreement'" that Article XX does not apply to Paragraph 11.3, are significant since they 
"demonstrate the Panel's acceptance" that  such language incorporates Article XX.87  H o w e v e r ,  i n  
China's view, if such language can incorporate Arti cle XX into Paragraphs 11.1 and 11.2, "the same 
language" in Paragraph 170 must also be "sufficient" to incorporate Article XX.88  China asserts that a 
harmonious interpretation of Paragra ph 11.3 and Paragraph 170 "dictates" that, if an export duty is in 
full conformity with China's obligations under Artic le XX pursuant to Paragraph 170, it "must also be 
in full conformity" with China's obligations under Paragraph 11.3.89 
37. China takes issue with the Panel's reasoning un der which "China must eliminate export duties 
pursuant to Paragraph 11.3, even if these duties serve legitimate public health or conservation 
goals."90  China argues that the Panel's approach is c ontrary to the text, context, and object and 
purpose of the WTO Agreement  and "leads to an absurd outcome".91  Interpreting Paragraph 11.3 of 
China's Accession Protocol "to mean that China h as abandoned the right to impose export duties in a 
manner consistent with Article XX of the GATT 1994, as the Panel did, is irreconcilable with the fact 
that", under Article XI:1, China can impose expor t quotas in a manner consistent with Article XX.92  
China adds that, "[i]f the Panel's interpretation we re accepted, China could not impose, for example, 
an export duty in a manner consistent with Artic le XX of the GATT 1994, whereas it could justify 
under Article XX an export quota on the same goods, and with equivalent trade restrictive and welfare 
                                                      
84China's appellant's submission, para. 244. 
85China's appellant's submission, para. 246. 
86China's appellant's submission, para. 255. (emphasis omitted) 
87China's appellant's submission, paras. 256 and 257. (emphasis omitted) 
88China's appellant's submission, para. 257. 
89China's appellant's submission, para. 259. 
90China's appellant's submission, para. 268. 
91China's appellant's submission, paras. 268 and 269. 
92China's appellant's submission, para. 269.  WT/DS394/AB/R 
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  effects."
93  Further, the preamble of the WTO Agreement confirms that obligations in the covered 
agreements, such as Paragraph 11.3 of China's Accession Protocol,  do not impose absolute 
prohibitions on the right to regulate trade.  Chin a considers that Members are entitled to regulate 
trade, for example, "through export duties, for the purpose of pursuing the objectives set forth in the 
Preamble, provided they do so in conformity with the requirements in Article XX of the 
GATT 1994".94 
(c) The Inherent Right to Regulate Trade 
38. China argues that, "like any other State" , it enjoys the right to regulate trade.95  Referring to 
the Appellate Body report in China – Publications and Audiovisual Products , China asserts that such 
a right to regulate trade is an "inherent right" vested in States, and "not a 'right bestowed by 
international treaties such as the WTO Agreement '".96  China further argues that the preamble of the 
WTO Agreement recognizes that the WTO covered agreements , including China's Accession Protocol, 
"preserve the basic disciplines underlying the multilat eral trading system, which includes respect for  
the inherent right to regulate trade".97  In acceding to the WTO, Memb ers agree to exercise their 
inherent right in conformity with disciplines set out  in the covered agreements, either by complying 
with affirmative obligations or with the "obligatio ns attaching to an exception, such as those included 
in Article XX".98  China also refers to the texts of th e first recital of the preamble of the Agreement on 
the Application of Sanitary and Phytosanitary Measures  (the " SPS Agreement "), the sixth recital of 
the preamble of the Agreement on Technical Barriers to Trade  (the " TBT Agreement "), the preamble 
of the Agreement on Import Licensing Procedures  (the " Import Licensing Agreement "), the fourth 
recital of the preamble of the General Agreement on Trade in Services  (the "GATS"), and the 
preamble and Article 8.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights  
(the " TRIPS Agreement ") to argue that, by acceding to the WTO, Members preserve their right to 
regulate trade to achieve legitimate objectives.99 
39. In China's view, the appropriate interpretative question is whether Paragraph 11.3 of China's 
Accession Protocol explicitly excludes this right a nd not whether the language explicitly reaffirms this 
                                                      
93China's appellant's submission, para. 269. 
94China's appellant's submission, para. 270. 
95China's appellant's submission, para. 275. 
96China's appellant's submission, para. 275 (quoting Appellate Body Report, China – Publications and 
Audiovisual Products , para. 222;  and referring to Panel Report, Argentina – Hides and Leather , para. 11.98). 
97China's appellant's submission, para. 276. 
98China's appellant's submission, para. 278. 
99China's appellant's submission, para. 281. WT/DS394/AB/R 
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  right.  China's Accession Protocol  and Accession Working Party Report  contain no language showing 
that China "abandon[ed]" its inherent right to regulate trade to promote fundamental non-trade 
objectives.  Instead, its accession commitments  "indicate" that it retains this right.
100  C h i n a  
emphasizes that its interpretation of Paragraph 11.3 does not mean that China can evade its WTO 
obligations, as it still must demonstrate complia nce with the "conditions and limitations" of 
Article XX of the GATT 1994.101  According to China, the "sugges tion" that an "inherent power" can 
be denied "unless expressly re-affirmed" is contrary to the "harmonious interpretation" of the covered 
agreements required by the Appellate Body.102  Moreover, "[a]ny such suggestion turns inherent 
rights  into acquired  rights, autonomy into heteronomy , and the  single undertaking into a series of 
detached  agreements".103  China further alleges that the Panel' s interpretation distorts the balance of 
rights and obligations that were estab lished when China acceded to the WTO. 
4. Article XI:2(a) of the GATT 1994 
40. China requests the Appellate Body to reverse the Panel's interpretation and application of 
Article XI:2(a) of the GATT 1994 reached as part of the Panel's finding that China had not 
demonstrated that its export quota on refractory-gr ade bauxite is temporarily applied to prevent or 
relieve a critical shortage.104  In particular, China alleges that th e Panel erred in its interpretation and 
application of the term "temporarily" and in its inte rpretation of the term "critical shortages", because 
it effectively excluded from the scope of the pr ovision export restrictions on non-renewable, 
exhaustible natural resources.  In addition, China alleges that the Panel failed to make an objective 
assessment of the matter as required by Article 11 of the DSU. 
41. First, with respect to the Panel's interpretati on of the term "temporarily", China agrees with 
the Panel's finding that the word "temporarily" "sug gest[s] a fixed time-limit for the application of a 
measure".105  The Panel, however, subseque ntly "adjusted" its interpreta tion of the term "temporarily" 
to exclude the "long-term" application of export restri ctions, by stating that Article XI:2(a) could not 
be interpreted "to permit the long-te rm application of … export restri ctions" or to "permit long-term 
                                                      
100China's appellant's submission, para. 286. 
101China's appellant's submission, para. 288. 
102China's appellant's submission, para. 291 (referring to Appellate Body Report, Argentina – Footwear 
(EC) , para. 81;  Appellate Body Report, India – Patents (US) , para. 45;  Appellate Body Report, Japan – 
Alcoholic Beverages II , p. 12, DSR 1996:I, 97, at 106;  Appellate Body Report, Korea – Dairy , para. 81;  and 
Appellate Body Report, US – Gasoline , p. 25, DSR 1996:I, 3, at 23). 
103China's appellant's submission, para. 291. (original emphasis) 
104In particular, China refers to paragraphs 7.257, 7.258, 7.297-7.302, 7.305, 7.306, 7.346, 7.349, 
7.351, 7.354, and 7.355 of the Panel Reports. (China's appellant's submission, paras. 299 and 388) 
105China's appellant's submission, para. 335 (quoting Panel Reports, para. 7.255).  WT/DS394/AB/R 
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  measures to be imposed".
106  The Panel's approach suggests that  Article XI:2(a) imposes an absolute 
limit on the length of time an export restriction may be imposed.  China, however, maintains that the 
words "to prevent or relieve" in Article XI:2(a) s uggest that the term "temporarily" does not mark a 
"bright line" moment in time after which an export restriction has necessarily been maintained for too 
long.107  Instead, whether an export restriction is applied "temporarily" depends on the period of time 
required to prevent or relieve the critical shortage.  China also argues that the Panel erred in finding 
that Article XI:2(a) and Article XX(g) are mutually exclusive, and contends th at this finding was the 
basis for the Panel's erroneous interpretation of th e term "temporarily" in Article XI:2(a).  China 
submits that the two provisions are not mutu ally exclusive, but apply cumulatively. 
42. Second, with regard to the Panel's application of the term "temporarily", China alleges that 
the Panel failed to take into consideration the fact  that China's export restrictions on refractory-grade 
bauxite are subject to annual review.  China fau lts the Panel for "simply assum[ing]" that China's 
restriction on exports of refractory-grade bauxite will be maintained indefinitely.108  China submits 
that, at the close of each year, the factual circumstan ces are assessed in the light of the legal standard 
set forth in Article XI:2(a) to establish whethe r the export restriction should be maintained. 
43. Third, China maintains that the Panel erred in its  interpretation of the term "critical shortages" 
as excluding shortages caused by the "finite" na ture or "limited reserve[s]" of a product.109  China 
agrees with the Panel's interpretation of the term "critical shortages" as meaning a deficiency in 
quantity "involving suspense or grave fear", of "decisive importance".110  China alleges, however, that 
the Panel erred in excluding from the scope of Article  XI:2(a) shortages caused by the limited, finite, 
or exhaustible nature of the product.  China main tains that, had the drafters intended to limit the 
applicability of Article XI:2(a) to renewable re sources, such as "foodstuffs", they would have 
indicated that by employing the term "other renewa ble products", instead of "other products", or by 
explicitly excluding "exhaustib le natural resources" from the scope of Article XI:2(a).111  For China, 
the Panel's interpretation leads to "absurd" distin ctions, because Article XI:2(a) cannot be used to 
justify export restrictions on exhaustible natural re sources, such as bauxite, but it could be used to 
                                                      
106China's appellant's submission, para. 336 (quoting Panel Reports, paras. 7.298 and 7.305;  and 
referring to para. 7.349). 
107China's appellant's submission, para. 340. 
108China's appellant's submission, para. 349 (quoting the Panel's statement at paragraph 7.350 of its 
Reports that there is "every indication that [China's restriction on exports of refractory-grade bauxite] will 
remain in place until the rese rves have been depleted"). 
109China's appellant's submission, para. 356 (quoting Panel Reports, paras. 7.297 and 7.305). 
110China's appellant's submission, para. 357 (quoting Oxford English Dictionary Online , 2nd edn 
(Oxford University Press, 1989) (Panel Exhibit CHN-189)). 
111China's appellant's submission, paras. 361 and 362. (emphasis omitted) WT/DS394/AB/R 
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  justify restrictions concerning natural res ources that can be renewed, such as wheat.
112  In China's 
view, the fact that a product cannot be renewed ma y exacerbate the consequences of a shortage, thus 
making it particularly important to impose a restriction that will alleviate the shortage. 
44. China alleges that the Panel committed an additi onal error in its interpretation of "critical 
shortage" by assuming that there is no possibility for an existing shortage of an exhaustible natural 
resource ever to cease to exist, and that, therefore, it would never be possible to "relieve or prevent" 
the shortage through an export restriction applied on a temporary basis.113  China submits that a 
shortage of an exhaustible natu ral resource could cease to exist independently from depletion, for 
instance, where additional reserves or new extraction methods are discovered, or where substitutes or 
new technologies replace the product.  China adds th at, elsewhere in its analysis, the Panel recognized 
that shortages of exhaustible natural resources ar e not inevitable, and that advances in reserve 
detection or extraction techniques could alleviate or  eliminate a shortage of an exhaustible natural 
resource. 
45. Finally, China advances two separate claims th at the Panel failed to make an objective 
assessment of the matter pursuant to Article 11 of the DSU.  First, the Panel failed to assess properly 
evidence that China's export restriction on refractory- grade bauxite is annually reviewed and renewed.  
China submits that evidence relati ng to China's annual review procedure demonstrates that the export 
restriction will be maintained only as long as justifie d to prevent or relieve the critical shortage of 
refractory-grade bauxite.  For China, this eviden ce shows that the Panel erred in assuming that the 
restriction "will remain in place until the reserves have been depleted".114  Second, China asserts that 
the Panel employed internally inconsistent or inc oherent reasoning in stating, on the one hand, that 
"there is no possibility for an existing shortage [of an exhaustible natural resource] ever to cease to 
exist" such that "it will not be possible to 'relieve  or prevent' it through an export restriction applied on 
a temporary basis"115 and acknowledging, on the other hand, that "advances in reserve detection or 
extraction techniques", or the availability of "add itional capacity", could "alleviate or eliminate" a 
shortage of an exhaustible natural resource, or  that "new technology or conditions" might "lessen 
demand" for the resource.116 
                                                      
112China's appellant's submission, para. 363. 
113China's appellant's submission, para. 366 (quoting Panel Reports, para. 7.297). 
114China's appellant's submission, para. 355 (quoting Panel Reports, para. 7.350). 
115China's appellant's submission, para. 373 (referring to Panel Reports, para. 7.297). (emphasis added 
by China omitted) 
116China's appellant's submission, para. 373 (referring to Panel Reports, paras. 7.348 and 7.351).  WT/DS394/AB/R 
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  5. Article XX(g) of the GATT 1994 
46. China had also contended before the Panel that , even if its quotas on refractory-grade bauxite 
did not fall within the exception of Article XI:2(a ), the quotas could be justified under Article XX(g) 
of the GATT 1994.  However, the Panel found that Ch ina had not demonstrated that its quotas met the 
requirements of Article XX(g).  China requests the Appellate Body to find that the Panel erred in 
interpreting the phrase "made effective in conjunc tion with" in Article XX(g) of the GATT 1994 to 
mean that, in order to be justified under Artic le XX(g), a challenged measure must satisfy two 
cumulative conditions:  first, it must "be applied jointly with" restrictions on domestic production or 
consumption;  and, second, the "purpose" of the challenged measure must be to make effective 
restrictions on domestic production or consumption.117  China argues that the second element of the 
Panel's interpretation is inconsis tent with the ordinary meaning of the phrase "made effective in 
conjunction with".  China, however, does not appeal  the Panel's ultimate conclusion that China has 
not demonstrated that its export quota on refract ory-grade bauxite is justified pursuant to 
Article XX(g). 
47. China submits that the Appellate Body's interp retation of the term "i n conjunction with" in 
US – Gasoline  corresponds to the first element of the Panel's interpretation of that phrase, namely that 
the challenged measures "be applied jointly with " restrictions on do mestic production or 
consumption.118  However, nothing in the phrase "made e ffective in conjunction with" suggests that 
the "purpose" of a challenged measure must be to ensure the effectiveness of domestic restrictions.119  
Instead, China contends that a measure restricting international trade must operate together with 
restrictions on domestic production or consumption, with both sets of restrictions forming part of a 
policy relating to the conservation of the resource in question. 
6. Prior Export Performance and Minimum Capital Requirements 
48. China appeals the Panel's finding that Paragraphs  1.2 and 5.1 of China's Accession Protocol, 
read in combination with Paragraphs 83(a), 83(b) , 83(d), 84(a), and 84(b) of China's Accession 
Working Party Report, require China to eliminat e any examination and approval system for WTO-
consistent export quotas operated after 11 December 2004, including prior export performance and 
minimum registered capital requirements.  China a lleges various errors in the Panel's analysis.  
                                                      
117China's appellant's submission, para. 390 (quoting Panel Reports, para. 7.397). 
118China's appellant's submission, paras. 404-406 (referring to Appellate Body Report, US – Gasoline , 
pp. 22-23, DSR 1996:I, 3, at 20-21). 
119China's appellant's submission, para. 407. WT/DS394/AB/R 
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  49. Referring to the Appellate Body report in China – Publications and Audiovisual Products , 
China argues that the introductory phrase to Pa ragraph 5.1 means that China's trading rights 
obligations cannot "affect, encroach upon, or impair " its right to regulate trade in a WTO-consistent 
manner.
120  In particular, Paragraph 5.1 entitles it to adopt export quotas that are contrary to 
Article XI:1 of the GATT 1994, as long as they are justified under an exception such as Article XI:2 
or XX of the GATT 1994.  Paragraph 5.1 also entitles China to administer export quotas through an examination and approval system, including quot a allocating criteria, provided that the system 
complies with the relevant WTO disciplines.  China emphasizes that it "is not obliged by its accession 
commitments to abandon its WTO-consistent regula tion of its export trade in order to confer upon 
traders an unfettered right to export".
121 
50. China further observes "that the authority of WTO Members to use prior export performance 
as a criterion in allocating import and export quot as is supported by the text of the covered 
agreements".122  In particular, Article 3.5(j) of the Import Licensing Agreement  "not only affirms the 
right of a Member to take account of prior import performance in allocating import licenses, it 
expressly requires  that such performance be considered".123  Paragraph 130(a)(ii) of China's 
Accession Working Party Report  also explicitly refers to "historical performance" as a criterion for 
quota allocation.124  Further, Article XIII:2(d) of the GA TT 1994 describes the ci rcumstance in which 
quotas may be allocated among Members "based upon th e proportions, supplied by such Members 
during a previous representative period, of the tota l quantity or value of imports of the product".125  
The Appellate Body has stated that this provision allows quota allocation by supplying countries "in 
accordance with the proportions supplied by those Members during a previous representative period, 
taking due account of 'special factors'".126  According to China, Article XIII:2(d), "therefore, also 
supports the view that past trading performance is a relevant consideration in deciding to whom to 
allocate shares of a quota".127  
                                                      
120China's appellant's submission, para. 441 (quoting Appellate Body Report, China – Publications and 
Audiovisual Products , para. 219). 
121China's appellant's submission, para. 456. (original emphasis) 
122China's appellant's submission, para. 463. 
123China's appellant's submission, para. 464. (original emphasis) 
124China's appellant's submission, para. 464.  Paragraph 130(a)(ii) of China's Accession Working Party 
Report  is included in China's Accession Protocol  and is an integral part of the WTO Agreement  by virtue of 
Paragraph 342 of China's Accession Working Party Report  and Paragraph 1.2 of China's Accession Protocol . 
125China's appellant's submission, para. 465. 
126China's appellant's submission, para. 465 (quoting Appellate Body Reports, EC – Bananas III 
(Article 21.5 – Ecuador II)/EC – Bananas III (Article 21.5 – US) , para. 338). 
127China's appellant's submission, para. 465.  WT/DS394/AB/R 
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  51. In China's view, minimum registered capital a nd prior export performance requirements serve 
important purposes, such as, ensuring that exporte rs are financially sound and have the necessary 
means to engage in export trade.  China recognizes that, in the "ordinary course" of trade, it is 
required to grant the right to trade to all enterpri ses;  however, "in the exceptional event" that it can 
maintain an export quota for a particular product,  China submits that it may establish quota allocation 
rules that restrict the right to trade, provided th at such rules are not inconsistent with the WTO 
disciplines applicable to such measures.
128 
52. China further argues that the Panel misinterpreted the text of Paragraph 83(b) of China's 
Accession Working Party Report in finding that it "directs China to eliminate any 'examination and 
approval system' within three years of accession, including specifically the elimination of minimum 
registered capital requirements".129  China reasons that the final sentence of Paragraph 83(b) applies to 
the particular examination and approval process for Ch inese-invested enterprises that is described in 
the first sentence of Paragraph 83(b), and that th e Panel erroneously gave Paragraph 83(b) such a 
broad scope of application as to prohibit any examination and approval system. 
7. China's "Operation Capacity" Criterion and Article X:3(a) of the GATT 1994 
53. China requests the Appellate Body to reverse the Panel's findings concerning the 
inconsistency of Article 19 of China's Export Quota Administration Measures  and the "operation 
capacity" criterion for quota allocation with Article X:3(a) of the GATT 1994.  China submits that, in 
reaching these findings, the Panel erred in its interpre tation and application of Article X:3(a) of the 
GATT 1994 and acted inconsistently with Article 11 of the DSU. 
54. According to China, the Panel erred in  interpreting the term "administer" in  Article X:3(a) to 
mean that WTO-inconsistent administration ari ses if a measure does not necessarily lead to, but 
merely poses, a "very real risk of" such administ ration.  For a claim under Article X:3(a) to succeed, 
the Appellate Body has required that the complainant prove that such legal instruments or the features 
of such administrative processes "necessarily lead to  a lack of uniform, impartial, or reasonable 
administration".130  However, under the Panel's standard, a violation would also be found "if the 
complaining party shows that the features of an ad ministrative process pose a very real risk to the 
                                                      
128China's appellant's submission, para. 468. 
129China's appellant's submission, para. 469 (quoting Panel Reports, para. 7.655). (emphasis added by 
China) 
130China's appellant's submission, para. 639 (referring to Appellate Body Report, EC – Selected 
Customs Matters , paras. 201 and 226;  and referring to Panel Report, Thailand – Cigarettes (Philippines) , 
paras. 7.873, 7.909, and 7.929). WT/DS394/AB/R 
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  interests of the relevant parties".
131  For China, there is a signi ficant difference between the two 
standards, given than an administrative process that  creates a risk to a trader's interests does not 
"necessarily lead to" WTO-inconsistent administrati on.  China emphasizes that a theoretical risk, 
possibility, or danger of a WTO Member choosing a WTO-inconsistent course of action that is not 
mandated by the measure is not sufficient to sup port a finding that the measure "as such" is 
inconsistent with Article X:3(a), absent evidence that  the measure has been interpreted and applied in 
a WTO-inconsistent manner.  Yet, several of the Pa nel's statements demonstrate that the Panel "based 
its findings on the mere risk or possibility that China might administer the 'operation capacity' 
criterion in a manner that violates Article X:3(a)".132  China adds that the Panel did not find that the 
"operation capacity" criterion "necessarily leads to" WTO-inconsistent administration.  Nor did it have before it evidence demonstrating the WTO- inconsistent application of the measure.  
Consequently, there was no basis for the Panel to  find that, where Chinese authorities exercise their 
discretion to interpret and apply the "operation capacity " criterion, they will do so in a manner that is 
inconsistent with Article X:3(a).  
55. China further asserts that the Panel acted inc onsistently with Article 11 of the DSU by 
finding, without a sufficient evidentiary basis, th at the "operation capacity" criterion is "as such" 
inconsistent with Article X:3(a)  of the GATT 1994.  China points out that the Panel itself found that 
the term "operation capacity" was "vague" and "undef ined", and that the European Union provided no 
evidence of the WTO-inconsistent appl ication by China of the criterion.
133  Further, the Panel had no 
other evidence as to the operation of the measure, such as pronouncements of  domestic courts on the 
meaning of such laws, or the opinions of legal experts.  China asserts that every WTO Member is 
entitled to the presumption that its authorities will ac t in accordance with its WTO obligations.  China 
alleges that the Panel reversed this presump tion by assuming that the Chinese authorities would 
interpret and apply the "operation capacity" re quirement in a WTO-inconsistent manner. 
8. China's Export Licensing Requirements and Article XI:1 of the GATT 1994 
56. China requests the Appellate Body to reverse the Panel's finding that Article 11(7) of China's 
Measures for the Administration of Licence for the Export of Goods134 (the " 2008 Export Licence 
                                                      
131China's appellant's submission, para. 640 (quoting Panel Reports, para. 7.708 (original emphasis 
omitted)). 
132China's appellant's submission, para. 669. (emphasis omitted) 
133China's appellant's submission, para. 680 (quoting Panel Reports, para. 7.710 and footnote 1059 
thereto). 
134Measures for the Administration of Licence for the Export of Goods, Order of the Ministry of 
Commerce (2008) No. 11, 1 July 2008 (Panel Exhibits CHN-342 and JE-74).  WT/DS394/AB/R 
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  Administration Measures "), and Articles 5(5) and 8(4) of China's Working Rules on Issuing Export 
Licences
135 (the " 2008 Export Licensing Working Rules "), as applicable to export licences granted to 
applicants to export bauxite, coke, fluorspar, manga nese, silicon carbide, and zinc, are inconsistent 
with Article XI:1 of the GATT 1994.136 
57. China submits that the Panel erred in interpreting the term "restriction" in Article XI:1 of the 
GATT 1994 to prohibit a measure "as such", based  on the theoretical possibility that an export 
restriction might arise from the interpretation and application of undefined terms in the measure, 
absent evidence that the m easure has been applied in a WTO-inconsistent manner.  Referring to the 
dictionary meaning of the word "restriction", Ch ina argues that not all regulation of imports and 
exports constitutes a "restriction".  To China, the u se of the term "quantitative restriction" in the title 
of Article XI suggests that Article XI covers only those restrictions that have a "limiting effect" or 
impose a "'limiting condition' on the quantity  of exports".137  China submits that such a limiting effect 
on the quantity of exports cannot be assumed from the mere regulation of exports.  Rather, a panel 
must examine the design, structure, and operation of the measure in order to assess whether it does indeed limit the quantity of exports. 
58. In the case of licensing requirements, China argues that the Import Licensing Agreement  
provides context to assist in identifying the divi ding line between permissible and impermissible 
regulation under Article XI:1 of the GATT 1994.  The fact that the Import Licensing Agreement 
imposes disciplines on licensing, without prohibiting it, underscores that licensing requirements are not a priori impermissible.  China agrees with the Panel that the determination of whether a 
documentary requirement constitutes a restriction tu rns on the "nature" of the document required, and 
whether that documentary requirement has a limiting effect.
138 
59. China maintains that the object and purpose unde rlying Article XI:1 is to protect competitive 
opportunities rather than trade flows, and that pa nels and the Appellate Body have ensured this 
protection by permitting a challenge to a measure "as such", independent of its application.  China 
contends that the factual uncertainty surrounding th e "expected operation" of a measure does not alter 
the interpretation of the term "restriction" or the requirement for a complainant to demonstrate that a 
challenged measure gives rise to a "restriction".  Therefore, China argues, a complaining Member 
                                                      
135Working Rules on Issuing Export Licences, Minist ry of Commerce, Shangp eifa (2008) No. 398, 
9 October 2008 (Panel Exhibits CHN-344 and JE-97). 
136China's appellant's submission, para. 603 (referring to Panel Reports, paras. 7.921, 7.946, 7.948, 
7.958, 8.5(b), 8.8, 8.12(b), 8.15, 8.19(b), and 8.22). 
137China's appellant's submission, para. 539. (original emphasis) 
138China's appellant's submission, para. 543 (referring to Panel Reports, para. 7.917). WT/DS394/AB/R 
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  must establish that the action reasonably foreseen or  anticipated under the measure will, at least in 
defined circumstances, give rise to a limiting effect  or condition on the quantity of exports, and that 
the mere possibility that action to be taken under the measure might be WTO-inconsistent is not 
enough.  China submits that a measure that ma ndates and, therefore, necessarily leads to 
WTO-inconsistent conduct is "as such" WTO-inconsiste nt even if the measure affords an authority the 
discretion to apply, or not to apply, the measur e.  China, however, distinguishes such measures from 
measures with uncertain meaning in domestic law th at can always be interpreted and applied in a 
WTO-consistent manner.  The theoretical possibility that the authority could exercise its discretion by 
choosing a WTO-inconsistent meaning does not re nder the measure "as such" WTO-inconsistent. 
60. Turning to the application of Article XI:1  of the GATT 1994 to Article 11(7) of the 2008 
Export Licence Administration Measures  and Articles 5(5) and 8(4) of the 2008 Export Licensing 
Working Rules , China maintains that it was not sufficient for the Panel to rely on the theoretical 
possibility for a Chinese licen se-issuing authority to exercise "ope n-ended discretion" by interpreting 
and applying the measures in such a way as to impose a restriction on exports.
139  In China's view, its 
authorities could always choose a WTO-consistent course of action by requiring documents that do 
not entail a "restriction" on exportation.  Where an authority enjoys "discretion" to interpret and apply the licensing measures, in all in stances, in such a way that the required documents do not have a 
"limiting effect" or impose a "limiting condition" on exports, the theoretical possibility that an 
authority might exercise that discretion in a WTO-inconsistent manner does not constitute a 
"restriction" under Article XI:1, absent eviden ce that the measure has been applied in a 
WTO-inconsistent manner.
140 
61. China further submits that the Panel erred under Article 11 of the DSU because it had no 
evidentiary basis to find that the discretion to  request additional documents would constitute a 
prohibited "restriction" under Article XI:1.141  In particular, China contends that there is no evidence 
of any instance in which Chinese authorities "request ed the provision of an unspecified document that 
                                                      
139China's appellant's submission, para. 568. 
140China's appellant's submission, para. 533. 
141China's appellant's submission, p. 161, heading VIII.D.4.  China includes a ground of appeal under 
Article 11 of the DSU based on the Appellate Body's reco gnition "that it is often difficult to distinguish clearly 
between issues that are purely legal or purely factual, or are mixed issues of law and fact", and that "a failure to 
make a claim under Article 11 of the DSU on an issue that the Appellate B ody determines to concern a factual 
assessment may have serious consequences for the appe llant". (China's appellant's submission, p. 161, 
footnote 676 to heading VIII.D.4. (quoting Appellate Body Report, EC and certain member States – Large Civil 
Aircraft , para. 872))  WT/DS394/AB/R 
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  restricted exports".
142  China refers to evidence showing that export licences have always been granted 
on the production of documents specifi ed in China's licensing measures. 
B. Arguments of the United States and Mexico – Joint Appellees 
1. Article 6.2 of the DSU 
62. The United States and Mexico contend that the Panel correctly found that Section III of the 
complainants' panel requests complies with the requirements of Article 6.2 of the DSU.  The United States and Mexico request the Appellate Bo dy to uphold the Panel's finding in the Panel's 
preliminary ruling (second phase) and in the Panel Reports that Section III of the panel requests 
comply with Article 6.2 of the DSU, and to uphold all consequent fi ndings of inconsistency.
143 
63. The United States and Mexico disagree with China's contention that the Panel observed 
defects in Section III of the panel requests.  Rather, the fact that the Panel, in the preliminary ruling 
(first phase), reserved its decision on China's objecti ons under Article 6.2 of the DSU demonstrates 
that the Panel provisionally considered Section III of the panel requests to be sufficient to comply 
with Article 6.2.  The United States and Mexico find support for their contention in paragraphs 34 
and 35 of the Panel's preliminary ruling (first phase) ;  in particular, the Panel's statement that the 
"narrative paragraphs aim at explaining succinctly how and why some of the challenged measures at 
issue are inconsistent with some of the WTO principles".144  Furthermore, the Panel's statement in 
paragraph 46 of the Panel's prelimin ary ruling (first phase), where the Panel stated that it "reserves its 
decision" on China's objections under Article 6.2 of the DSU, supports the proposition that the Panel 
provisionally accepted that Section III of the panel requests comply with Article 6.2 of the DSU. 
64. For the United States and Mexico, the only additi onal information the Panel needed in order 
to make a definitive finding under Article 6.2 w as to determine, from the parties' first written 
submissions, whether China had suffered any prejudice in its ability to defend itself.  In addition, the 
United States and Mexico take issue with China's contention that the Panel used the complainants' 
later submissions to cure defects in Section III of  the panel requests.  The Panel questions following 
the first and second Panel meetings requesting the co mplainants to list all measures and the specific 
                                                      
142China's appellant's submission, para. 597. 
143In particular, paras. 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 
Reports. (See joint appellees' submission of the United States and Mexico, para. 59) 
144Joint appellees' submission of the United States and Mexico, para. 45 (quoting Panel's preliminary 
ruling (first phase), Panel Reports, Annex F-1, para. 35). (emphasis added by the United States and Mexico 
omitted) WT/DS394/AB/R 
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  WTO provisions each of the measures allegedly violate were not posed with any specific intentions 
regarding Section III of the panel requests, but rath er in order to clarify what recommendations the 
complainants were seeking with r espect to all the claims at issue in the dispute.  Thus, the Panel 
looked at the tables submitted by the complainants in order to confirm that China had not been 
prejudiced in the preparation of its defence. 
65. The United States and Mexico submit that Chin a mistakenly relies on the Appellate Body's 
statement in US – Oil Country Tubular Goods Sunset Reviews  that, in order to "present the problem 
clearly", a complainant must "plainly connect" th e challenged measures with the provisions of the 
covered agreements claime d to have been infringed.
145  In that dispute, the Appellate Body found that 
Argentina's panel request satisfied the requirements of Article 6.2, even though the link between the 
measures and the WTO obligations at issue was far less clear than in the panel requests at issue in the 
current dispute.  The United States and Mexico recall that they had identified before the Panel 
37 panel requests from previous disputes that follow the structure of Section III of the panel requests 
at issue in this dispute, and in none of th ose cases was the panel request found not to satisfy 
Article 6.2 of the DSU.  This demonstrates that Ch ina is advocating a "dramatically new approach to 
the interpretation of Article 6.2".146 
66. Finally, the United States and Mexico mainta in that the Panel respected the due process 
requirements contained in Article 6.2 of the DS U.  The Panel "took pains to assess whether the 
argumentation advanced by the [c]omplainants resu lted in any prejudice to China's ability to defend 
itself".147  Yet, China's argument that the complainants intended to advance "subsets of claims 
regarding subsets of measures", as well as the argum ent that the total combination of measures and 
legal provisions resulted in a large number of possibl e claims, demonstrate that China was more than 
"adequately notified", and was in fact "well aware" , of the claims the complainants could advance.148  
The United States and Mexico add that Article 6. 2 of the DSU does not require that every claim 
identified in a panel request be advanced. 
2. The Panel's Recommendations 
67. The United States and Mexico emphasize the limited scope of China's appeal, noting that 
China appeals only the Panel's recommendations "to the extent that [the] recommendation[s] apply to 
                                                      
145Joint appellees' submission of the United States and Mexico, para. 48 (quoting Appellate Body 
Report, US – Oil Country Tubular Goods Sunset Reviews , para. 162). 
146Joint appellees' submission of the United States and Mexico, para. 54. 
147Joint appellees' submission of the United States and Mexico, para. 55. 
148Joint appellees' submission of the United States and Mexico, para. 57.  WT/DS394/AB/R 
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  annual replacement measures", which China argues are outside the Panel' s terms of reference.
149  The 
Panel did not make recommendations on measures on which it had not made fi ndings, and it did not 
make a recommendation on annual replacement measu res adopted after the establishment of the 
Panel.  Instead, the Panel made findings and r ecommendations on the series of measures "in force at 
the date of panel establishment".150  According to the United States and Mexico, China's appeal could 
therefore "be dismissed on this basis alone".151 
68. The United States and Mexico further disagree with China's apparent position that the only 
way for them to challenge the future life of th e export duties and quotas at issue is by challenging 
China's replacement measures.  The United States and Mexico submit, however, that they do not have 
to challenge and obtain findings and recommendations against "replacement measures" in order for 
"future" measures to come within the scope of China's implementation obligation once the challenged 
measures have been found to be WTO-inconsistent.152  China's approach would "frustrate the aims of 
the dispute settlement system", as it would create the "moving target situation" against which the 
Appellate Body has cautioned.153  If no recommendations could be made in relation to an annual 
measure once it had been superseded, then trade measures imposed through annually recurring legal 
instruments could never be successfully challenged in WTO dispute settlement.  In the present case, 
the implication of China's position is that the DSB would be precluded from making any 
recommendations because the 2010 replacement measur es will have ceased to exist before the DSB 
could adopt the Panel's recommendations and rulings. 
69. The United States and Mexico also fault China fo r confusing the distinction between the basis 
on which a recommendation is made and the applica tion or effect of the recommendation once it has 
been made.  Contrary to China's assertion, they have not abandoned their right to obtain meaningful 
recommendations from this dispute settlement procee ding.  Instead, the United States and Mexico 
assert that they have consistently sought recommend ations on the measures found to be inconsistent 
as of the date of Panel establishment. 
                                                      
149Joint appellees' submission of the United States and Mexico, para. 80 (quoting China's appellant's 
submission, para. 99). 
150Joint appellees' submission of the United States and Mexico, para. 83 (quoting Panel Reports, 
para. 7.33(e)). 
151Joint appellees' submission of the United States and Mexico, para. 83. 
152Joint appellees' submission of the United States and Mexico, para. 86. 
153Joint appellees' submission of the United States and Mexico, para. 87. WT/DS394/AB/R 
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  3. Applicability of Article XX of the GATT 1994  
70. The United States and Mexico request the Appellate  Body to uphold the Panel's finding that 
China may not rely upon the exceptions contained in Article XX of the GATT 1994 to justify an 
inconsistency with its export duty commitments c ontained in Paragraph 11.3 of China's Accession 
Protocol.  Specifically, the Panel "correctly interp reted and applied" China's Accession Protocol based 
on the text of Paragraph 11.3 and Article XX and the relevant context, in conformity with a "key 
principle of treaty interpretation" contained in Article 31(1) of the Vienna Convention on the Law of 
Treaties154 (the " Vienna Convention ").155  Additionally, the Panel properly rejected China's arguments 
that an inherent right to regulate trade "appli es above and beyond the exceptions provided for in 
Paragraph 11.3".156 
(a) Paragraph 11.3 of China's Accession Protocol  
71. The United States and Mexico request the Appella te Body to uphold the Panel's interpretation 
of the "plain meaning" of Paragra ph 11.3 of China's Accession Protocol.157  China's argument that the 
two exceptions in Paragraph 11.3—for Annex 6 to th e Protocol, and for taxes and charges applied in 
conformity with Article VIII of the GATT 1994—"s omehow authorize" China to justify its export 
duties in excess of the maximum levels contained in  Annex 6, as well as export duties on products not 
listed in Annex 6, "misconstrue[s] the relevance" of these two exceptions.158  
72. Regarding China's argument that reference to "exceptional circumstances" in the Note to 
Annex 6 to China's Accession Protocol allows Ch ina to justify under Article XX of the GATT 1994 
export duties found to be inconsistent with Para graph 11.3 of the Protocol, the United States and 
Mexico assert that there is "no textual basis" for such a conclusion.159  The first sentence of the Note 
makes clear that China committed not to impose export duties on the 84 products listed in Annex 6 
above the maximum rates set out therein.  The sec ond and third sentences of the Note also impose an 
additional obligation upon China that, in the event that the applied rate for any of the 84 products 
listed in Annex 6 is less than the maximum rate , China cannot raise the applied rate except in 
"exceptional circumstances", and only after consulting with the affected Members.  In the light of 
China's acceptance of this additional obligation, the Note cannot be read as providing a basis for 
                                                      
154Done at Vienna, 23 May 1969, 1155 UNTS 331;  8 International Legal Materials 679. 
155Joint appellees' submission of the United States and Mexico, para. 96. 
156Joint appellees' submission of the United States and Mexico, para. 97. 
157Joint appellees' submission of the United States and Mexico, para. 111. 
158Joint appellees' submission of the United States and Mexico, para. 111. 
159Joint appellees' submission of the United States and Mexico, para. 113.  WT/DS394/AB/R 
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  China to impose export duties on the 84 products a bove the maximum rates specified in Annex 6.  
The United States and Mexico further reject China' s argument that, because of the reference to 
"exceptional circumstances" in the Note to Annex 6,  there is a "substantive overlap" between the Note 
and Article XX of the GATT 1994.
160  Instead, Annex 6 and Article XX only "overlap" to the extent 
that each establishes "potential exceptions" to the commitments contained in Annex 6 regarding the 
applied rates for the 84 products liste d, and in the GATT 1994, respectively.161 
73. The United States and Mexico further submit that  the fact that Paragraph 11.3 of China's 
Accession Protocol expressly refers to Article V III of the GATT 1994, but leaves out reference to 
other provisions of the GATT 1994, indicates that WTO Members and China did not intend 
Article XX to be available as an exception to just ify a violation of Paragraph 11.3.  They disagree 
with China's assumption that, if a tax or charge that  would otherwise be incons istent with Article VIII 
met the conditions of Article XX, then it would be cons istent with Article VIII.  Instead, they consider 
that conformity with the conditions  of Article XX only means that Ar ticle VIII would not "prevent the 
application" of that measure.162 
(b) Context from the WTO Agreement 
74. The United States and Mexico argue that the Panel did not rely solely on the inclusion of the 
two specific exceptions in Paragraph 11.3 of China' s Accession Protocol to reach the conclusion that 
Article XX of the GATT 1994 is not available in cases of violation of the obligations contained in 
Paragraph 11.3.  Instead, the Panel also consider ed other provisions of China's Accession Protocol  
and China's Accession Working Party Report, notin g that, unlike Paragraph 11.3, such provisions 
include general references to the WTO Agreement and the GATT 1994. 
75. The United States and Mexico further argue that Paragraphs 5.1, 11.1, and 11.2 of China's 
Accession Protocol, Paragraphs 155 and 156 of China's Accession Working Party Report, and 
Article XX of the GATT 1994 support the Panel's findi ng that Article XX is not applicable in cases of 
findings of inconsistency with the commitments c ontained in Paragraph 11.3 of China's Accession 
Protocol.  The Panel relied on China – Publications and Audiovisual Products , where the 
Appellate Body interpreted the introductory clause of Paragraph 5.1 of China's Accession Protocol as 
including a reference to Article XX of the GATT 1994;  however, the "specific and circumscribed" 
language of Paragraph 11.3  is "in sharp contrast" to that of Paragraph 5.1, because it "sets forth 
                                                      
160Joint appellees' submission of the United States and Mexico, para. 114. 
161Joint appellees' submission of the United States and Mexico, para. 114. 
162Joint appellees' submission of the United States and Mexico, para. 117. WT/DS394/AB/R 
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  particular commitments" and the two exceptions to those commitments, and includes no reference to 
the GATT 1994, or to WTO obligations more generally.
163  The United States and Mexico argue that 
China's interpretation of Paragr aph 11.3 would render the introducto ry language in Paragraph 5.1 
"superfluous" and would therefore be  "disfavo[u]red under a key tenet" of the customary rules of 
treaty interpretation that meaning and effect  be given to all the terms of a treaty.164 
76. According to the United States and Mexico, the Panel was also "appropriately struck" by the 
difference between the language of Paragraph 11.3 a nd that of Paragraphs 11.1 and 11.2 of China's 
Accession Protocol.165  Whereas Paragraphs 11.1 and 11.2 a ffirm China's obligation to apply or 
administer certain measures "in conformity w ith the GATT 1994", Paragraph 11.3 establishes an 
obligation with regard to export duties that is absent in the GATT 1994, and sets forth the specific 
exceptions that apply to that obligation.166  Similarly, the Panel properly found support for its 
interpretation of Paragraph 11. 3 in Paragraphs 155 and 156 of China's Accession Working Party 
Report.  While the Panel acknowle dged that Paragraphs 155 and 156 ar e not a part of the "explicit 
commitments" made by China, the Panel also prope rly viewed these paragraphs as providing relevant 
context because, in those paragraphs, WTO Member s expressed concerns over taxes and charges that 
China applied to exports, and expressed the view th at such taxes and charges should be eliminated 
unless applied in conformity with Article VIII of  the GATT 1994 or Annex 6 of the Draft Protocol.167 
77. The United States and Mexico recall the Panel's reliance upon the text of Article XX of the 
GATT 1994 as indicating that the Article XX exce ptions relate only to the GATT 1994, and the 
Panel's observation that Article XX has been incor porated by reference into some other covered 
agreements.  No such reference is contained in  Paragraph 11.3 of China' s Accession Protocol, and 
China does not address the meaning of the phrase "this Agreement" in Article XX on appeal.  In 
concluding that Article XX does not apply to vi olations of the commitments contained in 
Paragraph 11.3, the Panel correctly interpreted Pa ragraph 11.3 and the relevant provisions of the 
                                                      
163Joint appellees' submission of the United States and Mexico, para. 121. 
164Joint appellees' submission of the United States and Mexico, para. 121 (referring to Appellate Body 
Report, US – Gasoline , p. 25, DSR 1996:I, 3, at 23). 
165Joint appellees' submission of the United States and Mexico, para. 122. 
166Joint appellees' submission of the United States and Mexico, para. 123 (quoting Panel Reports, 
para. 7.138). 
167Joint appellees' submission of the United States and Mexico, para. 124 (referring to Panel Reports, 
para. 7.145).  WT/DS394/AB/R 
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  GATT 1994, China's Accession Protocol, and China' s Accession Working Party Report "in a 
harmonious manner", giving effect to the text of each provision.
168 
78. Next, the United States and Mexico assert that China's argument that the Panel erred in 
"failing to conclude" that Paragraph 170 of Chin a's Accession Working Party Report means that the 
exceptions under Article XX apply to violatio ns of China's export duty commitments under 
Paragraph 11.3 of its Accession Protocol is "without merit".169  Paragraph 169 of the Accession 
Working Party Report shows that some Members were  concerned about internal policies, especially 
those of sub-national governments, imposing discrimin atory taxes and other charges that would affect 
trade in goods.  In Paragraph 170, China responded to  this concern by confirmi ng that its laws relating 
to all fees, charges, or taxes levied on imports and exports would be in full conformity with WTO 
obligations.  The United States and Mexico argue that  it is "untenable to be lieve" that Paragraph 170 
reflects the negotiators' intent to apply Article XX  to Paragraph 11.3 of China's Accession Protocol.170  
They submit that China's arguments ignore the te xt of Paragraph 11.3, the context supplied by 
Paragraphs 155, 156, and 159 of China's Accessi on Working Party Report, and Article XX of the 
GATT 1994, and "misconstrue"171 the Panel's analysis of Paragra ph 170.  The Panel did not "simply 
conclude" that Paragraph 170 applies to domestic ta xes, and not export duties;  instead, it correctly 
found that "Paragraph 170 'does not refer to China's specific obligations on export duties '".172 
79. Finally, in response to China's argument that th e Panel failed to interpret Paragraph 11.3 in 
the light of the preamble of the WTO Agreement , the United States and Mexico assert that the 
preamble does not provide "a textual basis" for conc luding that Article XX applies to violations of 
Paragraph 11.3, nor does it negate the text an d context demonstrating that Members intended 
Article XX not to apply.173 
(c) The Inherent Right to Regulate Trade 
80. According to the United States and Mexico, China' s arguments asserting that its inherent right 
to regulate trade permits recourse to Article XX of  the GATT 1994 for violations  of Paragraph 11.3 of 
                                                      
168Joint appellees' submission of the United States and Mexico, para. 127. 
169Joint appellees' submission of the United States and Mexico, para. 128. 
170Joint appellees' submission of the United States and Mexico, para. 130. 
171Joint appellees' submission of the United States and Mexico, para. 132. 
172Joint appellees' submission of the United States and Mexico, para. 132 (quoting Panel Reports, 
para. 7.141). (emphasis added by the United States and Mexico) 
173Joint appellees' submission of the United States and Mexico, para. 136.   WT/DS394/AB/R 
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  China's Accession Protocol "are flawed in several respects, and should be rejected".
174  They begin by 
highlighting that, contrary to China's clai ms, the Panel "nowhere suggested" that the WTO Agreement 
confers an inherent right to regulate trade, or th at Members "abandoned" their right to regulate trade 
upon "entering" the WTO.175  
81. The United States and Mexico argue that the Pane l's conclusion that China agreed to "specific 
textual disciplines" on its ability to impose export duties is consistent with the text of Paragraph 11.3 
and the "understanding" reflected in previous Appellate Body reports that, by joining the WTO, Members agreed to disciplines on their right to  regulate trade, as contained in the covered 
agreements.
176  The Appellate Body report in China – Publications and Audiovisual Products  
recognized that, because WTO Members have an inhere nt right to regulate trade, it was necessary to 
agree on rules that constrain that right.  The United States and Mexico also rely on the Appellate Body 
report in Japan – Alcoholic Beverages II  to argue that China's obligation to eliminate export duties 
contained in Paragraph 11.3 of China's Accession Protocol  is a "commitment" that conditions the 
exercise of China's sovereignty in exchange for the benefits it derives as a Member of the WTO.177  
82. Recalling China's argument that it is entitled to  invoke Article XX exceptions for violations of 
Paragraph 11.3 in the absence of "specific treaty la nguage", the United States and Mexico assert that 
China's approach would render the introductory clause in Paragraph 5.1, and the language in 
Paragraphs 11.1 and 11.2, "superfluous".178  In fact, the Appellate Body's finding in China – 
Publications and Audiovisual Products  that Article XX is available fo r violations of Paragraph 5.1 of 
China's Accession Protocol  was "grounded" in the language of the provision and not a right to 
regulate trade "in the abstract".179  The language in Paragraph 11.3 is  "in contrast" to the language in 
the accession documents of other WTO Members with  respect to their obligations on export duties.180  
China's "citation" to language in other agreements  related to WTO Members' ability to regulate is 
"similarly unavailing".181  Specifically, the agreements cited by  China do not address the applicability 
of Article XX exceptions to China's obligations  under Paragraph 11.3, nor do they "inform an 
                                                      
174Joint appellees' submission of the United States and Mexico, para. 139. 
175Joint appellees' submission of the United States and Mexico, para. 140. 
176Joint appellees' submission of the United States and Mexico, para. 140. 
177Joint appellees' submission of the United States and Mexico, paras. 143 and 144 (referring to 
Appellate Body Report, Japan – Alcoholic Beverages II , p. 15, DSR 1996:I, 97, at 108). 
178Joint appellees' submission of the United States and Mexico, para. 145. 
179Joint appellees' submission of the United States and Mexico, para. 145 (referring to Appellate Body 
Report, China – Publications and Audiovisual Products , paras. 219-228). 
180Joint appellees' submission of the United States a nd Mexico, para. 145 (referring to, as example, 
Report of the Working Party on the Accession of Ukraine to the World Trade Organization, WT/ACC/UKR/152, paras. 512 and 540). 
181Joint appellees' submission of the United States and Mexico, para. 146.  WT/DS394/AB/R 
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  interpretation" of the text of Paragraph 11.3.
182  The United States and Mexico also highlight the 
Panel's observation that the Agreement on Trade-Related Investment Measures  (the 
"TRIMs Agreement "), the TBT Agreement , the TRIPS Agreement , the GATS, and the SPS Agreement  
either expressly incorporate the right to invoke Ar ticle XX exceptions or include their own exceptions 
and flexibilities. 
83. According to the United States and Mexico, China' s insistence that it is not advocating for the 
right to ignore its WTO commitments because it still must comply with the requirements of Article XX "does not address the relevant issue in this dispute".
183  China's arguments wrongly 
assume that the exceptions in Article XX are the star ting point for an analysis of WTO-consistency.  
Instead, the United States and Mexico argue that the starting point of the analysis is whether a measure is consistent with a Member's WTO ob ligations, and if not, whether any applicable 
exceptions apply.  Moreover, China's argument that  it is entitled to invoke Article XX in the case of 
Paragraph 11.3 violations because  it is the only WTO Member with export duty commitments "lacks a 
textual basis".
184  The fact that a WTO Me mber has undertaken a specific commitment that not all 
WTO Members have made is not a proper basis for fi nding that an exception is applicable to that 
commitment. 
84. The United States and Mexico assert that China's right to promote non-trade interests is not 
"at risk" in this dispute.185  Paragraph 11.3 does not prevent China from undertaking measures other 
than export duties to promote legitimate public h ealth or conservation objectives, and China has a 
number of "tools at its disposal" to pursue these ends.186  Paragraph 11.3 of  China's Accession 
Protocol, however, contains specific commitments with respect to export duties and provides only two 
"applicable" exceptions.  "Neither an abstract right to regulate trade nor Article XX of the 
GATT 1994 changes that fact."187 
4. Article XI:2(a) of the GATT 1994 
85. The United States and Mexico request the Appellate  Body to uphold the Panel's finding that 
China had not demonstrated that its export quota on refractory-grade bauxite is "temporarily" applied 
to prevent or relieve a "critical shortage" within  the meaning of Article XI:2(a) of the GATT 1994, 
                                                      
