CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS
Document: 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
Date: 12 September 2011
Document codes: WT/DS394/12
Complainant: U.S.
Respondent: China
Third parties: Argentina, Brazil, Canada, Chile, Colombia, Ecuador, EU, India, Japan, South Korea, Mexico, Norway, Taiwan, Turkey, Saudi Arabia
Dispute stage: Appellate Body
Agreements cited: Art. VIII:1, VIII:4, X:1, X:3, XI:1  GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, Part I, para. 8.2,   Protocol of Accession

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 () ("Panel Report") and certain legal 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.

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 interpretation 5 and conclusion 6 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.

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.