CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Document: Request for the Establishment of a Panel by Japan
Date: 29 June 2012
Document codes: WT/DS433/6
Complainant: Japan
Respondent: China
Third parties: Brazil, Canada, Colombia, EU, India, South Korea, Norway, Oman, Saudi Arabia, Taiwan, U.S., Vietnam, Argentina, Australia, Indonesia, Turkey, Peru, Russia
Dispute stage: Appellate Body
Agreements cited: Art. XI:1  GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1,   Protocol of AccessionArt. X:3(a)  GATT 1994

CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM

Request for the Establishment of a Panel by Japan

 The following communication, dated 27 June 2012, from the delegation of Japan to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 On 13 March 2012, Japan 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 restrictions on the
exportation from China of various forms of rare earths
1, tungsten 2 and molybdenum 3. Japan held
consultations with China on 25 and 26 April 2012. Those consultations unfortunately did not resolve
the dispute.

I. EXPORT DUTIES
 China subjects various forms of rare earths
4, tungsten 5 and molybdenum 6 to export duties.
These materials are not listed in Annex 6 of the Pr otocol on the Accession of the People's Republic of
China (WT/L/432) ("Accession Protocol").

1 Forms of rare earths include, but are not limited to, items falling under the eight-digit Chinese
Customs Commodity Codes identified in the Announcement No. 27 Issuing the 2012 Tariff Implementation
Program (State Council Customs Tariff Commission, shuiweihui, No. 27, issued 9 December 2011, effective
1 January 2012) (h ereinafter, the 2012 Tariff Implementation Program) as listed in Annex 1 Section A. Forms
of rare earths also include, but are not limited to, items falling under the 10-digit Chinese Customs Commodity
Codes identified in the Notice on Issuing the "2012 Export Licensing Management Commodities List", Ministry
of Commerce and General Administration of Customs Notice No. 98 (30 December 2011) (hereinafter, the 2012
Export Licensing Management Commodities List) as listed in Annex 1 Section B.
2 Forms of tungsten include, but are not limited to, items falling under the eight-digit Chinese Customs
Commodity Codes identified in the 2012 Tariff Implementation Program as listed in Annex 2 Section A. Forms
of tungsten also include, but are not limited to, items falling under the 10-digit Chinese Customs Commodity
Codes identified in the 2012 Export Licensing Management Commodities List as listed in Annex 2 Section B.
3 Forms of molybdenum include, but are not limited to, items falling under the eight-digit Chinese
Customs Commodity Codes identified in the 2012 Tariff Implementation Program as listed in Annex 3 Section
A. Forms of molybdenum also include, but are not limited to, items falling under the 10-digit Chinese Customs
Commodity Codes identified in the 2012 Export Licensing Management Commodities List as listed in Annex 3
Section B.
4 As listed in Annex 1 Section A.
5 As listed in Annex 2 Section A.
6 As listed in Annex 3 Section A.

Japan understands that these Chinese measures are reflected in the following:

 Customs Law of the People's Republic of China (adopted at the 19
th Meeting of the
Standing Committee of the Sixth National People's Congress on 22 January 1987,
amended 8 July 2000)
 Regulations of the People's Republic of China on Import and Export Duties (Order of the
State Council No. 392, adopted at the 26 th executive meeting of the State Council on
29 October 2003, effective 1 January 2004)
 Announcement No. 27 Issuing the "2 012 Tariff Implementation Program" (State Council
Customs Tariff Commission, shuiweihui, No. 27, issued 9 December 2011, effective
1 January 2012)
 Announcement No. 79 Regarding the " 2012 Tariff Implementation Program" (General
Administration of Customs, No.79, issued 22 December 2011, effective 1 January 2012)
 as well as any annexes or schedules thereto, amendments, supplements, or extensions;
replacement measures; renewal measures; and implementing measures.
 Japan considers that these measures are incons istent with Paragraph 11.3 of Part I of the
Accession Protocol because these measures constitute taxes and charges applied to exports.

II. EXPORT QUOTAS

 China subjects the exportation of various forms of rare earths 7, tungsten8 and molybdenum 9
to quantitative restrictions such as quotas.