182Joint appellees' submission of the United States and Mexico, para. 146. 
183Joint appellees' submission of the United States and Mexico, para. 147. 
184Joint appellees' submission of the United States and Mexico, para. 148. 
185Joint appellees' submission of the United States and Mexico, para. 149. 
186Joint appellees' submission of the United States and Mexico, para. 150. 
187Joint appellees' submission of the United States and Mexico, para. 150. WT/DS394/AB/R 
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  and to reject China's claim that the Panel failed to  conduct an objective assess ment of the matter, as 
required under Article 11 of the DSU. 
86. With respect to China's arguments relating to th e interpretation of the term "temporarily", the 
United States and Mexico disagree with China's a llegation that the Panel excluded from the scope of 
Article XI:2(a) any "long-term" application of ex port restrictions.  However, the Panel did not 
interpret the term "temporarily" so as to impose an  "absolute limit" on the time period in which an 
export restraint may be imposed under Article XI:2(a ).  In the United States and Mexico's view, the 
Panel was appropriately sensitive to the contextu al relationship between the terms "temporarily 
applied" and "critical shortages" when it found that  Article XI:2(a) cannot be interpreted to permit the 
long-term application of measures in the nature of China's export restrictions on refractory-grade 
bauxite. 
87. In response to China's allegation that the Pa nel erred in finding that Articles XI:2(a) 
and XX(g) of the GATT 1994 are mutually exclusive, the United States and Mexico submit that China 
misunderstands the Panel's analysis.  The Panel did not find that Articles XI:2(a) and XX(g) can never 
apply to the same measure.  Rather, the Panel found that, under China's interpretation of 
Article XI:2(a), pursuant to which a Member coul d impose an export restriction for the purpose of 
addressing limited reserves of a natural resource, Ar ticles XI:2(a) and XX(g) would be duplicative. 
88. Regarding China's argument that the Panel erre d in its interpretation of the term "critical 
shortages", the United States and Mexico disagree that  the Panel erred in interpreting Article XI:2(a) 
"to exclude shortages caused, in part, by the ex haustibility of the product subject to the export 
restriction".
188  They submit that the existence of a limited amount of reserves constitutes only a 
degree of shortage, and a mere degree of shortage does not constitute a "critical" shortage, which is 
one rising to the level of a crisis.  They also refer to a discussion in the negotiating history of Article XI:2(a), during which, in response to a propo sal to omit the word "critical" in Article XI:2(a), 
the representative from the United Kingdom stated that, "if you take out the word 'critical', almost any 
product which is essential will be alle ged to have a degree of shortage  and could be brought within the 
scope of this paragraph".
189  This suggests that a showing of fi nite availability is not sufficient to 
                                                      
188Joint appellees' submission of the United States and Mexico, para. 173 (quoting China's appellant's 
submission, paras. 356, 363, and 367). 
189Joint appellees' submission of the United States and Mexico, para. 176 (quoting United Nations 
Economic and Social Council, Second Session of the Prep aratory Committee of the Un ited Nations Conference 
of Trade and Employment, Verbatim Report, Fortieth Meeting of Commission "A" (1) (Articles 25 & 27, 26, 
28 & 29), UN document E/PC/T/A/PV/40(1), 15 August 1947 (Panel Exhibit CHN-181), p. 6).  WT/DS394/AB/R 
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  demonstrate a critical shortage.  In addition, the United States and Mexico maintain that the Panel 
properly reasoned that the concept of "temporarily" informs the concept of a "critical shortage". 
89. The United States and Mexico disagree with Chin a's contention that the Panel's finding that 
an export restriction applied to address the exhaus tibility of a resource cannot be temporarily applied 
is contradictory to other findings by the Panel.  In their view, i rrespective of whether a measure is 
applied until the remaining reserves of the product ar e exhausted, or until technological advancements 
slow the rate of exhaustion, the application of the export restriction is not "temporary", as, in either 
case, it is not connected to the time period necessary to  address the critical shortage, but rather to the 
depletion of reserves.  Additionally, the "hypotheti cal situation" in which technological advancements 
may allow for a slower rate of exhaustion does not  "negate" the evidence on record showing that 
China intends to maintain its export quota to gu arantee a supply for its domestic industry until the 
reserves are depleted.
190 
90. As regards China's allegations, first, that the Pa nel acted inconsistently with Article 11 of the 
DSU, the United States and Mexico submit that th e Panel fully engaged with China's arguments 
regarding annual review.  However,  the Panel also had before it evidence that China has imposed an 
export quota on refractory-grade bauxite since at le ast 2000, as well as indications that China intended 
to maintain the restrictions until the exhaustion of the remaining reserves.  Th erefore, irrespective of 
China's arguments relating to the annual review of those measures, the Panel's finding that the 
restriction is not applied "temporarily" is, in th e United States and Mexico's view, "well-founded".191  
Second, China alleges that the Panel employed intern ally inconsistent or inc oherent reasoning when it 
found that an export restriction imposed to address the exhaustibility of a natural resource could not 
be temporarily applied, because, in China's view, that  finding is inconsistent with other Panel findings 
with respect to technological developments.  The United States and Mexico contend that there is no inconsistency in the Panel's finding.  Whether a measure is applied un til remaining reserves are 
exhausted or until technological de velopments slow the rate of e xhaustion, the application of the 
export quota is not temporary.  In either case, it is tied not to the time period needed to address a 
"critical shortage", but rather to the depletion of finite reserves. 
                                                      
190Joint appellees' submission of the United States and Mexico, para. 190 (referring to China's opening 
statement at second Panel meeting, paras. 143, 144, and 146-148;  and Panel Reports, para. 7.344). 
191Joint appellees' submission of the United States and Mexico, para. 185. WT/DS394/AB/R 
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  5. Article XX(g) of the GATT 1994 
91. The United States and Mexico request the Appella te Body to uphold the Panel's interpretation 
of the phrase "made effective in conjunction with " in Article XX(g) of the GATT 1994 as requiring 
that the purpose of a challenged export restriction must  be to ensure the effe ctiveness of restrictions 
imposed on domestic production or c onsumption.  In their view, th e Panel's interpretation is in 
accordance with the ordinary meaning of the terms in Article XX(g) in their context and in the light of 
the object and purpose of the GATT 1994.  They distinguish from the present case the Appellate Body reports in US – Gasoline and US – Shrimp  on the basis that neither of those cases involved the 
question of how the operation of the challenged measu re should be conjoined with the operation of 
the domestic restrictions.  In US – Gasoline , this was because the challenged measure affecting 
imports was the same measure establishing the restri ctions on domestic produc tion or consumption.  
In US – Shrimp , the conjunction of the operation of th e challenged measure with the domestic 
regulation was found to "satisfy easily" the requirement of Article XX(g).
192 
92. According to the United States and Mexico, th e only other time a respondent has asserted an 
Article XX(g) defence where the challenged trade measure was distinct from the restrictions on 
domestic production or consumption was in the GATT dispute in Canada – Herring and Salmon .  The 
United States and Mexico agree with the GATT panel that an export restriction can only be considered to be made effective "in conjunction with " domestic restrictions "if it was primarily aimed 
at rendering effective these restrictions".
193  In the present case, the Panel appropriately drew on that 
GATT panel report to conclude that, in order to  qualify as a conservation measure justified under 
Article XX(g), China's export quota must not only be  applied jointly with restrictions on domestic 
production or consumption, but must also ensure the effectiveness of those domestic restrictions. 
6. Prior Export Performance and Minimum Capital Requirements 
93. The United States and Mexico argue that the Pane l correctly found that the imposition of prior 
export performance and minimum registered capital requi rements is inconsistent with China's trading 
rights commitments under Paragraphs  83 and 84 of China's Accession Working Party Report.  First, 
they assert that Paragraphs 83 and 84 include specifi c commitments to elimin ate China's examination 
                                                      
192Joint appellees' submission of the United States and Mexico, para. 215 (referring to Appellate Body 
Report, US – Gasoline , pp. 3-5, DSR 1996:I, 3, at 4-6;  and Appellate Body Report, US – Shrimp , 
paras. 143-145). 
193Joint appellees' submission of the United States and Mexico, para. 217 (quoting Panel Reports, 
para. 7.395, in turn quoting GATT Panel Report, Canada – Herring and Salmon , para. 4.6 (original emphasis 
omitted)).  WT/DS394/AB/R 
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  and approval process, including prior export performance and minimum capital requirements that are 
not found elsewhere in the WTO Agreement .  Second, China's suggestion that the complainants need 
to demonstrate the WTO-inconsistency of Chin a's prior export performan ce and minimum capital 
requirements under other provisions of the WTO Agreement  is without merit.  The United States and 
Mexico insist that China has obligations with resp ect to such requirements pursuant to Paragraph 5.1 
of China's Accession Protocol and Paragraphs 83 an d 84 of China's Accession Working Party Report, 
and that the requirements currently imposed with respect to export quota allocation are inconsistent 
with China's obligations under these provisions. 
94. The United States and Mexico also refute China's argument that the Import Licensing 
Agreement  and Article XIII of the GATT 1994 contemplat e the use of historical performance in 
allocating quotas.  They insist that neither provisi on can be read as overriding China's trading rights 
obligations. 
95. Finally, the United States and Mexico challe nge China's position that China is allowed to 
maintain a minimum capital requirement for foreign- invested companies.  Th ey note that China did 
not present this argument to the Panel.  Paragraphs  83(b), 83(d), 84(a), and 84(b) of China's Accession 
Working Party Report show that there is no basis fo r concluding that China is permitted to maintain 
an examination and approval system that applies onl y to foreign-invested enterprises;  in fact, these 
provisions provide the opposite. 
7. China's Export Licensing Requirements and Article XI:1 of the GATT 1994 
96. The United States and Mexico request the Appellate  Body to uphold the Panel's finding that 
Article 11(7) of China's 2008 Export Licence Administration Measures , and Articles 5(5) and 8(4) of 
the 2008 Export Licensing Working Rules , are inconsistent with Article XI:1 of the GATT 1994.194  
The United States and Mexico also request the Appella te Body to reject China's claim that the Panel 
erred under Article 11 of the DSU by finding that Ch ina's measures are inconsistent with Article XI:1 
without a sufficient evidentiary basis.  The Panel co rrectly interpreted and app lied Article XI:1 of the 
GATT 1994, and correctly found that the uncertainty  and unpredictability inherent in China's export 
licensing system constitute a restriction under that  provision.  The United States and Mexico thus 
reject China's contention that, where an authority en joys the discretion always to interpret and apply a 
challenged measure in a WTO-consistent manner, an examination of the design, structure, and 
                                                      
194Joint appellees' submission of the United States and Mexico, para. 255 (referring to Panel Reports, 
paras. 7.921, 7.946, 7.948, 7.958, 8.5(b), 8.8, 8.12(b), 8.15, 8.19(b), and 8.22). WT/DS394/AB/R 
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  expected operation of the measure does not permit a pa nel to conclude that the measure mandates and, 
if applied, necessarily leads to  WTO-inconsistent conduct. 
97. The United States and Mexico argue that the Pa nel's interpretation is consistent with the 
ordinary meaning of the term "restriction", as interp reted by WTO panels.  They refer to a statement 
by the panel in Colombia – Ports of Entry  that the term "restrictions" unde r Article XI:1 is "broad in 
scope" and "can cover measures that negativel y affect competitive opportunities", including 
"measures that create uncertainties and affect invest ment plans, restrict market access for imports, or 
make importation prohibitively costly".
195  For the United States and Mexico, an interpretation of the 
term "restriction" as including the lack of certain ty and predictability arising from a discretionary 
export licensing system is also supported by the Appellate Body's interpretation in Chile – Price Band 
System  of the term "import restrictions" in the context of Article 4 and footnote 1 of the Agreement on 
Agriculture . 
98. Moreover, the United States and Mexico argue that China itself recognizes that "[t]he object 
and purpose underlying Article XI:1 is to protect competitive opportunities for exports, rather than 
trade flows."196  This assertion is at odds with China's argument that its export licensing system can be 
considered inconsistent with Article XI:1 only if it restricts trade flows through the denial of export 
licences.  According to the United States and Mexico , the uncertainty and unpredictability inherent in 
the discretion of Chinese authorities to require undefined or unspecified documents entails a 
restriction on competitive opportunities even without  the occurrence of actual denials of export 
licences, and is therefore inconsistent with Article XI:1 of the GATT 1994. 
99. The United States and Mexico request the Appella te Body to reject China's claim that the 
Panel acted inconsistently with Article 11 of th e DSU in making findings regarding China's export 
licensing system without an evidentiary basis.  Th e United States and Mexico argue that, while China 
alleges that the Panel lacked a su fficient evidentiary basis for its fi nding, it acknowledges at the same 
time that "it is not necessary to provide evidence of the application of a measure in support of an 
as such  challenge".197 
                                                      
195Joint appellees' submission of the United States and Mexico, para. 270 (quoting Panel Report, 
Colombia – Ports of Entry , para. 7.240;  and referring to Panel Reports, para. 7.894). 
196Joint appellees' submission of the United States and Mexico, para. 275 (quoting China's appellant's 
submission, para. 548). 
197Joint appellees' submission of the United States and Mexico, para. 281 (quoting China's appellant's 
submission, para. 596 (original emphasis)).  WT/DS394/AB/R 
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  C. Arguments of the European Union – Appellee 
1. Article 6.2 of the DSU 
100. The European Union requests the Appellate Body to uphold the Panel's findings in 
paragraph 77 of its preliminary ruling (second phase), and in paragra ph 7.3(b) of the Panel Reports, 
that Section III of the panel requests complies with Article 6.2 of the DSU, and to uphold all of the 
Panel's consequent find ings of inconsistency.198  The European Union contends that the Panel did not 
err under Article 6.2 of the DSU by finding that Section III of the panel requests presents the problem 
clearly. 
101. In response to China's contention that the Pane l observed defects in Section III of the panel 
requests, the European Union asserts that the Pane l never found that the complainants' panel requests 
were defective.  The European Union submits that , although the Panel observed that the complainants 
had not directly addressed in their submissions or in their subsequent oral statements the question of 
whether Section III of the panel requests was consiste nt with the requirements of Article 6.2 of the 
DSU, it "was not pointing to a 'defective' Panel Request".199 
102. The European Union also disag rees with China's contention that the Panel found that the 
complainants' responses to Panel Question 2 followi ng the second Panel meeting corrected the defects 
in the panel requests.  For the European Union, the replies given by the complainants to Panel 
Question 2 were merely a summary of the claims that  had already been presented in more detail in the 
complainants' first written submissions. 
103. The European Union further contends that its first written submission was sufficiently clear as 
to which Chinese measures were in violation of wh ich WTO obligations.  In the European Union's 
view, the scope of this dispute was therefore established early on in the proceedings. 
104. Furthermore, in response to China's submi ssion that it attaches great importance to the 
paramount principle that deficiencies in a panel request cannot be cured by a party's subsequent 
submissions, the European Union argues that this statement would only be relevant if the panel 
                                                      
198In particular, the findings in paragraphs 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), (b), (e) an d (f), 8.12(b), 8.13(a)-(b), 8.18(a)-(b), 8.19(b), and 
8.20(a)-(b) of the Panel Reports. (See European Union's appellee's submission, para. 4) 
199European Union's appellee's submission, para. 15. WT/DS394/AB/R 
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  requests were in fact "defective", which, accordin g to the European Uni on is not the case in the 
present dispute.
200 
105. Finally, in response to China's assertion that the Panel erred by frustrating China's due process 
rights under Article 6.2 of the DSU, the European Un ion contends that the fact that China defended, 
already in its first written submission, all the clai ms made by the complainants demonstrates that 
China had the opportunity to prepare exhaustively its defence in the earliest stages of the Panel 
proceedings.  Finally, the European Union also di sagrees with China that the Panel had allowed the 
complainants a "'long à la carte menu' from which they could choose in subsequent submissions … 
the 'specific combination of measures and claims'".201  The European Union asse rts that, contrary to 
what China suggests, the European Union had "no c hoice at all" as regards the specific combinations 
of measures and claims at issue.202 
2. The Panel's Recommendations 
106. With regard to China's appeal of the Panel' s recommendations, the European Union points out 
that the Panel made recommendations "on the 'ser ies of measures', which comprise the 'relevant 
framework legislation, the implementing re gulation(s), other applicable laws and the specific measure 
imposing export duties or export quotas in force  at the date of the Panel's establishment '".203  The 
European Union recalls that the Panel was estab lished on 21 December 2009 and, on that date, the 
2010 "replacement measures" to which Chin a refers in its appeal were not " in force ":  they entered 
into force on 1 January 2010.204  The European Union considers, therefore, that the Panel did not 
make recommendations that apply to 2010 replace ment measures and China's appeal should be 
rejected "as baseless".205 
107. Referring to China's concern that the Panel's recommendations may "require China to take 
action to revise" its "annual replacement measures"206, the European Union argues that the 
Appellate Body is not the "proper forum" to determ ine actions China should take to comply with its 
                                                      
200European Union's appellee's submission, para. 22. 
201European Union's appellee's submission, para. 26 (quoting China's appellant's submission, para. 96). 
(emphasis added by the European Union omitted) 
202European Union's appellee's submission, para. 27. 
203European Union's appellee's submission, para. 40 (quoting Panel Reports, para. 7.33(e)). (emphasis 
added by the European Union) 
204European Union's appellee's submission, para. 40 (referring to Panel Reports, para. 7.32). (emphasis 
added by the European Union) 
205European Union's appellee's submission, para. 41. 
206European Union's appellee's submission, para. 43 (referring to China's appellant's submission, 
para. 100).  WT/DS394/AB/R 
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  WTO obligations.  Instead, Article 21 of the DSU provides the proper procedure that China should 
follow in order to identify these acti ons.  For the European Union, th is is another reason why China's 
appeal of the Panel's recommendations should be rejected. 
3. Applicability of Article XX of the GATT 1994  
108. The European Union requests the Appellate Body to uphold the Panel's findings and 
conclusions that China cannot invoke the defence of Article XX of the GATT 1994 for violations of 
the obligations contained in Pa ragraph 11.3 of China's Accession Protocol.  While WTO Members 
can "incorporate" Article XX of the GATT 1994 into another agreement if they so wish, the legal 
basis for "applying" Article XX to another agreemen t would be the "very text of incorporation", and 
not Article XX itself, as Article XX is limited by its "express terms" to the GATT 1994.207  T h e  
European Union also asserts that the Panel was corr ect in finding that "China had 'exercised its 
inherent and sovereign right to regulate trade in negotiating, among other actions, the terms of its 
accession into the WTO'", and that the inherent ri ght to regulate trade does not permit recourse to 
Article XX.208 
(a) Paragraph 11.3 of China's Accession Protocol 
109. The European Union disagrees with China's asser tion that "the exception to [P]aragraph 11.3 
in Annex 6 to China's Accession Protocol estab lishes a connection with Article XX of the 
GATT 1994".209  The "fundamental flaw" with this argument is  that it is based on the premise that the 
use of the term "exceptional circumstances" in the text of the Note to Annex 6 establishes a 
"substantive overlap" with Article XX, which is entitled "General Exceptions".210  Specifically, 
China's argument is flawed because it compares the te rm "exceptional circumstances" to "exceptions".  
The European Union notes that that there is no "a greed definition or interpretation" of the phrase 
"exceptional circumstances" in the Note to Annex 6 of China's Accession Protocol, and highlights the 
fact that the word "exceptional" in  the Note to Annex 6 is used as an adjective and not as a noun as in 
Article XX.211  Since an "exceptional circumstance" does not have the same meaning as an 
"exception" within the meaning of Article XX, Chin a's argument takes the word "exceptional" out of 
context.212  The European Union faults China for sear ching "for similar words or phrases in other 
                                                      
207European Union's appellee's submission, para. 54. 
208European Union's appellee's submission, para. 55 (referring to Panel Reports, paras. 7.155-7.157). 
209European Union's appellee's submission, paras. 59. 
210European Union's appellee's submission, para. 62. 
211European Union's appellee's submission, para. 62. 
212European Union's appellee's submission, para. 63. WT/DS394/AB/R 
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  WTO agreements" in order to make them appli cable to Paragraph 11.3 of China's Accession 
Protocol.
213 
110. The European Union further submits that China disregards the Panel's reasoning regarding the 
"fundamental difference"214 between Paragraph 11.3 and Paragra ph 5.1 of China's Accession Protocol, 
violations of which the Appellate Body has foun d can be justified under Article XX.  That is, 
Paragraph 11.3 does not contain the introductory phrase "[w]ithout prejudice to China's rights to 
regulate trade in a manner consistent with th e WTO Agreement" found in Paragraph 5.1.  
111. The European Union also rejects China's argumen t that the reference to Article VIII of the 
GATT 1994 in Paragraph 11.3 of China's Accession  Protocol confirms the "common intent"215 of 
WTO Members to make Article XX applicable  to Paragraph 11.3 as "pure conjecture".216  T o  t h e  
contrary, the fact that there is a specific referenc e to Article VIII, but not to Article XX, indicates a 
common intent to exclude the applicability of Artic le XX.  The European Union adds that it is 
"obscure from a systemic point of view" how the "express reference" to Article VIII could include a 
"tacit reference" to the availability of Article XX of the GATT 1994.217 
(b) Context from the WTO Agreement  
112. In response to China's argument that Paragr aph 170 of China's Accession Working Party 
Report justifies recourse to the exceptions contai ned in Article XX of the GATT 1994, although the 
European Union agrees that Paragraph 170 is integr ated into China's Accession Protocol, it asserts 
that this fact does not make Article XX applicable to Paragraph 11.3 of China's Accession Protocol.  
Recalling China's argument that Paragraph 11.3 and Paragraph 170 overlap in terms of their subject 
matter, the European Union asserts that the Pane l correctly identified the differences between 
Paragraph 170 and Paragraph 11.3.  Regarding China's argument that the Panel erred in "assum[ing]" 
that Paragraph 170 does not apply to export du ties because Paragraphs 155 and 156 of China's 
Accession Working Party Report apply to export du ties, the European Union notes that the Panel 
recognized the importance of Paragraphs 155 an d 156 as providing the context for interpreting 
Paragraph 170 of the Accessi on Working Party Report.218  The European Union also highlights that 
                                                      
213European Union's appellee's submission, para. 64. 
214European Union's appellee's submission, para. 70. 
215European Union's appellee's submission, para. 75 (referring to China's appellant's submission, 
para. 226). 
216European Union's appellee's submission, para. 77. 
217European Union's appellee's submission, para. 78. 
218European Union's appellee's submission, para. 85 (referring to Panel Reports, para. 7.145).  WT/DS394/AB/R 
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  the Panel noted that Paragraphs 155 and 156 fall unde r section C of China's Accession Working Party 
Report entitled "Export Regulations", whereas Paragr aph 170 falls under section D, entitled "Internal 
Policies Affecting Foreign Trade in Goods". 
113. According to the European Union, China's argument  that "the Panel appeared to consider that 
Paragraph 170 imposes obligations  solely under the GATT 1994"
219 attempts to "distort" what the 
Panel had "actually stated"220:  that Paragraph 11.3 of China's Accession Protocol  includes an 
obligation to eliminate export duties that is not found in the GATT 1994, whereas "Paragraph 170 
essentially repeats the commitments ex isting under certain GATT rules".221 
114. In response to China's argum ent that context from the WTO Agreement confirms the 
applicability of Article XX of the GATT 1994 as a justification for inconsistencies with 
Paragraph 11.3 of China's Accession Protocol, th e European Union begins by noting that, under 
Article 31(1) of the Vienna Convention , context can only confirm the ordinary meaning given to the 
terms of the agreement, and since China has failed to show that the ordinary meaning establishes the 
applicability of Article XX to Paragraph 11.3,  context alone cannot serve as the "constitutive 
element".222  The European Union asserts that, although the preamble of the WTO Agreement  contains 
elements such as general principles underlying the creation of the WTO, objectives of the multilateral 
trading system, and common expectations of Members, which may be relevant when assessing 
Article XX of the GATT 1994, the preamble can not make Article XX applicable to specific 
obligations in a WTO legal instrument in the absence of a reference to Article XX in that instrument. 
(c) The Inherent Right to Regulate Trade 
115. The European Union disagrees w ith China that the Panel erred in its interpretation of 
Paragraph 11.3 of China's Accession Protocol by no t recognizing China's inherent right to regulate 
trade.  The European Union points out that the Pane l recognized that this sove reign and inherent right 
is held by all WTO Members and reasoned that Ch ina had exercised this right when negotiating its 
accession to the WTO.  The European Union agrees with  the Panel that the provisions of the covered 
                                                      
219European Union's appellee's submission, para. 87 (quoting China's appellant's submission, 
para. 242). 
220European Union's appellee's submission, para. 88. 
221European Union's appellee's submission, para. 87 (quoting Panel Reports, para. 7.141). 
222European Union's appellee's submission, para. 97. WT/DS394/AB/R 
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  agreements and China's Accession Protocol therefore "delineate" China's exercise of its inherent and 
sovereign right to regulate trade.
223 
4. Article XI:2(a) of the GATT 1994 
116. The European Union requests the Appellate Body to  reject China's appeal and also to reject 
China's claims that the Panel failed to conduct an objective assessment of the matter, as required 
under Article 11 of the DSU.  With respect to the Pa nel's interpretation of the term "temporarily" in 
Article XI:2(a) of the GATT 1994, China misunderstands  the Panel's statements that Article XI:2(a) 
should not be interpreted to permit the "long-term  application of conservation measures", or "long-
term measures related to conservation purposes".224  For the European Union, these statements do not 
mean that the Panel found that Article XI:2(a) do es not cover any "long-term" export restrictions, but 
rather that Article XI:2(a) does not cover any "long-term conservation measures ".225 
117. Further, the European Union takes issue with  China's assertion that the annual renewal of 
China's export restrictions means that the restricti ons have a relatively short duration of one year and 
that their duration is defined in relation to the time required to prevent or relieve the critical shortage.  
In the European Union's view, the annual renewal of China's measures implies that, at the beginning 
of each year, China expects that the shortage of refractory-grade bauxite will cease by the end of the 
year, but at year-end, China realizes that this expect ation was incorrect and adapts its expectation that 
the shortage will cease one year later, and so on,  until final depletion of the reserves.  For the 
European Union, this indicates that China's annual renewal of export restrictions does not have any 
impact on whether the restrictions are applied "temporarily". 
118. The European Union also takes issue with China's contention that the Panel found that 
Article XI:2(a) and Article XX(g) of the GATT 1994 are mutually exclusive.   The European Union 
maintains that the Panel did not make such a findi ng, but instead used a comparison between the two 
Articles only to draw additional support for its interpre tation.  On the basis of that analysis, the Panel 
rightly concluded that Article XX(g) is confined  to conservation measures, while Article XI:2(a) 
covers "exceptional measures" that  address situations of crisis.226 
119. With respect to the Panel's interpretation of th e term "critical shortages", the European Union 
submits that the Panel found that Article XI:2(a) does not cover all types of critical shortages, but 
                                                      
223European Union's appellee's submission, para. 109. 
224European Union's appellee's submission, para. 174 (quoting Panel Reports, para. 7.349). 
225European Union's appellee's submission, para. 175. (original emphasis) 
226European Union's appellee's submission, para. 165 (quoting Panel Reports, para. 7.301).  WT/DS394/AB/R 
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  deals only with a subset, namely those critical shor tages that are "capable of being 'prevented or 
relieved' through the 'temporary app lication' of export restrictions".
227  Thus, a "critical shortage" is 
capable of being prevented or relieved through an ex port restriction that is "temporarily applied", only 
if the critical shortage itself is "temporary". 
120. The European Union takes issue with Chin a's allegation that the Panel found that 
"conservation measures" can never fall within the scope  of Article XI:2(a) and contends that, rather, 
the Panel found that China's export quota on refractory-grade bauxite is not covered by Article XI:2(a).  The European Union submits that the purpose of the export quota, as acknowledged 
by China, was not to "prevent" or "relieve" a critical  shortage, but to "extend the reserves" for "current 
and future generations".
228  The limited life span of the reserves of a good, however, is not sufficient 
for a finding of a "critical shortage" in the sense of Article XI:2(a).  In the European Union's view, 
Article XI:2(a) covers export restric tions that act as a "bridge" until a crisis is resolved and normality 
returns.  In that sense, the gradual depletion of  natural resources may well create a shortage in the 
availability of a good, however, such shortage do es not fall within the scope of Article XI:2(a), 
because it is not "temporary".229  Absent extraordinary circum stances, such as an unexpected 
discovery of new reserves, there is no point in tim e where it could reasonably be expected that the 
shortage would cease to exist and the availability of the good would return to normal conditions.  The 
European Union submits that "a shortage cau sed by the limited natural reserves of the good is the 
normal condition  for the availability of the good".230 
121. For the European Union, a shortage caused by the depletion of natural resources is different 
from the "critical shortage" occurring in situations  of crisis.  The former can be addressed by 
conservation measures seeking to extend the duration of the resources.  The latter can be addressed by 
temporary measures seeking to prevent or relieve the e ffects of a crisis.  For the European Union, the 
text of Article XI:2(a) covers only the latter situa tion.  This does not mean that Article XI:2(a) can 
never cover goods with a limited reserve.  The European Union gives the example of a mining accident, which would cause a severe decrease in the quantity of refractory-grad e bauxite in China.  
The ensuing shortage of the good could fall within the scope of Article XI:2(a) because it would be 
                                                      
227European Union's appellee's submission, para. 135. 
228European Union's appellee's submission, para. 147. 
229European Union's appellee's submission, para. 150. 
230European Union's appellee's submission, para. 150. (original emphasis) WT/DS394/AB/R 
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  capable of being relieved through measures applied fo r the time needed to bring the mine back to 
operation, and the market conditions back to th eir "'normal', gradually depleting situation".
231 
122. Finally, in response to China's allegation that  the Panel erred under Article 11 of the DSU 
because it failed to assess properly evid ence that China's export restrictions are annually reviewed and 
renewed, the European Union contends that the a bove considerations relating to China's review and 
renewal mechanism support the Panel's finding that a withdrawal of the restrictions is not to be 
expected until the depletion of the reserves, and th at this finding was based on accurate findings of 
fact.  The European Union also objects to China's allegation that the Panel found that there was no 
possibility for an existing shortage of an exhaustible  natural resource to cease to exist, and that the 
Panel thereby acted inconsistently with Article 11 of  the DSU.  The European Union contends that the 
Panel did not make such a finding.  Instead, the Pane l relied on the fact that the restriction had been in 
place "for at least a decade" and that there was no indication that it would be lifted. 
5. Article XX(g) of the GATT 1994 
123. The European Union requests the Appellate Body to uphold the Panel's interpretation of the 
phrase "made effective in conjunction with" in  Article XX(g) of the GATT 1994.  The 
European Union takes issue with China's allega tion that the Panel found that a restriction on 
international trade must pursue a dual purpose of conserving a natural resource and of seeking to 
ensure the effectiveness of domestic restrictions on th at resource.  For the European Union, the Panel 
referred only to one and the same purpose, namely th e conservation of a natural resource, for both the 
restriction on international trade and the rest rictions on domestic production or consumption. 
124. Furthermore, the European Union argues that th e word "purpose" in paragraph 7.397 of the 
Panel Reports closely reflects the language used in paragraph 4.6 of the GATT panel report in 
Canada – Herring and Salmon , which rightly stated that a measure  "can only be made [effective] 'in 
conjunction' with domestic restrictions on production, if it is primarily aimed at rendering effective 
these restrictions".232  The European Union further submits that the domestic restrictions on 
production or consumption must, by their very nature , have the purpose or aim of conserving natural 
resources.  It would be difficult to imagine a situation in which a domestic restriction on the 
                                                      
231European Union's appellee's submission, para. 154. 
232European Union's appellee's submission, para. 195 (quoting GATT Panel Report, Canada – Herring 
and Salmon , para. 4.6). (emphasis added by the European Union omitted)  WT/DS394/AB/R 
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  production or consumption of a natu ral resource would have a "purpose" other than conservation of 
the same natural resource.
233 
6. Prior Export Performance and Minimum Capital Requirements 
125. As a preliminary matter, the European Un ion argues that China's appeal concerning 
examination and approval systems for WTO-consistent export quotas is  "ineffective" since China has 
not appealed the Panel's finding that the e xport quotas are inconsistent with the GATT 1994.234  The 
European Union, therefore, questions whether th e Appellate Body should rule on China's appeal 
regarding China's prior export perform ance and minimum capital requirements.235 
126. In any event, the European Uni on considers that the Panel corre ctly found that China's prior 
export performance and minimum capital requireme nts imposed on exporters of bauxite, coke, 
fluorspar, and silicon carbide are inconsistent with  China's obligations under Paragraph 5.1 of its 
Accession Protocol and Paragra phs 83 and 84 of China's Accession Working Party Report.  The 
European Union submits that these provisions require that China:  (i) eliminate its system of examination and approval of trading rights;  (ii) gr ant the right to trade to all Chinese enterprises (both 
Chinese-invested and foreign-invested) and to all foreign enterprises and individuals;  and 
(iii) eliminate the "minimum capital" and the "prior  experience" requirements for foreign enterprises, 
after the end of the phase-in period.
236 
127. The European Union further notes that China seek s to justify the continued use of its prior 
export performance and minimum capital requirements on the basis of its alleged right to adopt WTO-
consistent "quota allocating criteria", its need to "a llocate the quota through criteria that restrict the 
volume of exports to quota volume"237, its right to "maintain quota allocation rules"238, and its right to 
"establish quota allocation rules".239  Yet, China's prior export performance and minimum capital 
requirements are not "export quota allocation criteria" or  part of an "export quota allocation system".  
Rather, China uses these requirements only at the stage of prior examination and approval.  The 
                                                      
233European Union's appellee's submission, para. 201. 
234European Union's appellee's submission, para. 214. 
235European Union's appellee's submission, para. 216. 
236European Union's appellee's submission, para. 224. 
237European Union's appellee's submission, para. 231 (referring to China's appellant's submission, 
para. 443). 
238European Union's appellee's submission, para. 231 (referring to China's appellant's submission, 
para. 444). 
239European Union's appellee's submission, para. 231 (referring to China's appellant's submission, 
para. 568). WT/DS394/AB/R 
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  European Union considers that this is an additi onal reason for which this aspect of China's appeal 
should be dismissed. 
128. The European Union further argues that allowi ng China to treat Chinese-invested enterprises 
differently from foreign-invested enterprises woul d be contrary to the general structure of the 
obligations undertaken by China in Paragraphs  83 and 84 of its Accession Working Party Report. 
7. China's "Operation Capacity" Criterion and Article X:3(a) of the GATT 1994 
129. The European Union requests the Appellate Body to uphold the Panel's finding that China's 
allocation of export quotas through the use of the " operation capacity" criterion is inconsistent with 
Article X:3(a) of the GATT 1994, and to reject Chin a's claim that the Panel act ed inconsistently with 
Article 11 of the DSU.  The European Union disagrees with China's contention that, in the light of the 
absence of evidence demonstra ting WTO-inconsistent applica tion, China was entitled to the 
presumption that it would act in accordance with its WTO obligations.  The European Union contends 
that the Panel found that there are 32 different lo cal departments in China interpreting and applying 
the "operation capacity" criterion, and that Chinese le gislation does not define the notion of "operation 
capacity" or offer any standard on the basis of which the local departments should assess that 
criterion.  For the European Union, it is theref ore difficult to see how China's 32 local departments 
can always interpret and apply the "operation capacity " criterion in the same way, as a result of their 
own choice.  Rather, the logical conclusion would se em to be that, if the 32 local departments ever 
interpret and apply this in the same wa y, this would be sheer coincidence. 
130. The European Union also takes issue with China's argument that , where an authority is faced 
with a domestic measure of uncertain meaning, the theoretical risk that th e authority might choose a 
WTO-inconsistent meaning does not render the meas ure "as such" WTO-inconsistent.  The Panel did 
not find that the "operation capacity" criterion was "a s such" WTO-inconsistent.  Rather, it found that 
China's administration of its direct allocation of export quotas is inconsistent with Article X:3(a). 
131. In the European Union's view, China attempts to  draw an artificial distinction between types 
of certainty so as to distinguish the facts of the present case from the facts in Argentina – Hides and 
Leather .  Yet, just as the facts in the present ca se create a "very real risk" of administration 
inconsistent with Article X:3(a)240, the panel in Argentina – Hides and Leather  found that the risk  that 
information might be improperly used was sufficient to lead to a finding of unreasonable and partial 
                                                      
240European Union's appellee's submission, para. 319.  WT/DS394/AB/R 
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  administration.
241  The European Union argues therefore that the analysis and findings by the panel in 
Argentina – Hides and Leather support the Panel's analysis and findings in this case. 
132. The European Union stresses that the Panel co rrectly found China's administration of its 
direct allocation of export quotas to be inconsistent with Article X:3(a) on the basis that the "operation 
capacity" criterion could not be applied "'consiste ntly in the same manner, both over time and in 
different places' and 'in respect of all traders'"242,  and that the Panel did not  find that the "operation 
capacity" criterion was per se  inconsistent.243  In other words, contrary  to what China asserts, the 
Panel did not find that a theoretical risk that th e Chinese authorities may exercise their discretion to 
adopt a WTO-inconsistent meaning for the term "operation capacity" thereby renders the measure 
"as such"  WTO-inconsistent.244 
133. The European Union also disagr ees with China's assertion that there is no evidence to support 
the Panel's assessment regarding the likelihood of the risk of inconsistent administration as being 
"very real".245  The Panel's findings that the risk is "v ery real" were supported by the "undisputed 
fact[]" that there is "no definition, standard or guidelines" for the 32 local departments charged with 
interpreting and applying the "operation capacity" criterion.246  The European Union therefore 
requests that the Appellate Body reject China's assertion that the Panel acted inconsistently with 
Article 11 of the DSU in its analysis of this issue. 
8. China's Export Licensing Requirements and Article XI:1 of the GATT 1994 
134. The European Union requests the Appellate Body to uphold the Panel's finding that 
Article 11(7) of the 2008 Export Licence Administration Measures , and Articles 5(5) and 8(4) of the 
2008 Export Licensing Working Rules  are inconsistent with Article XI:1 of the GATT 1994.247  The 
European Union also requests the Appellate Body to  reject China's claim that the Panel erred under 
Article 11 of the DSU by making this finding without a sufficient evidentiary basis.  The 
European Union disagrees with China's argume nt that allowing export licensing agencies the 
                                                      
241European Union's appellee's submission, para. 318 (referring to Panel Report, Argentina – Hides and 
Leather , para. 11.92). 
242European Union's appellee's submission, para. 309 (quoting Panel Reports, para. 7.749). 
243European Union's appellee's submission, para. 309. 
244European Union's appellee's submission, para. 307. 
245European Union's appellee's submission, para. 326. 
246European Union's appellee's submission, para. 327. 
247European Union's appellee's submission, para. 285. WT/DS394/AB/R 
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  "discretion" to grant or refuse export licences is  not inconsistent with Article XI:1 of the 
GATT 1994.
248 
135. The European Union takes issue with China's distinction between discretion to apply or not a 
domestic legal provision that mandates WTO-inc onsistent action, and discretion to apply an 
ambiguous provision in a WTO-consistent manner.  The European Union argues that such a distinction makes little difference to individual  economic operators and other WTO Members.  
China's interpretation would contradict the purpose of  Article XI:1, which is "to protect traders and 
create the predictability  needed to plan future trade".
249  The European Union contends that both types 
of "discretion" create uncertainty which, in turn, "leads to increased  transaction costs and has negative 
economic impact".250 
136. The European Union submits that China's position is inconsistent with the interpretation of 
Article XI:1 of the GATT 1994 given by WTO pane ls.  The discretion accord ed to Chinese licensing 
authorities in this case to require undefined documents  resembles the discretion enjoyed by the Indian 
licensing authorities when granting licences on the basis of unspecified "merits", which the panel in 
India – Quantitative Restrictions  found to be inconsistent with Article XI:1.251 
137. The European Union further disagrees with China's assertion that, where there is an 
"ambiguous" domestic measure that can always be interpreted and applied in a WTO-consistent 
manner, it must be presumed that the respondent w ill abide by its WTO obligations in applying such 
measure.  The "ambiguous" domestic measure could also always be interpreted and applied in a 
WTO-inconsistent manner.  For the European Union,  Article XI:1 protects the rights of traders and 
other WTO Members and "does not create 'presumptions of WTO consistency'" for responding 
parties.252 
138. The European Union also rejects China's asserti on that the Panel acted inconsistently with 
Article 11 of the DSU by making findings under Artic le XI:1 of the GATT 1994 without a sufficient 
evidentiary basis.  Contrary to what China argu es, the Panel did not simply presume "that Chinese 
license-issuing authorities will one day choose to request  additional documents of such a nature so as 
                                                      
248European Union's appellee's submission, para. 253 (referring to China's appellant's submission, 
paras. 569, 580, and 582). 
249European Union's appellee's submission, para. 260 (referring to Panel Report, US – Section 301 
Trade Act , para. 7.84). (emphasis added by the European Union) 
250European Union's appellee's submission, para. 260 (referring to Panel Report, US – Section 301 
Trade Act , para. 7.84). 
251European Union's appellee's submission, para. 263 (referring to Panel Reports, para. 7.920). 
252European Union's appellee's submission, para. 266.  WT/DS394/AB/R 
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  to impose a 'restriction' on export[s]".
253  Instead, based on its understanding of the relevant legal 
provisions, the Panel found that the very existence of China's authorities' discretion to require undefined and unspecific documents "created uncertain ty as to an applicant's ability to obtain an 
export licence", and was therefore inconsis tent with Article XI:1 of the GATT 1994.
254  T h e  
European Union argues that the text of China's re levant measures "was the proper 'evidentiary basis'" 
for the Panel's finding, and that China's assertion that its authorities had never rejected any export 
license application relating to manganese and zinc  was not relevant for the Panel's analysis.255 
D. Claims of Error by the United States – Other Appellant 
1. Conditional Appeal regarding the Panel's Recommendations 
139. The United States and Mexico assert that the out come of the Panel's approach to making 
findings and recommendations in this  dispute is consistent with th e covered agreements and supported 
by the record in this dispute.  Specifically, the Panel properly concluded th at it would make findings 
and recommendations on the measures operating together  (the "series of measures") to impose export 
duties or export quotas on the raw materials at issue.256  The United States and Mexico request the 
Appellate Body to review the Panel's recommendati ons on the export quota and export duty measures 
only in the event that, pursuant to China's ap peal, the Appellate Body reverses the Panel's 
recommendations in paragraphs 8. 8, 8.15, and 8.22 of the Panel Reports and finds that no 
recommendation should have been made by the Pane l on the "series of meas ures" as they existed 
when the Panel was established. 
140. The United States and Mexico submit that the complainants challenged a number of export 
restraints in a "logical way" that reflected the struct ure of the legal instruments that give effect to the 
challenged export duties and export quotas.257  In addition to seeking findings that the measures at 
issue were inconsistent with WTO rules, the co mplainants sought recommendations with respect to 
these measures that would ensure that the export duti es and quotas at issue would be within the scope 
of any future compliance proceedings under Article 21. 5 of the DSU.  According to the United States 
                                                      
253European Union's appellee's submission, para. 280 (quoting China's appellant's submission, 
para. 599). 
254European Union's appellee's submission, para. 281 (quoting Panel Reports, para. 7.948). 
255European Union's appellee's submission, para. 283.  The European Union further contends that 
China's assertion in this respect wa s not proved during the Panel proceeding s, because the complainants did not 
have access to the relevant information in  order to corroborate  or challenge it. 
256United States' other appellant's submission, para. 38 (referring to Panel Reports, paras. 7.17, 7.33, 
7.60-7.68, 7.76, 7.80, 7.83, 7.86, 7.89, 7.94, 7.97, and 7.218-7.224). 
257United States' other appellant's submission, para. 41. WT/DS394/AB/R 
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  and Mexico, the adoption of a recommendation by the DSB was a "critical objective" in achieving a 
"positive solution to the dispute", in terms of Article 3.7 of the DSU.
258 
141. The United States and Mexico highlight that, du ring the Panel proceedings, China tried to 
avoid responsibility for the challenged trade barriers by asking the Panel to "shift the focus" of its 
review from the measures as they existed at the time of the establishment of the Panel to later points 
in time.259  By contrast, the complainants asked the Panel to focus its review on the challenged 
measures in effect at the time of its establishmen t, because focusing on the legal situation at a later 
time would be tantamount to permitting China to "move  the target" and "shield important parts of the 
export restraint regi mes" from scrutiny.260  The United States and Mexico request the Appellate Body 
to make a recommendation that "clearly is aime d at securing a positive resolution to this ongoing 
dispute", as only such a resolution would preven t an "endless loop of WTO dispute settlement 
proceedings".261 
142. In the event that the Appellate Body finds th at no recommendation should have been made by 
the Panel on the "series of measures" as they existe d at the time of Panel establishment, and reverses 
the Panel's recommendations with respect to the re placement measures, the United States and Mexico 
assert that the Panel erred under Articles 6.2, 7.1, 11, and 19.1 of the DSU in not making recommendations on the 2009 export duty and export quota measures that were annually recurring 
and in effect on the date of Panel establishment.   The United States and Mexico note that it is 
"undisputed" that the Panel correctly found that th ese measures, which were annually recurring and in 
existence at the time the Panel was established but  were subsequently supe rseded by other legal 
instruments, were inconsistent with China's obligations under Article XI:1 of the GATT 1994 and 
Paragraph 11.3 of China's Accession Protocol.  However, in the light of Article 19.1 of the DSU and 
the circumstances of this dispute where recurrence of a violation is likely, the Panel erred in not making a recommendation on the basis of its finding th at, on the date the Panel was established, those 
measures were inconsistent with China's WTO obl igations.  According to the United States and 
                                                      
258United States' other appellant's submission, para. 42. 
259United States' other appellant's submission, para. 44 (referring to China's first written submission to 
the Panel, paras. 63-67;  China's second written subm ission to the Panel, paras. 6-18;  and China's opening 
statement at the second Panel meeting, paras. 3-11). 
260United States' other appellant's submission, para. 44 (referring to the complainants' joint oral 
statement at the first Panel meeting, paras. 45 and 51;  United States' second written submission to the Panel, 
paras. 341 and 342;  United States' opening statement at the second Panel meeting, paras. 109-111;  Mexico's 
second written submission to the Panel, paras. 346-348;  and Mexico's opening statement at the second Panel 
meeting, paras. 6-9). 
261United States' other appellant's submission, para. 45.  WT/DS394/AB/R 
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  Mexico, the Panel "misconstrued" its terms of reference and the "relevant point in time" for its 
analysis of these annually recurring measures.
262 
143. The United States and Mexico seek to distinguish the present case from US – Certain EC 
Products , where the Appellate Body found that the panel had erred in making a recommendation on 
an expired measure.  First, unlike US – Certain EC Products , where the measure at issue had ceased 
to exist prior to the establishment of the panel, in  the present dispute, the annual export duty and quota 
measures were in effect on the date the Panel w as established.  Second, the measure at issue in US – 
Certain EC Products was not one that was "maintained over time through the annual recurrence of 
legal instruments";  whereas, in the present dispute,  even though the impugned legal instruments have 
been superseded, these measures nonetheless maintain legal effect through the recurrence of the 
following year's legal instrument.263 
144. The United States and Mexico recall that, throughout the Panel proceedings, China 
introduced, amended, and repealed a number of le gal instruments, decreasing the burden of export 
restraints imposed on bauxite and fluorspar, with a view to justifying the imposition of the export 
restraints on these products under Article XX of  the GATT 1994.  This could have effectively 
prevented the complainants from getting recommen dations on the challenged measures found to be 
inconsistent as of the date the Panel was establishe d.  According to the United States and Mexico, a 
"correct and reasonable interpretation from a systemic  point of view" avoids creating a "loophole" in 
the system whereby complainants could find themse lves "taking aim" at "appearing and disappearing 
targets", and whereby WTO Members could evade a panel's scrutiny by removing measures during 
panel proceedings and reinstating them in the future without any consequences.264 
2. Article VIII:1(a) of the GATT 1994 and Paragraph 11.3 of China's Accession 
Protocol 
145. The United States requests the Appellate Body to reverse the Panel's conclusion that China's 
requirement for enterprises to pay a bid-winning  fee in order to export bauxite, fluorspar, and 
silicon carbide under its export quot a regime is not inconsistent with Article VIII:1(a) of the 
GATT 1994  and Paragraph 11.3 of Chin a's Accession Protocol. 
146. First, the United States alleges that the Panel incorrectly found that China's bid-winning fee is 
not a fee or charge "imposed on or in connection with … exportation" in the sense of 
                                                      
