CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM AB-2014-3 AB-2014-5 AB-2014-6
Document: AB-2014-6 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/DS431/ABR; WT/DS432/AB/R; and WT/DS433/AB/R. The cover page, preliminary pages, sections 1 through 5, and the annexes are common to all three Reports. The page header throughout the document bears the three document symbols WT/DS431/ABR; WT/DS432/AB/R; and WT/DS433/AB/R, with the following exceptions: section 6 on pages US-154 to US-155, which bears the document symbol for and contains the Appellate Body's conclusions and recommendations in the Appellate Body Report WT/DS431/AB/R; section 6 on pages EU-156 to EU-157, which bears the document symbol for and contains the Appellate Body's conclusions and recommendations in the Appellate Body Report WT/DS432/AB/R; and section 6 on pages JPN-158 to JPN-159, which bears the document symbol for and contains the Appellate Body's conclusions and recommendations in the Appellate Body Report WT/DS433/AB/R.
Date: 7 August 2014
Document codes: WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R; WT/DS431/ABR; WT/DS432/AB/R; WT/DS433/AB/R.; WT/DS431/ABR; WT/DS432/AB/R; WT/DS433/AB/R
Complainant: U.S.
Respondent: China
Third parties: Brazil, Canada, Colombia, EU, India, Japan, South Korea, Norway, Oman, Saudi Arabia, Taiwan, Vietnam, Argentina, Australia, Indonesia, Turkey, Peru, Russia
Dispute stage: Appellate Body
Agreements cited: Art. XI:1, X:3(a)  GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1,   Protocol of Accession

CHINA – MEASURES RELATED TO THE EXPORTATION
OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
AB-2014-3
AB-2014-5
AB-2014-6
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: ; ; and The
cover page, preliminary pages, sections 1 through 5, and the annexes are common to all three
Reports. The page header throughout the document bears the three document symbols
; ; and , with the following exceptions: section 6
on pages US-154 to US-155, which bears the document symbol for and contains the Appellate
Body's conclusions and recommendations in the Appellate Body Report ; section 6
on pages EU-156 to EU-157, which bears the document symbol for and contains the Appellate
Body's conclusions and recommendations in the Appellate Body Report ; and
section 6 on pages JPN-158 to JPN-159, which bears the document symbol for and contains the
Appellate Body's conclusions and recommendations in the Appellate Body Report
 • •

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, , adopted 12 January 2000, DSR 2000:I, p. 515
Argentina – Footwear (EC) Panel Report, Argentina – Safeguard Measures on Imports of Footwear,
, adopted 12 January 2000, as modified by Appellate Body Report
, DSR 2000:II, p. 575
Argentina – Textiles and
Apparel
Appellate Body Report, Argentina – Measures Affecting Imports of Footwear,
Textiles, Apparel and Other Items, and Corr.1, adopted 22
April 1998, DSR 1998:III, p. 1003
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon,
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded
Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527
Canada – Continued
Suspension
Appellate Body Report, Canada – Continued Suspension of Obligations in the
EC – Hormones Dispute, WT/DS321/AB/R, adopted 14 November 2008,
DSR 2008:XIV, p. 5373
Canada – Herring and
Salmon
GATT Panel Report, Canada – Measures Affecting Exports of Unprocessed
Herring and Salmon, L/6268, adopted 22 March 1988, BISD 35S, p. 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, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)
Chile – Price Band System
(Article 21.5 – Argentina)
Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU
by Argentina, WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, p. 513
China – GOES Appellate Body Report, China – Countervailing and Anti-Dumping Duties on
Grain Oriented Flat-Rolled Electrical Steel from the United States,
WT/DS414/AB/R, adopted 16 November 2012
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, DSR 2010:I, p. 3
China – Publications and
Audiovisual Products
Panel Report, China – Measures Affecting Trading Rights and Distribution
Services for Certain Publications and Audiovisual Entertainment Products,
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate
Body Report WT/DS363/AB/R, DSR 2010:II, p. 261
China – Rare Earths Panel Reports, China – Measures Related to the Exportation of Rare Earths,
Tungsten, and Molybdenum, WT/DS431/R / WT/DS432/R / WT/DS433/R,
circulated to WTO Members 26 March 2014
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of
Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R,
adopted 22 February 2012
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw
Materials, WT/DS394/R / WT/DS395/R / WT/DS398/R / Add.1 and Corr.1,
adopted 22 February 2012, as modified by Appellate Body Reports
WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R
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, p. 3243
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,
DSR 2008:XVIII, p. 7165
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

Short Title Full Case Title and Citation
EC – Bed Linen
(Article 21.5 – India)
Appellate Body Report, European Communities – Anti-Dumping Duties on
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the
DSU by India, WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III,
p. 965
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, DSR 2011:VII, p. 3995
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, p. 135
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the
Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July
1998, DSR 1998:V, p. 2031
EC – Sardines Appellate Body Report, European Communities – Trade Description of
Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, p. 3359
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the
Importation and Marketing of Seal Products, WT/DS400/AB/R /
WT/DS401/AB/R, adopted 18 June 2014
EC – Selected Customs
Matters
Appellate Body Report, European Communities – Selected Customs Matters,
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on
Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R,
adopted 18 August 2003, DSR 2003:VI, p. 2613
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, DSR 2011:I, p. 7
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, p. 9
Japan – Agricultural
Products II
Appellate Body Report, Japan – Measures Affecting Agricultural Products,
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, p. 277
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,
p. 97
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples,
WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391
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, p. 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, p. 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, p. 5
Thailand – Cigarettes
(Philippines)
Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes
from the Philippines, WT/DS371/AB/R, adopted 15 July 2011, DSR 2011:IV,
p. 2203
US – Canadian Tuna GATT Panel Report, United States – Prohibition of Imports of Tuna and Tuna
Products from Canada, L/5198, adopted 22 February 1982, BISD 29S, p. 91
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,
p. 3779
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production and
Sale of Clove Cigarettes, WT/DS406/AB/R, adopted 24 April 2012, DSR 2012:
XI, p. 5751
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

Short Title Full Case Title and Citation
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of Obligations in
the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14 November 2008,
DSR 2008:X, p. 3507
US – Countervailing and
Anti-Dumping Measures
(China)
Appellate Body Report, United States – Countervailing and Anti-Dumping
Measures on Certain Products from China, WT/DS449/AB/R, adopted 22 July
2014
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, p. 5663 (Corr.1, DSR 2006:XII, p. 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, p. 3
US – Large Civil Aircraft (2nd
complaint)
Appellate Body Report, United States – Measures Affecting Trade in Large Civil
Aircraft (Second Complaint), WT/DS353/AB/R, adopted 23 March 2012
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, p. 3257
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, p. 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, p. 2755
US – Shrimp Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp
Products, WT/DS58/R and Corr.1, adopted 6 November 1998, as modified by
Appellate Body Report WT/DS58/AB/R, DSR 1998:VII, p. 2821
US – Shrimp (Thailand) /
US – Customs Bond Directive
Appellate Body Report, United States – Measures Relating to Shrimp from
Thailand / United States – Customs Bond Directive for Merchandise Subject to
Anti-Dumping/Countervailing Duties, WT/DS343/AB/R / WT/DS345/AB/R,
adopted 1 August 2008, DSR 2008:VII, p. 2385 / DSR 2008:VIII, p. 2773
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on
Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008,
DSR 2008:II, p. 513
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003,
DSR 2003:VII, p. 3117
US – Tyres (China) Appellate Body Report, United States – Measures Affecting Imports of Certain
Passenger Vehicle and Light Truck Tyres from China, WT/DS399/AB/R,
adopted 5 October 2011, DSR 2011:IX, p. 4811
US – Upland Cotton
(Article 21.5 – Brazil)
Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse
to Article 21.5 of the DSU by Brazil, WT/DS267/AB/RW, adopted 20 June
2008, DSR 2008:III, p. 809
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, p. 717
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

PANEL EXHIBITS CITED IN THESE REPORTS
Exhibit No. Short title (if any) Full title
Submitted by China
CHN-1 Information Office of the State Council, The
People's Republic of China, "Situation and Policies
of China's Rare Earth Industry" (Beijing, June
2012)
CHN-4 S. Shaw and J. Chegwidden, "Global Drivers for
Rare Earth Demand", Roskill Information Services
(August 2012)
CHN-6 M. Humphries, "Rare Earth Elements: The Global
Supply Chain", Congressional Research Service
(6 September 2011)
CHN-8 2012 Export Licensing Catalogue Notice on "2012 Export Licensing Management
Commodities List" (MOFCOM and General
Administration of Customs, Notice (2011) No. 98,
promulgated on 30 December 2011, effective on
1 January 2012)
CHN-11 Foreign Trade Law Foreign Trade Law of the People's Republic of China
(adopted at the 7th Session of the Standing
Committee of the Eighth National People's
Congress on 12 May 1994, and amended at the 8th
Session of the Standing Committee of the Tenth
National People's Congress on 6 April 2004,
effective on 1 July 2004)
CHN-13 Several Opinions of the State Council
on Promoting the Sustainable and
Sound Development of the Rare
Earth Industry
Several Opinions of the State Council on Promoting
the Sustainable and Sound Development of the
Rare Earth Industry (Guo Fa [2011] No. 12,
10 May 2011)
CHN-21 Administration of Directive
Production Plan of Rare Earths
Provisional Measures on the Administration of the
Directive Production Plan of Rare Earth (Ministry of
Industry and Information Technology, Gong Xin Bu
Yuan [2012] No. 285, 13 June 2012)
CHN-24 Australian Atlas on Minerals and Mines: Rare
Earths, available online at:
http://www.australiaminesatlas.gov.au, accessed
on 11 November 2012
CHN-38 2012 Application Qualifications and
Procedures for Rare Earth Export
Quotas
Public Notice on 2012 Application Qualifications and
Application Procedures for Rare Earth Export
Quota, Notice (2011) No. 77, promulgated by
MOFCOM on 11 November 2011
CHN-39 Circular of the Ministry of Land and Resources on
Carrying out the Nationwide Special Rectification
Campaign of the Exploitation Order of Rare Earth
and Other Minerals (Guo Tu Zi Fa [2010] No. 68,
10 May 2010)
CHN-54 Regulations on the Administration of
the Import and Export of Goods
Regulations 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 46th executive meeting of the State
Council on 31 October 2001, effective on 1 January
2002)
CHN-55 2012 List of Enterprises for the
Export of Rare Earths 2012
Notice Publishing Online the List of Enterprises
Applying for the Export Quota for Rare Earths and
Coke in 2012 (MOFCOM, 14 December 2011)
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

Exhibit No. Short title (if any) Full title
Submitted by China
CHN-56 2012 First Batch Rare Earth Export
Quotas
2012 Notification on List of Rare Earth Exporting
Enterprises and First Batch Rare Earth Export
Quota (MOFCOM, Shangmaohan [2011] No. 1133,
27 December 2011)
CHN-57 2012 First Batch Rare Earth Export
Quotas (Supplement)
Notice Regarding the Supplement to the 2012 First
Batch of Rare Earth Export Quotas (MOFCOM,
Shangmaopi [2012] No. 618, 16 May 2012)
CHN-58 2012 Second Batch Rare Earth
Export Quotas
Notice on Distributing the 2012 Second Batch of
Rare Earth Export Quotas (MOFCOM,
Shangmaohan [2012] No. 627, 16 August 2012)
CHN-63 Declaration On the Setting Of 2012
Export Quotas on Rare Earth
Products
Declaration On the Setting Of 2012 Export Quotas
on Rare Earth Products (Zhang Chenyang,
MOFCOM, 14 December 2012)
CHN-64 "Current situation of Chin a rare earth industry and
outlook for '2011-2015' period", China Rare Earths
Information Journal, Vol. 17, No. 12, December
2011, and Vol. 18, No. 1, January 2012
CHN-85 Circular on Establishing Team of
Mining Zone Assistant Administrators
for Ore Districts of Rare Earths and
Other Materials
Circular on Establishing Team of Mining Zone
Assistant Administrators for Ore Districts of Rare
Earths and Other Materials (General Office of
Ministry of Land and Resources, Guo Tu Zi Ting
Han [2010] No. 52, 27 July 2010)
CHN-92 USGS Mineral Commodity Summaries 2012,
"Tungsten"
CHN-96 Export Quota Administration
Measures
Measures for the Administration of Export
Commodities Quotas (Order of the Ministry of
Foreign Trade and Economic Cooperation (2011)
No. 12, adopted at the 9th ministerial office
meeting of the Ministry of Foreign Trade and
Economic Cooperation of 2001, effective on
1 January 2002)
CHN-97 2012 Export Quota Amounts Notice Rega rding 2012 Export Quota Amounts for
Agricultural and Industrial Products (MOFCOM,
Notice (2011) No. 71, promulgated on 31 October
2011, effective on 1 January 2012)
CHN-98 2012 List of Enterprises for the
Export (or/and Supply) of Tungsten,
and List of Enterprises for the Export
of Molybdenum
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
Qualified to Apply for the Export Quotas for Indium
and Molybdenum in 2012 (MOFCOM, 14 December
2011)
CHN-99 2012 First Batch Export Quotas of
Tungsten, Antimony and Other Non-
Ferrous Metals
2012 Notice on List of Export (Supply) Enterprises
and First Batch Export Quota of Tungsten,
Antimony and Other Nonferrous Metals (MOFCOM,
Shangmaohan, No. 1131, 26 December 2011)
CHN-100 2012 Application Qualifications and
Application Procedures of Tungsten
Export (or Supply) Enterprises
Public Notice on 2012 Application Qualifications and
Application Procedures of the Tungsten, Antimony
and Silver State Trading Export Enterprises, and
Tungsten and Antimony Export Supply Enterprises,
Notice (2011) No. 80, promulgated by MOFCOM on
11 November 2011
CHN-106 USGS Minerals Commodities Summaries 2012,
"Molybdenum"
CHN-107 2012 Application Qualifications and
Application Procedures for
Molybdenum Export Quota
Public Notice on 2012 Application Qualifications and
Application Procedures for Indium, Molybdenum
and Tin Export Quota, Notice (2011) No. 79,
promulgated by MOFCOM on 11 November 2011
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

Exhibit No. Short title (if any) Full title
Submitted by China
CHN-132 "Three Concerns Behind the Prosperity of Rare
Earth Listed Companies", 21st Century Business
Herald, 2 August 2011
CHN-137 Rare Earth Data (1999-2012)
CHN-139 Molybdenum Data (1999-2012) (this exhibit was
updated by CHN-224)
CHN-157 Selected Economic Issues Regarding
Export Quotas and Production Quotas
Professor Jaime de Melo, Expert Economic Report:
"Selected Economic Issues Regarding Export
Quotas and Production Quotas" (April 2013)
CHN-165 2012 Second Batch Export Quotas of
Tungsten, Antimony and Other
Non-Ferrous Metals
Notice on Distributing the 2012 Second Batch
Export Quotas of Tungsten, Antimony and Other
Nonferrous Metals (MOFCOM, Shangmaohan
(2012) No. 513, 19 July 2012)
CHN-186 Dr David Humphreys, "A response to expert
evidence supplied with their Second Written
Submissions by the United States, the European
Union and Japan", Report prepared by Dr David
Humphreys of DaiEcon Advisors (June 2013)
CHN-191 Updated Rare Earths Data (1999-2012)
CHN-192 "The impact of Chinese rare earth quotas on non-
Chinese exploration, development, demand and
production", A review by J.R. Goode (10 June
2013)
CHN-193 Rare Earths Recycling in China
CHN-196 Updated Rare Earths Prices, June 2013
CHN-200 Metal-Pages (http://www.metal-pages.com),
"Critical Minerals 2013: Rare earth prices to trade
in bond of $50-70/kg REO long term – Kingsnorth",
5 June 2013
CHN-206 Response by Professor Jaime de Melo
to Professor Grossman and Professor
Winters' Expert Reports
Response to Expert Reports by Professor Grossman
(Panel Exhibit JE-164) and Professor Winters (Panel
Exhibit JE-169), Expert Economic Report prepared
by Professor Jaime de Melo (July 2013)
CHN-214 "Introduction of the Rare Earths Recycling in
China", Association of China Rare Earth Industry, 3
July 2012
CHN-224 Molybdenum Data (1999-2012) (Exhibit CHN-139
updated)

Submitted by the Complainants
(with
corresponding
Exhibit Nos.
submitted by
China, if any)
Short title (if applicable) Full title
JE-23 Rare Earths, data produced by Daniel J. Cordier
(US Geological Survey (USGS), Mineral Commodity
Summaries, January 2012)
JE-37 US Geological Survey (USGS) Mineral Commodity
Summaries (2012): Tungsten
JE-43 Roskill Consulting Grou p, Ltd., "Study of the
market for molybdenum" (November 2011)
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

Submitted by the Complainants
(with
corresponding
Exhibit Nos.
submitted by
China, if any)
Short title (if applicable) Full title
JE-45 2012 Tariff Implementation Program
(Customs Tariff Commission)
Notice Regarding the 2012 Tariff Implementation
Program (State Council Customs Tariff
Commission, Shuiweihui (2011) No. 27,
promulgated on 9 December 2011, effective on
1 January 2012)
JE-46 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, effective on 1 January 2004)
JE-47 2012 Tariff Implementation Plan
(General Administration of Customs)
Circular of the General Administration of Customs
on the 2012 Tariff Implementation Plan (2011)
No. 79, promulgated on 23 December 2011,
effective on 1 January 2012
JE-48
(CHN-8)
2012 Export Licensing Catalogue Notice on "2012 Export Licensing Management
Commodities List" (MOFCOM and General
Administration of Customs, Notice (2011) No. 98,
promulgated on 30 December 2011, effective on
1 January 2012)
JE-49
(CHN-11)
Foreign Trade Law Foreign Trade Law of the People's Republic of China
(adopted at the 7th Session of the Standing
Committee of the Eighth National People's
Congress on 12 May 1994, and amended at the 8th
Session of the Standing Committee of the Tenth
National People's Congress on 6 April 2004,
effective on 1 July 2004)
JE-50
(CHN-54)
Regulations on the Administration of
the Import and Export of Goods
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
46th executive meeting of the State Council on
31 October 2001, effective on 1 January 2002)
JE-51 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, promulgated on 7 June
2008, effective on 1 July 2008)
JE-52
(CHN-96)
Export Quota Administration
Measures
Measures for the Administration of Export
Commodities Quotas (Order of the Ministry of
Foreign Trade and Economic Cooperation (2011)
No. 12, adopted at the 9th ministerial office
meeting of the Ministry of Foreign Trade and
Economic Cooperation of 2001, effective on
1 January 2002)
JE-53 2010 Amendment of Measures for
Administration of Licensing Entities
2010 Decision of the Ministry of Commerce on
Amending the Measures for the Administration of
the Organs for Issuing the Licenses of Import and
Export Commodities (Order (2010) No. 3,
promulgated by MOFCOM on 12 September 2010)
JE-54 Customs Law of the People's Republic
of China
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)
JE-55
(CHN-56)
2012 First Batch Rare Earth Export
Quotas
Circular on the 2012 List of Rare Earth Export
Enterprises and First Batch of Rare Earth Export
Quotas (MOFCOM, Shangmaohan, No. 1133,
26 December 2011)
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

Submitted by the Complainants
(with
corresponding
Exhibit Nos.
submitted by
China, if any)
Short title (if applicable) Full title
JE-56
(CHN-57)
2012 First Batch Rare Earth Export
Quotas (Supplement)
Notice Regarding the Supplement to the 2012 First
Batch of Rare Earth Export Quotas (MOFCOM,
Shangmaopi [2012] No. 618, 16 May 2012)
JE-57
(CHN-58)
2012 Second Batch Rare Earth
Export Quotas
Notice on Distributing the 2012 Second Batch of
Rare Earth Export Quotas (MOFCOM,
Shangmaohan [2012] No. 627, 16 August 2012)
JE-58
(CHN-97)
2012 Export Quota Amounts Notice Rega rding 2012 Export Quota Amounts for
Agricultural and Industrial Products (MOFCOM,
Notice (2011) No. 71, promulgated on 31 October
2011, effective on 1 January 2012)
JE-59
(CHN-99)
2012 First Batch Export Quotas of
Tungsten, Antimony and Other Non-
Ferrous Metals
Notice Regarding the 2012 List of Export (Supply)
Enterprises and First Batch Export Quotas of
Tungsten, Antimony and Other Nonferrous Metals
(MOFCOM, Shangmaohan [2011] No. 1131,
26 December 2011)
JE-60
(CHN-165)
2012 Second Batch Export Quotas of
Tungsten, Antimony and Other Non-
Ferrous Metals
Notice on Distributing the 2012 Second Batch
Export Quotas of Tungsten, Antimony and Other
Nonferrous Metals (MOFCOM, Shangmaohan
[2012] No. 513, 19 July 2012)
JE-61
(CHN-38)
2012 Application Qualifications and
Procedures for Rare Earth Export
Quotas
Public Notice on 2012 Application Qualifications and
Application Procedures for Rare Earth Export
Quota, Notice (2011) No. 77, promulgated by
MOFCOM on 11 November 2011
JE-62
(CHN-100)
2012 Application Qualifications and
Application Procedures of Tungsten
Export (or Supply) Enterprises
Public Notice on 2012 Application Qualifications and
Application Procedures of the Tungsten, Antimony
and Silver State Trading Export Enterprises, and
Tungsten and Antimony Export Supply Enterprises,
Notice (2011) No. 80, promulgated by MOFCOM on
11 November 2011
JE-63
(CHN-107)
2012 Application Qualifications and
Application Procedures for
Molybdenum Export Quota
Public Notice on 2012 Application Qualifications and
Application Procedures for Indium, Molybdenum
and Tin Export Quota, Notice (2011) No. 79,
promulgated by MOFCOM on 11 November 2011
JE-65
(CHN-98)
2012 List of Enterprises for the
Export (or/and Supply) of Tungsten,
and List of Enterprises for the Export
of Molybdenum
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
Qualified to Apply for the Export Quotas for Indium
and Molybdenum in 2012 (MOFCOM, 14 December
2011)
JE-66
(CHN-55)
2012 List of Enterprises for the
Export of Rare Earths
Notice Publishing the List of Enterprises Applying
for the Export Quota for the Rare Earth and Coke in
2012 (MOFCOM, 14 December 2011)
JE-78 Rules on the Management of Import
and Export Licence Certificates
Rules on the Management of Import and Export
License Certificates (MOFCOM, Shangwubuling,
No. 1, issued 4 February 2012, effective 5 March
2012)
JE-79 Joseph Gambogi and Daniel J. Cordier, US
Geological Survey (USGS) 2010 Minerals Yearbook:
Rare Earths [advance release]
JE-102 "Cost of 'greener' lighting explodes as China
dominates rare-earth supply", Pittsburgh Tribune
Review, published 14 August 2011
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

Submitted by the Complainants
(with
corresponding
Exhibit Nos.
submitted by
China, if any)
Short title (if applicable) Full title
JE-118 Xinhua Insight, "China tightens regulation of rare
earth industry", Xinhua General News Service
(15 June 2011)
JE-129 Rare Earth Elements Roderick G. Eggert, "Rare Earth Elements",
25 April 2013 (Rare Earth Report)
JE-130 PricewaterhouseCoopers, "Tungsten Study",
September 2012
JE-141 Professor L. Alan Winters, "Under-filled export
quotas do not indicate that the quotas impose no
costs on non-Chinese users", 25 April 2013
JE-145 "Establishment of Subsidiary", company release by
HOYA Corporation (16 June 2011)
JE-146 "Shin-Etsu Chemical to set up a base in China to
manufacture magnet alloys for rare earth
magnets", company release by Shin-Etsu Chemical
Co., Ltd. (March 2012)
JE-147 "On addition of capital to Chinese joint venture for
increased optical glass production capacity",
company release by Ohara Inc. (20 October 2011)
JE-152 Preferential Policies Encouraging
Investments for Fujian (Longyan)
Rare Earth Industrial Park
Notice Regarding the Preferential Policies
Encouraging Investments for Fujian (Longyan)
Rare Earth Industrial Park, Longzhengzo (2010)
No. 388, 27 September 2010
JE-164 Statement by Professor Gene M. Grossman,
"Export Restrictions: Possible Effects of Under
Filled Quotas on Prices and Consumption"
JE-167 Xinhua news, "Baotou Steel Rare earth halts
production to stabilize prices" (24 October 2012)
JE-168 Company Halts Rare Earth Metals Production Amid
Price Fall, Caixin Online (19 October 2011)
JE-169 Paper by Professor L. Alan Winters, "The Effect of
China's Rare Earth Export Restrictions on Export
Prices"
JE-182 Professor L. Alan Winters: Response to Paragraph
53 of China's Opening Statement at the Second
Hearing
JE-183 Professor L. Alan Winters: "Response to Professor
Jaime de Melo (CHN-157)"
JE-188 Web-Published Notice on the 2013 Initial Approval
List of Enterprises Qualified to Export Rare Earths
in the Annual Review (MOFCOM, Department of
Foreign Trade, 17 December 2012)
JE-189 Sina.com.cn, "Rare Earth Mining Controls said to
'might as well not exist', real production remains
over-quota every year" (1 April 2011)
JE-190 Yangcheng Evening News, "Rare Earth Industry
Reorganizing, Guandong Staking an Early Claim"
(28 February 2012)
JE-191 Xinhuanet.com, "China Minmetals Proposes
Production Freeze, Revealing Unspoken Rules
inside RE Industry"
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

Submitted by the Complainants
(with
corresponding
Exhibit Nos.
submitted by
China, if any)
Short title (if applicable) Full title
JE-192 Quotes from "China's Export Quotas and Measures
Promoting Downstream Industries"
JE-193 Professor L. Alan Winters, "Comments on China's
replies to Panel Questions 76 and 87"
JE-194 Professor L. Alan Winters, "Comments on China's
replies to Panel Questions 78 and 86"
JE-195 Professor L. Alan Winters, "Response to Professor
Jaime de Melo (Panel Exhibit CHN-206) and certain
points in China's answers of 8th July 2013"
JE-196 Dudley Kingsnorth, "Rare Earths: An Industry
Undergoing Rejuvenation", June 2013, published
jointly by Curtin University and IMCOA (figures on
rare earths supply and demand, 2005-2016)
JE-197 Professor Gene Grossman, "Response to Professor
Jaime de Melo"
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

ABBREVIATIONS USED IN THESE REPORTS
Abbreviation Description
Agreement on Customs
Valuation
Agreement on Implementation of Article VII of the General Agreement
on Tariffs and Trade 1994
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement
on Tariffs and Trade 1994
China's Accession
Protocol
Protocol on the Accession of the People's Republic of China to the
WTO, WT/L/432
China's Accession
Working Party Report
Report of the Working Party on the Accession of China,
WT/ACC/CHN/49 and Corr.1
complainants United States, European Union, and Japan
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 Rare
Earths, Tungsten, and Molybdenum, WT/DS432/R
GATS General Agreement on Trade in Services
GATT 1994 General Agreement on Tariffs and Trade 1994
Japan Panel Report Panel Report, China – Measures Related to the Exportation of Rare
Earths, Tungsten, and Molybdenum, WT/DS433/R
Marrakesh Agreement* Marrakesh Agreement Establishing the World Trade Organization
excluding the Multilateral Trade Agreements annexed to it
MOFCOM Ministry of Commerce of the People's Republic of China
Panel Reports Panel Reports, China – Measures Related to the Exportation of Rare
Earths, Tungsten, and Molybdenum, WT/DS431/R / WT/DS432/R /
WT/DS433/R, circulated to WTO Members 26 March 2014
rare earths The common name for a group of 15 chemical elements in the
periodic table with the atomic numbers 57 to 71 (also known as
Lanthanides). Two other rare earth elements, scandium (atomic
No. 21) and yttrium (atomic No. 39), are also within the scope of
these disputes.
SCM Agreement Agreement on Subsidies and Countervailing Measures
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 trade-related aspects of intellectual property rights
US Panel Report Panel Report, China – Measures Related to the Exportation of Rare
Earths, Tungsten, and Molybdenum, WT/DS431/R
Vienna Convention Vienna Convention on the Law of Treaties, done at Vienna, 23 May
Working Procedures Working Procedures for Appellate Review, WT/AB/WP/6, 16 August
2010
WTO World Trade Organization
* As explained infra, fns 56, 333, 376, and 443, these Reports follow the Panel Reports in using "Marrakesh
Agreement" to refer to the Marrakesh Agreement Establishing the World Trade Organization excluding its
annexes. The use of such nomenclature is for purposes of these appeals only, and without prejudice to the
legal issues raised by China on appeal.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

APPELLATE BODY

China – Measures Related to the
Exportation of Rare Earths, Tungsten, and
Molybdenum

United States, Appellant
1/Appellee2/
 Third Participant 3
China, Appellant4/Other Appellant5/Appellee6
European Union, Appellee7/Third Participant8
Japan, Appellee9/Third Participant10

Argentina, Third Participant
Australia, Third Participant
Brazil, Third Participant
Canada, Third Participant
Colombia, Third Participant
India, Third Participant
Indonesia, Third Participant
Korea, Third Participant
Norway, Third Participant
Oman, Third Participant
Peru, Third Participant
Russia, Third Participant
Saudi Arabia, Third Participant
Separate Customs Territory of Taiwan, Penghu,
 Kinmen and Matsu, Third Participant
Turkey, Third Participant
Viet Nam, Third Participant

AB-2014-3
AB-2014-5
AB-2014-6

Division:

Seung Wha Chang, Presiding Member
Ricardo Ramírez-Hernández, Member
Yuejiao Zhang, Member

1 INTRODUCTION
1.1. The United States and China each appeals certain issues of law and legal interpretations
developed in the Panel Report, China – Measures Related to the Exportation of Rare Earths,
Tungsten, and Molybdenum , WT/DS431/R (US Panel Report).
11 China also appeals certain issues
of law and legal interpretations developed in the Panel Report, China – Measures Related to the
Exportation of Rare Earths, Tungsten, and Molybdenum , WT/DS432/R (EU Panel Report) 12 and in
the Panel Report, China – Measures Related to the Exportation of Rare Earths, Tungsten, and
Molybdenum, WT/DS433/R (Japan Panel Report). 13 The Panel issued its findings in the form of a
single document constituting three separate Panel Reports, which we refer to, collectively, as the

1 In DS431 only.
2 In DS431 only.
3 In DS432 and DS433.
4 In DS432 and DS433.
5 In DS431 only.
6 In DS431 only.
7 In DS432 only.
8 In DS431 and DS433.
9 In DS433 only.
10 In DS431 and DS432.
11 WT/DS431/R, 26 March 2014.
12 WT/DS432/R, 26 March 2014.
13 WT/DS433/R, 26 March 2014.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

"Panel Reports".14 The Panel was established 15 to consider complaints by the United States 16, the
European Union17, and Japan18 (the complainants) with respect to China's use of export duties and
export quotas on various forms of rare earths, tungsten, and molybdenum.
1.1 Panel proceedings
1.2. The complainants challenged China's imposition of export duties on 58 rare earth 19 products,
15 tungsten20 products, and 9 molybdenum 21 products.22 The complainants' challenges regarding
export quotas related to 75 rare earth products, 14 tungsten products, and 9 molybdenum
products.23 Rare earths, tungsten, and molybdenum are naturally occurring minerals found in
various mined ores. 24 The products subject to the challenged measures consist of both the
naturally occurring minerals, as well as a number of intermediate products, that is, materials that
have undergone some initial processing, for example, into concentrates, oxides, salts, and
metals.25 Generally speaking, the downstream produc ts in which rare earths, tungsten, and
molybdenum are ultimately used are not covered by the measures at issue in these disputes. 26
Further details about the products at issue in these disputes may be found in paragraphs 2.2
to 2.7 of the Panel Reports and paragraphs 4.10 through 4.12 of these Reports.
1.3. The complainants identified a number of legal instruments in connection with their claims,
including Chinese framework legislation, implementing regulations, other applicable laws, and
specific annual measures. The European Union and Japan also made claims in respect of
replacement measures and renewal measures, while the United States made claims in respect of
"implementing measures in force to date".
27

14 WT/DS431/R, WT/DS432/R, WT/DS433/R, 26 March 2014. The Panel issued its findings in the form of
a single document constituting three separate Panel Reports, with a common cover page, preliminary pages,
and sections 1 through 7. In section 8 of its Reports, the Panel set out separate conclusions and
recommendations in respect of each dispute: pages USA-252 and USA-253 bear the document symbol for and
contain the Panel's conclusions and recommendations in the Panel Report WT/DS431/R (US Panel Report), the
dispute initiated by the United States; pages EU-254 and EU-255 bear the document symbol for and contain
the Panel's conclusions and recommendations in the Panel Report WT/DS432/R (EU Panel Report), the dispute
initiated by the European Union; and pages JPN-256 and JPN-257 bear the document symbol for and contain
the Panel's conclusions and recommendations in the Panel Report WT/DS433/R (Japan Panel Report), the
dispute initiated by Japan.
15 At its meeting on 23 July 2012, the Dispute Settlement Body (DSB) established a single panel, in
accordance with Articles 6 and 9.1 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU) pursuant to requests by the United States, the European Union, and Japan. (Panel Reports,
para. 1.3)
16 Request for the Establishment of a Panel by the United States, WT/DS431/6.
17 Request for the Establishment of a Panel by the European Union, WT/DS432/6.
18 Request for the Establishment of a Panel by Japan, WT/DS433/6.
19 "Rare earths" is the common name for a group of 15 chemical elements in the periodic table with
atomic numbers 57 to 71. Two other rare earth elements, scandium (atomic No. 21) and yttrium (atomic
No. 39), are also within the scope of these disputes. (Panel Reports, para. 2.3)
20 Tungsten is the name given to the element with atomic No. 74. (Panel Reports, para. 2.6)
21 Molybdenum is a silvery metallic element with atomic No. 42. (Panel Reports, para. 2.7)
22 Panel Reports, para. 7.30. The products subject to export duties are listed in paragraph 7.46 of the
Panel Reports. See also ibid., para. 2.16.
23 The products subject to export quotas are listed in paragraph 2.16 of the Panel Reports.
24 Panel Reports, paras. 2.5-2.7.
25 Panel Reports, paras. 2.2, 2.5-2.7, and 2.16.
26 Panel Reports, paras. 7.169, 7.170, and 7.588. Downstream products include, e.g. rare earth
magnets. (Ibid., paras. 7.582 and 7.588)
27 Panel Reports, paras. 2.8-2.16, and fn 19 to para. 2.9.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

1.4. Before the Panel, the complainants claimed that28:
a. in respect of export duties on rare earths, tungsten, and molybdenum, the relevant
measures at issue 29 are inconsistent with China's obligations under Paragraph 11.3 of
Part I of the Protocol on the Accession of the People's Republic of China to the WTO 30
(China's Accession Protocol);
b. in respect of export quotas on rare earths, tungsten, and molybdenum, the relevant
measures at issue 31 are inconsistent with Article XI:1 of the General Agreement on
Tariffs and Trade 1994 (GATT 1994) and China's obligations under Paragraph 1.2 of
Part I of China's Accession Protocol, which incorporates Paragraphs 162 and 165 of the
Report of the Working Party on the Accession of China
32 (China's Accession Working
Party Report); and
c. in respect of the administration and allocation of export quotas on rare earths and
molybdenum33 and, more specifically, restrictions – such as prior export performance
and minimum registered capital requirements – on the trading rights of enterprises
seeking to export those products, the relevant measures at issue 34 are inconsistent with
Paragraph 5.1 of Part I of China's Accession Protocol, as well as with China's obligations
under Paragraph 1.2 thereof, which incorporates commitments in Paragraphs 83 and 84
of China's Accession Working Party Report.
35
1.5. In defending its measures, China contended36:
a. that the general exceptions of Article XX of the GATT 1994 are available to China to
defend a potential violation of Paragraph 11.3 of China's Accession Protocol, and that the
export duties on rare earths, tungsten, and molybdenum are justified under
Article XX(b) of the GATT 1994;
b. that the export quotas on rare earths, tungsten, and molybdenum are justified under
Article XX(g) of the GATT 1994; and
c. that the trading rights commitments in Para graph 5.1 of China's Accession Protocol and
Paragraphs 83 and 84 of China's Accession Working Party Report do not prevent the use
of prior export performance and minimum regist ered capital requirements as criteria to
administer the rare earth and molybdenum export quotas.

28 Panel Reports, para. 3.1.
29 The measures identified by the complainants as those through which China subjects various forms of
rare earths, tungsten, and molybdenum to export duties that are not listed in Annex 6 to China's Accession
Protocol are listed in paragraphs 2.9 and 2.10 of the Panel Reports, and in fn 340 to para. 4.4of these Reports.
30 WT/L/432.
31 The measures identified by the complainants as those through which China subjects various forms of
rare earths, tungsten, and molybdenum to export quotas are listed in paragraphs 2.11 and 2.12 of the Panel
Reports, and in fn 341 to para. 4.4, and paras. 4.3-4.9 of these Reports.
32 WT/ACC/CHN/49 and Corr.1.
33 These claims were not raised with respect to tungsten, because it is a product listed in Annex 2A to
China's Accession Protocol. China's obligation to grant the right to trade does not apply to the goods listed in
Annex 2A, which are reserved for importation and exportation by state trading enterprises.
34 The measures identified by the complainants as those through which China imposes restrictions –
such as prior export performance and minimum registered capital requirements – on the trading rights of
enterprises seeking to export various forms of rare earths and molybdenum are listed in paragraphs 2.14
and 2.15 of the Panel Reports, and in fn 342 to para. 4.4 of these Reports. The Panel also noted that, although
each of the complainants had, in its request for establishment of a panel, raised claims relating to an alleged
lack of uniform, impartial, or reasonable administration of the export quotas, all of the complainants confirmed
to the Panel during the course of the proceedings that they were no longer pursuing these claims. (Panel
Reports, para. 2.13)
35 All three complainants raised claims that, with respect to rare earths and molybdenum, the measures
at issue were inconsistent with China's commitments under Paragraphs 83(a), 83(b), 83(d), 84(a), and 84(b)
of China's Accession Working Party Report. (Panel Reports, para. 7.983) In addition, the European Union
claimed, with respect to molybdenum, that, by virtue of the 2012 Application Qualifications and Application
Procedures for Molybdenum Export Quota (Panel Exhibits CHN-107 and JE-63), China had acted inconsistently
with its commitment under Paragraph 84(b) of its Accession Working Party Report to grant trading rights to
foreign enterprises in a non-discretionary way. (Panel Reports, paras. 7.973 and 7.1047)
36 Panel Reports, para. 3.2.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

1.6. The factual aspects of this dispute are set forth in greater detail in paragraphs 2.1 to 2.16 of
the Panel Reports, and in section 4 of these Reports.
1.7. On 9 October 2012, the Panel received a request from Canada for enhanced third-party
rights, including third-party access to the entirety of both substantive meetings and all written
submissions, and the right to make an oral statement at the second Panel meeting. On
19 October 2012, after consulting the parties to th ese disputes on the request, the Panel declined
Canada's request.37
1.8. On 20 December 2012, in its first written submission, China requested the Panel to issue, on
an expedited basis, a preliminary ruling on the issue of whether the obligation in Paragraph 11.3 of
China's Accession Protocol is subject to the general exceptions contained in Article XX of the
GATT 1994.
38 On 1 February 2013, following the submissi on of comments on this issue by all of
the parties to these disputes, the Panel informed the parties and third parties that it had decided
not to rule on this issue prior to the first Panel meeting with the parties, which was to be held on
26-28 February 2013.
39 On 6 February 2013, China requested the Panel to make a preliminary
ruling on this issue prior to the first meeting, and, on 8 February 2013, the Panel reiterated its
decision not to do so. 40 Instead, the Panel informed China that, if it intended to present a
substantive defence under Article XX of the GATT 1994 with respect to Paragraph 11.3 of its
Accession Protocol, it should provide a written submission presenting this defence no later than
15 February 2013 so as to allow the parties and third parties a meaningful opportunity to respond
at the first Panel meeting.
41 China subsequently submitted a written defence by the stated
deadline42 and, at the first Panel meeting, the Panel informed the parties to these disputes that it
would not issue a preliminary ruling on this matter but would instead address the issue in its
Reports.43
1.9. On 18 July 2013, China filed an objection wi th the Panel regarding certain exhibits submitted
by the complainants at the last stage of the Panel proceedings. China asked the Panel to reject the
exhibits in question, together with all argume nts based on them. The evidence to which China
objected consisted of 10 exhibits, including four expert reports, which had been submitted by the
complainants to the Panel on 17 July 2013, together with their comments on China's responses to
the Panel's questions after the second Panel meeting. 44 The Panel afforded the complainants an
opportunity to respond to China's request, and China an opportunity to comment on such
responses, while at the same time reserving its right to decide whether the relevant exhibits
should be considered as late evidence.
45 Subsequently, the Panel addressed the issue of the
admissibility of the disputed evidence in its Repo rts, and decided to accept China's request that
the exhibits be rejected46, ruling that:
… the relevant exhibits were submitted too late; they could have been submitted
earlier and in a manner consistent with due process. Additionally, these exhibits do
not supplement the evidence already accepted by the Panel. They do not, as far as the
Panel can see, say anything substantially new or different from what is said in the
exhibits that the complainants submitted prior to 17 July 2013.
47

37 Panel Reports, paras. 1.10 and 7.1-7.10.
38 Panel Reports, para. 1.11.
39 Panel Reports, paras. 1.8 and 1.11.
40 Panel Reports, para. 1.12.
41 Panel Reports, paras. 1.11 and 1.12.
42 Panel Reports, para. 1.13.
43 Panel Reports, para. 1.14.
44 Panel Reports, paras. 7.11 and 7.12. Further details regarding the Panel exhibits and expert reports
to which China objected are set out in paragraph 7.15 of the Panel Reports.
45 Panel Reports, para. 7.12.
46 Panel Reports, para. 7.28.
47 Panel Reports, para. 7.27.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

1.10. The Panel Reports were circulated to Members of the World Trade Organization (WTO) on
26 March 2014.
1.11. In its Reports, the Panel explained that it would make its findings and recommendations
with respect to the series of measures compri sing the relevant framework legislation, the
implementing regulations, other applicable laws, and the specific annual measures imposing the
export duties and export quotas existing at the date of the Panel's establishment.48
1.12. In each of the Panel Reports, in respect of the claims concerning export duties, the Panel
found that the export duties that China applies to various forms of rare earths, tungsten, and
molybdenum by virtue of the series of measures at issue are inconsistent with Paragraph 11.3 of
China's Accession Protocol.
49
1.13. The Panel further found that China may not seek to justify the export duties it applies to
various forms of rare earths, tungsten, and molybdenum pursuant to Article XX(b) of the
GATT 199450, because the obligation in Paragraph 11.3 of China's Accession Protocol is not subject
to the general exceptions in Article XX of the GATT 1994 51, and China had not presented any
"cogent reason" for departing from the same finding made by the Appellate Body in China – Raw
Materials on the same issue.52 In a separate opinion, one member of the Panel expressed the view
that, "unless China explicitly gave up its right to invoke Article XX of GATT 1994, which it did not,
the general exception provisions of the GATT 1994 ar e available to China to justify a violation of
Paragraph 11.3 of its Accession Protocol."53
1.14. The Panel further found, assuming arguendo54 that China could seek to justify the export
duties under subparagraph (b) of Article XX of the GATT 1994, that China had not demonstrated
that the export duties it applies to various forms of rare earths, tungsten, and molybdenum are
justified pursuant to that provision, or that the measures are applied in a manner that satisfies the
chapeau of Article XX.
55
1.15. In the reasoning leading up to its conclusion that China may not seek to justify its export
duties under Article XX(b) of the GATT 1994, the Panel considered, and rejected, an argument
made by China that, due to the legal effect of Paragraph 1.2 of China's Accession Protocol and
Article XII:1 of the Marrakesh Agreement Establishing the World Trade Organization
56