 Japan understands that these Chinese me asures are reflected in the following:

 Foreign Trade Law of the People's Republic of China (adopted as amended at the 8
th
Session of the Standing Committee of the Tenth National People's Congress on 6 April
2004, effective 1 July 2004)
 Regulation of the People's Republic of China on the Administration of the Import and
Export of Goods (Order of the State Council No. 332, adopted at the forty-sixth executive
meeting of the State Council on 31 October 2001, effective 1 January 2002)
 Measures for the Administration of Export Commodities Quotas (Order of the Ministry of
Foreign Trade and Economic Cooperation No. 12, issued on 20 December 2001, effective
1 January 2002)
 Measures for the Administration of the Organs for Issuing the Licenses of Import and
Export Commodities (Ministry of Foreign Trade and Economic Cooperation,
waijingmaopeiguanhanzi, No. 68, 21 September 1999, amended 12 September 2010)
 Measures for the Administration of Licensing for the Export of Goods (Order of the
Ministry of Commerce No. 11, adopted 7 May 2008, effective 1 July 2008)

7 As listed in Annex 1 Section B.
8 As listed in Annex 2 Section B.
9 As listed in Annex 3 Section B.

 Working Rules on Issuing Export Licenses (Ministry of Commerce, shangpeifa No. 398, 9
October 2008)
 Rules on the Administration of Import and Export License Certificates (Ministry of
Commerce, shangwubuling, No. 1, issued 4 February 2012, effective 5 March 2012)
 Notice on Issuing the "2012 Export Li censing Management Commodities List" (Ministry
of Commerce and General Administration of Customs Notice No. 98, 30 December 2011)
 Announcement Issuing the "2012 Graded Licen se-Issuing List of Commodities Subject to
Export License Administration" (Ministry of Commerce No. 103, 31 December 2011,
effective 1 January 2012)
 2012 Notice on the Total Export Quota Quantity for Agricultural and Industrial Products
in 2012 (Ministry of Commerce No. 71, issued 31 October 2011, effective 1 January
2012)
 Notice Publishing the List of Enterprise Appl ying for the Export Quota for Rare Earths
and Coke in 2012 (Ministry of Commerce, 14 December 2011)
 Notice Publishing the List of the State Trading Export Enterprises of Tungsten, Antimony
and Silver, the Enterprises Exporting and Supplying Tungsten and Antimony, and the
Enterprises of Applying for the Export Quot as for Indium and Molybdenum in 2012 ,
(Ministry of Commerce, 14 December 2011)
 2012 Notice on List of Rare Earth Export Enterprises and First-batch Rare Earth Export
Quota (Ministry of Commerce, shangmaohan, No. 1133, 26 December 2011)
 2012 Notice on List of Export (Supply) Enterprises and First-batch Export Quota of
Tungsten, Antimony and Other Nonferrous Metals (Ministry of Commerce, shangmaohan,
No. 1131, 26 December 2011)
 Announcement on 2012 Applica tion Conditions and Procedu res for Qualification for
Rare Earth Export Quota (Ministry of Commerce, No. 77, 11 November 2011)
 Announcement Regarding the Qualification Standards of State Owned Tungsten,
Antimony and Silver Trade and Enterprises, Tungsten and Antimony Export and Supply
Enterprises and Declaration Procedures in 2012 (Ministry of Commerce, No. 80,
11 November 2011)
 Announcement on Application Conditions and Procedures for 2012 Indium, Molybdenum
and Tin Export Quotas (Ministry of Commerce No. 79, 11 November 2011)
 Notice on the Supplement to the 2012 First Batch of Rare Earth Export Quota (Ministry
of Commerce No. 618, 16 May 2012)
 as well as any annexes or schedules thereto, amendments, supplements, or extensions;
replacement measures; renewal measures; and implementing measures.
 Japan considers that these measures are incons istent with Article XI:1 of the GATT 1994 and
China's obligations under the provisions of Paragra ph 1.2 of Part I of the 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 Repor t"), because these meas ures constitute export
restrictions other than duties, taxes or other charges.