262United States' other appellant's submission, para. 56. 
263United States' other appellant's submission, paras. 60 and 61. 
264United States' other appellant's submission, paras. 70 and 71. WT/DS394/AB/R 
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  Article VIII:1(a), notwithstanding the fact that pa yment of the fee is a legal prerequisite for 
exportation, and is a requirement im posed in relation to the administration of a quantitative restriction.  
The Panel properly recognized that the phrase "on or  in connection with … exportation" has a "broad 
temporal view", and explained that Article VIII:1(a) refers to fees or charges that are applied not only 
"at the moment in time of exportation" but  also "in association with exportation".
265  However, the 
United States contends that the Panel erred by addi ng an additional test, namely that fees and charges 
in connection with exportation would "typically" be li mited to "specific fees, charges, formalities or 
requirements, associated with customs-related documentation, certification and inspection, and 
statistical matters".266  This is also inconsistent with the context provided by Article VIII:4 of the 
GATT 1994, because China's bid-winning fee falls w ithin the examples of items (b) "quantitative 
restrictions" and (c) "licensing" of the list set out in that provision.  In addition, the United States 
argues that the Panel's reliance on the GATT panel report in US – Customs User Fee does not support 
the conclusion that the bid-winning fee is not a fe e imposed on or in connection with exportation, 
because the part of that GATT panel's reasoning cite d by the Panel in the present case relates to the 
meaning of the term "services rendered" and not to  the meaning of "on or in connection with … 
exportation". 
147. Second, the United States alleges that the Panel erred in concluding that Article VIII of the 
GATT 1994 is not applicable to China's bid-winni ng fee because it does not relate to any service 
rendered.  The Panel correctly concluded that the bid-winning fee is not related to the approximate 
cost of a service rendered, but, for the United States, this conclusion weighs in favour of a finding that 
the fee is inconsistent with Article  VIII:1(a), and not of a finding that the fee falls outside the scope of 
Article VIII altogether.  The latter finding would tu rn Article VIII on its head, allowing a Member to 
impose any fee at any level, even where there was no service rendered. 
148. The United States also takes issue with the Panel's statement that, because bid-winning fees 
would necessarily be "variable", such fees c ould not be related to any service rendered.267  The mere 
fact of "variability" does not mean that a fee is necessarily disconnected from services rendered.  In 
addition, a finding that a certain type of fee might al ways be inconsistent with Article VIII:1(a) does 
not mean that the fee, for that reason alone, falls ou tside the scope of Article VIII.  Instead, in the 
United States' view, if it does not meet the requireme nt of being limited to the approximate cost of 
services rendered, then such a fee is inconsistent with Article VIII:1(a). 
                                                      
265United States' other appellant's submission, para. 19 (quoting Panel Reports, para. 7.823). 
266United States' other appellant's submission, para. 20 (quoting Panel Reports, para. 7.832). 
267United States' other appellant's submission, para. 35 (referring to Panel Reports, para. 7.850).  WT/DS394/AB/R 
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  149. Finally, the United States submits that the Pane l erred in finding that China's imposition of a 
bid-winning fee is not inconsistent with Paragra ph 11.3 of China's Accession Protocol.  The Panel's 
analysis of the bid-winning fee under Paragraph 11.3 of the Accession Protocol flowed from its 
Article VIII:1(a) analysis, and was therefore similarly flawed. 
E. Claims of Error by Mexico – Other Appellant 
1. Conditional Appeal regarding the Panel's Recommendations 
150. Mexico incorporates by reference into its other appellant's submission the arguments 
concerning the Panel's recommendations on annual ex port quota and export duty measures set out in 
section IV of the United States' other appellant's submission.268 
2. Involvement of the CCCMC in the Allocation of Export Quotas and 
Article X:3(a) of the GATT 1994 
151. Mexico requests the Appellate Body to reverse the Panel's findings that the involvement of 
the CCCMC in China's administration of its export quota regime is consistent with Article X:3(a) of 
the GATT 1994, including the Panel's findings con cerning the interpretation and application of 
Article X:3(a).269  Mexico contends that the Panel erred in  its interpretation of Article X:3(a) by 
requiring complainants bringing "as such" claims to demonstrate that a challenged measure 
necessarily leads to partial and/or unreasonable admini stration.  Since Mexico's claims relate to the 
structure rather than the application of China's quota allocation system, no evidence of actual partial 
or unreasonable administration was required, nor was it necessary to show that  partial or unreasonable 
application would inevitably result.  To require  evidence of partiality or unreasonableness would 
"ignore[] the realities of the social and political cont ext in which the trade association's activities take 
place".270 
152. The Panel does not explain the legal basis for its "very real risk" standard, which is not 
reflected in the text of Article X:3(a).271  However, since the CCCMC is made up of competitors, 
regardless of its administrative function, Mexico c ontends that "it must be assumed that a significant 
                                                      
268Mexico's other appellant's submission, para. 16 (referring to United States' other appellant's 
submission, section IV). 
269Mexico's other appellant's submission, para. 61. 
270Mexico's other appellant's submission, para. 31. 
271Mexico's other appellant's submission, para. 36. WT/DS394/AB/R 
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  possibility exists" that the CCCMC's decisions will la ck objectivity and "be distorted in some degree", 
and that applicants' confidential inform ation "may be leaked" to competitors.
272 
153. Mexico suggests that the involvement of the CCCMC in the quota allocation process "lead[s] 
to an inherent conflict of interest" that "results in  partial or unreasonable" administration contrary to 
Article X:3(a).273  A risk of inconsistent administration ex ists whenever a private party "responsible 
for assisting in the administration … has commercial interests" adverse to those of the applicants.274  
This risk increases when the private party "exerc ises discretionary authority over applicants", and 
becomes even more problematic when the private party "is granted access to the confidential business 
information" of the applicants.275 
154. Specifically, in the context of partial administra tion, Mexico contends that the Panel's finding 
that the CCCMC played a purely "administrative/ clerical function" in the quota administration 
process is factually incorrect.276  Even assuming arguendo that the CCCMC's role is merely 
administrative, it may still present a "very real risk" of partial administration.277  The panel in 
Argentina – Hides and Leather  found partial administration where a private party association with 
conflicting commercial interests played an observatory  role in the customs classification process, but 
was, according to Mexico, not in a position to influe nce the result of the process.  While the Panel in 
this dispute "purported to agree with [this] appro ach", it then "effectively disregarded" it by finding 
that an inherent conflict of interest can be remedied  if the party with the adverse interest does not have 
"influence in the process".278  Mexico suggests that the fact that China's export quota regime 
"inherently contains the possibility of disclosur e of confidential business data to commercial 
competitors" means that its administration is unr easonable, even if the confidential information 
submitted by quota applicants is require d and relevant to the CCCMC's task.279 
155. Finally, Mexico contends that the Panel failed to make an objective assessment of the facts as 
required by Article 11 of the DSU.  Rather than ev aluating the evidence on record in its totality, the 
Panel only considered isolated aspects of China's regime and ignored other evidence regarding the 
CCCMC's responsibilities.  If the Panel had made an objective assessment, it would have found that 
                                                      
272Mexico's other appellant's submission, para. 58. 
273Mexico's other appellant's submission, para. 39. 
274Mexico's other appellant's submission, para. 39. 
275Mexico's other appellant's submission, para. 39. 
276Mexico's other appellant's submission, para. 43. 
277Mexico's other appellant's submission, para. 42. 
278Mexico's other appellant's submission, para. 42 (referring to Panel Reports, para. 7.777). 
279Mexico's other appellant's submission, para. 46.  WT/DS394/AB/R 
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  the CCCMC's role is not purely administrative, and that the CCCMC has "a significant amount of 
discretion" regarding which applicants receive export quotas.
280  For example, in the context of the 
direct quota allocation system for coke, the CCCMC  is the "sole administrative division" that 
"reviews , evaluates , and recommends  which applicants qualify for consideration by MOFCOM".281  In 
the context of the quota bidding system, the CCCMC not only plays a significant role in the 
composition of the Bidding Offices, but also "evalu ates, verifies, and recommends applicants" with 
respect to certain raw materials.  In addition, while the CCCMC does not make final determinations, 
its verification of applicants' qualifications fo r consideration without any "real oversight" has 
"obvious implications" for the final outcomes.282  In Mexico's view, had the Panel made an objective 
assessment of this matter, it would have found that  the requirement to provide confidential business 
information to the CCCMC "created an inherent conf lict of interest that result[ed] in a partial and 
unreasonable administration".283 
F. Claims of Error by the European Union – Other Appellant 
1. Conditional Appeal regarding the Panel's Recommendations 
156. The European Union submits a conditional appeal  in the event the Appellate Body were to 
accept the relevant ground of appeal raised by China and reject the relevant other appeals submitted 
by the United States and Mexico.  In that case, the European Union would argue that the Panel erred 
when it found that the European Union "requested the Panel not to make findings or recommendations 
on the legal instruments taking effect on 1 January 2010" and that the European Union "narrowed the 
Panel's terms of reference during the course of the proceedings".284  The European Union submits 
several arguments in support of its assertion. 
157. First, the European Union obser ves that the Panel relied on th e European Union's statement 
that it "agrees with the views expressed by th e United States and Mexico in their opening 
statement".285  The European Union submits that it "nev er explicitly or implicitly stated that it 
withdraws its claims on replacement measures, or that it narrows the Panel's terms of reference".286  
                                                      
280Mexico's other appellant's submission, para. 53. 
281Mexico's other appellant's submission, para. 53. (original emphasis) 
282Mexico's other appellant's submission, para. 56. 
283Mexico's other appellant's submission, para. 60. 
284European Union's other appellant's submission, para. 3 (referring to Panel Reports, paras. 7.21 
and 7.22). 
285European Union's other appellant's submission, para. 21 (referring to Panel Reports, para. 7.21 and 
footnote 62 thereto). 
286European Union's other appellant's submission, para. 25. WT/DS394/AB/R 
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  The European Union argues that "[a] simple statem ent that a party generally agrees with the views 
expressed by the other complainants cannot be interp reted as that party's incorporation of the other 
complainants' claims and arguments into its own case."
287  Therefore, the Panel erred in finding that 
the European Union requested the Panel to "narrow" its terms of reference.288 
158. Second, with respect to the Panel's reliance on the European Union's argument that the legal 
instrument subjecting bauxite to an export duty in 20 09 was within the Panel's terms of reference, the 
European Union alleges that the statement of the European Union to which the Panel refers did not 
discuss replacement measures at all.  Instead, it discussed the way the Panel should treat expired 
measures that were not replaced, and could not have been the basis for a finding that the 
European Union had with drawn its claims on measures that were replaced. 
159. Third, with respect to the Panel's reliance on the European Union's inclusion of only one 
measure that took effect after 1 January 2010 in cer tain tables provided to the Panel in response to 
questions, the European Union observes that the Pa nel asked for the tables in  order to assess China's 
assertion that the European Union's first written submission to the Panel did not specify the challenged legal instruments in sufficient detail.  The European Union considers that there was no 
basis for the Panel to consider, based on these res ponses, that the European Union was requesting the 
Panel not to make findings on legal instru ments taking effect after 1 January 2010. 
160. In the European Union's view , since the Panel erred in excluding "the 'amendments or 
extensions, replacement measures, renewal measur es and implementing measures' that took effect 
after January 1 2010" from its terms of reference, th e Panel acted inconsistently with its obligations 
under Article 7.1 of the DSU, which obliges pa nels to respect their terms of reference.
289  According 
to the European Union, a panel's interpretation of  a party's written submissions, oral statements, and 
replies to questions constitute a part of the panel' s assessment of the "matter" before it and thus, the 
Panel's failure to make an objective assessment in th is respect was inconsistent  with Article 11 of the 
DSU.  The European Union also argues that, as a re sult of the Panel's errone ous determination of its 
terms of reference, and its "consequent failure" to make findings on the consistency of the 
replacement measures, the Panel failed to recommend  that China bring its replacement measures into 
compliance with the covered agreements, thereby acting inconsistently with Article 19.1 of the 
DSU.290  The European Union requests the Appellate Bo dy to complete the Panel's analysis and find 
                                                      
287European Union's other appellant's submission, para. 8. 
288European Union's other appellant's submission, para. 8. 
289European Union's other appellant's submission, para. 46. 
290European Union's other appellant's submission, paras. 46-49.  WT/DS394/AB/R 
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  that the 2010 replacement measures are inconsistent with China's obligations under Article XI of the 
GATT 1994;  and to recommend that China bring the measures into compliance with its WTO 
obligations. 
G. Arguments of China – Appellee 
1. Conditional Appeals of the United Stat es and Mexico regarding the Panel's 
Recommendations 
161. China recalls that the appeals by the Unite d States and Mexico are conditional upon the 
Appellate Body upholding China's appeal that th e Panel was not entitled to make a recommendation 
regarding the "series of measures" that extends to  replacement measures.  China highlights that, in 
their conditional other appeal, the United States and Mexico requests the Appellate Body to find that 
the Panel erred in failing to make a recommenda tion regarding the expired 2009 measures that 
extends to replacement measures.  However, if the Appellate Body finds that the recommendation 
regarding a "series of measures" cannot extend to re placement measures, as requ ested by China, then 
a recommendation regarding the expired 2009 measur es cannot extend to the replacement measures 
either, because they were excluded fro m the Panel's terms of reference. 
162. Regarding the argument by the United States and Mexico that the Appellate Body's findings 
in US – Certain EC Products do not apply to measures that expire after a panel's establishment, China 
submits that the Appellate Body's finding in that case was not dependent on the measure at issue 
expiring before a panel's establishment.  Rather, the Appellate Body's finding is premised on a 
"straightforward" view that, if a measure no longer  exists, it cannot be modified or withdrawn, and 
that, therefore, there is no legal basis for a r ecommendation under Article 19.1 of the DSU, because 
the DSB cannot "compel" a Member to undert ake action that can no longer be undertaken.291  I n  
support of its argument, China refers to the panel report in US – Poultry (China) , where the panel 
refused to make a recommendation regarding th e impugned US measure in that case because the 
measure had expired after th e panel's establishment. 
163. China observes that the United States and Mexico  distinguish between "legal instruments" 
and "measures"292, and suggests that their conception of a "measure" consists of an "' ongoing conduct ' 
that stretches into the future through 'individual le gal instruments'", with the alleged ongoing conduct 
                                                      
291China's appellee's submission, paras. 84 and 85. 
292China's appellee's submission, para. 89 (referring to United States' other appellant's submission, 
para. 61;  and Mexico's other appellant's submission, paras. 5 and 6). (emphasis added by China omitted) WT/DS394/AB/R 
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  in this case being the "maintenance" of export duties and quotas on certain products "over time".
293  
China notes that the particular arguments put forwar d by the United States and by Mexico are "highly 
reminiscent" of the arguments made by Brazil and by the Eu ropean Union in US – Orange Juice 
(Brazil) and US – Continued Zeroing , respectively, but contends that these "analogies are 
misplaced".294  Unlike in US – Continued Zeroing and US – Orange Juice (Brazil) , the complainants 
did not identify any "'ongoing conduct' measure th at 'serves to maintain the imposition of export 
duties and quotas over time'" in their panel requests.295 
164. According to China, the evidentiary standard for demonstrating the existence of an "ongoing 
conduct" measure is high, and requires a "'density ' of facts, over time, to demonstrate [its] 
existence".296  China asserts that, in the present dispute, the complainants have not even attempted to 
prove the existence of "'ongoing condu ct' through a string of annual measures".297  China notes that 
during the Panel proceedings, the United States a nd Mexico argued that the 2009 and 2010 measures 
did not form a "continuum of 'ongoing conduct'" that serves to maintain the same export duties and 
quotas over time, arguing instead that the 2010 meas ures were "substantively different" and "were 
irrelevant to the legal question before the Panel".298  For these reasons, China asserts that the 
complainants "neither challenged nor proved the existe nce of a series of annual measures that 'serve to 
maintain the imposition of export duties and quotas over time'".299 
165. China disagrees with the argument made by th e United States and by Mexico that, if no 
recommendation were made regarding the replacement  measures, there would be no resolution to the 
dispute, thereby creating a "loophole in the system".300  According to China, a Member's strategic 
choices about which acts and omissions it challenges do not create a "loophole";  instead, China 
highlights that the "responsibility" for a complain ant's choices lies "squarely" with the complainant.301  
The "fundamental flaw" in the United States' a nd Mexico's arguments is that they seek a 
recommendation that "stretches" to include repl acement measures that they themselves expressly 
                                                      
293China's appellee's submission, para. 90. (original emphasis) 
294China's appellee's submission, paras. 91 and 92. 
295China's appellee's submission, para. 93. 
296China's appellee's submission, para. 94 (referring to Panel Report, US – Orange Juice (Brazil) , 
paras. 7.175 and 7.177, in turn referring to Appellate Body Report, US – Continued Zeroing , para. 191). 
297 China's appellee's submission, para. 95. 
298China's appellee's submission, para s. 95-97 (referring to United States' second written submission to 
the Panel, para. 338;  Mexico's second written submission to the Panel, para. 343;  and the complainants' joint 
opening statement at the first Panel meeting, para. 52). 
299China's appellee's submission, paras. 97 and 98. 
300China's appellee's submission, paras. 99 and 100. 
301China's appellee's submission, para. 101.  WT/DS394/AB/R 
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  excluded from the dispute.
302  Finally, China "strongly objects" to the argument that, during the Panel 
proceedings, it "moved the target" in  order to "evade 'responsibility'"303;  rather, China recognized that 
the Panel had discretionary authority to make fi ndings regarding the expired 2009 measures and to 
make findings and recommendations on the 2010 replacement measures. 
2. Conditional Appeal of the Europ ean Union regarding the Panel's 
Recommendations 
166. China agrees with the European Union that an  objective assessment of the parties' arguments 
forms part of a panel's obligations  under Article 11 of the DSU.  However, China claims that the 
Panel did undertake an objective assessment of the European Union's arguments, and requests the 
Appellate Body to reject the European Union's clai ms of error.  China argues that, even though the 
Panel did not refer to the complainants' joint opening  statement at the first Panel meeting in finding 
that the European Union had joined  the United States and Mexico in withdrawing its claims regarding 
the replacement measures, the objectivity of the Pane l's assessment must be assessed in the light of 
this joint statement.  In response to the European  Union's argument that its statement of agreement 
with the United States' opening statement at the sec ond Panel meeting was only a "simple statement of 
solidarity"304, China argues that, whatever the "subjective intentions" of the European Union, the 
Panel was required to judge the Eu ropean Union's statement "'objectiv ely' on the basis of the plain 
meaning of the words used".305  According to China, in assessing the European Union's remarks, the 
Panel took them at "face value" and did not commit any legal error.306 
167. China also disagrees that the table of measure s submitted by the European Union was only for 
the preparation of the descriptive part of the Pane l Reports and that the Panel therefore erred in 
relying on it for determining its terms of referen ce.  The European Union' s responses were used for 
the purpose for which they were given, that is, "t o clarify the rather uncertain scope of the matter 
before the Panel".307  China highlights that the European Un ion gave the same response regarding the 
2010 replacement measures in two separate instances a nd, therefore, the European Union's response 
was not influenced by the Panel's stated purpose of  seeking guidance in drafting the descriptive part of 
its Reports.  China "sees no reason" why responses to  questions posed by a panel cannot be used to 
                                                      
302China's appellee's submission, para. 102. 
303China's appellee's submission, paras. 107 and 108 (r eferring to China's first written submission to the 
Panel, paras. 51 and 70). 
304China's appellee's submission, para. 132 (quoting European Union's other appellant's submission, 
para. 23). 
305China's appellee's submission, para. 133. (emphasis omitted) 
306China's appellee's submission, paras. 131-134. 
307China's appellee's submission, para. 123. WT/DS394/AB/R 
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  determine that a complainant has withdrawn its claims as, by definition, a complainant can only 
"impart" such information after the panel request has been filed.
308  In the light of these arguments, 
China asserts that the Panel properly concluded from the European Union's submissions "as a whole" 
that the European Union had withdrawn its cl aims regarding the 2010 replacement measures.309 
168. Regarding the European Union's request for the A ppellate Body to complete the analysis with 
respect to Article XI of the GATT 1994, China notes that the Appellate Body has used its authority to complete the analysis "sparingly", "taking care" to  ensure that it respects the "institutional limits" 
placed on its authority.
310  In China's view, the panel is the "t rier of facts" and the Appellate Body 
cannot "seek facts" or make "factual findings".311  China contends that the European Union has not set 
out an adequate basis for the Appella te Body to complete the analysis .  First, the European Union has 
not stated which replacement measures it now wishes to be the subject of findings and 
recommendations.  Second, although the European Un ion requests the Appellate Body to find that 
certain export duties violate Article XI of the GATT 1994, neither the European Union's panel 
request, nor the tables submitted by it, include a clai m that China's export duties are inconsistent with 
Article XI.  Third, China highlights that the Eur opean Union has not advanced any legal argument in 
support of its request to the Appellate Body to comp lete the analysis.  Moreover, China notes that the 
European Union has not identified any facts that  would be relevant to the Appellate Body's 
completion of the analysis. 
3. Involvement of the CCCMC in the Allocation of Export Quotas and 
Article X:3(a) of the GATT 1994 
169. China requests the Appellate Body to deny Me xico's appeal and uphold the Panel's finding 
that the involvement of the CCCMC in the administra tion of China's export quota regime is consistent 
with Article X:3(a) of the GATT 1994.312  China contends that Mexico's interpretation of 
Article X:3(a) is flawed, specifically with respect to the legal standard and the evidence required to 
meet that standard in the context of "as such" cl aims.  China also contests Mexico's submission that 
the Panel failed to make an objective assessment of  the matter as required by Article 11 of the DSU. 
                                                      
308China's appellee's submission, paras. 128 and 129. 
309China's appellee's submission, para. 135. 
310China's appellee's submission, para. 137 (referring to Appellate Body Report, Australia – Apples , 
para. 368;  Appellate Body Report, Australia – Salmon , paras. 209, 212, 241, and 255;  Appellate Body Report, 
Canada – Autos , paras. 133 and 144;  Appellate Body Report, Korea – Dairy , para. 102;  Appellate Body 
Report, Korea – Various Measures on Beef , para. 128;  Appellate Body Report, US – Continued Zeroing , 
para. 189;  and Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 438). 
311China's appellee's submission, para. 137. 
312China's appellee's submission, paras. 13 and 263.  WT/DS394/AB/R 
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  170. China submits that Mexico's proffered legal st andard for "as such" claims is erroneous and 
contrary to the Appellate Body's approach, an d should therefore be rejected.  Based on an 
interpretation of the term "adminis ter", and consistent with the re quirement that a Member provide 
"solid evidence"
313  in support of such a claim, the Appellate Body has found that a complainant 
challenging a measure "as such"  under Article X:3(a) must demonstrate that action foreseen or 
anticipated pursuant to the measure will, at least in defined circumstances, "necessarily lead to" WTO-
inconsistent administration.314  China disagrees with Mexico's assertion that the Panel interpreted 
Article X:3(a) in the context of its "as such" cha llenge so as to require a demonstration of specific 
instances of actual unreasonable or partial administra tion.  Rather, the Panel found that Mexico had 
failed to show that the CCCMC " can exercise any discretion " in such a way as to constitute WTO-
inconsistent administration, much less that th e challenged measure would necessarily lead to WTO-
inconsistent administration.315  China also rejects Mexico's suggestion that requiring evidence of 
partiality or unreasonableness "ignores" certain realities.316  This is not a reason to abandon the 
interpretation stated by the Appellate Body, na mely, that a complainant must provide "solid 
evidence"317 showing how and why the features of the measure and the administrative processes 
challenged "as such" "necessarily lead to" WTO-inconsistent administration.318 
171. Contrary to Mexico's assertion, the Appellate Body report in EC – Selected Customs Matters 
does not provide any support for Mexico's suggestion that the term "uniform" should be interpreted to 
require demonstration that a measure challenged "as such"  "necessarily leads to" non-uniform 
administration, while the terms "impartial" and "reasonable" enable a complainant to benefit from an "assum[ption]  that a significant possibility  [of partial and unreasonable administration] exists".
319  
Indeed, the Appellate Body stated that the "necessaril y leads to" standard arises from an interpretation 
of the term "administer", and applies whether non- uniform, partial, or unreasonable administration is 
                                                      
313China's appellee's submission, para. 190 (referring to Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 217). 
314China's appellee's submission, para. 190 (referring to Appellate Body Report, EC – Selected Customs 
Matters , paras. 201 and 226). 
315China's appellee's submission, para. 203 (quoting Panel Reports, para. 7.783). (emphasis added by 
China) 
316China's appellee's submission, para. 198 (referring to Mexico's other appellant's submission, 
para. 31). 
317China's appellee's submission, para. 199 (referring to Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 217). 
318China's appellee's submission, para. 199 (referring to Appellate Body Report, EC – Selected Customs 
Matters , para. 226). 
319China's appellee's submission, para. 196 (referring to Mexico's other appellant's submission, 
para. 58). (emphasis added by China) WT/DS394/AB/R 
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  alleged.
320  China also points out that the "erroneous presumption of WTO-inconsistency" implicated 
by Mexico's proffered standard would be at odds with the requirement that complainants bear the 
burden of establishing that the administration of a measure is inconsistent with Article X:3(a).321 
172. China contests Mexico's suggestion that the Panel disregarded the proper interpretation of 
Article X:3(a) when it found that the involvement  of the CCCMC in the quota administration regime 
was not WTO-inconsistent.  Rather , the Panel found that "Mexico had failed to demonstrate that the 
defined circumstances it identifies arise  in the present case."322  Specifically, the Panel distinguished 
the CCCMC members from the CCCMC Secretariat, a nd found that the CCCMC Secretariat does not 
have commercial interests adverse to those of the quota applicants.323  In addition, Mexico did not 
establish that the tasks delegated to the CCCMC were more than clerical or administrative, and the 
Panel correctly found that the CCCMC Secretaria t may not exercise significant discretion or 
judgement in evaluating whether applicants meet the eligibility criteria that are "objectively specified 
in Chinese law".324  Moreover, the Panel did not find that the provision of information to the CCCMC 
Secretariat amounted to providing information to quota applicants' competitors, because the Panel had 
found that "[a]pplications for export quotas are pr ovided solely to CCCMC's Minerals & Metals 
Department and not to the membership of the CCCMC itself ".325 
173. China emphasizes that, contrary to Mexico's argument, there is no basis on which the 
Appellate Body can assume that confidential busin ess information submitted by quota applicants to 
the CCCMC Secretariat will be disclosed to their co mpetitors.  In the light of the presumption that 
China will abide by its WTO obligations, the "possibi lity" that such confidential information "may be 
leaked" cannot be assumed.326  While this presumption can be rebutted, Mexico "failed to provide any 
such evidence".327  In fact, rather than providing solid evidence demonstrating that a measure 
challenged "as such" will "necessarily lead to" WTO- inconsistent administration, Mexico conceded 
that the CCCMC Secretariat's involvement in certain  elements of quota administration can be and has 
                                                      
320China's appellee's submission, para. 197 (referring to Appellate Body Report, EC – Selected Customs 
Matters , para. 226). 
321China's appellee's submission, para. 193. 
322China's appellee's submission, para. 211. (original emphasis) 
323China's appellee's submission, para. 212 (referring to Panel Reports, para. 7.774).  China highlights 
the fact that Mexico did not contest this fact during the Panel proceedings ( ibid., para. 212) and that Mexico's 
assertion on appeal that the CCCMC Secretariat has commerc ial interests adverse to applicants is not supported 
by a Panel finding ( ibid., para. 213). 
324China's appellee's submission, para. 236. 
325China's appellee's submission, para. 222 (quoting Panel Reports, para. 7.778). (emphasis added by 
China) 
326China's appellee's submission, para. 230. 
327China's appellee's submission, para. 230. (original emphasis)  WT/DS394/AB/R 
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  been implemented in a WTO-c onsistent manner, thus confir ming that the measures do not 
"necessarily lead to" unreasonable and partial conduct. 
174. With regard to the Panel's assessment of the matter under Article 11 of the DSU, China 
contends that Mexico has merely demonstrated that the Panel, as the trier of facts, concluded that 
Mexico failed to establish that the "CCCMC Secretariat ' can exercise any discretion, partiality or bias 
in the administration' of export quotas".
328  Recalling the relevant standard under Article 11 of the 
DSU, China agrees with Mexico's st atement that the Panel was obliged  "to consider evidence before it 
in its totality"329, but adds that the Appellate Body has al so underscored a panel's discretion to give 
"certain elements of evidence more weight than other elements".330  Furthermore, to support a claim 
of violation under Article 11, "a participant must explain why evidence [not explicitly referred to by 
the panel] is so material to its case that the pa nel's failure explicitly to  address and rely upon the 
evidence has a bearing on the objectiv ity of the panel's factual assessment."331  Mexico failed to 
identify any evidence demonstrating that the CCCMC Secretariat undertakes its delegated quota 
administration tasks with "no real oversight"332, or that it has significant discretion to affect the award 
of quotas. 
175. China maintains that the Panel found the CCCMC S ecretariat's role to be "circumscribed" by 
Chinese law333, and that Mexico had not demonstrated that the CCCMC Secretariat can exercise any 
discretion.  In the context of quotas allocated di rectly, the Panel found the CCCMC Secretariat's role 
to be "limited to assisting MOFCOM"334 in verifying the compliance of applicants with the qualifying 
criteria " objectively specified under  Chinese law ".335  It was also on the basi s of the same evidence 
described by Mexico that the Panel found, with r espect to quotas allocated through bidding, that the 
CCCMC Secretariat assists MOFCOM's Bidding Committe e, which is the "main authority responsible 
for organizing the bidding process".336  Having reflected on all of the evidence concerning the roles of 
                                                      
328China's appellee's submission, paras. 22 and 261 (quoting Panel Reports, para. 7.783). (emphasis 
added by China) 
329China's appellee's submission, para. 243 (quoting Appellate Body Report, EC – Fasteners (China) , 
para. 441). 
330China's appellee's submission, para. 244 (quoting Appellate Body Report, EC – Asbestos , para. 161). 
331China's appellee's submission, para. 244 (quoting Appellate Body Report, EC – Fasteners (China) , 
para. 442). 
332China's appellee's submission, para. 246 (quoting Mexico's other appellant's submission, para. 56). 
333China's appellee's submission, paras. 21 and 251 (referring to Panel Reports, paras. 7.780 and 7.781). 
334China's appellee's submission, para. 255 (quoting Panel Reports, para. 7.780). 
335China's appellee's submission, para. 255. (original emphasis) 
336China's appellee's submission, paras. 251 and 258 (quoting Panel Reports, para. 7.766). WT/DS394/AB/R 
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  the CCCMC departments in quota administration, th e Panel concluded that Mexico had failed to 
establish "even the 'risk'" of WTO-inconsistent administration.
337 
4. Article VIII:1(a) of the GATT 1994 and Paragraph 11.3 of China's Accession 
Protocol 
176. China requests the Appellate Body to uphold th e Panel's finding that the bid-winning price 
imposed by China does not constitute a fee or char ge of whatever character imposed in connection 
with exportation within the meaning of Article VIII: 1(a) of the GATT 1994, and that the bid-winning 
price is not a charge applied to exports falling within the scope of Paragraph 11.3 of China's 
Accession Protocol. 
177. China maintains that the Panel was correct to conclude, based on the substantive nature of 
China's bidding procedure, that the bid-winning pri ce does not constitute a fee or charge imposed "on 
or in connection with … exportation".  In additi on, the Panel correctly found that the bid-winning 
price is not a fee or charge in the sense of Article V III:1(a), because it is not collected in exchange for 
a "service rendered".  China disagrees with the United States' contention that, if no service is rendered, a fee or charge will be inconsistent with Article VIII:1(a), rather than fall outside the scope 
of the provision.  Instead, Article VIII:1(a) is m eant to ensure that, when  services are rendered, the 
amount charged for those services is proportionate to their cost.  Where there is no service, however, a 
fee or charge is not related to any "service rendere d", and, therefore, the "mischief addressed by the 
clause", namely charging an excessive amount for "services rendered", is not present.
338 
178. China also claims that, in order to establish that a fee or charge is inconsistent with 
Article VIII:1(a), a complainant must demonstrate that  the fee or charge is inconsistent with every 
condition set out in Article VIII:1(a).  In China's view, the GATT panel report in US – Customs User 
Fee stands for that proposition.339  Furthermore, Article VIII:1(a) would have been drafted differently 
had the drafters intended the provision to constitu te a residual prohibition in the sense advanced by 
the United States.  For instance, the provision coul d have been drafted to say "no fees or charges 
(other than duties or internal tax es) shall be instituted or maintained on in connection with importation 
or exportation, unless limited in amount to th e approximate cost of a service rendered".340  C h i n a  
further contends that, even if the bid-winning price were to fall within the scope of Article VIII:1(a), 
                                                      
337China's appellee's submission, para. 260 (quoting Panel Reports, para. 7.783). 
338China's appellee's submission, para. 302. 
339China's appellee's submission, para. 307 (referring to GATT Panel Report, US – Customs User Fee , 
para. 69). 
340China's appellee's submission, para. 303.  WT/DS394/AB/R 
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  the United States did not demonstrate that the bid-winning price "represents an indirect protection or a 
taxation of exports for fiscal purposes".
341 
179. China notes that quota allocation through auctioning  ensures that the most  efficient producers 
are granted the right to export and that this ensures allocation of quotas in the least trade-distorting 
manner.  Finding China's bid-winning price to be inc onsistent with Article VIII:1(a) would mean that 
all quota allocation accomplished through bidding or auctioning by WTO Members would be prohibited. 
180. Finally, China submits that the United States did not establish that the bid-winning price is 
inconsistent with Paragraph 11.3 of China's Accession Protocol.  The United States' argument is based 
solely on the allegation that the Panel's analysis  with respect to Paragraph 11.3 flowed from its 
erroneous analysis of Article VIII:1(a).  China maintains that the Panel's finding under 
Article VIII:1(a) was correct, and that, therefore, th e Panel was also correct in finding that the bid-
winning price is not inconsistent with Pa ragraph 11.3 of China's Accession Protocol. 
H. Arguments of the Third Participants 
1. Brazil 
181. With respect to China's claim that the Pane l erred in finding that Section III of the 
complainants' panel requests complied with Artic le 6.2 of the DSU, Brazil cautions that an 
excessively formalistic approach to the interpretati on of Article 6.2 could unjustifiably increase the 
procedural burden on the parties.  Brazil submit s that the Appellate Body has identified two major 
objectives of a panel request:  a jurisdictional func tion and a due process function.  In situations 
affecting the proper delimitation of a panel's jurisdic tion, corrections or clarifications of an alleged 
error or imprecision cannot modify the scope of the dispute as expressed in the panel request.  Conversely, where defects in the panel request alle gedly affect the due process function of the request, 
subsequent submissions may be ta ken into consideration by panels  and the Appellate Body in the 
analysis of whether the due process rights of a pa rty have been prejudiced.  Therefore, subsequent 
submissions should not, in Brazil's view, be a priori  excluded from serving as evidence relevant to 
that legal determination. 
182. Brazil maintains that the Panel correctly inte rpreted the words "temporarily applied" in 
Article XI:2(a) of the GATT 1994.  A "temporary" measure must either have a time-limit for its 
                                                      
341China's appellee's submission, para. 313. WT/DS394/AB/R 
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  application, or must address a passing need, the term ination of which is foreseeable at some point in 
the near future.  If a measure is applied to addr ess a permanent need, its design and structure would 
indicate that it is not "temporarily" applied.  As such, Brazil notes that a shortage of exhaustible 
natural resources caused by declining reserv es cannot be addressed by measures "temporarily 
applied".  Brazil also highlights that Articles XI :2(a) and XX(g) of the GATT 1994 serve different 
purposes by means of different requirements.  While  Article XX(g) disciplines long-term conservation 
policies, Article XI:2(a) relates to temporary supply crises.  Therefore, Brazil contends that measures 
adopted pursuant to Article XI:2(a) are not intend ed to deal with perman ent needs, because such 
needs, in any event, could not be addressed by temporary measures. 
183. Brazil argues that the Panel read into the phr ase "made effective in conjunction with" in 
Article XX(g) of the GATT 1994 two cumulative requi rements, namely, one relating to the joint 
application of domestic and intern ational restrictions, and the other relating to the effectiveness of 
domestic restrictions.  Brazil quotes fro m the Appellate Body reports in US – Gasoline and US – 
Shrimp in support of the proposition that, in previous  disputes, the expression "made effective in 
conjunction with" has been found to relate only to th e joint application of domestic restrictions with 
measures relating to the conservati on of exhaustible natural resources.
342  Brazil contends that, while 
the GATT panel in Canada – Herring and Salmon may have interpreted differently the phrase "made 
effective in conjunction with", the Spanish and Fren ch versions of Article XX(g) confirm that the 
Appellate Body's interpretation in US – Gasoline and US – Shrimp was correct.  Article XX(g) aims 
simply at ensuring even-handedness in the applica tion of measures relating to the conservation of 
exhaustible natural resources. 
2. Canada 
184. Canada submits that the Appellate Body should  uphold the Panel's finding that Article XX of 
the GATT 1994 is not available as a defence for inc onsistencies with Paragraph 11.3 of China's 
Accession Protocol.  First, the ordinary meaning of the Note to Annex 6 of China's Accession 
Protocol "does not support the argument that China may impose export duties on any products at any rate in 'exceptional circumstances'", because the phrase "exceptional circumstances" is used only with 
respect to increasing the rates applied at the time of China's accession to the maximum levels set out 
                                                      
342Brazil's third participant's submission, pa ra. 26 (quoting Appellate Body Report, US – Gasoline , 
pp. 20-21, DSR 1996:I, 3, at 19-20) and para. 27 (quoting Appellate Body Report, US – Shrimp , paras. 143 
and 144).  WT/DS394/AB/R 
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  in Annex 6.
343  The Panel, therefore, erred in "acquiescing"344 to the European Union's argument that 
China acted inconsistently with Paragraph 11.3 by  not consulting with affected Members before 
imposing export duties on raw materials that are not listed in Annex 6, as there is no right to impose 
export duties on those products in the first place.  Ca nada argues that the legal effect of the reference 
in Paragraph 11.3 to Article VIII of the GATT 1994 is to "circumscribe" the application of export 
charges by China in accordance with  Article VIII, and Article XX is not a "necessary extension" of 
Article VIII such that it may be assumed to be  incorporated by reference to Article VIII.345  Canada 
also asserts that the Panel was correct in findi ng that Paragraph 170 of China's Accession Working 
Party Report repeats China's commitments under GA TT rules, and is not related to export duties 
prohibited under Paragraph 11.3.  Relying on the or dinary meaning and context of China's Accession 
Protocol, Canada does not dispute that Article XX is available to justify inconsistencies with the 
GATT 1994 obligations set out in Paragraph 170, but contends that there is no suggestion that 
obligations going beyond the requirements of th e GATT 1994, which China undertook pursuant to 
Paragraph 11.3, are subject to the Article XX exceptions.  If the negotiators had intended to 
incorporate Article XX justifications into Paragr aph 11.3, they could have incorporated language 
similar to that contained in Paragr aph 5.1 of China's Accession Protocol. 
185. With respect to the words "temporarily applie d", Canada disagrees with China's contention 
that the Panel found that Article XI:2(a) imposes an  "absolute limit" on the time period for which 
export restrictions may be imposed.346  Rather, the Panel found that the duration of an export 
restriction must match the time it takes to prevent or relieve a critical shortage, a finding with which 
Canada agrees.  Measures that are reviewed regul arly, but imposed indefinitely, as the Panel found 
China's measures to be, are not applied for a fi xed time, and hence fall outside the scope of 
Article XI:2(a).  Canada also disagrees with Chin a's contention that the Panel's interpretation of the 
phrase "critical shortages" excludes from the scope  of Article XI:2(a) export restrictions on non-
renewable, exhaustible natural r esources.  Rather, the Panel's in terpretation permits a WTO Member 
to relieve a critical shortage of an exhaustible natural resource thr ough the temporary application of an 
export restriction as long as the shortage is caused by a factor other than the resource's inherent 
exhaustibility.  With respect to the relationship between Article XI:2(a) and Article XX(g) of the 
GATT 1994, Canada argues that the Panel did not find that the two provisions are mutually exclusive, 
                                                      
343Canada's third participant's submission, para. 14. 
344Canada's third participant's submission, para. 16. 
345Canada's third participant's submission, para. 18. 
346Canada's third participant's submission, para. 36 (referring to China's appellant's submission, 
paras. 337-341). WT/DS394/AB/R 
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  but rather that the absence in Article XI:2(a) of  the safeguards found in the chapeau of Article XX 
supports the conclusion that restrictions under Ar ticle XI:2(a) must be of a limited duration. 
186. Canada agrees with the United States that the Panel erred in finding that the bid-winning fee 
is consistent with Article VIII:1(a) of the GATT 1994 and with Paragraph 11.3 of China's Accession 
Protocol.  For Canada, the Panel rightly found that the bid-winning fee is a "fee" or "charge" within 
the meaning of Article VIII:1(a).  The Panel erre d, however, in interpreting the phrase "in connection 
with" exportation to cover only charges connected with  "customs-related activities" and in finding that 
only charges collected in exchange for a "service rendered" fall within the scope of Article VIII.
347  
Instead, the Panel should have adopted the same broad interpretation as the panel in China – Auto 
Parts .348  Even if the bid-winning fee is not covere d by Article VIII:1(a) of the GATT 1994, the 
charge constitutes an "export duty" prohibited unde r Paragraph 11.3 of China's Accession Protocol.  
Paragraph 11.3 specifically addresses what Article V III:1 does not, namely, export duties, and as such 
these two provisions "create a tightly woven mesh that catches all charges imposed by the Chinese 
government in connection with exportation".349 
3. Colombia 
187. Colombia submits that the Panel erred by findi ng that Section III of the complainants' panel 
requests "present[ed] the problem clearly" in th e sense of Article 6.2 of the DSU because the 
complainants failed to provide sufficient connecti ons between the 37 listed measures and the 13 listed 
treaty provisions.350  The Appellate Body has found that a complainant must provide a brief summary 
of the case, explaining succinctly how or why the measure at issue is inconsistent with a specific WTO obligation.  In failing to do so, the complain ant renders the due process objective of Article 6.2 
ineffective, because neither the responding party nor th e third parties would be able to identify with 
sufficient clarity the claims or problem at issue. 
188. Colombia submits that the Appellate Body shou ld confirm the Panel's finding that Article XX 
of the GATT 1994 may not be invoked as a justifica tion for inconsistencies with Paragraph 11.3 of 
China's Accession Protocol.  Colombia submits that the Panel erred in finding that China has acted 
inconsistently with Paragraph 11 .3 by not consulting with Members before imposing export duties on 
                                                      
347Canada's third participant's submission, para. 57 ( quoting Panel Reports, para. 7.838) and para. 58 
(quoting Panel Reports, para. 7.844). 
348See Canada's third participant's submissi on, para. 57 (referring to Panel Reports, China – Auto Parts , 
paras. 7.177, 7.190, and 7.191). 
349Canada's third participant's submission, para. 67. 
350Colombia's third participant's submission, para. 2 and heading I.A.1.  WT/DS394/AB/R 
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  raw materials not listed in Annex 6 to the Protocol , because the obligation to consult relates only to 
the products listed in Annex 6, none of which were at issue here.  With resp ect to the reference to 
Article VIII in Paragraph 11.3, Colombia asserts  that the "rule-exception relationship" between 
Article VIII and Article XX of the GATT 1994 shows th at the reference to Ar ticle VIII incorporates 
only that provision's conditions and not the availa bility of the general exceptions to Article XX.
351 
189. Colombia also suggests that irrespective of the applicability of Paragraph 170 of China's 
Accession Working Party Report to export duties, the requirement that such duties be "in full conformity with [China's] WTO obligations " cannot be understood as allowing recourse to 
Article XX.  In accordance with effective trea ty interpretation, the use of the phrase "WTO 
obligations" in Paragraph 170, as compared to "the  WTO Agreement" in Paragraph 5.1 of China's 
Accession Protocol, indicates that the former ex cludes exceptions, whereas the latter covers both 
obligations and exceptions.
352 
190. Colombia contends that the Panel erred in finding that measures relating to exhaustible 
natural resources fall exclusively within the scope of  Article XX(g) and not within Article XI:2(a) of 
the GATT 1994.  The ordinary meaning of the terms of  Article XI:2(a), in their context, suggest that 
the scope of application of the provision is not contingent on whether the product is an exhaustible 
natural resource or not, as any prod uct is potentially covered by Article XI:2(a).  The "ultimate test" is 
whether the product is essential to the exporting Member  or is a "foodstuff" as that term is used in 
Article XI:2(a).353  In Colombia's view, a single measure could be justified under several exceptions 
contained in the GATT 1994, such as Article XI:2(a) and Article XX, so long as they fulfil the particular requirements established in each provision. 
191. Colombia submits that the Panel erred in interpreting the phrase "made effective in 
conjunction with" in Article XX(g) of the GATT 1994 to  require that a measure not only be related to 
the conservation of natural resources, but also ensure  the effectiveness of domestic restrictions on that 
resource.  In Colombia's view, the Panel's interpreta tion is at odds with the interpretation provided by 
the Appellate Body in US – Gasoline  and in US – Shrimp , which did not require such a "dual 
purpose".
354 
                                                      
351Colombia's third participant's submission, para. 22. 
352Colombia's third participant's submission, para s. 30-35 (referring to Appellate Body Report, US – 
Wool Shirts and Blouses , para. 46;  and Appellate Body Report,  China  – Publications and Audiovisual 
Products , para. 223). 
353Colombia's third participant's submission, para. 49. 
354Colombia's third participant's submission, paras. 59 and 60. WT/DS394/AB/R 
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  192. Regarding China's export licensing system, Colo mbia disputes China's contention that the 
"'open-ended' discretion" accorded to Chinese licensing authorities is not sufficien t to conclude that its 
export licensing system constitute a "restric tion" under Article XI:1 of the GATT 1994.
355  I n  
Colombia's opinion, it is not the open-ended na ture (that is, the discretion to choose between a 
WTO-consistent and a WTO-inconsiste nt application of the measure) that is at issue.  Rather, the 
Appellate Body should "focus on the economic cons equences in a given marketplace so as to evaluate 
whether economic operators will interpre t the discretion as [a] 'restriction'".356  Although not " a priori  
a 'restriction'"357, if such discretion causes "a reasonable uncertainty  that will discourage 
exportations", then it constitutes a "rest riction" on exports under Article XI:1.358  This interpretation 
would be in keeping with the purpose of Article XI , which, as China acknowledges, is "to protect the 
competitive opportunities for exports".359 
193. Colombia agrees with China that the Panel erre d in interpreting and a pplying Article X:3(a) 
of the GATT 1994 with regard to the "ope ration capacity" requirement for export quota 
administration.  Specifically, in Colombia's view , the Panel erred in interpreting the meaning of 
"administer" to encompass the complainants' claim and in finding that the complainants challenged 
"the features of an administrative process".360 
4. Japan 
194. Japan notes that the "security and predictability"  of the multilateral trading system, as well as 
the "prompt settlement" of disputes, will be "enda ngered" if panels can make recommendations only 
for measures that have "not cease[d] to exist duri ng panel proceedings", and if the dispute settlement 
process can be "circumvented" through "rapid -fire substitution" or annual revision of 
WTO-inconsistent measures.361  Japan sees the Panel's recommendations on the "series of measures" 
as aimed at plugging this "loophole".362  Japan supports the conditional appeals of the United States 
and Mexico because, in its view, where a challenge d measure is removed before the issuance of a 
                                                      
355Colombia's third participant's submission, para. 65. 
356Colombia's third participant's submission, para. 66. 
357Colombia's third participant's submission, para. 71. 
358Colombia's third participant's submission, para. 66 . (original emphasis)  Colombia substantiates its 
argument on this point by referring to the interpreta tion of the term "restrictions" provided in Panel Report, 
Brazil – Retreaded Tyres , para. 7.370, and Panel Report, Colombia – Ports of Entry , para. 7.240. ( Ibid., 
para. 68) 
359Colombia's third participant's submission, para. 68 (referring to China's appellant's submission, 
para. 548). 
360Colombia's third participant's submission, pa ra. 77 (quoting Panel Reports, para. 7.709). 
361Japan's third participant's submission, para. 12. 
362Japan's third participant's submission, paras. 12 and 13.  WT/DS394/AB/R 
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  panel report and where "factual and/or legal circumst ances" suggest that the measure is likely to be 
renewed, a finding without a recommendation cannot lead to a conclusive settlement of the dispute.
363 
195. Japan submits that the Appellate Body should c onfirm the Panel's finding that Article XX of 
the GATT 1994 may not be invoked as a justification for inconsistencies with Paragraph 11.3 of 
China's Accession Protocol.  Japan doubts that the reference to "exceptional circumstances" in the 
Note to Annex 6 to China's Accession Protocol establishes the applicability of Article XX to 
Paragraph 11.3, and, even if it did, the possibilit y for China to impose higher rates in "exceptional 
circumstances" is meant to apply on ly with respect to the products listed in Annex 6, which are not at 
issue in this dispute.  Moreover, the reference to Article VIII of the GATT 1994 does not confirm the 
availability of Article XX.  China did not invoke Ar ticle VIII for any of the export duties at issue and 
"there seems to be little question" that the duti es in the present dispute are outside the scope of 
Article VIII.364  In fact, export duties do not fall within the substantive scope of any provision of the 
GATT 1994 and, therefore, cannot be inconsistent with the GATT 1994.  On this basis, Japan argues 
that Paragraph 170 of China's Accession Workin g Party Report cannot be interpreted as permitting 
recourse to Article XX in cases of inconsistency w ith Paragraph 11.3 of China's Accession Protocol. 
196. Japan also supports the Panel's interpretati on of the phrase "made effective in conjunction 
with" in Article XX(g).  Japan contends that the Pa nel's analysis and interpretation of Article XX(g) is 
supported by the text and context of the provision, as well as the object and purpose and the structure 
of the GATT 1994.  In particular, Japan asserts that  the Panel's reference to the purpose of an export 
restriction being to render effective domestic restri ctions on production or consumption that serve a 
conservation goal is consiste nt with the approach that has been taken by the Appellate Body as well as 
that of the GATT panel in Canada – Herring and Salmon .  Japan further alleges that China's 
argument appears to imply that the objective or ef fect of a trade-restrictive measure should not be 
relevant to an Article XX(g) analysis, and that th is would reverse a consis tent line of GATT and WTO 
case law requiring a substantial relationship between the trade measure and a genuine conservationist 
goal. 
197. Japan further submits that China "effectivel y glosses over" the difference between limited 
availability and a "critical shortage" of a r esource within the meaning of Article XI:2(a).365  The Panel 
correctly established that there is no possibility of an existing shortage of an exhaustible natural 
                                                      