48 Panel Reports, paras. 7.41 and 7.235. See also fns 96, 318, 1005, 1174, 1300, 1367, and 1374. The
Panel recalled, in this respect, the approach followed by the panel and the Appellate Body in China – Raw
Materials. (Panel Reports, para. 7.41 and fn 84 thereto (referring to Panel Reports, China – Raw Materials,
51 Panel Reports, para. 7.115.
52 Panel Reports, paras. 7.99, 7.104, and 7.114.
54 All three panelists agreed that China had not demonstrated that its export duties are justified under
Article XX(b) of the GATT 1994, or that they are applied consistently with the chapeau of Article XX. However,
for the panelist who expressed a separate opinion, this part of the reasoning was not undertaken on an
56 Before the Panel, China drew a distinction between the Marrakesh Agreement Establishing the World
Trade Organization excluding the Multilateral Trade Agreements annexed to it, on the one hand, and that
Agreement together with its annexes, on the other hand. China used "the Marrakesh Agreement" to refer to
the former, and "the WTO Agreement" to refer to the latter. On appeal, China draws the same distinction. In
its findings regarding the availability of Article XX of the GATT 1994 to justify a breach of Paragraph 11.3 of
China's Accession Protocol, the Panel also used "the Marrakesh Agreement" to refer to the Marrakesh
Agreement Establishing the World Trade Organization excluding its annexes. For purposes of consistency, we,
like the Panel, use "the Marrakesh Agreement" to refer to the Marrakesh Agreement Establishing the World
Trade Organization excluding its annexes, even in instances where the complainants and third participants
themselves have not, in their submissions, used the nomenclature "the Marrakesh Agreement". We underline
that our use of such nomenclature is for purposes of these appeals only, and without prejudice to the legal
issues raised by China on appeal.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

(Marrakesh Agreement), "Paragraph 11.3 of China's Accession Protocol has to be treated as an
integral part of the GATT 1994".57 The Panel found, instead, that:
… the legal effect of the second sentence of Paragraph 1.2 is to make China's
Accession Protocol, in its entirety, an "int egral part" of the Marrakesh Agreement, and
not that, in addition, the individual provis ions thereof are also integral parts of
Multilateral Trade Agreements annexed to the Marrakesh Agreement.58
1.16. In each of the Panel Reports, in respect of the claims concerning export quotas, the Panel
found that:
a. the export quotas that China applies to various forms of rare earths, tungsten, and
molybdenum by virtue of the series of measures at issue are inconsistent with
Article XI:1 of the GATT 1994
59;
b. the export quotas that China applies to various forms of rare earths, tungsten, and
molybdenum by virtue of the series of measures at issue are inconsistent with
Paragraphs 162 and 165 of China's Accession Working Party Report as incorporated into
China's Accession Protocol by virtue of Paragraph 1.2 of that Protocol
60; and
c. China had not demonstrated that the export quotas applied to various forms of rare
earths, tungsten, and molybdenum are justified pursuant to subparagraph (g) of
Article XX, or that the measures are applied in a manner that satisfies the chapeau of
Article XX of the GATT 1994.61
1.17. In each of the Panel Reports, in respect of the claims concerning export quota
administration and allocation, the Panel found that:
a. the restrictions on the trading rights of enterprises exporting rare earths and
molybdenum that China applies by virtue of the series of measures at issue are
inconsistent with Paragraphs 83(a), 83(b), 83(d), 84(a), and 84(b) of China's Accession
Working Party Report, as incorporated into China's Accession Protocol by virtue of
Paragraph 1.2 of that Protocol, and with Paragraph 5.1 of China's Accession Protocol
62;
and
b. while China is entitled to seek to justify such restrictions on the trading rights of
enterprises exporting rare earths and molybdenum pursuant to Article XX(g) of the

57 Panel Reports, para. 7.76 and fn 162 thereto (referring to China's first written submission to the
Panel, section V.C, paras. 422-435; and China's responses to the complainants' comments on China's request
for a preliminary ruling on the availability of Article XX of the GATT 1994, section III, paras. 13-34). The Panel
further expressed its understanding that this argument by China rested on the following two premises:
a. The legal effect of Paragraph 1.2 of China' s Accession Protocol and Article XII:1 of the
Marrakesh Agreement is to make China's Accession Protocol an "integral part" of the
Marrakesh Agreement, and also to make each of the Accession Protocol-specific provisions an
integral part of one of the Multilateral Trade Agreements (e.g. GATT 1994) annexed to the
Marrakesh Agreement.
b. The determination of which Multilateral Trade Agreement(s) (e.g. GATT 1994) a particular
provision of the Accession Protocol is an "integral part" must be based on an evaluation of
which Multilateral Trade Agreement(s) the provision at issue is "intrinsically" related to.
Paragraph 11.3 of China's Accession Protocol contains an obligation regarding trade in goods,
and in particular regulating the use of export duties. Therefore, it is "intrinsically related" to
the GATT 1994, and in particular the provisions of [the] GATT 1994 regulating the use of
export duties – which, in China's view, are Articles II and XI of the GATT 1994. Accordingly,
Paragraph 11.3 must be treated as an "integral part" of the GATT 1994. Paragraph 11.3 is
therefore subject to the general exceptions in GATT Article XX unless there is explicit treaty
language to the contrary.
(Ibid., para. 7.76 (fn omitted; emphasis original))
58 Panel Reports, para. 7.93. See also ibid., paras. 7.80 and 7.89.
62 US Panel Report, para. 8.3.a and b; EU Panel Report, para. 8.8.a and b; Japan Panel Report,
para. 8.13.a and b.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

GATT 1994, China had failed to make a prima facie case that the violations of its trading
rights commitments are justified pursuant to Article XX(g).63
1.18. In the EU Panel Report, the Panel also found, in respect of the European Union's additional
claim concerning export quota administration and allocation, that the European Union had not
established that the prior export performance criterion in the 2012 Application Qualifications and
Application Procedures for Molybdenum Export Quota is inconsistent with the commitment in
Paragraph 84(b) of China's Accession Working Party Report as incorporated into China's Accession
Protocol by virtue of Paragraph 1.2 of that Protocol.
64
1.19. In each of the Panel Reports, the Panel found, in accordance with Article 3.8 of the
Understanding on Rules and Procedures Governin g the Settlement of Disputes (DSU), that, by
virtue of infringing its obligations under Article XI:1 of the GATT 1994; Paragraphs 1.2, 5.1,
and 11.3 of China's Accession Protocol; and Paragr aphs 83, 84, 162, and 165 of China's Accession
Working Party Report as incorporated into its Accessi on Protocol by virtue of Paragraph 1.2 of that
Protocol, China has nullified or impaired benefits accruing to each respective complainant. 65 The
Panel then made the following recommendation in each of the Panel Reports:
Pursuant to Article 19.1 of the DSU, having found that China has acted inconsistently
with Article XI:1 of the GATT 1994; Paragraphs 1.2, 5.1 and 11.3 of China's Accession
Protocol; and Paragraphs 83, 84, 162 and 165 of China's [Accession] Working Party
Report, 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 [Accession] Working Party Report.
In respect of findings concerning export duties and export quotas on various forms of
rare earths, tungsten, and molybdenum, and restrictions on the trading rights of
enterprises exporting rare earths and molybdenum, the Panel has found that the
series of measures have operated to impose export duties and export quotas on
various forms of rare earths, tungsten, and molybdenum, and restrictions on the
trading rights of enterprises exporting rare earths and molybdenum (i.e. the prior
export experience requirement, the ex port performance requirement, and the
minimum registered capital requirement), 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 bring about a WTO-inconsistent
result.
66
1.2 Appellate proceedings
1.20. On 8 April 2014, the United States notified the Dispute Settlement Body (DSB), pursuant to
Articles 16.4 and 17 of the DSU, of its intention to appeal certain issues of law covered in the
US Panel Report (WT/DS431/R) and certain legal interpretations developed by the Panel, and filed
a Notice of Appeal
67 and an appellant's submission with the Appellate Body Secretariat pursuant to
Rule 20 and Rule 21, respectively, of the Working Procedures for Appellate Review 68 (Working
Procedures). On 13 April 2014, the Director of the Appellate Body Secretariat sent a letter to the
participants and the third parties in DS431, info rming them of the composition of the Appellate
Body Division that would be hearing this appe al, and providing them with a Working Schedule
specifying the deadlines for the filing of written submissions, and indicating that the date of the
oral hearing in that appeal would be communicated on a subsequent date.
1.21. On 17 April 2014, China notified the DSB, pursuant to Articles 16.4 and 17 of the DSU, of its
intention to appeal certain issues of law covered in the US Panel Report, and certain legal

63 US Panel Report, para. 8.3.c and d; EU Panel Report, para. 8.8.c and d; Japan Panel Report,
para. 8.13.c and d.
67 WT/DS431/9 (attached as Annex 1 to these Reports).
68 WT/AB/WP/6, 16 August 2010.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

interpretations developed by the Panel, and filed a Notice of Other Appeal 69 and an other
appellant's submission pursuant to Rule 23 of the Working Procedures.
1.22. On 25 April 2014, China notified the DSB, pursuant to Articles 16.4 and 17 of the DSU, of its
intention to appeal certain issues of law covered in the EU Panel Report (WT/DS432/R) and the
Japan Panel Report (WT/DS433/R), and certain legal interpretations developed by the Panel, and
filed a Notice of Appeal 70 and an appellant's submission wi th the Appellate Body Secretariat
pursuant to Rule 20 and Rule 21, respectively, of the Working Procedures. On the same day, the
Director of the Appellate Body Secretariat sent a letter to the participants and the third parties in
DS432 and DS433 informing them that the Appellate Body Division selected to hear these appeals
was composed of the same three Appellate Body Members as the Division in DS431, and providing
them with a Working Schedule specifying the deadlines for the filing of written submissions, and
indicating that the date of the oral hearing in these appeals would be communicated on a
subsequent date.
1.23. On 1 May 2014, China and the United States each filed an appellee's submission in relation
to the issues appealed in DS431.
71 On 13 May 2014, the European Union and Japan each filed an
appellee's submission in relation to the issues appealed in DS432 and DS43372, respectively.
1.24. On 16 May 2014, seven third participants (Argentina 73, Australia, Brazil, Canada, Colombia,
Saudi Arabia, and the United States 74) each filed a third participant's submission. 75 On the same
day, eight third participants (India, Indonesia, Korea, Norway, Peru, Russia, the Separate Customs
Territory of Taiwan, Penghu, Kinmen and Matsu, and Turkey76) each notified its intention to appear
at the oral hearing.77 On 2 June and 3 June 2014, respectively, Oman and Viet Nam each notified
its intention to appear at the oral hearing.78
1.25. The oral hearing in these appeals was held on 4-6 June 2014. The participants each made
an opening oral statement. 79 Eight of the third participants (Australia, Brazil, Canada, Korea,
Norway, Russia, Saudi Arabia, and Turkey) made opening oral statements. The participants and
third participants responded to questions posed by the Members of the Appellate Body Division
hearing these appeals.
1.26. By letters of 17 June 2014 (relating to DS431) 80 and 23 June 2014 (relating to DS432 and
DS433)81, the Chair of the Appellate Body notified th e Chair of the DSB that the Appellate Body
would not be able to circulate its Reports in these three disputes within their respective 60-day
periods pursuant to Article 17.5 of the DSU, or within their respective 90-day periods provided for
under the same provision. The Chair of the Appella te Body explained that this was due to several
reasons, in particular: the unfilled vacancy on the Appellate Body, the Appellate Body's significant

69 WT/DS431/10 (attached as Annex 2 to these Reports).
70 WT/DS432/9, WT/DS433/9 (attached as Annex 3 to these Reports).
71 Pursuant to Rules 22 and 23(4) of the Working Procedures.
72 Pursuant to Rule 22 of the Working Procedures. In accordance with the Procedural Ruling issued by
the Division hearing these appeals on 1 May 2014 (see paragraph 1.34 and Annex 5 of these Reports), the
European Union elected to have its appellee's submission also serve as its third participant's submission in
DS431 and DS433, and Japan elected to have its appellee's submission also serve as its third participant's
submission in DS431 and DS432.
73 Argentina filed its third participant's submission in Spanish. A courtesy English translation prepared by
the WTO Secretariat was provided to all participants and third participants on 23 May 2014.
74 The United States submitted a third participant's submission in respect of the disputes initiated by the
European Union (DS432) and Japan (DS433).
75 Pursuant to Rule 24(1) of the Working Procedures.
76 As Turkey's notification was not received before the 17:00 deadline specified in Rule 18(1) of the
Working Procedures, the Division treated it as a notification to attend the oral hearing and request to make an
oral statement made pursuant to Rule 24(4) of the Working Procedures.
77 Pursuant to Rule 24(2) of the Working Procedures (except where noted otherwise).
78 Pursuant to Rule 24(4) of the Working Procedures.
79 The United States made a single opening oral statement as appellant and appellee in DS431 and as a
third participant in DS432 and DS433. China made a single opening oral statement as other appellant and
appellee in DS431 and as appellant in DS432 and DS433. The European Union made a single opening oral
statement as appellee in DS432 and as a third participant in DS431 and DS433. Japan made a single opening
oral statement as appellee in DS433 and as a third participant in DS431 and DS432.
80 WT/DS431/11.
81 WT/DS431/12; WT/DS432/10; WT/DS433/10.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

workload, the volume and complexity of the issues raised by the participants in these disputes
along with the large number of participants and third participants, the time needed for translation
of the Reports, and the consolidation of the thr ee appellate proceedings. In his letter of 23 June
2014, the Chair of the Appellate Body informed th e Chair of the DSB that the Reports in these
appeals would be circulated no later than 7 August 2014.
1.3 Procedural issues raised in these appeals
1.3.1 Allocation of appeal numbers
1.27. The appeal filed by the United States in DS431 on 8 April 2014 was filed simultaneously
with the appeal by China of the panel report in a different dispute, namely, United States –
Countervailing and Anti-Dumping Measures on Certain Products from China (US – Countervailing
and Anti-Dumping Measures (China)) (DS449).
82 On 9 April 2014, the Chair of the Appellate Body
sent a letter to the parties in China – Rare Earths (DS431; DS432; DS433), as well as to the
parties in US – Countervailing and Anti-Dumping Measures (China) , explaining that, in the past,
the Appellate Body had attributed appeal numbers sequentially based on the date and time of
receipt of the Notice of Appeal. Given the unpre cedented situation of simultaneous filings of
appeals, however, the Appellate Body Chair invite d the parties to these disputes to provide their
views, by 10 April 2014, as to the considerations relevant to the Appellate Body's determination of
how to allocate appeal numbers AB-2014-3 and AB-2014-4 to the two appeals in China – Rare
Earths (DS431) and US – Countervailing and Anti-Dumping Measures (China) (DS449).
1.28. On 10 April 2014, the Appellate Body received comments in response to the Chair's letter of
9 April 2014 from China, the European Union, Japan, and the United States. On the same day, the
Appellate Body Chair sent a letter to the parties to the disputes in China – Rare Earths (DS431;
DS432; DS433) and to the participants in US – Countervailing and Anti-Dumping Measures (China)
(DS449) informing them that, having given careful consideration to their submissions, the
Appellate Body had determined that, in the face of the unprecedented situation of simultaneous
appeals, the Appellate Body's usual manner of assigning appeal numbers – according to the
sequence in which the Notices of Appeal were filed – was not available. The Appellate Body
underlined the necessity of assigning an appeal number to each appeal before the Appellate Body
Members constituting the respective divisions could be selected. The Appellate Body recalled, in
this connection, that Rule 6(2) of the Working Procedures calls for the Members constituting a
division to be selected taking into account, inter alia, "the principles of random selection [and]
unpredictability". The Appellate Body expressed the view that, in order to ensure respect for these
principles, in the specific circumstances of a simultaneous filing of two appeals, the appeal
numbers should be assigned to each dispute by means of a random draw. To this end, the Chair of
the Appellate Body invited the parties to the China – Rare Earths (DS431; DS432; DS433) and
US – Countervailing and Anti-Dumping Measures (China) (DS449) disputes to the Appellate Body
Secretariat on Friday, 11 April 2014, in order to witness the assignment of appeal numbers to the
appeals in DS431 and DS449 through a random draw. The Chair of the Appellate Body also
adverted, in his letter, to the Appellate Body's regret at the unfortunate circumstances that had led
to this situation, and to the need for parties to WTO disputes to coordinate, communicate, and
cooperate amongst themselves, as well as with the Appellate Body and the Appellate Body
Secretariat, in the planning, filing, and conduct of their appeals.
1.29. On 11 April 2014, a random draw was held at the Appellate Body Secretariat in the
presence of the parties to the China – Rare Earths (DS431; DS432; DS433) and US –
Countervailing and Anti-Dumping Measures (China) (DS449) disputes. As a result of this draw, the
appeal initiated by the United States in China – Rare Earths (DS431) was assigned appeal number
AB-2014-3, and the appeal by China in US – Countervailing and Anti-Dumping Measures (China)
(DS449) was assigned appeal number AB-2014-4.
1.3.2 China's challenge to the United Stat es' Notice of Appeal and request for an
extension of the time periods for filing submissions
1.30. On 9 April 2014, China sent a letter to the Appellate Body requesting the Appellate Body to
reject the United States' Notice of Appeal in DS431 on the grounds that, due to its "conditional"
nature, the Notice of Appeal did not constitute a proper Notice of Appeal within the meaning of the

82 WT/DS449/R, 27 March 2014.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

Working Procedures. 83 In the event that the Appellate Body were not to reject the Notice of
Appeal, China requested the Appellate Body to exte nd the time-limits, pursuant to Rule 16(2) of
the Working Procedures, for filing relevant docume nts. By letter of 10 April 2014, the Chair of the
Appellate Body invited the participants, parties, and third participants to provide their comments
on China's requests by 11 April 2014.
1.31. On 13 April 2014, having received comments from Australia, Brazil, Canada, China, the
European Union, Japan, and the United States, th e Appellate Body Division hearing the appeal in
DS431 issued a Procedural Ruling in response to the 9 April 2014 request from China. In its
Procedural Ruling, which is attached as Annex 4 to these Reports, the Division, first, declined
China's request to reject the United States' Notice of Appeal due to its "conditional" nature. The
Division considered that its jurisdiction to hear the United States' appeal was validly established
given that the United States' Notice of Appeal conformed to the requirements of Rule 20 of the
Working Procedures. Such jurisdiction was not, in the opinion of the Division, affected by the
possibility that it might not need to rule on the issues raised by the United States in the event that
the scenarios identified by the United States in its Notice of Appeal were to materialize. Second,
the Division granted China's request for an extension of the time period for China to file a Notice of
Other Appeal and other appellant's submission in DS431. The Division decided that these
documents should be filed by 17 April 2014 rather than by 14 April 2014. As a consequence of this
decision, and in order to preserve the sequence of and periods between the other deadlines
prescribed under the Working Procedures, the Appellate Body also modified the dates for the
filings of other submissions set out in the Working Schedule.
1.3.3 Consolidation of the appellate proceedings and Japan's request for an extension of
the time period for filing third participants' submissions
1.32. On 15 April 2014, the Appellate Body Division hearing the appeal in DS431 received a letter
from Japan requesting the Appellate Body, pursua nt to Rule 16 of the Working Procedures, to
extend the deadline for filing the third particip ants' submissions from 5 May 2014 – the date set
out in the Working Schedule for this appeal that was communicated to the participants and third
participants on 13 April 2014 – to 7 May 2014. On 16 April 2014, the Division sent a letter to the
participants and the third participants in DS431 stating that it was considering the request by
Japan and would revert to the matter in due course.
1.33. On 25 April 2014, the Presiding Member afford ed the participants and third participants in
DS431, DS432, and DS433 an opportunity to commen t on two issues. First, the Division referred
to the interests of "fairness and orderly procedur e" in Rule 16(1) of the Working Procedures, and
invited comments on the consolidation of these appellate proceedings, including by holding a
single oral hearing in respect of the proceeding s in all three disputes. The Division noted the
significant overlap in the content of these disput es and appeals, and the fact that, at the Panel
stage, they were heard by a single Panel in accordance with Article 9.1 of the DSU. Second, the
Division recalled the letter that it had received from Japan in DS431 on 15 April 2014 requesting,
pursuant to Rule 16 of the Working Procedures, an extension of the deadline for filing the third
participants' submissions from 5 May to 7 May 2014. The Division invited the participants and third
participants to comment on both issues by 28 April 2014.
1.34. On 1 May 2014, having received comme nts from China, the United States, the
European Union, Japan, Australia, Brazil, Canada, and Saudi Arabia, the Division issued a
Procedural Ruling with respect to the consolidation of the appellate proceedings in the three
disputes and with respect to Japan's request for an extension of the deadline for filing the third
participants' submissions in DS431. In its Procedural Ruling, which is attached as Annex 5 to these
Reports, the Division decided, pursuant to Rule 16(1) of the Working Procedures, to consolidate
the appeals of the Panel Reports in China – Rare Earths (WT/DS431/R; WT/DS432/R;
WT/DS433/R). Given this consolidation, and taki ng account of certain requests made by the
participants and third participants, the Division found it necessary to make certain additional

83 As explained in paragraphs 5.253-5.258 of these Reports and in the Procedural Ruling attached as
Annex 4 to these Reports, in its Notice of Appeal, the United States indicated that, "[i]f China were not to
appeal the Panel Report, or if the Appellate Body were not to modify or reverse the legal findings or
conclusions of the Panel pursuant to an appeal by China, then the Appellate Body would not need to reach" the
issues raised by the United States in its appeal.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

modifications to the Working Schedules in order to ensure fairness and orderly procedure in the
conduct of these appeals. More specifically, the Division decided as follows:
a. The single deadline for the third participants' submissions in respect of all these
disputes is set as Friday, 16 May 2014. To the extent that the third participants
are in a position to file their submissions earlier than this deadline, we
encourage such early filing as it would assist the Division's preparation for the
oral hearing;
b. The United States, the European Union, and Japan may elect to have their
submissions filed in the capacity of participant in their respective disputes also
serve as their third participants' submissions in the disputes in which they are
third participants. This is without prejudice to the right of the European Union
(as third participant in DS431 and DS433), Japan (as third participant in DS431
and DS432), and the United States (as third participant in DS432 and DS433),
should they so wish, to file third participants' submissions, separate from their
appellees' submissions, by Friday, 16 May 2014.
c. The Division will hold a single oral hearing for all these appellate proceedings. It
will take place on Wednesday, 4 June 2014 and Thursday, 5 June 2014. If
necessary, the oral hearing will continue on Friday, 6 June 2014.
84
1.35. In its Procedural Ruling, the Division furt her observed that, in the light of its decision
establishing a single deadline for the filing of all third participants' submissions in respect of all
these appeals, it was not necessary to deal separately with Japan's request for an extension of the
deadline for the filing of the third particip ants' submissions in DS431 from 5 May 2014 to
7 May 2014.
85 A revised, consolidated Working Schedule for the appellate proceedings in DS431,
DS432, and DS433 was attached to the Division's Procedural Ruling.
1.3.4 Requests by the complainants for separate reports
1.36. In its letter of 28 April 2014, the European Union requested "an Appellate Body Report
issued as a single document, with separate pages for the findings and conclusions in each of the
three disputes". By joint letter of 28 May 2014, Japan and the United States requested "that the
Division issue a separate Appellate Body report fo r each of the appeals, in the form of a single
document with separate findings and conclusions bearing the document symbol only relating to
that appeal." At the oral hearing in these appeals, the Division afforded all participants and third
participants an opportunity to comment on these requests. No comments were made, and the
Division acceded to these requests.
2 ARGUMENTS OF THE PARTICIPANTS AND THIRD PARTICIPANTS
2.1 Claims of error by the United States – Appellant (DS431)
2.1. The United States requests the Appellate Body to find that the Panel's rejection of Exhibits
JE-188 through JE-197
86 submitted together with the United States' comments on China's
responses to the Panel's questions after the second Panel meeting was inconsistent with
Articles 11 and 12.4 of the DSU. 87 The United States submits that, in rejecting the 10 exhibits in
question, the Panel erroneously concluded that acceptance of such evidence would have presented
"due process" concerns for China; that "the submission of new expert reports" would have

84 Appellate Body Procedural Ruling of 1 May 2014 (attached as Annex 5 to these Reports), para. 1.24.
(emphasis omitted)
85 Appellate Body Procedural Ruling of 1 May 2014 (attached as Annex 5 to these Reports), para. 1.20.
86 Although each of the three complainants in the three disputes prepared its written submissions to the
Panel separately, the complainants together submitted a single, joint set of exhibits to the Panel, numbered
from Joint Exhibit JE-1 to JE-197.
87 United States' appellant's submission, para. 12.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

interfered with the prompt settlement of the disput e; and that to be accepted as rebuttal evidence
an exhibit must "rise to the required level of necessity".88
2.2. The appeal raised by the United States is subject to two conditions. In its Notice of Appeal,
the United States indicated that the Appellate Body would not need to reach the issues raised on
appeal in either of two scenarios: (i) if China were not to appeal the Panel Report; or (ii) if the
Appellate Body were not to modify or reverse the legal findings or conclusions of the Panel
pursuant to an appeal by China.89
2.3. The United States contends that, in rejecting Exhibits JE-188 through JE-197, the Panel
erroneously applied Article 3.3 of the DSU and failed to provide sufficient time to the United States
to prepare its submissions pursuant to Articl e 12.4 of the DSU. Moreover, according to the
United States, due process was satisfied because the Panel did afford China an opportunity to
respond to this evidence. To the extent that the Panel considered that China did not have enough
time to respond to this evidence, then it was the Panel itself that created such due process
concerns by setting too short a deadline. In such circumstances, the Panel should have given
China more time to respond, and the Panel erred in considering that Article 3.3 of the DSU and the
need for the prompt settlement of disputes pr evented it from doing so. The United States
maintains that a limited extension would not undermine the value of "prompt settlement" in the
context of the overall length of a panel proceeding , and there was no evidence in this dispute that
accepting expert reports as part of a filing expressly contemplated in the Panel's Working
Procedures would have caused "a never-ending cascade of competing expert reports".
90
2.4. The United States characterizes as "inherently flawed" the Panel's rejection of the exhibits on
the grounds that they were not "necessary" for purposes of rebuttal, even if they may have been
"confirmatory".91 The Panel's reasoning suggests that evidence that is more "necessary" and,
consequently, more likely to create due process concerns, would be accepted, while confirmatory
data, which presents less of a due process concern, is more likely to be rejected. Moreover, in
rejecting the evidence, the Panel in effect suggested that the United States should have submitted
the evidence earlier in the proceedings. This, su bmits the United States, amounts to a failure by
the Panel to provide sufficient time to the United States to prepare its submissions, and is
inconsistent with Article 12.4 of the DSU.
2.5. The United States further alleges that the Panel failed to make an objective assessment of
the facts, as required under Article 11 of the DSU, in finding that the evidence in question could
and should have been submitted at an earlier date, and that it was not submitted to rebut
arguments made by China at the second Panel m eeting. The 10 exhibits in question are all
"evidence necessary for purposes of rebuttal, answers to questions or comments on answers
provided by the other party(ies)" within the meaning of paragraph 7 of the Panel's Working
Procedures. As such, they constituted the type of evidence that the Working Procedures
specifically provided may be submitted by the pa rties, and the complainants submitted them for
the purposes of rebuttal in commenting on China's responses to the Panel's questions following the
second Panel meeting. The United States adds that the Panel was wrong in stating that these
exhibits could have been submitted much earlier in the process. The United States explains, for
each of the excluded exhibits, why it could not have been submitted earlier in the Panel process.
For example, Exhibit JE-196 contained data publishe d by an expert, whom China, in its response
to the Panel's second set of questions, had referre d to as "the world's leading rare earth market
expert". Thus, the importance of this particular expert's data to rebutting China's claims did not
become apparent until China's responses to the Pane l's questions. Similarly, the report by another
expert submitted as Exhibit JE-197 was submitted to rebut Exhibit CHN-206, which consisted of a
report by a third expert that China had submitted with its responses to the Panel's second set of

88 United States' appellant's submission, para. 1 (quoting Panel Reports, paras. 7.23, 7.24, and 7.26,
respectively).
89 As explained in paragraphs 1.30 and 1.31 above, and in Annex 4 to these Reports, China requested
the Appellate Body to reject the United States' Notice of Appeal on the grounds that, due to its "conditional"
nature, the Notice of Appeal did not constitute a proper Notice of Appeal. However, the Appellate Body declined
this request, finding instead that "[t]he possibility that we may not need to rule on the issues due to the
occurrence of the scenarios identified by the United States does not provide a valid legal basis for us to reject
the United States' appeal". (Annex 4, para. 2.10)
90 United States' appellant's submission, para. 4.
91 United States' appellant's submission, para. 5.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

questions. Accordingly, suggests the United States, it would have been impossible to submit
Exhibit JE-197 at an earlier date.
2.2 Arguments of China – Appellee (DS431)
2.6. China requests the Appellate Body to reject the United States' appeal regarding the
exclusion, by the Panel, of 10 exhibits submitted jointly by the complainants on 17 July 2013. For
China, the Panel made no error in considering Arti cle 3.3 of the DSU, or in applying Articles 11
and 12.4 of the DSU. Rather, the Panel acted within the bounds of its discretion in prioritizing
considerations of due process, including timeliness, and in deciding to exclude the relevant exhibits
from its consideration of the United States' complaint.
2.7. China begins by observing that, of the 10 ex hibits jointly submitted by the complainants and
excluded by the Panel, the United States referred to only two of those exhibits in its comments on
China's responses to the Panel's second set of questions. China highlights that the United States
made "no reference whatsoever" to the other eight contested exhibits, and, for this reason,
characterizes as "disingenuous" the United States' assertion that the Panel failed to give the
United States sufficient time to prepare its submissions.
92 Not only were these exhibits not
necessary for purposes of rebuttal, they were simply not used by the United States for any
purpose whatsoever.
2.8. China argues that the Panel did not err in referring to Article 3.3 of the DSU and did not fail
to allow the United States sufficient time to prepare its submissions pursuant to Article 12.4 of the
DSU. China refers to several statements that have been made by the Appellate Body with respect
to due process in panel proceedings, in particular in its report in Thailand – Cigarettes
(Philippines). China expresses the view that the Panel pr operly applied the due process principles
that have been identified by the Appellate Body in reaching its decision not to admit the contested
Panel exhibits. While recognizing that late submission of new evidence by complainants may be
necessary in some cases, China emphasizes that the comments made by the United States on
China's responses to the Panel's second set of questions were made at the very last stage
contemplated by the Panel's timetable. For China, a strategy of "backloading" the submission of a
significant volume of evidence until the final possible moment is not consistent with a fair and
orderly procedure, and should be discouraged by panels and the Appellate Body. Moreover, the
Panel made no error in taking account of the im portance of the "prompt settlement" of disputes,
as set out in Article 3.3 of the DSU, together with the other factors relevant to due process. China
submits that the United States' argument that there was no evidence that acceptance of the
expert reports would have led to a "never-ending cascade of competing expert reports" misses the
point. The Panel had to draw a line somewher e. It drew the line after having given the
United States eight opportunities to substantiate its case with its various submissions and exhibits,
and in a context where it observed that the cont ested exhibits did not add "anything substantially
new or different from what is said in the exhibits that the complainants submitted prior to
17 July 2013".
93 China adds that the logic of the United States' position regarding Article 12.4 of
the DSU "is not readily apparent". 94 From the date of issuance of the Panel's timetable, the
United States had eight months and eight separate occasions to make its case, which, in China's
view, is an ample period of time to prepare submissions.
2.9. China submits that the Panel acted within the scope of its discretion under Article 11 of the
DSU in excluding the contested exhibits. With resp ect to the two exhibits that the United States
did refer to in its written comments of 17 July 2013, China asserts that these were clearly not
necessary to allow the United States to rebut factual contentions by China that the United States
had not previously had an opportunity to address. More specifically, China explains that, although
Exhibit JE-196 was submitted in order to call into question extraction and production data
submitted by China in Exhibit CHN-137 on 14 March 2013, other evidence from the United States
disputing China's production figures was already on the record (in Exhibit JE-129). Even if the
United States wished to also introduce the material in Exhibit JE-196 to further challenge China's
data, it had the opportunity to do so prior to its comments on China's responses to the Panel's
questions following the second Panel meeting. As for the expert report submitted as

92 China's appellee's submission, para. 14 (referring to Panel Exhibits JE-188, JE-189, JE-190, JE-191,
JE-192, JE-193, JE-194, and JE-195).
93 Panel Reports, para. 7.27.
94 China's appellee's submission, para. 20.
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Exhibit JE-197, this sought to address China's response to the complainants' argument that even
under-filled export quotas affect prices and consumption in foreign markets. However, China adds,
the United States had already had an opportunity to make its point regarding the price effects in
foreign markets of unfilled export quotas, in particular, at the second Panel meeting, with the
expert report that it submitted as Exhibit JE- 164. Since Exhibit JE-197 is, according to China,
merely a repetition of what had already been said in JE-164, the Panel made no error in rejecting
it as untimely filed. Article 11 of the DSU does not require a panel to allow endless rounds of
expert reports. For all of these reasons, China submits, the Panel operated within the bounds of its
discretion under Article 11 of the DSU by prioritizing China's right to a fair process and rejecting
the late submission of these exhibits.
2.3 Claims of error by China – Appella nt (DS432 and DS433) and other appellant
(DS431)
95
2.3.1 Article XII:1 of the Marrakesh Agreem ent and Paragraph 1.2 of China's Accession
Protocol
2.10. China appeals the Panel's assessment of the relationship of specific provisions in China's
Accession Protocol with the Marrakesh Agreement 96 and the Multilateral Trade Agreements
annexed thereto. China requests the Appellate Body to reverse the Panel's conclusion that the
legal effect of the second sentence of Paragraph 1.2 of China's Accession Protocol and Article XII:1
of the Marrakesh Agreement is to make China's Accession Protocol, in its entirety, an "integral
part" of the Marrakesh Agreement, and not that, in addition, the individual provisions of the
Protocol are also integral parts of the Mu ltilateral Trade Agreements annexed to the
Marrakesh Agreement.
97 China contends that, in reaching this conclusion, the Panel erred in its
interpretation of Article XII:1 of the Marrakesh Ag reement read in conjunction with Paragraph 1.2,
second sentence, of China's Accession Protocol 98, and failed to conduct a holistic interpretation of
these provisions. China maintains that its appeals are intended to seek "[c]oherent guidance on
the precise legal nature" 99 of post-1994 accession protocols, and to obtain clarification as to the
systemic relationship between, on the one hand, specific provisions of China's Accession Protocol
and, on the other hand, the Marrakesh Agreement and the Multilateral Trade Agreements annexed
thereto.
2.3.1.1 Paragraph 1.2 of China's Accession Protocol
2.11. China alleges that, contrary to the Panel's conclusion, the reference to the
"WTO Agreement" in Paragraph 1.2 of China's Acce ssion Protocol cannot be read as a reference to
the Marrakesh Agreement alone. China points ou t that there are many provisions in China's
Accession Protocol in which the term "the WTO Agreement" refers to the WTO Agreement as a
whole, including the Multilateral Trade Agreements annexed thereto. Read in its proper context,
the prescription in Paragraph 1.2, second sentence , that China's Accession Protocol "shall be an
integral part of the WTO Agreement" means that Ch ina's Accession Protocol must be treated as an
integral part of the WTO Agreement as a whole, including its annexes. China contends that, in
finding otherwise, the Panel disregarded the co ntext provided by other instances in China's
Accession Protocol where the term "the WTO Agreement" is used.
2.12. China asserts that, except for a few instances where "the WTO Agreement" is used to refer
to one of the 16 articles of the Marrakesh Agreem ent, this term is used in China's Accession

95 China submitted its other appellant's submission in DS431 on 17 April 2014, and its appellant's
submission in DS432 and DS433 on 25 April 2014. (See paragraphs 1.21 and 1.22 of these Reports) China's
appellant's submission contains all of the claims and arguments raised in its other appellant's submission. In its
appellant's submission, China provides further arguments regarding the legal nature of post-1994 accession
protocols, and elaborates in greater detail on the reasons why the Panel's interpretation constituted legal error.
96 Before the Panel, China drew a distinction between the Marrakesh Agreement Establishing the World
Trade Organization excluding the Multilateral Trade Agreements annexed to it, on the one hand, and that
Agreement together with its annexes, on the other hand. On appeal, China draws the same distinction. See
supra, fn 56 and infra, fns 333 and 376.
97 China's appellant's submission, para. 46; other appellant's submission, para. 46 (referring to Panel
Reports, paras. 7.80, 7.89, and 7.93).
98 China's appellant's submission, para. 46; other appellant's submission, para. 46 (referring to Panel
Reports, paras. 7.73-7.93).
99 China's appellant's submission, para. 55; other appellant's submission, para. 52.
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Protocol to refer to the WTO Agreement as a whole, that is, the Marrakesh Agreement including
the Multilateral Trade Agreements annexed theret o. China highlights, for example, Paragraph 1.1
of the Accession Protocol, which provides that China accedes to "the WTO Agreement" pursuant to
Article XII of that Agreement. China argues that this reference to "the WTO Agreement"
necessarily concerns the Marrakesh Agreement toge ther with the Multilateral Trade Agreements
annexed thereto, because an acceding Member must accept the WTO Agreement as a whole by
virtue of Article II:2 of the Marrakesh Agreement. Moreover, China highlights the first sentence of
Paragraph 1.2, which defines the version of "the WTO Agreement" to which China accedes as being
"the WTO Agreement as rectified, amended or otherwise modified by such legal instruments as
may have entered into force before the date of accession". To interpret the term "the WTO
Agreement" in this sentence as the Marrakesh Agreement alone would mean that new WTO
Members would not necessarily accede to the latest versions of the Multilateral Trade Agreements
in the annexes. China also refers to a number of paragraphs in the Accession Protocol which,
according to China, use the term "the WTO Agr eement" to mean the WTO Agreement as a whole.
China notes, in particular, that the same term in the introductory clause of Paragraph 5.1 was
interpreted by the Appellate Body in China – Publications and Audiovisual Products as referring to
the WTO Agreement as a whole.
100 Furthermore, in Annex 7 to China's Accession Protocol, Poland
reserved the right to continue to apply certain anti-dumping measures and to bring these
measures, by the end of 2002, into conformity with "the WTO Agreement" as defined in
Paragraph 1.2 of the Accession Protocol.
101 China maintains that, because a Member's obligations
regarding the imposition of anti-dumping measures are set out in the relevant Multilateral Trade
Agreements (i.e. the GATT 1994 and the Agreemen t on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement)) rather than the
Marrakesh Agreement, Poland's reservation indicates that the term "the WTO Agreement" as used
in Paragraph 1.2 refers to the WTO Agreement in cluding the Multilateral Trade Agreements. China
emphasizes that its understanding of the term "the WTO Agreement" was endorsed by the
dissenting Member of the Panel.
102
2.13. In China's view, the Panel's interpretation of Paragraph 1.2 would "jeopardize the internal
coherence" of the WTO legal framework, which consists of an "overarching institution agreement"
(i.e. the Marrakesh Agreement) and several Multilateral Trade Agreements.
103 For China, the
Panel's interpretation means that a "WTO-plus" commitment regarding trade in goods would have
to be read as an integral part of the overarching institutional provisions of the WTO – i.e. the
Marrakesh Agreement – rather than as an integral part of a substantive agreement, such as the
GATT 1994. China maintains that it is the Mu ltilateral Trade Agreements, rather than the
"overarching institutional agreement", that stipulate each Member's substantive obligations, as
well as the applicable exceptions. Thus, China em phasizes that a treaty interpreter assessing a
provision in China's Accession Protocol must undertake the additional analytical step of
determining with which Multilateral Trade Agreement that provision has an "intrinsic relationship".
This additional analytical step is required as it allows the interpreter to determine the precise
Multilateral Trade Agreement of which a particular provision of the Protocol is an integral part,
thereby giving effective meaning to Paragraph 1.2, second sentence, of China's Accession Protocol.
2.14. China submits that the following five reasons given by the Panel in rejecting China's
interpretation of Paragraph 1.2 are characterized by various flaws of law and logic. First, China
alleges that the Panel confounded the ordinary meaning with the initial literal reading of the
provision in finding that, because the second sentence of Paragraph 1.2 refers to "[t]his Protocol"
in the singular, the Accession Protocol in its enti rety is made an integral part of the Marrakesh
Agreement. In China's view, the Panel "jumped … to a premature conclusion" on the basis of a
"superficial, grammatical analysis" of the provision.
104
2.15. Second, the Panel erroneously found China's position that Paragraph 11.3 of China's
Accession Protocol is an integral part of the GATT 1994 to be undermined by the fact that
paragraph 1(b)(ii) of the GATT 1994 incorporates only the pre-1994 accession protocols into the

100 China's appellant's submission, para. 106; other appellant's submission, fn 15 to para. 6.3 (referring
to Appellate Body Report, China – Publications and Audiovisual Products, para. 222).
101 China's appellant's submission, para. 107 (referring to China's Accession Protocol, fn 5 to Annex 7).
102 China identified the following provisions of its Accession Protocol as ones in which, in China's view,
the drafters used the term "the WTO Agreement" to refer to the Marrakesh Agreement including its annexes:
Paragraphs 1.2, 2.A.1, 2.A.3, 4, 5.1, 6.1, 7.1, 8.1, 13.3, 17, 18.1 (first sentence), 18.2, 18.3, and Annex 7.
103 China's appellant's submission, para. 112; other appellant's submission, para. 65.
104 China's appellant's submission, para. 120.
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GATT 1994. As China sees it, however, the incorporation of pre-1994 accession protocols into the
GATT 1994 is consistent with the fact that post-1994 accession protocols cover areas that go
beyond the GATT 1994. This, in China's view, reinforc es its position that the drafters chose to let
the incorporation of individual, intrinsically GATT-related, post-1994 accession commitments be
achieved through the operation of Article XII:1 of the Marrakesh Agreement and Paragraph 1.2 of
China's Accession Protocol.
2.16. Third, China maintains that, in rejecting China's interpretation, the Panel wrongly relied on a
superficial a contrario reasoning regarding the first paragraph of Part II of China's Accession
Protocol and Article II:7 of the GATT 1994. According to the Panel, the joint operation of these two
provisions makes the Schedules of Concessions and Commitments annexed to China's Accession
Protocol an integral part of the GATT 1994. Yet, as observed the Panel, this joint operation would
be redundant if all GATT-related provisions in the Accession Protocol were, as China argued,
implicitly made an integral part of the GATT 1994 by virtue of Paragraph 1.2 of China's Accession
Protocol. China contends that, in so reasoning, the Panel disregarded "a relevant technical
difference" between Members' schedules of commitm ents and the substantive provisions set forth
in the GATT 1994 and the General Agreement on Trade in Services (GATS), in that Members'
goods and services schedules are separate instruments from these Agreements and may change
from time to time.
105
2.17. Fourth, China submits that, contrary to the Panel's statement that prior panel and
Appellate Body reports do not support China's position 106, this dispute presents the first occasion
on which a panel or the Appellate Body has been ca lled upon to interpret the meaning of the term
"the WTO Agreement" as used in Paragraph 1.2 of China's Accession Protocol.
2.18. Fifth, China contends that the Panel erroneously found that China's interpretation would
render redundant explicit references to the GATT 1994 throughout the Accession Protocol and the
Accession Working Party Report. In China's view, explicit textual references to the GATT 1994 are
necessary either to ensure that the relevant pr ovisions convey substantive meaning (such as in
Paragraphs 11.1 and 11.2 of China's Accession Prot ocol), or to confirm the understanding of how
China would implement the relevant covered agreements (e.g. Paragraphs 160 and 162 of China's
Accession Working Party Report confirm that Chin a would apply export restrictions and licensing
consistently with Articles XI and XX of the GATT 1994). Moreover, China submits that, as the
Appellate Body found in China – Publications and Audiovisual Products , the introductory clause of
Paragraph 5.1 of China's Accession Protocol gives China access to the exceptions under Article XX
when and if the measure at issue has a cl early discernible, objective link to the objective of
regulating trade in the goods at issue.
107
2.3.1.2 Article XII:1 of the Marrakesh Agreement
2.19. China recalls that Articles XII:1 and XII:2 of the Marrakesh Agreement explicitly provide the
authority for the Ministerial Conference, acting on behalf of the WTO, to reach agreement with
each acceding Member to create Member-specific WTO law in the form of "terms of accession".
Article XII of the Marrakesh Agreement is, theref ore, the legal basis under which the terms of
accession set forth in a post-1994 accession protocol may become a source of new,
Member-specific WTO law. China emphasizes, however, that the authority of the Ministerial
Conference to approve the creation of Member-specific WTO law is not unbounded. Rather, it is
limited by the important requirement that specific terms of accession must "intrinsically relate to"
either the Marrakesh Agreement or one of the Multilateral Trade Agreements annexed thereto. This
requirement flows directly from a proper interpretation of Article XII:1 of the
Marrakesh Agreement read in conjunction with Paragraph 1.2, second sentence, of China's
Accession Protocol.
2.20. China submits that the Panel failed to give effective meaning to the second sentence of
Article XII:1 by finding that this sentence merely prescribes that a newly acceding Member must
accept the WTO legal framework as a single undertaking. In China's view, the Panel's
interpretation is superficial and contrary to the rule of effective treaty interpretation. This is

105 China's appellant's submission, para. 126.
106 China's appellant's submission, para. 127 (referring to Panel Reports, para. 7.85).
107 China's appellant's submission, para. 135 (referring to Appellate Body Report, China – Publications
and Audiovisual Products, para. 30).
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because a newly acceding Member is in any event required to accept the WTO Agreement as a
whole by virtue of Article II:2 of the Marrakesh Ag reement, which stipulates that the Multilateral
Trade Agreements contained in Annexes 1, 2, and 3 "are integral parts of [the Marrakesh]
Agreement, binding on all Members". Thus, for Chin a, the second sentence of Article XII:1 must
have a different, or additional, meaning, and not the "excessively narrow, and thus essentially
redundant, meaning which the Panel erroneously ascribed to it".
108 China further contends that the
Panel erred in stating that nothing in Article XII: 1 supports China's positions that specific protocol
provisions must be considered an integral part of the specific covered agreement to which they
intrinsically relate, or that its Accession Protocol is not a self-contained agreement and that it
merely serves to specify, including by the means of "WTO-plus" commitments, China's obligations
under the Marrakesh Agreement and the Multil ateral Trade Agreements annexed thereto.
109 In
China's view, Articles XII:1 and XII:2 of the Marrakesh Agreement provide the key legal basis
under which the terms of accession set forth in a post-1994 accession protocol may effectively
become a source of Member-specific WTO law.
2.21. China alleges that the Panel failed to interpret Article XII:1 of the Marrakesh Agreement in
its proper context, that is, Paragraph 1.2 of China's Accession Protocol. China maintains that, read
together, these provisions confirm that accession commitments must relate to the subject matter
covered by the Marrakesh Agreement or one of the Multilateral Trade Agreements annexed
thereto. In China's view, this "overarching intrinsic link between post-1994 accession protocols and
the Marrakesh Agreement and the multilateral trade agreements annexed thereto is a defining
feature of the WTO accession process."
110
2.3.1.3 The relationship between China's A ccession Protocol, on the one hand, and the
Marrakesh Agreement and the Multilateral Tr ade Agreements annexed thereto, on the
other hand
2.22. China alleges that a proper interpretation of Article XII:1 of the Marrakesh Agreement read
in conjunction with Paragraph 1.2, second sentence, of China's Accession Protocol means that, in
interpreting a specific provision in China's Accession Protocol, the treaty interpreter's initial task is
to analyse to which of the covered agreements listed in Appendix 1 to the DSU that Protocol
provision intrinsically relates. Once that is determined, the Protocol provision is to be treated as an
integral part of such covered agreement.
2.23. According to China, the fact that post- 1994 accession protocols do not figure among the
exhaustive list of covered agreements in Appendix 1 to the DSU, and do not contain features that
many of the Multilateral Trade Agreements possess (including general or security exceptions, or a
modification clause), confirms that post-1994 accession protocols are not self-contained
agreements. China argues that there was no need for the drafters to equip post-1994 accession
protocols with such features, because it was their intention that specific accession protocol
provisions would be treated as integral parts of either the Marrakesh Agreement or one of the
Multilateral Trade Agreements, depending on the su bject matter to which they intrinsically relate.
Thus, a post-1994 accession protocol serves to specify, including by means of "WTO-plus"
provisions, how the covered agreements will apply between the acceding Member and the
incumbent WTO Members.
2.24. China contends that its interpretation of Paragraph 1.2 of its Accession Protocol and
Article XII:1 of the Marrakesh Agreement achieves a coherent characterization of the legal nature
of post-1994 accession protocols, as it avoids problematic implications regarding Member-specific
"WTO-plus" provisions. Under China's interpretati on, the treaty interpreter will first determine
whether the "WTO-plus" provision relates to the same subject matter addressed by one of the
covered agreements, and apply both the "WTO-p lus" provision and that covered agreement
harmoniously. In addition, China maintains that its interpretation provides a coherent explanation
for the enforceability of post-1994 accession protocols under the DSU. Highlighting that post-1994
accession protocols are not listed among the covered agreements contained in Appendix 1 to the
DSU, China explains that the drafters opted to effe ctively link the enforceability under the rules of
the DSU to the establishment of an intrinsic rela tionship between the subject matter of one of the
covered agreements and the various provisions in a post-1994 accession protocol.