II. EXPORT QUOTA ADMINISTRATION AND ALLOCATION
 With respect to the administration and the a llocation, including through export licensing, of
the export quotas on various forms of rare earths
10, tungsten11 and molybdenum12:

1) China imposes restrictions on the trading ri ghts of enterprises seeking to export various forms
of rare earths and molybdenum, such as prior export performance and minimum registered capital
requirements.

Japan understands that these Chinese measures are reflected in the following:

 Foreign Trade Law of the People's Republic of China (adopted as amended at the 8
th
Session of the Standing Committee of the Tenth National People's Congress on
6 April 2004, effective 1 July 2004)

 Regulation of the People's Republic of China on the Administration of the Import and
Export of Goods (Order of the State Council No. 332, adopted at the forty-sixth
executive meeting of the State Council on 31 October 2001, effective 1 January 2002)

 Measures for the Administration of Export Commodities Quotas (Order of the Ministry
of Foreign Trade and Economic Cooperation No. 12, issued on 20 December 2001,
effective 1 January 2002)
 Measures for the Administration of Licensing for the Export of Goods (Order of the
Ministry of Commerce No. 11, adopted 7 May 2008, effective 1 July 2008)
 Measures for the Administration of the Or gans for Issuing the Licenses of Import and
Export Commodities (Ministry of Foreign Trad e and Economic Cooperation,
waijingmaopeiguanhanzi, No. 68, 21 September 1999, amended 12 September 2010)
 Working Rules on Issuing Export Licenses (Ministry of Commerce, shangpeifa No. 398,
9 October 2008)
 Rules on the Administration of Import and Export License Certificates (Ministry of
Commerce, shangwubuling, No. 1, issued 4 February 2012, effective 5 March 2012)
 Notice on Issuing the "2012 Export Licensing Management Commodities List" (Ministry
of Commerce and General Administration of Customs Notice No. 98, 30
December 2011)
 Announcement Issuing the "2012 Graded License-Issuing List of Commodities Subject to
Export License Administration " (Ministry of Commerce, No. 103, 31 December 2011,
effective 1 January 2012)

10 As listed in Annex 1 Section B.
11 As listed in Annex 2 Section B.
12 As listed in Annex 3 Section B.

 2012 Notice on the Total Export Quota Quantity for Agricultural and Industrial Products
in 2012 (Ministry of Commerce No. 71, issued 31 October 2011, effective
1 January 2012)
 Notice Publishing the List of Enterprise Applying for the Export Quota for Rare Earths
and Coke in 2012 (Ministry of Commerce, 14 December 2011)
 Notice Publishing the List of the State Trading Export Enterprises of Tungsten, Antimony
and Silver, the Enterprises Exporting and Sup plying Tungsten and Antimony, and the
Enterprises of Applying for the Export Quotas for Indium and Molybdenum in 2012 ,
(Ministry of Commerce, 14 December 2011)
 2012 Notice on List of Rare Earth Export Enterprises and First-batch Rare Earth Export
Quota (Ministry of Commerce, shangmaohan, No. 1133, 26 December 2011)
 2012 Notice on List of Export (Supply) Enterprises and First-batch Export Quota of
Tungsten, Antimony and Other Nonferrous Metals (Ministry of Commerce,
shangmaohan, No. 1131, 26 December 2011)
 Announcement on 2012 Applica tion Conditions and Procedu res for Qualification for
Rare Earth Export Quota (Ministry of Commerce, No. 77, 11 November 2011)
 Announcement on Application Conditions and Procedures for 2012 Indium, Molybdenum
and Tin Export Quotas (Ministry of Commerce No. 79, 11 November 2011)
 Notice on the Supplement to the 2012 First Batch of Rare Earth Export Quota (Ministry
of Commerce No. 618, 16 May 2012)
 as well as any annexes or schedules thereto, amendments, supplements, or extensions;
replacement measures; renewal measures; and implementing measures.
Japan considers that these measures are inconsis tent with Paragraph 5.1 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 commitmen ts in paragraphs 83 a nd 84 of the Working
Party Report, because these measures limit the right to trade.