363Japan's third participant's submission, para. 14. 
364Japan's third participant's submission, para. 30. 
365Japan's third participant's submission, para. 92 (referring to joint appellees' submission of the 
United States and Mexico, para. 153). WT/DS394/AB/R 
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  resource ever to cease to exist, meaning that it will not  be possible to "relieve or prevent" it through 
export restrictions applied on a temporary basis.
366  Furthermore, the phrase "temporarily applied" 
must be read in the context of "critical shortages" .  A shortage of an exhaustible natural resource, by 
its very nature, cannot be restored in the future, and any restrictions imposed to relieve or prevent 
such shortage can therefore not be of a "temporal" nature.367  Japan also supports the 
European Union's argument that the fact that  Article XX(g) allows for derogations from GATT 
obligations under stricter conditions than Article XI :2(a) suggests that the requirements of the latter 
provision must be given a narrow interpretation in order not to render redundant the provision of the 
former.368 
198. Japan contends that the Panel effectively a ddressed China's argument regarding interpreting 
Paragraphs 83 and 84 of China's Accession Workin g Party Report "harmoniously" with Paragraph 5.1 
of China's Accession Protocol.369  That is, the Panel appropriately read Paragraph 5.1 of the Accession 
Protocol to incorporate, as part of the WTO Agreement , the specific commitments China made in 
Paragraphs 83 and 84 of its Accession Working Party Report.370  Japan expresses "serious doubts" 
about China's apparent rationale for applying an  export performance cond ition as a basis for quota 
allocation371, and notes the "significant trade-restrictiv e effects" of China's export performance 
requirement, which make it "effectively impossible" for new entrants to obtain quota share.372  
Finally, Japan insists that China cannot have recour se to the quota eligibility or allocation criteria that 
it expressly committed to eliminate as part of its WTO accession process, and which are significantly 
more trade-restrictive than necessary. 
5. Korea 
199. Korea observes that the complainants "effectiv ely withdrew" their request to review the 2010 
Chinese measures and requested the Panel to  confine its review to the 2009 measures.373  Korea notes 
the "apparent discrepancy" between the Panel's st atement that it would look at the 2009 measures 
only, and its subsequent references to the review  of the "series of measures" acting in concert.374  
                                                      
366Japan's third participant's submission, para. 92. 
367Japan's third participant's submission, para. 94. 
368See Japan's third participant's submission, para. 98 (referring to European Union's statement, second 
written submission to the Panel, para. 206, referenced in Panel Reports, para. 7.293). 
369Japan's third participant's submission, paras. 84 and 85 (referring to Panel Reports, para. 7.665). 
370Japan's third participant's submission, para. 85 (referring to Panel Reports, para. 7.665). 
371Japan's third participant's submission, para. 86. 
372Japan's third participant's submission, para. 87. 
373Korea's third participant' s submission, para. 10. 
374Korea's third participant' s submission, para. 11.  WT/DS394/AB/R 
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  According to Korea, it is not clear whether the "inh erent discretion" accorded to a panel permits such 
a discrepancy.
375  In Korea's view, Article 19 of the DSU requires that only a measure found to be 
inconsistent with a covered agreement can be the subject of a panel's recommendations;  that is, a 
recommendation should be "in parallel" with the challenged measure, and a panel only has the 
"discretion" to "suggest" ways of implementing the recommendation.376  Since the complainants' 
deliberately chose to forego the "nexus-based" clai ms, Korea suggests that the Panel may not have 
been "free to insert" the claim in the subsequent remedy phase of its analysis.377 
200. Regarding the applicability of Article XX to inc onsistencies with Paragraph 11.3 of China's 
Accession Protocol, Korea agrees with the Panel th at, if two legal provisions contain different 
wording in the same article or treaty, they must be  interpreted to have diffe rent meanings.  However, 
the "gravity" and importance of an "Article XX defense" suggests that "[m]ore explicit wording" 
should have been used in this dispute to express the "relinquishment of such an important right".378  
Given the implications for other protocols of acces sion, China's appeal warrants "careful scrutiny".379  
Nonetheless, in Korea's view, the "difference in  tone and nuance" between Paragraph 11.3 and 
Paragraphs 11.1 and 11.2 of China' s Accession Protocol, as well as the context of the other provisions 
of Paragraph 11, supports the Pane l's ultimate conclusion in the pre sent dispute, and should be upheld 
by the Appellate Body.380 
201. Korea suggests that the Panel's finding under Articles X:3(a) and XI:1 of the GATT 1994, 
that "vagueness" in the terms of a law or regulatio n can result in "as such" inconsistencies, requires 
careful scrutiny.381  With regard to the "operation capac ity" requirement under Article 19 of the 
Export Quota Administration Measures , for example, the complainants claimed that the vagueness of 
this term equates to "unlimited discret ion in contravention of the GATT 1994".382  In EC – Selected 
Customs Matters , however, the Appellate Body found that the mere showing of the existence of non-
uniform features, for example, is not sufficient to prove an inconsistency with Article X:3(a) of the 
GATT 1994.  Rather, the complainant must show that  these features necessarily lead to non-uniform, 
partial or unreasonable administration.  Furthe rmore, "it seems undeniable" that China's export 
                                                      
375Korea's third participant' s submission, para. 11. 
376Korea's third participant' s submission, para. 27. 
377Korea's third participant' s submission, para. 28. 
378Korea's third participant' s submission, para. 32. 
379Korea's third participant' s submission, para. 32. 
380Korea's third participant' s submission, para. 33. 
381Korea's third participant's subm ission, p. 13, heading III.C. 
382Korea's third participant's submission, para. 36  (referring to European Union's first written 
submission to the Panel, paras. 165, 239-241, 320, and 348;  and United States' first written submission to the 
Panel, paras. 196 and 340). WT/DS394/AB/R 
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  licensing system includes "vague provisions" and t hus accords licence-issuing agencies "a significant 
degree of discretion", which could result in export rest rictions inconsistent w ith Article XI:1 of the 
GATT 1994.
383  However, when examining "legislativ e documents of a Member that contain 
'discretionary' language" in the framework of an " as such" complaint, a panel should adopt a "cautious 
approach" guided by the presumption, identified by the Appellate Body in US – Oil Country Tubular 
Goods Sunset Reviews , "that WTO Members act in good faith in the implementation of their WTO 
commitments".384  In the present dispute, Korea argues th at "it does not seem to be entirely clear" 
whether the complainants presented sufficient ev idence to overcome that "good faith" presumption.385 
6. Saudi Arabia 
202. Saudi Arabia contends that Article XX(g) of the GATT 1994 requires that the challenged 
measure be applied jointly with domestic rest rictions on the production or consumption of an 
exhaustible natural resource.  The Panel, however, erred in finding that, in addition, the "purpose" of 
the challenged measure must be to ensure the eff ectiveness of a domestic restriction on production or 
consumption.  Nothing in the text of Article XX( g) suggests such a finding.  The Panel appears to 
have been guided by the GATT panel report in Canada – Herring and Salmon , and Saudi Arabia 
suggests that the Panel did so in e rror.  The Appellate Body report in US – Gasoline  did not endorse 
the approach of the GATT panel in Canada – Herring and Salmon , and instead found that 
Article XX(g) imposed only a re quirement of "even-handedness".386  Saudi Arabia points out that, in 
US – Gasoline , Venezuela and Brazil referred the Appellate Body to the relevant part of the GATT 
panel report in Canada – Herring and Salmon , but that, nonetheless, the A ppellate Body did not adopt 
that panel's interpretation.  In Saudi Arabia's view, the object and purpose of Article XX(g) will be 
fulfilled if the restrictions imposed on foreign a nd domestically produced goods are applied jointly. 
203. While taking no position on whether China's expor t licensing system is inconsistent with 
Article XI of the GATT 1994, Saudi Arabia welcom es the Panel's finding that "non-automatic" export 
                                                      
383Korea's third participant' s submission, para. 39. 
384Korea's third participant's submission, para. 40 (quoting Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 173). 
385Korea's third participant's submission, para. 41.  Enlarging the scope of its analysis beyond the 
framework of Article XI:1, Korea also refers to the Appellate Body's statement in EC – Selected Customs 
Matters  that:  "[i]n order to find that an administrative process has led to non-uniform administration of a 
measure under Article X:3(a), a panel cannot merely rely on identifying the features of an administrative process that it may view as non-uniform;  a panel must go further and undertake an analysis to determine whether those 
features of the administrative process neces sarily lead to non- uniform administration  of a legal instrument of 
the kind described in Article X:1." ( Ibid., para. 42 (quoting Appellate Body Report, EC – Selected Customs 
Matters , para. 239 (original emphasis))) 
386Saudi Arabia's third particip ant's submission, para. 22.  WT/DS394/AB/R 
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  licensing systems are not inconsistent with this provision unless they create "a restriction or limiting 
effect on … exportation".
387  In particular, Saudi Arabia agrees with the Panel's ultimate conclusions 
that two types of export licensing systems are consis tent with Article XI:1:  "(i) those in which 
licences are granted upon application in all cases;  and (ii) those which require the applicant to meet a 
certain objective prerequisite" before being granted a licence.388  However, the Panel's assertion that, 
in addition to "quantitative restri ctions" Article XI also disciplin es "other measures", is "unclear" 
because it does not specify whether those "oth er measures" must also restrict export quantities , or 
whether they comprise "all applicable measur es" regardless of whether they limit quantities.389  I n  
Saudi Arabia's opinion, Article XI prohibits only "me asures that restrict, and are designed to restrict, 
export quantities ".390 
204. Saudi Arabia reiterates its view, based on the panel report in China – Publications and 
Audiovisual Products , that a licensing system is "discretionary" where the administering authority 
enjoys "the freedom to choose, based essentially on it s own preference, whether or not such [licences] 
are granted".391  A system in which export licences "are not 'granted in all cases', but which mandates 
the authority's application of a 'hard-and-fast ru le' that limits the freedom of the administering 
authority to determine whether to grant a licence", would not be discretionary and would therefore be 
permissible under Article XI:1 of the GATT 1994.392 
7. Turkey 
205. Recalling the text of Paragraph 11.3 of China's Accession Protocol, Turkey notes that it 
"openly refers" to Annex 6 and Ar ticle VIII as exceptions, and suggests that, had it been foreseen that 
                                                      
387Saudi Arabia's third participant's submission, para. 23 (quoting Panel Reports, para. 7.917).  
Saudi Arabia notes that, although the Panel found that the Import Licensing  Agreement  provided "only limited 
assistance" in interpreting Article XI of the GATT 1994 and therefore chose not to use the "standard 
nomenclature" of "automatic", "non-automatic", and "dis cretionary", these terms help to create "a systematic 
analytical framework for determining pe rmissible licensing under Article XI". ( Ibid., para. 24 (quoting Panel 
Reports, paras. 7.911 and 7.915)) 
388Saudi Arabia's third participant's submission, pa ra. 24 (referring to Panel Reports, paras. 7.916 
and 7.917). 
389Saudi Arabia's third participant's submission, para. 26 (quoting Panel Reports, paras. 7.912 
and 7.913). 
390Saudi Arabia's third participant's submission, para. 29. (original emphasis) 
391Saudi Arabia's third par ticipant's submission, para. 35 (quoting Panel Report, China – Publications 
and Audiovisual Products , para. 7.324).  See also Panel Report, Turkey – Rice , paras. 7.128, 7.133, and 7.134.  
Based on this interpretation of the term "discretion" , Saudi Arabia agrees with the panel's findings in India – 
Quantitative Restrictions  that "India's licensing system for goods … is a discretionary import licensing system, 
in that licences are not grante d in all cases, but rather on unspecified 'm erits'". (Saudi Arabia's third participant's 
submission, para. 36 (quoting Panel Report, India – Quantitative Restrictions , para. 5.130)) 
392Saudi Arabia's third particip ant's submission, para. 37. WT/DS394/AB/R 
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  the exceptions in Article XX of the GATT 1994 woul d apply to Paragraph 11.3 of the Protocol, there 
would have also been an "open referral" to Article XX.
393  Recalling China's argument that a 
harmonious reading of Paragraph 11.3 of its Accession Protocol a nd Paragraph 170 of its Accession 
Working Party Report  would justify China's export duties, Turkey notes that the textual differences 
between Paragraphs 11.3 and 5.1 of China's Accession Protocol may preclude this. 
206. Regarding the interpretation of the words "tempor arily applied" in Article XI:2(a), Turkey 
submits that temporarily applied measures are limited to measures that are:  (i) applied for a "determined and limited period of time";  (ii) predicted to  last until a "certain date";  or (iii) predicted 
to expire upon "the occu rrence of certain events".
394  For Turkey, the temporariness of the application 
of the measure must be expected from the beginning of the application of the measure, and the amount of time that the measure is intended to stay in place should be "foreseeable".
395  Furthermore, 
Turkey maintains that there must be a "close link"  between the temporary nature of the measure and 
its objective to relieve or prevent a critical shor tage, and that therefore a measure applied under 
Article XI:2(a) "should be capable" of preventing or relieving the shortage.396 
III. Issues Raised on Appeal 
207. The following issues are rai sed on appeal by China: 
(a) whether the Panel erred in finding that S ection III of the complainants' panel requests 
complies with the requirement in Article 6. 2 of the DSU to "provide a brief summary 
of the legal basis of the complaint su fficient to present the problem clearly"; 
(b) whether the Panel acted inconsistently with  Articles 7.1, 11, and 19.1 of the DSU by 
recommending that China bring its export duty and export quota measures into conformity with its WTO obligations such that  the "series of measures" in force at the 
date of the Panel's establishment do not ope rate to bring about a WTO-inconsistent 
result; 
(c) whether the Panel erred in finding that Chin a may not have recourse to the exceptions 
contained in Article XX of the GATT 1994 in order to justify a violation of China's 
export duty commitments contained in Para graph 11.3 of China's Accession Protocol; 
                                                      
393Turkey's third participant's submission, para. 8. 
394Turkey's third participant's submission, para. 14. 
395Turkey's third participant's submission, para. 14. 
396Turkey's third participant's submission, para. 15.  WT/DS394/AB/R 
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  (d) whether the Panel erred in its interpretation and application of Article XI:2(a) of the 
GATT 1994, and in its assessment of the matter under Article 11 of the DSU, when it found that China's export quota on refractory-grade bauxite is not "temporarily 
applied" to prevent or relieve a "critical shortage"; 
(e) whether the Panel erred by interpreting the phrase "made effective in conjunction 
with" in Article XX(g) of the GATT 1994 to require that the purpose of the export restriction be to ensure the effectiveness of restrictions on domestic production and 
consumption; 
(f) whether the Panel erred in finding that China acts inconsistently with Paragraphs 1.2 
and 5.1 of China's Accession Protocol, r ead in combination with Paragraphs 83 
and 84 of China's Accession Working Party Report, by requiring exporters to comply 
with prior export performance and minimum registered capital requirements in order 
to obtain a quota allocation of certain raw materials; 
(g) whether the Panel erred in its interpretation and application of Article X:3(a) of the 
GATT 1994, and acted inconsistently with its obligations under Article 11 of the 
DSU, in finding that the administration of the "operation capacity" criterion in Article 19 of China's Export Quota Administration Measures  is non-uniform and 
unreasonable;  and 
(h) whether the Panel erred in its interpretati on and application of Article XI:1 of the 
GATT 1994, and acted inconsistently with Article 11 of the DSU, in finding that China's export licensing system is inconsistent with China's WTO obligations, 
because it constitutes a restriction on exportation. 
208. The following issues are raised on appeal by the United States: 
(a) if the Appellate Body reverses the Panel's recommendations as requested by China on 
appeal, then whether the Panel erred, unde r Articles 6.2, 7.1, 11, and 19.1 of the 
DSU, in not making recommendations on the 2009 export quota and export duty 
measures that were annually recurring and in effect at that time;  and 
(b) whether the Panel erred in finding that China's imposition of a bid-winning price on 
the allocation of export quotas on bauxite, fl uorspar, and silicon carbide based on the WT/DS394/AB/R 
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  bid-winning price is not inconsistent w ith Article VIII:1(a) of the GATT 1994 or 
Paragraph 11.3 of China's Accession Protocol. 
209. The following issue is raised on appeal by the European Union: 
(a) if the Appellate Body reverses the Panel's recommendations as requested by China on 
appeal, and rejects the relevant other appeals submitted by the United States and Mexico, then whether the Panel erred in fi nding that the European Union requested 
the Panel not to make any findings and recommendations on the 2010 "replacement 
measures" and thereby narrowed the Panel's terms of reference. 
210. The following issues are rai sed on appeal by Mexico: 
(a) if the Appellate Body reverses the Panel's recommendations as requested by China on 
appeal, then whether the Panel erred, unde r Articles 6.2, 7.1, 11, and 19.1 of the 
DSU, in not making recommendations on the 2009 export quota and export duty 
measures that were annually recurring and in effect at that time;  and 
(b) whether the Panel erred in its interpretation and application of Article X:3(a) of the 
GATT 1994, and acted inconsistently with Ar ticle 11 of the DSU, in finding that the 
participation of China's Chamber of Comme rce of Metals, Minerals and Chemicals 
Importers and Exporters (the "CCCMC") in China's export quota allocation process is 
not partial or unreasonable. 
IV. The Panel's Terms of Reference 
211. We begin by examining China's appeal of the Panel's finding that Section III of the 
complainants' panel requests
397, entitled "Additional Restraints Imposed on Exportation", identifies 
the measures and claims at issue in a manner suffi cient to present the problem clearly, as required 
under Article 6.2 of the DSU.  China requests the Appe llate Body to reverse this finding, and to find 
instead that Section III of the panel requests does not  comply with Article 6.2 of the DSU, with the 
                                                      
397Request 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);  Request for the Establishment of a Panel by Mexico (WT/DS398/6).  The panel requests are attached to these Reports as Annexes I-III, 
respectively.  WT/DS394/AB/R 
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  exception of the complainants' claims under Article X:1 of the GATT 1994 regarding the 
non-publication of the total amount and procedur e for the allocation of the zinc export quota.
398 
212. Before turning to assess China's claim of error under Article 6.2 of the DSU, we consider it 
useful to describe briefly how this issue arose befo re the Panel, as well as the Panel's approach to the 
issue. 
A. Proceedings before the Panel and the Panel's Findings 
213. On 4 November 2009, the United States, the European Communities, and Mexico filed the 
panel requests that form the basis of the present dis pute.  At the request of the complainants, the DSB 
established a single panel pursuant to Article 9.1 of  the DSU at its 21 December 2009 meeting.  At 
this DSB meeting, China informed the DSB of its intention to seek a preliminary ruling on the 
adequacy of the complainants' panel requests a nd their consistency with the requirements of 
Article 6.2 of the DSU.399  On 31 March 2010, one day after Pa nel composition, China submitted a 
request for a preliminary ruling by the Panel.400  China contended that the panel requests did not 
comply with the requirements of Article 6.2 of the DSU because they failed to provide "a brief 
                                                      
398See China's appellant's submission, paras. 97 and 98 (referring to Panel Reports, para. 7.3(b);  and 
second phase of the Preliminary Ruling by the Panel dated 1 October 2010, Panel Reports, Annex F-2 (the "Panel's preliminary ruling (s econd phase)"), para. 77).  As a consequence of this reversal, China also requests 
the Appellate Body to reverse the Panel's findings regarding claims made by the complainants on the basis of 
Section III of the panel requests, including the findings in paragraphs 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 Reports. (China's appellant's submission, para. 98)  Although China 
includes paragraph 8.11(f) of the Panel Reports in its request for reversal, we note that this finding concerns the 
failure to publish the total amount and procedure for the allocation of the zinc export quota, which China 
specifically excludes from its appeal in its appellant's submission. 
399WT/DSB/M/277, para. 74;  see also Panel Reports, para. 1.10.  The intervention of the representative 
of China at the 21 December 2009 regular meeting of th e DSB is reflected as follows in the minutes of the 
meeting: 
The representative of China said that … Section III of the Complainants' 
Panel Requests, titled "Additional Restraints Imposed on Exportation", 
described various "complaints", and listed 37 "measures", along with 13 treaty provisions.  However, the requests had failed to make any 
connection between:  (1) the "complai nts" and the "measures";  (2) the 
"measures" and the treaty provisions;  an d, (3) the treaty provisions and the 
"complaints".  As a result, the complainants' requests were "[in]sufficient to 
present the problem clearly", within the meaning of Article 6.2 of the DSU.  
In those and other respects, the three complainants had prejudiced China's 
ability to prepare its defence.  Since the complainants wished to proceed 
with panel establishment, China woul d seek a preliminary ruling on the 
requests' consistency with Article 6.2 of the DSU. 
400Communication from China to the Panel:  China's request for a preliminary ruling pursuant to 
Article 6.2 of the DSU, 30 March 2010 ("China's request for a preliminary ruling");  Panel Reports, para. 1.11. WT/DS394/AB/R 
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  summary of the legal basis of the complain t sufficient to present the problem clearly".
401  In particular, 
with respect to Section III of the panel requests, China alleged that the requests failed to "plainly 
connect":  (i) the narrative paragraphs and the 37 lis ted measures;  (ii) the 37 listed measures and the 
13 listed treaty provisions;  and (iii) the 13 liste d treaty provisions and the narrative paragraphs.402  
214. On 21 April 2010, the complainants submitted a joint response to China's request for a 
preliminary ruling.403  In their joint response, the complainants argued that Section III of their panel 
requests starts by providing a narrative descripti on of the additional restraints on exportation, 
"identifies the relevant Chinese measures", and i ndicates that the complainants considered "the 
identified measures to be inconsistent with the enumerated legal obligations".404  F o r  t h e  
complainants, this was "sufficient to connect th e relevant measures with  the legal obligations".405  The 
complainants did not provide additional information at  that stage of the proceedings.  The Panel held a 
meeting with the parties, as well as a separate session with the third parties, on 29 April 2010.406 
215. The Panel issued a preliminary ruling in two phases407 responding to China's allegation that 
Section III of the complainants' panel requests fa iled to comply with Article 6.2 of the DSU.408  The 
first phase of the preliminary ruling was issued to the parties on 7 May 2010 and circulated to WTO Members on 18 May 2010.
409  The Panel stated that "the sufficiency of a panel request 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."410  Accordingly, the Panel 
decided to "reserve its decision" on whether Secti on III of the complainants' panel requests satisfied 
the requirements of Article 6.2 of the DSU until after it had examined the parties' first written 
submissions and was "more able to take fully into account China's ability to defend itself".411  In so 
doing, the Panel referred to an "undertaking from a re presentative" of the complainants to the effect 
that "all possible concerns over the undefined scope  of their challenge [would] be answered once 
                                                      
401China's request for a preliminary ruling, paras. 3 and 30. 
402China's request for a preliminary ruling, para. 50. 
403Joint Communication from the United States, the European Union, and Mexico to the Request for a 
Preliminary Ruling submitted by China, 21 April 2010 (t he "complainants' response to China's request for a 
preliminary ruling");  Panel Reports, para. 1.11. 
404Complainants' response to China's request for a preliminary ruling, para. 30. 
405Complainants' response to China's request for a preliminary ruling, para. 30. 
406Panel Reports, para. 1.11.   
407The first and second phases of th e preliminary ruling were attached  as Annexes F-1 and F-2 to the 
Panel Reports. (See Panel Reports, paras. 1.12 and 1.13)   
408Panel Reports, para. 1.12.   
409WT/DS394/9, WT/DS395/9, WT/DS398/8.   
410Panel's preliminary ruling (first phase), para. 37. 
411Panel's preliminary ruling (first phase), para. 39.  WT/DS394/AB/R 
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  China and the Panel receive[d] the Complainants' first written submissions".
412  The Panel added that 
it was not saying that "all flaws in a panel request can be cured by a first written submission".413  The 
Panel also said that it "expect[ed] that the Co mplainants [would] clarify in their first written 
submissions which of the listed measures (or group  thereof) for which specific products (or group 
thereof) are inconsistent with which specific WTO obligations among those listed in the last part of 
Section III of their panel requests".414 
216. On 6 September 2010, following the first Panel me eting, the Panel requested the complainants 
to list all the measures for which they were seeking recommendations and which WTO provisions 
each of these measures was alleged to violate.415  In response, the complainants submitted, on 13 
September 2010, a chart setting out, in three column s, the type of "Export Restraint" involved, the 
respective "Measures, i.e., Legal Instruments" implicated, and the "WTO Provisions Violated" by 
each measure.  Subsequently, on 1 October 2010, the Panel issued the second phase of its preliminary 
ruling, where it noted that the complainants "did not  directly address in their submissions or in their 
subsequent oral statements" the question of whet her Section III of the complainants' panel requests 
complied with Article 6.2 of the DSU.416  Nonetheless, the Panel ultimately concluded that "the 
complainants' first written submission[s] set out  sufficient connections between the challenged 
measures and certain violations attributed to such measures."417  In reaching this conclusion, the Panel 
based itself on information contained in the charts fi led by the complainants in response to a question 
posed by the Panel following the first Panel meeting.418  At the second Panel meeting on 
22 November 2010, the United States, in order "[t]o clarify any confusion"419, attached to its opening 
statement a revised chart specifying the measur es on which it was seeking a finding by the Panel.420 
217. The Panel's preliminary ruling was incorporated  without changes or additional reasoning into 
the final Panel Reports.421  Ultimately, the Panel rejected China's claim that Section III of the 
complainants' panel requests failed to provide "a br ief summary of the legal basis of the complaint 
                                                      
412Panel's preliminary ruling (first phase), para. 38. 
413Panel's preliminary ruling (first phase), para. 39. 
414Panel's preliminary ruling (first phase), para. 46. 
415Panel Question 2 following the first Panel meeting. 
416Panel's preliminary ruling (second phase), para. 32. 
417Panel's preliminary ruling (second phase), para. 65. 
418See Panel's preliminary ruling (second phase), para . 66:  "Indeed, the complainants clarified the 
connection of the measures at hand w ith the specific claims in their resp onses to question No. 2 posed by the 
Panel" after the first Panel meeting. 
419United States' opening statement at th e second Panel meeting, para. 128. 
420Revised Chart B in response to Panel Question 2 submitted by the United States following the 
second Panel meeting (Panel Exhibit US-1). 
421Panel Reports, Annex F;  see also paras. 7.1-7.4. WT/DS394/AB/R 
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  sufficient to present the problem clearly".  The Pane l concluded that, with the exception of one claim 
of the European Union, "[t]he complainants' Panel Requests, as clarified by their first submissions, 
provide sufficient connection between the measures listed in Section III and the listed claims of 
violations".
422 
B. Whether Section III of the Complainant s' Panel Requests Complies with the 
Requirements of Article 6.2 of the DSU 
218. Article 6.2 of the DSU provides, in relevant part: 
The request for the establishment of a panel shall be made in writing.  
It shall indicate whether consultati ons 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. 
219. The Appellate Body has explained that Article  6.2 of the DSU serves a pivotal function in 
WTO dispute settlement and sets out two key requirement s that a complainant must satisfy in its panel 
request, namely, the "identification of the specific measures at issue, and the provision of a brief 
summary of the legal basis of the complaint (or the claims)".
423  Together, these two elements 
constitute the " matter  referred to the DSB", so that, if either of them is not properly identified, the 
matter would not be within th e panel's terms of reference.424  Fulfilment of these requirements, 
therefore, is "not a mere formality".425  As the Appellate Body has noted, a panel request forms the 
basis for the terms of refere nce of panels, in accordance with Article 7.1 of the DSU.426  Moreover, it 
serves the due process objective of notifying the res pondent and third parties of the nature of the 
complainant's case.427  The identification of the specific measur es at issue and the provision of "a brief 
summary of the legal basis of the complaint suffi cient to present the problem clearly" are therefore 
central to defining the scope of the dispute to be addressed by the panel. 
220. In order to determine whether a panel request is sufficiently precise to comply with 
Article 6.2 of the DSU, a panel must scrutinize car efully the language used in the panel request.428  
                                                      
422Panel Reports, para. 7.3(b). 
423Appellate Body Report, US – Carbon Steel , para. 125. (emphasis omitted) 
424Appellate Body Report, US – Carbon Steel , para. 125. (emphasis added) 
425Appellate Body Report, Australia – Apples , para. 416. 
426See Appellate Body Report, Guatemala – Cement I , paras. 72 and 73;  Appellate Body Report, US – 
Carbon Steel , para. 125;  Appellate Body Report, US – Continued Zeroing , para. 160;  and Appellate Body 
Report, US – Zeroing (Japan) (Article 21.5 – Japan) , para. 107. 
427Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 786;  see also 
paras. 639 and 640 (referring to Appellate Body Report, US – Carbon Steel , para. 126, in turn referring to 
Appellate Body Report, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, 167, at 186).   
428See Appellate Body Report, EC – Fasteners (China) , para. 562.  WT/DS394/AB/R 
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  This involves a case-by-case analysis.  Submissions  by a party may be referenced in order to confirm  
the meaning of the words used  in the panel request;  but the co ntent of those submissions "cannot 
have the effect of curing the failings of a deficient panel request".
429  For example, whether a panel 
request identifies the "specific meas ures at issue" may depend on the particular context in which those 
measures operate and may require ex amining the extent to which they are capable of being precisely 
identified.430  At the same time, whether a panel requ est challenging a number of measures on the 
basis of multiple WTO provisions sets out "a brief summary of the legal basis of the complaint sufficient to present the problem clearly" may depend on whether it is sufficiently clear which 
"problem" is caused by which measure or group of measures.  The Appellate Body has explained that, 
in order "to present the problem clearly", a pane l request must "plainly connect the challenged 
measure(s) with the provision(s) of the covere d agreements claimed to have been infringed".
431  
Furthermore, to the extent that a provision contains  not one single, distinct obligation, but rather 
multiple obligations, a panel request might need to specify which of the obligations contained in the 
provision is being challenged.432  In our view, a defective panel request may impair a panel's ability to 
perform its adjudicative function within the strict timeframes contemplated in the DSU and, thus, may 
have implications for the prompt settlement of a dispute in accordance with Article 3.3 of the DSU.  A complaining Member should therefore be particul arly vigilant in preparing its panel request, 
especially when numerous measures are challenged under several different treaty provisions. 
221. With these considerations in mind, we turn to th e panel requests at issue in this dispute.  We 
note that the complainants' panel requests are each structured in three separate sections.  Section I, 
entitled "Export Quotas", challenges the imposition of export quotas on bauxite, coke, fluorspar, 
silicon carbide, and zinc as inconsistent with Ar ticle XI:1 of the GATT 1994 and Paragraphs 162 
and 165 of the Report of the Working Party on the Accession of China
433 ("China's Accession 
Working Party Report").  In Section II, entitled "E xport Duties", the complainants claim that China 
imposes export duties on bauxite, coke, fluorspar, magnesium, manganese, silicon metal, yellow phosphorous, and zinc in violation of its commitmen ts under Paragraph 11.3 of the Protocol on the 
Accession of the People's Republic of China to the WTO
434 ("China's Accession Protocol").  Whereas 
                                                      
429Appellate Body Report, EC – Fasteners (China) , para. 562 (referring to Appellate Body Report, EC 
and certain member States – Large Civil Aircraft , para. 642;  Appellate Body Report, EC – Bananas III , 
para. 143;  and Appellate Body Report US – Carbon Steel , para. 127). 
430Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 641.  
431Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 162. 
432See Appellate Body Report, Korea – Dairy , para. 124.  See also Appellate Body Report, EC – 
Fasteners (China) , para. 598. 
433WT/ACC/CHN/49 and Corr.1. 
434WT/L/432. WT/DS394/AB/R 
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  Sections I and II each addresses a single form of export restriction, Section III covers a wider set of 
allegations directed at what is referred to in th e title of Section III as "Additional Restraints Imposed 
on Exportation". 
222. The introductory paragraph in Section III states,  in broad terms, that "China imposes other 
restraints on the exportation of the materials, admini sters its measures in a manner that is not uniform, 
impartial, and reasonable, imposes excessive fees and formalities on exporta tion, and does not publish 
certain measures pertaining to requirements, restric tions, or prohibitions on e xports."  This paragraph 
is followed by five separate paragraphs in the case of the United States and Mexico, and 
six paragraphs in the case of the European Union, se tting out different allegati ons of violation relating 
to varied situations in which obligations under th e WTO agreements might not be satisfied, namely, 
allegations relating to the administration of export  quotas, allocation of export quotas, publication of 
export quota amounts and application procedures,  export licensing requirements, minimum export 
price requirements, and fees and formalities. 
223. Each of these paragraphs briefly describes a number of different allegations of violation 
relating to different types of restraints.  These narra tive paragraphs are worded in virtually identical 
terms in each of the three panel requests.  They state: 
China administers the export quotas imposed on bauxite, coke, 
fluorspar, silicon carbide, and zinc discussed in Section I above, through its ministries and other orga nizations under the State Council 
as well as chambers of commerce and industry associations, in a manner that restricts exports a nd is not uniform , impartial and 
reasonable.  In connection with th e administration of the quotas for 
these materials, China imposes restrictions on the right of Chinese 
enterprises as well as foreign enterprises and individuals to export. 
China allocates the export quotas imposed on bauxite, fluorspar, and 
silicon carbide discussed in Section I above, through a bidding system.  China administers the requirements and procedures for this 
bidding system through its ministries and other organizations under 
the State Council as well as chambers of commerce and industry associations, in a manner that restricts exports and is not uniform, impartial and reasonable.  In conn ection with the administration of 
this bidding system, China also requires foreign-invested enterprises to satisfy certain criteria in order to export these materials that 
Chinese enterprises need not satis fy.  [Further, China requires 
enterprises to pay a charge in order to export these materials that is excessive and imposes excessive formalities on the exportation of these materials.*]  WT/DS394/AB/R 
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  China does not publish the amount for the export quota for zinc or 
any conditions or procedures for appl ying entities to qualify to export 
zinc. 
In addition, China restricts the exportation of bauxite, coke, 
fluorspar, manganese, silicon carbide, and zinc by subjecting these materials to non-automatic licensing.  China imposes the non-automatic export licensing for bauxite, coke, fluorspar, silicon carbide, and zinc in connection with the administration of the export 
quotas discussed in Section I, as an additional restraint on the 
exportation of those materials. 
China also imposes quantitative restri ctions on the exportation of the 
materials by requiring that prices for the materials meet or exceed a minimum price before they may be exported.  Further, through its 
ministries and other organizations under the State Council as well as 
chambers of commerce and industry associations, China administers the price requirements in a manner that restricts exports and is not uniform, impartial, and reasonable.  China also does not publish certain measures relating to these requirements in a manner that enables governments and traders to become acquainted with them. 
[China also imposes excessive fees and formalities in relation to the 
exportation of the materials.**] 
[*This sentence is contained in the panel requests of the 
United States and Mexico only.] 
[**This sentence is contained in the panel request of the 
European Union only.] 
224. Following these narrative paragraphs, each of the three panel requests provides an identical 
bullet point list of 37 legal instruments, introdu ced by the phrase:  "[The complainant] understands 
that these Chinese measures are reflected in, among others: …"435  The legal instruments listed range 
from entire codes or charters (such as the Forei gn Trade Law of the People's Republic of China436 
(China's " Foreign Trade Law ")) to specific administrative measures (such as the Quotas of Fluorspar 
                                                      
435While the phrase introducing the 37 legal instrument s refers to "these Chinese measures" in a manner 
that might suggest that the complainants regarded the text of the narrative paragraphs as setting forth the 
measures at issue, the subsequent submissions clarified the meaning of the word "measures" as a synonym for 
the 37 legal instruments.  In fact, in its response to Panel Question 2 fo llowing the first Panel meeting, the 
United States and Mexico refe rred to them as "Measures, i.e., Legal Instruments" and the European Union as 
"Measures/Legal instruments". 
436Foreign Trade Law of the People's Republic of China, adopted at the 8th Session of the Standing 
Committee of the Tenth National People's Congress on 6 April 2004, 1 July 2004 (Panel Exhibits CHN-151 and 
JE-72). WT/DS394/AB/R 
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  Lump (Powder) of 2009
437 ("2009 First Round Fluorspar Bidding Procedures ")).  The complainants' 
panel requests do not identify specific sections or provisions of any of the listed instruments. 
225. The final paragraph of Section III of the pane l requests consists of a list of 13 treaty 
provisions.  The United States and Mexico state that they consider that "these measures are 
inconsistent with Article VIII:1(a) and VIII:4, Article X:1 and X:3(a), and Article XI:1 of the 
GATT 1994 and paragraphs 2(A)2, 5.1,  5.2 and 8.2 of Part I of the Accession Protocol, as well as 
China's obligations under the provisions of paragrap h 1.2 of Part I of the Accession Protocol, which 
incorporates commitments in paragraphs 83, 84,  162, and 165 of the Working Party Report."438  The 
final paragraph in Section III of the European Union' s panel request is textually identical, except that 
it refers to Article VIII:1 of the GATT 1994 in stead of Article VIII:1(a) of the GATT 1994. 
226. China does not contest that Section III of the panel requests identifies the challenged 
measures with sufficient specificity to comply with Ar ticle 6.2 of the DSU.  Rather, at issue here is 
whether Section III provides "a brief summary of the legal basis of the compla int sufficient to present 
the problem clearly".  As the Appellate Body found in EC – Selected Customs Matters , a brief 
summary of the legal basis of the complaint as required by Article 6.2 of the DSU should "explain succinctly how or why  the measure at issue is considered by the complaining Member to be violating 
the WTO obligation in question".
439  Based on our reading of the co mplainants' panel requests in the 
present case, it is not clear which allegations of error pertain to which particular measure or set of 
measures identified in the panel requests.  Furthe rmore, it is unclear whether each of the listed 
measures relates to one specific allegation described in  the narrative paragraphs, or to several or even 
all of these allegations, and whether each of th e listed measures allegedly violates one specific 
provision of the covered agreements, or several of them.440 
227. First, the complainants iden tify, for instance, China's Foreign Trade Law  as a measure at 
issue.  Yet from the language of Section III of the panel requests it is impossible to discern which of the several allegations of violation described in the narrative paragraphs is alleged to have been 
                                                      
437Quotas of Fluorspar Lump (Powder) of 2009, Committee for the Invitation for bid for Export 
Commodity Quotas, 10 December 2008 (Panel Exhibit JE-93). 
438See, for example, United States' panel request, p. 9. 
439Appellate Body Report, EC – Selected Customs Matters , para. 130.  
440As noted supra , para. 211, China does not argue that th e claim regarding the non-publication of the 
zinc export quota fails to comply with Article 6.2 of th e DSU.  Moreover, as this claim concerns a failure to 
publish a measure, we consider that the language in th e fourth narrative paragraph of Section III of the panel 
requests, together with the listing of Article X:1 of the GATT 1994 in Section III, satisfies the requirements of 
Article 6.2 of the DSU.  WT/DS394/AB/R 
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  caused by the Foreign Trade Law , or which provision or provisions of the covered agreements listed 
in the concluding paragraph are alleged to have been violated by that measure. 
228. Second, the WTO provisions listed in Sec tion III contain a wide array of dissimilar 
obligations.
441  More specifically, the complainants state that they consider that "these measures are 
inconsistent with Article VIII:1(a)442 and VIII:4, Article X:1 and X:3(a), and Article XI:1 of the 
GATT 1994 and paragraphs 2(A)2, 5.1,  5.2 and 8.2 of Part I of the Accession Protocol, as well as 
China's obligations under the provisions of paragrap h 1.2 of Part I of the Accession Protocol, which 
incorporates commitments in paragraphs 83, 84, 162, and 165 of the Working Party Report."  China's 
obligations under these various provi sions are quite diverse and therefore it cannot be discerned what 
the particular "problem" is under Article 6.2 of the DSU with respect to the legal instruments listed in 
Section III. 
229. Third, the narrative paragraphs describe in a general manner different allegations of error 
related to different types of restraints, and do not  make clear which measures, or which groups of 
measures acting collectively, are alleged to be in consistent with which treaty provisions.  For 
example, the second narrative paragraph of the co mplainants' panel request s states that "China 
administers the export quotas … through its ministries and other organizations under the State Council as well as chambers of commerce and industry associations, in a manner that restricts exports 
and is not uniform, impartial and reasonable" and alleges th at, "[i]n connection with the 
administration of the quotas for these materials, China imposes restrictions on the right of Chinese enterprises as well as foreign enterprises and individuals to export".
443  This language, when read 
together with the legal instruments identified in  the panel requests and the WTO provisions identified 
in Section III, groups together disparate problems arising under different treaty provisions.   
                                                      
441See Appellate Body Report, Korea – Dairy , para. 124.   
442We note that, in its panel request, the European Union invokes more broadly Article VIII:1 of the 
GATT 1994. 
443The second narrative paragraph of Section III of th e complainants' panel requests reads in full as 
follows: 
China administers the export quotas imposed on bauxite, coke, fluorspar, 
silicon carbide, and zinc discussed in S ection I above, through its ministries 
and other organizations under the State Council as well as chambers of commerce and industry associations, in a manner that restricts exports and is 
not uniform, impartial and reason able.  In connection with the 
administration of the quotas for these materials, China imposes restrictions 
on the right of Chinese enterprises as well as foreign enterprises and 
individuals to export.  WT/DS394/AB/R 
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  230. As the Appellate Body has explained, a claim must be presented in a manner that presents the 
problem clearly within the meaning of Article 6.2.
444  We do not consider this to have been the case 
here, where Section III of the complainants' panel re quests refers generically to "Additional Restraints 
Imposed on Exportation" and raises multiple proble ms stemming from several different obligations 
arising under various provisions of the GATT 1994, China's Accession Protocol, and China's 
Accession Working Party Report.  Neither the titl es of the measures nor the narrative paragraphs 
reveal the different groups of measures that are alle ged to act collectively to cause each of the various 
violations, or whether certain of the measures is c onsidered to act alone in causing a violation of one 
or more of the obligations. 
231. Like the Panel, we do not read Section III of the complainants' panel requests as advancing all 
claims, under all treaty provisions, with respect to all measures.  Instead, it appears to us that the 
complainants were challenging some (groups of) me asures as inconsistent with some (groups) of the 
listed WTO obligations.445  In the present case, the combination of a wide-ranging list of obligations 
together with 37 legal instruments ranging from China's Foreign Trade Law  to specific administrative 
measures applying to particular products is such that it does not allow the "problem" or "problems" to be discerned clearly from the panel requests.  Because  the complainants did not, in either the narrative 
paragraphs or in the final listing of the provisions of the covered agreements  alleged to have been 
violated, provide the basis on which the Panel and Ch ina could determine with sufficient clarity what 
"problem" or "problems" were alleged to have been  caused by which measures, they failed to present 
the legal basis for their complaints  with sufficient clarity to comply with Article 6.2 of the DSU. 
232. With respect to the consequences of the failure to comply with the requirements of Article 6.2 
of the DSU, the participants disagree as to whet her the Panel frustrated China's due process rights 
under that provision.  China alleges that, when the pa nel requests were filed, it was not able to begin 
preparation of its defence with respect to the cl aims listed in Section III of the panel requests, 
"because the measures implicated by the different  narrative paragraphs, and the claims made 
regarding those measures, could not be identified".
446  The European Union responds that China 
"effectively and exhaustively" defended all the claims  made by the complainants in its first written 
submission to the Panel, and that this demons trates that China's due process rights were not 
compromised.447  Referring to China's statement that the co mplainants have made "several subsets of 
                                                      
444See Appellate Body Report, EC – Fasteners (China) , para. 597. 
445Panel's preliminary ruling (first phase), para. 36. 
446China's appellant's submission, para. 85. 
447European Union's appellee's submission, para. 25.  WT/DS394/AB/R 
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  claims with respect to several subsets of measures affecting several subsets of product categories"
448, 
the United States and Mexico argue that China was aw are of "both the possible and likely claims that 
the Co-Complainants could advance against it".449 
233. The Appellate Body has clarified that due process "is not constitutive of, but rather follows 
from, the proper establishment of a panel's jurisdiction".450  We find it troubling therefore that the 
Panel, having correctly recognized that a deficien t panel request cannot be cured by a complaining 
party's subsequent written submissions, nonetheless d ecided to "reserve its decision" on whether the 
panel requests complied with the requirements of Artic le 6.2 until after it had examined the parties' 
first written submissions and was "more able to take fully into account China's ability to defend 
itself".451  The fact that China may have been able to  defend itself does not mean that Section III of 
the complainants' panel requests in this dispute comp lied with Article 6.2 of the DSU.  In any event, 
compliance with the due process objective of Artic le 6.2 cannot be inferred from a respondent's 
response to arguments and claims found in a compla ining party's first written submission.  Instead, it 
is reasonable to expect, in our view, that a rebu ttal submission would address arguments contained in 
the complaining party's first written submission.  We  also find it troubling that the second phase of the 
Panel's preliminary ruling came only at an advan ced stage in the proceedings, on 1 October 2010. 
234. In the light of the failure to provide suffici ently clear linkages between the broad range of 
obligations contained in Articles VIII:1(a), V III:4, X:1, X:3(a), and XI:1 of the GATT 1994, 
Paragraphs 2(A)2, 5.1, 5.2, and 8.2 of Part I of  China's Accession Protocol, and Paragraphs 83, 84, 
162, and 165 of China's Accession Working Party Re port, and the 37 challenged measures, we do not 
consider that Section III of the complainants' panel requests satisfies the requirement in Article 6.2 of 
the DSU to provide "a brief summary of the lega l basis of the complaint sufficient to present the 
problem clearly". 
235. Consequently, we find that the Panel erred under Article 6.2 of the DSU in making findings 
regarding claims allegedly identified in Section III of  the complainants' panel requests.  We therefore 
declare moot and of no legal effect the Panel's findings in paragraphs 8.4(a)-(d), 8.11(a)-(e), 
and 8.18(a)-(d) in respect of claims concerni ng export quota administra tion and allocation;  
paragraphs 8.5(a)-(b), 8.12(a)-(b),  and 8.19(a)-(b) in respect of cl aims concerning export licensing 
                                                      
448Joint appellees' submission of the United States an d Mexico, para. 57 (referring to China's comments 
on the complainants' joint response to China's request for a preliminary ruling, para. 49). 
449Joint appellees' submission of the United States and Mexico, para. 57. 
450Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 640.  
451Panel's preliminary ruling (first phase), para. 39. WT/DS394/AB/R 
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  requirements;  paragraphs 8.6(a )-(b), 8.13(a)-(b), and 8.20(a)-(b) in  respect of claims concerning a 
minimum export price requirement;  and paragraphs 8. 4(e) and 8.18(e) of the Panel Reports in respect 
of claims concerning fees and formalities in connec tion with exportation.  In these circumstances, we 
have no basis to consider further the arguments raised  by China in its appeal and by the complainants 
in their other appeals regarding these findings. 
V. The Panel's Recommendations 
236. We now turn to address China's appeal rega rding the Panel's recommendations concerning 
export duties and export quotas. 
237. China seeks review of the Panel's recommendations  "to the extent that they apply to annual 
replacement measures" adopted after the establishment of the Panel on 21 December 2009.
452  China 
argues that the complainants had excluded such meas ures from the scope of the dispute and, hence, by 
making recommendations extending to such measures,  the Panel acted inconsistently with its 
obligations under Article 7.1 of the DSU;  failed to make an objective assessment of the matter under 
Article 11 of the DSU;  and made  recommendations on measures that were not part of the matter, 
inconsistently with Article 19.1 of the DSU.453  In response, the United States, the European Union, 
and Mexico argue that the Panel's recommendati ons were correctly made in accordance with 
Articles 7.1, 11, and 19.1 of the DSU on the measures challenged by the complainants as they existed 
at the time of the Panel's establishment.  The Un ited States and Mexico posit that, without such 
recommendations, "trade measures imposed in part th rough annually recurring legal instruments could 
never be successfully challenged through WTO dispute settlement".454  The European Union adds that 
"this is not the proper forum to determine the actions  China should take in order to bring itself into 
compliance with its WTO obligations";  rather, China should follow the procedures provided for under Article 21 of the DSU in order to identify the scope of its compliance obligations.
455 
238. The Panel included the following paragraph in th e final section of its Reports, setting out its 
conclusions and recommendations: 
Pursuant to Article 19.1 of the DSU, having found that China has 
acted inconsistently with Articles X:1, X:3(a) and XI:1 of the GATT 1994; Paragraphs 1.2, 5.1 and 11.3 of China's Accession Protocol; and Paragraphs 83 and 84 of China's Working Party Report, 
                                                      
452China's appellant's submission, para. 136. 
453China's appellant's submission, section III.D.2. 
454Joint appellees' submission of the United States and Mexico, para. 72. 
455European Union's appellee's submission, para. 43.  WT/DS394/AB/R 
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  the Panel recommends that the Dispute Settlement Body requests 
China to bring the existing measures at  issue into conformity with its 
obligations under the GATT 1994, China's Accession Protocol and 
China's Working Party Report.  The Panel makes no recommendation 
on expired measures, namely the 2009 measures at issue and pre-2009 MEP-related measures.  In respect of findings concerning 
export duties and export quotas, the Panel found that the series of measures operating collectively h as resulted in the imposition of 
export duties or export quotas that are inconsistent with China's 
WTO obligations.  The Panel, therefore, recommends that the Dispute Settlement Body requests China to bring its measures into conformity with its WTO obligations such that the "series of measures" does not operate to br ing about a WTO-inconsistent 
result.
456 
239. Before turning to address China's arguments on a ppeal, we consider it useful to describe the 
procedural context in which this issue arose and to  outline the multiple steps in the Panel's analysis 
that led it to make findings and recommendations on a "series of measures". 
A. Proceedings before the Panel and the Panel's Findings 
240. Before the Panel, the complainants alleged that  China has acted inconsistently with its WTO 
obligations by imposing export quotas on certain forms of bauxite457, coke, fluorspar, silicon carbide, 
and zinc;  and export duties on certain forms of  bauxite, coke, fluorspar, magnesium, manganese, 
silicon metal, and zinc.458  The Panel found that these export restrictions were not introduced through 
a single legal instrument, but rather resulted from the application of several measures operating 
together.459  For each product, this group of measures, or "series of measures" as the Panel referred to 
it, consisted of standing framew ork legislation and implementing regulations, as well as a specific 
legal instrument or instruments identifying the individual export quotas or export duties imposed on a 
specific product during a particular timeframe, usually one year.460  For example, the Panel found that 
China imposed an export quota on certain forms of bauxite in 2009461 through China's Foreign Trade 
Law, Regulation of the People's Republic of China on  the Administration of the Import and Export of 
                                                      