108 China's other appellant's submission, para. 61. See also China's appellant's submission, para. 86.
109 China's appellant's submission, para. 77 (referring to Panel Reports, para. 7.91).
110 China's appellant's submission, para. 84.
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2.25. China uses the analogy of a house to illustrate the nature of the WTO single undertaking,
whereby the Marrakesh Agreement provides the foundation, outer walls, and the roof of the
"WTO House", and the Multilateral Trade Agreemen ts annexed thereto are rooms in this house.
According to China, a treaty interpreter analysing a provision of China's Accession Protocol must
identify the appropriate "room" or "rooms" in the "WTO House" where each accession protocol
provision will take up residence. Thus, China argues, the proper way to consider post-1994
accession protocols is to think of provisions contained therein as "new coats of paint or furniture
items in the individual agreement rooms of the WTO House".
111 A Member's "terms" of accession
may therefore rewrite, or add new substantive provisions to, specific provisions of the Marrakesh
Agreement and its annexed agreements.
2.26. China further submits that, "[i]rrespective of the interpretation of Article XII:1 [of the
Marrakesh Agreement] and Paragraph 1.2 of China's Accession Protocol", its Accession Protocol is
properly characterized as a "subsequent agreement" relating to the same subject matter in the
sense of Article 30 of the Vienna Convention on the Law of Treaties
112 (Vienna Convention). 113
Moreover, China contends that it has used the expression "intrinsic relationship" to describe the
link between the subject matter of a given accession commitment and the subject matter of one or
more provisions in the Marrakesh Agreement and its annexed agreements. Yet, "the label used to
describe this relationship", whether it be "intrinsic relationship", "conceptual unity", or "shared
subject matter", is "of no consequence".114 In all cases, panels faced with a specific commitment of
China's Accession Protocol must seek to link the subject matter of that commitment with the
subject matter of one or more provisions of th e Marrakesh Agreement and the Multilateral Trade
Agreements annexed thereto. To the extent that a given accession commitment stands in conflict
with one or more provisions in the Marrakesh Agreement or the Multilateral Trade Agreements
annexed thereto, such conflict is resolved accord ing to the rule under Article 30(3) of the Vienna
Convention.
115 Thus, for example, China argues that Article XI:1 of the GATT 1994 has been
modified by Paragraph 11.3 of China's Accession Protocol and, as a result, China may not impose
export duties.
2.27. Finally, China reiterates that it is not seeking reversal of the Panel's finding that Article XX
of the GATT 1994 is not available to justify a breach of Paragraph 11.3 of China's Accession
Protocol. Moreover, China is not requesting the Appellate Body to depart from the same finding it
made in China – Raw Materials. China expresses the view that the Appellate Body can, and should,
find a way to endorse fully China's arguments in the present disputes "in a manner that stands in
harmony with" the Appellate Body's decision in China – Raw Materials.
116
2.3.2 Article XX(g) of the GATT 1994
2.3.2.1 Article XX(g) – "Relating to" the conservation of exhaustible natural resources
2.28. China requests the Appellate Body to reverse the Panel's finding that China's export quotas
for rare earths and tungsten send "perverse signals" to the domestic users and, consequently, do
not relate to conservation in the sense of Article XX(g) of the GATT 1994. 117 Further, to the extent
that the Panel's errors in connection with its analysis of the "relating to" requirement taint the
Panel's conclusion that China's export quotas on rare earths and tungsten cannot be provisionally
justified under subparagraph (g) of Article XX of the GATT 1994, China requests the Appellate
Body also to reverse this conclusion.

111 China's opening statement at the oral hearing. At the oral hearing, China characterized the bicycle
analogy provided by the European Union (see paragraph 2.132 of these Reports) as "inapt", and argued that
China's Accession Protocol is neither a "wheel" nor a "saddle bag" of the bicycle of the WTO single undertaking,
but "is akin to an extra layer of paint over parts or the whole of the bicycle".
112 Done at Vienna, 23 May 1969, UN Treaty Series, Vol. 1155, p. 331.
113 Article 30 of the Vienna Convention concerns the "[a]pplication of successive treaties relating to the
same subject-matter".
114 China's opening statement at the oral hearing.
115 Article 30(3) of the Vienna Convention states: "When all the parties to the earlier treaty are parties
also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the
earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty."
116 China's opening statement at the oral hearing.
117 China's appellant's submission, para. 207; other appellant's submission, para. 138. In particular,
China requests the Appellate Body to reverse the Panel's findings in paragraphs 7.279-7.293, 7.444,
7.446-7.448, 7.541-7.542, 7.604, 7.725, and 7.731 of the Panel Reports.
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2.29. First, China contends that the Panel erred in its interpretation of the term "relating to" in
Article XX(g) of the GATT 1994 by considering that, as a general rule, in order to ascertain
whether there is a relationship of ends and me ans between a measure and its objective, it is
appropriate for a panel to consider "solely" the general structure and design of the measure at
issue
118, to the exclusion of any evidence regarding th e effects of the measure in the marketplace.
Second, China submits that the Panel erred in its application of Article XX(g) in finding that China's
export quotas cannot relate to conservation because, as a matter purely of structure and design,
the quotas send a "perverse signal" to domestic users, while refusing to examine evidence that
there are no such "perverse signals" in practice. Third, China alleges that the Panel contravened
Article 11 of the DSU by failing to conduct an ob jective assessment of the matter, including the
facts, and by providing incoherent reasoning.
2.3.2.1.1 The Panel's interpretation of the term "relating to"
2.30. China requests the Appellate Body to re verse the Panel's interpretation of the term
"relating to" in Article XX(g) of the GATT 1994, "to the extent that this interpretation required the
Panel to examine solely the structure and design of China's export quotas".
119
2.31. In China's view, the Panel considered that, as a general rule, in order to ascertain whether
there is a relationship of ends and means between a measure and its objective, it is appropriate
for a panel to consider "solely" the general structure and design of the measure at issue. Thus,
according to China, the Panel determined that it s assessment should proceed to the exclusion of
any evidence regarding the effects of the export quotas in the marketplace together with other
elements of China's conservation scheme. China co ntends that this approach by the Panel was in
error, because the enquiry into whether a measure relates to conservation under Article XX(g) of
the GATT 1994 cannot properly be done if a panel cons trains itself not to look at evidence of the
regulatory context in which the alleged conservati on measure is implemented and how it operates
in the marketplace for relevant goods.
2.32. China acknowledges that, in order to determine whether a measure is a genuine means to
the realization of conservation ends, a panel must have regard to the general structure and design
of the measure, and that sometimes, as in US – Shrimp , consideration of such structure and
design may be enough for a panel to determine that a measure is related to conservation.
However, China stresses that consideration of an impugned measure's structure and design alone
may not be enough to determine whether it is indeed a means to the realization of a Member's
conservation objectives. In China's view, the Pane l erred by insisting that the examination of a
challenged measure's relationship with conservation "must focus on the 'design and structure' of
the measure ... which, together with the measure' s text, must demonstrate a clear link with the
conservation objective", and by finding that this somehow required the Panel not to consider
available evidence on how the measure actually operates.
120 Thus, although the Panel correctly
recognized that a measure cannot be considered in isolation and without regard to the regulatory
context, the Panel did just that by asserting that it was legally bound to examine only the text,
structure, and design of the measure, and not ho w the measure actually works in the context of
China's comprehensive conservation programme. According to China, this constitutes legal error.
2.33. China adds that, where evidence sheds light on how a measure actually operates, a proper
analysis under Article XX(g) of the GATT 1994 cannot end with "abstract conclusions" about the
structure and design of the measure. Unless a responding Member succeeds in showing that its
measure relates to conservation, based on its design and structure, or there is no evidence
regarding the operation of a regulatory scheme, a panel should also have regard to how the
regulatory scheme of trade and domestic measures operates in the market as a means to the
realization of conservation ends.
121 China underlines that the absence of a requirement for a
defending Member to prove empirically that its measure actually has conservation effects does not
mean that such evidence can be "legally rejected and ignored by a panel" when it is put forward

118 China's appellant's submission, para. 155; other appellant's submission, para. 86.
119 China's appellant's submission, para. 208; other appellant's submission, para. 139 (referring to Panel
Reports, paras. 7.279-7.293).
120 China's appellant's submission, para. 159; other appellant's submission, para. 90 (referring to Panel
Reports, para. 7.290).
121 China's appellant's submission, para. 166; other appellant's submission, para. 97 (referring to Panel
Reports, para. 7.446).
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by the Member invoking Article XX. 122 China submits, therefore, that the Panel erred by "legally"
rejecting and ignoring such evidence.
2.34. Referring to a statement made by the Appellate Body in US – Gasoline recognizing that
consideration of a measure's predictable effects may in certain circumstances be relevant, China
suggests that it would be strange if the "predictable effects of a measure" could shed useful light
on whether the measure is related to conservation goals, but the actual effects could not. 123 China
highlights that, in the context of determining whether there is a "contribution" (i.e. a "genuine
relationship of ends and means" 124) under Article XX(b) of the GATT 1994, the Appellate Body has
emphasized that "[s]uch a demonstration can of course be made by resorting to evidence or data,
pertaining to the past or present, that establishes" the contribution.
125 For China, just as under
Article XX(b), the demonstration that a measure relates to conservation under Article XX(g) can
also be made by resorting to evidence or data. China suggests that such evidence of actual effects,
particularly when proffered in conjunction with other elements of a conservation programme, can
be highly illuminating as to whether a measure provides a genuine means for the realization of its
regulatory conservation ends.
2.35. China adds that a Member invoking Article XX(g) is not required to show actual effects in
the marketplace in order to provisionally justify a measure. Instead, it is enough to show that a
measure is apt to produce a contribution to the ac hievement of its objective; or, put another way,
that it genuinely provides a means to realize the conservation of natural resources. According to
China, the possibility to determine what a measure is "apt" to achieve recognizes that, in the case
of certain measures – notably the kinds of environmental measures covered by subparagraphs (b)
and (g) – the results of regulatory actions might only be observable with the benefit of time.
126
China indicates that a panel may therefore measure the "aptness" of what a measure is capable of
achieving through making quantitative projections into the future, or by using qualitative
reasoning supported by tested hypotheses supported by evidence.
2.3.2.1.2 The Panel's application of the "relating to" requirement
2.36. China alleges that, although the Panel correctly stated that a measure cannot be considered
in isolation and without regard to the regulatory context, the Panel did just that. Having
erroneously asserted that it was legally bound to examine only the text, structure, and design of
the measure, the Panel proceeded to look solely at the structure and design of China's export
quotas, and failed to engage with considerable evidence as to how these features work as part of
China's comprehensive conservation policy in the context of the reality of the Chinese and world
markets for Chinese rare earths. The Panel's failure to test whether the theoretical "perverse
signals" were actually present in the marketplace for rare earths and tungsten stemmed from the
Panel's incorrect view that it must limit its consideration to the general design and structure, since
Article XX(g) does not require an evaluation of the actual effects of the concerned measures. In
China's view, the Panel erred in curtailing its analysis in this way.
2.37. China considers the Panel's "theoretical assertions and lack of any factual evidentiary
findings" to be "particularly troubling" given that China provided considerable evidence relevant to
the question of whether there actually was a "perverse effect" from the export quotas.
127 First,
China alleges that it: (i) provided extensive eviden ce on the operation and the effects of domestic
extraction and production caps on rare earths; (ii) demonstrated that it has in place mechanisms
to enforce these caps and has taken regular enfo rcement actions to combat illegal mining and
production; and (iii) provided evidence demonstrating the effects of these measures, including the
decline of extraction and production of rare earths. Second, China contends that it provided

122 China's appellant's submission, para. 154; other appellant's submission, para. 85.
123 China's appellant's submission, para. 153; other appellant's submission, para. 84 (referring to
Appellate Body Report, US – Gasoline, p. 21, DSR 1996:I, p. 20).
124 China's appellant's submission, para. 150; other appellant's submission, para. 81 (referring to
Appellate Body Report, Brazil – Retreaded Tyres, paras. 145 and 210).
125 China's appellant's submission, para. 150; other appellant's submission, para. 81 (quoting Appellate
Body Report, Brazil – Retreaded Tyres, para. 151; and referring to Appellate Body Report, China – Publications
and Audiovisual Products, para. 252).
126 China's appellant's submission, para. 152; other appellant's submission, para. 83 (referring to
Appellate Body Reports, Brazil – Retreaded Tyres, para. 151 and fn 243 thereto; and US – Gasoline, p. 21,
DSR 1996:I, p. 20).
127 China's appellant's submission, para. 168; other appellant's submission, para. 99.
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evidence indicating that the 2012 rare earth export quotas did not have any of the perverse effects
alleged by the Panel, because they neither decreased Chinese domestic rare earth prices nor
encouraged relocation of rare earth-consuming industry to China. Faced with all this evidence, the
Panel was, in China's view, required, at a minimum, to grapple with it before confirming its
presumption that the export quotas at issue result in perverse signals to domestic consumers.
2.38. China further asserts that, even assuming that the Panel could properly limit its analysis to
the structure and design of China's export quotas, the Panel still erred in two additional ways in
applying the "relating to" element of Article XX(g).
2.39. First, separate from its allegation that the Panel failed to consider certain evidence, China
submits that, given the Panel's "two-step approach" to the distinct elements of Article XX(g),
questions about the relationship between the export quotas and domestic restrictions should be
the subject of the second element (namely, "made effective in conjunction with").
128 Thus, the
Panel should have considered the existence and import of domestic restrictions as a distinct
requirement under the second element, rather th an as part of the "relating to" element of
Article XX(g). For China, the Panel's approach of analysing domestic measures as part of the
"relating to" assessment essentially duplicates consideration of an issue that explicitly must be
considered when assessing whether the measure is "made effective in conjunction with" domestic
restrictions. Since the Panel dealt with Article XX(g) as a sequence of separate elements, in which
consideration of "relating to" is an initial step followed by separate consideration of whether the
impugned measure is "made effective in conjunction with" domestic restrictions, the Panel should
have found that the structure and design of China' s export quotas relate to conservation based on
its finding that the quotas can send effective conservation signals to foreign users.
2.40. Second, China avers that, even if the Pane l were right that the general effect of export
quotas is to send domestic users a perverse signal, the existence of a comprehensive conservation
programme, including limitations on domestic production and consumption is, purely as a matter
of structure and design, clearly capable of mitigati ng such perverse effects. In this regard, China
highlights that the Panel accepted that export qu otas can, and do, send a positive conservation
signal to foreign users.
129 The Panel also found that China's export quotas formed part of "a series
of interconnected measures and programmes, including extraction and production caps and
enforcement actions, which are designed to manage the extraction and supply of rare earth
resources through a conservation policy".
130 Although the Panel identi fied the possibility of
perverse signals to domestic users resulting from export quotas, the Panel also found that
"production caps could mitigate the perverse sign als that, in theory, are the general effect of
export quotas." 131 According to China, the Panel further recognized that there are measures in
place – part of a bona fide rare earth conservation policy – that could limit domestic production.
China therefore asserts that, given that production caps could, in principle, mitigate the theoretical
perverse signals found by the Panel, the theoretical sum of the design and structure of this
regulatory scheme is one that is apt to make a positive overall contribution to the realization of
China's conservation objectives. China acknowledges that the "degree of contribution" would –
within the architecture of this regulatory schem e – depend on how the regulatory scheme actually
operates.
132 However, China reiterates that the Panel denied the opportunity for China to prove,
through evidence of the operation of the measure, how its comprehensive conservation
programme actually mitigates the theoretical perverse signals that the Panel had identified.
2.3.2.1.3 Article 11 of the DSU
2.41. China raises a number of claims that the Panel erred under Article 11 of the DSU in reaching
its finding that China's export quotas on rare earths and tungsten do not relate to conservation by

128 China's appellant's submission, para. 176; other appellant's submission, para. 107. China's reference
to the "two-step" approach relates to the Panel's separate analyses of: (i) whether China's quotas relate to
conservation; and (ii) whether China's export quotas were made effective "in conjunction with domestic
restrictions".
129 China's appellant's submission, para. 178; other appellant's submission, para. 109 (referring to Panel
Reports, paras. 7.443 and 7.725).
130 China's appellant's submission, para. 178; other appellant's submission, para. 109 (quoting Panel
Reports, para. 7.375).
131 China's appellant's submission, para. 178; other appellant's submission, para. 109 (referring to Panel
Reports, paras. 7.446 and 7.725).
132 China's appellant's submission, para. 180; other appellant's submission, para. 111.
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virtue of their signalling function. China asserts that the Panel's finding is merely a presumption
and lacks an evidentiary basis. China also identifies three instances where, according to China, the
Panel lacked an evidentiary basis for its findings or failed to "reconcile its findings" with contrary
evidence, and one instance in which, in China's view, the Panel engaged in incoherent reasoning.
2.42. China asserts that the Panel's finding that China's export quotas on rare earths and
tungsten are liable to send "perverse signals" to domestic consumers is merely a presumption. The
Panel cited no evidence or any other support in the record for its finding that export quotas are
likely to stimulate domestic consumption by effectively reserving a supply of low-price raw
materials for use by domestic downstream industries and encourage relocation of
rare earth-consuming industries to China. Nor did the Panel cite any evidence in support of its
suggestion that the "general effect of an export quot a" is to increase the cost of a raw material for
foreign consumers but decrease its cost for domestic users.
133 China considers the Panel's failure
to explain the basis for its presumption to be "a ll the more troubling" because China submitted
evidence showing that, in some circumstances, the export quota would have no effect on prices or
levels of consumption for either domestic or foreign consumers 134, as well as evidence showing
that any difference between domestic and foreign prices could not have been caused by the export
quota.
135 This, according to China, required the Panel to explain, based on economic evidence, how
it reached the conclusion that export quotas will "always", as a "general effect", reduce domestic
prices when compared to export prices.136
2.43. China also points to the substantial evidence that it submitted demonstrating that the
export quota on rare earths does have the positive conservation effect that the Panel recognized
the export quotas could have. In China's view, it provided evidence that the export quota signals
were working by demonstrating the considerable in crease in the number of new rare earth mining
projects starting up outside China and securing investment since 2010. The export quotas were
also linked to the development, in China and abroad, of substitutes and the initiation of recycling
efforts. China submitted specific evidence of ra re earth recycling projects conducted by Chinese
enterprises and of research and development and recycling projects being prepared. According to
China, such developments are linked to the conservation signals produced by the export quotas.137
2.44. China further argues that the Panel failed to reconcile its findings with evidence
demonstrating that China's rare earth export quota did not send "perverse incentives" that could
have cancelled out its positive contribution to conservation. First, China refers to evidence that
suggests that domestic prices for rare earths increased, and domestic consumption decreased,
between January 2011 and January 2013, and that there was a considerable narrowing of the gap
between foreign and domestic prices for several important rare earth metals.
138 Second, China
refers to additional relevant evidence that it submitted showing limited investment by foreign
companies in downstream industries in China, as well as to the lack of any evidence of such
foreign downstream users of rare earths relocating to China after 2007 – i.e. the time when the
export quota volumes were cut for the first time. On this basis, China asserts that the Panel failed
to reconcile its findings with evidence demonstrating that China's rare earth export quotas did not
send "perverse incentives" that could have cancelled out their positive contribution to
conservation.
139
2.45. China alleges that the pricing evidence it submitted to the Panel, at a minimum, raises
significant doubts about the legitimacy of the pr esumption of perverse effects in the form of

133 China's appellant's submission, para. 188; other appellant's submission, para. 119 (referring to Panel
Reports, para. 7.541).
134 China's appellant's submission, para. 189; other appellant's submission, para. 120 (referring to Panel
Exhibit CHN-157).
135 China's appellant's submission, para. 189; other appellant's submission, para. 120 (referring to
China's second written submission to the Panel, para. 122; and Panel Exhibit CHN-157).
136 China's appellant's submission, para. 190; other appellant's submission, para. 121.
137 China's appellant's submission, para. 192; other appellant's submission, para. 123 (referring to
China's response to Panel question No. 91, paras. 107 and 108; and Panel Exhibits CHN-192, CHN-193, and
CHN-214).
138 China's appellant's submission, paras. 194 and 195; other appellant's submission, paras. 125
and 126 (referring to China's opening statement at the first Panel meeting, Table 1, and paras. 41 and 42; and
Panel Exhibit CHN-132).
139 China's appellant's submission, para. 200; other appellant's submission, para. 131 (referring to
China's opening statement at the second Panel meeting, para. 57; and Panel Exhibits CHN-186 and CHN-191).
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domestic prices being driven down in correlation to the degree to which they drive up export
prices. In China's view, since this evidence "squarely contradicts"140 the proposition that the export
quotas provide either a price advantage or a pe rverse signal and incentive to the important
Chinese users of these rare earth elements, the Panel's failure to address this evidence calls into
question the objectivity of the Panel's assessment. Furthermore, in the light of this evidence, the
critical question for the Panel, in applying Article XX(g) of the GATT 1994, should have been
whether the presumed "perverse signal" allegedly incentivizing domestic consumption was actually
present, given the characteristics and operation of the Chinese domestic markets for rare earths
and tungsten in 2012 and 2013. However, the Panel failed to reconcile the evidence that conflicted
with its conclusion. For China, the Panel failed to make an objective assessment of the facts,
because it did not address all of the above evidence that calls into question the validity of the
Panel's presumption that export quotas send perverse signals to domestic Chinese users of rare
earths by guaranteeing a supply of low-priced rare earths.
2.46. China also contends that the Panel's findings are based on incoherent reasoning. China
requests the Appellate Body to reverse the Panel's findings because, based on the Panel's own
view that domestic restrictions can mitigate any perverse signal given to domestic users by export
quotas, China's export quotas are capable of providing a genuine means to China's conservation
ends. In China's view, it is "incoherent, improper, and remarkable"
141 for the Panel to have
recognized that the key issue of its "relating to" analysis depends on the level at which the
production quota is set and the way in which the export and production quotas interact, but to
then have refused to consider any evidence of these very alleged effects.
2.47. China concludes by asserting that the Panel's failure to conduct an objective examination of
evidence contrary to its presumption contravenes Article 11 of the DSU. For China, the Panel's
failure to consider material evidence had a "bearing on the objectivity of the panel's factual
assessment" and resulted in the Panel engaging in incoherent reasoning.
142 China contends that,
had the Panel made an objective assessment of Ch ina's evidence that the export quotas did not
create the price difference or relocation effects that the Panel assumes export quotas always have,
it would have concluded that the export quotas relate to conservation.
2.3.2.2 Article XX(g) – "Made effective in conjunction with" restrictions on domestic
production or consumption
2.48. China requests the Appellate Body to reverse the Panel's finding that China's export quotas
on various forms of rare earths, tungsten, and molybdenum are not "made effective in conjunction
with" domestic restrictions. 143 Further, China requests that, "[t]o the extent the Panel's errors in
connection with the analysis of the 'made effective in conjunction with' requirement taint the
Panel's conclusions … that China's export quotas on rare earths, tungsten, and molybdenum
cannot be provisionally justified under Article XX( g) of the GATT 1994", the Appellate Body also
reverse this conclusion.144
2.49. China alleges, first, that the Panel erred in its interpretation of Article XX(g) by requiring a
separate and distinct enquiry into whether the burden of conservation-related measures is
imposed in a balanced way between domestic and foreign consumers and producers. Second,
China contends that the Panel erred in its interpretation of Article XX(g) by finding that it must
limit the analysis under its additional "even-handedness" test to considering the structure and
design of the measures, to the exclusion of eviden ce regarding the actual operation and impact of
the measures. Third, China submits that the Panel erred in its application of Article XX(g) by
applying an "additional" requirement of "even-handedness" that required a balance in the
conservation burden imposed on foreign and domestic consumers and producers; and by focusing
on the structure and design of the measures, to the exclusion of their operation. Fourth, China

140 China's appellant's submission, paras. 198 and 199; other appellant's submission, paras. 129
and 130.
141 China's appellant's submission, para. 206; other appellant's submission, para. 137.
142 China's appellant's submission, para. 207; other appellant's submission, para. 138 (referring to
Appellate Body Report, EC – Fasteners (China), para. 442).
143 In particular, China requests the Appellate Body to reverse the Panel's findings in paragraphs 7.301,
7.314-7.337, 7.568-7.599, 7.792-7.809, and 7.919-7.935 of its Reports.
144 In this regard, China refers to paragraphs 7.600-7.614, 7.810-7.820, 7.936-7.944, 8.2.c, 8.7.c,
and 8.12.c of the Panel Reports. (China's appellant's submission, para. 324; other appellant's submission,
para. 255)
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asserts that, through its failure properly to engage with evidence relating to the operation of
China's domestic restrictions, its incoherent reasoning, and its use of a "double standard" in
applying its "even-handedness" test, the Panel fa iled to make an objective assessment of the
matter, including an objective assessment of the facts, under Article 11 of the DSU.
145
2.3.2.2.1 The Panel's interpretation of the phrase "made effective in conjunction with"
restrictions on domestic production or consumption
2.50. First, China alleges that the Panel erred in its interpretation of the phrase "made effective in
conjunction with" restrictions on domestic production or consumption by requiring a separate and
distinct enquiry into whether the regulatory system "distributes the burden of conservation-related
measures between domestic and foreign consumers in a balanced way". 146 China takes issue with
the Panel's introduction into subparagraph (g) of Article XX of a requirement that there be a
balance between China's export quotas and domestic production restrictions. As found by the
Appellate Body in US – Gasoline, where the Appellate Body used the term "even-handedness" for
the first time as a shorthand reference for the "made effective in conjunction with" requirement,
subparagraph (g) requires only that the ex port restrictions work together with some domestic
restriction towards a conservation goal. There is no added requirement under subparagraph (g) for
a panel to investigate the relative burdens of conservation borne by foreign and domestic
consumers or producers to determine that they ar e equally shared or "balanced". For China, such
an analysis of the relative "burdens" is relevant, instead, under the chapeau of Article XX.
2.51. China maintains that under a proper in terpretation of the terms "made effective in
conjunction with", so long as genuine domestic restrictions are imposed by a Member, it is not
relevant to determine whether the intensity or magnitude of those restrictions is in balance with
the intensity or magnitude of trade restrictions under the impugned measure. For China, the
second clause of Article XX(g), and a proper und erstanding of "even-hand edness" deriving from
that legal standard, require that there be some domestic restrictions present that work together
with the impugned measure, and that, together, they relate to conservation. The Panel, however,
found that the second clause of Article XX(g) requires more than the existence of a burden on both
foreign and domestic users. The Panel considered that this element requires, in addition, that the
burden be evenly shared, as evidenced by its statements that "the even-handedness criterion is
satisfied where the regulating Member can show that … it has … imposed real conservation
restrictions on the domestic production or consumption" so as to "distribute the burden of
conservation between foreign and domestic consumers in an even-handed or balanced manner".
147
In so finding, China asserts that the Panel departed from the Appellate Body's case law and
developed its own erroneous legal standard.
2.52. Referring further to the Appellate Body report in US – Gasoline , China submits that the
essence of the obligation in subparagraph (g) lies in ensuring that, just as an impugned measure
may restrict trade as a means to conservation ends, so too must there be some domestic
restriction imposed that works together with the trade measure.
148 For China, however, the
Appellate Body did not suggest that there was a requirement for a panel to investigate identity,
substantive complementarity, impartiality, or balance in the quantitative or qualitative scope of the
restrictions imposed by the trade measure and by the domestic measure. Rather, the
Appellate Body seemed to "eschew any such requirement".
149 Accordingly, China maintains that
there is no requirement to examine under su bparagraph (g) the relative burdens borne,
respectively, by foreign and domestic interests.
2.53. China submits that, in US – Shrimp , the Appellate Body considered the existence of a
domestic restriction sufficient to find that the measure at issue in that dispute was an

145 China's appellant's submission, para. 291; other appellant's submission, para. 222.
146 China's appellant's submission, para. 213; other appellant's submission, para. 144 (referring to Panel
Reports, para. 7.332).
147 China's appellant's submission, para. 227; other appellant's submission, para. 158 (quoting Panel
Reports, para. 7.337).
148 China's appellant's submission, para. 232; other appellant's submission, para. 163 (referring to
Appellate Body Report, US – Gasoline, p. 21, DSR 1996:I, p. 19).
149 China's appellant's submission, para. 233; other appellant's submission, para. 164 (referring to
Appellate Body Report, US – Gasoline, pp. 20-21, DSR 1996:I, p. 19).
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"even-handed" measure.150 The restrictions at issue in that case operated differently for foreign
and for domestically caught shrimp. China emphasizes that this did not affect the Appellate Body's
conclusion that the restrictions were applied "even-handedly", and notes that the Appellate Body
did not assess whether the degree of burden impo sed by the trade measure and by the domestic
restrictions was qualitatively or quantitatively balanced.
2.54. China further contends that, in China – Raw Materials , the Appellate Body summarized and
consolidated the case law on the meaning of "made effective in conjunction with".
151 For China, the
Appellate Body has consistently found that there must be a measure that works together with the
impugned measure towards conservation, but the Appellate Body has not required that the relative
burden of the foreign and domestic restrictions be balanced. Rather, the term "even-handedness"
has been used by the Appellate Body as a shorthand reference for the requirement that there must
be some domestic restriction that works together with the impugned measure towards
conservation. However, China submits that this does not mean that a panel must assess, under
subparagraph (g), whether the relative burden of the foreign and domestic restrictions is balanced,
as the Panel in this case found.
2.55. China adds that the chapeau of Article XX provides contextual support for its position. Under
the chapeau of Article XX, a panel must assess whether there is discriminatory treatment of
foreign and domestic users, and, moreover, whether such discrimination is "arbitrary or
unjustifiable". The test under the chapeau therefore requires consideration of the respective
conservation burdens borne by different countries under the measure. China contends that it
would deprive the chapeau of its utility if the test under subparagraph (g) also required
substantive balancing, and that this would be contra ry to the logical structure of Article XX of the
GATT 1994 and to the principle of effective treaty interpretation.
2.56. Second, China alleges that the Panel also erred in its interpretation of Article XX(g) by
limiting its analysis of the "even-handedness" criterion to an assessment of the "structure and
design" of the impugned measure and by declining to examine evidence of the actual operation or
effects of the measure.
152 China alleges that, in doing so, the Panel denied China the opportunity
to show, based on evidence of the actual operatio n or effects of the measure, that its measures
work together towards conservation.
2.57. China maintains that the analysis of an impugned measure under subparagraph (g) must
take into account the "structure and design" of the measure. However, the analysis of such
structural elements cannot properly be undertaken in isolation from evidence demonstrating the
actual operation of the measures and their market impact. China contends that the Appellate Body
recognized in China – Raw Materials that the analysis under Article XX(g) is not limited to
considerations of the "structure and design" of the measure, but includes consideration of how a
challenged measure and a domestic restriction operate together as a means to conservation
ends.
153 For China, consideration of the "operation" of a measure generally requires an inquiry into
how it functions in practice, in the marketplace.
2.58. China further argues that the Panel erred in relying on a statement by the Appellate Body in
US – Gasoline that subparagraph (g) does not require a respondent to meet an "empirical 'effects
test'" in order for a measure to be provisionally justified under subparagraph (g). 154 While the
Appellate Body in that case held that such an assessment was not strictly necessary, it also
recognized that "predictable effects" could be relevant in the analysis of whether a measure is a
means to conservation ends. China submits that the Appellate Body report in US – Gasoline does
not stand for the proposition that a panel is precluded, under subparagraph (g), from considering
evidence concerning the operation of the impugned measure in its broader regulatory context.