2) China administers these export quotas on va rious forms of rare earths, tungsten and
molybdenum in a manner that is not uniform, impartial, or reasonable, such as by the use of criteria in
the application and allocation process that lack definition or do not contain sufficient guidelines or
standards in how they should be applied.

Japan understands that the export quotas are administered through the following:

 Foreign Trade Law of the People's Republic of China (adopted as amended at the 8
th
Session of the Standing Committee of the Tenth National People's Congress on
6 April 2004, effective 1 July 2004)
 Regulation of the People's Republic of China on the Administration of the Import and
Export of Goods (Order of the State Council No. 332, adopted at the forty-sixth
executive meeting of the State Council on 31 October 2001, effective 1 January 2002)

 Measures for the Administration of Export Commodities Quotas (Order of the Ministry
of Foreign Trade and Economic Cooperation No. 12, issued on 20 December 2001,
effective 1 January 2002)
 Measures for the Administration of Licensing for the Export of Goods (Order of the
Ministry of Commerce No. 11, adopted 7 May 2008, effective 1 July 2008)
 Measures for the Administration of the Or gans for Issuing the Licenses of Import and
Export Commodities (Ministry of Foreign Trad e and Economic Cooperation,
waijingmaopeiguanhanzi, No. 68, 21 September 1999, amended 12 September 2010)
 Working Rules on Issuing Export Licenses (Ministry of Commerce, shangpeifa No. 398,
9 October 2008)
 Rules on the Administration of Import and Export License Certificates (Ministry of
Commerce, shangwubuling, No. 1, issued 4 February 2012, effective 5 March 2012)
 Notice on Issuing the "2012 Export Licensing Management Commodities List" (Ministry
of Commerce and General Administration of Customs Notice No. 98, 30
December 2011)
 Announcement Issuing the "2012 Graded License-Issuing List of Commodities Subject to
Export License Administration" (Ministry of Commerce No. 103, 31 December 2012)
 2012 Notice on the Total Export Quota Quantity for Agricultural and Industrial Products
in 2012 (Ministry of Commerce No. 71, issued 31 October 2011, effective 1 January
2012)
 Notice Publishing the List of Enterprise Applying for the Export Quota for Rare Earths
and Coke in 2012 (Ministry of Commerce, 14 December 2011)
 Notice Publishing the List of the State Trading Export Enterprises of Tungsten, Antimony
and Silver, the Enterprises Exporting and Sup plying Tungsten and Antimony, and the
Enterprises of Applying for the Export Quotas for Indium and Molybdenum in 2012 ,
(Ministry of Commerce, 14 December 2011)
 2012 Notice on List of Rare Earth Export Enterprises and First-batch Rare Earth Export
Quota (Ministry of Commerce, shangmaohan, No. 1133, 26 December 2011)
 2012 Notice on List of Export (Supply) Enterprises and First-batch Export Quota of
Tungsten, Antimony and Other Nonferrous Metals (Ministry of Commerce,
shangmaohan, No. 1131, 26 December 2011)
 Announcement on 2012 Applica tion Conditions and Procedu res for Qualification for
Rare Earth Export Quota (Ministry of Commerce, No. 77, 11 November 2011)

 Announcement Regarding the Qualificati on Standards of State Owned Tungsten,
Antimony and Silver Trade and Enterprises, Tungsten and Antimony Export and Supply
Enterprises and Declaration Procedures in 2012 (Ministry of Commerce, No. 80,
11 November 2011)

 Announcement on Application Conditions and Procedures for 2012 Indium, Molybdenum
and Tin Export Quotas (Ministry of Commerce No. 79, 11 November 2011)
 Notice on the Supplement to the 2012 First Batch of Rare Earth Export Quota (Ministry
of Commerce No. 618, 16 May 2012)
 as well as any annexes or schedules thereto, amendments, supplements, or extensions;
replacement measures; renewal measures; and implementing measures.
Japan considers that China's administration of the export quotas is inconsistent with
Article X:3(a) of the GATT 1994 and Paragraph 2(A)(2) of Part I of the Accession Protocol because it
is done in a manner that is not uniform, impartial, or reasonable.