456Panel Reports, paras. 8.8, 8.15, and 8.22.  The Panel made the same recommendation with respect to 
each of the complainants. 
457Three forms of bauxite are at issue in this disput e:  refractory-grade ba uxite (Harmonized System 
("HS") number 2508.3000), aluminiu m ores and concentrates (HS number  2606.0000), and aluminium ash and 
residues (HS number 2620.4000). 
458See Panel Reports, paras. 3.2, 3.3, 7.59-7.63 , and 7.172-7.201.  The export duty on yellow 
phosphorous was also challenged, but the Panel found that this duty was no longer in  effect at the time of the 
Panel's establishment. (See infra , footnote 553) 
459Panel Reports, paras. 7.68 and 7.218. 
460Panel Reports, paras. 7.76, 7.80, 7.84, 7.88, 7.92, 7.97, 7.101, and 7.219-223. 
461See Panel Reports, para. 7.219. WT/DS394/AB/R 
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  Goods
462 ("Regulation on Import and Export Administration "), Measures of Quota Bidding for Export 
Commodities463 ("Export Quota Bidding Measures "), Measures for the Administration of Licence for 
the Export of Goods464 ("2008 Export Licence Administration Measures "), Announcement of the 
Ministry of Commerce Issuing the "2009 Graded Licence-Issuing List of Commodities Subject to 
Export Licence Administration"465 ("2009 Graded Export Licensing Entities Catalogue "), Working 
Rules on Issuing Export Licences466 ("2008 Export Licensing Working Rules "), Implementation Rules 
of Export Quota Bidding for Industrial Products467 ("Export Quota Bidding Implementation Rules "), 
Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial Products468 ("2009 
Export Quota Amounts "), Announcement on the Second Invitation for the Bidding of Select Industrial 
Product Export Quotas in 2009469 ("2009 Announcement of Second Bidding Round for Talc and 
Silicon Carbide "), Notice "2009 Export Licensing Management Commodities List"470 ("2009 Export 
Licensing Catalogue "), Announcement of Ministry of Co mmerce on Matters regarding the First 
Bidding for Export Quotas of Industrial Products in 2009471 ("2009 First Round Export Quota Bidding 
Announcement "), Announcement of Ministry of Commerce on the Notice for the Second Invitation 
for the Bidding for Industrial Product Export Quotas in 2009472 ("2009 Second Round Export Quota 
                                                      
462Regulation of the People's Republic of China on  the Administration of the Import and Export of 
Goods, passed at the forty-sixth executive meeting of the State Council on 31 October 2001, 1 January 2002 
(Panel Exhibits CHN-152 and JE-73). 
463Measures of Quota Bidding for Export Commodities,  Decree of the Ministry of Foreign Trade and 
Economic Cooperation No. 11, adopted at the 9th ministerial office meeting of the Ministry of Foreign Trade 
and Economic Co-operation, 1 January 2002 (Panel Exhibits CHN-304 and JE-77). 
464Measures for the Administration of Licence for the Export of Goods, Order of the Ministry of 
Commerce (2008) No. 11, 1 July 2008 (Panel Exhibits CHN-342 and JE-74). 
465Announcement of the Ministry of  Commerce Issuing the "2009 Graded Licence-Issuing List of 
Commodities Subject to Export Licence Administration" , Ministry of Commerce, Notice (2008) No. 124, 
1 January 2009 (Panel Exhibit JE-96). 
466Working Rules on Issuing Export Licences, Minist ry of Commerce, Shangp eifa (2008) No. 398, 
9 October 2008 (Panel Exhibits CHN-344 and JE-97). 
467Implementation Rules of Export Quota Bidding for Industrial Products, Ministry of Foreign Trade 
and Economic Cooperation, 8 November 2001 (Panel Exhibits CHN-305 and JE-78). 
468Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial Products, Ministry of 
Commerce, Notice (2008) No. 83, 1 January 2009 (Panel Exhibit JE-79). 
469Announcement on the Second Invitation for the Bidding of Select Industrial Product Export Quotas 
in 2009, Committee for the Invitation for bid for Export Commodity Quotas, 16 September 2009 (Panel Exhibit 
JE-132). 
470Notice "2009 Export Licensing Management Commodities List", Ministry of Commerce and 
General Administration of Customs, Notice (2008) No. 100, 1 January 2009 (Panel Exhibits CHN-6 and JE-22). 
471Announcement of Ministry of Commerce on Matters regarding the First Bidding for Export Quotas 
of Industrial Products in 2009, Ministry of Commerce, Announcement (2008) No. 85, 30 October 2008 (Panel 
Exhibits CHN-309 and JE-90). 
472Announcement of Ministry of Comme rce on the Notice for the Second  Invitation for the Bidding for 
Industrial Product Export Quotas in 2009, Ministry of Commerce, Announcement (2009) No. 42, 8 June 2009 
(Panel Exhibits CHN-310 and JE-91).  WT/DS394/AB/R 
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  Bidding Announcement "), and Quotas of Bauxite of 2009
473 ("2009 First Round Bauxite Bidding 
Procedures ").  Similarly, the Panel found that the expor t duties imposed in 2009 on the raw materials 
at issue474 were imposed through the application of China's Customs Law of the People's Republic of 
China475 (China's " Customs Law "), the Regulations of the People's Republic of China on Import and 
Export Duties476 ("Regulations on Import and Export Duties "), and the Notice Regarding the 2009 
Tariff Implementation Program477 ("2009 Tariff Implementation Program "). 
241. In our discussion below, we refer, as did the Panel, to the groups of measures challenged by 
the complainants as a whole, and in force at the time of the Panel's establishment, as the various 
"series of measures".478  More specifically, we use the term "series of measures" to describe, 
collectively, the entire hierarchy of legal instru ments applicable to each product, that is, the 
framework legislation, the regulations implementing th is legislation, and the specific legal instrument 
or instruments identifying the individual export quotas or duties imposed on the product in 2009.  We 
therefore do not use that term to refer, for exampl e, to any specific legal instrument setting out an 
export quota amount or an export du ty rate taken in isolation. 
242. While the framework legislation and implementing regulations remained in effect, certain of 
the legal instruments setting out an export quota amount or an export duty rate identified by the 
complainants in their panel requests expired or  were replaced during the course of the Panel 
proceedings.479  This was the case, for example, for the 2009 Tariff Implementation Program , which 
specified export duty rates for seven of the nine raw materials at issue during calendar year 2009.  
This measure expired at the end of 2009 and was replaced, with effect from 1 January 2010, by the 
Circular of the State Council Tariff Commi ssion on the 2010 Tariff Implementation Plan480 ("2010 
                                                      
473Quotas of Bauxite of 2009, Committee for the Invitation for bid for Export Commodity Quotas, 
10 December 2008 (Panel Exhibit JE-94). 
474See Panel Reports, paras. 7.76, 7.80, 7.84, 7.88, 7.92, 7.97, and 7.101. 
475Customs Law of the People's Republic of China, adopted at the 19th Meeting of the Standing 
Committee of the Sixth National People's Congress on 22 January 1987, amended 8 July 2000 (Panel Exhibits 
CHN-14 and JE-68). 
476Regulations of the People's Republic of China on Import and Export Duties, Order of the State 
Council (2003) No. 392, adopted at the 26th executive meeting of the State Council on 29 October 2003, 
1 January 2004 (Panel Exhibits CHN-13 and JE-67). 
477Notice Regarding the 2009 Tariff Implementation Program, State Council Tariff Policy Commission, 
Shuiweihui (2008) No. 40, 1 January 2009 (Panel Exhibit JE-21). 
478The term "series of measures" can be used in both the plural, as here, to refer to the various series of 
measures upon which the Panel made findings and recommendatio ns in this case, or in the singular to apply to 
the specific series (or group) of measures imposing an export duty or export quota on a single product in 2009. 
479Panel Reports, para. 7.5. 
480Circular of the State Council Tariff Commission on the 2010 Tariff Implementation Plan, Shui Wei 
Hui [2009] No. 28, promul gated by the Customs Tariff Commission of  the State Council on 8 December 2009 
(Panel Exhibit CHN-5). WT/DS394/AB/R 
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  Tariff Implementation Plan "), which specified export duty rates for the raw materials at issue 
applicable as of 1 January 2010.
481 
243. The parties disagreed as to whether the Panel should consider the series of measures as it 
existed in 2010, and including the specific measure s setting out export duty rates or quota amounts for 
each product in 2010, or the series of measures as it ex isted at the time of the Panel's establishment in 
2009, including the 2009 export duty rates and quota amounts.482  China recognized that the Panel 
could make findings on 2009 measures specifying export quota and duty levels483, but nevertheless 
argued that it "would serve no purpose" for the Pane l to rule on measures that have ceased to exist 
since they no longer violate WTO obligations or nullify or impair benefits.484 
244. For their part, the complainants argued that the Panel should make findings on the "legal 
situation prevailing on the date of  the establishment of the Panel".485  They asserted that the Panel 
"should not consider the claims  as addressing the 2010 measures"486, and requested that the Panel not 
"make any findings and recommendations on an y of the 2010 measures invoked by China".487  The 
                                                      
481In 2009, bauxite and fluorspar had been subject to both export quotas and export duties.  As from 1 
January 2010, they were su bject to only one restraint each, that is , an export quota an d an export duty, 
respectively. (See China's first written submission to the Panel, paras. 63-67;  see also United States' other 
appellant's submission, para. 64) 
482The Panel appears to have used the terms "replacement measures" and "2010 measures" 
interchangeably.  We note, however, that the United States and Mexico explained to the Panel that: 
[t]he reference in the [US][Mexic o] panel request to "replacement 
measures" and "renewal measures" is a reference to legal instruments in 
existence at the time of the [US][Mexico] panel request but of which the [US][Mexico] may not have been aw are, that formally "replaced" or 
"renewed" a legal instrument listed in the [US][Mexico] panel request but 
did not change its content or effect.  The Panel's terms of reference are 
therefore not broad enough to include these legal instruments that took 
effect on January 1, 2010 (the January 1, 2010 Measures).  
(United States' second written submission to the Panel, pa ra. 338;  Mexico's second written submission to the 
Panel, para. 342) 
In other words, the United States and Mexico used  the term "replacement measures" to refer to 
measures that were in existence at the time of the pane l requests.  China, on the other hand, characterized the 
legal instruments through which the export quotas and e xport duties were imposed as "replacement measures", 
and argued that the ones that were in effect on the date of Panel establishment (effective during 2009) had "expired" and had been "replaced" by "new" measures on 1 January 2010.  China refers to the first category of 
measures as "2009 measures" and the second as "2010 measures". 
483Panel Reports, para. 7.6 (referri ng to China's first written submission to the Panel, para. 52). 
484Panel Reports, para. 7.6 (referring to China's first written submission to the Panel, paras. 49-51, 56, 
62, 64, and 67;  China's second written submission to the Panel, section II, entitled "Panel Should Rule on the 
2010 Measures To resolve the Disputes, and Should Not Rule on the 2009 Measure" and para. 12, where China states that, "[i]n sum, the prompt and positive resolution of this dispute calls for the Panel to address the 2010 
measures, and not the 2009 measures"). 
485Panel Reports, para. 7.7. 
486Panel Reports, para. 7.7. 
487Panel Reports, para. 7.22.  WT/DS394/AB/R 
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  complainants considered, however, that "the me asures invoked in the context of China's defence 
under GATT Article XX form part of China's evid ence and should be evaluated as evidence, but not 
as measures per se ."
488 
245. The Panel observed that the complainants' pa nel requests refer to "any amendments or 
extensions;  related measures;  replacement m easures;  renewal measures;  and implementing 
measures".489  As it had done in the first phase of its preliminary ruling490, the Panel decided that its 
terms of reference were broad enough to encomp ass "amendments or replacement measures of the 
2009 measures challenged by the complainants".491 
246. However, after considering the parties' argumen ts, the Panel decided to adopt the following 
approach, which we consider useful to set out in full: 
(a) The Panel will make findings on the WTO consistency of 
original measures included in its terms of reference.  In light of the request by the complainants that the Panel not make any findings on any amendments or replacement measures, the Panel will only make 
findings on 2009 measures and the Panel will not make findings on 
2010 measures. 
(b) In situations where a 2010 replacement measure appears to 
correct the WTO inconsistency of the original 2009 measure—in whole or in part (and therefore is considered not to have the same 
essence, in whole or in part, as the expired measure)—the Panel will 
decline to make findings or recommendations on the 2010 measure, as it falls outside its terms of refere nce.  However, in order to make a 
determination on whether the new measure is of the same essence as the expired measure, and hence imbues the expired measure with ongoing effect or prospective appli cation, the Panel will necessarily 
have to determine (without making a formal finding) whether the 
WTO inconsistency is no longe r present in the new measure. 
(c) Nonetheless, with a view to ensuring that annually renewed 
measures do not evade review by virtue of their annual nature—and relying on the Appellate Body ruling in US – Continued Zeroing  
where the Appellate Body recognized the possibility for a panel to 
make a ruling on measures that have a "prospective application and a life potentially stretching into the future"—the Panel will make findings with respect to the series of measures comprised of the relevant framework legislation, th e implementing regulation(s), other 
                                                      
488Panel Reports, para. 7.7. 
489Panel Reports, para. 7.15. 
490Panel's preliminary ruling (first phase), para. 20. 
491Panel Reports, para. 7.20. WT/DS394/AB/R 
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  applicable laws and the specific measure imposing export duties or 
export quotas in force at the date of the Panel's establishment. 
(d) With respect to recommendations, generally the Panel will 
not make recommendations on any original measure or on any 
measure no longer in existence (or part thereof) on 15 December 2010, unless there is clear eviden ce that the measure has ongoing 
effect. 
(e) In situations where the claim is based on an annual measure, 
as is the case with measures imposi ng export duties and with some of 
the measures relating to export quotas, the Panel will make recommendations with respect to the series of measures comprised of the relevant framework legislati on, the implementing regulation(s), 
other applicable laws and the specific measure imposing export 
duties or export quotas in force at the date of the Panel's 
establishment.
492 
247. We understand the Panel to have set out to make  findings on all of the series of measures in 
effect in 2009, including specific measures setti ng out export duties and export quotas that had 
expired during the course of the Panel proceedings.  The Panel also clarified that it would not make 
findings on the specific measures assigning export duty rates and quota levels for 2010 in the light of 
the request of the complainants not to make findi ngs on such measures.  The Panel further specified 
that it would make findings and recommendations re lating to the export quotas and export duties on 
the basis of "the series of measures comprised  of the relevant framework legislation, the 
implementing regulation(s), other applicable laws and the specific measure imposing export duties or 
export quotas in force at the date of the Panel's establishment."493  The Panel added that it would not 
make recommendations on expired measures, unless there was clear evidence that such measures had 
ongoing effect.  The Panel expressed the view that , because the measures operating to impose export 
duties and export quotas included measures of an annua lly recurring nature, its approach would ensure 
that these measures did not "evade review".494 
B. China's Appeal 
1. Arguments on Appeal 
248. On appeal, China does not dispute that the complainants had the "option" of pursuing claims 
against the "future life" of the export duties and quotas at issue by challenging the measures 
                                                      
492Panel Reports, para. 7.33. 
493Panel Reports, paras. 7.33(c) and 7.33(e). 
494Panel Reports, para. 7.33(c).  WT/DS394/AB/R 
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  specifying such duty rates and quota levels in 2010.
495  China adds that it even "encouraged" the 
complainants to do so.496  However, according to China, the co mplainants decided to exclude those 
2010 measures from the dispute, thereby "breaki ng the chain of measures subject to dispute 
settlement".497  In these circumstances, by making recommendations extending to measures specifying 
export duty rates and quota amounts for 2010, China claims  that the Panel acted inconsistently with its 
terms of reference under Article 7.1 of the DSU;  fa iled to make an objective assessment of the matter 
under Article 11 of the DSU;  and acted inc onsistently with Article 19.1 of the DSU. 
249. In response, the United States and Mexico submit that "China has not understood the Panel's 
recommendations correctly".498  In particular, they consider that the Panel did not make 
recommendations on measures on which it had not ma de findings and did not make recommendations 
on the basis of measures that were outside of its te rms of reference.  Instead, the Panel made findings 
and recommendations on the series of measures "i n force at the date of panel establishment".499  
According to the United States and Mexico, China's a ppeal therefore "may be dismissed on this basis 
alone".500  The European Union makes arguments along the same lines, noting that the Panel did not 
refer explicitly to "2010 'replaceme nt measures'" in its recommendations.501  The European Union also 
points out that the Panel did not refer to any such  "replacement" measures in its Reports when it 
identified the measures that com posed the "series of measures".502 
250. China's appeal regarding the Panel's recomme ndations rests on the proposition that the Panel 
made recommendations on a "series of measures" that  extends into the future and includes the 2010 
measures.  That is, China faults the Panel for "m aking recommendations regarding a so-called 'series 
of measures' with a prospective life extended thr ough annual replacement measures" that were not 
before the Panel when it made its recommendations.503  In order to address China's arguments on 
appeal, we begin by reviewing the nature of the challenge brought by the complainants before the 
Panel. 
                                                      
495China's appellant's submission, para. 163. 
496China's appellant's submission, para. 163. 
497China's appellant's submission, para. 165. (emphasis omitted) 
498Joint appellees' submission of the United States and Mexico, para. 81. 
499Joint appellees' submission of the United States and Mexico, para. 83. 
500Joint appellees' submission of the United States and Mexico, para. 83. 
501European Union's appellee's submission, para. 39. 
502European Union's appellee's submission, para. 39. 
503China's appellant's submission, para. 153. WT/DS394/AB/R 
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  2. Analysis 
251. A panel is required, under Article 7 of the DSU,  to examine the "matter" referred to the DSB 
by the complainant in the request for the establishment of a panel, and to make such findings as will 
assist the DSB in making recommendations.  The la nguage in a complainant's panel request is 
therefore important because "a panel's terms of  reference are governed by the request for 
establishment of a panel".504  Article 19.1 of the DSU establishes a link between a panel's finding that 
"a measure is inconsistent with a covered agre ement", and its recommendation that the respondent 
"bring the measure into conformity".  The "measures"  that may be the subject of recommendations in 
Article 19.1 are limited to those measures that ar e included within a panel's terms of reference. 
252. In order to identify the object of the complainan ts' challenge, we begin with the language used 
by the complainants in their panel requests.505  With respect to export quot as, the complainants claim 
in Section I of their panel requests that "China subjects the exportation of bauxite, coke, fluorspar, 
silicon carbide, and zinc to quantitative restric tions such as quotas."  The complainants further 
contend that these restrictions "are reflected in" 25 legal instruments listed in the panel requests, 
including China's Foreign Trade Law , Regulation on Import and Export Administration , Export 
Quota Bidding Measures , 2008 Export Licence Administration Measures , 2008 Export Licensing 
Working Rules , and Export Quota Bidding Implementation Rules , which constitute the general legal 
framework and implementing regulations allowing for the imposition of export quotas, as well as the 
specific measures that established the export q uota amounts and allocation procedures on bauxite, 
coke, fluorspar, silicon carbide, and zinc for 2009.506  Similarly, with respect to export duties, the 
complainants identified in Section II of their pane l requests the object of their challenge as export 
duties "reflected in" 19 specifically identified lega l instruments.  These include measures setting out 
the general legal framework for the impos ition of export duties—that is, China's Customs Law  and the 
Regulations on Import and Export Duties —as well as the specific measure that sets out particular 
export duty rates for 2009 on bauxite, coke, fluorsp ar, magnesium, manganese, silicon metal, yellow 
phosphorous, and zinc—that is, the 2009 Tariff Implementation Program . 
253. The complainants did not use th e words "series of measures" to  describe the object of their 
challenge.  However, as noted above, they did identify the specific measures that, collectively, 
compose China's legal system for the imposition of export duties and export quotas in their panel 
                                                      
504Appellate Body Report, US – Carbon Steel , para. 124. 
505WT/DS394/7, WT/DS395/7, and WT/DS398/6.  See Annexes I-III of these Reports. 
506Panel Reports, para. 7.17;  see also paras. 7.219-7.223.  WT/DS394/AB/R 
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  requests.
507  Moreover, they contended that the im position of export duties and export quotas on 
particular products, through the application of those measures, is contrary to China's WTO obligations.
508  The complainants further clarified that th e Panel should not consider their claims as 
addressing measures adopted after the establishment of  the Panel, and requested that the Panel not 
"make any findings and recommendations on any of the 2010 measures invoked by China".509 
254. As the Panel explained, China's legislativ e system for the imposition of export duties 
comprises basic framework legislation, an implem enting regulation, and specific "annual measures 
that set the level of duty for specific products".510  The Panel added that, w ith respect to export quotas, 
there is also a basic framework legislation, an implementing regulation, "a set of regulations 
applicable to the relevant allocation system—dir ect allocation or quota bidding—and finally a set of 
measures (of varying duration, from a few months to a year or indefinite) that determine the level of 
quotas for specific products".511  The Panel did not consider that "individually each of those measures 
would necessarily be WTO-inconsistent";  rather, the Panel said that, "when they operate in concert to 
result in WTO-inconsistent [export duties or quotas], it is then that they would become prima facie  
WTO-inconsistent".512  The Panel added that it is only by examining these "measures as they work in 
concert that the Panel can reach a final determin ation on the complainants' export duty" and export 
quota claims.513  In our view, the Panel correctly described  the object of the complainants' challenge.  
Indeed, the complainants' panel requests and subseque nt arguments before the Panel reveal that the 
complainants brought their claims with respect to all the measures through which export duties and 
quotas were imposed on particular raw materials at th e time of the establishment of the Panel in 2009. 
255. Based on the foregoing, we do not consider that the Panel erred in setting out to make 
recommendations on the "series of measures" imposi ng export duties or export quotas in force at the 
date of the Panel's establishment.514  Moreover, in the light of the Panel's express statement that it 
would make recommendations on measures "in force at the date of the Panel's establishment", and 
that it would not make findings on the measures im posing specific export duty rates and quota levels 
                                                      
507See Panel Reports, paras. 7.17 and footnotes 55 and 56 thereto. 
508Panel Reports, para. 3.2. 
509Panel Reports, para. 7.22.   
510Panel Reports, para. 7.17 and footnote 55 thereto.  The Panel noted that the complainants' panel 
requests identify measures comprising China's system for applying export duties.  The Panel described this 
system in further detail in its Reports at paras. 7.59-7.63. 
511Panel Reports, para. 7.17 and footnote 56 thereto.  The Panel noted that the complainants' panel 
requests identify measures comprising China's system for applying export quotas.  The Panel described this 
system in further detail in Panel Reports, paras. 7.172-7.201. 
512Panel Reports, paras. 7.68 and 7.224. 
513See, for example, Panel Reports, para. 7.68. 
514Panel Reports, para. 7.33(e). WT/DS394/AB/R 
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  for 2010, we consider that the Panel made no expr ess recommendations regarding measures that were 
excluded from the Panel's terms of reference by the complainants. 
256. The question remains whether the recommendations  that the Panel made regarding the series 
of measures in force in 2009 have consequences fo r the measures imposing specific export duty rates 
and quota levels for 2010, or indeed any existing or subsequent measures imposing export duties or 
quotas on these products. 
257. In China's view, because the complainants di d not seek findings and recommendations on the 
specific 2010 measures that replaced the measures imposing export duty rates and quota amounts in 
effect at the time of the Panel's establishment,  no recommendation should ha ve consequences for any 
2010 or other "replacement measures".  The United States and Mexico respond that they were not required to challenge and obtain findings and reco mmendations against "replacement measures" in 
order for "future" measures to fall within the sco pe of China's implementation obligation if the 
challenged measures were found to be WTO-inconsis tent.  China's approach, they submit, "would 
frustrate the aims of the dispute settlement system"
515 by creating a "moving target", whereby "both 
Complainants and the Panel would continually have had to recast th eir arguments and assessment of 
the legal state of play as it evolved through the proceedings".516 
258. The United States and Mexico also fault China for confusing the distinction between "the 
basis on which a recommendation is made" and "the application or effect of the recommendation once 
it is made".517  They maintain that "the fact that a recommendation may have a temporal application in 
the future (in the sense of requiring the Member c oncerned to ensure that it has complied with the 
recommendation) does not contradict the fact that it is necessarily made on the basis of a finding 
whose temporal application is in the past".518   
259. In alleging that the Panel erred in maki ng recommendations extending to the measures 
imposing specific export duty rates and quota amounts in 2010, China appears to assume that a finding that is made with respect to a "series of  measures" as it existed at the time the Panel was 
established cannot have consequences for measures adopt ed in 2010 or thereafter, through the effect 
of the recommendation made by the Panel or the A ppellate Body after adoption by the DSB.  We 
disagree. 
                                                      
515Joint appellees' submission of the United States and Mexico, para. 87. 
516Joint appellees' submission of the United States and Mexico, para. 73 (referring to Appellate Body 
Report, Chile – Price Band System , para. 144). 
517Joint appellees' submission of the United States and Mexico, para. 85. 
518Joint appellees' submission of the United States and Mexico, para. 85.  WT/DS394/AB/R 
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  260. Pursuant to Article 19.1 of the DSU, when a pa nel concludes that a measure is inconsistent 
with a covered agreement, it shall recommend that  the Member concerned bring its measure into 
conformity with that agreement.  While a finding by a panel concerns a measure as it existed at the 
time the panel was established, a recommendation is pros pective in nature in th e sense that it has an 
effect on, or consequences for, a WTO Member's  implementation obligations that arise after the 
adoption of a panel and/or Appella te Body report by the DSB.  As the Appellate Body noted in US – 
Continued Zeroing , "it is not uncommon for remedies sought in WTO dispute settlement to have 
prospective effect, such as a finding against laws or  regulations, as such, or a subsidy programme with 
regularly recurring payments".
519 
261. At issue in this case are several groups, or series, of measures—that is, the relevant 
framework legislation, the implementing regulations, and the specific measures in force at the date the 
Panel was established imposing export duties or quotas on each raw material.  As the Panel noted, 
these groups of measures operate collectively to  impose export duties or export quotas on the raw 
materials at issue.  The object of the complainan ts' challenge was the legal situation prevailing in 
2009, that is, the "series of measures" pursuant to which China imposed export quotas and duties on 
the raw materials at issue at the time the Panel was established.  As  the Panel found, such measures 
include China's Customs Law  and the Regulations on Import and Export Duties , which authorize the 
imposition of export duties;  China's Foreign Trade Law , which confers the authority to restrict or 
prohibit the exportation of goods through export quot as and subjects those goods to an export quota 
administration;  as well as the re gulations implementing this framework  legislation.  In addition to 
these standing measures, each serie s of measures also includes the specific measures imposing export 
duty rates or quota amounts in force at a particular time.  These latter measures are, as the Panel 
found, of varying duration.  In a particular year , China may, for example, increase or decrease the 
amount of export duty imposed on a particular product , or it may even eliminate that duty altogether, 
while the framework legislation and implementing regulations remain in place.520  Against this 
background, we do not consider that it was necessary  for the complainants to include claims with 
regard to the specific export duty and quota measures a pplied in 2010, in addition to those that were in 
force when the Panel was established in 2009, in order to obtain a recommendation with prospective 
effect. 
                                                      
519Appellate Body Report, US – Continued Zeroing , para. 171. 
520The Panel found that such a change occurred, for example, with respect to  the export duty rate 
imposed on yellow phosphorous in 2009. (See Panel Reports, paras. 7.69-7.71) WT/DS394/AB/R 
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  262. In arguing that the complainants "decided" to exclude the "annual replacement measures" 
from the dispute, thereby "breaking the chai n of measures subject to dispute settlement"
521, China 
appears to assume that the complainants were in itially challenging annually reviewed export duties 
and export quotas as separate and independent acts, or as a series of such acts, extending into the 
future.  China characterizes such measures as "a ch ain of annually renewed measures", and submits 
that the complainants later "na rrowed the scope of the dispute to  exclude the annual replacement 
measures".522  Had the complainants' challenge been lodged against "ongoing conduct", as China 
alleges, a recommendation would have served the purpose of directing China to discontinue its 
WTO-inconsistent conduct.  However, while the setting of export duty rates and export quotas for a 
particular year is clearly a distinct action, the co mplainants' challenge in this case was not to specific 
annual export duty or quota measures in isolation, or to ongoing conduct consisting of a "chain of 
annually reviewed measures".  Rather, the complain ants challenged China's framework legislation, 
implementing regulations, and the specific measures in  force at the date of the Panel's establishment 
imposing export duties or export quotas on each raw material.  As the Panel noted, when these measures "operate in concert to result in WTO-inc onsistent [export duties or quotas], it is then that 
they would become prima facie  WTO-inconsistent".
523  This being the case, the Panel rightly 
recommended that China bring its measures into conf ormity with its WTO obligations, such that the 
"series of measures" does not operate to bring abou t a WTO-inconsistent result.  The fact that the 
Panel directed its findings and recommendations at the legal situation prevailing in 2009 does not 
mean that China has no compliance obligati ons with respect to the Panel's findings.524 
263. We note that, in making its recommendati ons, the Panel was concerned about making 
recommendations on what it viewed to be "expired" measures.525  The Panel noted, for example, that 
previous panels had found that it would not be appropriate to make re commendations on measures 
                                                      
521China's appellant's submission, para. 165. (emphasis omitted) 
522China's appellant's submission, para. 165. 
523Panel Reports, paras. 7.68 and 7.224. 
524As a separate matter, we note that the Panel ex pressed the view that "the WTO consistency of a 
measure is necessarily relevant to its 'essence'" in th e context of WTO dispute settlement procedures.  (Panel 
Reports, para. 7.17)  The Panel added that, "[i]f a new measure appears to be WTO consistent, while the original was not, the new measure takes on a different character in the context of WTO dispute settlement and cannot be 
said to be of the 'same essence'."  ( Ibid.)  We fail to see why the "apparent" consistency, or inconsistency, of a 
measure would necessarily have a bearing on the issue of whether it would be deemed to be of the "same essence" as the original measure.  Fo r example, the fact that one measure im poses a lesser export duty rate than 
another measure might mean that the former is consistent  while the latter is inconsistent with a WTO Member's 
obligations under Article II of the GATT 1994.  It is not clear, however, why this fact, taken alone, would 
necessarily mean that the two measur es are not of the "same essence". 
525Panel Reports, para. 7.33(b) and (d).  WT/DS394/AB/R 
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  that no longer exist.
526  The DSU does not specifically address whether a WTO panel may or may not 
make findings and recommendations with respect to a measure that expires or is repealed during the 
course of the panel proceedings.  Panels have ma de findings on expired measures in some cases and 
declined to do so in others, depending on the particularities of the disputes before them.527  In the 
present dispute, China takes issue with the recomm endations made by the Panel, and not with its 
findings on particular measures.  In US – Upland Cotton , the Appellate Body drew a distinction 
between the question of whether a panel can make find ings with respect to an expired measure and the 
question of whether an expired measure is susceptib le to a recommendation under Article 19.1 of the 
DSU: 
The Appellate Body in US – Certain EC Products confirmed that the 
3 March Measure had ceased to exist.  It noted that there was an obvious inconsistency between the finding of the panel that "the 
3 March Measure is no longer in existence" and the panel's 
subsequent recommendation that the Dispute Settlement Body (the "DSB") request the United States to bring the 3 March Measure into conformity with its WTO obligations .  Thus, the fact that a measure 
has expired may affect what recommendation a panel may make.  It 
is not, however, dispositive of the preliminary question of whether a 
panel can address claims in respect of that measure.
528 (footnote 
omitted) 
264. Contrary to the Panel's approach in this disput e, the Appellate Body indicated that the fact 
that a measure has expired "may affect" what recommendation a panel may make.  The Appellate 
Body did not suggest that a panel was preclude d from making a recommendation on such a measure 
in a particular case.  In general, in cases where the me asure at issue consists of a law or regulation that 
has been repealed during the panel proceedings, it would seem there would be no need for a panel to 
make a recommendation in order to resolve the dispute.   The same considerations do not apply, in our 
view, when a challenge is brought against a group or "series of measures" comprised of basic 
framework legislation and implementing regulations , which have not expired, and specific measures 
imposing export duty rates or export quota amounts fo r particular products on an annual or time-
bound basis, as is the case here.  The absence of  a recommendation in such a case would effectively 
mean that a finding of incons istency involving such measures w ould not result in implementation 
                                                      
526Panel Reports, para. 7.28 (referring to Panel Reports, EC – Trademarks and Geographic Indications , 
para. 7.14;  and Panel Report, US – Poultry (China) , para. 7.56). 
527See, for instance, Panel Report, US – Wool Shirts and Blouses , para. 6.2;  Panel Report, Indonesia – 
Autos , para. 14.9;  Panel Report, Chile – Price Band System , para. 7.126;  Panel Report, Dominican Republic – 
Imports and Sale of Cigarettes , para. 7.344;  and Panel Report, EC – Approval and Marketing of Biotech 
Products , paras. 7.1303-7.1312. 
528Appellate Body Report, US – Upland Cotton , para. 271. WT/DS394/AB/R 
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  obligations for a responding member, and in that sense would merely be declaratory.
529  This cannot 
be the case. 
265. Article 3.7 of the DSU provides that "[t]he ai m of the dispute settlement mechanism is to 
secure a positive solution to a dispute."  This is affi rmed in Article 3.4 of the DSU, which stipulates 
that "[r]ecommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement of the matter in accord ance with the rights and obliga tions under this Understanding and 
under the covered agreements."  In our view, in orde r to "secure a positive solution to the dispute" and 
to make "sufficiently precise recommendations a nd rulings so as to allow for prompt compliance"
530, 
it was appropriate for the Panel in this case to have recommended that the DSB request China "to 
bring its measures into conformity with its WTO ob ligations such that the 'series of measures' does 
not operate to bring about a WTO-inconsistent result".531 
3. Conclusion 
266. We do not consider that the Panel erred in recommending that the DSB request China "to 
bring its measures into conformity with its WTO ob ligations such that the 'series of measures' does 
not operate to bring about a WTO-inconsistent result".532  Nor do we consider the Panel to have made 
a recommendation on a matter that was not before it.  Accordingly, we do not agree with China that 
the Panel acted inconsistently with  its obligations under Article 7.1 of the DSU.  China's claims under 
Article 11 and Article 19.1 of the DSU are conseque ntial in nature and depend on whether we find 
that the Panel correctly understood the object of th e complainants' challenge, that is, the "matter" on 
which the Panel was required to make its findings.  In the light of our view that the Panel did not 
make findings on a matter that was not before it, we dismiss these claims by China.  In sum, therefore, we find that the Panel did not err in recommending, in paragraphs 8.8, 8.15, and 8.22 of the Panel 
Reports, that China bring its export duty and export quota measures into conformity with its WTO 
                                                      
529In fact, China argued at the oral hearing that, because the complainan ts brought an "as applied" claim 
regarding the application of measures in 2009, and because they expressly excl uded "replacement measures" 
from the Panel's terms of reference, all the export duty a nd quota measures within the Panel's terms of reference 
have since expired.  In China's view, a recommendation cannot be made with respect to an expired measure, nor with respect to a measure that is outside the Panel's terms of reference. 
530Appellate Body Report, Australia – Salmon , para. 223. 
531Panel Reports, paras. 8.8, 8.15, and 8.22. 
532Panel Reports, paras. 8.8, 8.15, and 8.22.  The Panel made the same recommendation with respect to 
each of the complainants.  WT/DS394/AB/R 
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  obligations such that the "series of measures" do not operate to bring a bout a WTO-inconsistent 
result.
533 
C. Conditional Other Appeals of the United States, Mexico, and the European Union 
267. In their other appeals, the United States a nd Mexico refer to the possibility that the 
Appellate Body might reverse the Panel's recommenda tions in paragraphs 8.8, 8.15, and 8.22 of the 
Panel Reports "to the extent that they appl y to replacement measures", and find that no 
recommendation should have been made on the "seri es of measures" as they existed on the date of 
Panel establishment.534  In the event that the Appellate Body were to so find, the United States and 
Mexico would seek review of the Panel's interp retation and conclusion that it could not make 
recommendations on the 2009 export quota and expo rt duty measures that were annually recurring 
and in effect as of the date of Panel establishment. 
268. The European Union also submits a conditional ap peal in the event the Appellate Body were 
to accept the relevant ground of appeal raised by Ch ina, and also reject the relevant other appeals 
submitted by the United States and Mexico.  In that  case, the European Union would argue that the 
Panel erred in finding that, during the course of the Panel proceedings, the European Union 
"requested the Panel not to make any findings and recommendations on the legal instruments taking 
effect on 1 January 2010" and thereby na rrowed the Panel's terms of reference.535 
269. As the condition on which the United States and Me xico's request is premised has not been 
met, there is no need for us to address the United States' and Mexico's conditional appeal.  For the 
same reason, we do not address the European Union's conditional appeal. 
VI. Applicability of Article XX 
270. In this section, we address Ch ina's claim that Article XX of the GATT 1994 is available as a 
defence to China in relation to export duties found to be inconsistent with China's obligations under 
Paragraph 11.3 of China's Accession Protocol. 
                                                      
533Panel Reports, paras. 8.8, 8.15, and 8.22.  The Panel made the same recommendation with respect to 
each of the complainants. 
534United States' other appellant's submission, para. 8;  Mexico's other appellant's submission, para. 16. 
535European Union's other appellant's submission, para. 3 (referring to Panel Reports, paras. 7.21 
and 7.22). WT/DS394/AB/R 
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  A. The Panel's Findings 
271. The Panel began its interpreta tion of Paragraph 11.3 of Ch ina's Accession Protocol by 
observing that Paragraph 11.3 "does not include any express reference to Article XX of the 
GATT 1994, or to provisions of the GATT 1994 more generally".
536  In so doing, the Panel drew a 
contrast between the text of Paragraph 11.3 and th e language contained in Paragraph 5.1 of China's 
Accession Protocol—"without prejudice to China's right  to regulate trade in a manner consistent with 
the WTO Agreement"—which the Appellate Body examined in China – Publications and Audiovisual 
Products .537  In particular, the Panel noted that Para graph 11.3 contains only a "specific set of 
exceptions:  those covered by Annex 6 a nd those covered by GATT Article VIII".538  For the Panel, 
the language in Paragraph 11.3, together with the "omission of general references to the 
WTO Agreement or to the GATT 1994"539, suggest that WTO Members did not intend to incorporate 
the defences available under Ar ticle XX into Paragraph 11.3.540  The Panel also found no support in 
the provisions of China's Accession Working Party Report for the proposition th at China could invoke 
Article XX of the GATT 1994 to justify violations of Paragraph 11.3 of China's Accession Protocol. 
272. Regarding the context provided by the provisi ons of the other WTO agreements, the Panel 
noted that there are no general exceptions in the WTO Agreement , and that each of the covered 
agreements provides its own "set of exceptions or flexibilities" applicable to  the specific commitments 
in each agreement.541  Referring to Article XX of the GA TT 1994, the Panel considered that the 
reference to "this Agreement" a priori  suggests that the exceptions therein relate only to the 
GATT 1994.542  Noting that, in several instances, provisi ons of Article XX have been incorporated 
into other WTO agreements by cross-reference, the Panel observed that, since no such language is 
found in Paragraph 11.3 of China's Accession Protocol, Article XX coul d not be intended to apply to 
Paragraph 11.3.  Furthermore, whereas the Panel ag reed that WTO Members have an "inherent right" 
                                                      
536Panel Reports, para. 7.124. 
537Paragraph 5.1 of China's Accession Protocol provides: 
Without prejudice to China's right to regulate trade in a manner consistent with the WTO Agreement, China shall progressively liberalize the 
availability and scope of the right to tr ade, so that, within three years after 
accession, all enterprises in  China shall have the ri ght to trade in all goods 
throughout the customs territory of China, except for those goods listed in 
Annex 2A which continue to be subject  to state trading in accordance with 
this Protocol. 
538Panel Reports, para. 7.126. 
539Panel Reports, para. 7.129. 
540Panel Reports, paras. 7.126-7.129. 
541Panel Reports, para. 7.150. 
542Panel Reports, para. 7.153.  WT/DS394/AB/R 
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  to regulate trade, the Panel considered that China had exercised this right in negotiating and ratifying 
the WTO Agreement , including the terms of its accession to the WTO.
543  On this basis, the Panel 
concluded that the defences of Ar ticle XX of the GATT 1994 are not ava ilable to justify violations of 
the obligations contained in Paragraph 11.3 of China's Accession Protocol.544 
B. Arguments on Appeal 
273. China alleges various errors in the Panel's anal ysis and requests the Appellate Body to reverse 
the Panel's finding that China may not seek to justify export duties pursuant to Article XX of the GATT 1994 that were found to be inconsistent with  its commitment to eliminate export duties under 
Paragraph 11.3 of its Accession Protocol.
545  China further requests us to find that Article XX is 
available to China to ju stify such measures.   
274. China contends, in particular, that the Panel e rred in determining that there is "no textual 
basis" in China's Accession Protocol for it to invoke Article XX in defence of a claim under 
Paragraph 11.3.546  In China's view, the Panel's finding that Paragraph 11.3 excludes recourse to 
Article XX of the GATT 1994 was based on the Pa nel's erroneous assumption that the absence of 
language expressly granting the right to regulate trad e in a manner consistent with Article XX means 
that China and other Members intended to deprive Ch ina of that right.  Moreover, China argues that 
WTO Members have an "inherent right" to regulate trade, "including using export duties to promote 
non-trade interests".547 
275. Although China takes issue with the Panel's finding that Article XX is not available to China 
to justify measures that would otherwise be incons istent with its commitment to eliminate export 
duties under Paragraph 11.3 of its Accession Protocol, it does not request the Appellate Body to 
reverse the Panel's finding that China failed to de monstrate that the export duties at issue in this 
dispute are justified under Article XX of the GATT 1994.   
276. The United States, the European Union, and Mexico support the Panel's finding that 
Article XX of the GATT 1994 cannot be invoked to ju stify export duties that are inconsistent with 
Paragraph 11.3 of China's Accession Protocol.  The United States and Mexico recall that, in China – 
                                                      
543Panel Reports, para. 7.156. 
544Panel Reports, para. 7.158. 
545China's appellant's submission, para. 168 (referring to Panel Reports, paras. 7.158, 7.159, 8.2(b)-(c), 
8.9(b)-(c), and 8.16(b)-(c)). 
546China's appellant's submission, para. 190. 
547China's appellant's submission, para. 208. WT/DS394/AB/R 
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  Publications and Audiovisual Products , the Appellate Body interprete d the language of Paragraph 5.1 
of China's Accession Protocol as including a referen ce to Article XX.  They note, however, that the 
language of Paragraph 11.3 is "in sharp contrast" to that of Paragraph 5.1, as it is "specific and 
circumscribed", "sets forth particular commitme nts", and two exceptions to those commitments.  
According to the European Union, while WTO Members can "incorporate" Article XX of the GATT 1994 into another WTO agreement if they so  "wish", the legal basis for "applying" that 
provision to another agreement would be the "very text of the incorporation", and not Article XX 
itself, as Article XX is limited by its "express terms" to the GATT 1994.
548  The European Union also 
asserts that the Panel was correct in finding that Ch ina had exercised its inherent and sovereign right 
to regulate trade by negotiating the terms of its accessi on to the WTO such that this inherent right to 
regulate trade, without more, does not permit recourse to Article XX. 
277. Canada, Colombia, Japan, Korea, and Turkey generally agree with the complainants that 
Article XX of the GATT 1994 cannot be invoked in orde r to justify a violation of China's export duty 
commitments contained in Paragraph 11.3 of China's Accession Protocol.549 
C. Availability of Article XX to Justify Export Duties that Are Found to Be Inconsistent 
with Paragraph 11.3 of China's Accession Protocol 
278. Paragraph 1.2 of China's Accession Protocol provi des that the Protocol "shall be an integral 
part" of the WTO Agreement .  As such, the customary rules of interpretation of public international 
law, as codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties550 (the 
"Vienna Convention "), are, pursuant to Article 3.2 of the DSU,  applicable in this dispute in clarifying 
the meaning of Paragraph 11.3 of the Protocol.551  Article 31(1) of the Vienna Convention  provides 
that a "treaty shall be interpreted in good faith in  accordance with the ordinary meaning to be given to 
the terms of the treaty in their context and in the light of its object and purpose."  Therefore, we will begin our analysis with the text of Paragraph 11.3. 
                                                      
548European Union's appellee's submission, para. 54. 
549See Canada's third participant's submission, paras. 14-24;  Colombia's third participant's submission, 
paras. 11 and 12;  and Japan's third participant's submission, paras. 26-30, 34-37, and 39-42.  For its part, Korea 
considers that the "gravity" and importance of an Artic le XX defence suggests that "[m]ore explicit wording" 
should have been used to express the "relinquishment" of such an "important right".  Nonetheless, in Korea's 
view, the difference in "tone and nuance" between Paragraph 11.3 and Paragraphs 11.1 and 11.2 of China's 
Accession Protocol, as well as the context of the othe r provisions of Section 11, support the Panel's ultimate 
conclusion in the present disputes and should be upheld by the Appellate Body. (Korea's third participant's 
submission, paras. 32 and 33) 
550Done at Vienna, 23 May 1969, 1155 UNTS 331;  8 International Legal Materials 679. 
551See Appellate Body Report, US – Gasoline , p. 17, DSR 1996:I, 3, at 16;  and Appellate Body 
Report, Japan – Alcoholic Beverages II , p. 10, DSR 1996:I, 97, at 104.  WT/DS394/AB/R 
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  1. Paragraph 11.3 of China's Accession Protocol 
279. Paragraph 11.3 of China's Accession Protocol provides that: 
China shall eliminate all taxes and charges applied to exports unless 
specifically provided for in Annex 6 of this Protocol or applied in 
conformity with the provisions of Article VIII of the GATT 1994. 
280. By its terms, Paragraph 11.3 of China's Accessi on Protocol requires China to "eliminate all 
taxes and charges applied to exports" unless one of the following conditions is satisfied:  (i) such 
taxes and charges are "specifically provided for in Annex 6 of [China's Accession] Protocol";  or (ii) such taxes and charges are "applied in confor mity with the provisions of Article VIII of the 
GATT 1994". 
281. As noted, Paragraph 11.3 of China's Accession Pr otocol refers explicitl y to "Annex 6 of this 
Protocol".  Annex 6 of China's Accession Protocol is entitled "Products Subject to Export Duty".  It 
sets out a table listing 84 different products (each identified by an eight-digit Harmonized System 
("HS") number and product description), and a maximum export duty rate for each product.
552  
Following the table, Annex 6 includes the following text (the "Note to Annex 6"): 
China confirmed that the tariff le vels in this Annex are maximum 
levels which will not be exceeded.  China confirmed furthermore that 
it would not increase the presently applied rates, except under exceptional circumstances.  If such  circumstances occurred, China 
would consult with affected me mbers prior to increasing applied 
tariffs with a view to finding a mutually acceptable solution. 
282. Except for yellow phosphorus, none of the raw materi als at issue in this dispute is listed in 
Annex 6 of China's Accession Protocol.
553  China argues that the u se of the term "exceptional 
circumstances" in the Note to Annex 6 indicates "a substantive overlap between the scope of the 
exceptions set forth, respectively, in Annex 6 and Article XX of the GATT 1994".554  In China's view, 
"by allowing China to adopt otherwise WTO-inconsis tent export duties in 'exceptional circumstances', 
China and other WTO Members have demonstrated a shared intent that Chin a is permitted to have 
recourse—whether directly or indirectly—to the 'ex ceptional circumstances' set forth in Article XX to 
                                                      
552Panel Reports, para. 7.66.  
553The Panel found that, on 21 Decem ber 2009, yellow phosphorous was subject to an export duty of 
20 per cent, which did not exceed the maximum rate list ed in Annex 6 of China's Accession Protocol.  The 
Panel found, therefore, that the provision of the 2009 Tariff Implementation Program  applicable to yellow 
phosphorus that was in force at the time of the Pane l's establishment was not inconsistent with China's WTO 
obligations. (See Panel Reports, para. 7.71)  This finding by the Panel has not been challenged on appeal.  
554China's appellant's submission, para. 216.   WT/DS394/AB/R 
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  justify such duties."
555  China suggests that such "exceptiona l circumstances" can be invoked both to 
exceed the maximum rates specified in Annex 6 for th e 84 products listed in the Annex, and to impose 
export duties on non-listed products. 
283. In response, the United States and Mexico assert that the first sentence of the Note "makes 
clear" that China committed not to impose export duties on the 84 products listed in Annex 6 above 
the maximum rates set out therein.556  In their view, the second and third sentences of the Note also 
impose a further obligation upon China that, in th e event that the applied rate for any of the 
84 products listed in Annex 6 is less than the maxi mum rate, China can raise the applied rate only in 
"exceptional circumstances", and only after consulting w ith the affected Members.  In the light of this 
additional obligation, the United States and Mexico  consider that the Note to Annex 6 does not 
provide "any basis" for China to impose export duties on the 84 listed products above the maximum 
rates specified in Annex 6, or "to impose any export du ties at all with respect to the products not listed 
in Annex 6".557 
284. Paragraph 11.3 requires China to eliminate ta xes and charges applied to exports unless such 
taxes and charges are "specifically provided for in Annex 6" of China's Accession Protocol.  Annex 6 
in turn "specifically provides for" maximum expor t duty levels on 84 listed products.  The Note to 
Annex 6 clarifies that the maximum rates set out in Annex 6 "will not be exceeded" and that China 
will "not increase the presently applied rates, exce pt under exceptional circumstances".  The Note 
therefore indicates that China may increase the "presently applied rates" on the 84 products listed in 
Annex 6 to levels that remain w ithin the maximum levels listed in the Annex.  We find it difficult to 
see how this language could be read as indicating th at China can have recourse to the provisions of 
Article XX of the GATT 1994 in order to justif y imposition of export duties on products that are not 
listed in Annex 6 or the imposition of export du ties on listed products in excess of the maximum 
levels set forth in Annex 6. 
285. We further note that the third sentence of the Note to Annex 6 refers to the "exceptional 
circumstances" described in the second sentence of that provision, stating that, "[i]f such 
circumstances occurred, China would consult with a ffected members prior to increasing applied tariffs 
with a view to finding a mutually acceptable solutio n."  This language further supports our view that 
the "exceptional circumstances" referred to in the No te to Annex 6 are ones that, if shown to exist, 
                                                      