150 China's appellant's submission, para. 236; other appellant's submission, para. 167 (referring to
Appellate Body Report, US – Shrimp, para. 121).
151 China's appellant's submission, para. 237; other appellant's submission, para. 168 (referring to
Appellate Body Reports, China – Raw Materials, para. 356).
152 China's appellant's submission, para. 246; other appellant's submission, para. 177 (referring to Panel
Reports, paras. 7.332, 7.336, and 7.337).
153 China's appellant's submission, para. 252; other appellant's submission, para. 183 (quoting Appellate
Body Reports, China – Raw Materials, para. 356).
154 China's appellant's submission, paras. 254 and 255; other appellant's submission, paras. 185
and 186 (referring to Appellate Body Report, US – Gasoline, p. 21, DSR 1996:I, p. 20).
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2.59. In addition, China takes issue with the Panel's statement that consideration of the operation
or effects of a measure under subparagraph (g) would deprive the chapeau of its utility, because
the chapeau itself is concerned with the "application and effects" of a measure.
155 The inquiry
under the chapeau does not mandate a "simplistic, bright-line distinction" between consideration
of the "application" of a measure, on the one ha nd, and of its "structure and design", on the
other.156 China maintains that, although the chapeau of Article XX refers to the "application" of a
measure, this does not mean that consideration of the operation of a measure is not relevant in
considering the application of subparagraph (g). In support of this argument, China points to case
law confirming that a proper understanding of the WTO-consistency of a measure under the
substantive provisions of the GATT 1994 is not dete rmined solely on the basis of its design and
structure, but should also take into account the manner in which the measure is expected to apply
or actually applies (its "expected operation"). 157 China sees "nothing remarkable" in the fact that
the same evidence may be relevant for different legal elements under the covered agreements.158
2.3.2.2.2 The Panel's application of th e "made effective in conjunction with"
requirement
2.60. China alleges that the Panel also erred in its application of the clause "made effective in
conjunction with restrictions on domestic production or consumption" for two reasons: first, the
Panel applied an "additional" requirement of "even-handedness" requiring "balance" in the
conservation burden imposed on foreign and domestic consumers and producers; and, second, the
Panel erred by focusing on the structure and design of the domestic restrictions, to the exclusion
of its operation.
159
2.61. With regard to the first point, China contends that the Panel's error in applying
subparagraph (g) flows directly from its interpretative finding that there is an additional
requirement of "balance" under that provision. Accordingly, the Panel required that there be
equivalence or symmetry in the nature, kind, and quantity of the restrictions imposed by China on
domestic and foreign consumers and producers. In particular, the Panel found that, because there
is no "domestic counterpart" to the export restrictions on rare earths, tungsten, and molybdenum –
such as, limits on domestic consumption or a tax that applies exclusively to domestic consumers –
China's export quota system is not "even-handed ". China, however, contends that it was not
required to show, in addition, that its domestic and foreign restrictions are of the same nature, in
the sense that, just as export quotas apply exclusively to exports, domestic restrictions apply
exclusively to domestic users.
2.62. China also takes issue with the Panel's finding that China had not proven that its measures
do not discriminate in favour of domestic consumers because, for instance, there is a
"consumption assurance" for domestic users, and China had, therefore, not discharged its burden
of establishing "even-handedness".
160 China submits that it was not required to show that, through
its domestic restrictions, it does not discriminate in favour of domestic consumers.
2.63. With regard to the second point, China a lleges that, because of its erroneous "structure and
design" interpretation of subparagraph (g), the Panel adopted an "evidentiary straightjacket" 161
that prevented it from considering substantial evidence relating to the operation or impact of the
measures in the domestic market. China contends that this evidence would have shown that the
domestic restrictions and the export quotas indeed work jointly towards a conservation purpose.
2.64. China alleges three particular errors of application with respect to its contention that the
Panel erred in focusing on the structure and design of the measures at issue. First, China points
out that the Panel acknowledged that China has adopted a series of bona fide conservation

155 China's appellant's submission, para. 260; other appellant's submission, para. 191 (referring to Panel
Reports, para. 7.337).
156 China's appellant's submission, para. 261; other appellant's submission, para. 192.
157 China's appellant's submission, para. 261; other appellant's submission, para. 192 (referring to
Appellate Body Reports, Thailand – Cigarettes (Philippines), para. 130; EC – Selected Customs Matters,
158 China's appellant's submission, para. 262; other appellant's submission, para. 193.
159 China's appellant's submission, para. 267; other appellant's submission, para. 198.
160 China's appellant's submission, para. 273; other appellant's submission, para. 204 (referring to Panel
Reports, paras. 7.594, 7.809, and 7.935).
161 China's appellant's submission, para. 278; other appellant's submission, para. 209.
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measures including extraction and enforcement actions, and that these measures were designed to
ensure that domestic Chinese consumers do not have unlimited access to rare earth resources. 162
China explains that the export quotas work in the same way to ensure that foreign users do not
have unlimited access to China's rare earth resources, and that it provided evidence demonstrating
that the domestic restrictions and export quotas work together to send signals to domestic and
foreign rare earth users, respectively, and thus positively contribute to China's conservation
objective.
2.65. Second, China observes that, in finding that the export quotas were not "made effective in
conjunction with" domestic restrictions, the Panel re ferred to four specific factors relating to the
export, extraction, and production quotas that it found to be probative, namely: (i) the different
levels and timing of the export, extraction, and production quotas; (ii) the different product scopes
of the export, extraction, and production quotas; (iii) the fact that unused export quota shares are
permitted to be resold into the domestic market and no explicit consumption quota exists that
applies solely to domestic users; and (iv) in the case of rare earths, the fact that the export quotas
have existed since at least 2002, while the domestic restrictions have existed only since 2006
(extraction quota) and 2007 (production quota). China alleges that, in considering these four
factors, the Panel failed to explain or demonstrate why these four factors discounted the restrictive
effect on domestic Chinese consumers of enfo rced extraction and production quotas. China
emphasizes that it demonstrated that its extraction and production quotas are maintained at levels
that are enforced by a wide range of measures and thus place an overarching limit on total
extraction and production.
2.66. However, even assuming that these four factors were relevant to the Panel's analysis, China
asserts that the Panel erred because it failed to explain or demonstrate how they were relevant.
With respect to the timing of the 2012 export, extraction, and production quotas, China alleges
that the Panel failed to address evidence submitted by China as to the manner in which allocation
of the quotas is coordinated among the competent ministries. Regarding the levels of the quotas,
China asserts that the Panel focused on the fact that unfilled export quota amounts are redirected
to the domestic market, but that it failed to grapple with arguments made by China that such
unfilled export quota amounts need not necessarily be redirected.
2.67. With regard to the "even-handedness" factor, China maintains that the Panel's consideration
of whether there are measures exclusively affecting domestic users was irrelevant. China also
alleges that the Panel did not address or grapple with arguments and evidence submitted by China
explaining why it has not adopted an explicit domestic consumption quota.
163 With respect to the
fourth factor, that is, the temporal connection between the quotas, China alleges that the Panel also
failed to address certain evidence showing a temporal connection in the way that the domestic and
export quotas work together as part of China's conservation policy. In that respect, China refers to
"more detailed arguments" set out in the context of its allegations of error under Article 11 of the
DSU.164
2.68. Third, China asserts that, even if there were a "balancing" requirement under
subparagraph (g), the Panel erred in the application of its own test by failing to take account of
evidence that domestic and foreign restrictions operate to impose equivalent burdens on domestic
and foreign users. China submits that the Panel did not discuss or engage with relevant evidence
that showed either a similar restrictive effect, or a lack of any restrictive effect, on both domestic and
foreign users. In particular, China refers to evidence submitted in support of its argument that, in
2011 and 2012, none of the rare earth export quotas were filled
165; evidence suggesting that there
were no significant differences in foreign and domestic prices for rare earths by late 2012 and

162 China's appellant's submission, para. 279; other appellant's submission, para. 210 (referring to Panel
Reports, para. 7.375).
163 China's appellant's submission, para. 284; other appellant's submission, para. 215 (referring to
China's second written submission to the Panel, paras. 84 and 86-100; opening statement at the second Panel
meeting, paras. 40-45; and response to Panel question No. 123, paras. 262-265).
164 China's appellant's submission, fn 232 to para. 281; other appellant's submission, fn 194 to
para. 216.
165 China's appellant's submission, para. 286; other appellant's submission, para. 217 (referring to Panel
Exhibit CHN-191).
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2013 for the most important rare earth products166; evidence to establish that, since January 2007,
domestic prices of roasted molybdenum concentrate have been consistently higher than prices
paid by European purchasers 167; and evidence demonstrating that the conservation signal sent by
the export quota and domestic restrictions is effective for both foreign and domestic rare earth
users.168
2.3.2.2.3 Article 11 of the DSU
2.69. China further alleges that the Panel failed to make an objective assessment of the matter as
required by Article 11 of the DSU. In particular, China alleges that the Panel failed properly to
address certain evidence relating to the operation of China's domestic restrictions and export
quotas, that the Panel engaged in incoherent re asoning; and that the Panel applied a "double
standard" in applying its test of "even-handedness".
2.70. With regard to its allegation that the Panel failed properly to address certain evidence
relating to the operation of China's domestic restrictions and export quotas, China takes issue,
first, with the Panel's analysis of the timing of the 2012 export, extraction, and production quotas.
China alleges that the Panel failed to address evidence submitted by China as to the manner in
which allocation of the quotas is coordinated between the competent ministries, and contends that
all quota levels are set by the competent ministri es at the same time, even if the dates of the
actual publication of the volumes may differ.
169
2.71. Second, China maintains that, with respect to the levels of the quotas, the Panel focused on
the fact that export quota shares not used by foreign users are redirected to the domestic market,
but in doing so failed to address arguments made by China that the unfilled export quota amounts
need not necessarily be redirected. China contends that, in any event, redirection of quota shares
was not a relevant factor in determining whether the export quotas work in conjunction with the
domestic restrictions.
170
2.72. Third, regarding "even-handedness", China contends that the Panel's consideration of whether
there are measures exclusively affecting domestic users was irrelevant, and that the Panel failed to
address arguments and evidence submitted by China explaining why it has not adopted a domestic
consumption quota, or why there is no need for such a quota.
171
2.73. Fourth, China alleges that the Panel failed to address evidence submitted by China showing a
temporal connection in the way that the domestic and export quotas work together. In particular,
China criticizes the Panel for taking into consideration the non-existence of domestic extraction
quotas between 2002 and 2006 and alleges that the Panel failed to address evidence
demonstrating that, between 2006 and 2012, China did have an extraction quota in place and has
significantly increased its enforcement measures. Ch ina also points to evidence that it submitted
demonstrating that the extraction levels of rare earths in China have declined significantly
since 2006.172

166 China's appellant's submission, para. 286; other appellant's submission, para. 217 (referring to
China's second written submission to the Panel, paras. 138-141, and Table 1; and opening statement at the
second Panel meeting, paras. 53 and 54, and Figure 7).
167 China's appellant's submission, para. 286; other appellant's submission, para. 217 (referring to
China's second written submission to the Panel, paras. 191 and 199-201).
168 China's appellant's submission, para. 286; other appellant's submission, para. 217 (referring to Panel
Exhibit CHN-192).
169 China's appellant's submission, para. 282 and 293; other appellant's submission, paras. 213 and 224
(referring to Panel Reports, para. 7.577; and Panel Exhibits CHN-13, CHN-21, and CHN-63).
170 China's appellant's submission, paras. 283 and 293; other appellant's submission, paras. 214
and 224 (referring to Panel Reports, para. 7.579; and China's response to Panel question No. 123(b),
paras. 258-261).
171 China's appellant's submission, paras. 284 and 293; other appellant's submission, paras. 215
and 224 (referring to China's second written submission to the Panel, paras. 84 and 86-100; opening
statement at the second Panel meeting, paras. 40-45; and response to Panel question No. 123,
paras. 262-265).
172 China's appellant's submission, paras. 294-297; other appellant's submission, paras. 225-228
(referring to China's second written submission to the Panel, para. 39; and China's opening statement at the
second Panel meeting).
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2.74. With regard to its allegation that the Panel engaged in incoherent reasoning, China takes
issue with the Panel's finding that China does not impose domestic restrictions. China refers to
statements by the Panel recognizing that China has a comprehensive and bona fide conservation
policy, encompassing "a series of interconnected measures and programmes, including extraction
and production caps and enforcement actions, wh ich are designed to manage the extraction and
supply of rare earth resources through a conservation policy."
173 China contrasts the Panel's
reasoning with its finding, elsewhere in the Panel Reports, that none of the domestic measures
imposed by China constitute "restrictions". 174 China alleges that, in making these two statements,
the Panel engaged in incoherent reasoning.
2.75. China adds that the Panel ignored certain evidence when it engaged in such incoherent
reasoning. In particular, first, with regard to the Panel's statement that "China has failed to place
before [the Panel] evidence or other demonstration sufficient to support the conclusion that China
set its domestic production quota below the expected level of demand in 2012" 175, China submits
that it provided testimony that the ministries, in setting the 2012 extraction, production, and
export quotas, "did rely on market reports". 176 China further contends that it provided the Panel
with a report in which a rare earth industry expert predicted that, by the end of 2011, the
expected level of rare earth demand would increase. 177 China explains that the ministries
thereafter set the 2012 quota levels below that predicted level of rare earth demand. 178 China
alleges that the Panel failed to assess the relevance of this evidence.
2.76. Second, China alleges that the Panel engaged in incoherent reasoning in finding, on the one
hand, that it should only assess the design, structure, and architecture, rather than the impact, of
the resource tax and, on the other hand, in ac knowledging that, by design and structure, the
increased costs caused by the resource tax could lead to a reduction in demand and therefore limit
production of rare earth ores and work to reduce extraction of rare earths.
2.77. Third, China alleges that the Panel engaged in incoherent reasoning because it failed to
assess objectively the trends in rare earth extraction and production data. China alleges that the
Panel failed to address China's arguments that the extraction, production, and consumption data
suggest that the decreased production and consum ption levels are the result of China's overall
conservation policy.
2.78. Finally, China alleges that the Panel applied a "double standard" in its test of
"even-handedness". China argues that, with respect to the export quotas, the Panel failed to
address the extent to which China's export quotas impose an actual and not merely theoretical
burden on foreign consumers and that, on the contrary, with regard to domestic restrictions, the
Panel focused on whether these restrictions are actually enforced and thus have restrictive effects.
2.4 Arguments of the United States – A ppellee (DS431) and third participant (DS432
and DS433)
2.4.1 Article XII:1 of the Marrakesh Agreem ent and Paragraph 1.2 of China's Accession
Protocol
2.79. The United States submits that China's appeal of the Panel's interpretation relating to
Article XII:1 of the Marrakesh Agreement and Para graph 1.2 of China's Accession Protocol, and its
request for reversal of the related Panel findings, are without merit and should be rejected.

173 China's appellant's submission, para. 299; other appellant's submission, para. 230 (referring to Panel
Reports, para. 7.375).
174 China's appellant's submission, para. 302; other appellant's submission, para. 233 (referring to Panel
Reports, paras. 7.526 and 7.528).
175 China's appellant's submission, para. 302; other appellant's submission, para. 233 (referring to Panel
Reports, para. 7.526).
176 China's appellant's submission, para. 302; other appellant's submission, para. 233 (referring to Panel
Exhibit CHN-63).
177 China's appellant's submission, para. 302; other appellant's submission, para. 233 (referring to Panel
Exhibit CHN-64, p. 4).
178 China's appellant's submission, para. 302; other appellant's submission, para. 233 (referring to Panel
Exhibit CHN-64, p. 4).
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2.80. The United States emphasizes that Ch ina has not appealed the Panel's finding that
Article XX of the GATT 1994 is not applicable to justify a breach of Paragraph 11.3 of China's
Accession Protocol. China also has not appealed the Panel's finding that China's breach of
Paragraph 11.3 in this dispute is not justified under Article XX(b) of the GATT 1994. The
intermediate Panel findings that China does appeal are not specifically addressed to
Paragraph 11.3 of China's Accession Protocol, and their reversal would not lead to the conclusion
that Article XX of the GATT 1994 can be invoked to justify a breach of Paragraph 11.3. The
United States takes note of China's statement that it is seeking coherent guidance on the systemic
relationship between post-1994 accession protocols and the Marrakesh Agreement together with
its annexes. The United States maintains that the purpose of the dispute settlement system is not
to provide "guidance" in the abstract. Moreover, the established application of the customary rules
of treaty interpretation to interpret commitments in China's Accession Protocol, as was done by
the Panel in this case and by pane ls and the Appellate Body in the China – Publications and
Audiovisual Products and China – Raw Materials disputes, does not call for further guidance.
2.4.1.1 Paragraph 1.2 of China's Accession Protocol
2.81. According to the United States, the Pane l rightly rejected China's interpretation of
Paragraph 1.2 of China's Accession Protocol on the basis of a sound analysis grounded in the text
and context of the relevant provisions. The Panel noted that the reference to "the
WTO Agreement" in Paragraph 1.2 means that China's Accession Protocol " in its entirety is made
an integral part of one other agreement".
179 Moreover, the Panel noted that the preamble of
China's Accession Protocol, the Decision of th e Ministerial Conference of 10 November 2001
regarding China's accession to the WTO, and Paragraph 1.3 of China's Accession Protocol all
support a reading of the term "the WTO Agreement" in Paragraph 1.2 as referring to the
Marrakesh Agreement only. The Panel also noted the context provided by Article II:2 of the
Marrakesh Agreement, which indicates that each of the Multilateral Trade Agreements, in its
entirety, is made an integral part of one othe r agreement, i.e. the Marrakesh Agreement. The
Panel additionally noted the relevance of paragraph 1 of the language incorporating the GATT 1994
into Annex 1A, which provides an exhaustive list of what the GATT 1994 consists of and does not
refer to post-1994 accession protocols. Furthermore, the Panel noted that Paragraph 1 of Part II of
China's Accession Protocol, which makes the schedul es of concessions an integral part of the
GATT 1994, would be redundant if all provisions that are intrinsically related to the GATT 1994
were automatically an integral part of the GATT 1994.
180 In this respect, the United States argues,
China fails to explain why the fact that the schedules of concessions may be subject to periodic
negotiation and change from time to time means that specific language incorporating the
schedules into the GATT 1994 would have been required.
2.82. Thus, the United States argues, the Panel's analysis of Paragraph 1.2 of China's Accession
Protocol is not, as China asserts, "a superficial, grammatical analysis".
181 Rather, the Panel's
interpretation of Paragraph 1.2 reflects an interpretation that takes into account all relevant
elements and gives effective meaning to the terms used in that provision and to Article XII of the
Marrakesh Agreement. China's assertion that the reference to "the WTO Agreement" in
Paragraph 1.2 cannot be read as the Marrakesh Agreement alone is therefore "baseless".
182
Moreover, under China's interpretation, the term "[t]his Protocol" in Paragraph 1.2 refers to
provisions thereof, while the term "the WTO Agreement" refers to the "WTO Agreement and the
Multilateral Trade Agreements annexed thereto". In the United States' view, such an approach
contradicts the words actually used in Paragraph 1.2 and is untenable.
2.83. The United States contends that the Panel's interpretation does not, as China suggests,
"jeopardize the internal coherence of the WTO lega l framework" by precluding a provision of the
Accession Protocol from being an integral part of a Multilateral Trade Agreement.
183 The Panel
expressly recognized that a provision of the Accession Protocol could be an integral part of one or

179 United States' appellee's submission, para. 63 (quoting Panel Reports, para. 7.82 (emphasis
original)).
180 United States' appellee's submission, paras. 61-64.
181 United States' third participant's submission, para. 22 (quoting China's appellant's submission,
para. 120).
182 United States' appellee's submission, para. 65 (referring to China's other appellant's submission,
para. 63).
183 United States' appellee's submission, para. 67 (referring to China's other appellant's submission,
para. 65).
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more of the Multilateral Trade Agreements, including the GATT 1994, and properly recognized that
this would "not occur as a result of Paragraph 1.2" but, rather, would occur "if and where such
language is included in the individual provision". 184 Moreover, China provides no support for its
assertion that the Panel's interpretation means that its Accession Protocol must be read together
with the Marrakesh Agreement, thereby preventing it from being read harmoniously with the
covered agreements. Rather, China acknowledges that, pursuant to Article II:2 of the Marrakesh
Agreement, the Multilateral Trade Agreements anne xed thereto are each an integral part of the
Marrakesh Agreement. Although these agreements also cover a range of substantive obligations,
China does not dispute that these agreements are capable of harmonious interpretation. In
addition, the United States contends, China fails to address the fact that its reading of
"the WTO Agreement" in Paragraph 1.2 cannot be reconciled with Article II:2 of the Marrakesh
Agreement unless that provision were similarly interpreted to make all of the Multilateral Trade
Agreements an integral part of one another.
2.84. The United States disagrees with China's argument that the Panel erred in rejecting China's
explanations as to why China's interpretation of Paragraph 1.2 does not render redundant the
explicit references to the GATT 1994 in China's Accession Protocol and Accession Working Party
Report. The United States submits that the langua ge in each of the provisions containing such
explicit references (Paragraphs 5.1, 11.1, and 11.2 of China's Accession Protocol and
Paragraph 160 of China's Accession Working Party Report) provides examples demonstrating that
Members knew when and how to include a refere nce to the GATT 1994 when they wanted to do
so. Moreover, China's argument that the language referring to the GATT 1994 was necessary in
Paragraphs 11.1 and 11.2 because the policy tools covered by these paragraphs are subject to
various obligations in the GATT 1994 is inconsistent with its position that any provisions of its
Accession Protocol that have an "intrinsic relationship" to the GATT 1994 – which would
presumably include Paragraphs 11.1 and 11.2 – are automatically an integral part of the
GATT 1994. Similarly, it is unclear why the la nguage "in a manner consistent with the WTO
Agreement" in the opening clause of Paragraph 5.1 of China's Accession Protocol is necessary
given that, under China's interpretation, Paragraph 5.1 is presumably also "intrinsically related" to,
and thus an integral part of, the GATT 1994.
2.4.1.2 Article XII:1 of the Marrakesh Agreement
2.85. The United States maintains that the Panel correctly interpreted Article XII of the Marrakesh
Agreement and rejected China's argument that Article XII dictates that the provisions of China's
Accession Protocol are an integral part of th e Marrakesh Agreement and the Multilateral Trade
Agreements annexed thereto. China's argument that the Panel "superficially" interpreted
Article XII:1 as "merely serv[ing] to prescribe that newly acceding Members may not 'pick and
choose' amongst the covered agreements" is without basis.
185 Rather, in response to China's
argument that the second sentence of Article XII means that China's Accession Protocol merely
serves to specify China's obligations under those agreements, the Panel correctly began its
analysis by examining the text of Article XII. The Panel's interpretation that, pursuant to
Article XII, second sentence, a new Member is not entitled to pick and choose to which particular
agreements it will accede, is evident from the text of the second sentence of Article XII. In this
regard, the United States contends that China's argument that the Panel's interpretation renders
Article XII:1, second sentence, "excessively na rrow, and thus essentially redundant", is also
baseless.
186 Rather, the United States argues, Article XII:1 makes clear that the accession
"applies" to both the Marrakesh Agreement and th e Multilateral Trade Agreements. Thus, through
accession, an acceding Member takes up the obligations of all of the Multilateral Trade
Agreements. In contrast, Article XII:3 stipulates that accession to the Plurilateral Trade
Agreements is governed by the provisions of those agreements.
2.86. According to the United States, China's argument that the Panel ignored the relevance of
Article XII:1 of the Marrakesh Agreement is "h ighly convoluted, and without apparent logic".
187
China provides no basis for its assertion that Article XII:1 of the Marrakesh Agreement indicates

185 United States' appellee's submission, para. 57 (quoting China's other appellant's submission,
para. 60).
186 United States' appellee's submission, fn 50 to para. 58 (quoting China's other appellant's submission,
para. 61).
187 United States' third participant's submission, para. 8 (referring to China's appellant's submission,
paras. 79-84).
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that China's Accession Protocol is an integral part of the Marrakesh Agreement and the
agreements set out in the annexes thereto. Rath er, China's arguments amount to "an unexplained
leap" from the word "terms" in Article XII:1 to the proposition that the actual terms set out in an
accession protocol should be ignored and replaced with an unspecified "intrinsic relationship"
test.
188 In the United States' view, the only way to interpret the terms upon which China acceded
to the WTO is to examine the language that China and all WTO Members agreed to in the
Accession Protocol.
2.87. Moreover, the United States argues, China ignores the fact that the Panel agreed with China
that "China's Accession Protocol does indeed specify the obligations China undertook as well as the
rights it was accorded upon accession" to the WTO, and that "it is to the Protocol that we must
look to find how they are linked" to the Marrakesh Agreement and the Multilateral Trade
Agreements annexed thereto.
189 However, as the Panel rightly found, even if Article XII of the
Marrakesh Agreement meant that China's Accession Protocol "merely serves to specify" China's
obligations, "it would not follow, as a matter of logic or law, that the individual provisions of an
accession protocol would thereby, and for that reason , automatically become an 'integral part' of
the Multilateral Trade Agreements annexed to the Marrakesh Agreement." 190 In this respect, the
Panel noted that various provisions of the Multil ateral Trade Agreements might overlap in subject
matter with, and be said to specify obligations contained in, the GATT 1994. Yet, that does not
mean that those different agreements all have an "intrinsic relationship" to the GATT 1994 such
that the exceptions therein should be assumed to apply to the other covered agreements.
2.4.1.3 The relationship of accession protocol provisions with the Marrakesh Agreement
and the Multilateral Trade Agreements annexed thereto
2.88. The United States contends that the Panel's analysis contained in the paragraphs subject to
China's appeal is sound, and China has failed to show any legal error. On the contrary, China's
proposed "intrinsically related" test departs from the customary rules of treaty interpretation and
leads to uncertainty. Under this test, a panel must engage in a "speculative exercise" in
attempting to determine to which covered agreement an accession commitment "intrinsically
relates".
191 In the United States' views, such an approach renders the carefully negotiated
language of accession commitments meaningless. The United States further submits that the
Panel's rejection of China's assertion that Article XII of the Marrakesh Agreement and
Paragraph 1.2 of China's Accession Protocol support "its intrinsic relationship" test is likewise
consistent with the analysis of provisions of China's Accession Protocol in past disputes. As the
Panel found, and as panels and the Appellate Body found in previous disputes, where the drafters
of China's Accession Protocol intended to incorporate a provision of a Multilateral Trade
Agreement, they made that intention clear.
192 In those disputes, the panel and the Appellate Body
analysed the provision at issue by applying the customary rules of treaty interpretation, rather
than an "intrinsic relationship" test. Both the panel and the Appellate Body found in China – Raw
Materials that the text and context of Paragraph 11.3 make clear that Article XX of the GATT 1994
is not available to justify a breach of Paragraph 11.3. The United States emphasizes that, in these
disputes, China has neither addressed those findings nor shown any flaws in the thorough and
well-reasoned interpretive work conducted by both the panel and the Appellate Body in China –
Raw Materials in examining the relationship between Paragraph 11.3 and the GATT 1994.
2.89. The United States emphasizes that there is no obligation in the WTO covered agreements to
eliminate export duties. As the Panel rightly observed, it is unclear how the obligation in
Paragraph 11.3, "which by definition go[es] beyo nd the obligations contained in the Multilateral
Trade Agreements annexed to the Marrakesh Agreement, 'merely serve[s] to specify' a Member's
obligations under the existing provisions of the Multilateral Trade Agreements annexed to the
Marrakesh Agreement".
193 Furthermore, the United States highlights the Panel's finding that there
is "no necessary logic" to suggest that, to the extent that its Accession Protocol serves to specify

188 United States' third participant's submission, para. 10.
190 United States' appellee's submission, para. 67 (quoting Panel Reports, para. 7.92). (emphasis added
by the United States)
191 United States' appellee's submission, para. 75.
192 United States' appellee's submission, para. 68 (referring to Panel Reports, paras. 7.80 and 7.86;
Panel Reports, China – Raw Materials, para. 7.124; and Appellate Body Reports, China – Raw Materials,
paras. 291, 293, and 303).
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China's obligations under the covered agreements, the Protocol is automatically an "integral part"
of one or more of those agreements. 194 In the United States' view, the fact that under Article XII
an acceding Member takes up the obligations of all of the Multilateral Trade Agreements does not
by its terms or by implication require a panel to examine to which agreement(s) the specific
provisions of China's Accession Protocol are intrinsically related. The United States emphasizes
that Article II of the Marrakesh Agreement further undermines China's position in these appeals,
because this provision makes the annexed agreements integral parts of the Marrakesh Agreement
by virtue of express language, not by virtue of any "intrinsic relationship".
2.90. The United States maintains that China's assertion that its Accession Protocol is not a
"self-contained" agreement does not support its "intrinsic relationship" test. Neither Article XII of
the Marrakesh Agreement, nor any provision of the covered agreements, uses the term or concept
of "self-contained" agreements. The United States also disagrees with China's assertion that its
interpretation is the only coherent explanation for the enforceability of China's Accession Protocol
under the DSU. Rather, as an integral part of the WTO Agreement, China's Accession Protocol and
all of the commitments set forth therein – including but not limited to Paragraph 11.3 – are
enforceable in WTO dispute settlement pursuant to Article 1.1 of the DSU. Thus, as the Panel also
recognized, the justiciability of the commitments set forth in China's Accession Protocol has been
well accepted without recourse to China's interpretation.
2.4.2 Article XX(g) of the GATT 1994
2.4.2.1 Article XX(g) – "Relating to" the conservation of exhaustible natural resources
2.91. The United States maintains that the Panel correctly found that China's export quotas on
rare earths and tungsten do not "relate to" conservation within the meaning of Article XX(g) of the
GATT 1994. Accordingly, the United States requests the Appellate Body to reject China's
arguments and to uphold the relevant Panel findings and conclusions.
2.92. The United States submits that China's request for legal review of the Panel's conclusion
that the rare earth and tungsten export quotas do not relate to conservation is: (i) based on a
representation of a legal standard under Article XX(g) of the GATT 1994 that is incorrect, internally
contradictory, and liable to produce an absu rd result; and (ii) premised on either a
mischaracterization or simply a fundamental misunderstanding of the Panel's analysis and
reasoning, both of which are sound. In addition, the United States contends that China's
characterization of the Panel's findings and conclusions as a failure by the Panel to carry out its
mandate under Article 11 of the DSU should also be dismissed because, as a careful review of the
Panel Reports shows, the Panel's assessment of this issue was objective and the Panel's reasoning
coherent.
2.4.2.1.1 The Panel's interpretation of the term "relating to"
2.93. The United States asserts that, for a measure to "relate to" conservation, it must bear a
relationship to the goal of conservation. However, not just any relationship between the measure
and conservation is sufficient for purposes of Article XX(g) of the GATT 1994; instead, a very
particular relationship is required. As the Appellate Body has found, the term "relating to" requires
a "substantial relationship" or a "close and genuine relationship of ends and means".
195 A measure
that is merely incidentally or inadvertently aimed at conservation will not satisfy this test. Hence, a
Member's ability to maintain an otherwise non- conforming conservation measure should not be
accidental or determined by random factors outside its control.
2.94. The United States submits that, although a panel is not precluded from examining the
effects of a measure in its analysis under Article XX(g), contrary to the thrust of China's
arguments, Article XX(g) does not establish an empirical "effects test". Rather, as noted by the
panel in China – Raw Materials , "[t]o determine whether a challenged export restriction relates to
conservation, a panel should examine the text of the measure itself, its design and architecture,

194 United States' appellee's submission, para. 74 (referring to Panel Reports, para. 7.92).
195 United States' appellee's submission, paras. 85 and 99 (referring to Appellate Body Reports, US –
Gasoline, p. 19, DSR 1996:I, p. 18; US – Shrimp, para. 136; and China – Raw Materials, para. 355).
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and its context". 196 The United States explains that the Panel's focus on the design, structure,
architecture, and text of the export quotas was not only supported by guidance from the
Appellate Body, but was also appropriate given the nature of the Panel's inquiry.
197 A panel's task
under Article XX(g) of the GATT 1994 is to determine whether a measure has as its genuine
objective the goal of conservation. To make "actual effects" in the marketplace a touchstone for
making this determination would render the task meaningless. The "vagaries of the market place"
would mean that measures that might at one point in time appear, based on empirical effects, to
"relate to" conservation might, at a different point in time with different data, appear not to "relate
to" conservation, and would also raise difficult questions of causation.
198 Hence, according to the
United States, basing such a determination on empirical effects could undermine a panel's ability
to make any determination at all.
2.95. The United States disagrees with China's unsupported assertion that "it is enough to show
that a measure is apt to produce a contribution to the achievement of its objective; or, put another
way, that it genuinely provides a means to realize the conservation of natural resources".
199 To the
United States, China's mixing of the concepts of "relating to" and "contribution", and thus of the
proper interpretations of Article XX(g) with thos e of Articles XX(a) and XX(b) of the GATT 1994,
results in an approach that ignores important distinctions between the various subparagraphs of
Article XX. China's approach is incorrect under the customary rules of treaty interpretation because
each of those subparagraphs is meant to addre ss a different policy objective deemed important
enough to justify deviations from the disciplines of the GATT 1994. Interpretations of Article XX(g)
must remain sensitive to the fact that subparagraph (g) has unique characteristics that the other
subparagraphs, including (a) and (b), do not. For the United States, these characteristics have a
significant bearing on the determination of whether a challenged measure can be provisionally
justified as one relating to conservation.
2.4.2.1.2 The Panel's application of the "relating to" requirement
2.96. The United States asserts that the Panel was correct when it considered that Article XX(g) of
the GATT 1994 required China to show that there is a mechanism to ensure that the export quotas
and extraction and/or production caps work together so as to counteract the perverse,
non-conservation-serving signals that China's export quotas send to domestic consumers of rare
earths and tungsten, and contests China's assertio n that the Panel refused to take China's "real
world" evidence into account. The United States submits that China's argument must fail because:
(i) the Panel did not conclude, as China argues, that it was forbidden from reviewing China's
evidence; (ii) the Panel did, in fact, review the evidence provided by China, but simply found that
China had failed to show how the design, structur e, architecture, and text of the export quotas
showed that the export quotas "related to" conservation; and (iii) the Panel correctly found that
China's empirical evidence did not establish a "substantial relationship" to the objective of
conservation.
2.97. The United States points to the actual reasoning found in the Panel Reports
200 to illustrate
that China's assertions that the Panel "somehow 'excluded'" evidence regarding the effects of
China's conservation regime, or that the Panel ignored how the measures "actually work", are
"simply wrong".
201 The United States asserts that the Panel correctly focused its attention on the
design, structure, architecture, and text of the export quotas, and did not exclude other evidence.
Moreover, the Panel addressed China's argument th at it had domestic extraction and production
targets and found that China had failed to establish that the targets actually restricted Chinese
production or, importantly for the perverse signal issue, consumption.
2.98. The United States further considers China's argument to be flawed because it asks the Panel
as the trier of fact to accept mere correlation as evidence of a substantial relationship between the

196 United States' appellee's submission, para. 96 (quoting Panel Reports, China – Raw Materials,
para. 7.418).
197 United States' appellee's submission, para. 97 (referring to Appellate Body Report, US – Gasoline,
p. 21, DSR 1996:I, p. 20).
198 United States' appellee's submission, para. 97.
199 United States' appellee's submission, para. 88 (referring to China's appellant's submission,
200 United States' appellee's submission, para. 102 (referring to Panel Reports, paras. 7.290 and 7.379).
201 United States' appellee's submission, para. 102 (referring to China's appellant's submission,
paras. 155 and 159; and other appellant's submission, paras. 86 and 90).
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measures and conservation. By way of example, the United States refers to China's assertion that,
between January 2011 and January 2013, domestic prices for rare earths rose while domestic
demand for rare earths decreased, and that these two phenomena were the "actual effects" of its
production and extraction targets eliminating th e pro-consumption signals sent by the export
quotas. The United States contends that China's argument must fail because it does not take into
account the number of other factors that could have impacted the domestic prices of and demand
for Chinese rare earths between January 2011 and January 2013. One prominent factor impacting
demand for all raw materials, which was wholly unrelated to the question of whether China had
addressed the non-conservation signals sent by th e export quotas, was the lingering effects of the
2008 global crises. The United States also recalls th e Panel's finding that China had failed to show
that it had "any mechanism to ensure that the export quota and the extraction and/or production
caps will work together in such a way as to counteract the perverse signals sent by its export
quota to domestic consumers".
202 As a result, China could not establish that any "actual effects" in
the domestic market were caused by its conservation regime as opposed to something else, such
as Chinese measures to stimulate domestic consumption through subsidies to downstream
consuming industries, which would be contrary to conservation. The United States therefore
concludes that the flaw in China's argument lies with the "well-known" problem of determining
causation203, which has led the Appellate Body to focus its analysis under the "relating to" prong of
Article XX(g) to the design and structure of the measures at issue. Thus, for the United States, the
Panel correctly focused on the design and structure of China's conservation regime, and found that
the design and structure did not address the perv erse signals sent by the export quotas to
domestic consumers.
2.99. In response to China's assertion that the Panel was required to segment its analysis of the
different requirements under Article XX(g), and should not have assessed the alleged domestic
restrictions as part of its analysis of whether the export quotas are related to conservation, the
United States emphasizes that China provides no support for such assertion, and that no such
support exists. The United States adds that China's argument that the Panel should not have
examined the arguments and evidence submitted by the complainants establishing the "perverse
signals" sent by the export quotas to domest ic consumers, and should instead have relied
exclusively on China's arguments and evidence regarding the signals sent to foreign consumers,
introduces an element of discrimination into the "relating to" analysis, which is inconsistent with
the language of Article XX(g) of the GATT 1994, and, for this reason, should be rejected.
2.4.2.1.3 Article 11 of the DSU
2.100. The United States asserts that the record of these disputes shows that there is no basis for
China's claim that the Panel committed the sort of "egregious error" that would warrant a finding
of a violation of Article 11 of th e DSU. To the contrary, the record shows that the Panel undertook
a thorough examination of the evidence before it and the arguments of the parties. Hence, the
United States considers China's assertions to be unfounded and requests the Appellate Body to
reject them.
2.101. The United States submits that the Panel had ample support for its determination that the
export quotas on rare earths and tungsten send "perverse signals" to domestic consumers. The
evidence revealed drastic differences between domestic and foreign prices for rare earths and
tungsten, which showed that the export quotas simply shifted consumption to the domestic
market, as well as statements and policy documents from Chinese local governments
demonstrating that the availability of cheaper or unrestricted rare earths is held out to attract new
foreign investment in the rare earth processing industry in China.
204 Hence, the Panel's qualitative
reasoning (that export quotas stimulate domestic consumption) was supported by evidence, in
particular of the two-tiered pricing structure.
2.102. The United States also points out that , while China asserts that the Panel ignored its
pricing data, the Panel found that China's analysis suffered from significant methodological failures
related to China's downward revision to foreign prices based on fees associated with export and

202 United States' appellee's submission, para. 117 (referring to Panel Reports, para. 7.447).
203 United States' appellee's submission, para. 118 (referring to Appellate Body Report, US – Gasoline,
p. 21, DSR 1996:I, p. 20).
204 United States' appellee's submission, para. 122 (referring to Panel Reports, paras. 7.441 and 7.723,
in turn quoting Panel Exhibits JE-118 and JE-152).
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the fact that China had deducted the export duties on rare earth and tungsten exports. The
United States observes that China has not offered any explanation as to how the Panel erred when
it found that China's pricing data were unreliable "based on these failures".
2.103. The United States avers that the Panel ad dressed the evidence regarding China's domestic
extraction and production targets, and found that China had failed to establish that the targets
actually restricted Chinese production or, most importantly for the perverse signal issue,
consumption. Indeed, the Panel expressly found th at, contrary to China's argument, the combined
effect of the extraction, production, and export quotas does not establish a maximum level of
domestic consumption.
2.104. Concerning China's argument on the limited relocation of rare earth industries to China,
the United States contends that there was ample support for the Panel's finding that the export
quotas encouraged relocation of downstream rare earth-consuming industries to China. The Panel
cited evidence supplied by the complainants containing statements from Chinese officials, in which
they suggested that industries relocate to China in order to avoid the export quotas.
205 The
United States also contests China's assertion that relocation of industries did not happen in the
rare earth sector (as a function of the export qu otas) after 2008, when China tightened the export
quotas of rare earths, noting that the Panel fully addressed China's argument and rightly rejected
China's "unwarranted cherry-picking of the data".206
2.105. The United States considers that China's argument that the Panel engaged in incoherent
reasoning fares no better. For the United States, China's argument is flawed as it is easy to see
how a Member might have a bona fide conservation regime that does not account for the
stimulating effects that an export quota has on domestic consumption. As is the case here, a
Member may not have a domestic consumption restriction, or may not set its domestic production
restriction at a level that actually restricts demand.
2.4.2.2 Article XX(g) – "Made effective in conjunction with" restrictions on domestic
production or consumption
2.106. The United States requests the Appellate Body to reject China's allegations that the Panel
failed to properly interpret and apply the clause "made effective in conjunction with restrictions on
domestic production or consumption" in Article XX(g) of the GATT 1994 and to uphold the Panel's
findings. The United States further requests the Appellate Body to reject China's claim that the
Panel failed to make an objective assessment of the matter contrary to Article 11 of the DSU.
2.4.2.2.1 The Panel's interpretation of the phrase "made effective in conjunction with"
restrictions on domestic production or consumption
2.107. The United States maintains that the Panel's interpretation and application of the phrase
"made effective in conjunction with" in Article XX(g) of the GATT 1994 are correct. The Panel's
interpretation of this phrase is in accordance with the ordinary meaning of the terms of
Article XX(g) in their context and in the light of the object and purpose of the GATT 1994, and is
also consistent with and supported by the inte rpretation of the same phrase made by the
Appellate Body.
2.108. The United States argues that, for China, "working together with" means simply that a
domestic restriction is working and a trade restriction is working – i.e. that the two restrictions do
not need to bear any particular conjunctive relationship to each other. Not only is this different
from the Appellate Body's interpretation of the phrase "made effective in conjunction with", but
such an approach renders these words superfluou s. On China's approach, the second clause of
subparagraph (g) could simply state "if restrictions on domestic production or consumption also
exist". However, Article XX(g) was not so drafted. The United States also points out that the mere
fact that "even-handedness" is not treaty text do es not render it void as a mechanism to inquire
whether the non-conforming measure is "made effective in conjunction with" domestic restrictions.
If this particular phrase were not understood, as the Panel used it, to summarize the conjunctive
relationship required by the text of Article XX(g), then the treaty interpreter would necessarily use
similar phrases and concepts in interpreting and a pplying Article XX(g). What is important is that

205 United States' appellee's submission, para. 126 (referring to Panel Exhibits JE-118 and JE-152).
206 United States' appellee's submission, paras. 127 and 128 (referring to Panel Reports, para. 7.633).
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the second clause of Article XX(g) – which is un ique to subparagraph (g) of Article XX and its
conservation purpose, without analogy in other subparagraphs of Article XX – has been correctly
and consistently interpreted as a requirement en suring that the protection afforded by the
Article XX exception applies only to legitimate conservation measures. For the United States,
Article XX(g) serves to ensure that the shared right to trade in the world's limited resources is
accompanied by the shared responsibility to bear the burden of conserving those resources, and
the Panel's use of the term "balance" reflects the same concept as expressed by the
Appellate Body in US – Gasoline and US – Shrimp.
207
2.109. With regard to China's allegation that the Panel erred in its interpretation in finding that
the analysis of "even-handedness" is limited to an examination of the structure and design, to the
exclusion of evidence regarding the effects of, the measure, the United States refers to the
Appellate Body reports in US – Gasoline and US – Shrimp , arguing that the Appellate Body
assessed the broad structural correspondence between the non-conforming measure and the
domestic restriction to determine if the former operated "in conjunction with" the latter.
208
2.110. In response to China's argument that the fact that the Appellate Body eschewed an inquiry
into the relative burdens borne by foreign and domestic interests in US – Gasoline suggests that
there is no requirement to balance the burden of conservation under Article XX(g), the
United States contends that the Appellate Body's discussion of the "even-handedness" requirement
in US – Gasoline only identified the logical boundaries of that requirement. 209 The Appellate Body
did not address what relative treatment of domestic and foreign interests, within those logical
boundaries, was required in order to qualify as "even-handed". The United States submits that the
Appellate Body's reasoning in US – Gasoline does not stand for the proposition that Article XX(g)
permits Members to impose measures that advantage their own domestic interests at the expense
of the interests of other Members as long as some level of restriction that is greater than nothing
is imposed on domestic supply, and adds that the panel in China – Raw Materials explicitly
rejected such a proposition.
210
2.111. In response to China's argument that the Panel's "even-handedness" analysis renders the
chapeau of Article XX of the GATT 1994 superfluous, the United States argues that China
improperly conflates the structural correspondence inquiry under the "even-handedness" criterion
in Article XX(g) with the application inquiry under the chapeau.
2.4.2.2.2 The Panel's application of th e "made effective in conjunction with"
requirement
2.112. The United States contends that the Panel did not err in its application of Article XX(g) of
the GATT 1994 by focusing on the structure, desi gn, and architecture of the export quotas and
domestic restrictions when assessing whether they "work together". The Appellate Body in US –
Gasoline specifically avoided undertaking the type of "effects test" articulated by China. The United
States contends, moreover, that the alleged "actual effects" proffered by China in its appeals were
specifically addressed, and rejected, by the Panel in the course of the proceedings.
211
2.113. The United States maintains that Chin a's position would leave the determination of
whether the "even-handedness" requirement is met to the vagaries of the marketplace. Moreover,
it avoids the problem of causation and is based on a presumption that correlation (e.g. a lack of
quota fill for rare earths) is evidence of the export quota and the domestic restriction working
together to promote conservation. China's position does not account for the numerous other
factors that could have impacted the rate at which the export quota on rare earths was used, or
China's domestic demand for rare earths, tungsten, and molybdenum. The United States points in
particular to the lingering effects of the 2008 gl obal crisis as one prominent factor impacting

207 United States appellee's submission, para. 149 (quoting Appellate Body Reports, US – Gasoline,
p. 18, DSR 1996:I, p. 18; and US – Shrimp, para. 143).
208 United States appellee's submission, paras. 151-155 (quoting Appellate Body Reports, US – Gasoline,
p. 21, DSR 1996:I, p. 20; and US – Shrimp, paras. 121 and 144).
209 United States appellee's submission, paras. 158 and 159 (referring to Appellate Body Report, US –
Gasoline, p. 21, DSR 1996:I, p. 20).
210 United States' appellee's submission, para. 160 (referring to Panel Reports, China – Raw Materials,
para. 7.464).
211 United States' appellee's submission, para. 163.
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demand for all raw materials, which was wholly unrelated to the question of whether the export
quotas and domestic restrictions worked together to promote conservation.
2.114. Furthermore, the United States argues that China fails to address how its analysis under
subparagraph (g) would substantively differ from the subsequent analysis that must be conducted
pursuant to the chapeau of Article XX, in which a panel focuses on the application of the non-
conforming measure. For the United States, China fails to provide a concrete analysis as to what
should be the practical differences under China's proposed approach in the analysis under the
chapeau and in the subparagraphs of Article XX.
2.115. Moreover, the United States refers to the Appellate Body's statement in China – Raw
Materials that Article XX(g) "permits trade measures relating to the conservation of exhaustible
natural resources when such trade measures work together with restrictions on domestic
production or consumption, which operate so as to conserve an exhaustible natural resource", and
submits that the best way to determine how a measure operates is to focus on the measure's
structure, design, and architecture.
212
2.116. With regard to China's reference to the Appellate Body's finding in US – Gasoline that
"predictable effects" may be relevant to the an alysis under Article XX(g), the United States
contends that China's argument conflates the "predictable effects" of a measure, which are
discovered through a review of its structure, desi gn, and architecture, with the state of being of
the market, which China mischaracterizes as the "actual effects" of the measure. 213 However, this
state of being of the market may not be a logical result of the structure, design, and architecture
of the measure. In any event, the United States argues, the Panel addressed and rejected
arguments raised by China relating to the effects of its regulatory scheme in various parts of its
Reports.
2.4.2.2.3 Article 11 of the DSU
2.117. The United States recalls Appellate Body statements on what must be established to prove
an Article 11 of the DSU violation, including in EC – Fasteners (China) .214 In its appeals, however,
China misstates the Panel's reasoning and ignore s that the Panel expressly analysed certain
evidence. The United States further argues that China has failed to show that the Panel's
assignment of greater weight value to certain facts was in error. In particular, the United States
contests China's implication that the Panel was inconsistent in assessing the facts at issue
because, when it was disadvantageous to China, the Panel ignored the structure and design of the
measures at issue in favour of the "actual effects". The United States alleges that China misstates
the Panel's reasoning and points to statements by the Panel indicating that evidence submitted by
China was "insufficient to establish" China's position or "cast doubt on" China's assertion.
215
2.118. In response to China's assertion that the Panel erred because it found that China had
developed a bona fide conservation regime for rare earths, tungsten, and molybdenum, and yet
did not find that the conservation regime was su fficient to invoke Article XX(g) of the GATT 1994,
the United States contends that China's argument is baseless because the standard under
Article XX(g) is whether the Member maintains "domestic restrictions on production or
consumption", and not merely whether it has a conservation regime. In response to China's
allegation that the Panel applied a double standard in its "even-handedness" analysis, the
United States contends that, contrary to what China alleges, the Panel assessed the design and
structure of the measures at issue for both the export measures and the domestic restrictions.
216