 Accordingly, Japan respectfully requests that, pur suant 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.

Annex 1

Rare earths

Section A
(List of Chinese Customs Commodity Codes iden tified in the 2012 Tariff Implementation
Program13)

25309020
26122000
28053011
28053012
28053013
28053014
28053015
28053016
28053017
28053019
28053021
28053029
28461010
28461020
28461030
28461090
28469011
28469012
28469013
28469014
28469015
28469016
28469017
28469019
28469021
28469022
28469023
28469024
28469025
28469026
28469028
28469029
28469031
28469032
28469033
28469034
28469035
28469036
28469039
28469041
28469042
28469043
28469044
28469045
28469046
28469048
28469049
28469091
28469092
28469093
28469094
28469095
28469096
28469099
72029911
72029919
72029991
72029999

Section B
(List of Chinese Customs Commodity Codes id entified in the 2012 Export Licensing
Management Commodities List14)

2530902010
2530902090
2612200000
2805301100
2805301200
2805301300
2805301400
2805301510
2805301590
2805301600
2805301700
2805301913
2805301914
2805301915
2805301990
2805302110
2805302190
2805302910
2805302990
2846101000
2846102000
2846103000
2846109010
2846109090
2846901100
2846901200
2846901300
2846901400
2846901500
2846901600
2846901700
2846901920
2846901930
2846901940
2846901970
2846901980
2846901991
2846901992
2846901999
2846902100
2846902200
2846902300
2846902400
2846902500
2846902600
2846902810
2846902890
2846902900
2846903100
2846903200
2846903300
2846903400
2846903500
2846903600
2846903900
2846904100
2846904200
2846904300
2846904400
2846904500
2846904600
2846904810
2846904890
2846904900
2846909100
2846909200
2846909300
2846909400
2846909500
2846909600
2846909910
2846909990
7202999110
7202999191
7202999199

13 Announcement No. 27 Issuing the 2012 Tariff Implementation Program (State Council Customs
Tariff Commission, shuiweihui, No. 27, issued 9 December 2011, effective 1 January 2012).
14 Notice on Issuing the "2012 Export Licensing Management Commodities List ," Ministry of
Commerce and General Administration of Customs Notice No. 98 (30 December 2011).

Annex 2

Tungsten

Section A
(List of Chinese Customs Commodity Codes iden tified in the 2012 Tariff Implementation
Program15)

26209910
28259011
28259012
28259019
28418010
28418020
28418030
28418040
28418090
28499020
72028010
72028020
81011000
81019400
81019700

Section B
(List of Chinese Customs Commodity Codes id entified in the 2012 Export Licensing
Management Commodities List16)

2611000000
2620991000
2825901100
2825901200
2825901910
2841801000
2841802000
2841803000
2841804000
2849902000
8101100010
8101100090
8101940000
8101970000

15 Announcement No. 27 Issuing the 2012 Tariff Implementation Program (State Council Customs
Tariff Commission, shuiweihui, No. 27, issued 9 December 2011, effective 1 January 2012).
16 Notice on Issuing the "2012 Export Licensing Management Commodities List ," Ministry of
Commerce and General Administration of Customs Notice No. 98 (30 December 2011).

Annex 3

Molybdenum

Section A
(List of Chinese Customs Commodity Codes iden tified in the 2012 Tariff Implementation
Program17)

26131000
26139000
28257000
28417010
28417090
72027000
81021000
81029400
81029700

Section B
(List of Chinese Customs Commodity Codes id entified in the 2012 Export Licensing
Management Commodities List18)

2613100000
2613900000
2825700000
2841701000
2841709000
7202700000
8102100000
8102940000
8102970000

Tariff Commission, shuiweihui, No. 27, issued 9 December 2011, effective 1 January 2012).
18 Notice on Issuing the "2012 Export Licensing Management Commodities List ," Ministry of
Commerce and General Administration of Customs Notice No. 98 (30 December 2011).