555China's appellant's submission, para. 220.   
556Joint appellees' submission of the United States and Mexico, para. 113. 
557Joint appellees' submission of the United States and Mexico, para. 113;  see also Canada's third 
participant's submission, paras. 14 and 15.  WT/DS394/AB/R 
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  would allow China to increase applied tariffs up to the maximum tariff levels set out in Annex 6 for 
the products listed.  We therefore see nothing in the Note to Annex 6 suggesting that China could 
invoke Article XX of the GATT 1994 to justify th e imposition of export duties that China had 
committed to eliminate under Paragraph 11.3 of China's Accession Protocol.
558 
286. China recalls that, before the Panel, the Eur opean Union claimed that China violated its 
obligations under Annex 6 by failing to consult wi th affected Members prior to the imposition of 
export duties on particular forms of bauxite, coke , fluorspar, magnesium, manganese, silicon metal, 
and zinc, none of which are among th e 84 products listed in Annex 6.559  Noting the Panel's finding 
that China has acted inconsistently with its oblig ations under Annex 6 because it failed to consult with 
other affected WTO Members prior to imposing export duties on the raw materials at issue560, China 
argues that, because none of the products subject to the European Union's claim is included in the 
Annex 6 schedule, the European Union's claim and the Panel's finding necessarily mean that "the 
exception in Annex 6 permits China to impose expor t duties on all products, provided that there are 
'exceptional circumstances', and that Chin a consults with the affected Members."561 
287. In our view, the use of the word "furthermore " in the second sentence of the Note to Annex 6 
suggests that the obligations contained in the second and third sentences of the Note, including the 
consultation obligation, are "in addition" to China' s obligation under the first sentence not to exceed 
the maximum tariff levels provided for in Annex 6.   We see nothing in the Note to Annex 6 that 
would allow China to:  (i) impose export duties on produc ts not listed in Annex 6;  or (ii) increase the 
applied export duties on the 84 products listed in Annex 6, in a situation where "exceptional 
circumstances" have not "occurred".  We therefore di sagree with the Panel to th e extent it found that 
China's failure to consult with other WTO affect ed Members prior to the imposition of export duties 
on raw materials not listed in Annex 6 is inc onsistent with its oblig ations under Annex 6.562  T h e  
imposition of these export duties is inconsistent w ith Paragraph 11.3 of China's Accession Protocol, 
and because the raw materials at issue are not lis ted in Annex 6, the consultation requirements 
contained in the Note to Annex 6 are not applicable. 
                                                      
558Furthermore, as the European Union notes, the Note to Annex 6 resembles to some extent the 
situation envisaged in Article XXVI II of the GATT 1994 and Article XX I of the GATS (Modification of 
Schedules), which deal with changes in tariff bindings and changes in the Services Schedules of Specific 
Commitments.  However in these situations, WTO Members are required to "compensate" by offering increased 
market access in other areas on different tariff lines or service sectors. (European Un ion's appellee's submission, 
para. 68) 
559China's appellant's submission, para. 213. 
560China's appellant's submission, para. 214 (referring to Panel Reports, para. 7.104). 
561China's appellant's submission, para. 215. 
562See Panel Reports, para. 7.104.  We note that this finding by the Panel has not been appealed. WT/DS394/AB/R 
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  288. We turn next to examine the relevance of th e reference to Article VIII of the GATT 1994 in 
Paragraph 11.3 of China's Accession Protocol.  Artic le VIII provides, in relevant part, as follows: 
All fees and charges of whatever character (other than import and 
export duties and other than taxes w ithin the purview of Article III) 
imposed by contracting parties on or in connection with importation 
or exportation shall be limited in am ount to the approximate cost of 
services rendered and shall not represent an indirect protection to 
domestic products or a taxation of  imports or exports for fiscal 
purposes. 
289. China asserts that the re ference to Article VIII in Paragraph 11.3 confirms the availability of 
Article XX of the GATT 1994.  China reasons that Paragraph 11.3 of its Accession Protocol "requires" that export taxes and ch arges be "applied in conformity w ith the provisions of Article VIII 
of the GATT 1994".
563  According to China, "[i]f they  are not, the measure violates both 
Paragraph 11.3 and Article VIII."564  China argues that, "[i]n the event that a measure violates 
Article VIII of the GATT 1994, it may, of co urse, be justified under Article XX of the 
GATT 1994".565  It follows that "China is not deprived of  its right to justify a measure that violates 
Article VIII through recourse to Article XX simply  because a complainant chooses to bring a claim 
under Paragraph 11.3" of China's Accession Protocol.566  In China's view, the fact that Article VIII 
applies to certain export charges and fees covered by Paragraph 11.3, and not to export duties, does 
not render the reference to Article VIII "irrelevant", as the referen ce shows that the obligations under 
Paragraph 11.3 are "not absolute and unqualified", an d that China did not agree to abandon its right to 
resort to Article XX.567 
290. Although Article VIII covers "[a] ll fees and charges of whatever character imposed by [WTO 
Members] on or in connection with importation or exportation", it expressly excludes export duties, 
which are at issue here.  In our view, as export duties are outside the scope of Article VIII, the 
question of conformity or consistency with this Ar ticle does not arise.  Consequently, the fact that 
Article XX may be invoked to justify those fees  and charges regulated unde r Article VIII does not 
mean that it can also be invoked to justify export duties, which are not regulated under Article VIII. 
                                                      
563China's appellant's submission, para. 224.  
564China's appellant's submission, para. 224.  
565China's appellant's submission, para. 224.  
566China's appellant's submission, para. 225.  
567China's appellant's submission, para. 226.  WT/DS394/AB/R 
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  291. As noted by the Panel, "the language in Para graph 11.3 expressly refers to Article VIII, but 
leaves out reference to other provisions of the GATT 1994, such as Article XX."
568  Moreover, there 
is no language in Paragraph 11.3 similar to that found in Paragraph 5.1 of China's Accession 
Protocol—"[w]ithout prejudice to China's right to re gulate trade in a manner consistent with the WTO 
Agreement"—which was interprete d by the Appellate Body in China – Publications and Audiovisual 
Products .  In our view, this suggests that China may not have recourse to Article XX to justify a 
breach of its commitment to eliminate export duties under Paragraph 11.3 of China's Accession Protocol. 
292. Having examined the text of Paragraph 11.3, we turn to examine the cont ext of that provision. 
2. Paragraphs 11.1 and 11.2 of  China's Accession Protocol 
293. Paragraph 11.1 of China's Accession Protocol pr ovides that "China shall ensure that customs 
fees or charges applied or administered by national or sub-national authorities, shall be in conformity 
with the GATT 1994".  Paragraph 11.2 further stipulates that "China shall ensure that internal taxes 
and charges, including value-added taxes, applie d or administered by national or sub-national 
authorities shall be in conformity with the GA TT 1994."  Both of these provisions contain the 
obligation to ensure that certain fees, taxes or ch arges are "in conformity with the GATT 1994".  This 
is not the case for Paragraph 11.3.  We also note that  Paragraph 11.1 refers to "customs fees and or 
charges" in general and Paragra ph 11.2 refers in turn to "int ernal taxes and charges", while 
Paragraph 11.3 refers specifically to the elimination of "taxes and ch arges applied to exports".  Given 
the references to the GATT 1994 in  Paragraphs 11.1 and 11.2, and the differences in the subject 
matter and nature of the obligatio ns covered by these provisions, we consider that the absence of a 
reference to the GATT 1994 in Paragraph 11.3 furthe r supports our interpretation that China may not 
have recourse to Article XX to justify a breach of its commitment to eliminate export duties under 
Paragraph 11.3.  Moreover, as China's obligation to eliminate export duties arises exclusively from 
China's Accession Protocol, and not from the GATT 1994, we consider it reasonable to assume that, 
had there been a common intention to provide access to  Article XX of the GATT 1994 in this respect, 
language to that effect would have been included in  Paragraph 11.3 or elsewhere in China's Accession 
Protocol. 
                                                      
568Panel Reports, para. 7.129.   WT/DS394/AB/R 
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  3. China's Arguments concerning Paragraph 170  
294. China relies on the wording of Paragraph 170 of China's Accession Working Party Report to 
support its position that China assumed a "qualified"  obligation to eliminate export duties, and is 
entitled to have recourse to the provisions of Ar ticle XX of the GATT 1994 to justify export duties 
that would otherwise be inconsistent with Paragraph 11.3 of China's Accession Protocol. 
295. Paragraph 170 of China's Accession Working Part y Report is referenced in Paragraph 342 of 
China's Accession Working Party Report and is theref ore, by virtue of Paragraph 1.2 of China's 
Accession Protocol, incorporated into the Protocol .  Paragraph 170 falls under subsection D of China's 
Accession Working Party Report, which is entitled "Internal Policies Affecting Foreign Trade in 
Goods";  subsection D(1) is entitled "Taxes and Charges Levied on Imports and Exports".  
Paragraph 170 provides in relevant part: 
The representative of China confir med that upon accession, China 
would ensure that its laws and regul ations relating to all fees, charges 
or taxes levied on imports and expor ts would be in full conformity 
with its WTO obligations, including Articles I, III:2 and 4, and XI:1 
of the GATT 1994[.] 
296. China points to the identical language in the title of the subsection under which Paragraph 170 
falls, and that of Section 11 of China's Accessi on Protocol.  Both are entitled "Taxes and Charges 
Levied on Imports and Exports".  China argues that this demonstrates a " very considerable  overlap" in 
the scope of measures to which Paragraph 11.3 and Paragraph 170 apply, and that they impose 
"cumulative obligations" with respect to " taxes " and " charges  on exports ".569  China argues, in 
essence, that Paragraph 170 of China's Accessi on Working Party Report and Paragraph 11.3 of 
China's Accession Protocol both apply to export duti es, and that "any flexibilities that Paragraph 170 
affords to China to adopt otherwise WTO-inconsiste nt export 'taxes' and 'cha rges' must extend equally 
to Paragraph 11.3".570 
297. The United States and Mexico consider Ch ina's arguments to be "without merit".571  T h e y  
submit that Paragraph 169 of China's Accession Working Party Report shows that some Members 
were concerned about China's internal policies,  especially those of sub-national governments 
imposing discriminatory taxes and other charges that would affect trade in goods, and that China 
responded to this concern in Paragr aph 170 by confirming that its laws relating to all fees, charges, or 
                                                      
569China's appellant's submission, para. 233. (original emphasis) 
570China's appellant's submission, para. 246. 
571Joint appellees' submission of the United States and Mexico, para. 128.  WT/DS394/AB/R 
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  taxes levied on imports and exports would be in full conformity with its WTO obligations.  The 
United States and Mexico argue that it is "untenable to believe"
572 that Paragraph 170 reflects the 
negotiators' intent to apply Article XX of th e GATT 1994 to Paragraph 11.3 of China's Accession 
Protocol, which sets forth a "new commitment w ith respect to export duties and the exceptions 
applicable to that commitment".573  They further point out that it is Paragraph 155 of China's 
Accession Working Party Report that reflects concerns with respect to export duties, and which refers 
to the same specific exceptions as Paragr aph 11.3 of China's Accession Protocol.574  
298. We note that China's Accession Working Party Report sets out many of the concerns raised 
and obligations undertaken by China during its acce ssion process.  The various paragraphs contained 
in China's Accession Working Party Report are organi zed according to subject matter, such that the 
section on "Policies Affecting Trade in Goods" is divided into subsections dealing with "Trading 
Rights", "Import Regulation", "Export Regulations",  and "Internal Policies Affecting Trade in 
Goods".  Paragraph 170 of China's Accession Work ing Party Report falls under subsection D, entitled 
"Internal Policies Affecting Foreign Trade in Goods".   This subsection contai ns only two paragraphs.  
Paragraph 169 indicates that some members of Ch ina's Accession Working Party "expressed concern 
about the application of the [value-added tax ("VAT ")] and additional charges levied by sub-national 
governments on imports"  and considered "[n]on-di scriminatory application of the VAT and other 
internal  taxes"575 to be "essential".  The language in the title to subsection D and in Paragraph 169 
suggests to us that Paragraph 170 is concerned with "internal policies" affecting "all fees, charges or 
taxes levied on imports and exports" and sets out China's commitment in r esponse to the concern 
expressed by WTO Members at the time of China's accession regarding "the application of VAT and 
additional charges levied by sub-national governments on imports". 
299. As we see it, Paragraph 170 of China's Acc ession Working Party Report is of limited 
relevance in interpreting Paragraph 11.3 of China's Accession Protocol.  In particular, Paragraph 170 
does not shed much light on China's commitment  to eliminate export duties.  Instead, it is 
Paragraphs 155 and 156 of China's Accession Working Party Report576, found in the section entitled 
"Export Regulations", that deal with China's commitm ents with respect to the elimination of export 
                                                      
572Joint appellees' submission of the United States and Mexico, para. 130. 
573Joint appellees' submission of the United States and Mexico, para. 132. 
574Joint appellees' submission of the United States and Mexico, para. 134 (referring to Panel Reports, 
para. 7.145). 
575Emphasis added. 
576Paragraphs 155 and 156 are not referenced in Paragraph 342 of China's Accession Working Party 
Report.  Nonetheless, we agree with th e Panel that they are of interpretative relevance in that they articulate the 
concerns of WTO Members at the time with respect to China's use of export duties. WT/DS394/AB/R 
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  duties.  The language of Paragraph 155 is very si milar to that found in Paragraph 11.3 of China's 
Accession Protocol, and provides that taxes and char ges applied exclusively to exports "should be 
eliminated unless applied in conformity with GATT Article VIII or listed in Annex 6 to the Draft 
Protocol".  Paragraph 156, in turn, provides: "China  noted that the majority of products were free of 
export duty, although 84 items … were subject to expor t duties".  As in the case of Paragraph 11.3, 
Paragraphs 155 and 156 make no reference to the availability of an Article XX defence for the 
commitments contained therein.  This further s upports our interpretation that China does not have 
recourse to Article XX of the GATT 1994 to justif y export duties found to be inconsistent with 
China's obligations under Paragraph 11.3 of China's Accession Protocol. 
4. China's Right to Regulate Trade 
300. China argues that, "like any other state", it enjoys  the right to regulate trade in a manner that 
promotes conservation and public health.577  Referring to the Appellate Body report in China – 
Publications and Audiovisual Products , China points out that such a right to regulate trade is an 
"inherent right", and "not a 'right bestowed by international treaties such as the WTO Agreement '".578  
According to China, by acceding to the WTO, Me mbers agree to exercise their inherent right in 
conformity with disciplines set out in the covered agreements, either by complying with affirmative 
obligations, or by complying with "the obligations attaching to an exception, such as those included in 
Article XX" of the GATT 1994.579  China further emphasizes that China's Accession Protocol and 
Accession Working Party Report contain no language showing that China "abandon[ed]" its inherent 
right to regulate trade.  Instead, China submits th at its accession commitments "indicate" that it retains 
this right.580  In China's view, the Panel's inte rpretation of Paragraph 11.3 "turns inherent  rights into 
acquired  rights"581 and "distorts the balance of rights and obligations" established when China 
acceded to the WTO".582 
301. The United States and Mexico begin by highlighting that, contrary to China's claims, the 
Panel "nowhere suggested" that WTO Members abandone d their right to regulate trade in entering the 
WTO.583  They assert that the Appellate Body report in China – Publications and Audiovisual 
                                                      
577China's appellant's submission, para. 275. 
578China's appellant's submission, para. 275 (quoting Appellate Body Report, China – Publications and 
Audiovisual Products , para. 222). 
579China's appellant's submission, para. 278. 
580China's appellant's submission, para. 286. 
581China's appellant's submission, para. 291. (original emphasis) 
582China's appellant's submission, para. 274, subheading IV.C.5.d. 
583Joint appellees' submission of the United States and Mexico, para. 140.  WT/DS394/AB/R 
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  Products  recognized that, because WTO Members have an  inherent right to regulate trade, it was 
necessary in the context of the WTO agreements to agree on rules that constrain that right.
584  The 
United States and Mexico also rely  upon the Appellate Body report in Japan – Alcoholic Beverages II  
to argue that China's obligation to eliminate e xport duties contained in Paragraph 11.3 of China's 
Accession Protocol is a "commitment" that conditions the exercise of China's sovereignty in exchange 
for the benefits it derives as a Member of the WTO.585  Referring to China's contention that it is 
entitled to invoke Article XX exceptions for viol ations of Paragraph 11.3 of China's Accession 
Protocol in the absence of "specific treaty langua ge", the United States and Mexico assert that this 
would render the introductory clause in Paragra ph 5.1, and the references to the GATT 1994 in 
Paragraphs 11.1 and 11.2 of China' s Accession Protocol, "superfluous".586  The United States and 
Mexico emphasize that the Appellate Body's finding in China – Publications and Audiovisual 
Products  that Article XX is available for violations of Paragraph 5.1 of China's Accession Protocol 
was "grounded" in the language of Paragraph 5.1 and is not a right to regulate trade in the 
"abstract".587  The United States and Mexico note that the language in Paragraph 11.3 is in "contrast" 
to the language in the accession documents of other WTO Members with respect to their obligations 
on export duties.588  They further assert that China's right to promote non-trade interests is not "at 
risk" in this dispute, and that there are a number of ways in which China may pursue such interests.589  
Specifically, they argue that Paragraph 11.3 do es not prevent China from adopting measures other 
than export duties to promote legitimate public h ealth or conservation objectives, and suggest that 
China has a number of "tools at its disposal" to pursue these ends.590 
302. The European Union argues that China exercised its inherent right to regulate trade when it 
completed the accession process and became a Member of the WTO.  According to the 
European Union, the provisions of the covered ag reements and China's Accession Protocol in fact 
"delineate" China's exercise of its inherent  and sovereign right to regulate trade.591  T h e  
European Union also highlights the Panel's finding that there is no contradiction between China's 
                                                      
584Joint appellees' submission of the United States and Mexico, para. 142 (referring to Appellate Body 
Report, China – Publications and Audiovisual Products , para. 222). 
585Joint appellees' submission of the United States and Mexico, paras. 143 and 144 (referring to 
Appellate Body Report, Japan – Alcoholic Beverages II , p. 15, DSR 1996:I, 97, at 108). 
586Joint appellees' submission of the United States and Mexico, para. 145. 
587Joint appellees' submission of the United States and Mexico, para. 145 (referring to Appellate Body 
Report, China – Publications and Audiovisual Products , paras. 219-228).  
588Joint appellees' submission of the United States and Mexico, para. 145 (referring to Report of the 
Working Party on the Accession of Ukraine, WT/ACC/UKR/152, paras. 240 and 512). 
589Joint appellees' submission of the United States and Mexico, para. 149. 
590Joint appellees' submission of the United States and Mexico, para. 150. 
591European Union's appellee's submission, para. 109. WT/DS394/AB/R 
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  inherent right to regulate trade and the comm itments undertaken by China in its Accession 
Protocol.
592  The European Union further argues that China's obligation under Paragraph 11.3 of the 
Accession Protocol should not be viewed in isolatio n, because it is "only a small part" of the rights 
and obligations that China "entered in to and acquired" through its WTO accession.593 
303. We note, as did the Panel, that WTO Members have, on occasion, "incorporated, by 
cross-reference, the provisions of Article XX of the GATT 1994 into other covered agreements".594  
For example, Article 3 of the Agreement on Trade-Related Investment Measures  (the 
"TRIMs Agreement ") explicitly incorporates the right to invoke th e justifications of Article XX of the 
GATT 1994, stating that "[a]ll exceptions under GATT 1994 shall apply, as appropriate, to the 
provisions of this Agreement".  In the present case , we attach significance to the fact that 
Paragraph 11.3 of China's Accession Protocol expres sly refers to Article VIII of the GATT 1994, but 
does not contain any reference to other provisions of the GATT 1994, including Article XX. 
304. In China – Publications and Audiovisual Products , in the context of assessing a claim brought 
under Paragraph 5.1 of China's Accession Protocol , the Appellate Body found that China could 
invoke Article XX(a) of the GATT 1994 to justify provi sions found to be inconsistent with China's 
trading rights commitments under its Accession Protocol and Accession Working Party Report.  In reaching this finding, the Appellate Body relied on the language contained in the introductory clause 
of Paragraph 5.1, which states "[w]ithout prejudi ce to China's right to regulate trade in a manner 
consistent with the WTO Agreement ".
595  As noted by the Panel, such language is not found in 
Paragraph 11.3 of China's Accessi on Protocol.  We therefore do not agree with China to the extent 
that it suggests that the Appellate Body's findings in China – Publications and Audiovisual Products  
indicate that China may have recourse to Article XX of the GATT 1994 to justify export duties that 
are inconsistent with Paragraph 11.3.   
                                                      
592European Union's appellee's submission, para. 110 (quoting Panel Reports, para. 7.157). 
593European Union's appellee's submission, para. 114. 
594Panel Reports, para. 7.153.  
595The Appellate Body referred to the question before  it as being to assess whether "the introductory 
clause of paragraph 5.1 allows China to assert a de fence under Article XX(a)". (Appellate Body Report, China – 
Publications and Audiovisual Products , para. 215)  The Appellate Body ch aracterized China' s obligation under 
Paragraph 5.1 as "a commitment in respect of traders, in the form of a commitment to grant to all enterprises in 
China the right to import and export goods." ( Ibid., para. 226)  The Appellate Body added, however, that this 
commitment is qualified by the introductory clause of Paragraph 5.1.  On the basis of the introductory clause to 
Paragraph 5.1, the Appellate Body found that China's right to regulate trade "may not be impaired by China's obligation to grant the right to trade, provided that China regulates trade 'in a manner consistent with the 
WTO Agreement '". (Ibid., para. 221)   WT/DS394/AB/R 
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  305. China refers to language contained in the preambles of the WTO Agreement , the GATT 1994, 
and the Agreement on the Application of Sanitary and Phytosanitary Measures  (the 
"SPS Agreement "), Agreement on Technical Barriers to Trade  (the " TBT Agreement "), the Agreement 
on Import Licensing Procedures  (the " Import Licensing Agreement "), the GATS, and the Agreement 
on Trade-Related Aspects of Intellectual Property Rights  (the " TRIPS Agreement ") to argue that the 
Panel distorted the balance of rights and obligatio ns established in China's Accession Protocol by 
assuming that China had "abandon[ed]" its right to impose export duties "to promote fundamental non-trade-related interests, such as conservation and public health."
596   
306. The preamble of the WTO Agreement  lists various objectives, including "raising standards of 
living", "seeking both to protect and preserve the environment" and "expanding  the production of and 
trade in goods and services, while allowing for the optimal use of the world' s resources in accordance 
with the objective of sustainable development."  The preamble concludes with the resolution "to 
develop an integrated, more viable and durable mu ltilateral trading system".  Based on this language, 
we understand the WTO Agreement , as a whole , to reflect the balance struck by WTO Members 
between trade and non-trade-related concerns.  However, none of th e objectives listed above, nor the 
balance struck between them, provides specific guida nce on the question of whether Article XX of the 
GATT 1994 is applicable to Paragra ph 11.3 of China's Accession Protocol.  In the light of China's 
explicit commitment contained in Paragraph 11.3 to eliminate export duties and the lack of any 
textual reference to Article XX of the GATT 1994 in that provision, we see no basis to find that Article XX of the GATT 1994 is applicable to  export duties found to be inconsistent with 
Paragraph 11.3. 
5. Conclusion 
307. In our analysis above, we have, in accordance with Article 3.2 of the DSU, applied the 
customary rules of interpretation of public  international law as codified in the Vienna Convention  in a 
holistic manner to ascertain whether China may have recourse to the provisions of Article XX of the 
GATT 1994 to justify export duties that are found to be inconsistent with Pa ragraph 11.3 of China's 
Accession Protocol.  As we have found, a prope r interpretation of Paragraph 11.3 of China's 
Accession Protocol does not make available to China the exceptions under Article XX of the 
GATT 1994.  Consequently, we find that the Panel did not err, in paragraph 7.159 of the Panel 
Reports, in finding that "there is no basis in Chin a's Accession Protocol to allow the application of 
Article XX of the GATT 1994 to China's obligations  in Paragraph 11.3 of th e Accession Protocol."  
                                                      
596China's appellant's submission, para. 290;  see also para. 274. WT/DS394/AB/R 
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  We therefore uphold  the Panel's conclusion, in paragraphs 8.2(b), 8.9(b), and 8.16(b) of the Panel 
Reports, that China may not seek to justify the ap plication of export duties to certain forms of 
fluorspar pursuant to Article XX(g) of the GATT 1994 and the Panel's conclusion, in 
paragraphs 8.2(c), 8.9(c), and 8. 16(c) of the Panel Reports, that China may not seek to justify the 
application of export duties to certain forms of magnesium, manganese and zinc pursuant to 
Article XX(b) of the GATT 1994. 
VII. Article XI:2(a) of the GATT 1994 
308. We turn next to China's appeal  of the Panel's finding that China had not demonstrated that its 
export quota on refractory-grade bauxite was "tem porarily applied", within the meaning of 
Article XI:2(a) of the GATT 1994, to either prevent or relieve a "critical shortage".
597  China alleges 
that the Panel erred in its interpretation and app lication of Article XI:2(a) of the GATT 1994, and 
acted inconsistently with Article 11 of the DSU. 
A. The Panel's Findings and Arguments on Appeal 
309. The Panel found that China's export quota on refr actory-grade bauxite is inconsistent with 
Article XI:1 of the GATT 1994.  China argued that this export quota is a restriction temporarily applied to prevent or relieve a critical shortage of an essential product in the sense of Article XI:2(a) 
of the GATT 1994 and that it therefore does not fa ll within the scope of Article XI:1's general 
prohibition of quantitative restrictions.  The Pane l determined, however, that China had failed to 
demonstrate that the export quota applied to re fractory-grade bauxite is justified pursuant to 
Article XI:2(a).
598  In reaching this conclusion, the Panel agreed with China that "refractory-grade 
bauxite is currently 'essential' to China, as that term is used in Article XI:2(a)".599  The Panel found, 
however, that China had failed to demonstrate that  the export quota was "temporarily applied" within 
the meaning of Article XI:2(a).600  The Panel also found that China had failed to demonstrate that 
there was a "critical shortage" of refractory-grade bauxite in China.601 
310. With respect to the "temporarily applied" requi rement, the Panel found, based on the ordinary 
meaning of the word "temporarily", that Article XI:2(a) permits measures that are applied for a 
                                                      
597Panel Reports, para. 7.355.  China also refers to paragraphs 7.257, 7.258, 7.297-7.302, 7.305, 7.306, 
7.346, 7.349, 7.351, and 7.354 of the Panel Reports. (See China's appellant's submission, paras. 299 and 388) 
598Panel Reports, para. 7.353. 
599Panel Reports, para. 7.340. 
600Panel Reports, para. 7.346. 
601Panel Reports, para. 7.351.  WT/DS394/AB/R 
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  "limited timeframe".
602  The Panel considered Article XX(g)  of the GATT 1994 as relevant context, 
and pointed to "additional protections" in the chap eau of that Article that limit Members' actions.603  
In the Panel's view, the absence of such additional limitations in Article XI:2(a) suggested that a 
restriction justified under Article XI:2(a) must be  of a limited duration, because otherwise Members 
could resort indistinguishably to either Article XI :2(a) or Article XX(g) to address the problem of an 
exhaustible natural resource.604  The Panel added that, "[i]f Article XI:2(a) were interpreted to permit 
the long-term application of measures in the nature  of China's export restrictions on refractory grade 
bauxite, the import of Article XX(g) would be ve ry much undermined, if not rendered redundant".605 
311. Turning to the facts of the present case, the Pane l observed that China's restriction on exports 
of refractory-grade bauxite had "already been in place  for at least a decade with no indication of when 
it will be withdrawn and every indication that it will remain in place until the reserves have been 
depleted".606  On this basis, the Panel found that China's export quota could not be considered 
"temporarily applied" to address a critical shor tage within the meaning of Article XI:2(a).607 
312. With regard to the meaning of the phrase "to prevent or relieve critical shortages" in 
Article XI:2(a), the Panel reviewed dictionary de finitions of the terms "to prevent", "to relieve", 
"shortage", and "critical".608  The Panel also considered that th e requirement that measures be applied 
"temporarily" contextually informs the notion of "criti cal shortage".  The Panel reasoned that, if there 
was no possibility for an existing shortage ever to cease to exist, it would not be possible to "relieve or 
prevent" it through an export restriction applied on  a temporary basis.  The Panel added that the 
temporal focus of "critical shortage" as interpreted by the Panel "seems consis tent with the notion of 
'critical', defined as 'of the nature of, or constituting, a crisis'".609 
313. In its application of Article XI:2(a) in the pr esent case, the Panel was not persuaded that there 
was a "critical shortage" of refractory-grade bauxite  in China.  The Panel expressed the view that, 
even if it were to accept China's assertion that na tural reserves of refractory-grade bauxite would be 
depleted in 16 years, as contended by China, this  would not demonstrate a situation "of decisive 
                                                      
602Panel Reports, para. 7.255;  see also para. 7.260. 
603Panel Reports, para. 7.258. 
604Panel Reports, paras. 7.256-7.258. 
605Panel Reports, para. 7.298. 
606Panel Reports, para. 7.350. 
607Panel Reports, para. 7.350. 
608Panel Reports, paras. 7.294-7.296. 
609Panel Reports, para. 7.297. WT/DS394/AB/R 
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  importance", or one that is "grave",  rising to the level of a "crisis".
610  The Panel concluded therefore 
that China had not demonstrated the existence of a "critical shortage" of refractory-grade bauxite.  
Accordingly, the Panel found that China had failed to demonstrate that the export quota applied to 
refractory-grade bauxite was justified pur suant to Article XI:2(a) of the GATT 1994.611 
314. On appeal, China claims that the Panel erre d in its interpretation and application of 
Article XI:2(a) of the GATT 1994.  In particular, Chin a alleges that the Panel erred in interpreting and 
applying the term "temporarily" and in interpreting the term "critical shortages" in Article XI:2(a) of 
the GATT 1994.  First, with respect to the Panel' s interpretation of the term "temporarily", China 
asserts that the Panel erred in excluding "lo ng-term" export restrictions from the scope of 
Article XI:2(a).  Second, China alleges that the Pane l failed to take into consideration the fact that 
China's export quota on refractory-grade bauxite is subj ect to annual review and therefore erred in its 
application of the term "temporarily" to the facts of this case.  Third, China maintains that the Panel 
erred by interpreting the term "critical shortages" to  exclude shortages caused by the "finite" nature or 
"limited reserve[s]" of a product.612  Finally, China advances two separate claims that the Panel failed 
to make an objective assessment of the matte r pursuant to Article 11 of the DSU. 
315. In response, the United States, the European Union, and Mexico request the Appellate Body 
to uphold the Panel's finding that China had not de monstrated that its export quota on refractory-grade 
bauxite is temporarily applied to prevent or re lieve a critical shortage within the meaning of 
Article XI:2(a) of the GATT 1994.  The European  Union argues that China misunderstands the 
Panel's statements that Article XI :2(a) should not be interpreted to  permit the "long-term application 
of conservation measures", or "long-term  measures related to conservation purposes"613, because in 
making these statements the Panel was focusing on  conservation measures and not on export 
restrictions in general.614  With respect to China's allegation th at the Panel failed to consider that 
China's export restriction on refractory-grade bauxite  is annually renewed, the European Union argues 
that this does not have an impact on whether the measure is "temporarily" applied, because the 
measure has effectively been in place for more than ten years. 
                                                      
610Panel Reports, para. 7.351.  We note that the United States and Mexico contested the accuracy of 
China's estimate of a 16-year remaining reserve lifespan for refractory-grade bauxite, and submitted instead that 
the remaining lifespan was 91 years. (United States' s econd written submission to the Panel, para. 235;  
Mexico's second written submission to the Panel, para. 23 9;  Panel Exhibit JE-165, p. 23)  The Panel made no 
finding concerning the remaining lifespan of refractory-grade bauxite, but found that, even assuming China's assertion of a 16-year remaining reserve lifespan was correc t, this would not demonstrate a situation of "crisis". 
611Panel Reports, para. 7.353. 
612China's appellant's submission, para. 356 (quoting Panel Reports, paras. 7.297 and 7.305). 
613European Union's appellee's submission, para. 174 (quoting Panel Reports, para. 7.349). 
614European Union's appellee's submission, para. 175.  WT/DS394/AB/R 
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  316. The United States and Mexico disagree with Ch ina's allegation that the Panel excluded from 
the scope of Article XI:2(a) any "long-term" applic ation of export restrictions.  For them, the Panel 
did not interpret the words "temporarily applied" so as to impose an "absolute limit" on the time 
period for which an export restraint may be imposed under Article XI:2(a).
615  Furthermore, the 
United States and Mexico disagree with China that the Panel erred in interpreting Article XI:2(a) "to 
exclude shortages caused, in part, by the e xhaustibility of the product subject to the export 
restriction".616  They submit that the Panel correctly interp reted the term "critical shortage", because 
the existence of a limited amount of reserves cons titutes only a degree of shor tage, and a mere degree 
of shortage does not constitute a "critical" shortage, which is one rising to the level of a crisis.617  The 
European Union, Mexico, and the United States also request the A ppellate Body to reject China's 
claim that the Panel acted inconsistently with  its obligations under Article 11 of the DSU. 
317. China's appeal therefore requires us to assess the Panel's interpretation of the terms 
"temporarily applied" and "critical shortages" in  Article XI:2(a) of the GATT 1994, and then to 
consider whether the Panel properly assessed the e xport quota imposed on refractory-grade bauxite in 
the light of those interpretations. 
B. Article XI:2(a) of the GATT 1994 
318. Article XI of the GATT 1994 provides, in relevant part: 
General Elimination of Quantitative Restrictions 
1. No prohibitions or restrictions other than duties, taxes or 
other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the 
territory of any other contracting party or on the exportation or sale 
for export of any product destined for the territory of any other contracting party. 
2. The provisions of paragraph 1 of this Article shall not extend 
to the following: 
(a) Export prohibitions or restrictions temporarily applied to 
prevent or relieve critical shortag es of foodstuffs or other products 
essential to the exporting contracting party[.] 
                                                      
615Joint appellees' submission of the United States and Mexico, paras. 171 and 172. 
616Joint appellees' submission of the United States and Mexico, para. 173 (quoting China's appellant's 
submission, para. 356). 
617Joint appellees' submission of the United States and Mexico, para. 175. WT/DS394/AB/R 
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  319. Article XI:2 refers to the gene ral obligation to eliminate quantitative restrictions set out in 
Article XI:1 and stipulates that the provisions of Ar ticle XI:1 "shall not extend" to the items listed in 
Article XI:2.  Article XI:2 must therefore be read together with Article XI:1.  Both Article XI:1 and 
Article XI:2(a) of the GATT 1994 refer to "prohibitions  or restrictions".  The term "prohibition" is 
defined as a "legal ban on the trade or importation of a specified commodity".
618  The second 
component of the phrase "[e]xport prohibitions or r estrictions" is the noun "restriction", which is 
defined as "[a] thing which restricts someone or so mething, a limitation on action, a limiting condition 
or regulation"619, and thus refers generally to so mething that has a limiting effect. 
320. In addition, we note that Article XI of th e GATT 1994 is entitled "General Elimination of 
Quantitative  Restrictions".620  The Panel found that this title suggests that Article XI governs the 
elimination of "quantitative restrictions" generally.621  We have previously referred to the title of a 
provision when interpreting the requirements within the provision.622  In the present case, we consider 
that the use of the word "quantitative" in the title  of the provision informs the interpretation of the 
words "restriction" and "prohibition" in Article XI:1  and XI:2.  It suggests that Article XI of the 
GATT 1994 covers those prohibitions and restrictions that have a limiting effect on the quantity or 
amount of a product being imported or exported. 
321. Turning to the phrase "[e]xport prohibitions or r estrictions" in Article XI:2(a), we note that 
the words "prohibition" and "restriction" in that subparagraph are both qualified by the word "export".  
Thus, Article XI:2(a) covers any measure prohibiti ng or restricting the exportation of certain goods.  
Accordingly, we understand the words "prohibitions or  restrictions" to refer to the same types of 
measures in both paragraph 1 and s ubparagraph 2(a), with the difference that subparagraph 2(a) is 
limited to prohibitions or restrictions on exportati on, while paragraph 1 also  covers measures relating 
to importation.  We further note that "duties, tax es, or other charges" are excluded from the scope of 
Article XI:1.  Thus, by virtue of the link between Article XI:1 and Article XI:2, the term "restrictions" 
in Article XI:2(a) also excludes "duties, taxes, or ot her charges".  Hence, if a restriction does not fall 
within the scope of Article XI:1, then Article XI:2 will also not apply to it. 
                                                      
618Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 2, p. 2363. 
619Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 2, p. 2553. 
620Emphasis added. 
621Panel Reports, para. 7.912. 
622See Appellate Body Report, US – Softwood Lumber IV , para. 93;  and Appellate Body Report, US – 
Carbon Steel , para. 67.  WT/DS394/AB/R 
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  322. Having examined the meaning of the phrase "[e] xport prohibitions or restrictions", we note 
that Article XI:2(a) permits such measures to be "temporarily applied to prevent or relieve critical 
shortages of foodstuffs or other products essen tial to the exporting Member".  We examine the 
meaning of each of these concepts—"temporarily app lied", "to prevent or relieve critical shortages", 
and "foodstuffs or other products essential"—in turn below. 
323. First, we note that the term "temporarily" in Article XI:2(a) of the GATT 1994 is employed as 
an adverb to qualify the term "applied".  The word  "temporary" is defined as "[l]asting or meant to 
last for a limited time only;  not permanent;  made or arranged to supply a passing need".
623  Thus, 
when employed in connection with the word "app lied", it describes a measure applied for a limited 
time, a measure taken to bridge a "passing need".  As we see it, the definitional element of "supply[ing] a passing need" suggests that Article XI:2 (a) refers to measures that are applied in the 
interim. 
324. Turning next to consider the meaning of the term "critical shortage", we note that the noun 
"shortage" is defined as "[d]eficienc y in quantity;  an amount lacking"
624 and is qualified by the 
adjective "critical", which, in turn, is defined as "[o]f, pertaining to, or constituting a crisis;  of 
decisive importance, crucial;  involving risk or suspense".625  The term "crisis" describes "[a] turning-
point, a vitally important or decisive stage;  a time of trouble, danger or suspense in politics, 
commerce, etc."626  Taken together, "critical shortage" thus re fers to those deficiencies in quantity that 
are crucial, that amount to a situation of decisive  importance, or that reach a vitally important or 
decisive stage, or a turning point. 
325. We consider that context lends further support to this reading of the term "critical shortage".  
In particular, the words "general or local shor t supply" in Article XX(j) of the GATT 1994 provide 
relevant context for the interpretation of the term "c ritical shortage" in Article XI:2(a).  We note that 
the term "in short supply" is defined as "available only in limited quantity, scarce".627  T h u s ,  i t s  
meaning is similar to that of a "shortage", which is defined as "[d]eficiency in quantity;  an amount 
                                                      
623Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 2, p. 3204. 
624Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 2, p. 2813. 
625Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 1, p. 562. 
626Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 1, p. 561. 
627Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 2, p. 3115. WT/DS394/AB/R 
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  lacking".
628  Contrary to Article XI:2(a), however, Article XX(j) does not include the word "critical", 
or another adjective further qualifying the short supply .  We must give meaning to this difference in 
the wording of these provisions.  To us, it suggests that the kinds of shortages that fall within 
Article XI:2(a) are more narrowly circumscribed than  those falling within the scope of Article XX(j). 
326. For Article XI:2(a) to apply, the shortage, in tu rn, must relate to "foodstuffs or other products 
essential to the exporting Member".  Foodstuff is de fined as "an item of food, a substance used as 
food".629  The term "essential" is defined as "[ a]bsolutely indispensable or necessary".630  
Accordingly, Article XI:2(a) refers to critical shortages of foodstuffs or otherwise absolutely 
indispensable or necessary products.  By incl uding, in particular, the word "foodstuffs", 
Article XI:2(a) provides a measure of what might be considered a product "essential to the exporting 
Member" but it does not limit the scope of other essential products to only foodstuffs. 
327. Article XI:2(a) allows Members to apply prohibitio ns or restrictions temporarily in order to 
"prevent or relieve" such critical shortages.  The word "prevent" is defined as "[p]rovide beforehand 
against the occurrence of (something);  make impracti cable or impossible by anticipatory action;  stop 
from happening".631  The word "relieve" means "[r]aise out of some trouble, difficulty or danger; 
bring or provide aid or assistance to".632  We therefore read Article XI:2(a) as providing a basis for 
measures adopted to alleviate or reduce an existi ng critical shortage, as well as for preventive or 
anticipatory measures adopted to pre-em pt an imminent critical shortage. 
328. Finally, we consider that Article XI:2(a) must be  interpreted so as to give meaning to each of 
the concepts contained in that provision.  At the same time, we must take into account that these 
different concepts impart meaning to each other, an d thus define the scope of  Article XI:2(a).  For 
example, whether a shortage is "critical" may be in formed by how "essential" a particular product is.  
In addition, the characteristics of the product as well as factors pertaining to a critical situation, may 
inform the duration for which a measure can be main tained in order to bridge a passing need in 
conformity with Article XI:2(a).  Inherent in the notion of criticality is the expectation of reaching a 
                                                      
628Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 2, p. 2813. 
629Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 1, p. 1008. 
630Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 1, p. 865. 
631Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 2, p. 2341. 
632Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 2, p. 2522.  WT/DS394/AB/R 
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  point in time at which conditions are no longer "cr itical", such that measures will no longer fulfil the 
requirement of addressing a critical shortage.  Acco rdingly, an evaluation of whether a particular 
measure satisfies the requirements of Article XI :2(a) necessarily requires a case-by-case analysis 
taking into consideration the nexus between the di fferent elements contained in Article XI:2(a). 
C. The Panel's Evaluation of China's Export Quota on Refractory-Grade Bauxite 
329. As noted above, China argues that the Panel er red in finding that China had not demonstrated 
that its export quota on refractory-grade bauxite w as "temporarily applied", within the meaning of 
Article XI:2(a) of the GATT 1994, to either prevent or  relieve a "critical shortage".  With respect to 
the Panel's interpretation of the term "temporarily",  China supports the Panel's finding that the word 
"temporarily" "suggest[s] a fixed time-limit  for the application of a measure".
633  China, however, 
alleges that the Panel subsequently "adjusted" its interpretation of the term "temporarily" to exclude 
the "long-term" application of export restrictions.634  China argues that the term "temporarily" does 
not mark a "bright line"635 moment in time after which an export restriction has necessarily been 
maintained for too long.  Instead, Article XI:2(a) re quires that the duration of a restriction be limited 
and bound in relation to the achievement of the stated  goal.  Furthermore, China argues that the Panel 
erroneously found that Article XI:2(a) and Article XX( g) are mutually exclusive, and that this finding 
was a significant motivating factor for the Panel's er roneous interpretation of the term "temporarily" 
in Article XI:2(a).  China submits that the two pr ovisions are not mutually exclusive, and instead 
apply cumulatively.636 
330. We note that the Panel found that the word "t emporarily" suggests "a fixed time-limit for the 
application of a measure"637, and also expressed the view that a "restriction or ban applied under 
Article XI:2(a) must be of a li mited duration and not indefinite".638  We have set out above our 
interpretation of the term "temporarily" as employed  in Article XI:2(a).  In our view, a measure 
applied "temporarily" in the sense of Article XI:2(a ) is a measure applied in the interim, to provide 
relief in extraordinary conditions in order to bridge a passing need.  It must be finite, that is, applied 
                                                      
633China's appellant's submission, para. 335 (quoting Panel Reports, para. 7.255). 
634China's appellant's submission, para. 336. 
635China's appellant's submission, para. 340. 
636China's appellant's submission, para. 375 (referring to Appellate Body Report, Argentina – Footwear 
(EC) , para. 81;  Appellate Body Report, Chile – Price Band System , para. 186;  Appellate Body Report, EC – 
Asbestos , para. 80;  Panel Reports, EC – Bananas III , para. 7.160;  Appellate Body Report, Korea – Dairy , 
para. 74;  and Appellate Body Report, US – Upland Cotton , para. 549). 
637Panel Reports, para. 7.255. 
638Panel Reports, para. 7.258. WT/DS394/AB/R 
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  for a limited time.  Accordingly, we agree with the Panel that a restriction or prohibition in the sense 
of Article XI:2(a) must be of a limited duration and not indefinite. 
331. The Panel further interpreted the term "lim ited time" to refer to a "fixed time-limit"
639 for the 
application of the measure.  To the extent that the Panel was referring to a time-limit fixed in advance, 
we disagree that "temporary" must always connot e a time-limit fixed in advance.  Instead, we 
consider that Article XI:2(a) describes measures ap plied for a limited duration,  adopted in order to 
bridge a passing need, irrespective of whether or not  the temporal scope of the measure is fixed in 
advance. 
332. China alleges that the Panel erred in readi ng the term "temporarily" to exclude the "long-
term" application of export restrictions.  In partic ular, China refers to the Panel's statements that 
Article XI:2(a) cannot be interpreted "to permit the l ong-term application of … export restrictions", or 
to "permit long-term measures to be imposed".640  We consider that the te rms "long-term application" 
and "long-term measures" provide little value in elucidating the meaning of the term "temporary", 
because what is "long-term" in a given case depends on the facts of the particular case.  Moreover, the 
terms "long-term" and "short- term" describe a different concept th an the term "temporary", employed 
in Article XI:2(a).  Viewed in the context of the Panel's entire analysis, it is clear, however, that the 
Panel used these words to refer back  to its earlier interpretation of the term "temporarily applied" as 
meaning a "restriction or prohibition for a limited time".  Because the Panel merely referred to its 
earlier interpretation of the term "temporarily app lied" and did not provide additional reasoning, the 
Panel cannot be viewed as having "adj usted" its interpretation of the te rm "temporarily" to exclude the 
"long-term" application of export restrictions. 
333. This brings us to China's allegation that the Panel erroneously found th at Article XI:2(a) and 
Article XX(g) are mutually exclusive, and that th is finding was a significant motivating factor for the 
Panel's erroneous interpretation of the term "temporarily" in Article XI:2(a).641  As we see it, the Panel 
considered Article XX(g) as relevant context in its interpretation of Article XI:2(a).  It noted that 
Article XX(g) "incorporates additional protections in its chapeau to ensure that the application of a 
measure does not result in arbitrary or unjustifiable discrimination or amount to a disguised restriction 
on international trade".642  The Panel considered that the existence of these further requirements under 
                                                      
639Panel Reports, para. 7.255. 
640China's appellant's submission, para. 336 (quo ting Panel Reports, paras. 7.298 and 7.305, 
respectively, and referring to para. 7.349). 
641China's appellant's submission, para. 374. 
642Panel Reports, para. 7.258.  WT/DS394/AB/R 
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  Article XX(g) lent support to its inte rpretation that an exception pursuant  to Article XI:2(a) must be of 
a limited duration and not indefinite, because otherw ise Members could resort indistinguishably to 
either Article XI:2(a) or to Article XX(g).  We do not understand the Panel to have found that these 
two provisions are mutually exclusive.  Rather , the Panel sought to confirm the result of its 
interpretation, and stated that the interpretation pr offered by China would be inconsistent with the 
principle of effective treaty interpretation.  We therefore see no merit in China's allegation that the 
Panel erroneously found that Article XI:2(a) and Ar ticle XX(g) are mutually exclusive.  Nor do we 
agree that such a finding was a basis for the Pa nel's interpretation of the term "temporarily" in 
Article XI:2(a). 
334. In any event, we have some doubts as to th e validity of the Panel's concern that, if 
Article XI:2(a) is not interpreted as confined to measures of limited duration, Members could "resort 
indistinguishably to either Article XI:2(a) or to Article XX(g) to address the problem of an 
exhaustible natural resource".
643  Members can resort to Article XX of the GATT 1994 as an 
exception to justify measures that would otherwise be  inconsistent with their GATT obligations.  By 
contrast, Article XI:2 provides that the gene ral elimination of quantitative restrictions shall not extend 
to the items listed under subparagraphs (a) to (c) of  that provision.  This language seems to indicate 
that the scope of the obligation not to impos e quantitative restrictions itself is limited by 
Article XI:2(a).  Accordingly, where the requireme nts of Article XI:2(a) are met, there would be no 
scope for the application of Artic le XX, because no obligation exists. 
335. Turning then to the Panel's application of the term "temporarily applied" in the present case, 
China alleges that the Panel failed to  take into consideration the fact that China's export restrictions on 
refractory-grade bauxite are subject to annual review .  China faults the Panel for "simply assum[ing]" 
that China's restriction on exports of refractory- grade bauxite will be maintained indefinitely.644  
China submits that, at the close of each year, the factual circumstances are assessed in the light of the 
legal standard set forth in Article XI:2(a) to establish whether the export restriction should be 
maintained.  We note that China has made parallel claims, under Article XI:2(a), alleging an error of 
application, and under Article 11 of the DSU, a lleging that the Panel failed to make an objective 
assessment of the facts.  We consider China's alle gation that the Panel "simply assumed" something to 
                                                      