212 United States' appellee's submission, para. 169 (quoting Appellate Body Reports, China – Raw
Materials, para. 356).
213 United States' appellee's submission, paras. 170 and 172 (referring to China's other appellant's
submission, paras. 186 and 189; and Appellate Body Report, US – Gasoline, pp. 21-22, DSR 1996:I, p. 20).
214 United States' appellee's submission, para. 177 (quoting Appellate Body Report, EC – Fasteners
(China), para. 442).
215 United States' appellee's submission, paras. 179 and 180 (referring to Panel Reports, paras. 7.554
and 7.509).
216 The United States referred to, inter alia, paragraphs 7.447, 7.509, and 7.554 of the Panel Reports.
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2.5 Arguments of the European Union – A ppellee (DS432) and third participant (DS431
and DS433)
2.5.1 Article XII:1 of the Marrakesh Agreem ent and Paragraph 1.2 of China's Accession
Protocol
2.119. The European Union submits that the Appellate Body should reject China's appeal and
affirm the Panel's finding, and the Appellate Body's finding in China – Raw Materials , that
Article XX of the GATT 1994 is not available as a defence to a breach of Paragraph 11.3 of China's
Accession Protocol.
2.120. The European Union notes that China has no t appealed, either directly or consequentially,
the Panel's conclusions that: (i) the export duties at issue in these disputes are inconsistent with
Paragraph 11.3 of China's Accession Protocol; (ii) Article XX of the GATT 1994 is not available to
justify such inconsistency; and (iii) in any event, the export duties at issue are not justified under
subparagraph (b) or the chapeau of Article XX. Thus, in the European Union's view, "China's
appeal is incapable of resulting in the modifica tion or reversal" of the Panel's conclusions and
"incapable of contributing … to securing a positive solution" to these disputes.
217 The
European Union submits that the Appellate Body has the inherent power to issue summary
judgment on an accelerated basis and requests the Appellate Body to do so in the particular
circumstances of these appeals. Referring to Chin a's statement that it has filed these appeals to
"seek clarification" of certain "systemic" matters, the European Union further argues that
Article IX:2 of the Marrakesh Agreement provides the exclusive procedure for raising interpretative
issues.
2.5.1.1 Paragraph 1.2 of China's Accession Protocol
2.121. The European Union disagrees with China that the second sentence of Paragraph 1.2 of
China's Accession Protocol means that Paragraph 11.3 of the Protocol becomes an integral part of
the GATT 1994 by virtue of an "intrinsic relati onship" between Paragraph 11.3, on the one hand,
and Articles II and XI of the GATT 1994, on the other hand. According to the European Union, the
Panel's conclusion that the term "the WTO Agreement" in Paragraph 1.2, second sentence, of
China's Accession Protocol means the Marrakesh Agreement alone is strongly supported by the
convention of definition reflected in the first reci tal of the preamble of China's Accession Protocol.
In that preamble, and in accordance with convention, the term "the WTO Agreement" is defined as
the Marrakesh Agreement Establishing the World Trade Organization. The European Union also
draws attention to paragraph 1 of the Final Act Embodying the Results of the Uruguay Round of
Multilateral Trade Negotiations, the General Interp retative Note to Annex 1A, and the preamble of
the Decision on the Acceptance of and Accession to the Agreement Establishing the World Trade
Organization, all of which adopt the same convention of definition.
2.122. The European Union emphasizes that Part I of China's Accession Protocol, consisting of
Paragraphs 1.1, 1.2, and 1.3, consistently uses the term "the WTO Agreement" to refer to the
Marrakesh Agreement alone. In particular, Paragraph 1.1 provides that "[u]pon accession, China
accedes to the WTO Agreement pursuant to Articl e XII of that Agreement and thereby becomes a
Member of the WTO." Both the terms "the WTO Agreement" and "that Agreement" in
Paragraph 1.1 mean the Marrakesh Agreement alone. Moreover, the first sentence of
Paragraph 1.2, which refers to the WTO Agreement "as rectified, amended or otherwise modified
by such legal instruments as may have entered into force before the date of accession", is
"boilerplate" language that is also found elsewhere in the covered agreements, such as
paragraph 1 of the language incorpor ating the GATT 1994 into Annex 1A.
218 Used in
Paragraph 1.2, first sentence, of China's Accession Protocol, this language was to cover the
eventuality that the Marrakesh Agreement might be rectified, amended, or modified during the
intervening period between the Ministerial Confer ence decision regarding the accession and the
ratification of the accession protocol by China.
2.123. The European Union argues that, contrary to China's claims, the Panel's assessment of
Paragraph 1.2 was not based on a "superficial grammatical analysis" or a "serious

217 European Union's appellee's submission, para. 4.
218 European Union's response to questioning at the oral hearing.
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misunderstanding" of the rules of treaty interpretation under the Vienna Convention. 219 Rather, in
addition to its analysis of the relevant provisions of China's Accession Protocol, the Panel also
examined the context provided by the "integ ral parts" language in Article II:2 of the
Marrakesh Agreement. The Panel found that, like the same language in Article II:2, the "integral
part" language of Paragraph 1.2 also concerns on e agreement being an integral part of another
agreement (i.e. the Marrakesh Agreement), and not specific provisions of one agreement being an
integral part of another agreement.
2.124. The European Union further maintains that , like all other provisions of the Marrakesh
Agreement, Article II:2 uses the term "this Agreem ent" to refer to the Marrakesh Agreement only.
Otherwise, the provision would contain "an infinite re-iteration" that the Marrakesh Agreement and
the Multilateral Trade Agreements annexed theret o are integral parts of themselves, which would
be "manifestly absurd".
220 The European Union sees no room for China's theory that specific
provisions that are "intrinsically related" could be transported from one agreement to another in
such a way as to alter the express terms of th e other agreement. The Eu ropean Union maintains
that the same is true for exceptions, such as Article XX of the GATT 1994, which are expressly
limited by their own terms to the particular agreem ents in which they are contained. Exceptions in
one agreement can be reiterated in another agreement if the latter specifically and expressly
refers to those exceptions. According to the Euro pean Union, the general "integral part" language
of Article II:2 of the Marrakesh Agreement, combined with the improvised concept of "intrinsically
related" that China derives from the use of the same "integral part" language in Paragraph 1.2 of
its Accession Protocol, does not have this legal consequence. Yet, accepting China's position would
have the implication that exceptions in one covered agreement can be read into another covered
agreement even in the absence of express language to that effect.
2.125. The European Union submits that the Panel properly considered the relevance of
Paragraph 1 of the language incorporating th e GATT 1994 into Annex 1A, which contains an
exhaustive list of what the GATT 1994 consists of, and does not refer to post-1994 accession
protocols. The European Union submits that it would have been possible to include in this list the
post-1994 accession protocols to the extent they would contain provisions "intrinsically related" to
the GATT 1994, but no such provision exists. Furt hermore, as the Panel rightly found, explicit
provisions incorporating schedules of concessions into the GATT 1994 would have been
unnecessary if this were achieved by Article X II:1 of the Marrakesh Agreement and Paragraph 1.2
of China's Accession Protocol. Noting China's argument that explicit provisions incorporating
schedules are necessary because schedules change from time to time, the European Union
contends that China identifies nothing in these provisions that make them more apt to achieve
dynamic (rather than static) incorporation compared to Article XII:1 of the Marrakesh Agreement
and Paragraph 1.2 of China's Accession Protocol.
2.126. The European Union submits that the Appellate Body's reasoning in China – Publications
and Audiovisual Products does not support China's position in the present disputes. In China –
Publications and Audiovisual Products , after a careful analysis of Paragraph 5.1, including the
phrase "[w]ithout prejudice to China's right to regulate trade in a manner consistent with the
WTO Agreement", the Appellate Body discerned a reference to Article XX of the GATT 1994. Thus,
the exception in Article XX of the GATT 1994 is "pulled into" China's Accession Protocol by
Paragraph 5.1.
221 In contrast, China is seeking to "push the obligation in Paragraph 11.3 of China's
Accession Protocol into the GATT 1994, using Paragraph 1.2". 222 The European Union agrees with
China that the Appellate Body read the term "t he WTO Agreement" in Paragraph 5.1 of China's
Accession Protocol as "referring to the WTO Agreement as a whole, including its Annexes". 223
However, "referring to" and being "an integral part of" do not mean the same thing, because one
agreement can refer to another agreement without ei ther becoming an integral part of the other.
Thus, it does not follow from the Appellate Body's reasoning that the reference to
"the WTO Agreement" in Paragraph 1.2 of China's Accession Protocol makes the Protocol, or any
part of it, an "integral part" of one of the covered agreements.

219 European Union's appellee's submission, para. 91 (quoting China's appellant's submission,
paras. 119 and 121).
220 European Union's appellee's submission, para. 84.
221 European Union's appellee's submission, para. 97. (emphasis omitted)
222 European Union's appellee's submission, para. 97. (emphasis omitted)
223 European Union's appellee's submission, para. 98 (quoting Appellate Body Report, China –
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2.127. Finally, the European Union highlights th at Paragraph 11.3 of China's Accession Protocol,
by its own specific and express terms, contains exceptions with respect to Annex 6 and Article VIII
of the GATT 1994, but not Article XX of the GA TT 1994. Thus, if the specific provisions of
Paragraph 11.3 do not pull the exception in Article XX of the GATT 1994 into Paragraph 11.3, it is
difficult to understand how the general provisio n of Paragraph 1.2 pushes the obligation in
Paragraph 11.3 into the GATT 1994.
2.5.1.2 Article XII:1 of the Marrakesh Agreement
2.128. The European Union disagrees with China th at the second sentence of Article XII:1 of the
Marrakesh Agreement means that Paragraph 11.3 of China's Accession Protocol is an integral part
of the GATT 1994. The European Union submits that the word "Such" at the beginning of the
second sentence of Article XII:1 refers to the te rm "accede" in the first sentence, which, in turn,
provides that the relevant state or customs territory may accede to the Marrakesh Agreement. The
second sentence of Article XII:1 thus refers to a legal event whereby a state or customs territory
becomes a Member of the WTO. Therefore, the term "apply" in the second sentence is not
referring to the application of a legal instrument. Rather, it confirms that the act of accession must
be operative with respect to both the Marrakesh Agreement and the Multilateral Trade Agreements
annexed thereto. As a result, the acceding Member cannot "pick and choose" to which agreement
it accedes. In the European Union's view, the ab ove interpretation is not changed by the phrase
"on terms to be agreed" in the first sentence, because the words "[s]uch accession" in the second
sentence are not referring to the legal instruments embodying the terms of accession.
2.129. The European Union further contends that this interpretation does not render Article II:2 of
the Marrakesh Agreement redundant, because the general principle of the single undertaking finds
expression in diverse provisions of the covere d agreements, including the Marrakesh Agreement.
These provisions include Article II of the Marrakesh Agreement (scope of the WTO), Article XI
(original membership), Article XII (accession), Ar ticle XIII (non-application of the Multilateral
Trade Agreements between particular Members), Article XIV (acceptance, entry into force, and
deposit), and Article XV (withdrawal). In addition to Article II, therefore, Article XII provides that,
in the context of accession, the principle of the single undertaking also applies. Article XII thus
does not have the different or additional meaning proposed by China whereby Paragraph 11.3 of
China's Accession Protocol becomes an integral part of the GATT 1994.
2.5.1.3 The relationship of accession protocol provisions with the Marrakesh Agreement
and the Multilateral Trade Agreements annexed thereto
2.130. The European Union considers that China's arguments are not clear and could be
understood in at least three ways. First, China appears to introduce a "double existence" theory by
arguing that a provision of China's Accession Protocol could exist both in the Protocol and in one of
the covered agreements to which the provision intrinsically relates.
224 Such a theory, however,
does not assist China's position, because China could still breach Paragraph 11.3 of its Accession
Protocol and not benefit from any exception contained therein. Second, China seems to argue that
all of the provisions of its Accession Protocol are somehow transported by Paragraph 1.2 into the
covered agreements to which they intrinsically relate, leaving China's Accession Protocol an
"empty shell".
225 Such a theory is "implausible and contradicted" by the specific provisions of
China's Accession Protocol that import, by cross-reference, specific provisions of the covered
agreements.226 Finally, China appears to assert that specific provisions of its Accession Protocol
must be interpreted and applied as an integral package of rights and obligations together with all
of the provisions of the covered agreements to which such Accession Protocol provisions
intrinsically relate. However, this is not gene rally understood to be the consequence of the
"integral parts" language of Article II:2 of the Ma rrakesh Agreement, or any other provision giving
expression to the principle of the single underta king. The European Union points out, in this
regard, that Article XX of the GATT 1994 is not generally understood to be available as an
exception to a breach of provisions in the other covered agreements.
2.131. Despite such uncertainty, the European Un ion seeks to respond to China's arguments on
its own terms. In particular, the European Union emphasizes that China's "intrinsically related" test

224 European Union's appellee's submission, para. 71.
225 European Union's appellee's submission, para. 71.
226 European Union's appellee's submission, para. 71.
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is not treaty language and cannot be implied from Article XII:1 of the Marrakesh Agreement and
Paragraph 1.2 of China's Accession Protocol. The European Union also stresses that China's
reference to "self-contained" agreements is equally without basis in either the covered agreements
or China's Accession Protocol. With regard to the enforceability of China's Accession Protocol, the
European Union reiterates that, because China's Accession Protocol is an integral part of the
Marrakesh Agreement by virtue of Paragraph 1.2, and because the Marrakesh Agreement is listed
as a covered agreement in Appendix 1 to the DSU, China's Accession Protocol is also covered by
the DSU. Moreover, the enforceability of China's Accession Protocol under the DSU, and China's
consent to such enforceability, is apparent from the mandatory language used throughout China's
Accession Protocol.
2.132. The European Union underlines that Article II:2 of the Marrakesh Agreement provides
relevant context for understanding the term "integ ral part" in Paragraph 1.2 of China's Accession
Protocol. Under Article II:2, each of the Multila teral Trade Agreements, such as the GATT 1994, is
an integral part of the Marrakesh Agreement. This does not mean that the GATT 1994 is an
integral part of another covered agreement. The European Union employs, in this connection, an
analogy whereby the front and back wheels of a bicy cle are each an integral part of the bicycle,
but neither wheel is an integral part of the othe r. Extending this analogy to Article XII:1, the
European Union argues that the second sentence of Article XII:1 indicates that, to buy the bicycle,
one must buy the whole and does not have the option to buy select parts of it. Furthermore, by
virtue of Paragraph 1.2 of China's Accession Protocol, China brings with it its own saddle bag (its
Accession Protocol) and this is also an integral part of the bicycle (the WTO Agreement). The
European Union reiterates that neither the saddle bag nor any part of it is an integral part of either
wheel. As regards the "WTO House" analogy used by China
227, the European Union contends that
China's Accession Protocol is akin to an additional room inside the House.228
2.133. The European Union further argues that Article 30(3) of the Vienna Convention, which
states that "the earlier treaty applies only to th e extent that its provisions are compatible with
those of the later treaty", is inapposite because there is no question of "incompatibility" between
the provision at issue – that is, Paragraph 11.3 of China's Accession Protocol – and the GATT 1994.
Even if there were a conflict, the European Un ion maintains that Article 30(3) of the Vienna
Convention would indicate that the later prov ision – namely, Paragraph 11.3 – should apply.
Hence, as the exceptions contained in the GATT 1994 are not mentioned in Paragraph 11.3, such
exceptions would not apply pursuant to the rule under Article 30(3). The European Union therefore
does not understand how China's reference to Article 30(3) of the Vienna Convention supports
China's position.
2.134. Finally, the European Union recalls that, in China – Raw Materials , the Appellate Body
concluded that a proper interpretation of Paragr aph 11.3 of China's Accession Protocol indicates
that the exceptions under Article XX of the GATT 1994 are not available to China to justify a
breach of Paragraph 11.3. The European Union submits that it concurs with this conclusion and
with the Panel's analysis and findings in the present disputes. The European Union stresses that it
legitimately expects that, absent cogent reasons, the Appellate Body would reach the same
conclusion in the present disputes.
2.5.2 Article XX(g) of the GATT 1994
2.5.2.1 Article XX(g) – "Relating to" the conservation of exhaustible natural resources
2.135. The European Union requests the Appellate Body to reject China's request to find that the
Panel erred in its interpretation and application of the "relating to" requirement in Article XX(g) of
the GATT 1994, as well as China's request for reversal of the Panel's findings in this regard. The
European Union further requests the Appellate Body to reject China's allegations of error under
Article 11 of the DSU.

227 See paragraph 2.25 of these Reports.
228 European Union's response to questioning at the oral hearing.
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2.5.2.1.1 The Panel's interpretation of the term "relating to"
2.136. The European Union considers that China's claim that the Panel erred in its interpretation
of the term "relating to" is based on a "misreading" of the Panel's analysis, and is without merit.229
2.137. The European Union submits that the Panel was correct, in terms of its analytical
approach, to focus the analysis under Article XX( g) of the GATT 1994 on the design and structure
of the measures at issue. Indeed, the European Un ion observes, this is precisely what China itself
asked the Panel to do. 230 The European Union explains that, in the context of an Article XX(g)
defence, a panel should first examine, in accordance with the conservation of natural resources
objective of Article XX(g), the consistency of the measure at issue in terms of its design and
structure. Only then, if necessary, should the focu s of the examination turn to the application of
the measure in the context of the chapeau analysis.
2.138. The European Union expresses the view that, in conducting an analysis under
Article XX(g), panels are not precluded from looking at aspects other than the design and structure
of the measure at issue. Indeed, panels should always give full consideration to all the relevant
facts and all the relevant circumstances in any given case. However, once a panel is satisfied that,
due to a fundamental deficiency in the design and structure of the measure, no genuine link
between the measure and the conservation objective can be established, other facts are no longer
relevant. According to the European Union, this is so because neither the evidence of instances of
the application of the measure, nor its potential "aptness" to contribute to conservation in specific
factual circumstances, can affect the conclusion that the measure cannot be provisionally justified,
because the genuine link with the declared objective is broken at the level of design and
structure.
231
2.139. For the European Union, even China's own line of argument on appeal suggests that, when
a clear conclusion can be reached based on the de sign and structure, scrutiny of other elements
becomes redundant. China acknowledges that relian ce on evidence of actual operation "may not
be necessary where a measure can be shown, on the basis of its design and structure alone, to
relate to conservation, or if there is a complete lack of evidence regarding the operation of a
regulatory scheme".
232 The European Union points out that, in any event, contrary to what China
alleges, in considering whether a "close" and "substantial" relationship can be said to exist
between the measures at issue and the conservation objective, the Panel considered not only the
design and structure of China's export quota regi me but also the regulatory context in which its
export quotas operate.
2.140. The European Union disagrees with China's arguments regarding "contribution", which the
European Union views as an attempt by China to set forth a different, less rigorous standard of
"relating to". According to the European Union, China's arguments suggest that, if a measure
makes or is able to make a contribution to conservation, "regardless of how insignificant that
contribution may be", the measure should be regarded as "related to" conservation within the
meaning of Article XX(g).
233 According to the European Union, China's position is contrary to
established jurisprudence that measures must bear a "substantial, close, and real" relationship to
the conservation objective and that a merely "incidental" or "inadvertent" connection will not
suffice.
2.5.2.1.2 The Panel's application of the "relating to" requirement
2.141. The European Union emphasizes that th e reasoning of the Panel with respect to the
"signalling"
234 function of the export quotas has to be taken into account as a whole, since what
China in its appeal refers to as "findings" are, in fact, only fragments of the Panel's reasoning on

229 European Union's appellee's submission, paras. 17 and 140.
230 European Union's appellee's submission, para. 151 (referring to China's first written submission to
the Panel, paras. 44-46; and second written submission to the Panel, para. 52).
231 European Union's appellee's submission, paras. 153 and 154.
232 European Union's appellee's submission, para. 157 (referring to China's appellant's submission,
paras. 142 and 151; and other appellant's submission, paras. 73 and 82).
233 European Union's appellee's submission, para. 164.
234 European Union's appellee's submission, paras. 141-144 (referring to Panel Reports,
paras. 7.443-7.448 and 7.725).
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"signalling".235 The European Union explains that the Panel considered that export quotas can send
two signals: (i) on the one hand, they can transmit a signal to foreign consumers, investors, and
innovators to explore and develop alternative sources of supply and thus reduce demand for
limited Chinese rare earth reserves; and (ii) on the other hand, they can send a signal to domestic
consumers to increase demand domestically. The Panel correctly observed that these two signals
are competing. The Panel then examined whether China has put in place a mechanism that would,
for the specific case of China's export quotas, a ddress the two competing signals in a manner that
would be conducive to the achievement of the de clared conservation goal. The Panel addressed
China's arguments that various recycling projects, efforts to modify industrial designs of
downstream products so that they use less rare earths, and the development of rare earth
substitutes are underway, but did not consider this to be sufficient. The Panel correctly concluded
that a connecting mechanism between the two signal s at the level of design and structure and not
at the level of actual application at a given point in time is needed in order to demonstrate the
existence of a "close", "real", "rational", and "substantial" relationship with the conservation
objective.
236
2.142. The European Union understands that, on appeal, China criticises the Panel for concluding
that any potential contribution by its export quotas in transmitting conservation-related signals to
foreign consumers is liable to be undone by the "perverse signals" that the export quotas send to
the Chinese domestic market, and contends that the "perverse signals" are a "presumption" that is
irrelevant for the assessment of whether a measure is related to conservation.
237 Referring to the
entirety of the Panel's analysis, the European Union emphasizes that, when it is apparent, as it
was here, that there are competing signals transmitted to foreign users and to domestic users, the
Panel could not ignore this in assessing whether a link to conservation exists.
2.143. The European Union also contests China's argument that the existence of production and
extraction caps is capable, "as a matter purely of structure and design" 238, of mitigating the
perverse signals that export quotas may send to domestic users. Instead, the European Union
considers that whether or not there is a genuine link to conservation (and thus access to a general
exception under Article XX of the GATT 1994) cannot depend on chance. If the measure is to be
considered as related to conservation by virtue of its structure and design, the link between the
measure and conservation cannot be potential and conditional.
2.144. The European Union adds that, even if China were correct and the Panel was required to
consider evidence about the actual operation of the export quotas for rare earths and tungsten
pursuant to Article XX(g), the evidence on the record supports and reinforces the conclusion
reached by the Panel, based on the design and structure of the export quotas – i.e. that the export
quotas at issue cannot be considered as related to conservation. The Panel considered not only the
design and structure of China's export quota regi me, but also the regulatory context in which its
export quotas operate. For the European Union, co nsideration of regulatory context is simply part
of appreciating a particular measure, and is distinct from a consideration of how it applies and
what its effects are. Hence, the European Union submits that the Panel was correct in concluding
that China did not establish the existence of a genuine link to conservation and that China's
arguments to the contrary should be rejected.
2.145. The European Union disagrees with China' s assertion that the Panel's examination of the
domestic restrictions in its analysis under "relating to" was in error. The European Union submits
that even if this were the case and the Panel had brought into the "relating to" test considerations
which are relevant in the context of "even-handedness", this would not be fatal for the conclusion,
since it is well-established that a measure which is not even-handed also cannot be considered as
related to conservation within the meaning of Article XX(g).
239
2.146. Furthermore, the European Union stresses that the Panel did not make the finding that
China seeks to attribute to it – i.e. that China's export quotas do or at least can contribute to

235 European Union's appellee's submission, para. 141.
236 European Union's appellee's submission, para. 144.
237 European Union's appellee's submission, paras. 161 and 162 (referring to China's appellant's
238 European Union's appellee's submission, para. 174.
239 European Union's appellee's submission, para. 173 (referring to Panel Reports, paras. 7.240, 7.327,
and 7.328; Appellate Body Report, US – Gasoline, pp. 20-21, DSR 1996:I, pp. 19-20; and Panel Reports,
China – Raw Materials, paras. 7.406 and 7.465).
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conservation within the meaning of Article XX(g). According to the European Union, what is clear
from the Panel Reports is that the Panel considered that export quotas can involve two signals: (i)
on the one hand, they can transmit a signal to foreign consumers, investors, and innovators to
explore and develop alternative sources of supply and thus reduce demand for limited Chinese rare
earth reserves; and (ii) on the other hand, they can send a signal to domestic consumers to
increase demand domestically. In the European Union's view, the Panel correctly observed that
these two signals are competing, and the Panel could not ignore this in assessing the existence of
a link to conservation.
2.147. Finally, the European Union notes that China does not even attempt to explain to what
extent its request to reverse the Panel's conclusions that the export quotas at issue are "not
related to" conservation could be considered as properly grounded, in view of the other findings by
the Panel, which China does not appeal, on the othe r functions of the export quotas at issue. The
European Union highlights that the Panel rejected five other arguments advanced by China as to
why the design and architecture of the measure at issue demonstrate that the export quota for
rare earths "relates to" conservation.
240 Therefore, the European Union considers that the
contribution made by the signalling function alle ged by China would in any event be insufficient to
show that there is a genuine link between the export quotas at issue and the objective of
conservation within the meaning of Article XX(g).
2.5.2.1.3 Article 11 of the DSU
2.148. The European Union notes that the relevance of China's claims under Article 11 of the DSU
rests on the validity of its claims that the Panel erred in focusing on the design and structure of the
export quotas, and that the European Union has already explained why these claims are without
merit. The European Union adds that, even if Ch ina were correct and the Panel was required to
consider evidence about the actual operation of the export quotas for rare earths and tungsten
pursuant to Article XX(g) of the GATT 1994, there is no basis for a finding that the Panel failed to
comply with its duties under Article 11 of the DSU. Contrary to what China alleges on appeal, the
evidence on the record supports and reinforces the conclusion reached by the Panel that the
export quotas cannot be considered as related to conservation.
2.149. In response to China's allegation that there is no evidentiary basis for the transmission by
the export quotas of "perverse signals" to China's domestic market, the European Union submits
that, contrary to what China alleges, the Panel's analysis on the existence of "perverse signals" of
export quotas does not depend on a mere presumpt ion of the existence of a general effect of an
export quota. The complainants provided eviden ce that the existence of perverse signals is
confirmed by standard economic theory. The compla inants also provided evidence that, while the
export quotas may be capable of transmitting signals to foreign users that they should try to find
alternative sources of supply (or consume less if they cannot), at the same time, they stimulate
consumption by domestic users (which are already by far the largest consumers of these
products). Additionally, the complainants provided evidence of an express invitation to foreign
users to relocate to China.
241
2.150. The European Union stresses that most of the arguments and exhibits that China now
claims were not considered or given sufficient weight by the Panel in the context of the application
of the "related to" test, were in fact duly and ex pressly considered and rejected in the context of
the Panel's analysis elsewhere in the Reports. This includes: (i) the pricing data submitted by
China; (ii) China's arguments that unfilled expo rt quotas cannot cause any difference between
domestic and foreign prices; (iii) China's evidence on the narrowing of price gaps for certain rare

240 European Union's appellee's submission, paras. 179-185 (referring to Panel Reports, paras. 7.426,
7.429-7.430, 7.436, 7.439, 7.447, 7.451, 7.452, 7.462-7.471, and 7.478-7.485). At paragraph 179 of its
appellee's submission, the European Union lists the five additional arguments as follows:
(a) the export quota prevents smuggling and/or the export of illegally extracted rare earth
products; (b) the export quota reduces domestic demand for illegally extracted and/or produced
rare earth products, and thus enforces and strengthens the extraction and production quotas;
(c) …; (d) the export quota works as a "safeg uard" against "speculative surges" in demand,
which would undermine sustainable development; (e) the export quota enables China to
"allocate" the limited supply of rare earth resources; and (f) the way in which the export quota is
established "relates to" conservation.
241 European Union's appellee's submission, paras. 205 and 206 (referring to Panel Reports,
paras. 7.441, 7.632, 7.633, 7.723, and 7.824; and Panel Exhibits CHN-157, JE-152, JE-183, and JE-196).
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earth metals; (iv) evidence allegedly showing that domestic rare earth consumers reduced their
consumption of rare earth products due to an increase in prices; and (v) China's allegation that it
has put in place production and consumption caps that impose effective restrictions.
242
2.151. With respect to China's allegation that the Panel disregarded evidence submitted by China
confirming the existence of positive conservation effects of export quotas, the European Union
notes that China bases its argument on the premise that "conservation" within the meaning of
Article XX can be pursued through market segmentation. For the European Union, this is incorrect.
In any event, even if this were permissible, th e European Union contends that the complainants
demonstrated that the potentially constraining effect on overseas consumption is cancelled out by
perverse effects stimulating domestic consumption. They also showed that export quotas (and the
manner in which China sets and administers them) generate price volatility and uncertainty on the
world market, thus creating an environment that is unfavourable for long-term investment in new
mining projects, and thereby undermining the alleged reason of their existence.
2.152. In the European Union's view, contrary to China's allegations, the record shows that the
Panel in no way exceeded its authority as trier of fact. The Panel duly considered all the arguments
and evidence presented to it and the Panel Reports show that all factual findings by the Panel have
a proper basis in that evidence and are accompanied by coherent and adequate reasoning by the
Panel. Consequently, the European Union submits that there is no basis for China's claim that the
Panel made an error that would justify a finding that the Panel failed to comply with its duties
under Article 11 of the DSU.
2.5.2.2 Article XX(g) – "Made effective in conjunction with" restrictions on domestic
production or consumption
2.153. The European Union requests the Appellate Body to reject China's allegations that the
Panel failed properly to interpret and apply th e clause "made effective in conjunction with
restrictions on domestic production or consum ption" in Article XX(g) of the GATT 1994. The
European Union further requests the Appellate Body to reject China's claim that the Panel failed to
make an objective assessment of the matter contrary to Article 11 of the DSU.
2.5.2.2.1 The Panel's interpretation of the phrase "made effective in conjunction with"
restrictions on domestic production or consumption
2.154. The European Union contends that the Panel's interpretation of the clause "made effective
in conjunction with restrictions on domestic production or consumption" in Article XX(g) of the
GATT 1994 is correct and should be upheld by the Appellate Body. The European Union considers
that China essentially argues that the proper legal interpretation of the term "made effective in
conjunction with" in Article XX(g) does not require an inquiry into the respective burdens borne by
domestic and foreign interests under a scheme of conservation measures. The European Union
understands that, for China, all that subparagraph (g) requires is "that there be genuine
restrictions on domestic production or consumption, working together with the challenged
measure, to contribute to conservation".
243 I n o t h e r w o r d s , a c c o r d i n g t o C h i n a , a s l o n g a s
domestic restrictions with a conservation purpose coexist with export quotas that are "relating to
conservation", the "made effective in conjunction with" requirement under subparagraph (g) is
satisfied. The European Union notes that the "i nterpretative conundrum" presented by China "is
somewhat artificially created since, as the Panel correctly concluded,
 it is clear on the face of the
export quotas at issue that they are not genuine conservation measures ."244 The European Union
submits that where one can – unlike for China's export quotas at issue – conclude on the basis of a
measure's design and structure that it is genuinely related to "conservation", the issue of
balancing the burden placed on domestic users and foreign users – while still pursuing one and the
same conservation objective – will simply not arise.

242 European Union's appellee's submission, paras. 207-212 (referring to Panel Reports, paras. 7.510,
7.525, 7.527, 7.544, 7.550, 7.609, 7.632, 7.633, 7.638-7.640, 7.647-7.649, and 7.831; and Panel Exhibits
CHN-196, CHN-200, JE-152, JE-167, JE-168, JE-169, and JE-183).
243 European Union's appellee's submission, para. 252 (quoting China's appellant's submission,
para. 229). (emphasis original)
244 European Union's appellee's submission, para. 254. (emphasis original)
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2.155. The European Union disagrees with China's allegation that the Panel "conjure[d] up" a
novel test of even-handedness without a solid base in the language of the treaty or in the
jurisprudence.
245 For the European Union, two sets of restrictive measures are in principle
permitted as long as, in their structure and design, there is a mechanism ensuring that they both
work effectively or operate in pursuit of the same conservation objective.
2.156. The European Union submits that, where meas ures pursuing conservation objectives differ
for goods intended for export and goods intend ed for domestic consumption, any substantial
structural incoherence between the ways in which each set of restrictions tries to achieve the
conservation goal raises doubts as to whether the measures are genuine conservation measures.
In cases of disparate restrictions, therefore, th e issue of balance and coherence between two sets
of restrictions is a critical part of the assessment to be made by a panel assessing measures under
Article XX(g). The European Union considers that, where the burden placed on foreign users is
disconnected from and disproportionate to the burden placed on domestic users, measures cannot
be said to work or operate together in the pursuit of the same conservation objective.
2.157. The European Union disagrees with China's contention that the Panel's interpretation of the
clause "made effective in conjunction with restrictions on domestic production or consumption"
departs from prior case law. The fact that the Appellate Body did not, in US – Gasoline, engage in
an assessment of complementarity between the restrictions on imports, on the one hand, and the
restrictions on domestic production, on the other hand, does not suggest that such
complementarity is not required. For the European Union, the Appellate Body's discussion of the
even-handedness requirement in US – Gasoline only identified the logical boundaries of the
requirement, but it did not address what relative treatment of domestic and foreign interests,
within those logical boundaries, was required in order to qualify as "even-handed".
246
2.158. With regard to China's argument that the Appellate Body report in US – Shrimp supports
an interpretation whereby coexistence of restrictions would be sufficient to satisfy the
requirements of Article XX(g), the European Un ion points out that the measure in that case
imposed the same restrictions on domestic and foreign production or consumption. 247 In such
circumstances, an inquiry into the existence of a balance between such restrictions is not, as China
argues, incorrect, but simply redundant.
2.159. The European Union adds that the Appellate Body reports in China – Raw Materials confirm
and develop what the Appellate Body set out in US – Gasoline and in US – Shrimp. In addition, the
European Union contends that the Panel reports in China – Raw Materials stand for the proposition
that the mere existence of a production restriction does not automatically imply even-handedness
between export restrictions and domestic restrictions.
248
2.160. The European Union agrees with China that the chapeau of Article XX is relevant context
for the interpretation of subparagraph (g), but disagrees that the chapeau supports China's view
that there is no requirement of structural ba lance in the imposition of restrictions under
Article XX(g). The European Union argues that the chapeau does not support a reading of
subparagraph (g) that would allow for a lack of equity in the design and structure of restrictions. It
would be untenable to interpret or apply the tests under Article XX(g) in a manner that allows, in
the design and structure of a measure, what is expressly prohibited by the chapeau in the
application of the measure.
2.161. The European Union further disagrees with China's allegation that the Panel also erred in
its interpretation of Article XX(g) by limiting its analysis of the "even-handedness" criterion to an
assessment of the "structure and design" of the impugned measures and by declining to examine
evidence of the actual operation or effects of the measures. For the European Union, the Panel
correctly focused the analysis under Article XX(g) on the design and structure of the measures at
issue, while focusing on the application of the me asures in the second step of the two-tier test,

245 European Union's appellee's submission, para. 256.
246 European Union's appellee's submission, paras. 270-275 (referring to Panel Reports, para. 7.318;
and Appellate Body Report, US – Gasoline, pp. 20-21, DSR 1996:I, pp. 19-20).
247 European Union's appellee's submission, para. 278 (referring to Appellate Body Report, US – Shrimp,
para. 145).
248 European Union's appellee's submission, para. 283 (quoting Panel Reports, China – Raw Materials,
para. 7.464).
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that is, under the chapeau. Thus, the European Un ion asserts that evidence on the application and
actual effects of the challenged measure in specific factual circumstances is not relevant and
cannot affect the conclusion once a panel is satisfied that, based on the design and structure of the
measure at issue, the "even-handedness" test is not met.
2.162. For the European Union, both the "even-handedness" test under subparagraph (g) and the
chapeau required the Panel to look at elements of equal treatment. The focus under Article XX(g)
is on the design, structure, and architecture of the measure(s) imposing restrictions on other WTO
Members. The chapeau serves as a safety net ag ainst abuse of the exceptions through measures
provisionally justified under a subparagraph by requiring that also in their application such
measures do not result in discriminatory treatment or constitute a disguised restriction on
international trade. The European Union further contends that no facts are per se excluded from
the analysis under the even-handedness prong of the test under Article XX(g) or under the
chapeau, but that it is for the party relying upon certain facts to explain why these facts are
relevant for either analysis.
2.5.2.2.2 The Panel's application of th e "made effective in conjunction with"
requirement
2.163. The European Union contends that the Pane l did not err in its application of the clause
"made effective in conjunction with restrictions on domestic production or consumption". For the
European Union, China's claims that the Panel erred in the application of subparagraph (g) of
Article XX of the GATT 1994 are consequential to China's claims of error in the legal interpretation
by the Panel. Accordingly, the Appellate Body should reject China's claims relating to the Panel's
application of subparagraph (g) for the same reasons that it should reject China's claims relating
to the interpretation of that provision.
2.164. In addition, the European Union contends that, even based on China's interpretation of
Article XX(g), China's claims that the Panel erred in the application of subparagraph (g) cannot
stand.
 First, the European Union highlights that China has not appealed the Panel's findings
regarding the absence of domestic restrictions. The Panel applied the "even-handedness" test on
an arguendo basis. Therefore, even assuming that the Panel erred in its interpretation and
application of the phrase "made effective in conjunction with", this would not affect the Panel's
conclusion that the export quotas cannot be provisionally justified under subparagraph (g).
2.165. Second, with respect to China's allegation that the Panel failed to explain why and how
certain evidence discounted the restrictive effect of extraction and production caps on domestic
consumers, the European Union contends that this claim does not relate to an error of application of
law, but to the Panel's obligation to make an objective assessment of the facts. Referring to the
Appellate Body's statement in EC and certain member States – Large Civil Aircraft that, in most
cases, "an issue will either be one of application of the law to the facts or an issue of the objective
assessment of facts, and not both", the European Union expresses the view that these arguments
by China concern the determination of whether or not a certain event occurred and the Panel's
determination of the credibility and weight properly to be ascribed to a piece of evidence.
249 To
underline this point, the European Union adds that China refers to its arguments in the context of
its claim under Article 11 of the DSU to support its allegation that the Panel erred in the
application of the law.
250 Thus, the European Union requests the Appellate Body to decline to rule
on this claim or reject it as an Article 11 of the DSU claim.
2.166. Third, the European Union argues that, even if the actual effects of the alleged domestic
restrictions and export quotas were relevant for purposes of the analysis under subparagraph (g)
of Article XX, this would not affect the conclusion that the export quotas at issue cannot be
provisionally justified under subparagraph (g). The European Union submits that the Panel
properly considered and rejected all arguments pres ented by China in support of its position that
China's export quotas were justified under subparagraph (g). In particular, the Panel considered
and rejected arguments by China relating to the effects of unfilled export quotas. The Panel also
considered pricing data submitted by China and rejected that data due to concerns about the

249 European Union's appellee's submission, para. 320 (quoting Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 872).
250 European Union's appellee's submission, para. 321 (referring to China's appellant's submission,
fn 239 to para. 285).
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reliability of the data. Moreover, the European Un ion argues that the Panel considered arguments
and evidence submitted by the complainants and by China when addressing the issue of whether
"signalling" concerning recycling and research and development of substitutes occurred.
2.5.2.2.3 Article 11 of the DSU
2.167. The European Union maintains that, as the initial trier of facts, a panel enjoys a certain
margin of discretion in its consideration of the facts. In order to comply with its duty under
Article 11, a panel must provide reasoned and adequate explanations and coherent reasoning, it
must not reveal a lack of "even-handedness" in the treatment of evidence, and it must base its
findings on a sufficient evidentiary basis.
2.168. With respect to China's contention that th e Panel failed to address evidence submitted by
China as to the timing of and manner in which the allocation of the export, extraction, and
production quotas was coordinated and that this demonstrated that all quota levels were set by
the competent ministries at the same time, the European Union maintains that the Panel
acknowledged, and rejected, the evidence and arguments submitted by China.
251
2.169. Second, the European Union addresses China's contention that, with regard to the levels of
the quotas, the Panel focused on the fact that th e unused export quota shares were redirected to
the domestic market, but failed to address China' s argument that the unfilled export quota shares
need not necessarily be redirected to the domestic market. The European Union argues that China
first raised this argument in the interim review, that it was not supported by evidence, that it has
no merit, and that it should be rejected.
252
2.170. Third, the European Union addresses Chin a's allegation that the Panel failed to address
arguments and evidence submitted by China ex plaining why it has not adopted domestic
consumption quotas and submits that the Panel fully considered and rejected China's arguments
and evidence to that effect.
253 In addition, the European Union contends that China fails to explain
why, in the light of all other factual findings made by the Panel regarding "even-handedness", the
allegedly disregarded evidence is so material to China's case that the Panel's failure to address the
evidence has a bearing on the objectivity of the Panel's factual assessment.
254
2.171. The European Union also responds to China's allegation that the Panel failed to address
certain evidence showing the existence of a temporal connection in the way that the domestic and
export quotas work together as part of China's conservation policy. For the European Union, these
arguments concern alleged effects as opposed to the design and structure of the measures at
issue, and the Panel was therefore correct in not considering them as relevant in the context of its
analysis under Article XX(g). In addition, the European Union contends, these arguments were
contested by the complainants.
2.172. Furthermore, the European Union disagrees with China that the Panel engaged in
incoherent reasoning in finding, on the one hand, that China had adopted a comprehensive
conservation policy and, on the other hand, that it had not imposed "restrictions" in the sense of
Article XX(g). For the European Union, the Panel's finding that China had not imposed restrictions
on domestic production or consumption demonstrates that the conservation regime was not
sufficient to comply with Article XX(g).
2.173. Finally, in response to China's allegation that the Panel applied a "double standard" in its
"even-handedness" analysis, the European Union contends that this criticism is based on the
premise that the Panel was required to consider th e effects of the export quotas and of domestic
restrictions. However, for the European Union, the Panel was not required to do so, and correctly
focused on the design and structure of the measures at issue.

