. /.  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. 
 
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 
                                                      
1See Panel Report, Section VII.C.2(b).  Re levant 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). 
3See China's Appellant Submission, Section III. WT/DS394/12 
Page 2  
 
  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 A ppellate Body would not need  to review this legal 
interpretation and conclusion if the condition precedent to this appeal is not met. 
  
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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.