643Panel Reports, para. 7.257. 
644China's appellant's submission, para. 349.  In support, China also quoted the Panel's statement at 
paragraph 7.350 of its Reports that there is "every indication that [China's restriction on exports of refractory-
grade bauxite] will remain in place until the reserves have been depleted". WT/DS394/AB/R 
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  be more in the nature of a claim made under Artic le 11 of the DSU, and therefore address it below at 
the end of our analysis in this section. 
336. China further argues that the Panel erred in its interpretation and application of 
Article XI:2(a) by presuming that export restricti ons "imposed to address a limited reserve of an 
exhaustible natural resource" cannot be "temporar y" and that a shortage of an exhaustible non-
renewable resource cannot be "critical".
645  The Panel reasoned that, "if there is no possibility for an 
existing shortage ever to cease to exist, it will not  be possible to 'relieve or prevent' it through an 
export restriction applied on a temporary basis."646  The Panel further stated that, "[i]f a measure were 
imposed to address a limited reserve of an exhaus tible natural resource, such measure would be 
imposed until the point when the resource is fully depleted."647  The Panel added that "[t]his temporal 
focus seems consistent with the no tion of 'critical', defined as 'of the nature of, or constituting, a 
crisis'".648 
337. We do not agree with China that these statem ents by the Panel indicate that the Panel 
presumed that a shortage of an exhaustible non-re newable resource cannot be "critical" within the 
meaning of Article XI:2(a).649  The Panel noted instead, correctly  in our view, that the reach of 
Article XI:2(a) is not the same as that of Article XX(g), adding that these provisions are "intended to 
address different situations and thus must mean different things".650  Articles XI:2(a) and XX(g) have 
different functions and contain di fferent obligations.  Article XI:2(a) addresses measures taken to 
prevent or relieve "critical shortages" of foodstuffs  or other essential products.  Article XX(g), on the 
other hand, addresses measures relating to the conser vation of exhaustible na tural resources.  We do 
not exclude that a measure falling within the ambit of Article XI:2(a) could relate to the same product 
as a measure relating to the conservation of an exha ustible natural resource.  It would seem that 
Article XI:2(a) measures could be imposed, for exam ple, if a natural disaster caused a "critical 
shortage" of an exhaustible natura l resource, which, at the same time, constituted a foodstuff or other 
essential product.  Moreover, because the reach of Article XI:2(a) is different from that of 
Article XX(g), an Article XI:2(a) measure might operate simultaneously with a conservation measure 
complying with the requirements of Article XX(g).651 
                                                      
645China's appellant's submission, paras. 356 and 367 (quoting Panel Reports, 7.297). 
646Panel Reports, para. 7.297. 
647Panel Reports, para. 7.297. 
648Panel Reports, para. 7.297. 
649China's appellant's submission, paras. 367 (quoting Panel Reports, para. 7.297). 
650Panel Reports, para. 7.300. 
651European Union's appellee's submission, para. 166.  WT/DS394/AB/R 
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  338. As a final matter, we note that China advances two separate claims that the Panel failed to 
make an objective assessment of the matter pursuant to  Article 11 of the DSU.  First, China alleges 
that the Panel failed properly to assess evidence that China's export restriction is annually reviewed 
and renewed, and that the Panel's failure to consider this evidence has a bearing on the objectivity of 
the Panel's factual assessment.
652  China submits that evidence re lating to China's annual review 
procedures demonstrates that the export restriction w ill be maintained only as long as it is justified to 
prevent or relieve the critical shortage of refr actory-grade bauxite.  For China, this evidence 
demonstrates that the Panel erred in assuming th at the restriction "will remain in place until the 
reserves have been depleted".653 
339. We note that the Panel identified several reasons for finding that China's export restriction is 
not temporarily applied to prevent or relieve a cr itical shortage.  The Panel observed that China's 
restriction on exports of refractory-grade bauxite had "already been in place for at least a decade with 
no indication of when it will be withdrawn and ever y indication that it will remain in place until the 
reserves have been depleted".654  The Panel also referred to evid ence of the existence of an export 
quota submitted by the parties655, as well as China's explanation that its "export quota on refractory-
grade bauxite forms part of a conservation plan aimed at extending the reserves of refractory-grade bauxite".
656 
340. To us, these elements of the Panel's reasoning indicate that the Panel's finding was not, as 
China alleges, based on a mere "assumption" that the restriction would remain in effect until depletion 
of the reserves.  Instead, the Panel considered ev idence indicating that the measure had been in place 
for at least a decade and China does not contest th e Panel's finding that this was the case.  In 
particular, the Panel noted that "China has ha d an export quota in pl ace on exports of bauxite 
classifiable under HS No. 2508.3000 dating back to at least 2000" and found that "China's estimation 
of a 16-year reserve for bauxite suggests that China intends to maintain its measure in place until the 
exhaustion of remaining reserves (in keeping w ith its contention that it needs to restrain 
consumption), or until new technology or conditio ns lessen demand for refractory-grade bauxite."657  
In addition, as an indication that the restrictions would remain in place until depletion, the Panel noted 
                                                      
652China's appellant's submission, para. 354. 
653China's appellant's submission, para. 355 (quoting Panel Reports, para. 7.350). 
654Panel Reports, para. 7.350. 
655In particular, footnote 563 to paragraph 7.348 of th e Panel Reports demonstrates that the Panel relied 
on evidence regarding the ex istence of the export quota. 
656Panel Reports, para. 7.348 (referring to China's second written submission to the Panel, para. 141). 
657Panel Reports, para. 7.348. WT/DS394/AB/R 
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  China's explanation that its export quota on refractor y-grade bauxite forms part of a conservation plan 
aimed at extending the reserves of refractory-grade bauxite. 
341. China's argument appears to be directed mainly  at the weight the Pane l ascribed to evidence 
indicating that the export restriction is annually reviewed and renewed.  The Appellate Body has 
consistently recognized that panels enjoy a marg in of discretion in their assessment of the facts.
658  
This margin includes the discretion of a panel to decide which evidence it chooses to utilize in making 
its findings659, and to determine how much weight to att ach to the various items of evidence placed 
before it by the parties.660  A panel does not err simply because it declines to accord to the evidence 
the weight that one of the parties believes should be accorded to it.661  A panel is entitled "to 
determine that certain elements of evidence shoul d be accorded more weight than other elements— 
that is the essence of the task  of appreciating the evidence".662  We therefore reject China's claim that 
the Panel failed to make an objective assessment of  the matter as required by Article 11 of the DSU. 
342. Next, China asserts that the Panel employed intern ally inconsistent or incoherent reasoning in 
stating, on the one hand, that "there is no possibilit y for an existing shortage [of an exhaustible natural 
resource] ever to cease to exist" su ch that "it will not be possible to 'relieve or prevent' it through an 
export restriction applied on a temporary basis"663 and acknowledging, on the other hand, that 
"advances in reserve detection or extraction techni ques", or the availability of "additional capacity", 
could "alleviate or eliminate" a shorta ge of an exhaustible natural resource664, or that "new technology 
or conditions" might "lessen demand" for the resource.665 
343. The Appellate Body has previously found that  a Panel's reasoning may be so internally 
inconsistent that it amounts to a breach of Article 11 of the DSU.666  We do not consider this to be the 
case here.  Contrary to what China suggests, the Pane l did not find that "'there is no possibility for an 
existing shortage [of an exhaustible natural resource] ever to cease to exist', such that 'it will not be 
                                                      
658Appellate Body Report, EC – Asbestos , para. 161;  Appellate Body Report, EC – Hormones , 
para. 132;  Appellate Body Report, EC – Sardines , para. 299;  Appellate Body Report, Japan – Apples , 
para. 222;  Appellate Body Report, Korea – Dairy , paras. 137 and 138;  Appellate Body Report, US – Wheat 
Gluten , para. 151. 
659Appellate Body Report, EC – Hormones , para. 135. 
660Appellate Body Report, Korea – Dairy , para. 137. 
661Appellate Body Report, Australia – Salmon , para. 267;  Appellate Body Report, Japan – Apples , 
para. 221;  Appellate Body Report, Korea – Alcoholic Beverages , para. 164. 
662Appellate Body Report, EC – Asbestos , para. 161. 
663China's appellant's submission, para. 373 (referring to Panel Reports, para. 7.297). (emphasis added 
by China omitted) 
664China's appellant's submission, para. 373 (quoting Panel Reports, para. 7.351). 
665China's appellant's submission, para. 373 (referring to Panel Reports, paras. 7.348 and 7.351). 
666Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 894.  WT/DS394/AB/R 
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  possible to 'relieve or prevent' it through an export restriction applied on a temporary basis'".
667  
Instead, the Panel's statement to wh ich China refers contains a hypothetical.  It reads as follows:  " if 
there is no possibility for an existing shortage ever to cease to exist, it will not be possible to 'relieve 
or prevent' it through an export restriction applied on a temporary basis."668  The Panel did not make 
such a finding but employed a hypothetical and di d not, as China alleges, make two internally 
inconsistent findings.  Therefore, the Panel did not fail to conduct an objective assessment of the 
matter pursuant to Article 11 of the DSU. 
344. For the above reasons, we uphold  the Panel's conclusion that China did not demonstrate that 
its export quota on refractory-grade bauxite was "temporarily applied", within the meaning of 
Article XI:2(a) of the GATT 1994, to either  prevent or relieve a "critical shortage"669, and we dismiss 
China's allegation that the Panel acted inconsistent ly with its duty to conduct an objective assessment 
of the matter as required by Article 11 of the DSU. 
VIII.  Article XX(g) of the GATT 1994 
345. China alleges that the Panel erred in interp reting the phrase "made effective in conjunction 
with" in Article XX(g) to mean that restricti ons on domestic production or consumption must "be 
applied jointly with the challenged export restri ctions", and that "the purpose of those export 
restrictions must be to ensure the effectiveness of those domestic restrictions".670 
A. The Panel's Findings and Arguments on Appeal 
346. The Panel found that China's export quota on refr actory-grade bauxite is inconsistent with 
Article XI:1 of the GATT 1994.  China sought to ju stify this export quota pursuant to Article XX(g) 
of the GATT 1994, arguing that refractory-grade bauxite  is an exhaustible natural resource that is 
scarce and requires protection.671 
347. The Panel first addressed the question of wh ether China's export quota relates to the 
conservation of refractory-grade bauxite.  Based on its review of the evidence and arguments before 
                                                      
667China's appellant's submission, para. 373 (quoting Panel Reports, para. 7.297). (emphasis added by 
China) 
668Panel Reports, para. 7.297. (emphasis added) 
669Panel Reports, para. 7.355.  China also refers to paragraphs 7.257, 7.258, 7.297-7.302, 7.305, 7.306, 
7.346, 7.349, 7.351, and 7.354 of the Panel Reports. (See China's appellant's submission, paras. 299 and 388) 
670Panel Reports, para. 7.397. 
671See Panel Reports, para. 7.356. WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 138 
  
  it, the Panel found this not to be the case.
672  The Panel nevertheless conti nued its analysis in order to 
determine whether the export quota on refractory-gr ade bauxite was "made effective in conjunction 
with" restrictions on domestic production or consumption, as requi red under Article XX(g) of the 
GATT 1994. 
348. The Panel considered that, in order for a me asure to be justified under Article XX(g), the 
measure must satisfy two conditions:  (i) it must rela te to the conservation of  an exhaustible natural 
resource;  and (ii) it must be made effective in conjunction with restricti ons on domestic production or 
consumption.  With respect to the first requireme nt, the Panel stated that the words "relate to … 
conservation" have been interpreted by the Appe llate Body to require a substantial relationship 
between the trade measure and conservation, so that  the trade measure would be "primarily aimed at" 
the conservation of exhaustible natural resources.673  The Panel further noted that the term 
"conservation" is defined as "the act of preserving a nd maintaining the existing state of something, in 
this case 'natural resources' covered by Article XX(g)."674 
349. With respect to the requirement that conserva tion measures in the sense of Article XX(g) be 
"made effective in conjunction with" restrictions  on domestic production, th e Panel referred to a 
statement of the GATT panel in Canada – Herring and Salmon , that a measure can only be 
considered to be "made effective in conjunction with" restrictions on domestic production, if it is 
"primarily aimed at rendering effective these restrictions".675  The Panel also quoted the 
Appellate Body's statement in US – Gasoline that the phrase "'if such measures are made effective in 
conjunction with restrictions on domestic products  or consumption' is appropriately read as a 
requirement that the measures concerned impose r estrictions, not just in respect of imported 
[products], but also with resp ect to domestic [products]."676  The Panel then found that "restrictions on 
domestic production or consumpti on must not only be applied jointly with the challenged export 
restrictions but, in addition, the purpose of those export restrictions must be to ensure the effectiveness of those domestic restrictions."
677 
                                                      
672Panel Reports, para. 7.435. 
673Panel Reports, para. 7.370 (quoting Appellate Body Report, US – Gasoline , p. 18, DSR 1996:I, 3, 
at 17). 
674Panel Reports, para. 7.372. 
675Panel Reports, para. 7.395 (quoting GATT Panel Report, Canada – Herring and Salmon , para. 4.6). 
(emphasis added by the Panel omitted) 
676Panel Reports, para. 7.396 (quoting Appellate Body Report, US – Gasoline , p. 20, DSR 1996:I, 3, 
at 19). 
677Panel Reports, para. 7.397 (referring to GATT Panel Report, Canada – Herring and Salmon , 
para. 4.6).  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 139 
  
  350. China alleges that the Panel erred in its in terpretation of the phrase "made effective in 
conjunction with" in Article XX(g) of the GATT 1994 .  China maintains that the Panel read this 
phrase to mean that, in order to be justified under Article XX(g), a challenged measure must satisfy 
two cumulative conditions:  first, it must "be app lied jointly" with restrictions on domestic production 
or consumption;  and, second, the "purpose" of th e challenged measure must be to make effective 
restrictions on domestic production or  consumption.  China argues that the first element of this 
interpretation is consistent with  the ordinary meaning of the phrase "made effective in conjunction 
with", but that the second is not.  China requests th e Appellate Body to reverse the erroneous second 
element of the Panel's interpretation.
678  China does not, however, appeal the Panel's ultimate 
conclusion that China's export quota on refractory-grade bauxite is inconsistent with Article XI of the 
GATT 1994 and not justified under Article XX(g).679 
351. China submits that the Appellate Body's interp retation of the term "i n conjunction with" in 
US – Gasoline  corresponds to the first element of the meaning that the Panel attributed to that term, 
namely, that the challenged measures "be applied jo intly with" restrictions on domestic production or 
consumption.680  China submits, however, that nothing in  the phrase "made effective in conjunction 
with" suggests that the "purpose" of a challenged me asure must be to ensure the effectiveness of 
domestic restrictions.681  In particular, China argues that Artic le XX(g) does not require that each set 
of measures must have, as a separate and independe nt purpose, the goal of ensuring the effectiveness 
of the other set of measures.  For China, it suffi ces that the challenged measure is related to the 
conservation of a natural resource, and that it ope rates together with domestic restrictions on the 
production or consumption of the same resource.682 
352. By contrast, the United States and Mexico requ est the Appellate Body to uphold the Panel's 
reasoning.  They submit that US – Gasoline did not involve the particular  interpretive question of how 
the operation of the challenged measure should be conjoined with the operation of domestic 
restrictions, and that the present case was the first instance since the GATT panel proceeding in 
Canada – Herring and Salmon  that a respondent asserted Article XX(g) as a defence where the 
challenged measure was distinct from the rest rictions on domestic pr oduction or consumption.683  
Therefore, the United States and Mexico argue that the Panel appropriately drew upon the Canada – 
                                                      
678China's appellant's submission, para. 391. 
679China's appellant's submission, para. 392. 
680China's appellant's submission, paras. 405 and 406. 
681China's appellant's submission, para. 407. 
682China's appellant's submission, para. 411. 
683The United States and Mexico further submit that the Appellate Body report in US – Shrimp  also did 
not involve this question. (Joint appellees' submission of the United States and Mexico, para. 215) WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 140 
  
  Herring and Salmon panel's reasoning.
684  The European Union also supports the Panel's reasoning, 
arguing that the GATT panel rightly stated that a measure can only be made effective "in conjunction 
with" domestic restrictions on production if it is primarily aimed at rendering effective these 
restrictions. 
B. Analysis 
353. Article XX of the GATT 1994 provides, in relevant part: 
General Exceptions 
Subject to the requirement that such measures are not applied in a 
manner which would constitute a mean s of arbitrary or unjustifiable 
discrimination between countries wher e the same conditions prevail, 
or a disguised restriction on international trade, nothing in this Agreement shall be construed to pr event the adoption or enforcement 
by any contracting party of measures: 
… 
(g) relating to the conservation of  exhaustible natural resources 
if such measures are made effective in conjunction with restrictions on domestic production or consumption[.] 
354. Article XX of the GATT 1994 contemplates a two-tie red analysis of a measure that a Member 
seeks to justify under that provision.
685  A respondent must first demonstrate that the challenged 
measure falls within the scope of one of the subpara graphs of Article XX.  Where this is the case, a 
respondent must further establish that the measure at issue satisfies the requirements of the chapeau of 
Article XX. 
355. In order to fall within the ambit of subparagraph (g) of Article XX, a measure must "relat[e] 
to the conservation of exhaustible natural resources" .  The term "relat[e] to" is defined as "hav[ing] 
some connection with, be[ing] connected to".686  The Appellate Body has found that, for a measure to 
relate to conservation in the sense of Article XX(g), there must be "a close a nd genuine relationship of 
                                                      
684Joint appellees' submission of the United States and Mexico, para. 220. 
685Appellate Body Report, US – Shrimp , paras. 118, 119, and 147.  See also Appellate Body Report, 
US – Gasoline , p. 22, DSR 1996:I, 3, at 20;  and Appellate Body Report, US – Gambling , para. 292. 
686Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 2, p. 2519.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 141 
  
  ends and means".
687  The word "conservation", in turn, means "the preservation of the environment, 
especially of natural resources".688 
356. Article XX(g) further requires that conservati on measures be "made effective in conjunction 
with restrictions on domestic production or consump tion".  The word "effective" as relating to a legal 
instrument is defined as "in operation at a given time".689  We consider that the term "made effective", 
when used in connection with a legal instrument , describes measures brought into operation, adopted, 
or applied.  The Spanish and French e quivalents of "made effective"—namely " se apliquen " and 
"sont appliquées "—confirm this understanding of "made effect ive".  The term "in conjunction" is 
defined as "together, jointly, (with)".690  Accordingly, the trade restriction must operate jointly with 
the restrictions on domestic production or consumpti on.  Article XX(g) thus permits trade measures 
relating to the conservation of ex haustible natural resources when su ch trade measures work together 
with restrictions on domestic production or cons umption, which operate so as to conserve an 
exhaustible natural resource.  By its terms, Artic le XX(g) does not contain an additional requirement 
that the conservation measure be primarily aimed at making effective the restrictions on domestic 
production or consumption. 
357. The Appellate Body addressed Article XX(g) in US – Gasoline.691  The Appellate Body noted 
Venezuela's and Brazil's argument that, to be d eemed as "made effective in conjunction with 
restrictions on domestic production or consumption", a measure must be "primarily aimed at" both 
conservation of exhaustible natu ral resources and making effective certain restrictions on domestic 
production or consumption.  The A ppellate Body, however, found that: 
… "made effective" when used in connection with a measure—a 
governmental act or regulation—may be seen to refer to such measure being "operative", as "in force", or as having "come into effect."  Similarly, the phrase "in conjunction with" may be read 
quite plainly as "together with" or "jointly with."  Taken together, the 
second clause of Article XX(g) appear s to us to refer to governmental 
measures like the baseline establishment rules being promulgated or brought into effect together with restrictions on domestic production or consumption of natural resources.  Put in a slightly different manner, we believe that the clause "if such measures are made 
                                                      
687Appellate Body Report, US – Shrimp , para. 136. 
688Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 1, p. 496. 
689Black's Law Dictionary , 9th edn, B.A. Garner (ed.) (West Group, 2009), p. 592. 
690Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 1, p. 492. 
691Appellate Body Report, US – Gasoline , pp. 19-22, DSR 1996:I, 3, at 18-20. WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 142 
  
  effective in conjunction with rest rictions on domestic production or 
consumption" is appropriately r ead as a requirement that the 
measures concerned impose restrictions, not just in respect of 
imported gasoline but also with r espect to domestic gasoline.  The 
clause is a requirement of even-handedness in the imposition of restrictions, in the name of c onservation, upon the production or 
consumption of exhaustible natural resources.
692 
358. Accordingly, in assessing whether the base line establishment rules at issue in US – Gasoline 
were "made effective in conjunction with" restri ctions on domestic productio n or consumption, the 
Appellate Body relied on the fact that those rules were promulgated or brought into effect "together 
with" restrictions on domestic production or consum ption of natural resources.  However, even 
though Brazil and Venezuela had presented argumen ts suggesting that it was necessary that the 
purpose of the baseline establishment rules be to en sure the effectiveness of restrictions on domestic 
production, the Appellate Body did not consider this to be necessary.  In particular, the 
Appellate Body did not consider that, in order to be justified under Article XX(g), measures "relating 
to the conservation of exhaustible natural resource s" must be primarily aimed at rendering effective 
restrictions on domestic production or  consumption.  Instead, the Appellate Body read the terms "in 
conjunction with", "quite plainly", as "together with" or "jointly with"693, and found no additional 
requirement that the conservation measure be primar ily aimed at making effective certain restrictions 
on domestic production or consumption. 
359. As noted above, the Panel in the present case appe ars to have considered that, in order to 
prove that a measure is "made effective in conjunc tion with" restrictions on domestic production or 
consumption in the sense of Article XX(g), it must be  established, first, that the measure is applied 
jointly with restrictions on domestic production or consumption, and, second, that the purpose of the 
challenged measure is to make effective restric tions on domestic production or consumption.  In 
particular, the Panel's use of the words "not only  … but, in addition", as well as the reference at the 
end of the sentence to the GATT panel report in Canada – Herring and Salmon , indicate that the 
Panel did in fact consider that two separate conditions  have to be met for a measure to be considered 
"made effective in conjunction with" in the sense of Article XX(g). 
360. As explained above, we see nothing in the text of  Article XX(g) to suggest that, in addition to 
being "made effective in conjunction with restri ctions on domestic produc tion or consumption", a 
trade restriction must be aimed at ensuring the effectiveness of domestic restrictions, as the Panel 
                                                      
692Appellate Body Report, US – Gasoline , p. 20, DSR 1996:I, 3, at 19. 
693Appellate Body Report, US – Gasoline , p. 20, DSR 1996:I, 3, at 19.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 143 
  
  found.  Instead, we have found above that Article  XX(g) permits trade measures relating to the 
conservation of exhaustible natural resources if such trade measures work together with restrictions on 
domestic production or consumption, which operate so as to conserve an exhaustible natural resource. 
361. Based on the foregoing, we find that the Panel erred in interpreting the phrase "made effective 
in conjunction with" in Article XX(g) of the GAT T 1994 to require a separate showing that the 
purpose of the challenged measure must be to make  effective restrictions on domestic production or 
consumption.  Accordingly, we reverse  this interpretation by the Panel in paragraph 7.397 of the 
Panel Reports. 
  WT/DS394/AB/R 
 Page US-145 
 
 
   
IX. Findings and Conclusions in the Appellate Body Report WT/DS394/AB/R 
362. In the appeal of the Panel Report in China – Measures Related to the Exportation of Various 
Raw Materials (complaint by the United States, WT/DS394/R) (the "US Panel Report"), for the 
reasons set out in this Report, the Appellate Body: 
(a) finds that the Panel erred under Article 6.2 of the DSU in making findings regarding 
claims allegedly identified in Section III of  the United States' panel request;  and 
therefore declares moot and of no legal effect the Panel findings in 
paragraph 8.4(a)-(d) in respect of claims  concerning export quota administration and 
allocation;  in paragraph 8.5(a)-(b) in r espect of claims concerning export licensing 
requirements;  in paragraph 8.6(a)-(b) in respect of claims concerning a minimum 
export price requirement;  and in paragraph 8.4(e) of the US Panel Report in respect 
of claims concerning fees and forma lities in connection with exportation. 
(b) finds that the Panel did not err in recomme nding, in paragraph 8.8 of the US Panel 
Report, that China bring its measures into conformity with its WTO obligations such 
that the "series of measures" do not operate to bring about a WTO-inconsistent result; 
(c) finds that the Panel did not err, in paragr aph 7.159 of the US Panel Report, in finding 
that there is no basis in China's Accessi on Protocol to allow the application of 
Article XX of the GATT 1994 to China's ob ligations in Paragraph 11.3 of China's 
Accession Protocol;  and therefore upholds the Panel's conclusion, in 
paragraph 8.2(b) of the US Panel Report,  that China may not seek to justify the 
application of export duties to certain forms of fluorspar pursuant to Article XX(g) of 
the GATT 1994 and the Panel's conclusion, in  paragraph 8.2(c) of the US Panel 
Report, that China may not seek to justify th e application of export duties to certain 
forms of magnesium, manganese and zinc pursuant to Article XX(b) of the GATT 1994; 
(d) with respect to Article XI:2(a) of the GATT 1994: 
(i) upholds the Panel's conclusion, in para graph 7.355 of the US Panel Report, 
that China had not demonstrated th at its export quota on refractory-grade 
bauxite was "temporarily applied", within the meaning of Article XI:2(a) of the GATT 1994, to either prevent or  relieve a "critical shortage";  WT/DS395/AB/R 
 Page EU-145 
 
 
  IX. Findings and Conclusions in the Appellate Body Report WT/DS395/AB/R 
362. In the appeal of the Panel Report in China – Measures Related to the Exportation of Various 
Raw Materials (complaint by the European Union, WT/DS395/R) (the "EU Panel Report"), for the 
reasons set out in this Report, the Appellate Body: 
(a) finds that the Panel erred under Article 6.2 of the DSU in making findings regarding 
claims allegedly identified in Section III of  the European Union's panel request; and 
therefore declares moot and of no legal effect the Panel findings in 
paragraph 8.11(a)-(e) in respect of claims  concerning export quota administration and 
allocation;  in paragraph 8.12(a)-(b) in r espect of claims concerning export licensing 
requirements;  and in paragraph 8.13(a)-(b ) of the EU Panel Report in respect of 
claims concerning a minimu m export price requirement; 
(b) finds that the Panel did not err in recomme nding, in paragraph 8.15 of the EU Panel 
Report, that China bring its measures into conformity with its WTO obligations such 
that the "series of measures" do not operate to bring about a WTO-inconsistent result; 
(c) finds that the Panel did not err, in paragra ph 7.159 of the EU Panel Report, in finding 
that there is no basis in China's Accessi on Protocol to allow the application of 
Article XX of the GATT 1994 to China's ob ligations in Paragraph 11.3 of China's 
Accession Protocol;  and therefore upholds the Panel's conclusion, in 
paragraph 8.9(b) of the EU Panel Report , that China may not seek to justify the 
application of export duties to certain forms of fluorspar pursuant to Article XX(g) of 
the GATT 1994 and the Panel's conclusion, in  paragraph 8.9(c) of the EU Panel 
Report, that China may not seek to justify th e application of export duties to certain 
forms of magnesium, manganese and zinc pursuant to Article XX(b) of the GATT 1994; 
(d) with respect to Article XI:2(a) of the GATT 1994: 
(i) upholds the Panel's conclusion, in para graph 7.355 of the EU Panel Report, 
that China had not demonstrated th at its export quota on refractory-grade 
bauxite was "temporarily applied", within the meaning of Article XI:2(a) of the GATT 1994, to either prevent or  relieve a "critical shortage";  WT/DS398/AB/R 
 Page MEX-145 
 
 
  IX. Findings and Conclusions  in the Appellate Body Report WT/DS398/AB/R 
362. In the appeal of the Panel Report in China – Measures Related to the Exportation of Various 
Raw Materials (complaint by Mexico, WT/DS398/R) (the "Me xico Panel Report"), for the reasons set 
out in this Report, the Appellate Body: 
(a) finds that the Panel erred under Article 6.2 of the DSU in making findings regarding 
claims allegedly identified in Section III of Mexico's panel request; and therefore 
declares moot and of no legal effect the Panel findings in paragraph 8.18(a)-(d) in 
respect of claims concerning export quota administration and allocation;  in 
paragraph 8.19(a)-(b) in respect of claims  concerning export licensing requirements;  
in paragraph 8.20(a)-(b) in respect of claims concerning a minimum export price requirement;  and in paragraph 8.18(e) of  the Mexico Panel Report in respect of 
claims concerning fees and formaliti es in connection with exportation; 
(b) finds that the Panel did not err in reco mmending, in paragraph 8.22 of the Mexico 
Panel Report, that China bring its measures into conformity with its WTO obligations 
such that the "series of measures" do not operate to bring about  a WTO-inconsistent 
result; 
(c) finds that the Panel did not err, in paragr aph 7.159 of the Mexico Panel Report, in 
finding that there is no basis in China's Acce ssion Protocol to allow the application of 
Article XX of the GATT 1994 to China's ob ligations in Paragraph 11.3 of China's 
Accession Protocol;  and therefore upholds the Panel's conclusion, in paragraph 
8.16(b) of the Mexico Panel Report, that Ch ina may not seek to justify the application 
of export duties to certain forms of fluorspar pursuant to Article XX(g) of the GATT 
1994 and the Panel's conclusion, in paragr aph 8.16(c) of the Mexico Panel Report, 
that China may not seek to justify the appli cation of export duties to certain forms of 
magnesium, manganese and zinc pursuant to Article XX(b) of the GATT 1994; 
(d) with respect to Article XI:2(a) of the GATT 1994: 
(i) upholds the Panel's conclusion, in pa ragraph 7.355 of the Mexico Panel 
Report, that China had not demonstrated that its export quota on refractory-
grade bauxite was "temporarily applied", within the meaning of Article XI:2(a) of the GATT 1994, to either prevent or relieve a "critical 
shortage";  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 147 
  
  ANNEX I 
 
WORLD TRADE  
ORGANIZATION   
WT/DS394/7 
9 November 2009 
 
 (09-5564) 
 Original:   English 
 
 
 
CHINA – MEASURES RELATED TO THE EXPORTATION 
OF VARIOUS RAW MATERIALS 
 
Request for the Establishment of a Panel by the United States 
 
  The following communication, dated 4 Novemb er 2009, from the delegation of the United 
States to the Chairman of the Dispute Settlement Bo dy, is circulated pursuant to Article 6.2 of the 
DSU. 
 
_______________ 
   On 23 June 2009, the United States requested consultations with the Government of the 
People's Republic of China ("China") pursuant to Articles 1 and 4 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes  ("DSU") and Article XXII of the General 
Agreement on Tariffs and Trade 1994  ("GATT 1994") with respect to China's restraints on the 
exportation from China of various forms of bauxite
1, coke2, fluorspar3, magnesium4, manganese5, 
                                                      
1 Bauxite includes but is not limited to items falling under the following ten-digit Chinese Commodity 
Codes, as listed in Attachment 1 of Notice "2009 Ex port Licensing Management Commodities List" (Ministry 
of Commerce and General Administration of Customs, Notice (2008) No. 100, January 1, 2009) ("2009 Export 
Licensing List") and/or the following eight-digit HS numbers as listed in Table 7 of Notice Regarding the 2009 Tariff Implementation Program (State Council Tariff Policy Commission, shuiweihui (2008) No. 40, January 1, 
2009) ("2009 Export Duty List"):  2508300000/25083000, 2606000000/26060000, 26204000. 
2 Coke includes but is not limited to items falling under the following ten-digit Chinese Commodity 
Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export 
Duty List:  2704001000/27040010. 
3 Fluorspar includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 
2009 Export Duty List:  2529210000/25292100, 2529220000/25292200. 
4 Magnesium includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 
2009 Export Duty List:  81041100, 81041900, 81042000. 
5 Manganese includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 
2009 Export Duty List:  26020000, 8111001010/81110010, 8111001090/81110010. WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 148 
  
  silicon carbide
6, silicon metal7, yellow phosphorus8, and zinc9 (the "materials").  The United States 
held consultations with China on 31 July 2009,  and 1-2 September 2009.  Those consultations 
unfortunately did not resolve the dispute.  
 
I. Export Quotas 
 
 China subjects the exportation of bauxite, c oke, fluorspar, silicon carbide, and zinc to 
quantitative restrictions such as quotas. 
 
 The United States understands that these Chinese measures are reflected in, among others:  
 Foreign Trade Law of the People's Republic of China (adopted at the 8
th Session of 
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004, 
promulgated on July 1, 2004)  
 
 Regulation of the People's Republic of China on the Administration of the Import and 
Export of Goods (passed at the forty-sixth executive meeting of the State Council on October 31, 2001, January 1, 2002) 
 
 Measures for the Administration of License for the Export of Goods (Order of the 
Ministry of Commerce (2008) No. 11, July 1, 2008) 
 
 Measures for the Administration of E xport Commodities Quotas (Order of the 
Ministry of Foreign Trade and Economic Cooperation No. 12, adopted on December 
20, 2001, January 1, 2002) 
 
 Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of 
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001, 
January 1, 2002) 
 
 Measures for the Administration of the Organs for Issuing the Licenses of Import and 
Export Commodities (Ministry of Fore ign Trade and Econom ic Cooperation, 
waijingmaopeiguanhanzi (1999) No . 68, September 21, 1999) 
 
 Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of 
Foreign Trade and Economic C ooperation, November 8, 2001)  
 
                                                      
6 Silicon carbide includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List:  2849200000, 3824909910. 
7 Silicon metal includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List:  28046900. 
8 Yellow phosphorus includes but is not limited to items falling under the following  ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List:  28047010. 
9 Zinc includes but is not limited to items falling under the following ten-digit Chinese Commodity 
Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export 
Duty List: 2608000001/26080000, 2608000090/26080000, 790111111000/790111100, 7901119000/79011190, 
7901120000/79011200, 7901200000/79012000, 79020000, 26201100, 26201900.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 149 
  
   Working Rules on Issuing Export Licenses (Ministry of Commerce, shangpeifa 
(2008) No. 398, October 9, 2008) 
 
 Rules on the Administration of Import and Export License Certificates (Ministry of 
Foreign Trade and Economic Cooperati on, waijingmaopeizi (1999) No. 87, 
December 6, 1999)  
 
 Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial 
Products (Ministry of Commerce, Notic e (2008) No. 83, January 1, 2009) 
 
 Notice Regarding Passing Down the 2009 First Batch Regular Trade Coke Export 
Quota (Ministry of Commerce, shangmaohan (2008) No. 140, January 1, 2009) 
 
 2009 Coke Export Quota Declaration Cond itions and Declaration Procedures 
(Ministry of Commerce, Notice (2008) No. 76, October 13, 2008) 
 
 Notice "2009 Export Licensing Management Commodities List" (Ministry of 
Commerce and General Administration of Customs, Notice (2008) No. 100, January 1, 2009) 
 
 Announcement of the Ministry of Commer ce Issuing the "2009 Graded License-
Issuing List of Commodities Subject to Export License Administration" (Ministry of Commerce, Notice (2008) No. 124, January 1, 2009)  
 
 Announcement Regarding Printing "Working Rules on Issuing Export Licenses" 
(Ministry of Commerce, shangpeifa (2008) No. 398, October 9, 2008)  
 
 Announcement of Ministry of Commerce on Matters regarding the First Bidding for 
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement 
(2008) No. 85, October 30, 2008) 
 
 Announcement of Ministry of Commerce on the Notice for the Second Invitation for 
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce, 
Announcement (2009) No. 42, June 9, 2009) 
 
 Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution 
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products" 
(Ministry of Foreign Trade and Economic C ooperation, issued on November 8, 2001) 
 
 Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for 
Export Commodity Quotas, December 11, 2008) 
 
 Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export 
Commodity Quotas, December 10, 2008) 
 
 Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export 
Commodity Quotas, December 11, 2008) 
 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 150 
  
   Announcement on the Second Invitation for the Bidding of Select Industrial Product 
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity 
Quotas, September 16, 2009) 
 
 Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for 
bid for Export Commodity Quotas, September 16, 2009) 
 
 Notice Regarding Passing Down the 2009 Second Batch Regular Trade Coke and 
Rare Earth Export Quota (Ministry of Commerce, shangzihan (2009) No. 73, 
September 8, 2009) 
 
 Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural 
and Industrial Products (Ministry of Commerce, Notice (2009) No. 88, October 29, 2009) 
 
 as well as any amendments or extensions; related measures; replacement measures; 
renewal measures; and implementing measures. 
  
 The United States considers that these measures are inconsistent with Article XI:1 of the 
GATT 1994 as well as China's obligations under the provi sions of paragraph 1.2 of Part I of the 
Protocol on the Accession of the People's Republic of China (WT/L/432) ("Accession Protocol"), 
which incorporates commitments in paragraphs 162 and 165 of the Working Party Report on the 
Accession of China  (WT/MIN(01)/3) ("Working Party Report").  
 II. Export Duties 
 
 China subjects the materials to export duties.   China imposes export duty rates, "temporary" expo rt duty rates, and/or "special" export duty 
rates of various magnitudes on bauxite, coke, fluor spar, magnesium, manganese, silicon metal, yellow 
phosphorus, and zinc.  These export duties are imposed either on materials that are not listed in Annex 
6 of the Accession Protocol, or on materials that are listed in Annex 6 of the Accession Protocol, but at rates that exceed the maximum rates designated in Annex 6.  
 
 In addition, as discussed in Sec tion III below, China allocates the quotas
10 imposed on the 
exportation of bauxite, fluorspar, and silicon carbide  through a bidding system.  In connection with 
the administration of this bidding system, China requi res enterprises to pay a charge in order to export 
these materials.  However, bauxite, fluorspar, a nd silicon carbide are not listed in Annex 6 of the 
Accession Protocol. 
 
 The United States understands that these Chinese measures are reflected in, among others:  
 Customs Law of the People's Republic of China (adopted at the 19
th Meeting of the 
Standing Committee of the Sixth Nationa l People's Congress on January 22, 1987, 
amended July 8, 2000) 
 
                                                      
10 Discussed in Section I above.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 151 
  
   Regulations of the People's Republic of Ch ina on Import and Export Duties (Order of 
the State Council (2003) No. 392, adopted at the 26
th executive meeting of the State 
Council on October 29, 2003, January 1, 2004) 
 
 Notice Regarding the 2009 Tariff Implemen tation Program (State Council Tariff 
Policy Commission, shuiweihui (2008) No. 40, January 1, 2009) 
 
 Foreign Trade Law of the People's Republic of China (adopted at the 8th Session of 
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004, 
promulgated on July 1, 2004)  
 
 Regulation of the People's Republic of China on the Administration of the Import and 
Export of Goods (passed at the forty-sixth executive meeting of the State Council on October 31, 2001, January 1, 2002) 
 
 Measures for the Administration of License for the Export of Goods (Order of the 
Ministry of Commerce (2008) No. 11, July 1, 2008) 
 
 Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of 
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001, 
January 1, 2002) 
 
 Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of 
Foreign Trade and Economic C ooperation, November 8, 2001)  
 
 Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial 
Products (Ministry of Commerce, Notic e (2008) No. 83, January 1, 2009) 
 
 Notice "2009 Export Licensing Management Commodities List" (Ministry of 
Commerce and General Administration of Customs, Notice (2008) No. 100, January 1, 2009) 
 
 Announcement of Ministry of Commerce on Matters regarding the First Bidding for 
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement 
(2008) No. 85, October 30, 2008) 
 
 Announcement of Ministry of Commerce on the Notice for the Second Invitation for 
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce, Announcement (2009) No. 42, June 9, 2009) 
 
 Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution 
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products" 
(Ministry of Foreign Trade and Economic C ooperation, issued on November 8, 2001) 
 
 Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for 
Export Commodity Quotas, December 11, 2008) 
 
 Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export 
Commodity Quotas, December 10, 2008) 
 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 152 
  
   Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export 
Commodity Quotas, December 11, 2008) 
 
 Announcement on the Second Invitation for the Bidding of Select Industrial Product 
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity 
Quotas, September 16, 2009) 
 
 Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for 
bid for Export Commodity Quotas, September 16, 2009) 
 
 Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural 
and Industrial Products (Ministry of Commerce, Notice (2009) No. 88, October 29, 
2009) 
 
 as well as any amendments or extensions; related measures; replacement measures; 
renewal measures; and implementing measures.  
  The United States considers that these measures are inconsistent with paragraph 11.3 of Part I 
of the Accession Protocol, as well as China's obligations under the pr ovisions of paragraph 1.2 of 
Part I of the Accession Protocol, which incorporates commitments referred to in paragraph 342 of the 
Working Party Report.  
III. Additional Restraints Imposed on Exportation 
 
 In addition to the export quotas and export du ties discussed in Sections I and II above, China 
imposes other restraints on the exportation of the mate rials, administers its measures in a manner that 
is not uniform, impartial, and reasonable, impo ses excessive fees and formalities on exportation, and 
does not publish certain measures pertaining to requi rements, restrictions, or prohibitions on exports. 
 
 China administers the export quotas imposed on bauxite, coke, fluorspar, silicon carbide, and 
zinc discussed in Section I above, through its mi nistries and other organizations under the State 
Council as well as chambers of commerce and industry associations, in a manner that restricts exports 
and is not uniform, impartial and reasonable.  In connection with the administration of the quotas for 
these materials, China imposes restrictions on the right of Chinese enterprises as well as foreign 
enterprises and individuals to export. 
  China allocates the export quotas imposed on bauxite, fluorspar, and silicon carbide discussed in Section I above, through a bidding system.  Chin a administers the requirements and procedures for 
this bidding system through its ministries and ot her organizations under the State Council as well as 
chambers of commerce and industry associations, in  a manner that restricts exports and is not 
uniform, impartial and reasonable.  In connection with the administration of this bidding system, 
China also requires foreign-invest ed enterprises to satisfy certain criteria in order to export these 
materials that Chinese enterprises n eed not satisfy. Further, China requires enterprises to pay a charge 
in order to export these materials that is  excessive and imposes excessive formalities on the 
exportation of these materials. 
 
 China does not publish the amount for the ex port quota for zinc or any conditions or 
procedures for applying entities to qualify to export zinc.   WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 153 
  
   In addition, China restricts the exportation of bauxite, coke, fluorspar, manganese, silicon 
carbide, and zinc by subjecting these materials to non-automatic licensing.  China imposes the non-automatic export licensing for  bauxite, coke, fluor spar, silicon carbide, and zinc in connection with 
the administration of the export quotas discussed in Section I, as an additional restraint on the 
exportation of those materials.     China also imposes quantitative r estrictions on the exportation of the materials by requiring 
that prices for the materials meet or exceed a mini mum price before they may be exported.  Further, 
through its ministries and other organizations un der the State Council as well as chambers of 
commerce and industry associations, China admini sters the price requirements in a manner that 
restricts exports and is not uniform, impartial, a nd reasonable.  China also does not publish certain 
measures relating to these requirements in a manner that enables governments and traders to become 
acquainted with them. 
 
 The United States understands that these Chinese measures are reflected in, among others:  
 Foreign Trade Law of the People's Republic of China (adopted at the 8
th Session of 
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004, 
promulgated on July 1, 2004) 
 
 Regulation of the People's Republic of China on the Administration of the Import and 
Export of Goods (passed at the forty-sixth executive meeting of the State Council on October 31, 2001, January 1, 2002) 
 
 Measures for the Administration of License for the Export of Goods (Order of the 
Ministry of Commerce (2008) No. 11, July 1, 2008) 
 
 Measures for the Administration of E xport Commodities Quotas (Order of the 
Ministry of Foreign Trade and Economic Cooperation No. 12, adopted on December 
20, 2001, January 1, 2002) 
 
 Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of 
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001, 
January 1, 2002) 
 
 Measures for the Administration of the Organs for Issuing the Licenses of Import and 
Export Commodities (Ministry of Fore ign Trade and Econom ic Cooperation, 
waijingmaopeiguanhanzi (1999) No . 68, September 21, 1999) 
 
 Working Rules on Issuing Export Licenses (Ministry of Commerce, shangpeifa 
(2008) No. 398, October 9, 2008) 
 
 Rules on the Administration of Import and Export License Certificates (Ministry of 
Foreign Trade and Economic Cooperati on, waijingmaopeizi (1999) No. 87, 
December 6, 1999) 
 
 Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of 
Foreign Trade and Economic C ooperation, November 8, 2001)  
 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 154 
  
   Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial 
Products (Ministry of Commerce, Notic e (2008) No. 83, January 1, 2009) 
 
 Notice Regarding Passing Down the 2009 First Batch Regular Trade Coke Export 
Quota (Ministry of Commerce, shangmaohan (2008) No. 140, January 1, 2009) 
 
 2009 Coke Export Quota Declaration Cond itions and Declaration Procedures 
(Ministry of Commerce, Notice (2008) No. 76, October 13, 2008) 
 
 Notice "2009 Export Licensing Management Commodities List" (Ministry of 
Commerce and General Administration of Customs, Notice (2008) No. 100, January 
1, 2009) 
 
 Announcement of the Ministry of Commer ce Issuing the "2009 Graded License-
Issuing List of Commodities Subject to Export License Administration" (Ministry of Commerce, Notice (2008) No. 124, January 1, 2009) 
 
 Announcement Regarding Printing "Working Rules on Issuing Export Licenses" 
(Ministry of Commerce, shangpeifa (2008) No. 398, October 9, 2008) 
 
 Announcement of Ministry of Commerce on Matters regarding the First Bidding for 
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement 
(2008) No. 85, October 30, 2008) 
 
 Announcement of Ministry of Commerce on the Notice for the Second Invitation for 
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce, 
Announcement (2009) No. 42, June 9, 2009) 
 
 Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution 
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products" 
(Ministry of Foreign Trade and Economic C ooperation, issued on November 8, 2001) 
 
 Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for 
Export Commodity Quotas, December 11, 2008) 
 
 Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export 
Commodity Quotas, December 10, 2008) 
 
 Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export 
Commodity Quotas, December 11, 2008) 
 
 Announcement on the Second Invitation for the Bidding of Select Industrial Product 
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity 
Quotas, September 16, 2009) 
 
 Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for 
Bid for Export Commodity Quotas, September 16, 2009) 
  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 155 
  
   Notice Regarding Passing Down the 2009 Second Batch Regular Trade Coke and 
Rare Earth Export Quota (Ministry of Commerce, ShangZiHan (2009) No. 73, 
September 8, 2009) 
 
 Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural 
and Industrial Products (Ministry of Commerce, Notice (2009) No. 88, October 29, 2009) 
 
 Charter of the China Chamber of Commerc e of Metals, Minera ls and Chemicals 
Importers and Exporters 
 
 Charter of the China Coking Industry Association 
 
 Measures for the Administration over Foreign Trade and Economic Social 
Organizations (Ministry of Foreign Trade and Economic Coopera tion, February 26, 
1991) 
 
 Notice Regarding Printing and Distributi on of Several Regulations for Personnel 
Management of Chambers of Commerce fo r Importers and Exporters (Ministry of 
Foreign Trade and Economic Cooperation , September 23, 1994)  
 
 Interim Regulations of the Ministry of Foreign Trade and Ec onomic Cooperation on 
Punishment for Conduct at Exporting at Lower-than-Normal Price (Ministry of Foreign Trade and Economic Cooperation, March 20, 1996)  
 
 Notice Regarding Rules for Contract Declaration for Chemicals-Related Verification 
and Stamp Products (China Chamber of Commerce of Metals, Minerals and 
Chemicals Importers and E xporters Petroleum and Chem icals Products Department, 
December 30, 2003) 
 
 Online Verification and Certification Oper ating Steps (China Chamber of Commerce 
of Metals, Minerals and Chemicals Importers and Exporters) 
 
 Rules for Coordination with Respect to Cu stoms Price Review of Export Products, 
(Ministry of Foreign Trade and Economic Cooperation guanzonghanzi No. 21, 1997)  
 
 Notice of the Rules on Price Reviews of Export Products by the Customs, (Ministry 
of Foreign Trade and Economic C ooperation guanzonghanzi No. 21, 1997) 
 
 Notice on the Issuance of "Various Provisions on the Strengthening of Export Product 
Coordination and Management" (Ministry of  Foreign Economic Relations and Trade, 
jinchufa (1991) No. 52, February 22, 1991)  
 
 "Various Provisions on the Strengtheni ng of Export Product Coordination and 
Management" (Ministry of Foreign Economic  Relations and Trade, jinchufa (1991) 
No. 52, February 22, 1991) 
 
 Decision of the State Council on Various Questions on the Further Reform and 
Improvement of the Foreign Trade System (State Council, guofa (1990) No. 70, January 1, 1991) WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 156 
  
   
 as well as any amendments or extensions; related measures; replacement measures; 
renewal measures; and implementing measures. 
 
 The United States considers that these measures are inconsistent with Article VIII:1(a) and 
VIII:4, Article X:1 and X:3(a), and Article XI:1 of  the GATT 1994 and paragraphs 2(A)2, 5.1, 5.2 and 
8.2 of Part I of the Accession Protocol, as well as China's obligations under the provisions of paragraph 1.2 of Part I of the Accession Protocol, which incorporates commitments in paragraphs 83, 
84, 162, and 165 of the Working Party Report.  
 
* * * * * * 
  Accordingly, the United States respectfully requ ests that, pursuant to Article 6 of the DSU, 
the Dispute Settlement Body establish a panel to ex amine this matter, with the standard terms of 
reference as set out in Article 7.1 of the DSU. 
 
_______________ 
  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 157 
  
  ANNEX II 
 
WORLD TRADE  
ORGANIZATION   
WT/DS395/7 
9 November 2009 
 
 (09-5567) 
 Original:   English 
 
 
 
CHINA – MEASURES RELATED TO THE EXPORTATION 
OF VARIOUS RAW MATERIALS 
 
Request for the Establishment of a Panel by the European Communities 
 
  The following communication, dated 4 November 2009, from the delegation of the European Communities to the Chairman of the Dispute Settlement  Body, is circulated pursuant to Article 6.2 of 
the DSU. 
 