251 European Union's appellee's submission, para. 343 (referring to Panel Reports, paras. 7.466-7.478
and 7.572).
252 European Union's appellee's submission, paras. 348 and 349 (referring to Panel Reports, paras. 6.20
and 7.628).
253 European Union's appellee's submission, para. 351 (quoting Panel Reports, paras. 7.547-7.550).
254 European Union's appellee's submission, para. 352 (referring to Appellate Body Report, EC –
Fasteners (China), para. 442).
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2.6 Arguments of Japan – Appellee (DS433) and third participant (DS431 and DS432)
2.6.1 Article XII:1 of the Marrakesh Agreem ent and Paragraph 1.2 of China's Accession
Protocol
2.174. Japan requests the Appellate Body to reject China's "opaque and unconvincing arguments"
on appeal255, and to uphold the Panel's findings as they are based on a proper examination of the
provisions at issue.
2.175. Japan notes that China's appeal is limited to portions of the Panel's reasoning in
addressing the issue of the availability of Ar ticle XX of the GATT 1994 to justify a breach of
Paragraph 11.3 of China's Accession Protocol. Japan highlights that China does not appeal, and
does not seek reversal of, the Panel's conclusions th at the export duties at issue in these disputes
are inconsistent with Paragraph 11.3 of China's Accession Protocol, and that China may not seek to
justify the export duties pursuant to Article XX( b) of the GATT 1994. Japan contends, therefore,
that China is seeking an "advisory opinion" from the Appellate Body that would have no legal or
practical effect on the outcome of these disputes. In Japan's view, seeking advisory opinions is
inconsistent with the DSU, in particular Article 3.4 of the DSU, which requires the DSB's
recommendations and rulings to aim at settling the dispute at hand.
2.6.1.1 Paragraph 1.2 of China's Accession Protocol
2.176. Japan maintains that the Panel correctly assessed the meaning of the term "the
WTO Agreement" in Paragraph 1.2 of China's Accessi on Protocol in finding that China's Accession
Protocol is an integral part of the Marrakesh Agreement and not, in addition, an integral part of the
Multilateral Trade Agreements annexed thereto. According to Japan, China's assertion that the
Panel confounded the ordinary meaning of Paragraph 1.2 with the initial literal reading of its terms
is without merit. Rather, the Panel viewed the co nsistent use of singular words in the second
sentence of Paragraph 1.2 to describe China' s Accession Protocol as supportive of the
interpretation that China's Accession Protocol is a single instrument to be treated as a unitary part
of "the WTO Agreement".
2.177. Moreover, Japan argues, the Panel did not stop at the text of Paragraph 1.2 but went on to
analyse, and find confirmation for its interpretation in, the context provided by other "integration"
provisions in the covered agreements, such as Article II:2 of the Marrakesh Agreement. The
Panel's interpretation was also confirmed by its examination of paragraph 1 of the language
incorporating the GATT 1994 into Annex 1A, which contains the exhaustive list of what the
GATT 1994 consists. According to Japan, this list, which does not refer to post-1994 accession
protocols, reflects Members' recognition that an explicit textual basis is required to integrate any
legal instrument into a specific Multilateral Trade Agreement.
2.178. Japan further submits that, as the Panel rightly found, China's interpretation would render
redundant the explicit language throughout China's Accession Protocol that makes
cross-references to the Marrakesh Agreement and the Multilateral Trade Agreements annexed
thereto. Specifically, the Panel found that Paragraph 1 of Part II of China's Accession Protocol, read
together with Article II:7 of the GATT 1994, expressly makes the schedules of concessions
annexed to the Protocol an integral part of the GATT 1994. Such express language would have
been unnecessary if "all GATT-related provisions of the Accession Protocol were implicitly made an
'integral part' of the GATT 1994".
256 Japan notes that, in criticizing this Panel finding, China
contends that Members' goods and services schedules are "separate instruments" and "change
from time to time".
257 However, Japan argues, China ignores the fact that an accession protocol is
also a "separate instrument" and fails to explain why possible modifications to schedules would
sever the "intrinsic relationship" between the GATT 1994 and the schedules. Moreover, as the
Panel rightly found, such explicit cross-references to the Marrakesh Agreement and the Multilateral
Trade Agreements can be found in, inter alia, Paragraph 5.1 of China's Accession Protocol. Japan
maintains that the explicit cross-reference in Paragraph 5.1 was central to the Appellate Body's
decision in China – Publications and Audiovisual Products that Article XX of the GATT 1994 was
available to justify a breach of Paragraph 5.1. With respect to Paragraph 11.3, Japan further

255 Japan's appellee's submission, para. 160.
257 Japan's appellee's submission, para. 188 (quoting China's appellant's submission, para. 126).
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recalls the Appellate Body's finding in China – Raw Materials 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".
258 In
Japan's view, China's arguments fail to engage with the fact that, in both disputes, the
Appellate Body properly grounded its decision on the availability of Article XX of the GATT 1994 to
breaches of China's Accession Protocol in the express language in the Protocol.
2.179. Japan disagrees with China's contention that the Panel's interpretation of Paragraph 1.2
"would jeopardize the internal coherence of the WTO legal framework", because "a far-reaching
requirement regarding … China's 'WTO-plus' commitments" would have to be "an integral part of"
the institutional agreement of the WTO – the Marrakesh Agreement.
259 In Japan's view, such a
concern is unwarranted, because there is nothing in the WTO legal framework that would preclude
the substantive trade obligations, in both the Multilateral Trade Agreements and China's Accession
Protocol, from being an integral part of the Marra kesh Agreement. Finally, Japan agrees with the
Panel that, as indicated in prior disputes involving China's Accession Protocol, Paragraph 1.2 of the
Protocol serves the function of making the obligations in the Protocol enforceable under the DSU,
and ensuring that those obligations are interpreted in accordance with the customary rules of
interpretation of public international law within the meaning of Article 3.2 of the DSU. Thus, Japan
submits that the Panel correctly found that China's interpretation of Paragraph 1.2 "appears to
depart significantly from the understanding of the legal effect of this provision, as reflected in prior
panel and Appellate Body reports".260
2.6.1.2 Article XII:1 of the Marrakesh Agreement
2.180. Japan submits that the Panel carefully considered, and rightly rejected, China's arguments
with respect to Article XII:1 of the Marrakesh Agreement. Japan contends that China never
explained how Article XII:1, read together with the context provided by Paragraph 1.2 of China's
Accession Protocol, confirms that China's Accession Protocol serves to specify, including by means
of "WTO-plus" commitments, China's rights and obligations under the Marrakesh Agreement and
the annexed Multilateral Trade Agreements. Rather, China's reading of Article XII:1 is contrary to a
proper interpretation of the provision pursuant to the principle of treaty interpretation under
Article 31 of the Vienna Convention. Japan maintains that the words "[s]uch accession" at the
beginning of the second sentence of Article XII: 1 refer to the act of acceding to the Marrakesh
Agreement described in the preceding sentence. If the drafters had intended to convey the
meaning advocated by China, they would have used an entirely different formulation by stating,
for example, that "each of the relevant terms of accession contained in an accession protocol shall
be incorporated into this Agreement or one of the Multilateral Trade Agreements, as applicable".
261
2.181. Japan maintains that the words actually used in Article XII:1, second sentence, read in
their context, indicate that this provision serves to specify the scope of agreements to be accepted
by an acceding State or customs territory. China's argument that such an interpretation makes
Article II:2 of the Marrakesh Agreement redundant fails to recognize the import of the different
functions served by Articles II:2 and XII:1, respectively. In Japan's view, Article II:2 defines the
scope of the application of the Multilateral Trade Agreements with respect to existing Members,
whereas Article XII:1 regulates the process of acceding to the WTO by a prospective Member.
Thus, Article XII:1 ensures that no State or customs territory would become a WTO Member unless
and until it accepts to be bound by the WTO single undertaking, thereby giving effect to
Article II:2.
2.182. Moreover, Japan argues, to the extent th at China's position is that each "WTO-plus"
obligation set out in its Accession Protocol is to be added to one of the Multilateral Trade
Agreements as an integral part thereof, China is effectively arguing that each provision of China's
Accession Protocol is an amendment to the Mult ilateral Trade Agreements. The procedures for
amending the WTO Agreement, including the Mu ltilateral Trade Agreements, are set forth in
Article X of the Marrakesh Agreement. Japan submit s that nothing in Article XII suggests that the

258 Japan's appellee's submission, para. 195 (quoting Appellate Body Reports, China – Raw Materials,
para. 293).
259 Japan's appellee's submission, para. 183 (quoting China's appellant's submission, para. 112).
260 Japan's appellee's submission, para. 190 (quoting Panel Reports, para. 7.85). (emphasis original)
261 Japan's appellee's submission, para. 211.
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accession procedures set forth therein can replace, or dispense with, the specific decision-making
procedures for amendments provided in Article X.
2.183. Japan further submits that Article XII:1 of the Marrakesh Agreement does not specify what
the "terms" of accession should be, but leaves the task of defining such terms to the working
parties established for individual accession processes. In this respect, Japan recalls the
Appellate Body's findings in China – Raw Materials and in China – Publications and Audiovisual
Products, which confirm that access to the exceptions of Article XX of the GATT 1994 for measures
inconsistent with China's commitments set out in its WTO Accession Protocol are only available if
specific language to that effect is incorporated in the text of the provisions setting out such
commitments.262
2.6.1.3 The relationship of accession protocol provisions with the Marrakesh Agreement
and the Multilateral Trade Agreements annexed thereto
2.184. Japan submits that the Multilateral Trade Agreements, including the GATT 1994, are
integral parts of the Marrakesh Agreement under it s Article II:2. By virtue of Paragraph 1.2 of
China's Accession Protocol, that Protocol is also an integral part of the Marrakesh Agreement.
Accordingly, there is no hierarchy between China' s Accession Protocol and the Multilateral Trade
Agreements, nor does the former belong to the latter, and nothing in the Marrakesh Agreement
provides otherwise. Moreover, contrary to China's argument, the drafters determined to specify
the link, if any, between the specific commitments set out in China's Accession Protocol, on the
one hand, and the Marrakesh Agreement and the Multilateral Trade Agreements, on the other
hand, through explicit text – i.e. "terms of accession" – to be drafted by the Working Party and
agreed upon by the Members and China pursuant to Article XII:1 of the Marrakesh Agreement. The
drafters did not elect to rely, as China surmises, on the "opaque" operation of Article XII:1 of the
Marrakesh Agreement and Paragraph 1.2, second sentence, of China's Accession Protocol.263
2.185. Japan maintains that China's position, in particular its "intrinsic relationship" test,
threatens to create a host of unnecessary prob lems for panels and the Appellate Body in
interpreting post-1994 accession protocols. Moreover, under China's approach, until review by
panels or the Appellate Body is complete, the particular agreement of which a specific accession
protocol commitment is an integral part would remain undetermined. Japan further contends that
the "intrinsic relationship" test is "unworkable" where a provision of China's Accession Protocol
relates to more than one covered agreement.
264 Japan points, in this regard, to the commitments
made by China in Paragraph 2.2 of its Accession Protocol, which concerns the uniform
administration of China's trade regime and applies to measures "pertaining to or affecting trade in
goods, services, trade-related aspects of intellectual property rights ('TRIPS') or the control of
foreign exchange".
2.186. In addition, Japan argues, the "intrinsic relationship" test is likely to be particularly
problematic where a provision of China's Protocol contains "WTO-plus" commitments, which go
beyond what is required in the covered agreements. For example, the obligation to eliminate
export duties in Paragraph 11.3 of China's Accession Protocol is a "WTO-plus" obligation and is
subject to specific exceptions set out in Annex 6 to China's Accession Protocol. However, under
China's interpretation, the Appellate Body would be required to "shift" this WTO-plus obligation out
of China's Accession Protocol and into the GATT 1994, subjecting it to a host of exceptions
contained therein. In Japan's view, China is effect ively asking the Appellate Body to "rewrit[e] and
transform[] a specific bargain struck by the WTO Members when China joined the WTO".
265
2.187. Furthermore, Japan contends that China's characterization of post-1994 accession
protocols as not "self-contained" is equally without basis. The term "self-contained" is absent from
the text of the covered agreements, and China do es not explain what this term means or what
legal significance China ascribes to it. According to Japan, a post-1994 accession protocol is not
divisible but is a single instrument that must be treated as an integral and unitary part of the
Marrakesh Agreement. Japan further observes that there is "no disagreement among the parties"

262 Japan's appellee's submission, para. 214 (referring to Appellate Body Reports, China – Raw
263 Japan's appellee's submission, para. 187 (referring to China's appellant's submission, para. 123).
264 Japan's appellee's submission, para. 216.
265 Japan's appellee's submission, para. 219.
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that China's Accession Protocol is not listed in Appendix 1 to the DSU, and yet its terms are
covered by the DSU.266 Japan reiterates that it is Paragraph 1.2 of China's Accession Protocol that
incorporates its provisions within the coverage of the DSU.
2.188. Japan observes that China has modified its arguments several times throughout the course
of these disputes. For example, China initially contended that Paragraph 11.3 of its Accession
Protocol is "intrinsically related to" Article XI:1 of the GATT 1994. Subsequently, China abandoned
this position and instead argued that Article II:1(a) of the GATT 1994 is the provision of the
GATT 1994 to which Paragraph 11.3 intrinsically relates.
267 Moreover, China's emphasis on the
importance of Article XII of the Marrakesh Agreement evolved during the course of these disputes.
Despite substantial arguments in its first written submission to the Panel in support of its
contention that Article XX of the GATT 1994 is av ailable to China to defend its WTO-inconsistent
export duty measures
268, China never mentioned Article XII of the Marrakesh Agreement.
2.189. Finally, Japan observes that China never addresses the panel and Appellate Body findings
in China – Raw Materials . As Article 3.2 of the DSU makes clear, the function of panels and the
Appellate Body is to "clarify the existing provisions of [the covered] agreements in accordance with
customary rules of interpretation of public international law", not "add to or diminish the rights and
obligations provided in the covered agreements". In Japan's view, exceeding this limited function
would undermine the security and predictability that the DSU is designed to guarantee, as well as
the rules of interpretation of public international law.
2.6.2 Article XX(g) of the GATT 1994
2.6.2.1 Article XX(g) – "Relating to" the conservation of exhaustible natural resources
2.190. Japan urges the Appellate Body to reject China's "misportrayal" of the Panel's analysis, as
well as China's effort to require panels and the Appellate Body to consider the "actual effects" of
China's export quota measures, contrary to the previous interpretations of Article XX(g) of the
GATT 1994 provided by the Appellate Body.
269 According to Japan, the Panel conducted an
exhaustive examination of the design and structure of China's export quota measures and
correctly determined that they lack any meaningful relationship to the "conservation of exhaustible
natural resources" under Article XX(g) of the GATT 1994.
2.6.2.1.1 The Panel's interpretation of the term "relating to"
2.191. Japan observes that the Article XX(g) exception is strictly limited to measures "relating to
the conservation of exhaustible natural resources" . This requires what the Appellate Body termed
in US – Shrimp a "close and genuine relationship of ends and means", and an examination of the
relationship between "the general structure and design of the measure … and the policy goal it
purports to serve".
270 Accordingly, Japan considers that it was incumbent upon China to show a
"substantial relationship" between the export quota measures and China's ostensible conservation
goals, such that China's measures "cannot be regarded as merely incidentally or inadvertently
aimed at … the purposes of Article XX(g)".
271
2.192. Japan notes that, while a panel may take a WTO Member's characterization of its measure
into account, it should also find guidance in the structure and operation of the measure and in
contrary evidence proffered by the complaining party. Such an inquiry into a measure's objective
structure and design is vital, because it allows a panel to "go beyond a responding Member's
normal protestations" that it has, of course, complied with its WTO obligations, by examining the
objective elements and design of the challenged measure and its role in the overall conservation

266 Japan's appellee's submission, para. 174.
267 Japan's appellee's submission, para. 200 (referring to China's first written submission to the Panel,
para. 422; and China's responses to the complainants' comments on China's request for a preliminary ruling on
the availability of Article XX of the GATT 1994, paras. 21-23).
268 Japan's appellee's submission, para. 202 (referring to China's first written submission to the Panel,
paras. 408-461).
269 Japan's appellee's submission, para. 26.
270 Japan's appellee's submission, para. 28 (referring to Appellate Body Report, US – Shrimp,
paras. 136-138).
271 Japan's appellee's submission, para. 28 (referring to Appellate Body Report, US – Gasoline, p. 19,
DSR 1996:I, p. 18).
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scheme to determine whether the "protestations" match with objective reality. 272 For Japan, this
case underscores the wisdom of the Appellate Body's adoption of a "structure and design" test for
Article XX(g), as opposed to requiring that panels and the Appellate Body delve into a "Pandora's
box" of "effects", "positive contributions", or a WTO Member's subjective intentions, thereby
leaving the security and predictability of WTO rules adrift.273
2.193. Japan highlights that, generally, panels under the GATT 1947 were, and the
Appellate Body has been, sceptical about incorporat ing "effects" tests, as evidenced, for example,
in the Appellate Body report in Japan – Alcoholic Beverages II .274 It is difficult to apply "effects"
tests in a way that is consistent with the goal set out in Article 3.2 of the DSU, of promoting
security and predictability to the multilateral trading system. For Japan, one of the core
weaknesses of China's efforts to insert an "effects" test into the Article XX(g) review and analysis
is that, without a detailed examination of various causes, it is impossible to determine whether the
effects – positive or negative – result from the export quotas or something else. In other words,
such a methodology invites "false positives" or "false negatives", because it depends on whether
there is a causal linkage between a measure and the positive (or negative) "effect" or
"contribution". Otherwise, it may be mere coincidence. In contrast, Japan characterizes the
"design and structure" test as an objective tool for determining whether there is a genuine
relationship of means and ends.
2.194. Japan clarifies that the effect or the contribution can be useful evidence to discern or
analyse the design and structure of the measure. However, it is not sufficient to show that there is
some causal link between the effect and the measure. In Japan's view, if effects are to be taken
into account, those effects need to be inherent in the measure. Japan adds that the actual effects
of a measure may be looked at in confirming that the measure, in its design and structure, is
related to conservation, but these actual effects should not be the basis of the decision of whether
the required nexus exists between the challenged measure and the conservation objective.
2.195. Japan contends that there is no support in the text of Article XX(g) or in the jurisprudence
for a "positive contribution" test of whether a measure "relates to" conservation. Japan asserts
that China's legal rationale for this "new-found" test improperly mixes and matches disparate
elements of Article XX(g) and Article XX(b) jurisprudence in a way that seriously distorts both
provisions.
275 Given the fundamental textual and contextual differences between these two
provisions, Japan submits that it is wholly inappropriate to borrow concepts like "apt to" and
"material contribution" from Article XX(b) and in sert them into an entirely different GATT 1994
exception, as China proposes. 276 Indeed, in US – Gasoline , the Appellate Body warned against
precisely this type of indiscriminate mixing of different GATT exceptions. Japan therefore requests
the Appellate Body to reject China's claim that th ere is a basis in the text of the GATT 1994 or in
Appellate Body precedents for adding a "posit ive contribution" element to the "relating to"
requirement.
2.196. Japan maintains that China has yet to provide any plausible reasons, much less the
"cogent reasons" required by US – Stainless Steel (Mexico), for the Appellate Body to "jettison two
decades of its own jurisprudence" under Article XX(g) and instead rely on an unknown test
involving "positive contributions", effects, and causal linkages.
277
2.6.2.1.2 The Panel's application of the "relating to" requirement
2.197. Japan submits that, in seeking to justify its claims of error to the Appellate Body, China
has resorted to "caricaturing, if not outright misrepresenting" 278, the Panel's factual findings and
legal reasoning. Japan avers that, far from grounding its decision solely on "perverse signals", as
China alleges, the Panel found multiple and manifest flaws in the overall structure, design, and

272 Japan's appellee's submission, para. 30.
273 Japan's appellee's submission, para. 30.
274 Japan's appellee's submission, para. 37 (referring to Appellate Body Report, Japan – Alcoholic
Beverages II, pp. 23 and 29, DSR 1996:I, pp. 115 and 120).
275 Japan's appellee's submission, paras. 32 and 33.
276 Japan's appellee's submission, para. 35.
277 Japan's appellee's submission, para. 39 (referring to Appellate Body Report, US – Stainless Steel
(Mexico), para. 160).
278 Japan's appellee's submission, para. 40.
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operation of China's export quotas, and properly found that these measures having nothing to do
with conservation.
2.198. Japan submits that it was entirely appropriate for the Panel to consider such "perverse
signals", which are amply documented in economic literature and grounded in basic economic
principles, and were explicitly discussed by the panel in China – Raw Materials .279 For Japan, an
objective review of the Panel Reports shows that the Panel: (i) did not apply a presumption;
(ii) carefully examined the operational structure and design of the production, extraction, and
export quotas in China's rare earth regime; and (i ii) ultimately was not convinced that the design,
structure, and architecture of China's export quotas on rare earths, tungsten, and molybdenum
could counter the "perverse signals" being sent to Chinese users or ensure that domestic demand
was not being artificially stimulated by low prices and government assurances of an abundant
future supply arising.
2.199. Japan recalls the findings of the Panel with respect to "signalling"
280, namely, that China's
rare earth regime, like its tungsten regime, lacks any structural mechanism to counter the
"perverse signals" being sent by the WTO-inconsistent export quotas to Chinese downstream
industrial users. Japan considers this finding by the Panel to be critical because, in the absence of
such mechanism in the structure and design of China's rare earth regime, it follows that any
positive effects that, according to China, arose from the operation of its export quotas were
coincidental and lacked any "causal linkage" to China's rare earth policies.
281 Japan points out that
China has yet to explain how, if no mechanisms exist in the quotas' structure and design, the
operation of China's rare earth regime can counter the "perverse signals" sent to domestic
consumers. Japan concludes, therefore, that the Panel's scepticism about the conservation-related
"signals" being sent by the Chinese export quotas was entirely justified.
2.200. Japan adds that, contrary to China's allegations, the Panel's "theoretical" observations
regarding the "perverse signals" sent by export quotas were fully borne out by the undisputed
facts of this case. In this regard, Japan contests China's claim that there was a decline in domestic
consumption as a result of alleged domestic restrictions, maintaining that the reasons for this
alleged decline are "muddled"
282: such decline could have been a result of the signals, or of an
unprecedented global recession, or of a massive spike in rare earth prices in 2010 after China
sharply tightened the export quota levels. Japan therefore maintains that, had the Panel chosen to
weigh "actual effects", it would have had no impact on the outcome of these disputes since the
evidence makes it clear that the "perverse signals" arising from the export quotas were correctly
understood and fully internalized by Chinese users and downstream industries. In Japan's view, for
the Appellate Body to reweigh the facts, as China insists, would not only be clear legal error, it
would also "fly in the face" of clear, undisputed evidence of sharp increases in Chinese production
and consumption and call into question the effectiveness of the DSU's fact-finding processes.
283
2.201. Japan also highlights that China put forth a half dozen "shifting justifications"284 for how its
export quotas relate to conservation, all of which were challenged by the complainants and
rejected by the Panel. China appeals but one of those Panel findings. For Japan, "a fair-minded
review" of the Panel's detailed findings and legal reasoning demonstrates that China's argument
"incorrectly elevates a secondary aspect of the Panel's reasoning to the apex of its legal
rationale"
285, while ignoring multiple other Panel findings, including: (i) the Panel's findings that
the text, structure, and design of China's rare earth, tungsten, and molybdenum export quotas
were deficient in numerous respects aside from th e "perverse effect"; and (ii) the Panel's correct
finding that the evidence showed overwhelming ly that China's export quota measures have
nothing to do with conservation; instead, they relate directly to China's policy of protecting and
promoting downstream, value-added industries that use rare earths, molybdenum, and tungsten in
manufacturing advanced materials and technologies. Japan further points to multiple other
structural and design oddities of China's rare earth regime, some of which were discussed by the

279 Japan's appellee's submission, para. 42 (referring to Panel Reports, China – Raw Materials,
para. 7.586).
280 Japan's appellee's submission, para. 43 (referring to Panel Reports, paras. 7.447 and 7.448).
281 Japan's appellee's submission, para. 45.
282 Japan's appellee's submission, para. 47.
283 Japan's appellee's submission, para. 48.
284 Japan's appellee's submission, para. 50 (referring to Panel Reports, para. 7.408).
285 Japan's appellee's submission, para. 57.
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Panel, and which show that this regime appears to be tied not to conservation, but rather to
industrial policy.
2.6.2.1.3 Article 11 of the DSU
2.202. Japan contends that China's argument, that the Panel erred under Article 11 of the DSU in
its ascertainment of the facts relevant for the appl ication of subparagraph (g) of Article XX, and in
its reasoning in support of its "relating to" analysis, is without merit. In Japan's view, the Panel
conducted a thorough legal and factual analysis of the "relating to" test, consistent with Article 11
of the DSU. Specifically, the Panel carefully cons idered China's contentions with respect to the
possible "perverse effects" of China's export quot as. These "perverse effects" played but a minor
role in the Panel proceedings, and the Panel arrived at the correct conclusions in respect thereof.
In addition, Japan submits that China mischaracterizes the legal standard under which panels
review and handle evidence pursuant to Article 11 of the DSU. Japan emphasizes that both
Article 11 of the DSU and prior Appellate Body decisi ons provide substantial discretion to panels to
handle evidence in a manner tailored to the circum stances of a particular dispute, and set a high
threshold for appellate review of a panel's assessment of the facts under Article 11.
2.203. Japan also asserts that, whereas China's appellant's submission portrays the evidence with
respect to the pricing, recycling, and reloca tion "effects" of China's export quotas as
straightforward and uncontested, China is simply recycling its factual arguments from the Panel
proceedings. China is requesting the Appellate Body to consider de novo several factual issues
presented to the Panel, even though each of th ese issues was "litigated vigorously" before the
Panel.
286 Japan then provides examples of these already litigated issues, which include: (i) China's
allegation that export quotas do not affect pricing of rare earths, and that, particularly where an
export quota is not filled, the price gaps cannot be caused by the export quota 287; (ii) China's
claim that its pricing data illustrated how China's export quotas relate to conservation 288;
(iii) China's claim that its export measures "relate to" its efforts to promote recycling of rare
earths289; and (iv) China's argument that there was no economic pressure on downstream
manufacturers to relocate to China.290
2.204. Further, Japan contends that, contrary to China's claims on appeal, the Panel's findings in
this regard were reasonably predicated on the record evidence and are based neither on an
"assumption", nor on "incoherent reasoning".
291
2.6.2.2 Article XX(g) – "Made effective in conjunction with" restrictions on domestic
production or consumption
2.205. Japan requests the Appellate Body to reject China's appeal in respect of the second clause
of Article XX(g) and to uphold all findings and conclusions set forth in the Panel Reports. Japan
contends that the Panel correctly determined that China's export quotas on rare earths, tungsten,

286 Japan's appellee's submission, para. 79.
287 Japan's appellee's submission, para. 82. Japan takes particular issue with China's statement at
paragraph 189 of its appellant's submission that "the evidence provided by the complainants does not disagree
with Professor de Melo's understanding". Japan indicates that China's "representation is plainly inaccurate",
highlighting the complainants' arguments that "the medium- and long-term trade-distorting effects of these
export restrictions are substantially more complicated and difficult to evaluate". (See ibid. (referring to China's
appellant's submission, para. 189; and other appellant's submission, para. 120, in turn referring to Panel
Exhibit CHN-157); Japan's second written submission to the Panel, paras. 159 and 186 (referring to Panel
Exhibit JE-141); opening statement at the second Panel meeting, paras. 43 and 44; response to Panel question
No. 79, para. 45; and comments on China's responses to the Panel's second set of questions, paras. 25, 26,
and 33-34 (referring to Panel Exhibit JE-182))
288 Japan's appellee's submission, para. 82 (referring to Japan's opening statement at the second Panel
meeting, paras. 43 and 44; and response to Panel question No. 78, paras. 34 and 35).
289 Japan's appellee's submission, para. 83 (referring to Panel Reports, para. 7.448).
290 Japan's appellee's submission, para. 84 (referring to Japan's second written submission to the Panel,
para. 184, in turn referring to Panel Exhibits JE-146 and JE-147); opening statement at the second Panel
meeting, para. 42; response to Panel question Nos. 76 and 82, paras. 29-31, and 52; comments on China's
responses to the Panel's second set of questions, paras. 31-33; and United States' second written submission
to the Panel, paras. 130 and 131 (referring to Panel Exhibits JE-102, JE-118, JE-145, and JE-147); opening
statement at the second Panel meeting, para. 50.
291 Japan's appellee's submission, para. 70.
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and molybdenum were not "made effective in conjunction with restrictions on domestic production
or consumption" and were not "even-handed".
2.6.2.2.1 The Panel's interpretation of the phrase "made effective in conjunction with"
restrictions on domestic production or consumption
2.206. Japan contends that the Panel correctly interpreted the clause "made effective in
conjunction with restrictions on domestic production or consumption" in Article XX(g). The Panel
properly focused on whether China's domestic and export restrictions are structured "in a balanced
way". Japan refers to the Appellate Body reports in US – Gasoline, US – Shrimp, and China – Raw
Materials in support of its argument that the relationship between domestic and trade-restrictive
measures cannot be merely coincidental, so that both merely happen to exist at the same point in
time.
292 Rather, such measures must have a genuine operational relationship as well, so that they
function together to advance the goals of the cons ervation scheme. For Japan, this flows from the
Appellate Body's choice of the word "operate" to characterize the type of relationship required
between the two sets of measures, building on the use of the phrase "made effective" in
subparagraph (g). Japan contends that the word "operate" connotes a functional or operative
relationship such that both sets of measures f unction together as part of a unitary scheme to
support conservation.
2.207. Moreover, Japan submits that the Panel's focus on whether the export and domestic
production and consumption restrictions were being applied "in a balanced way" flowed naturally
from the Panel's interpretation of the term "conservation" in Article XX(g) as prohibiting the control
of allocation or distribution of a natural resource in order to advance an economic purpose. Japan
explains that the Panel's interpretation that Article XX(g) requires that the burden of conservation
must be distributed in a balanced manner between foreign and domestic consumers is consistent
with the definition of "even-handedness".
293 This "balance" also ensures that the export and
domestic measures work together to support conservation. If this balance is missing, it is difficult
to see how the trade measures can work together with restrictions on domestic production or
consumption. For Japan, even-handedness or balance is particularly important when rapidly rising
domestic consumption presents the biggest threat of resource depletion. Japan adds that these
considerations are "somewhat theoretical", given that the Panel did not find that any of China's
measures qualified as "restrictions" for purposes of subparagraph (g).
294
2.208. Japan alleges that China takes an ex treme minimalist approach, criticizing the
Appellate Body's "even-handedness" test and arguin g that the term "in conjunction with" requires
only that some restrictions, however minimal, must be applied to domestic production or
consumption. This means that any limits on production or consumption, however meaningless and
unbalanced, suffice for purposes of showing that a trade-restrictive measure operates "in
conjunction with restrictions on domestic production or consumption". According to Japan, all that
is required, under China's view, is that domestic production is not unlimited.
2.209. Japan disagrees with China that the Appellate Body specifically "eschewed"
295 any inquiry
into "identity, substantive complementarity, impartiality or balance" of the trade measure and the
domestic restrictions in US – Gasoline . For Japan, the Appellate Body merely emphasized that
"even-handedness" does not require "identical tr eatment", and described two extreme situations
at the opposite ends of the spectrum; where there is strict identity of treatment, and where no
restrictions are imposed on domestic products at all.
296 Japan is of the view that the
Appellate Body properly left it to future cases to determine specific standards for "even-
handedness" based on review of specific factual situations.

292 Japan's appellee's submission, paras. 94-100 (referring to Appellate Body Report, US – Shrimp; and
quoting Appellate Body Reports, US – Gasoline, p. 20, DSR 1996:I, p. 19; and China – Raw Materials,
para. 356).
293 Japan's appellee's submission, para. 98 (quoting Oxford Dictionaries online, definition of "even-
handedness", available at: <http://www.oxforddictionaries.com/definition/english/incidence?q=incidence>,
accessed 9 May 2014).
294 Japan's appellee's submission, para. 105.
295 Japan's appellee's submission, para. 107 (quoting China's appellant's submission, para. 233; and
296 Japan's appellee's submission, para. 107 (referring to Appellate Body Report, US – Gasoline, p. 19,
DSR 1996:I, p. 18).
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2.210. Furthermore, Japan maintains that China's interpretation would undermine the function of
the "in conjunction with" requirement as a proxy for ensuring the legitimacy of ostensibly
conservation-related trade restrictions, because, as soon as it can be shown that domestic
production or consumption is restricted in any way, there would be "even-handedness", even if
there is no corresponding regulatory measure applicable to domestic production or consumption.
Japan adds that China's interpretation of the "made effective in conjunction with" requirement
would be contrary to statements from the negotiating history of Article XX(g), because it would
render the requirement meaningless. According to Japan, statements from the negotiating history
of Article XX(g) suggest that this requirement was meant to be an effective safeguard against
abuse and a structural proxy for the legitimacy of conservation-related trade restrictions.
2.211. In response to China's argument that th e Panel erred by focusing on the structure and
design of the domestic restrictions, to the exclusion of its operation, Japan submits that China is
suggesting a test of "adverse trade effects" despite the fact that such a test has proven notoriously
hard to apply and has been rejected in the context of several obligations under the GATT 1994. In
this regard, Japan refers to the Appellate Body reports in US – Gasoline and Korea – Alcoholic
Beverages.
297 Japan highlights that the Appellate Body has adopted "effects" tests only where the
text of a provision expressly requires such a te st, such as Article VI of the GATT 1994 (material
injury and threat thereof).
2.6.2.2.2 The Panel's application of th e "made effective in conjunction with"
requirement
2.212. Japan maintains that, in applying the second clause of Article XX(g), the Panel properly
focused on the structural correspondence of China's regulatory measures (or the lack thereof).
Japan explains that this approach tracks the methodology applied by the Appellate Body in US –
Gasoline and US – Shrimp. In those disputes, the Appellate Body focused on whether the
United States maintained regulatory measures applicable to US producers that corresponded to its
regulatory requirements for foreign gasoline emi ssions and shrimp turtle-excluder devices (TEDs)
respectively, as opposed to evaluating whether the application of the measures led to disparate
burdens, which was taken up under the chapeau of Article XX.298 The Panel correctly found that, in
the present disputes, foreign users are subject to rapidly shrinking export quotas, while, in the
absence of corresponding limitations on Chinese consumption, Chinese industrial users enjoy
virtually unlimited access to an expanding supply of rare earths, tungsten, and molybdenum. For
Japan, the main function of export quotas with in the overall regulatory scheme is to provide a
guaranteed minimum supply to Chinese industrial users. The Panel's analysis correctly showed
that the regulatory scheme is deliberately designed to support China's industrial ambitions in the
global production of value-added rare earth materials and technologies.
2.213. Japan highlights that, in those cases, the Appellate Body did not attempt to weigh
quantitative "trade effects" or evaluate compar ative burdens, but focused on whether there was a
"systemic balance" in the key elements of the chal lenged regulatory structure. An examination of
effects would be particularly problematic in the facts of the present case, because China's export
quotas have been in effect for years and have seriously distorted the marketplace. Furthermore,
Japan contends that an "effects" test would be unworkable, because it would require panels and
the Appellate Body to sort out the combined im pact of a number of factors, including export
quotas on rare earths, export duties on rare earths, extraction and production quotas on rare
earths, substantial tightening of export quota levels in recent years, China's pattern of
non-enforcement of its rare earths, tungsten, and molybdenum extraction and production quotas,
the far-reaching impacts of a deep global recessi on and sudden price hikes, and to identify an
appropriate causation standard that isolates and calculates the impacts of various factors.
Limitations of the underlying economic data and disagreements between economic experts as to
the proper interpretation of such data would add further complexities to the application of such a
test.

297 Japan's appellee's submission, paras. 121 and 122 (quoting Appellate Body Reports, US – Gasoline,
p. 21, DSR 1996:I, p. 20; and Korea – Alcoholic Beverages, para. 120).
298 Japan's appellee's submission, paras. 115 and 116 (referring to Appellate Body Report, US – Shrimp,
para. 144).
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2.6.2.2.3 Article 11 of the DSU
2.214. Japan alleges that China improperly seeks to have the Appellate Body reweigh conflicting
evidentiary issues decided by the Panel, contrary to Article 11 of the DSU. Japan requests the
Appellate Body to reject all of China's claims under Article 11 and highlights, in this regard, the
significant latitude accorded to panels under Article 11 and the heavy burden faced by China in
contesting the Panel's evidentiary findings.
2.215. First, with regard to China's claims relating to the Panel's assessment of evidence of how
export and production quotas work together, Ja pan submits that the Panel correctly took into
account the evidence provided by China. However, the Panel explained that China had failed to
establish that the export restrictions and domestic restrictions "work together".
299 In particular, in
response to China's allegation that the Panel failed to assess how the export and production
quotas work together, Japan asserts that the Pa nel correctly noted the evidence submitted by
China, but nonetheless found that China had failed to establish that there was coordination of the
export and domestic restrictions. Japan further argues that China failed to explain why the Panel's
conclusion about the different product scopes of export and production quotas is inconsistent with
Article 11 of the DSU. In response to China's argument that the Panel failed to explain why the
fact that unused export quota shares are permitted to be redirected into the domestic market
discounted the restrictive effect on domestic Chinese consumers of extraction and production
quotas, Japan argues that China's argument relates to legal rather than evidentiary issues and
therefore falls outside the scope of Article 11 of the DSU. Regarding the time-lag between the
imposition of China's export quotas and the imposition of extraction and production restrictions,
Japan asserts that this was not a central feature of the Panel's analysis. In any event, the Panel
correctly found that the temporal disconnect casts doubt on whether the measures were made
effective in conjunction with one another.
2.216. Second, with regard to China's allegation that the Panel engaged in "incoherent
reasoning", Japan contends that, while the Panel recognized that China has adopted a
conservation policy, none of the bona fide elements of that policy that the Panel identified relate to
China's export quotas or export duties. Moreover, Japan contends that China's further allegations
of "incoherent reasoning" are mere criticism of the Panel's handling and weighing of specific
evidence, and that China has offered little to support them.
2.217. Third, in response to China's allegation that the Panel applied a double standard in its
"even-handedness" test, Japan argues that this argu ment is a mere reiteration of China's position
that the analysis under Article XX(g) of the GATT 1994 should include an "effects" test. However,
Japan considers that the Panel was correct in focusing, instead, on the structure and design of
China's export restrictions rather than on the actual effects of China's measures.
2.7 Arguments of the third participants
2.7.1 Argentina
2.218. Argentina submits that, although this is no t the first time the Appellate Body is asked to
consider whether China can rely on Article XX of the GATT 1994 to justify a breach of the
commitments under its Accession Protocol, the question has still not been definitively elucidated.
Argentina argues that the circumstances in the present disputes are comparable to those in
China – Publications and Audiovisual Products , because, like the measure in the earlier dispute,
the export duties at issue in these disputes also have "a clearly discernable, objective link" to the
GATT 1994.
300 Argentina further submits that, pursuant to Article XII:1 of the
Marrakesh Agreement, a State seeking accession to the WTO understands that the accession
process simultaneously relates to the Marrakesh Agreement and the Multilateral Trade Agreements
annexed thereto, and that the rights and obligations contained in these agreements would be
available and applicable to it. Argentina further contends that the novel arguments put forward by
China in these disputes differ from those analysed by the Appellate Body in China – Raw Materials,
and that a thorough examination of China's ar guments could lead to reasoning and findings
different from those adopted in previous disputes . In Argentina's view, resolving the issue raised

299 Japan's appellee's submission, para. 143 (referring to Panel Reports, paras. 7.577-7.581).
300 Argentina's third participant's submission, para. 16 (quoting Appellate Body Report, China –
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by China regarding the applicability of Articl e XX of the GATT 1994 to justify a breach of
commitments in China's Accession Protocol is crucial to establishing a proper basis for China's
defence regarding alleged breaches of its Accession Protocol.
2.7.2 Australia
2.219. With respect to the United States' appeal in DS431, Australia underlines that the aim of
prompt settlement of disputes needs to be balanc ed against the right of the parties to present
their case fully, which includes the right to present rebuttal evidence. Australia cautions against
unduly restraining parties in respect of the rebuttal evidence that may be submitted in panel
proceedings. In accordance with due process, pa rties should have a full opportunity to present
rebuttal evidence in response to the arguments of the opposing party or parties, provided that the
other party is equally accorded procedural fairness.
2.220. With respect to China's claim that the Panel erred in its interpretation and application of
the term "relating to" in Article XX(g), although Australia agrees with the Panel that the analysis
under Article XX(g) does not require an evaluation of the actual effects of the concerned measure
(i.e. whether the challenged measure has in fact improved the level of conservation of exhaustible
natural resources), Australia is of the view that the Appellate Body could usefully consider whether
or not there is a distinction between the "operation" of a measure and the "actual effects" of the
measure. Australia further suggests that the Appellate Body consider whether a focus on the
"design and structure" of the written measure still allows, in some cases, for a consideration of
other information that may possibly be useful in assessing whether there is a "genuine" or "real"
relationship between the measure and the conservation objective.
2.221. Regarding the Panel's interpretation of the second clause of Article XX(g) ("made effective
in conjunction with"), Australia refers to the Panel's statement that it understood the
"even-handedness" test to be a synonym for that clause.
301 Australia agrees that this is what US –
Gasoline established. However, Australia notes that the term "even-handedness" seems to be used
in a variety of ways in the Panel Reports. Austra lia points, on the one hand, to a statement by the
Panel that the "even-handedness" criterion is sa tisfied where the regulating Member can show
that, in addition to its GATT-inconsistent measures, it has also imposed real conservation
restrictions on the domestic production or consumption of the resource subject to its
GATT-inconsistent measures
302 and, on the other hand, to a statement by the Panel that "[t]hese
domestic measures must distribute the burden of conservation between foreign and domestic
consumers in an even-handed or balanced manner". 303 Australia contends that, in the latter
statement, "even-handed" seems to describe the manner in which the burden of conservation
must be distributed between foreign and domestic consumers. Australia then refers to a third
statement by the Panel that the "even-handedness requirement is to be read together with the
requirement that the challenged border restriction be made effective in conjunction with domestic
restrictions".
304 Yet, if these concepts are synonymous, it is not clear to Australia why it is
necessary for them to be read together, as they would naturally mean the same thing. Thus, the
last statement seems to suggest two different requirements. Australia suggests that the
Appellate Body may find it useful to clarify the role to be played by the concept of "even-
handedness" in the assessment of whether a measure meets the requirements of Article XX(g) of
the GATT 1994.
2.7.3 Brazil
2.222. Brazil contends that the general exceptions under Article XX of the GATT 1994 are
fundamental provisions of the multilateral trading system that strike a balance between
WTO Members' policy space to pursue legitimate objectives and their WTO obligations. In Brazil's
view, therefore, restrictions on a Member's righ t to promote its legitimate objectives, such as
sustainable development, cannot be presumed bu t must be deemed to exist in the light of
"compelling textual, contextual and systemic evidence".
305 Brazil submits that, in the absence of

301 Australia's third participant's submission, para. 21 (referring to Panel Reports, para. 7.331).
302 Australia's third participant's submission, para. 23 (referring to Panel Reports, para. 7.337).
303 Australia's third participant's submission, para. 24 (quoting Panel Reports, para. 7.337). (emphasis
added by Australia)
304 Australia's third participant's submission, para. 25 (quoting Panel Reports, para. 7.333).
305 Brazil's third participant's submission, para. 4.
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explicit textual references excluding the applicability of provisions of the covered agreements, an
acceding Member should be presumed to be subjec t to the same rights and obligations applicable
to other WTO Members. With regard to export du ties, Brazil argues that the MFN obligation in
Article I:1 of the GATT 1994 would apply in addition to the obligation in Paragraph 11.3 of China's
Accession Protocol, even without any express refere nce in this regard. Similarly, the exceptions
provided for under the GATT 1994 should enable an acceding Member to rely on legitimate
objectives in connection with GATT-plus accession commitments. For Brazil, "[o]ne cannot cherry
pick the applicable principles."
306
2.223. With respect to China's claim that the Panel erred in its interpretation and application of
the term "relating to" in Article XX(g), Brazil puts forward its views concerning: (i) the Panel's
definition of "conservation"; (ii) the Panel's application of the "relating to" test in the context of the
"perverse signals" broadcast by China's export quotas; and (iii) China's arguments about the
relevance of "contribution" in assessing whether a measure relates to conservation for the
purposes of Article XX(g).
2.224. Brazil disagrees with the Panel's statement that measures whose objective is to "promote
economic development are not 'measures relating to conservation' but measures relating to
industrial policy".
307 Conservation cannot be read as being in opposition to or conflicting with
economic development. Accordingly, Brazil believ es that the Panel did not properly take into
account the concept of sustainable development in interpreting the relationship between
environmental concerns and economic developm ent, and that the Panel's reading of the
"relating to" test is overly restrictive vis-à-vis the objective of sustainable development enshrined
in the preamble of the Marrakesh Agreement. For Brazil, the appropriate test under Article XX(g)
should reflect an adequate relationship of me ans and ends between measures understood in the
broader context of sustainable development and the consequent conservation of natural resources.
2.225. As regards the Panel's assessment of "perverse signals", Brazil considers that a measure
can only be provisionally justified under Article XX(g) if it meets three requirements. First, the
measure must be concerned with "exhaustible na tural resources". Second, the measure must be
"related to" the conservation of the relevant exhaustible natural resources, implying that the
measure is "primarily aimed at conservation" and that there is a "genuine relationship of ends and
means" between the measure and its objectives. Third, the measure must be "made effective in
conjunction with restrictions on domestic production or consumption".
308 Brazil is of the view that
the Panel conflated the second and third requiremen ts of Article XX(g) and took an overly narrow
approach to the "relating to" test with regard s to export quotas. The relationship between a
measure and the conservation of an exhaustible natural resource cannot be assessed by dividing
the domestic and foreign markets, as that would render the third element of the test redundant.
According to Brazil, the Panel seemed to affirm that the export quotas are ineffective because
there are no restrictions on the domestic mark et, as they ultimately signal more internal
consumption. This does not make, in and of itself, the measure unrelated to the conservation
objective for the purposes of "a close and genuine relationship of ends and means". 309 In Brazil's
view, the comparison between domestic and the foreign markets should not be a component of the
analysis in the "related to" test, as the effectiveness of the measures is to be addressed under the
third requirement of Article XX(g), and any discrimination is to be assessed under the chapeau.
2.226. With regard to China's argument that a "contribution" analysis is relevant to an
examination of whether a measure relates to conservation for the purposes of Article XX(g), Brazil
notes that the "necessity" test of Article XX(a), (b), and (d) of the GATT 1994 is significantly
different from the "relating to" test of Article XX (g). In the absence of the "alternative measure"
analysis that accompanies the "contribution" analysis in the "necessity" test, the role of the
"contribution" analysis, while possibly relevant for Article XX(g), is diminished and does not carry
the same weight that it does under the "necessity" test.

306 Brazil's third participant's submission, para. 7.
307 Brazil's third participant's submission, para. 13 (referring to Panel Reports, para. 7.460).
308 Brazil's third participant's submission, para. 11 (referring to Appellate Body Report, US – Shrimp,
paras. 127, 136, and 143).
309 Brazil's third participant's submission, para. 21 (referring to Appellate Body Reports, China – Raw
Materials, para. 355).
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2.227. Brazil submits that the concept of "even-handedness" in Article XX(g) must be read in a
way that allows a country to exploit its resources pursuant to its own environmental and
development policies and in accordance with its level of economic development. At the same time,
Brazil emphasizes that domestic restrictions considered under Article XX(g) must be actual
restrictions, and that they must be effective. Moreover, Brazil argues that the criterion of
"even-handedness" should not overlap with the requirements in the chapeau. Rather,
"even-handedness" under subparagraph (g) should b e u n d e r s t o o d a s b e i n g m o r e f l e x i b l e t h a n
under the chapeau. The "even-handedness" analysis under Article XX(g) should therefore not be
overly concerned with an equivalence of rest rictions between the domestic and the foreign
consumption or production, but mainly with fairness and impartiality, particularly if the
environmental conditions in the Member implementing the measures are different from those in
other Members.
2.7.4 Canada
2.228. Canada maintains that China's arguments concerning the relationship between China's
Accession Protocol and the GATT 1994 in these di sputes are not "novel", but are merely an
attempt to recast its arguments in previous disputes in which the same issue was addressed. In
China – Publications and Audiovisual Products , the Appellate Body found that China had the right
to invoke Article XX of the GATT 1994 to defend a breach of Paragraph 5.1 of China's Accession
Protocol due to the scope of the specific obligations assumed under Paragraph 5.1, and not
because of the general availability of Article XX to justify violations of obligations in China's
Accession Protocol. In China – Raw Materials , the Appellate Body concluded that access to
Article XX of the GATT 1994 can be granted for vi olations of a non-GATT obligation insofar as
language to that effect is present in the paragraph of China's Accession Protocol creating the
obligation. The Appellate Body found that Paragraph 11.3 does not contain such language, and
that mere reference to a GATT provision (such as Article VIII in Paragraph 11.3) does not in and of
itself suffice to render Article XX of the GATT 19 94 applicable. Canada argues that China has not
provided "cogent reasons" for departing from the Appellate Body's findings in China – Raw
Materials, and its appeal should be rejected. Canada highlights the finding of the panel in US –
Countervailing and Anti-Dumping Measures (China) that cogent reasons for departing from an
Appellate Body finding could exist if the Appellate Body finding "proved to be unworkable in a
particular set of circumstances".
310 Canada argues that there are no differences in the
circumstances of these disputes that would make the Appellate Body's findings in China – Raw
Materials unworkable.
2.229. Moreover, Canada submits that, even if one accepts China's interpretation of the term "the
WTO Agreement" in Paragraph 1.2 of China's Accession Protocol as referring to the Marrakesh
Agreement together with its Annexes, "too many interpretative leaps are necessary for China's
conclusion as to the effect of that interpretation to be correct". 311 First, on its own, the answer to
the question of whether an accession protocol is an "integral part" of the Marrakesh Agreement
alone, or of that Agreement together with its annexed Multilateral Trade Agreements, "tells us little
about the relationship between the va rious parts of these instruments".
312 Moreover, China's
interpretation suggests that provisions of different parts of a Member's WTO obligations should
modify each other simply on the grounds that the relationship between them is "intrinsic". Such an
interpretation, Canada contends, would introduce considerable instability and unpredictability and
undermine the security on which the trading system depends.
2.230. With respect to China's claim that the Panel erred in its interpretation and application of
the term "relating to" in Article XX(g), Canada addresses three issues: (i) the legal standard for
"relating to" and whether it is equivalent to "contribution"; (ii) the Panel's examination of the
"predictable effects" of China's export quotas; and (iii) the relevance of evidence of effects in the
"relating to" analysis.
2.231. Canada recalls that the Panel noted that the Appellate Body's Article XX(g) jurisprudence
does not require that the measure be "primarily aimed at" conservation to "relate to"

310 Canada's third participant's submission, para. 12 (quoting Panel Report, US – Countervailing and
311 Canada's opening statement at the oral hearing.
312 Canada's opening statement at the oral hearing.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

conservation.313 Nonetheless, while the measure may not be required to be primarily aimed at
conservation, the statements by the Appellate Body should not be construed as lowering the
standard to a marginal level of contribution, particularly given the Appellate Body's clarification
that a measure "merely incidentally" aimed at conservation would not meet this threshold.
314
Canada posits that, to be provisionally justified under Article XX(g), a measure must have a close
and genuine relationship of ends and means with the goal of conservation.
2.232. Canada further refers to China's argument that, when considering the design and structure
of the measure, the "predictable effects" of that measure can provide evidence of whether it is
genuinely "related to" conservation, and contends that this is precisely what the Panel did: it found
that the predictable effects of China's export qu otas are the sending of "perverse signals" to
domestic consumers, and that this is a part of the measures' design and structure. In US –
Gasoline, the Appellate Body recognized that it may be appropriate to take the wider regulatory
context of a measure into account, but it did not suggest that evidence of a wider programme of
conservation is sufficient to find that the measure itself relates to conservation.
315 For Canada, a
measure may be enacted as part of a bona fide comprehensive policy aimed at conservation and
yet, in isolation, not relate to conservation within the meaning of Article XX(g). This is because it is
the design and structure of the measure itself that must demonstrate its relationship to
conservation.
2.233. With respect to the relevance of effects, Canada suggests that the evidence of effects
should be considered, and that they may be usef ul to the extent that they shed light on, and
confirm, the design and structure of a measure. Canada notes that there is no Appellate Body
jurisprudence on whether consideration of empi rical evidence is precluded when determining
whether a measure relates to conservation, and emphasizes that this was not the position taken
by the Panel. However, evidence of effects cannot, on its own, be determinative of whether a
measure "relates to" conservation. The measure must be more than indirectly or incidentally
aimed at conservation. It is Canada's position that considering evidence of effects to be
determinative of this issue runs the risk of capturing measures that may not have a substantial,
"close and genuine relationship" with conservation, and that giving equal weight to effects would
substitute correlation for causation.
2.234. Canada reads the Appellate Body reports in US – Gasoline and China – Raw Materials as
suggesting that, under Article XX(g), evidence of the effects of foreign and domestic restrictions
can be taken into account in order to determine if a domestic restriction is operative.
316 However,
such evidence cannot be determinative. For Cana da, this approach to Article XX(g) would not
duplicate the analysis under the chapeau, becaus e the objective of each analysis is different.
Under subparagraph (g), the objective is to determine whether the measure is genuinely about
conservation. In contrast, the objective of the analysis under the chapeau is to determine whether,
even if the measure is genuinely about conservation, it is applied in a manner that, inter alia ,
favours domestic interests over foreign ones in an arbitrary or unjustifiable manner.
2.235. Further, Canada maintains that the term "in conjunction with" requires the domestic
restrictions to be in force at relatively the same time as the foreign restrictions. While it seems
unreasonable to impose a requirement of strict simultaneity on governments enacting domestic
and foreign restrictions, a reasonably close timing can be highly informative of whether the
requirement is fulfilled. With regard to "even-handedness", Canada agrees with the complainants
that China's interpretation ignores the actual text of Article XX(g). At the same time, the
distribution of the burden between foreign and dome stic interests should not need to be balanced
in the same sense as under the chapeau, because otherwise the chapeau would be rendered
inutile. The correct threshold should lie somewher e between merely proving that some burden on
domestic interests exists and a "chapeau-style balancing".
317

313 Canada's third participant's submission, para. 17 (referring to Panel Reports, para. 7.285; and
Appellate Body Report, US – Gasoline, p. 19, DSR 1996:I, p. 18).
314 Canada's third participant's submission, para. 17 (referring to Appellate Body Report, US – Gasoline,
p. 19, DSR 1996:I, p. 18).
315 Canada's third participant's submission, para. 22 (referring to Appellate Body Report, US – Gasoline,
p. 19, DSR 1996:I, p. 18).
316 Canada's third participant's submission, para. 27 (referring to Appellate Body Reports, US –
Gasoline, p. 20, DSR 1996:I, p. 19; and China – Raw Materials, paras. 356 and 360).
317 Canada's third participant's submission, para. 35.
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2.7.5 Colombia
2.236. Colombia agrees with the Panel that the wording of Paragraph 1.2 of China's Accession
Protocol makes an explicit reference to "the WTO Agreement" and not to specific Multilateral Trade
Agreements. However, Colombia argues, this does not mean that China's Accession Protocol is
"a stand-alone text" that holds no relation to the Multilateral Trade Agreements.
318 Rather, an
accession protocol contains commitments that are to be undertaken together with obligations
covered in the Multilateral Trade Agreements. Colombia argues that Paragraph 11.3 of China's
Accession Protocol "expands … China's obligations regarding export duties encompassed in
[A]rticle XI:1 of [the] GATT 1994", and is therefore a "WTO-plus" obligation.
319 In Colombia's view,
determining whether a "WTO-plus" provision becomes an integral part of one of the Multilateral
Trade Agreements requires a "holistic and systemic interpretation" of the relevant provisions
320
and a cumulative reading of the relevant provisions. 321 Paragraph 11.3 of China's Accession
Protocol "modifies" and "broadens" China's obligations under Article XI:1 of the GATT 1994 and,
given that it regulates trade in goods, it is either an integral part of the GATT 1994 or an
independent obligation under Annex 1A to the Marrakesh Agreement.
322 To understand fully
China's obligations, both provisions must be read in conjunction and applied cumulatively.
Colombia considers that China must abide by its commitments under both provisions, and that the
exceptions under Article XX of the GATT 1994 are applicable to measures regarding China's
commitments under both Article XI:1 of the GATT 1994 and Paragraph 11.3 of China's Accession
Protocol.
2.7.6 European Union
2.237. With respect to the United States' appeal in DS431, the European Union states that it
"does not disagree with the various statements of principle made by the Panel and the Parties".
323
At the same time, the European Union registers its objection to the rejection of the relevant Panel
exhibits, recalling that it raised the same objection before the Panel. In the view of the
European Union, these exhibits could and should have been accepted into the record by the Panel.
Further, the European Union expresses its expectation that the exhibits in question have in any
event been transmitted to the Appellate Body, an d its belief that no party should be precluded
from referring to them, should it so wish.
2.7.7 Korea
2.238. Korea submits that the WTO agreements do not prohibit a Member from pursuing its
legitimate policy goals, including sustainable ec onomic development. These agreements strike a
careful balance in which exceptions under Article XX protect sovereign countries' legitimate policy
goals, provided that they comply with specified rights and obligations. Faced with new challenges
presented by technological development and global ization, the WTO should provide Members with
"correct treaty interpretation and application" of the "20-year-old provisions of the WTO
agreements".
324 In Korea's view, the interpretation pursuant to Article 31 of the Vienna Convention
"seems to leave the meaning of Paragraph 11.3 of China's Accession Protocol still ambiguous or
obscure".325 Therefore, Korea argues, in answering the question of whether Article XX could be
invoked as a defence to breaches of Paragraph 11.3, recourse to preparatory work of the accession
negotiations, pursuant to Article 32 of the Vienna Convention, may assist in finding the "correct
intention between the negotiating parties".326

318 Colombia's third participant's submission, para. 14.
319 Colombia's third participant's submission, para. 10.
320 Colombia's third participant's submission, para. 11 (referring to Appellate Body Reports, Japan –
Alcoholic Beverages II, p. 12, DSR 1996:I, p. 106; and US – Gasoline, p. 23, DSR 1996:I, p. 21; and quoting
Panel Report, US – Section 301 Trade Act, para. 7.22).
321 Colombia's third participant's submission, para. 12 (referring to Appellate Body Report, Argentina –
Footwear (EC), paras. 87-90).
322 Colombia's third participant's submission, para. 13.
323 European Union's third participant's submission in DS431 (contained in its appellee's submission in
DS432 and DS433), para. 369.
324 Korea's opening statement at the oral hearing.
325 Korea's opening statement at the oral hearing.
326 Korea's opening statement at the oral hearing.
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2.7.8 Norway
2.239. Norway agrees with the Panel that China's arguments did not constitute "cogent reasons"
for departing from the Appellate Body's finding in China – Raw Materials that Article XX of the
GATT 1994 is not available to justify a breach of Paragraph 11.3 of China's Accession Protocol.
Norway shares the Panel's view that nothing in Article XII:1 of the Marrakesh Agreement or
Paragraph 1.2 of China's Accession Protocol supports China's position that, faced with a specific
accession commitment, a treaty interpreter must determine to which of the Multilateral Trade
Agreement it intrinsically relates, and then treat such commitment as an integral part of the
related Multilateral Trade Agreement. In No rway's view, the Panel undertook a thorough
interpretation of both provisions, consistently wi th the DSU. Norway concurs with the Panel that
individual provisions of an accession protocol could only be made an integral part of one or more
of the Multilateral Trade Agreements if and where specific language to that effect is contained in
the relevant individual provisions, and not by virtue of interpretation of Paragraph 1.2.
2.7.9 Russia
2.240. Russia submits that the Panel's finding that an explicit textual link between the GATT 1994
and Paragraph 11.3 of China's Accession Protocol is required for Article XX of the GATT to be
available to justify a breach of the Protocol is of serious concern. Russia claims that, during its
accession negotiations, upon assurance by the incumbent WTO Members that defences under the
WTO agreements are equally available to all WTO Members, Russia agreed to delete the following
statement from its Accession Protocol: "nothing in these commitments shall be understood to
derogate from the rights of the Russian Federa tion under the WTO Agreement as applied between
the Members of the WTO by the date of accessi on of the Russian Federation to the WTO."
327 In
Russia's view, the Panel's above finding means that the statement Russia agreed to delete should
have been included in the accession protocols of all newly acceded WTO Members. Russia further
maintains that the Panel's finding would apply to all other defences, including the security
exceptions in Article XXI of the GATT 1994. For Russia, an acceding Member's intention to waive
its right to protect important values such as life and health must be clearly and unambiguously
explained. In this regard, Russia stresses its agreement with the views of the dissenting member
of the Panel.
328
2.7.10 Saudi Arabia
2.241. Saudi Arabia contends that the issue of the relationship between accession commitments
and the covered agreements raised in China's appe al consists of two separate but related matters.
The first matter is whether accession commitments must be read in the light of the relevant
covered agreements to which they refer either ex pressly or by necessary implication. The second
matter is whether failure to comply with an accession commitment that relates to a particular
covered agreement necessarily gives the newly acceded Member the right to invoke the exceptions
of the covered agreement that were not directly or indirectly incorporated in the accession
documents. With regard to the first matter, Sa udi Arabia submits that a Member's accession
commitments contained in its accession protocol and accession working party report "complement
and supplement" its obligations under the covered agreements.
329 Where the accession
commitments have such a close and obvious relationship with provisions in one or more of the
covered agreements, the relevant provisions of the agreements must be read in the light of and in
combination with the accession commitment. This implies that compliance with the accession
commitment also means compliance with the relevant provision of the covered agreements that
the commitment sought to specify and clarify. However, this interpretation does not necessarily
lead to a particular resolution of the second matter. In Saudi Arabia's view, the fact that a
Member's accession commitments must be read together with the covered agreements does not
necessarily mean that all of the defenses provided in the relevant covered agreements are
automatically available to justify also the violation of the accession commitment. Rather, according

327 Russia's opening statement at the oral hearing (quoting document WT/ACCSPEC/RUS/25/Rev.3,
p. 243).
328 Russia's opening statement at the oral hearing. Russia refers, in particular, to paragraphs 7.124,
7.135, and 7.137 of the Panel Reports. The dissenting member of the Panel stated, inter alia, that "the
defences provided in the GATT 1994 are automatically available to justify any GATT-related obligations,
including border tariff-related obligations – unless a contrary intention is expressed by the acceding Member
and WTO Members." (Panel Reports, para. 7.137 (fn omitted))
329 Saudi Arabia's third participant's submission, para. 13.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

to Saudi Arabia, absent direct or indirect refere nces to the availability of such exceptions, the
Member has agreed to abide by its accession commitment, without exception. Saudi Arabia further
argues that, where a dispute arises as to the consistency of a measure with a Member's accession
commitments, the interpretation must not "add to or subtract" from the "carefully negotiated
balance" of rights and obligations contained in "the comprehensive accession package of
commitments and benefits, rights and obligations".
330
2.242. With respect to China's claim that the Panel erred in its interpretation and application of
the words "relating to" in Article XX(g) of the GATT 1994, Saudi Arabia considers that the Panel
correctly developed the legal standard of when a measure "relates to" conservation. There needs
to exist a close and genuine relationship of means and ends between the measure and the
conservation policy, and this relationship is determined by analysing the general structure and
design of the measure at issue and the manner in which it is related to the conservation objective.
Saudi Arabia adds that, although China's appeal does not specifically raise any claims about the
Panel's analysis of the chapeau of Article XX, it is important to note that the examination under the
chapeau concerns merely the way in which the conservation measure is applied, not its genuine
relationship with the conservation objective. Furthermore, Saudi Arabia suggests that an important
aspect of any dispute concerning conservation and use of natural resources, such as the claims in
these disputes under Article XX(g), is the cont ext provided by the principle of permanent
sovereignty over natural resources. For Saudi Arabia, this principle, which allows Members
endowed with natural resources to utilize those resources to promote economic and social
development, is in line with the objectives of the WTO as recorded in the first recital of the
preamble of the Marrakesh Agreement.
2.243. Saudi Arabia notes, with regard to the second clause of subparagraph (g) of Article XX,
that the Appellate Body has in previous cases applied a test of general "even-handedness" without
inquiring into the effectiveness of domestic measures. The Appellate Body has not discussed
whether regulations on foreign and domestic goods must be identical or even similar. Instead, the
Appellate Body has stated that the restrictions must be applied or imposed jointly on foreign and
domestic goods, and that this requirement is met when the trade measure and the domestic
restriction "work together".
331 In Saudi Arabia's view, the Panel in the present case developed a
very similar legal analysis, and Saudi Arabia thus considers that the Panel's approach is in line with
prior Appellate Body jurisprudence.
2.7.11 Turkey
2.244. With respect to China's claim that the Panel erred in its interpretation and application of
the term "relating to" in Article XX(g), Turkey opines that the Panel's approach, to give special
attention to examining the relationship between the general structure and design of the measures
at issue and the policy goals sought by China in regard to determining the "related to" criteria, is
correct. However, Turkey emphasizes that any relevant information submitted by the parties
should be considered in assessing whether there is a "genuine" or "real" relationship between the
measure and the conservation objective.
332

330 Saudi Arabia's third participant's submission, para. 16.
331 Saudi Arabia's third participant's submission, para. 25 (referring to Appellate Body Reports, US –
Gasoline, p. 20, DSR 1996:I, p. 19; and China – Raw Materials, paras. 356-358).
332 Turkey's opening statement at the oral hearing.
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3 ISSUES RAISED IN THESE APPEALS
3.1. The following issues are raised in these appeals:
a. with respect to dispute DS431 only, whether the Panel erred, and acted inconsistently
with its duties under Articles 11 and 12.4 of the DSU, in deciding to reject Exhibits
JE-187 through JE-196 submitted by the United States on 17 July 2013 together with its
comments on China's responses to the second set of questions from the Panel;
b. with respect to the Panel's findings regarding the relationship between specific provisions
of China's Accession Protocol, on the one hand, and the Marrakesh Agreement333 and the
Multilateral Trade Agreements annexed thereto, on the other hand:
i. whether the Panel erred in its interpretation of Article XII:1 of the
Marrakesh Agreement in finding that this provision does not support China's position
that each provision of its Accession Protocol must be considered an integral part of
the specific covered agreement to which it intrinsically relates; and
ii. whether the Panel erred in its interpretation of the second sentence of Paragraph 1.2
of China's Accession Protocol in finding that the legal effect of the second sentence of
Paragraph 1.2 is to make China's Accession Protocol, in its entirety, an "integral part"
of the Marrakesh Agreement, and not that, in addition, the individual provisions of
China's Accession Protocol are also integral parts of the Multilateral Trade
Agreements annexed to the Marrakesh Agreement; and
c. with respect to the Panel's findings that China had not demonstrated that China's export
quotas for rare earths, tungsten, and molybdenum are justified under Article XX(g) of
the General Agreement on Tariffs and Trade 1994 (GATT 1994):
i. whether the Panel erred, in its reasoning regarding the signals sent by China's export
quotas on rare earths and tungsten to foreign and domestic consumers, in finding
that those export quotas are not measures "relating to" conservation, and, more
specifically:
 whether the Panel erred in interpreting the term "relating to" in Article XX(g)
of the GATT 1994 as requiring the Panel to limit its analysis to an
examination of the design and structure of the measures at issue, to the
exclusion of evidence regarding the effects of relevant measures in the
marketplace;
 whether the Panel erred in applying Article XX(g) to the facts of this case, in
particular by limiting its analysis to an examination of the design and
structure of China's export quotas for rare earths and tungsten, to the
exclusion of evidence regarding the effects of such export quotas and other
elements of China's conservation scheme in the marketplace; and
 whether the Panel failed to make an objective assessment of the matter as
required under Article 11 of the DSU; and

333 Before the Panel, China drew a distinction between the Marrakesh Agreement Establishing the World
Trade Organization excluding the Multilateral Trade Agreements annexed to it, on the one hand, and that
Agreement together with its annexes, on the other hand. China used "the Marrakesh Agreement" to refer to
the former, and "the WTO Agreement" to refer to the latter. On appeal, China draws the same distinction. In
its findings regarding the availability of Article XX of the GATT 1994 to justify a breach of Paragraph 11.3 of
China's Accession Protocol, the Panel also used "the Marrakesh Agreement" to refer to the Marrakesh
Agreement Establishing the World Trade Organization excluding its annexes. For purposes of consistency, we,
like the Panel, use "the Marrakesh Agreement" to refer to the Marrakesh Agreement Establishing the World
Trade Organization excluding its annexes, even in instances where the complainants and third participants
themselves have not, in their submissions, used the nomenclature "the Marrakesh Agreement". We underline
that our use of such nomenclature is for purposes of these appeals only, and without prejudice to the legal
issues raised by China on appeal.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

ii. whether the Panel erred in finding that China's export quotas for rare earths,
tungsten, and molybdenum are not "made effective in conjunction with" domestic
restrictions, and, more specifically:
 whether the Panel erred in interpreting Article XX(g) of the GATT 1994 as
imposing a separate requirement of "even-handedness" that must be fulfilled
in addition to the conditions expressl y specified in subparagraph (g); and in
interpreting Article XX(g) as requiring Members seeking to invoke
Article XX(g) to prove that the burden of conservation is evenly distributed,
for example, between foreign consumers, on the one hand, and domestic
producers or consumers, on the other hand; and as requiring the Panel to
limit its analysis to an examination of the design and structure of the
measures at issue, to the exclusion of evidence regarding the effects of
relevant measures in the marketplace;
 whether the Panel erred in its application of Article XX(g) by requiring that
the burden of conservation be evenly distributed between foreign consumers,
on the one hand, and domestic producers or consumers, on the other hand;
and by limiting its analysis to an examination of the design and structure of
China's export quotas, to the exclusion of evidence regarding the effects of
such export quotas and other elements of China's conservation scheme in
the marketplace; and
 whether the Panel failed to make an objective assessment of the matter as
required under Article 11 of the DSU.
4 BACKGROUND AND OVERVIEW OF THE MEASURES AT ISSUE
4.1. Before commencing our analysis of the issues of law and legal interpretations raised in these
appeals, we provide a brief overview of the meas ures at issue and the products covered by these
measures. For additional details in this regard, recourse should be had to the Panel Reports.
334
4.2. As mentioned in paragraph 1.2 above, before the Panel, the complainants challenged three
types of measures applied to three groups of products. More specifically, the complainants
challenged China's use of export duties335 and export quotas336 on a range of rare earth, tungsten,
and molybdenum products, as well as certain aspects of China's administration and allocation of its
export quota regimes on rare earths and molybdenum.
4.3. The complainants identified multiple legal instruments in connection with each of their claims,
including China's framework legislation, implementing regulations, other applicable laws, and
specific annual measures. The European Union and Japan also made claims in respect of
replacement measures and renewal measures, while the United States made claims in respect of
"implementing measures in force to date".
337
4.4. The Panel determined that, for each ty pe of measure, it would "make findings and
recommendations with respect to the series of measures comprising the relevant framework
legislation, the implementing regulation(s), other applicable laws and the specific annual
measures … existing at the date of the Panel's establishment".
338 The Panel found that, through

334 Panel Reports, paras. 2.2-2.16, 7.41-7.47, 7.204-7.235, and 7.985-7.990.
335 The complainants challenged China's imposition of export duties on 58 rare earth products,
15 tungsten products, and nine molybdenum products that are not identified in Annex 6 to the Protocol on the
Accession of the People's Republic of China to the WTO, WT/L/432 (China's Accession Protocol). (See
Panel Reports, paras. 7.30 and 7.46)
336 The complainants challenged China's imposition of export quotas on 75 rare earth products,
14 tungsten products, and nine molybdenum products. (See Panel Reports, para. 2.16 (referring to Panel
Exhibits CHN-8 and JE-48))
337 Panel Reports, paras. 2.10, 2.12, and 2.15, and fn 19 to para. 2.9, fn 20 to para. 2.11, and fn 22 to
para. 2.14.
338 Panel Reports, paras. 7.41 and 7.235. In adopting this approach, the Panel explained that it was
taking the same approach as in the China – Raw Materials disputes and referred, in this regard, to
paragraph 7.33 of the panel reports, and paragraph 266 of the Appellate Body reports in those disputes.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

this "series of measures" 339, China subjected various forms of rare earths, tungsten, and
molybdenum to export duties340 and export quotas341 in 2012.342
4.5. As explained in the subsequent sections of these Reports, the appeals raised by the
United States and China are limited in scope, and do not call for extensive consideration of the
challenged measures on appeal. Since, however, the issues appealed by China under Article XX(g)
of the GATT 1994 require some discussion of th e quotas that China applies to rare earths,
tungsten, and molybdenum, we consider it useful to outline briefly certain aspects of those quotas
and of China's export quota regime as applied to these three product groups, in particular in 2012.
4.6. The Foreign Trade Law 343 allows for the imposition of restrictions or prohibitions, including
through export quotas, on the expo rtation of goods in the pursuit of certain specific objectives,
such as protecting human life or health, or conserving exhaustible natural resources. The
Regulations on the Administration of the Import and Export of Goods 344 prescribe rules governing
the administration of the export and import of goods, while the Export Quota Administration
Measures
345 specify further aspects of the administration of export quotas. The Export Quota
Administration Measures applies in respect of tungsten and molybdenum, but not in respect of
exports of rare earths.346
4.7. The Ministry of Commerce of the People's Republic of China (MOFCOM) has authority to
administer all Chinese export quotas 347 and, in collaboration with China's customs authorities, is
responsible for "formulating, adjusting, and publishing" 348 catalogues of those goods subject to

339 Panel Reports, paras. 7.41 and 7.235.
340 In their requests for the establishment of a panel, the complainants identified four instruments
through which China subjects various forms of rare earths, tungsten, and molybdenum to export duties. The
Panel expressly referred to these four instruments as the "series of measures" that were the subject of its
findings. These instruments are: Customs Law of the People's Republic of China (Panel Exhibit JE-54);
Regulations on Import and Export Duties (Panel Exhibit JE-46); 2012 Tariff Implementation Program (Customs
Tariff Commission) (Panel Exhibit JE-45); and 2012 Tariff Implementation Plan (General Administration of
Customs) (Panel Exhibit JE-47).
341 In their requests for the establishment of a panel, the complainants identified 18 instruments
through which China subjected the various forms of rare earths, tungsten, and molybdenum to quantitative
restrictions in the form of export quotas. The Panel expressly referred to 15 of those measures in the course of
its analysis. These measures are contained in Panel Exhibits JE-51; JE-53; CHN-8 and JE-48; CHN-11 and
JE-49; CHN-38 and JE-61; CHN-54 and JE-50; CHN-55 and JE-66; CHN-56 and JE-55; CHN-57 and JE-56;
CHN-96 and JE-52; CHN-97 and JE-58; CHN-98 and JE-65; CHN-99 and JE-59; CHN-100 and JE-62; and
CHN-107 and JE-63 (see Table of Exhibits on page 8 of these Reports). The Panel also included the following
two instruments, not expressly identified in the complainants' panel requests, in its description of the "series of
measures" comprising China's export quota regime: 2012 Second Batch Rare Earth Export Quotas (Panel
Exhibits CHN-58 and JE-57); and 2012 Second Batch Export Quotas of Tungsten, Antimony and Other
Non-Ferrous Metals (Panel Exhibits CHN-165 and JE-60). In response to questioning at the oral hearing, all the
participants agreed that these two instruments are included in the "series of measures" that were the subject
of the Panel's findings.
342 With respect to China's administration and allocation of its export quota regime, the complainants, in
their requests for the establishment of a panel, identified 17 instruments through which China imposes
restrictions on the trading rights of enterprises seeking to export various forms of rare earths and
molybdenum. However, in the course of its analysis, the Panel emphasized that, according to the
complainants, only five of those 17 measures contain eligibility criteria with which export quota applicants must
comply so as to be eligible to apply for part of the rare earth, tungsten, and molybdenum quota allocation.
(Panel Reports, para. 7.985) The Panel therefore expressly referred to the following five measures in the
course of its analysis: Export Quota Administration Measures (Panel Exhibits CHN-96 and JE-52); 2012
Application Qualifications and Procedures for Rare Earth Export Quotas (Panel Exhibits CHN-38 and JE-61);
2012 Application Qualifications and Application Procedures for Molybdenum Export Quota
(Panel Exhibits CHN-107 and JE-63); 2012 First Batch Rare Earth Export Quotas (Supplement)
(Panel Exhibits CHN-57 and JE-56); and 2012 First Batch Export Quotas of Tungsten, Antimony and Other
Non-Ferrous Metals (Panel Exhibits CHN-99 and JE-59).
343 Panel Exhibits CHN-11 and JE-49.
344 Panel Exhibits CHN-54 and JE-50.
345 Panel Exhibits CHN-96 and JE-52.
346 Panel Reports, para. 7.204 (referring to Foreign Trade Law, Article 19; Regulations on the
Administration of the Import and Export of Goods, Articles 4 and 36; and Export Quota Administration
Measures, Article 1).
347 Panel Reports, para. 7.205 (referring to Foreign Trade Law, Article 20).
348 Panel Reports, para. 7.206 (referring to Foreign Trade Law, Article 18; Regulations on the
Administration of the Import and Export of Goods, Article 35; and 2008 Export Licence Administration
Measures (Panel Exhibit JE-51), Article 3, para. 2).
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import or export restrictions. In this regard, the 2012 Export Licensing Catalogue 349 issued by
MOFCOM identified, among the goods subject to export quotas and to export quota licensing
administration, concentrates and a variety of processed and alloyed products of rare earths,
tungsten, and molybdenum goods.
350 This means that quota shares are directly assigned by
MOFCOM and require MOFCOM's approval. 351 Accordingly, any firm seeking to export any of these
three categories of products must apply for an export quota share and meet certain criteria in
order to be eligible. 352 Firms approved to export these produc ts receive a quota certificate. After
obtaining a quota certificate, exporters apply to MOFCOM for an export licence, which can be
presented to China's customs authorities.353
4.8. The Regulations on the Administration of the Import and Export of Goods provides that
MOFCOM shall publish annual quota amounts for pr oducts listed in the Export Licensing Catalogue
by 31 October of the preceding year. 354 MOFCOM published the 2012 Export Quota Amounts on
31 October 2011.355 This document indicates the total 2012 export quota for certain agricultural
and industrial products, including tungsten and molybdenum. 356 However, there was no
announcement in October 2011 of the total 2012 export quota for rare earths.357
4.9. China also maintains a series of criminal and administrative penalties for the exportation of
restricted goods in a manner inconsistent with the quota regime. The holder of an export quota
allocation is required to return any unused quota volume by 31 October of the year for which the
export quotas have been issued. Exporting enterprises may be subject to sanction if they fail to do
so, or if they fail fully to use their quota by the end of the year. Enterprises may also face
sanctions for exporting without permission, for exceeding the quantitative limitations, or for buying
or selling quota certificates or other documents without approval. Sanctions include refusal to
handle the offending enterprise's customs inspection; revocation of the non-complying enterprise's
business licence for foreign trade; a reduction in the offending enterprise's quota allocation; and
possible criminal punishment. Quota-administering authorities that distribute quotas exceeding
their authority may also be subject to sanction.
358
4.10. As for the products at issue, rare earths, tungsten, and molybdenum are naturally occurring
minerals found in various mined ores. 359 "Rare earths" is the term commonly used to refer to a
group of chemical elements in the periodic table of elements, also known as lanthanides. In these
disputes, "rare earths" refers to the 15 elements that make up this lanthanide group, as well as to
two other elements, which are also considered to be rare earths.
360 These elements are found in a

349 Panel Exhibits CHN-8 and JE-48.
350 Panel Reports, paras. 7.207 and 7.209 (referring to 2012 Export Licensing Catalogue).
351 Panel Reports, para. 7.209 (referring to 2012 Export Licensing Catalogue).
352 Panel Reports, para. 7.212 (referring to 2012 Application Qualifications and Procedures for Rare
Earth Export Quotas (Panel Exhibits CHN-38 and JE-61)). See also 2012 Application Qualifications and
Additional Application Procedures of Tungsten Export (or Supply) Enterprises (Panel Exhibits CHN-100 and
JE-62), Article IV(iv); 2012 Export Quota Amounts (Panel Exhibits CHN-97 and JE-58); and 2012 Application
Qualifications and Application Procedures for Molybdenum Export Quota (Panel Exhibits CHN-107 and JE-63).
353 Panel Reports, para. 7.212 (referring to Regulations on the Administration of the Import and Export
of Goods, Articles 41 and 43).
354 Panel Reports, para. 7.207 (referring to Regulations on the Administration of the Import and Export
of Goods, Article 38).
355 Panel Reports, para. 7.208 (referring to 2012 Export Quota Amounts).
356 Panel Reports, para. 7.208.
357 The amounts of the rare earth, tungsten, and molybdenum export quotas were further specified in
separate announcements issued by MOFCOM related to each product, with the amounts divided among
different "batches". With respect to rare earths, China announced the specific amounts allocated for the 2012
export quotas in three separate instruments published in December 2011, May 2012, and August 2012. (Panel
Reports, paras. 7.213-7.215 (referring to Panel Exhibits CHN-56 and JE-55, CHN-57 and JE-56, and CHN-58
and JE-57)) In respect of tungsten and molybdenum, China announced the specific amounts allocated for the
2012 export quotas in two separate instruments published in December 2011 and July 2012. (Panel Reports,
paras. 7.228 and 7.229 (referring to 2012 First Batch Export Quotas of Tungsten, Antimony and Other
Non-Ferrous Metals; and 2012 Second Batch Export Quotas of Tungsten, Antimony and Other Non-Ferrous
Metals) See also Panel Reports, paras. 7.222-7.224 and 7.227-7.230)
358 Panel Reports, para. 7.210.
359 Panel Reports, paras. 2.5-2.7.
360 Panel Reports, para. 2.3. Thus, the 17 "rare earths" included in the scope of these disputes
comprise: lanthanum (La), cerium (Ce), praseodymium (Pr), neodymium (Nd), promethium (Pm), samarium
(Sm), europium (Eu), gadolinium (Gd), terbium (Tb), dysprosium (Dy), holmium (Ho), erbium (Er), thulium
(Tm), ytterbium (Yb), lutetium (Lu) (the lanthanide group), as well as scandium (Sc) and yttrium (Y).
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variety of different ores. Tungsten is primar ily found in two ores: wolframite and scheelite. 361
Molybdenum is mined from ore containing molybdenite, which is often recovered as a by-product
of copper mining.
362
4.11. The products subject to the export measures at issue consist of both the naturally occurring
minerals, as well as a number of intermediate products, that is, materials that have undergone
some initial processing, for example into concentrates, oxides, salts, metals, and chemicals.
Generally speaking, the downstream products in which rare earths, tungsten, and molybdenum are
used are not covered by the measures at issue in these disputes.
363 Examples of such finished
products include, for rare earths, magnets and phosphors 364; for tungsten, hardened alloys in the
form of tungsten billet and cemented carbides 365; and, for molybdenum, stainless steel. 366 Further
details about the products at issue in these disput es may be found in paragraphs 2.2 to 2.7 of the
Panel Reports.
4.12. Worldwide, China plays a central role in the production and consumption of rare earths,
tungsten, and, to a lesser extent, molybdenum. China also produces many of the finished products
that use rare earths, tungsten, and molybdenum as inputs. 367 Evidence submitted to the Panel
suggests that China accounted for at least 90% of global production of rare earths in 2011. 368
China is also the largest global consumer of rare earths. The Panel noted that more than 80% of
rare earths extracted in China are consumed in China 369, and China itself submitted evidence that
it accounted for nearly 70% of global demand for rare earths in 2012. 370 Similarly, as regards
tungsten, China is the largest global producer , accounting for over 80% of such production. 371
Moreover, China consumes more than 60% of tungsten extracted domestically, and accounts for
more than half of global consumption. 372 In relation to molybdenum, the Panel referred to
evidence submitted by China indicating that Ch ina produced over 35% of the world's molybdenum
supply.373 Additionally, the parties submitted evidence indicating that China accounted for
approximately 28% of global molybdenum consumption.374

361 Panel Reports, para. 2.6.
362 Panel Reports, para. 2.7.
363 Panel Reports, paras. 7.169, 7.170, and 7.588.
364 Panel Reports, paras. 7.552, 7.582, and 7.588.
365 Panel Reports, paras. 2.6, 7.746, 7.786, and 7.800.
366 Panel Reports, paras. 7.921, 7.932, and 7.958.
367 With respect to rare earths, for example, China identified "three important rare earth-using
industries in China (NiMH batteries, rare earth catalyst and permanent magnets)", and explained that there are
"about 130 permanent magnet producers, 86 rare earths catalysts producers and dozens of major NiMH
battery producers" in China. (China's appellant's submission, paras. 200 and 201; other appellant's
submission, paras. 131 and 132)
368 China submitted evidence showing that it accounted for 90% of the world's total production of rare
earths in 2011. (Panel Exhibit CHN-01, p. 5) The complainants submitted evidence suggesting that China
produced close to 97% of the world's supply of rare earths in 2011. (Panel Exhibits JE-23 and JE-79) The Panel
also took note of evidence submitted by China illustrating that China accounted for 90-97% of global rare earth
production in 2011. (Panel Exhibit CHN-6, p. 10; Panel Exhibit CHN-24, p. 4)
369 Panel Reports, paras. 7.464 and 7.660.
370 China's second written submission to the Panel, para. 111 (referring to Panel Exhibit CHN-4).
371 The complainants and China submitted evidence to the Panel indicating that China produced 90.8%
of worldwide tungsten supply in 2010 and 83% in 2011. (Panel Reports, para. 7.825. See also China's first
written submission to the Panel, para. 285; Panel Exhibit JE-130, p. 26; and Panel Exhibits JE-37 and CHN-92,
p. 177)
372 Panel Reports, paras. 7.825 and 7.835. See also Panel Exhibit JE-130, pp. 36-37.
373 China submitted evidence indicating that, in 2010, China produced 38% of the world's molybdenum
supply, while, in 2011, China accounted for 37% of such production. The complainants submitted similar data
estimating that China accounted for 36% of global molybdenum production in 2010. (See Panel Reports,
para. 7.850; China's first written submission to the Panel, para. 344; Panel Exhibit CHN-106, p. 107; and Panel
Exhibit JE-43, p. 4)
374 See Panel Exhibits CHN-224, CHN-139 (updated), and JE-43, p. 14.
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5 ANALYSIS OF THE APPELLATE BODY
5.1 Article XII:1 of the Marrakesh Agreem ent and Paragraph 1.2 of China's Accession
Protocol
5.1.1 Introduction
5.1. China appeals the Panel's "erroneous assessm ent of the systemic relationship" between, on
the one hand, specific provisions in the Protocol on the Accession of the People's Republic of China
to the WTO
375 (China's Accession Protocol), and, on the other hand, the Marrakesh Agreement 376
and the Multilateral Trade Agreements annexed thereto. 377 China contends that the Panel erred in
its interpretation of Article XII:1 of the Marrakesh Agreement and Paragraph 1.2, second sentence,
of China's Accession Protocol in finding that "the legal effect of the second sentence of
Paragraph 1.2 is to make China's Accession Protocol, in its entirety, an 'integral part' of the
Marrakesh Agreement, and not that, in addition, the individual provisions thereof are also integral
parts of Multilateral Trade Agreements annexed to the Marrakesh Agreement." 378 China requests
reversal of the three paragraphs in which this finding is set out, namely, paragraphs 7.80, 7.89,
and 7.93 of the Panel Reports.
5.2. The Panel findings challenged by China are part of the Panel's intermediate findings leading
to its conclusion that Article XX of the GATT 1994 is not available to China as a defence to justify
the export duties at issue in these disputes 379, which the Panel had found to be inconsistent with
Paragraph 11.3 of China's Accession Protocol.380 China's appeal, therefore, is narrow in scope, and
does not involve any challenge to the ultimate findings and conclusions reached by the Panel
regarding the inconsistency of China's export duties with its WTO obligations. More specifically,
China has not appealed the Panel's finding that the export duties are inconsistent with
Paragraph 11.3 of China's Accession Protocol.
381 China has also not appealed the Panel's conclusion
that Article XX of the GATT 1994 is not available as a defence to justify these export duties 382, nor
the Panel's other intermediate findings leading to that conclusion. 383 Furthermore, China has not
appealed the Panel's finding, reached on an arguendo basis, that the export duties at issue are not
justified by either subparagraph (b) or th e chapeau of Article XX of the GATT 1994. 384 In
addressing this part of China's appeal, we begin with a brief overview of the context in which the
Panel findings challenged by China were made, as well as a brief summary of the Panel findings
subject to appeal and the participants' claims and arguments on appeal. We then analyse the
interpretative issues raised by China on appeal.