_______________ 
   On 23 June 2009, the European Communities requ ested consultations with  the Government of 
the People's Republic of China ("China" ) pursuant to Articles 1 and 4 of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes  ("DSU") and Article XXII of the General 
Agreement on Tariffs and Trade 1994  ("GATT 1994") with respect to China's restraints on the 
exportation from China of various forms of bauxite
1, coke2, fluorspar3, magnesium4, manganese5, 
                                                      
1 Bauxite includes but is not limited to items falling under the following ten-digit Chinese Commodity 
Codes, as listed in Attachment 1 of Notice "2009 Ex port Licensing Management Commodities List" (Ministry 
of Commerce and General Administration of Customs, Notice (2008) No. 100, January 1, 2009) ("2009 Export 
Licensing List") and/or the following eight-digit HS numbers as listed in Table 7 of Notice Regarding the 2009 Tariff Implementation Program (State Council Tariff Policy Commission, shuiweihui (2008) No. 40, January 1, 
2009) ("2009 Export Duty List"):  2508300000/25083000, 2606000000/26060000, 26204000. 
2 Coke includes but is not limited to items falling under the following ten-digit Chinese Commodity 
Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export 
Duty List:  2704001000/27040010. 
3 Fluorspar includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 
2009 Export Duty List:  2529210000/25292100, 2529220000/25292200. 
4 Magnesium includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 
2009 Export Duty List:  81041100, 81041900, 81042000. 
5 Manganese includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 
2009 Export Duty List:  26020000, 8111001010/81110010, 8111001090/81110010. WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 158 
  
  silicon carbide
6, silicon metal7, yellow phosphorus8, and zinc9 (the "materials").  The European 
Communities held consultations with China on Ju ly 31, 2009, and Septem ber 1-2, 2009. Those 
consultations unfortunately did not resolve the dispute. 
 
I. Export Quotas 
 
 China subjects the exportation of bauxite, c oke, fluorspar, silicon carbide, and zinc to 
quantitative restrictions such as quotas. 
 
 The European Communities understands that these Chinese measures are reflected in, among 
others:  
 Foreign Trade Law of the People's Republic of China (adopted at the 8
th Session of 
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004, 
promulgated on July 1, 2004)  
 
 Regulation of the People's Republic of China on the Administration of the Import and 
Export of Goods (passed at the forty-sixth executive meeting of the State Council on October 31, 2001, January 1, 2002) 
 
 Measures for the Administration of License for the Export of Goods (Order of the 
Ministry of Commerce (2008) No. 11, July 1, 2008) 
 
 Measures for the Administration of E xport Commodities Quotas (Order of the 
Ministry of Foreign Trade and Economic Cooperation No. 12, adopted on December 
20, 2001, January 1, 2002) 
 
 Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of 
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001, 
January 1, 2002) 
 
 Measures for the Administration of the Organs for Issuing the Licenses of Import and 
Export Commodities (Ministry of Fore ign Trade and Econom ic Cooperation, 
waijingmaopeiguanhanzi (1999) No . 68, September 21, 1999) 
 
 Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of 
Foreign Trade and Economic C ooperation, November 8, 2001)  
                                                      
6 Silicon carbide includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List:  2849200000, 3824909910. 
7 Silicon metal includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List:  28046900. 
8 Yellow phosphorus includes but is not limited to items falling under the following  ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List:  28047010. 
9 Zinc includes but is not limited to items falling under the following ten-digit Chinese Commodity 
Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export 
Duty List: 2608000001/26080000, 2608000090/26080000, 790111111000/790111100, 7901119000/79011190, 
7901120000/79011200, 7901200000/79012000, 79020000, 26201100, 26201900.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 159 
  
   
 Working Rules on Issuing Export Licenses (Ministry of Commerce, shangpeifa 
(2008) No. 398, October 9, 2008) 
 
 Rules on the Administration of Import and Export License Certificates (Ministry of 
Foreign Trade and Economic Cooperati on, waijingmaopeizi (1999) No. 87, 
December 6, 1999)  
 
 Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial 
Products (Ministry of Commerce, Notic e (2008) No. 83, January 1, 2009) 
 
 Notice Regarding Passing Down the 2009 First Batch Regular Trade Coke Export 
Quota (Ministry of Commerce, shangmaohan (2008) No. 140, January 1, 2009) 
 
 2009 Coke Export Quota Declaration Cond itions and Declaration Procedures 
(Ministry of Commerce, Notice (2008) No. 76, October 13, 2008) 
 
 Notice "2009 Export Licensing Management Commodities List" (Ministry of 
Commerce and General Administration of Customs, Notice (2008) No. 100, January 
1, 2009) 
 
 Announcement of the Ministry of Commer ce Issuing the "2009 Graded License-
Issuing List of Commodities Subject to Export License Administration" (Ministry of Commerce, Notice (2008) No. 124, January 1, 2009)  
 
 Announcement Regarding Printing "Working Rules on Issuing Export Licenses" 
(Ministry of Commerce, shangpeifa (2008) No. 398, October 9, 2008)  
 
 Announcement of Ministry of Commerce on Matters regarding the First Bidding for 
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement 
(2008) No. 85, October 30, 2008) 
 
 Announcement of Ministry of Commerce on the Notice for the Second Invitation for 
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce, Announcement (2009) No. 42, June 9, 2009) 
 
 Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution 
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products" 
(Ministry of Foreign Trade and Economic C ooperation, issued on November 8, 2001) 
 
 Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for 
Export Commodity Quotas, December 11, 2008) 
 
 Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export 
Commodity Quotas, December 10, 2008) 
 
 Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export 
Commodity Quotas, December 11, 2008) 
 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 160 
  
   Announcement on the Second Invitation for the Bidding of Select Industrial Product 
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity 
Quotas, September 16, 2009) 
 
 Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for 
bid for Export Commodity Quotas, September 16, 2009) 
 
 Notice Regarding Passing Down the 2009 Second Batch Regular Trade Coke and 
Rare Earth Export Quota (Ministry of Commerce, shangzihan (2009) No. 73, 
September 8, 2009) 
 
 Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural 
and Industrial Products (Ministry of Commerce, Notice (2009) No. 88, October 29, 2009) 
 
 as well as any amendments or extensions; related measures; replacement measures; 
renewal measures; and implementing measures. 
 
 The European Communities considers that these measures are inconsistent with Article XI:1 
of the GATT 1994 as well as China's obligations under th e provisions of paragraph 1.2 of Part I of the 
Protocol on the Accession of the People's Republic of China (WT/L/432) ("Accession Protocol"), 
which incorporates commitments in paragraphs 162 and 165 of the Working Party Report on the 
Accession of China  (WT/MIN(01)/3) ("Working Party Report"). 
 
II. Export Duties 
 
 China subjects the materials to export duties.     China imposes export duty rates, "temporary" expo rt duty rates, and/or "special" export duty 
rates of various magnitudes on bauxite, coke, fluor spar, magnesium, manganese, silicon metal, yellow 
phosphorus, and zinc.  These export duties are imposed either on materials that are not listed in Annex 
6 of the Accession Protocol, or on materials that are listed in Annex 6 of the Accession Protocol, but at rates that exceed the maximum rates designated in Annex 6.   
 In addition, China allocates the quotas
10 imposed on the exportation of bauxite, fluorspar, and 
silicon carbide through a bidding system.  In conn ection with the administration of this bidding 
system, China requires enterprises to pay a charge in order to export these materials.  However, 
bauxite, fluorspar, and silicon carbide are not listed in Annex 6 of the Accession Protocol. 
 
 The European Communities understands that these Chinese measures are reflected in, among 
others:  
 Customs Law of the People's Republic of China (adopted at the 19
th Meeting of the 
Standing Committee of the Sixth Nationa l People's Congress on January 22, 1987, 
amended July 8, 2000) 
 
                                                      
10  Discussed in Section I above.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 161 
  
   Regulations of the People's Republic of Ch ina on Import and Export Duties (Order of 
the State Council (2003) No. 392, adopted at the 26
th executive meeting of the State 
Council on October 29, 2003, January 1, 2004) 
 
 Notice Regarding the 2009 Tariff Implemen tation Program (State Council Tariff 
Policy Commission, shuiweihui (2008) No. 40, January 1, 2009) 
 
 Foreign Trade Law of the People's Republic of China (adopted at the 8th Session of 
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004, 
promulgated on July 1, 2004) 
 
 Regulation of the People's Republic of China on the Administration of the Import and 
Export of Goods (passed at the forty-sixth executive meeting of the State Council on October 31, 2001, January 1, 2002) 
 
 Measures for the Administration of License for the Export of Goods (Order of the 
Ministry of Commerce (2008) No. 11, July 1, 2008) 
 
 Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of 
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001, 
January 1, 2002) 
 
 Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of 
Foreign Trade and Economic C ooperation, November 8, 2001)  
 
 Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial 
Products (Ministry of Commerce, Notic e (2008) No. 83, January 1, 2009) 
 
 Notice "2009 Export Licensing Management Commodities List" (Ministry of 
Commerce and General Administration of Customs, Notice (2008) No. 100, January 1, 2009) 
 
 Announcement of Ministry of Commerce on Matters regarding the First Bidding for 
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement 
(2008) No. 85, October 30, 2008) 
 
 Announcement of Ministry of Commerce on the Notice for the Second Invitation for 
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce, Announcement (2009) No. 42, June 9, 2009) 
 
 Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution 
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products" 
(Ministry of Foreign Trade and Economic C ooperation, issued on November 8, 2001) 
 
 Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for 
Export Commodity Quotas, December 11, 2008) 
 
 Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export 
Commodity Quotas, December 10, 2008) 
 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 162 
  
   Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export 
Commodity Quotas, December 11, 2008) 
 
 Announcement on the Second Invitation for the Bidding of Select Industrial Product 
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity 
Quotas, September 16, 2009) 
 
 Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for 
bid for Export Commodity Quotas, September 16, 2009) 
 
 Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural 
and Industrial Products (Ministry of Commerce, Notice (2009) No. 88, October 29, 
2009) 
 
 as well as any amendments or extensions; related measures; replacement measures; 
renewal measures; and implementing measures. 
  The European Communities considers that these measures are inconsistent with 
paragraph 11.3 of Part I of the Accession Protoc ol, as well as China's obligations under the provisions 
of paragraph 1.2 of Part I of the Accession Protoc ol, which incorporates commitments referred to in 
paragraph 342 of the Working Party Report.  
III. Additional Restraints Imposed on Exportation 
 
 In addition to the export quotas and export du ties discussed in Sections I and II above, China 
imposes other restraints on the exportation of the mate rials, administers its measures in a manner that 
is not uniform, impartial, and reasonable, impo ses excessive fees and formalities on exportation, and 
does not publish certain measures pertaining to requi rements, restrictions, or prohibitions on exports. 
 
 China administers the export quotas imposed on bauxite, coke, fluorspar, silicon carbide, and 
zinc discussed in Section I above, through its mi nistries and other organisations under the State 
Council as well as chambers of commerce and industry associations, in a manner that restricts exports 
and is not uniform, impartial and reasonable.  In connection with the administration of the quotas for 
these materials, China imposes restrictions on the right of Chinese enterprises as well as foreign 
enterprises and individuals to export. 
  China allocates the export quotas imposed on bauxite, fluorspar, and silicon carbide discussed in Section I above, through a bidding system.  Chin a administers the requirements and procedures for 
this bidding system through its ministries and othe r organisations under the State Council as well as 
chambers of commerce and industry associations, in  a manner that restricts exports and is not 
uniform, impartial and reasonable.  In connection with the administration of this bidding system, 
China also requires foreign-invest ed enterprises to satisfy certain criteria in order to export these 
materials that Chinese ente rprises need not satisfy. 
  China does not publish the amount for the ex port quota for zinc or any conditions or 
procedures for applying entities to qualify to export zinc. 
  In addition, China restricts the exportation of bauxite, coke, fluorspar, manganese, silicon 
carbide, and zinc by subjecting these materials to non-automatic licensing.  China imposes the non-automatic export licensing for bauxite, coke, fluorsp ar, silicon carbide, and zinc in connection with  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 163 
  
  the administration of the export quotas discussed in Section I, as an additional restraint on the 
exportation of those materials.  
 China also imposes quantitative r estrictions on the exportation of the materials by requiring 
that prices for the materials meet or exceed a mini mum price before they may be exported.  Further, 
through its ministries and other organisations under the State Council as well as chambers of commerce and industry associations, China admini sters the price requirements in a manner that 
restricts exports and is not uniform, impartial, a nd reasonable.  China also does not publish certain 
measures relating to these requirements in a manner that enables governments and traders to become 
acquainted with them.   China also imposes excessive fees and formalities in relation to the exportation of the 
materials. 
 
 The European Communities understands that these Chinese measures are reflected in, among 
others:  
 Foreign Trade Law of the People's Republic of China (adopted at the 8
th Session of 
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004, 
promulgated on July 1, 2004) 
 
 Regulation of the People's Republic of China on the Administration of the Import and 
Export of Goods (passed at the forty-sixth executive meeting of the State Council on October 31, 2001, January 1, 2002) 
 
 Measures for the Administration of License for the Export of Goods (Order of the 
Ministry of Commerce (2008) No. 11, July 1, 2008) 
 
 Measures for the Administration of E xport Commodities Quotas (Order of the 
Ministry of Foreign Trade and Economic Cooperation No. 12, adopted on December 20, 2001, January 1, 2002) 
 
 Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of 
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001, 
January 1, 2002) 
 
 Measures for the Administration of the Organs for Issuing the Licenses of Import and 
Export Commodities (Ministry of Fore ign Trade and Econom ic Cooperation, 
waijingmaopeiguanhanzi (1999) No . 68, September 21, 1999) 
 
 Working Rules on Issuing Export Licenses (Ministry of Commerce, shangpeifa 
(2008) No. 398, October 9, 2008) 
 
 Rules on the Administration of Import and Export License Certificates (Ministry of 
Foreign Trade and Economic Cooperati on, waijingmaopeizi (1999) No. 87, 
December 6, 1999) 
 
 Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of 
Foreign Trade and Economic C ooperation, November 8, 2001)  
 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 164 
  
   Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial 
Products (Ministry of Commerce, Notic e (2008) No. 83, January 1, 2009) 
 
 Notice Regarding Passing Down the 2009 First Batch Regular Trade Coke Export 
Quota (Ministry of Commerce, shangmaohan (2008) No. 140, January 1, 2009) 
 
 2009 Coke Export Quota Declaration Cond itions and Declaration Procedures 
(Ministry of Commerce, Notice (2008) No. 76, October 13, 2008) 
 
 Notice "2009 Export Licensing Management Commodities List" (Ministry of 
Commerce and General Administration of Customs, Notice (2008) No. 100, 
January 1, 2009) 
 
 Announcement of the Ministry of Commer ce Issuing the "2009 Graded License-
Issuing List of Commodities Subject to Export License Administration" (Ministry of Commerce, Notice (2008) No. 124, January 1, 2009) 
 
 Announcement Regarding Printing "Working Rules on Issuing Export Licenses" 
(Ministry of Commerce, shangpeifa (2008) No. 398, October 9, 2008) 
 
 Announcement of Ministry of Commerce on Matters regarding the First Bidding for 
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement 
(2008) No. 85, October 30, 2008) 
 
 Announcement of Ministry of Commerce on the Notice for the Second Invitation for 
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce, 
Announcement (2009) No. 42, June 9, 2009) 
 
 Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution 
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products" 
(Ministry of Foreign Trade and Economic C ooperation, issued on November 8, 2001) 
 
 Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for 
Export Commodity Quotas, December 11, 2008) 
 
 Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export 
Commodity Quotas, December 10, 2008) 
 
 Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export 
Commodity Quotas, December 11, 2008) 
 
 Announcement on the Second Invitation for the Bidding of Select Industrial Product 
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity 
Quotas, September 16, 2009) 
 
 Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for 
Bid for Export Commodity Quotas, September 16, 2009) 
  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 165 
  
   Notice Regarding Passing Down the 2009 Second Batch Regular Trade Coke and 
Rare Earth Export Quota (Ministry of Commerce, ShangZiHan (2009) No. 73, 
September 8, 2009) 
 
 Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural 
and Industrial Products (Ministry of  Commerce, Notice (2009) No. 88, 
October 29, 2009) 
 
 Charter of the China Chamber of Commerc e of Metals, Minera ls and Chemicals 
Importers and Exporters 
 
 Charter of the China Coking Industry Association 
 
 Measures for the Administration over Foreign Trade and Economic Social 
Organizations (Ministry of Foreign Trade and Economic Cooperation, 
February 26, 1991) 
 
 Notice Regarding Printing and Distributi on of Several Regulations for Personnel 
Management of Chambers of Commerce fo r Importers and Exporters (Ministry of 
Foreign Trade and Economic Cooperation, September 23, 1994) 
 
 Interim Regulations of the Ministry of Foreign Trade and Ec onomic Cooperation on 
Punishment for Conduct at Exporting at Lower-than-Normal Price (Ministry of Foreign Trade and Economic Cooperation, March 20, 1996)  
 
 Notice Regarding Rules for Contract Declaration for Chemicals-Related Verification 
and Stamp Products (China Chamber of Commerce of Metals, Minerals and 
Chemicals Importers and E xporters Petroleum and Chem icals Products Department, 
December 30, 2003) 
 
 Online Verification and Certification Oper ating Steps (China Chamber of Commerce 
of Metals, Minerals and Chemicals Importers and Exporters) 
 
 Rules for Coordination with Respect to Cu stoms Price Review of Export Products, 
(Ministry of Foreign Trade and Economic Cooperation guanzonghanzi No. 21, 1997)  
 
 Notice of the Rules on Price Reviews of Export Products by the Customs, (Ministry 
of Foreign Trade and Economic C ooperation guanzonghanzi No. 21, 1997) 
 
 Notice on the Issuance of "Various Provisions on the Strengthening of Export Product 
Coordination and Management" (Ministry of  Foreign Economic Relations and Trade, 
jinchufa (1991) No. 52, February 22, 1991) 
 
 "Various Provisions on the Strengtheni ng of Export Product Coordination and 
Management" (Ministry of Foreign Economic  Relations and Trade, jinchufa (1991) 
No. 52, February 22, 1991) 
 
 Decision of the State Council on Various Questions on the Further Reform and 
Improvement of the Foreign Trade System (State Council, guofa (1990) No. 70, January 1, 1991) WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 166 
  
   
 as well as any amendments or extensions; related measures; replacement measures; 
renewal measures; and implementing measures. 
 
 The European Communities considers that these measures are inconsistent with Article VIII:1 
and VIII:4, Article X:1 and X:3(a), and Article XI:1  of the GATT 1994 and paragraphs 2(A)2, 5.1, 5.2 
and 8.2 of Part I of the Accession Protocol, as well as China's obligations under the provisions of paragraph 1.2 of Part I of the Accession Protocol, which incorporates commitments in paragraphs 83, 
84, 162, and 165 of the Working Party Report.  
* * * * * * 
 
 Accordingly, the European Communities respect fully requests that, pursuant to Article 6 of 
the DSU, the Dispute Settlement Body establish a pane l to examine this matter, with the standard 
terms of reference as set out in Article 7.1 of the DSU. 
  The European Communities asks that this request  be placed on the agenda for the meeting of 
the Dispute Settlement Body to be held on 19 November 2009.   
_______________ 
  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 167 
  
  ANNEX III 
 
WORLD TRADE  
ORGANIZATION   
WT/DS398/6 
9 November 2009 
 
 (09-5568) 
 Original:   English 
 
 
 
CHINA – MEASURES RELATED TO THE EXPORTATION 
OF VARIOUS RAW MATERIALS 
 
Request for the Establishment of a Panel by Mexico 
 
  The following communication, dated 4 November  2009, from the delegation of Mexico to the 
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
_______________ 
   On 21 August 2009, Mexico requested consulta tions with the Government of the People's 
Republic of China ("China") pursuant to Articles 1 and 4 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes  ("DSU") and Article XXII of the General 
Agreement on Tariffs and Trade 1994  ("GATT 1994") with respect to China's restraints on the 
exportation from China of various forms of bauxite
1, coke2, fluorspar3, magnesium4, manganese5, 
silicon carbide6, silicon metal7, yellow phosphorus8, and zinc9 (the "materials"). Mexico held 
                                                      
1 Bauxite includes but is not limited to items falling under the following ten-digit Chinese Commodity 
Codes, as listed in Attachment 1 of Notice "2009 Ex port Licensing Management Commodities List" (Ministry 
of Commerce and General Administration of Customs, Notice (2008) No. 100, January 1, 2009) ("2009 Export 
Licensing List") and/or the following eight-digit HS numbers as listed in Table 7 of Notice Regarding the 2009 Tariff Implementation Program (State Council Tariff Policy Commission, shuiweihui (2008) No. 40, 
January 1, 2009) ("2009 Export Duty List"):  2508300000/25083000, 2606000000/26060000, 26204000. 
2 Coke includes but is not limited to items falling under the following ten-digit Chinese Commodity 
Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export 
Duty List:  2704001000/27040010. 
3 Fluorspar includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 
2009 Export Duty List:  2529210000/25292100, 2529220000/25292200. 
4 Magnesium includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 
2009 Export Duty List:  81041100, 81041900, 81042000. 
5 Manganese includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 
2009 Export Duty List:  26020000, 8111001010/81110010, 8111001090/81110010. 
6 Silicon carbide includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 
2009 Export Duty List:  2849200000, 3824909910. WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 168 
  
  consultations with China on September 1-2, 2009.  Those consultations unfortunately did not resolve 
the dispute.   I. Export Quotas 
 
 China subjects the exportation of bauxite, c oke, fluorspar, silicon carbide, and zinc to 
quantitative restrictions such as quotas.  
 Mexico understands that these Chinese measures are reflected in, among others: 
 
 Foreign Trade Law of the People's Republic of China (adopted at the 8
th Session of 
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004, 
promulgated on July 1, 2004)  
 
 Regulation of the People's Republic of China on the Administration of the Import and 
Export of Goods (passed at the forty-sixth executive meeting of the State Council on October 31, 2001, January 1, 2002) 
 
 Measures for the Administration of License for the Export of Goods (Order of the 
Ministry of Commerce (2008) No. 11, July 1, 2008) 
 
 Measures for the Administration of E xport Commodities Quotas (Order of the 
Ministry of Foreign Trade and Economic Cooperation No. 12, adopted on December 20, 2001, January 1, 2002) 
 
 Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of 
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001, 
January 1, 2002) 
 
 Measures for the Administration of the Organs for Issuing the Licenses of Import and 
Export Commodities (Ministry of Fore ign Trade and Econom ic Cooperation, 
waijingmaopeiguanhanzi (1999) No . 68, September 21, 1999) 
 
 Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of 
Foreign Trade and Economic C ooperation, November 8, 2001)  
 
 Working Rules on Issuing Export Licenses (Ministry of Commerce, shangpeifa 
(2008) No. 398, October 9, 2008) 
 
                                                                                                                                                                     
7 Silicon metal includes but is not limited to items falling under the following ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List:  28046900. 
8 Yellow phosphorus includes but is not limited to items falling under the following  ten-digit Chinese 
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export Duty List:  28047010. 
9 Zinc includes but is not limited to items falling under the following ten-digit Chinese Commodity 
Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export 
Duty List: 2608000001/26080000, 2608000090/26080000, 790111111000/790111100, 7901119000/79011190, 
7901120000/79011200, 7901200000/79012000, 79020000, 26201100, 26201900.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 169 
  
   Rules on the Administration of Import and Export License Certificates (Ministry of 
Foreign Trade and Economic Cooperati on, waijingmaopeizi (1999) No. 87, 
December 6, 1999)  
 
 Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial 
Products (Ministry of Commerce, Notic e (2008) No. 83, January 1, 2009) 
 
 Notice Regarding Passing Down the 2009 First Batch Regular Trade Coke Export 
Quota (Ministry of Commerce, shangmaohan (2008) No. 140, January 1, 2009) 
 
 2009 Coke Export Quota Declaration Cond itions and Declaration Procedures 
(Ministry of Commerce, Notice (2008) No. 76, October 13, 2008) 
 
 Notice "2009 Export Licensing Management Commodities List" (Ministry of 
Commerce and General Administration of Customs, Notice (2008) No. 100, January 1, 2009) 
 
 Announcement of the Ministry of Commer ce Issuing the "2009 Graded License-
Issuing List of Commodities Subject to Export License Administration" (Ministry of 
Commerce, Notice (2008) No. 124, January 1, 2009)  
 
 Announcement Regarding Printing "Working Rules on Issuing Export Licenses" 
(Ministry of Commerce, shangpeifa (2008) No. 398, October 9, 2008)  
 
 Announcement of Ministry of Commerce on Matters regarding the First Bidding for 
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement 
(2008) No. 85, October 30, 2008) 
 
 Announcement of Ministry of Commerce on the Notice for the Second Invitation for 
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce, Announcement (2009) No. 42, June 9, 2009) 
 
 Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution 
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products" 
(Ministry of Foreign Trade and Economic C ooperation, issued on November 8, 2001) 
 
 Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for 
Export Commodity Quotas, December 11, 2008) 
 
 Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export 
Commodity Quotas, December 10, 2008) 
 
 Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export 
Commodity Quotas, December 11, 2008) 
 
 Announcement on the Second Invitation for the Bidding of Select Industrial Product 
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity 
Quotas, September 16, 2009) 
 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 170 
  
   Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for 
bid for Export Commodity Quotas, September 16, 2009) 
 
 Notice Regarding Passing Down the 2009 Second Batch Regular Trade Coke and 
Rare Earth Export Quota (Ministry of Commerce, shangzihan (2009) No. 73, 
September 8, 2009) 
 
 Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural 
and Industrial Products (Ministry of Commerce, Notice (2009) No. 88, October 29, 2009) 
 
 As well as any amendments or extensions; related measures; replacement measures; 
renewal measures; and implementing measures. 
   Mexico considers that these measures are incons istent with Article XI:1 of the GATT 1994 as 
well as China's obligations under the provisions of paragraph 1.2 of Part I of the Protocol on the 
Accession of the People's Republic of China (WT/L/432) ("Accession Protocol"), which incorporates 
commitments in paragraphs 162 and 165 of the Working Party Report on the Accession of China  
(WT/MIN(01)/3) ("Working Party Report").  
 
II. Export Duties 
  China subjects the materials to export duties.   
  China imposes export duty rates, "temporary" expo rt duty rates, and/or "special" export duty 
rates of various magnitudes on bauxite, coke, fluor spar, magnesium, manganese, silicon metal, yellow 
phosphorus, and zinc.  These export duties are imposed either on materials that are not listed in Annex 
6 of the Accession Protocol, or on materials that are listed in Annex 6 of the Accession Protocol, but 
at rates that exceed the maximum rates designated in Annex 6.  
  In addition, as discussed in Sec tion III below, China allocates the quotas
10 imposed on the 
exportation of bauxite, fluorspar, and silicon carbide  through a bidding system.  In connection with 
the administration of this bidding system, China requi res enterprises to pay a charge in order to export 
these materials.  However, bauxite, fluorspar, a nd silicon carbide are not listed in Annex 6 of the 
Accession Protocol.   Mexico understands that these Chinese measures are reflected in, among others: 
 
 Customs Law of the People's Republic of China (adopted at the 19
th Meeting of the 
Standing Committee of the Sixth Nationa l People's Congress on January 22, 1987, 
amended July 8, 2000) 
 
 Regulations of the People's Republic of Ch ina on Import and Export Duties (Order of 
the State Council (2003) No. 392, adopted at the 26th executive meeting of the State 
Council on October 29, 2003, January 1, 2004) 
 
 Notice Regarding the 2009 Tariff Implemen tation Program (State Council Tariff 
Policy Commission, shuiweihui (2008) No. 40, January 1, 2009) 
                                                      
10 Discussed in Section I above.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 171 
  
   
 Foreign Trade Law of the People's Republic of China (adopted at the 8
th Session of 
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004, 
promulgated on July 1, 2004)  
 
 Regulation of the People's Republic of China on the Administration of the Import and 
Export of Goods (passed at the forty-sixth executive meeting of the State Council on October 31, 2001, January 1, 2002) 
 
 Measures for the Administration of License for the Export of Goods (Order of the 
Ministry of Commerce (2008) No. 11, July 1, 2008) 
 
 Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of 
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001, 
January 1, 2002) 
 
 Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of 
Foreign Trade and Economic C ooperation, November 8, 2001)  
 
 Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial 
Products (Ministry of Commerce, Notic e (2008) No. 83, January 1, 2009) 
 
 Notice "2009 Export Licensing Management Commodities List" (Ministry of 
Commerce and General Administration of Customs, Notice (2008) No. 100, January 1, 2009) 
 
 Announcement of Ministry of Commerce on Matters regarding the First Bidding for 
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement 
(2008) No. 85, October 30, 2008) 
 
 Announcement of Ministry of Commerce on the Notice for the Second Invitation for 
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce, 
Announcement (2009) No. 42, June 9, 2009) 
 
 Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution 
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products" 
(Ministry of Foreign Trade and Economic C ooperation, issued on November 8, 2001) 
 
 Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for 
Export Commodity Quotas, December 11, 2008) 
 
 Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export 
Commodity Quotas, December 10, 2008) 
 
 Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export 
Commodity Quotas, December 11, 2008) 
 
 Announcement on the Second Invitation for the Bidding of Select Industrial Product 
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity 
Quotas, September 16, 2009) WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 172 
  
   
 Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for 
bid for Export Commodity Quotas, September 16, 2009) 
 
 Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural 
and Industrial Products (Ministry of Commerce, Notice (2009) No. 88, October 29, 2009) 
 
 As well as any amendments or extensions; related measures; replacement measures; 
renewal measures; and implementing measures. 
 
 Mexico considers that these measures are incons istent with paragraph 11.3 of Part I of the 
Accession Protocol, as well as China's obligations unde r the provisions of paragraph 1.2 of Part I of 
the Accession Protocol, which incorporates commitmen ts referred to in paragraph 342 of the Working 
Party Report.  III. Additional Restraints Imposed on Exportation 
 
 In addition to the export quotas and export du ties discussed in Sections I and II above, China 
imposes other restraints on the exportation of the mate rials, administers its measures in a manner that 
is not uniform, impartial, and reasonable, impo ses excessive fees and formalities on exportation, and 
does not publish certain measures pertaining to requi rements, restrictions, or prohibitions on exports. 
  China administers the export quotas imposed on bauxite, coke, fluorspar, silicon carbide, and 
zinc discussed in Section I above, through its mi nistries and other organizations under the State 
Council as well as chambers of commerce and industry associations, in a manner that restricts exports 
and is not uniform, impartial and reasonable.  In connection with the administration of the quotas for 
these materials, China imposes restrictions on the right of Chinese enterprises as well as foreign 
enterprises and individuals to export.   China allocates the export quotas imposed on bauxite, fluorspar, and silicon carbide discussed in Section I above, through a bidding system.  Chin a administers the requirements and procedures for 
this bidding system through its ministries and ot her organizations under the State Council as well as 
chambers of commerce and industry associations, in  a manner that restricts exports and is not 
uniform, impartial and reasonable.  In connection with the administration of this bidding system, 
China also requires foreign-invest ed enterprises to satisfy certain criteria in order to export these 
materials that Chinese enterprises n eed not satisfy. Further, China requires enterprises to pay a charge 
in order to export these materials that is  excessive and imposes excessive formalities on the 
exportation of these materials. 
  China does not publish the amount for the ex port quota for zinc or any conditions or 
procedures for applying entities to qualify to export zinc.  
 In addition, China restricts the exportation of bauxite, coke, fluorspar, manganese, silicon 
carbide, and zinc by subjecting these materials to non-automatic licensing.  China imposes the non-automatic export licensing for bauxite, coke, fluorsp ar, silicon carbide, and zinc in connection with 
the administration of the export quotas discussed in Section I, as an additional restraint on the exportation of those materials.     WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 173 
  
   China also imposes quantitative r estrictions on the exportation of the materials by requiring 
that prices for the materials meet or exceed a mini mum price before they may be exported.  Further, 
through its ministries and other organizations un der the State Council as well as chambers of 
commerce and industry associations, China admini sters the price requirements in a manner that 
restricts exports and is not uniform, impartial, a nd reasonable.  China also does not publish certain 
measures relating to these requirements in a manner that enables governments and traders to become 
acquainted with them.  
 Mexico understands that these Chinese measures are reflected in, among others: 
 
 Foreign Trade Law of the People's Republic of China (adopted at the 8
th Session of 
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004, 
promulgated on July 1, 2004) 
 
 Regulation of the People's Republic of China on the Administration of the Import and 
Export of Goods (passed at the forty-sixth executive meeting of the State Council on October 31, 2001, January 1, 2002) 
 
 Measures for the Administration of License for the Export of Goods (Order of the 
Ministry of Commerce (2008) No. 11, July 1, 2008) 
 
 Measures for the Administration of E xport Commodities Quotas (Order of the 
Ministry of Foreign Trade and Economic Cooperation No. 12, adopted on December 20, 2001, January 1, 2002) 
 
 Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of 
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001, 
January 1, 2002) 
 
 Measures for the Administration of the Organs for Issuing the Licenses of Import and 
Export Commodities (Ministry of Fore ign Trade and Econom ic Cooperation, 
waijingmaopeiguanhanzi (1999) No . 68, September 21, 1999) 
 
 Working Rules on Issuing Export Licenses (Ministry of Commerce, shangpeifa 
(2008) No. 398, October 9, 2008) 
 
 Rules on the Administration of Import and Export License Certificates (Ministry of 
Foreign Trade and Economic Cooperati on, waijingmaopeizi (1999) No. 87, 
December 6, 1999) 
 
 Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of 
Foreign Trade and Economic C ooperation, November 8, 2001)  
 
 Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial 
Products (Ministry of Commerce, Notic e (2008) No. 83, January 1, 2009) 
 
 Notice Regarding Passing Down the 2009 First Batch Regular Trade Coke Export 
Quota (Ministry of Commerce, shangmaohan (2008) No. 140, January 1, 2009) 
 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 174 
  
   2009 Coke Export Quota Declaration Cond itions and Declaration Procedures 
(Ministry of Commerce, Notice (2008) No. 76, October 13, 2008) 
 
 Notice "2009 Export Licensing Management Commodities List" (Ministry of 
Commerce and General Administration of Customs, Notice (2008) No. 100, January 1, 2009) 
 
 Announcement of the Ministry of Commer ce Issuing the "2009 Graded License-
Issuing List of Commodities Subject to Export License Administration" (Ministry of Commerce, Notice (2008) No. 124, January 1, 2009) 
 
 Announcement Regarding Printing "Working Rules on Issuing Export Licenses" 
(Ministry of Commerce, shangpeifa (2008) No. 398, October 9, 2008) 
 
 Announcement of Ministry of Commerce on Matters regarding the First Bidding for 
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement 
(2008) No. 85, October 30, 2008) 
 
 Announcement of Ministry of Commerce on the Notice for the Second Invitation for 
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce, Announcement (2009) No. 42, June 9, 2009) 
 
 Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution 
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products" 
(Ministry of Foreign Trade and Economic C ooperation, issued on November 8, 2001) 
 
 Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for 
Export Commodity Quotas, December 11, 2008) 
 
 Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export 
Commodity Quotas, December 10, 2008) 
 
 Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export 
Commodity Quotas, December 11, 2008) 
 
 Announcement on the Second Invitation for the Bidding of Select Industrial Product 
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity 
Quotas, September 16, 2009) 
 
 Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for 
Bid for Export Commodity Quotas, September 16, 2009) 
 
 Notice Regarding Passing Down the 2009 Second Batch Regular Trade Coke and 
Rare Earth Export Quota (Ministry of Commerce, ShangZiHan (2009) No. 73, 
September 8, 2009) 
 
 Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural 
and Industrial Products (Ministry of  Commerce, Notice (2009) No. 88, 
October 29, 2009) 
  WT/DS394/AB/R 
 WT/DS395/AB/R 
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 Page 175 
  
   Charter of the China Chamber of Commerc e of Metals, Minera ls and Chemicals 
Importers and Exporters 
 
 Charter of the China Coking Industry Association 
 
 Measures for the Administration over Foreign Trade and Economic Social 
Organizations (Ministry of Foreign Trade and Economic Cooperation, 
February 26, 1991) 
 
 Notice Regarding Printing and Distributi on of Several Regulations for Personnel 
Management of Chambers of Commerce fo r Importers and Exporters (Ministry of 
Foreign Trade and Economic Cooperation, September 23, 1994) 
 
 Interim Regulations of the Ministry of Foreign Trade and Ec onomic Cooperation on 
Punishment for Conduct at Exporting at Lower-than-Normal Price (Ministry of Foreign Trade and Economic Cooperation, March 20, 1996)  
 
 Notice Regarding Rules for Contract Declaration for Chemicals-Related Verification 
and Stamp Products (China Chamber of Commerce of Metals, Minerals and 
Chemicals Importers and E xporters Petroleum and Chem icals Products Department, 
December 30, 2003) 
 
 Online Verification and Certification Oper ating Steps (China Chamber of Commerce 
of Metals, Minerals and Chemicals Importers and Exporters) 
 
 Rules for Coordination with Respect to Cu stoms Price Review of Export Products, 
(Ministry of Foreign Trade and Economic Cooperation guanzonghanzi No. 21, 1997)  
 
 Notice of the Rules on Price Reviews of Export Products by the Customs, (Ministry 
of Foreign Trade and Economic C ooperation guanzonghanzi No. 21, 1997) 
 
 Notice on the Issuance of "Various Provisions on the Strengthening of Export Product 
Coordination and Management" (Ministry of  Foreign Economic Relations and Trade, 
jinchufa (1991) No. 52, February 22, 1991) 
 
 "Various Provisions on the Strengtheni ng of Export Product Coordination and 
Management" (Ministry of Foreign Economic  Relations and Trade, jinchufa (1991) 
No. 52, February 22, 1991) 
 
 Decision of the State Council on Various Questions on the Further Reform and 
Improvement of the Foreign Trade System (State Council, guofa (1990) No. 70, January 1, 1991) 
 
 As well as any amendments or extensions; related measures; replacement measures; 
renewal measures; and implementing measures. 
 
 Mexico considers that these measures are inc onsistent with Article VIII:1(a) and VIII:4, 
Article X:1 and X:3(a), and Article XI:1 of the GAT T 1994 and paragraphs 2(A)2, 5.1, 5.2 and 8.2 of 
Part I of the Accession Protocol, as well as China's obligations under the provis ions of paragraph 1.2 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
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  of Part I of the Accession Protocol, which incor porates commitments in paragraphs 83, 84, 162, and 
165 of the Working Party Report.  
 
 Accordingly, Mexico respectfully requests that , pursuant to Article 6 of the DSU, the Dispute 
Settlement Body establish a panel to examine this ma tter, with the standard terms of reference as set 
out in Article 7.1 of the DSU.   
_______________  WT/DS394/AB/R 
 WT/DS395/AB/R 
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  ANNEX IV 
 
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 WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 178 
  
  Report, that Section III of the Complainants' Panel Requests
1 complies with the requirement to 
"provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly". 
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. APPEAL 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 . 
                                                      
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). 
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/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 179 
  
  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. 
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.   WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 180 
  
  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. 
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. 
_______________  WT/DS394/AB/R 
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 Page 181 
  
  ANNEX V 
 
WORLD TRADE  
ORGANIZATION   
WT/DS394/12 
12 September 2011 
 
 (11-4373) 
 Original:   English 
 
 
 
CHINA – MEASURES RELATED TO THE EXPORTATION 
OF VARIOUS RAW MATERIALS 
 
Notification of an Other Appeal by the United States 
under Article 16.4 and Article 17 of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 23(1) of the Working Procedures for Appellate Review  
 
 
 The following notification, dated 6 September 2011, from the Delegation of the United States, 
is being circulated to Members.  
_______________ 
 
 
Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and Rule 23 of the  Working Procedures for Appellate Review , the 
United States hereby notifies its decision to appeal  to the Appellate Body certain issues of law 
covered in the Report of the Panel in China – Measures Related to the Exportation of Various Raw 
Materials  (WT/DS394/R) ("Panel Report") and certain lega l interpretations developed by the Panel. 
 
1. The United States seeks review by the Appellate  Body of the Panel's legal conclusion that 
China's requirement that enterprises pay a quota a llocation fee (also referred to as the total award 
price or bid-winning price) in order to export bauxite, fluorspar, and silic on carbide under its export 
quota regime
1 is not inconsistent with Article VIII:1(a) of the General Agreement on Tariffs and 
Trade 1994  or Paragraph 11.3 of China's Protocol of  Accession to the WTO.  These conclusions are 
in error and are based on erroneous findings on issu es of law and legal interpretations of the fees and 
charges subject to Article VIII.2  The United States requests the Appe llate Body to reverse the Panel's 
legal interpretation and conclusion and to find that  China's requirement that enterprises pay a total 
award price in order to export bauxite, fluorspar, and silicon carbide under its export quota regime is 
inconsistent with Article VIII:1(a) of the GA TT 1994 and Paragraph 11.3 of China's Protocol of 
Accession to the WTO. 
                                                      
1See Panel Report, Section VII.C.2(b).  Relevant legal instruments include the Import and Export 
Regulations , Quota Bidding Measures , Quota Bidding Implementation Rules , 2009 First Round Fluorspar 
Bidding Procedures , 2009 First Round Bauxite Bidding Procedures , and 2009 First Round Silicon Carbide 
Bidding Procedures . 
2See, e.g. , Panel Report, paras. 7.827-7.839, 7.844-7.851, 7.859-7.861, and 8.4(e). WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 182 
  
   
2. The United States also seeks conditional review by the Appellate Body relating to the Panel's 
recommendations.  If the Appellate Body, pursuant to  China's appeal of the Panel's "recommendation 
with respect to the 'series of measures' that  have an ongoing effect through annual replacement 
measures,"
3 were to grant China's request to "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 replacement 
measures,"4 and if the Appellate Body were to find that no recommendation should have been made 
on the "series of measures" as they existed as of the date of panel establishment, then the 
United States would seek review of the Panel's legal interpretation5 and conclusion6 not to make a 
recommendation on the export quota and export duty measures that were annually recurring and in 
effect on the date of panel establishment, i.e., December 21, 2009, but that subsequently were 
replaced or superseded by other legal instruments.  In that event, the United States would contend that 
this interpretation and conclusion are in error a nd based on erroneous findings on issues of law and 
related legal interpretations of Ar ticles 6.2, 7.1, 11, and 19.1 of the DSU.  The United States would 
request the Appellate Body to reverse the Panel' s legal conclusion and to make the recommendation 
provided for in DSU Article 19.1.  However, the Appe llate Body would not need  to review this legal 
interpretation and conclusion if the condition precedent to this appeal is not met. 
  
_______________ 
                                                      
3See China's Appellant Submission, Section III. 
4China's Appellant Submission, para. 167. 
5See, e.g.,  Panel Report, paras. 7.26-7.32. 
6See, e.g.,  Panel Report, paras. 7.33(d), 8.8.  WT/DS394/AB/R 
 WT/DS395/AB/R 
 WT/DS398/AB/R 
 Page 183 
  
  ANNEX VI 
 
WORLD TRADE  
ORGANIZATION   
WT/DS395/12 
12 September 2011 
 
 (11-4371) 
 Original:   English 
 
 
 
CHINA – MEASURES RELATED TO THE EXPORTATION 
OF VARIOUS RAW MATERIALS 
 
Notification of an Other Appeal by the European Union 
under Article 16.4 and Article 17 of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 23(1) of the Working Procedures for Appellate Review  
 
 
 The following notification, dated 6 Se ptember 2011, from the Delegation of the 
European Union, is being circulated to Members.  
_______________ 
 
 
 Pursuant to Article 16.4 and Article 17 of the DSU, the European Union hereby notifies to the 
Dispute Settlement Body its decision to appeal to th e Appellate Body certain issues of law covered in 
the Report of the Panel and certain legal interpreta tions developed by the Panel in its Report in the 
dispute China – Measures relating to the ex portation of various Raw Materials  (WT/DS395/R). 
Pursuant to Rule 23(1) of the Working Procedures for Appellate Review , the European Union 
simultaneously files this Notice of Other App eal with the Appellate Body Secretariat. 
  For the reasons to be further elaborated in  its submissions to the Appellate Body, the 
European Union appeals, and requests the Appellate  Body to reverse and/or modify the findings, 
conclusions and recommendations of the Panel, with  respect to the following errors of law and legal 
interpretations containe d in the Panel Report.
1 
 
I. THE EUROPEAN UNION NEVER REQUESTED THE PANEL "NOT TO MAKE FINDINGS OR 
RECOMMENDATIONS ON THE LEGAL INSTRUMENTS TAKING EFFECT ON 1 JANUARY 
2010".   THE EUROPEAN UNION NEVER "NARROWED THE PANEL 'S TERMS OF 
REFERENCE DURING THE COURSE OF THE PROCEEDINGS ". 
 
                                                      
1Pursuant to Rule 23(2)(c)(ii)(C) of the Working Procedures for Appellate Review  this Notice of Other 
Appeal includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice to the ability of the European Union to refer to other paragraphs of the Panel Report in the context of 
its appeal. WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 184 
  
  (a) In paragraph 7.21 of its Report, the Pane l found that the European Union requested 
the Panel not to make findings or reco mmendations on the legal instruments taking 
effect on 1 January 2010.  In paragraph 7. 22 of its Report, the Panel found that the 
European Union narrowed the Panel's terms of reference during the course of the 
proceedings.  The Panel makes reference to these erroneous findings in various other 
paragraphs of its Report,  such as paragraph 7.24. 
 
(b) In reaching these erroneous legal interp retations and findings, the Panel acted 
inconsistently with its obligations unde r Articles 7.1, 11 and 19.1 of the DSU. 
 
(c) The European Union appeals these erroneous Panel legal interpretations and findings 
and requests the Appellate Body to reverse them.  The European Union also requests 
the Appellate Body to complete the analysis  and find that the relevant measures are 
inconsistent with China's obligations  under the covered agreements and to 
recommend that China brings its measures in to compliance with its WTO obligations. 
  
_______________  WT/DS394/AB/R 
 WT/DS395/AB/R 
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 Page 185 
  
  ANNEX VII 
 
WORLD TRADE  
ORGANIZATION   
WT/DS398/11 
12 September 2011 
 
 (11-4372) 
 Original:   English 
 
 
 
CHINA – MEASURES RELATED TO THE EXPORTATION 
OF VARIOUS RAW MATERIALS 
 
Notification of an Other Appeal by Mexico 
under Article 16.4 and Article 17 of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 23(1) of the Working Procedures for Appellate Review  
 
 
 The following notification, dated 6 Septembe r 2011, from the Delegation of Mexico, 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 23(1) of the Working Procedures for Appellate Review , 
Mexico hereby notifies its decision to appeal to th e Appellate Body certain issues of law covered in 
the Panel Report on China – Measures Related To The Ex portation Of Various Raw Materials 
(WT/DS398)  ("Panel Report"), and certain le gal interpretations developed by  the Panel in this dispute. 
 
2. Pursuant to Rule 23(2)(c)(ii) of the  Working Procedures for Appellate Review , this notice of 
appeal includes and indicative list of the paragraphs  of the Panel Report cont aining the alleged errors, 
without prejudice to Mexico's ability to refer to othe r paragraphs of the Panel Report in the context of 
this appeal. 
 
I. Conditional Appeal of the Panel's Recommendations on Annual Export Quota and 
 Export  Duty Measures 
 
3. Mexico also seeks conditional review by the Appellate Body relating to the Panel's 
recommendations.  If the Appellate Body, pursuant to  China's appeal of the Panel's "recommendation 
with respect to the 'series of measures' that  have an ongoing effect through annual replacement 
measures,"1 were to grant China's request to "reverse the Panel's recommendations in paragraphs 8.8; 
8.15 and 8.22 of the Panel Report to the exte nt that they apply to replacement measures,"2 and if the 
Appellate Body were to find that no recommenda tion should have been made on the "series of 
                                                      
1See China's Appellant Submission, Section III. 
2China's Appellant Submission, para. 167. WT/DS394/AB/R 
WT/DS395/AB/R WT/DS398/AB/R 
Page 186 
  
  measures" as they existed as of the date of panel est ablishment, then Mexico would seek review of the 
Panel's legal interpretation3 and conclusion4 not to make a recommendation on the export quota and 
export duty measures that were annually recurring a nd in effect on the date of panel establishment, 
i.e., December 21, 2009, but that subsequently we re replaced or superseded by other legal 
instruments.  In that event, Mexico would contend that this interpretation and conclusion are in error 
and based on erroneous findings on issues of law and re lated legal interpretations of Articles 6.2, 7.1, 
11, and 19.1 of the DSU.  Mexico would request the Appellate Body to reverse the Panel's legal 
conclusion and to make the recommendation provid ed for in DSU Article 19.1.  However, the 
Appellate Body would not need to review this legal interpretation and conclusion if the condition 
precedent to this appeal is not met.  
II. Appeal of the Panel Conclusion that China's Administration of its Export Quota 
through the Involvement of the CCCMC Complied With Article X:3(a) of GATT 1994 
 
4. Mexico appeals various elements of the Pa nel's findings under Article X:3(a) of the 
GATT 1994 regarding the involvement of the China Chamber of Commerce on Metals, Minerals in 
the administration of export quotas.  5. Mexico addresses the following errors in th e Panel's findings and conclusions concerning 
China's an CCCMC's administration of quotas
5: 
 
a) First, the Panel erred in its interpretati on of Article X:3(a) as requiring complainants 
to demonstrate, in an as such claim, that  a challenged measure must necessarily lead 
to partial and/or unreasonable administration of export quotas. 
b) Second, the Panel erred in its interpreta tion of Article X.3(a) requiring evidence of 
partiality/unreasonableness when complainants  argue that a measure is inherently 
partial/ unreasonable.  Proper interpretation of Article X:3(a) leads to the conclusion 
that China's delegation of authority to CCCMC is inherently partial/unreasonable. 
c) Third, the Panel failed to make an objective assessment of the facts of the case as 
required by Article 11 of the DSU with respect to the role of CCCMC in the quota 
process.  The CCCMC Secretariat's role in administering quotas is much more than 
purely administrative in nature.  Specifi cally, the CCCMC gains access to confidential 
business information on applicants, exercises discretion in determining qualifying applicants, and is the sole verifier of certain eligibility data. 
6. As a result, Mexico requests that the Appe llate Body reverse the Panel's findings and 
conclusions at, e.g., paragraphs 7.784-7.787, 7.7 95-7.797, 8.18 c) and d) of the Panel Report. 
  
__________ 
 
                                                      
3See, e.g.,  Panel Report, paras. 7.26-7.32. 
4See, e.g.,  Panel Report, paras. 7.33(d), 8.22. 
5See Panel Report, paras. 7.774-7.797.