375 WT/L/432.
376 Before the Panel, China drew a distinction between the Marrakesh Agreement Establishing the World
Trade Organization excluding the Multilateral Trade Agreements annexed to it, on the one hand, and that
Agreement together with its annexes, on the other hand. China used "the Marrakesh Agreement" to refer to
the former, and "the WTO Agreement" to refer to the latter. On appeal, China draws the same distinction. In
its findings regarding the availability of Article XX of the GATT 1994 to justify a breach of Paragraph 11.3 of
China's Accession Protocol, the Panel also used "the Marrakesh Agreement" to refer to the Marrakesh
Agreement Establishing the World Trade Organization excluding its annexes. For purposes of consistency, we,
like the Panel, use "the Marrakesh Agreement" to refer to the Marrakesh Agreement Establishing the World
Trade Organization excluding its annexes, even in instances where the complainants and third participants
themselves have not, in their submissions, used the nomenclature "the Marrakesh Agreement". We underline
that our use of such nomenclature is for purposes of these appeals only, and without prejudice to the legal
issues raised by China on appeal.
377 China's appellant's submission, paras. 4 and 46; other appellant's submission, paras. 4 and 46.
378 Panel Reports, para. 7.93.
379 Panel Reports, para. 7.115.
380 Panel Reports, para. 7.48. Paragraph 11.3 requires China to eliminate export duties on all products
except for those listed in Annex 6 to its Protocol or permitted under Article VIII of the GATT 1994. In the
present disputes, it is uncontested that, with the exception of tungsten ores and concentrates
(HS No. 2611.00), none of the products at issue are listed in Annex 6. (Ibid., fn 77 to para. 7.30)
381 Panel Reports, para. 7.48.
382 Panel Reports, para. 7.115. As further described below, one panelist expressed a separate opinion,
stating that "unless China explicitly gave up its right to invoke Article XX of the GATT 1994, which it did not,
the general exception provisions of the GATT 1994 are available to China to justify a violation of
Paragraph 11.3 of its Accession Protocol." (Ibid., para. 7.138)
383 Panel Reports, paras. 7.72, 7.104, and 7.114.
384 Panel Reports, para. 7.196.
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5.1.2 The Panel's findings
5.1.2.1 The context in which the Panel findings subject to appeal were made
5.3. Before the Panel, China did not contest that its export duties are inconsistent with its
obligations under Paragraph 11.3 of its Accession Protocol. China argued, however, that its
obligations under Paragraph 11.3 of its Accession Protocol are subject to the general exceptions in
Article XX of the GATT 1994. Specifically, China argued that the export duties at issue are justified
under Article XX(b) of the GATT 1994 because th ey are necessary to protect human, animal, or
plant life or health.385
5.4. The Panel recalled that, in China – Raw Materials , the panel and the Appellate Body found
that a proper interpretation of Paragraph 11.3 of China's Accession Protocol does not make
available to China the general exceptions under Article XX of the GATT 1994. 386 The Panel noted
that, in the present disputes, China requested the Pa nel to examine the issue of the availability of
Article XX exceptions in the light of new argu ments that, according to China, had not been
asserted or addressed previously.387 The Panel referred to the Appellate Body's statement in US –
Stainless Steel (Mexico) that, "absent cogent reasons, an adju dicatory body will resolve the same
legal question in the same way in a subsequent case." 388 The Panel additionally considered that,
when a party asks a panel to deviate from a prior Appellate Body finding on a question of law on
the basis of novel legal arguments, a full explor ation of those arguments may assist the Appellate
Body in the event of an appeal. The Panel expres sed the view that "China's argument regarding
the systemic relationship between the provisions of its Accession Protocol and those of the
GATT 1994 is a new argument, and one that raises complex legal issues." 389 The Panel therefore
re-examined the issue of whether the obligation in Paragraph 11.3 of China's Accession Protocol is
subject to the general exceptions in Article XX, in order to determine whether the arguments
raised by China in this case, including its "new" argument, presented "cogent reasons" for
departing from the adopted panel and Appellate Body findings on the same question of law.
390
5.5. The Panel addressed four arguments raised by China. Specifically, China argued that:
(i) although there is no explicit textual link be tween Paragraph 11.3 of China's Accession Protocol
and Article XX of the GATT 1994, such textual s ilence does not mean that it was the Members'
common intention that no such defence should be available to China; (ii) Paragraph 11.3 of China's
Accession Protocol has to be treated as an integral part of the GATT 1994; (iii) the phrase "nothing
in this Agreement" in the chapeau of Article XX of the GATT 1994 does not exclude the availability
of Article XX to defend a violation of Paragraph 11.3 of China's Accession Protocol; and (iv) an
appropriate holistic interpretation, taking due account of the object and purpose of the
WTO Agreement, confirms that China may justify export duties through recourse to Article XX of
the GATT 1994.
391
5.6. The Panel found that none of the four arguments put forward by China constituted a "cogent
reason" for departing from the Appellate Body's findings in China – Raw Materials.392 On this basis,
the Panel concluded that the obligation in Para graph 11.3 of China's Accession Protocol is not
subject to the general exceptions provided in Article XX of the GATT 1994. 393 China has not
appealed this conclusion, nor the Panel's rejection of three of the four arguments that China made
in support of its claim that it had access to Article XX of the GATT 1994 to justify a breach of

385 Panel Reports, para. 7.49.
386 Panel Reports, para. 7.53 (referring to Panel Reports, China – Raw Materials, para. 7.159; and
Appellate Body Reports, China – Raw Materials, para. 307).
387 Panel Reports, para. 7.54.
388 Panel Reports, para. 7.55 (quoting Appellate Body Report, US – Stainless Steel (Mexico), para. 160
(fn omitted)).
389 Panel Reports, para. 7.59. In addition, the Panel took into account "the following particular
circumstances of this dispute: (i) no party or third party has argued that the Panel is legally precluded from
re-examining this issue; (ii) the parties to this dispute are not identical to the parties in China – Raw Materials
(which did not include Japan but did include another Member); [and] (iii) this legal issue is 'a central aspect of
this dispute' that is 'of fundamental systemic importance', as evidenced by the extensive argumentation of the
issue by the parties as well as many of the third parties in this dispute". (Ibid. (fn omitted))
390 Panel Reports, para. 7.61.
391 Panel Reports, para. 7.62 (referring to China's first written submission to the Panel, paras. 411,
422-435, 436-444, and 445-458, respectively).
392 Panel Reports, para. 7.115.
393 Panel Reports, para. 7.115.
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Paragraph 11.3 of its Accession Protocol. 394 China has also not appealed the Panel's subsequent
conclusion, reached on an arguendo basis, that China's measures are not justified by Article XX(b)
of the GATT 1994.395
5.7. One panelist, while supporting the ultimate conclusion of the Panel that the export duties
were not justified under Article XX(b) of the GATT 1994, expressed a separate opinion on the issue
of the availability of Article XX to China to ju stify a violation of Paragraph 11.3. The panelist
considered that China's obligation with respect to export duties under Paragraph 11.3 of its
Accession Protocol "expands" its obligations under Articles II and XI:1 of the GATT 1994, which
deal with, inter alia , the overlapping subject matter of border tariff duties. 396 Given this "close
relationship", the panelist believed that Paragraph 11.3 of China's Accession Protocol must be read
"cumulatively and simultaneously" with Articles II and XI of the GATT 1994.
397 Therefore, in the
panelist's view, Paragraph 11.3 of China's Accession Protocol became, upon accession, an integral
part of the GATT 1994 as that agreement applies between China and the WTO Members.
Furthermore, the panelist opined that "the defe nces provided in the GATT 1994 are automatically
available to justify any GATT-related obligations, including border tariff-related obligations – unless
a contrary intention is expressed by the acceding Member and the WTO Members."
398 The panelist
thus concluded that, "unless China explicitly gave up its right to invoke Article XX of GATT 1994,
which it did not, the general exception provisions of the GATT 1994 are available to China to justify
a violation of Paragraph 11.3 of its Accession Protocol."399
5.1.2.2 The Panel findings appealed by China
5.8. China appeals the Panel's rejection of th e second of the four arguments that China put
forward in support of its position that the general exceptions in Article XX of the GATT 1994 can be
invoked to justify a breach of the obligation in Paragraph 11.3 of its Accession Protocol. In
addressing China's second argument – i.e. that Paragraph 11.3 of China's Accession Protocol must
be treated as an integral part of the GATT 1994 – the Panel observed that this raised the question
of the relationship between Paragraph 11.3 of China's Accession Protocol and the GATT 1994.
According to the Panel, China relied upon the following two premises in making its argument:
a. The legal effect of Paragraph 1.2 of Chin a's Accession Protocol and Article XII:1 of
the Marrakesh Agreement is to make China's Accession Protocol an "integral part"
of the Marrakesh Agreement, and also to make each of the Accession Protocol-
specific provisions an integral part of one of the Multilateral Trade Agreements
(e.g. GATT 1994) annexed to the Marrakesh Agreement.
b. The determination of which Multilateral Trade Agreement(s) (e.g. GATT 1994) a
particular provision of the Accession Protocol is an "integral part" must be based
on an evaluation of which Multilateral Trade Agreement(s) the provision at issue
is "intrinsically" related to. Paragraph 11.3 of China's Accession Protocol contains
an obligation regarding trade in goods, and in particular regulating the use of
export duties. Therefore, it is "intrins ically related" to the GATT 1994, and in
particular the provisions of GATT 1994 regulating the use of export duties –
which, in China's view, are Articles II and XI of the GATT 1994. Accordingly,
Paragraph 11.3 must be treated as an "integral part" of the GATT 1994.
Paragraph 11.3 is therefore subject to the general exceptions in Article XX of the
GATT 1994 unless there is explicit treaty language to the contrary.
400

394 The Panel's findings rejecting these arguments are found in paragraphs 7.72, 7.104, and 7.114 of
the Panel Reports.
395 Panel Reports, paras. 7.139-7.196.
396 Panel Reports, para. 7.136.
397 Panel Reports, para. 7.138.
399 Panel Reports, para. 7.138.
400 Panel Reports, para. 7.76.a and b.
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The Panel decided to address these two premises in analysing China's argument that it was
entitled to invoke Article XX to justify a breach of Paragraph 11.3 of its Accession Protocol. 401 Only
the Panel's findings on the first premise are subject to China's appeal.
5.9. In addressing the first premise, the Panel examined the context of Paragraph 1.2 of China's
Accession Protocol, including the Decision of th e Ministerial Conference of 10 November 2001 to
which China's Accession Protocol is annexed 402, the preamble of China's Accession Protocol, and
Paragraph 1.3 of the Protocol. Having done so, th e Panel disagreed with China that the term "the
WTO Agreement" in the second sentence of Paragraph 1.2 refers to the Marrakesh Agreement
together with the Multilateral Trade Agreements a nnexed to it. Instead, the Panel considered that
the term "the WTO Agreement" in the second sentence of Paragraph 1.2 refers to the Marrakesh
Agreement alone.
403
5.10. The Panel further noted that Article II: 2 of the Marrakesh Agreement states that the
annexed Multilateral Trade Agreements are "integral parts of" the Marrakesh Agreement. In the
Panel's view, this does not mean that the Multilat eral Trade Agreements are integral parts of one
another, or that individual provisions of one Mu ltilateral Trade Agreement are integral parts of
another Multilateral Trade Agreement. The Panel co nsidered that individual provisions of China's
Accession Protocol could also be made an integral part of one or more of the Multilateral Trade
Agreements only if such language is contained in the individual provision.
404 The Panel provided six
additional reasons supporting its interpretation of Paragraph 1.2 of China's Accession Protocol,
based on the text of Paragraph 1.2, the context provided by, inter alia, other provisions of China's
Accession Protocol and relevant provisions of the Report of the Working Party on the Accession of
China405 (China's Accession Working Party Report), provisions of the Marrakesh Agreement and the
GATT 1994, and findings in prior cases involving China's Accession Protocol.406
5.11. The Panel next turned to review China's arguments relating to Article XII:1 of the
Marrakesh Agreement and its assertion that, by virtue of the accession process prescribed in
Article XII:1 of the Marrakesh Agreement, there is an intrinsic link between the provisions
contained in China's Accession Protocol and the provisions of the Marrakesh Agreement and the
Multilateral Trade Agreements annexed thereto. The Panel observed that it saw "nothing in
Article XII:1" to support China's position. 407 Rather, Article XII:1 provides for States and separate
customs territories to accede to "this Agreement" and stipulates that, when this occurs, such
accession must apply across the board and not just with respect to one or some of the Multilateral
Trade Agreements. Thus, in the Panel's view, Article XII:1 makes clear that an acceding Member is
subject to all of the obligations under all of the Multilateral Trade Agreements, and is not allowed
"to pick and choose" the agreements to which it will accede.
408
5.12. On this basis, the Panel concluded that "the legal effect of the second sentence of
Paragraph 1.2 is to make China's Accession Protocol, in its entirety, an 'integral part' of the
Marrakesh Agreement, and not that, in addition, the individual provisions thereof are also integral

401 Panel Reports, para. 7.77.
402 Accession of the People's Republic of China, Decision of the Ministerial Conference of
10 November 2001, WT/L/432, p. 1.
403 Panel Reports, paras. 7.79 and 7.80.
404 Panel Reports, para. 7.80.
405 Report of the Working Party on the Accession of China, WT/ACC/CHN/49 and Corr.1.
406 Panel Reports, paras. 7.82-7.88.
407 Panel Reports, para. 7.91 (referring to China's responses to the complainants' comments on China's
request for a preliminary ruling on the availability of Article XX of the GATT 1994, para. 18).
408 Panel Reports, para. 7.91.
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parts of Multilateral Trade Agreements annexed to the Marrakesh Agreement."409 On appeal, China
requests us to reverse this finding of the Panel, together with two prior iterations of essentially the
same content.
410
5.1.2.3 Overview of the claims and arguments by the participants
5.13. China submits that the Panel erred in its interpretation of Article XII:1 of the Marrakesh
Agreement, read in conjunction with Paragraph 1. 2 of China's Accession Protocol, in finding that
"the legal effect of the second sentence of Paragr aph 1.2 is to make China's Accession Protocol, in
its entirety, an 'integral part' of the Marrakesh Agreement, and not that, in addition, the individual
provisions thereof are also integral parts of Multilateral Trade Agreements annexed to the
Marrakesh Agreement." 411 China argues that the Panel should have conducted a "holistic"
interpretation of these provisions412, which would have led it to the conclusion that each provision
of China's Accession Protocol is an integral part of the Marrakesh Agreement or one of the
Multilateral Trade Agreements annexed thereto. According to China, this means that, when faced
with a specific obligation in China's Accession Protocol, the treaty interpreter's initial task is to
analyse to which of the covered agreements listed in Appendix 1 to the DSU the relevant protocol
provision "intrinsically relates". Once this has been determined, that provision is to be treated as
an integral part of the related covered agreement.
413
5.14. To illustrate China's interpretation, it may be useful to recall the Panel's description of how
China's interpretation applies to the commitment at issue in these disputes, that is,
Paragraph 11.3 of China's Accession. The Panel noted that, according to China:
Paragraph 11.3 of China's Accession Protocol contains an obligation regarding trade in
goods, and in particular regulating the use of export duties. Therefore, it is
"intrinsically related" to the GATT 1994, and in particular the provisions of GATT 1994
regulating the use of export duties – which, in China's view, are Articles II and XI of
the GATT 1994. Accordingly, Paragraph 11.3 must be treated as an "integral part" of
the GATT 1994. Paragraph 11.3 is therefore subject to the general exceptions in GATT
Article XX unless there is explicit treaty language to the contrary.
414
5.15. We emphasize, however, that China has not appealed the Panel's analysis of Paragraph 11.3
or its findings thereunder, and, indeed, has not referred to Paragraph 11.3 in its written
submissions on appeal. Furthermore, we note that China's argument has evolved during these
appellate proceedings. At the oral hearing, China argued that, "[i]rrespective of the interpretation
of Article XII:1 [of the Marrakesh Agreement] and Paragraph 1.2 of China's Accession Protocol", its
Accession Protocol is properly characterized as a "successive treaty" relating to the same subject
matter in the sense of Article 30 of the Vienna Convention on the Law of Treaties
415

409 Panel Reports, para. 7.93. The Panel went on to make findings on the second premise of China's
arguments, i.e., those concerning Paragraph 11.3 of China's Accession Protocol, and these findings are not
subject to China's appeal. The Panel noted that, in the light of its disagreement with China's interpretation, it
was "not strictly necessary" for the Panel to address China's arguments that Paragraph 11.3 of China's
Accession Protocol must be treated as an "integral part" of the GATT 1994 and subject to the general
exceptions in Article XX of the GATT 1994 due to its intrinsic relationship with Articles II and XI of the
GATT 1994. (Ibid., para. 7.94) Nonetheless, the Panel considered it useful to offer its observations "in the
interest of providing a full exploration of the issues raised by China's specific arguments". (Ibid.) The Panel
observed that there is no provision in the GATT 1994 that requires Members to eliminate export duties.
Moreover, the Panel found that China and WTO Members could have included commitments regarding the use
of export duties in China's goods schedule, which in turn would be an integral part of the GATT 1994, but China
and WTO Members did not do so. Finally, the Panel found that Paragraph 11.3 contains explicit treaty language
precisely identifying exceptions that apply to the obligation contained therein. In conclusion, the Panel found
that China's argument was not a "cogent reason" for departing from the Appellate Body's finding that the
obligation in Paragraph 11.3 of China's Accession Protocol is not subject to the general exceptions in Article XX
of the GATT 1994. (Ibid., paras. 7.95-7.99)
410 Panel Reports, paras. 7.80 and 7.89.
411 Panel Reports, para. 7.93.
412 China's appellant's submission, para. 72; other appellant's submission, para. 59.
413 China's appellant's submission, para. 11; other appellant's submission, para. 11.
414 Panel Reports, para. 7.76.b.
415 Done at Vienna, 23 May 1969, UN Treaty Series, Vol. 1155, p. 331.
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(Vienna Convention).416 Thus, to the extent that a given accession provision stands in conflict with
one or more provisions in the Marrakesh Agreem ent or the Multilateral Trade Agreements annexed
thereto, such conflict is to be resolved a ccording to the rule under Article 30(3) of the
Vienna Convention.417 For example, China argues that Article XI:1 of the GATT 1994 has been
modified by Paragraph 11.3 of China's Accession Protocol and, as a result, China may not impose
export duties.418
5.16. All three complainants submit that the Panel's analysis of Article XII:1 of the Marrakesh
Agreement and Paragraph 1.2 of China's Accession Protocol is well supported by the text and
context of these provisions, as well as by releva nt jurisprudence. They maintain that China's
proposed "intrinsically related" test departs from the customary rules of treaty interpretation and
leads to uncertainty. The European Union further argues that Article 30(3) of the
Vienna Convention, which states that "the earlier treaty applies only to the extent that its
provisions are compatible with those of the later treaty", is inapposite because there is no question
of "incompatibility" between the provision at issue, that is, Paragraph 11.3 of China's Accession
Protocol, and the provisions of the GATT 1994. Ja pan emphasizes that the drafters determined to
specify the link, if any, between the obligations set out in China's Accession Protocol, on the one
hand, and the Marrakesh Agreement and the Multilateral Trade Agreements, on the other hand,
through explicit text – i.e. "terms of accession" – to be drafted by the Working Party and agreed
upon by the Members and China pursuant to Arti cle XII:1 of the Marrakesh Agreement. All three
complainants highlight that the panel and the Appellate Body found in China – Raw Materials that
the text and context of Paragraph 11.3 make clear that Article XX of the GATT 1994 is not available
to justify a breach of Paragraph 11.3. The compla inants maintain that the Panel in the present
disputes correctly came to the same conclusion. Th e United States, in particular, emphasizes that
China has neither addressed those findings nor shown any flaws in the interpretive work conducted
by both the panel and the Appellate Body in China – Raw Materials in examining the relationship
between Paragraph 11.3 and the GATT 1994.
5.17. Having briefly summarized the Panel's rele vant findings and the claims and arguments on
appeal, we turn now to address the specific interpretative issues raised in China's appeal.
5.1.3 Interpretation of Article XII:1 of the Marrakesh Agreement and Paragraph 1.2 of
China's Accession Protocol
5.1.3.1 Introduction
5.18. These disputes relate, in part, to obligations undertaken by a WTO Member that acceded to
the WTO subsequent to the conclusion of the Uruguay Round of multilateral trade negotiations. We
recall that original Membership of the WTO is gove rned by Article XI of the Marrakesh Agreement,
whereas Article XII of the Marrakesh Agreemen t concerns accession to the WTO. To date
419,
32 States or separate customs territories have acceded to the WTO pursuant to Article XII of the
Marrakesh Agreement. Each accession resulted from a negotiation process specific to that State or
separate customs territory, and the result of such negotiation is contained in an "accession
package" consisting of the new Member's accession protocol and, to the extent incorporated in
such accession protocol, commitments made in its accession working party report.
5.19. As a preliminary matter, we observe that it is uncontested that provisions of China's
Accession Protocol should be interpreted in accordance with the customary rules of treaty
interpretation as codified in Articles 31 and 32 of the Vienna Convention. In China – Raw Materials,
for example, the Appellate Body noted that "Parag raph 1.2 of China's Accession Protocol provides
that the Protocol 'shall be an integral part' of the WTO Agreement."
420 Thus, the Appellate Body
stated, "the customary rules of interpretation of public international law, as codified in Articles 31
and 32 of the Vienna Convention … are, pursuant to Article 3.2 of the DSU, applicable … in

416 Article 30 of the Vienna Convention concerns the "[a]pplication of successive treaties relating to the
same subject-matter".
417 Article 30(3) of the Vienna Convention states: "When all the parties to the earlier treaty are parties
also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the
earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty."
418 China's opening statement at the oral hearing.
419 As at 7 August 2014.
420 Appellate Body Reports, China – Raw Materials, para. 278.
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clarifying the meaning of Paragraph 11.3 of the Protocol."421 Although China has developed its own
explanation as to why the DSU, including the in terpretative rules set out in Article 3.2, is
applicable to China's Accession Protocol, it does not question the proposition itself. We further note
that the mandatory nature of much of the language used in China's Accession Protocol supports
the view that its drafters intended it to be en forceable under the DSU. Indeed, it is uncontested
that China's Accession Protocol is enforceable under the DSU.
422
5.20. In order to evaluate whether the Panel erred in interpreting Article XII:1 of the
Marrakesh Agreement and Paragraph 1.2 of China's Accession Protocol in its disposition of China's
argument regarding the relationship between the provisions of its Accession Protocol and the
Marrakesh Agreement and its annexes, we begin with the interpretation of Article XII:1 of the
Marrakesh Agreement, followed by the interpre tation of Paragraph 1.2 of China's Accession
Protocol.
5.21. In doing so, we note that China has, to a large extent, structured its analysis and
arguments focusing on the meaning of specific terms in the second sentence of Article XII:1 of the
Marrakesh Agreement and the second sentence of Paragraph 1.2 of its Accession Protocol. It is for
this reason that, tackling the issue of the relationship between provisions of China's Accession
Protocol, on the one hand, and provisions of the Marrakesh Agreement and Multilateral Trade
Agreements, on the other hand, we begin with an initial assessment of Article XII:1 of the
Marrakesh Agreement and the second sentence of Paragraph 1.2 of its Accession Protocol. Since,
however, the question of the relationship between provisions of China's Accession Protocol and
provisions of the Marrakesh Agreement and Mult ilateral Trade Agreements cannot be answered
without a more complete enquiry, we further procee d to an integrated assessment of the relevant
provisions and general architecture of the relevant instruments as they bear on the issues raised
on appeal.
5.1.3.2 Article XII:1 of the Marrakesh Agreement
5.1.3.2.1 Introduction
5.22. Before the Panel, China maintained that Article XII:1 of the Marrakesh Agreement "provides
a strong textual basis requiring panels dealing with a provision in a post-1994 accession protocol,
including 'WTO-plus' provisions, to examine which covered agreement a given provision
intrinsically relates to"
423, and argued that this language confirmed China's view that its Accession
Protocol "merely serves to specify, including by means of 'WTO-plus' commitments, China's
obligations under the WTO Agreement and the multilateral trade agreements annexed thereto". 424
The Panel, in examining Article XII:1 of the Marrakesh Agreement, found that:
[b]y its terms, Article XII:1 provides for States and customs territories to accede to
the WTO Agreement and stipulates that when this occurs, such accession must apply
across the board, and not just with respect to one or some WTO Agreements. Thus, in
acceding to the WTO, an acceding Member is subject to all of the obligations of all the
Multilateral Trade Agreements – a new Member is not entitled to pick and choose
which particular Agreements it will accede to.
 We see nothing in Article XII:1 to
support China's position that "respective protocol provision[s] must be considered as

421 Appellate Body Reports, China – Raw Materials, para. 278. (fn omitted)
422 We note that this proposition has not been contested either in the present disputes or in any prior
dispute involving China's Accession Protocol. In addition, we take note of the Panel's statement that, in all prior
cases involving China's Accession Protocol, panels and the Appellate Body "have proceeded on the assumption"
that Paragraph 1.2 serves, inter alia, the function of making the obligations in China's Accession Protocol
enforceable under the DSU. According to the Panel, this is because the Marrakesh Agreement is a covered
agreement listed in Appendix 1 to the DSU and, as such, the provisions of that Agreement, together with the
provisions of China's Accession Protocol, which is "an integral part" of that agreement, are subject to the WTO
dispute settlement mechanism set out in the DSU. (Panel Reports, para. 7.85) We also take note of the fact
that the DSU is one of the Multilateral Trade Agreements annexed to the Marrakesh Agreement. The
Marrakesh Agreement is enforceable under the DSU pursuant to its Appendix 1.
423 Panel Reports, para. 7.90 (quoting China's response to the complainants' comments on China's
request for a preliminary ruling on the availability of Article XX of the GATT 1994, para. 18).
424 Panel Reports, para. 7.90 (quoting China's response to the complainants' comments on China's
request for a preliminary ruling on the availability of Article XX of the GATT 1994, para. 17). (emphasis added
by the Panel)
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an integral part of the specific covered agreement to which it intrinsically relates." Nor
do we find in Article XII:1 language to support China's assertion that its Accession
Protocol is not a self-contained agreement and that it "merely serves to specify"
China's obligations under the WTO Agreement and the Multilateral Trade Agreements
annexed thereto.
425
5.23. For China, this finding by the Panel constitutes legal error. In China's view, "[b]y essentially
reducing Article XII:1 to prescribing that newly acceding Members need to accept the
Marrakesh Agreement and the multilateral trade agreements annexed thereto as a single
undertaking, the Panel failed to give effective meaning to a vital element of the key provision
governing the WTO accession process." 426 Specifically, "the Panel failed to appreciate that the
precise nature of the systemic relationship between specific provisions in China's Accession
Protocol and the Marrakesh Agreement and the multilateral trade agreements annexed thereto
crucially hinges on the language contained in Article XII:1." 427 According to China, Article XII:1 of
the Marrakesh Agreement indicates that specific terms of accession must intrinsically relate to
either the Marrakesh Agreement or one of the Multilateral Trade Agreements annexed thereto.
5.24. The complainants disagree with China that Article XII:1 of the Marrakesh Agreement means
that provisions of China's Accession Protocol must intrinsically relate to the Marrakesh Agreement
or one of the Multilateral Trade Agreements. In the view of the European Union and Japan, the
second sentence of Article XII:1 confirms that the act of accession must be operative with respect
to both the WTO Agreement and the Multilateral Trade Agreements annexed thereto, and such an
interpretation does not fail to give effective meaning to this provision.
428 The United States
maintains that China's arguments amount to "an unexplained … leap" from the word "terms" in
Article XII:1 to the proposition that the actual te rms set out in an accession protocol should be
ignored and replaced with an unspecified "intrinsic relationship" test.429
5.1.3.2.2 The interpretation of Article XII:1 of the Marrakesh Agreement
5.25. Article XII:1 of the Marrakesh Agreement is one of the two provisions China relies on for its
proposition that each provision of China's Accession Protocol is an integral part of the
Marrakesh Agreement or one of the Multilateral Trad e Agreements to which it intrinsically relates.
In particular, China focuses on the word "terms" referred to in the first sentence of Article XII:1, as
well as on the second sentence of Article XII:1, in support of its position. China's arguments in this
regard call for us to consider the import of Ar ticle XII:1 of the Marrakesh Agreement and, in
particular, its second sentence. We will examine th e interpretation of, as well as China's specific
arguments relating to, this provision in this subsection. In the next subsection, we will interpret,
and address China's specific arguments in respect of the other provision that China relies on,
Paragraph 1.2 of China's Accession Protocol. Subs equently, we will proceed with an integrated
assessment of the relevant provisions as well as China's relevant arguments, so as to analyse the
relationship between provisions of its Accession Protocol, on the one hand, and those of the
Marrakesh Agreement and the Multilateral Trade Agreements annexed thereto, on the other hand.
5.26. Article XII:1 provides:
Article XII
Accession
1. Any State or separate customs territory possessing full autonomy in the conduct
of its external commercial relations and of the other matters provided for in this
Agreement and the Multilateral Trade Agreements may accede to this Agreement, on
terms to be agreed between it and the WTO. Such accession shall apply to this
Agreement and the Multilateral Trade Agreements annexed thereto.

426 China's appellant's submission, para. 78.
427 China's appellant's submission, para. 79. (emphasis added)
428 European Union's appellee's submission, paras. 74-79; Japan's appellee's submission,
paras. 210-213.
429 United States' third participant's submission, para. 10.
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5.27. Article XII:1 of the Marrakesh Agreement thus sets out the general rule for a State or
separate customs territory to become a Member of the WTO. Specifically, under its first sentence,
an applicant may accede to "this Agreement", that is, the Marrakesh Agreement, on "terms to be
agreed" between the applicant and the WTO. The "terms" of accession referred to in the first
sentence of Article XII are not defined. Thus, apar t from the stipulation in the second sentence of
Article XII, discussed further below, this provision does not spell out the content of, or impose
limitations on, such "terms". Rather, such terms are to be "agreed" upon by the WTO and the
individual acceding Member during a specific accession process.
5.28. Article XII:1, second sentence, specifie s that "[s]uch accession shall apply to this
Agreement and the Multilateral Trade Agreements annexed thereto". According to this sentence,
when an applicant accedes to the Marrakesh Agreement pursuant to the first sentence, it
necessarily also accedes to all Multilateral Trade Agreements under the WTO framework as a single
package of rights and obligations. The second sentence of Article XII:1 therefore indicates that the
accession must apply to the entirety of the Marrakesh Agreement and the Multilateral Trade
Agreements annexed thereto, and not just some part(s) thereof.
430 Thus, although specific terms
of accession are to be agreed upon in individual accession processes, the second sentence of
Article XII:1 prescribes one feature that such terms, taken as a whole, must reflect – namely, that
an acceding Member is subject to the rights and obligations in all of the Multilateral Trade
Agreements.

5.29. This understanding is borne out by the language used in Article XII:1, second sentence.
Specifically, "[s]uch accession" in the second sentence refers to the accession described in the first
sentence, which stipulates that a State or separate customs territory "may accede" to the
Marrakesh Agreement. The term "[s]uch accession" in the second sentence thus refers to the legal
act of acceding to the Marrakesh Agreement specified in the first sentence. Consistent with this
understanding, the word "apply" in the second sent ence "is not referring to the … application of a
legal instrument or document", such as the terms of accession. 431 Rather, it is referring to the
requirement that the legal act of becoming a WTO Member must be accomplished with respect to
the Marrakesh Agreement and all Multilateral Trade Agreements under the WTO framework.
5.30. Our above reading of Article XII:1 is co nfirmed by, and complements, Article II:2 of the
Marrakesh Agreement. Article II:2 provides th at "[t]he agreements and associated legal
instruments included in Annexes 1, 2 and 3 (hereinafter referred to as 'Multilateral Trade
Agreements') are integral parts of this Agreem ent, binding on all Members." The dictionary
meaning of the word "integral" includes "[b]elonging to or making up a whole", and "constituent,
component; necessary to the completeness or in tegrity of the whole, not merely attached".
432 The
reference to "integral parts" in Article II:2, therefore, indicates that the Multilateral Trade
Agreements annexed to the Marrakesh Agreemen t are necessary components of the single
package of WTO rights and obligations. Article II:2 thus stipulates the requirement on existing
WTO Members to abide by the obligations under all of the agreements in this package.
Article XII:1, which concerns accession, extends the same requirement to acceding Members. As
Japan submits on appeal, "Article II:2 defines the scope of the application of the Multilateral Trade
Agreements on existing Members, whereas Article XII regulates the process of acceding to … the
WTO Agreement by a prospective WTO Member." 433 These two provisions thus serve closely
related, albeit distinct, functions; they are not merely duplicative of each other. Read together,
they ensure that the fundamental principle of the single undertaking applies to both existing and
newly acceded Members of the WTO.
5.31. China argues that Article XII:1 indicates th at the authority of the Ministerial Conference to
adopt Member-specific WTO law "is not unbounded", but is "limited by the important requirement
that specific terms of accession must intrinsically relate to either the Marrakesh Agreement or one
of the Multilateral Trade Agreements annexed thereto". 434 According to China, its position

430 In contrast, pursuant to Article XII:3 of the Marrakesh Agreement, accession to the Plurilateral Trade
Agreements is not required for an applicant to become a WTO Member, but is governed by the provisions of
those agreements.
431 European Union's appellee's submission, para. 75.
432 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 1402.
433 Japan's appellee's submission, para. 213. (emphasis original)
434 China's appellant's submission, paras. 9, 66, and 83; other appellant's submission, paras. 9 and 57.
(emphases original)
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"follows … from the requirement in the second sentence of Article XII:1 that '[s]uch accession shall
apply to the [Marrakesh Agreement] and the Multilateral Trade Agreements annexed thereto', read
together with the important context provided by Paragraph 1.2, second sentence, of China's
Accession Protocol ."435 Thus, argues China, a proper reading of Article XII:1, second sentence,
"confirm[s] that China's Accession Protocol serves to specify, including by means of 'WTO-plus'
commitments, China's rights and obligations under the Marrakesh Agreement and the multilateral
trade agreements annexed thereto."436 China raised the same arguments before the Panel. 437 The
Panel, however, considered that China "misconstrue[d] the import of Article XII:1".438
5.32. We do not see a textual basis in Article XII:1 for China's proposition. As discussed above,
the term "[s]uch accession" in the second sentence of Article XII:1 refers to the legal act of
acceding to the Marrakesh Agreement specified in the first sentence. Thus, the second sentence
indicates that the legal act of accession must be operative with respect to the entire package of
WTO rights and obligations as set out in the Marrakesh Agreement and the Multilateral Trade
Agreements annexed thereto. It does not mean , as China's argument seems to suggest, that the
legal instrument embodying the "terms" of accession, or sp ecific provisions thereof, must "apply"
to, or somehow be directly incorporated into, these Agreements.
439
5.33. Moreover, our interpretation of Article XII:1, set out above, accords with the Panel's view
that the second sentence of Article XII:1 requ ires acceding Members not to "pick and choose"
among the various agreements, but to accept the Marrakesh Agreement and the Multilateral Trade
Agreements annexed thereto as a single undertaking. 440 As already discussed, Article XII:1
reinforces the principle of the single undertaking set out in Article II of the Marrakesh Agreement
by ensuring that an applicant seeking accession adheres to the same principle. 441 In our view, it
follows that the Panel rightly rejected China's argu ments concerning the import of Article XII:1. As
discussed above, Articles II and XII each serve a di stinct function, with the former setting out the
principle of the WTO single undertaking with regard to existing WTO Members, and the latter
extending the same principle to newly acceded Members. We therefore do not see the Panel's
interpretation of Article XII:1 as either "excessively narrow" or "essentially redundant".
442
5.34. In sum, Article XII:1 of th e Marrakesh Agreement provides the general rule for acceding to
the WTO. Its first sentence stipulates that accession is to be accomplished on "terms" to be agreed
between the acceding Member and the WTO, and its second sentence makes clear that such
accession applies to the entire package of WTO rights and obligations, consisting of the
Marrakesh Agreement and the Multilateral Trad e Agreements annexed thereto. Pursuant to
Article XII:1, while the substantive content of th e "terms" of accession is to be determined in
individual accessions, acquiring Membership in the WTO cannot be accomplished where an
applicant accepts to be bound by only some, but not all, of the Multilateral Trade Agreements in
the WTO framework. Article XII:1, however, does not define the nature of the substantive
relationship between the "terms" of accession, on the one hand, and the Marrakesh Agreement
and the Multilateral Trade Agreements annexed thereto, on the other hand. Rather, beyond the
general rule governing accession set out in its two sentences, Article XII:1 itself does not speak to
the question of the specific relationship between in dividual provisions of an accession protocol and
individual provisions of the Marrakesh Agreem ent and the Multilateral Trade Agreements. In
particular, Article XII:1, alone, does not create a substantive relationship, "intrinsic" or otherwise,
between provisions of China's Accession Protocol (such as Paragraph 11.3) and provisions of the
covered agreements (such as Article II or XI of th e GATT 1994). In this regard, we note that the
Marrakesh Agreement is the overarching institut ional agreement of the WTO, and Article XII
thereof does not directly address the question of the substantive relationship between individual

435 China's appellant's submission, para. 84.
436 China's appellant's submission, para. 84.
437 See paragraph 5.22 of these Reports.
438 Panel Reports, para. 7.91.
439 See China's appellant's submission, paras. 83 and 84.
440 Panel Reports, para. 7.91.
441 As the European Union contends on appeal, "the general principle of the single undertaking finds
expression in diverse provisions of the covered agreements, including the WTO Agreement, in different
contexts, and … these various subsequent references ar e not simply duplicative, redundant and ineffective."
(European Union's appellee's submission, para. 77) According to the European Union, such expression can also
be found in, inter alia, Article XIV (concerning acceptance, entry into force, and deposit) and Article XV
(concerning withdrawal). (Ibid., para. 78)
442 China's appellant's submission, para. 86; other appellant's submission, para. 61.
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provisions of a protocol of accession, on the one hand, and the provisions of the
Marrakesh Agreement and the Multilateral Trade Agreements, on the other hand. We turn now to
examine the other provision concerned by China's a ppeal – i.e. Paragraph 1.2 of China's Accession
Protocol – to see whether that provision provides further guidance on this relationship.
5.1.3.3 Paragraph 1.2 of China's Accession Protocol
5.1.3.3.1 Introduction
5.35. According to Paragraph 1.2 of China's A ccession Protocol, "[t]his Protocol, which shall
include the commitments referred to in paragraph 342 of the Working Party Report, shall be an
integral part of the WTO Agreement." Before the Panel, China argued that the reference to "the
WTO Agreement" in Paragraph 1.2 encompasses the Marrakesh Agreement and the Multilateral
Trade Agreements annexed thereto. In contrast, the complainants argued that the reference to
"the WTO Agreement" means the Marrakesh Agreement.
443 The Panel began its analysis of
Paragraph 1.2 by noting that the preamble of China's Accession Protocol refers to the
"WTO Agreement" as "the Marrakesh Agreement Establishing the World Trade Organization". The
Panel further noted that the Decision of the Mini sterial Conference of 10 November 2001 provides
that China "may accede to the Marrakesh Agreement Establishing the World Trade Organization on
the terms and conditions set out in the Protocol annexed to this decision".
444 The Panel contrasted
this with Paragraph 1.3 of China's Accession Protocol, which refers explicitly to "the Multilateral
Trade Agreements annexed to the WTO Agreement". The Panel provided several additional reasons
for its interpretation of Paragraph 1.2 of China's Accession Protocol. These reasons relate to the
Panel's examination of the text of Paragraph 1.2, the context provided by provisions of, inter alia,
China's Accession Protocol, China's Accession Working Party Report, the Marrakesh Agreement,
and the GATT 1994, and findings in prior cases involving China's Accession Protocol.
445 On this
basis, the Panel agreed with the complainants th at the term "the WTO Agreement", in the second
sentence of Paragraph 1.2, is a reference to th e Marrakesh Agreement rather than, as China had
argued, a reference to the Marrakesh Agreement together with the Multilateral Trade Agreements
annexed thereto.
446
5.36. After examining, and dismissing, China' s arguments relating to Article XII:1 of the
Marrakesh Agreement, the Panel confirmed its above conclusion by stating that:
… the legal effect of the second sentence of Paragraph 1.2 is to make China's
Accession Protocol, in its entirety, an "int egral part" of the Marrakesh Agreement, and
not that, in addition, the individual provis ions thereof are also integral parts of
Multilateral Trade Agreements annexed to the Marrakesh Agreement.447
5.37. On appeal, China seeks reversal of the Panel's finding quoted above, as well as two earlier
iterations of essentially the same content.448 In China's view, the Panel erred in its interpretation of
Paragraph 1.2, second sentence, of China's Acce ssion Protocol, because it failed properly to
interpret the meaning of "the WTO Agr eement" as used in that sentence. 449 In particular, China
maintains that the Panel's analysis of the term "the WTO Agreement" in Paragraph 1.2 "disregards"

443 In its submissions on appeal, the European Union uses the term "the WTO Agreement" to refer to the
Marrakesh Agreement Establishing the World Trade Organization, excluding its annexes. (See European Union's
appellee's submission, para. 46) Japan and the United States have largely used "the WTO Agreement" to refer
to the Marrakesh Agreement Establishing the World Trade Organization, excluding its annexes, although on
occasion they have also used "the Marrakesh Agreement" to refer to the same. (See e.g. Japan's appellee's
submission, para. 175; and United States' appellee's submission, fn 43 to para. 52) As explained supra, fns 56,
333, and 376, for purposes of these appeals and without prejudice to the legal issues raised by China on
appeal, we, like the Panel, use "the Marrakesh Agreement" to refer to the Marrakesh Agreement Establishing
the World Trade Organization excluding its annexes.
444 Panel Reports, para. 7.79 (quoting Accession of the People's Republic of China, Decision of the
Ministerial Conference of 10 November 2001, WT/L/432, p. 1).
445 Panel Reports, paras. 7.80-7.88.
446 Panel Reports, paras. 7.78 and 7.89.
447 Panel Reports, para. 7.93.
448 Panel Reports, paras. 7.80 and 7.89.
449 China's appellant's submission, para. 93.
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its context 450, and that the reasons provided by the Panel for its finding are characterized by
various flaws of law and logic.
5.38. The complainants submit that China's assertions regarding the Panel's errors in interpreting
Paragraph 1.2 of China's Accession Protocol are without merit. In their view, the Panel correctly
assessed the meaning of the second sentence of Paragraph 1.2 of China's Accession Protocol, and
its analysis was sound and grounded in the text and context of that provision. 451 In particular, the
European Union and Japan maintain that the Panel properly analysed the context provided by
other "integration" provisions in the covered agreements, such as Article II:2 of the Marrakesh
Agreement.452 The United States emphasizes that the Panel's interpretation does not, as China
suggests, preclude a specific provision of the Acce ssion Protocol from being an integral part of a
Multilateral Trade Agreement, but expressly recognizes that, where this occurs, it is a result of the
language of such provision, rather than as a result of Paragraph 1.2.453
5.1.3.3.2 The interpretation of Paragraph 1.2 of China's Accession Protocol
5.39. Paragraph 1.2 of China's Accession Protocol is the other provision China relies upon in
support of the proposition that each provision of China's Accession Protocol is an integral part of
the Marrakesh Agreement or one of the Multilatera l Trade Agreements to which it intrinsically
relates. China focuses on the phrase "an integral part of the WTO Agreement", and in particular
the term "the WTO Agreement", in support of it s position. We address the interpretation of
Paragraph 1.2 of China's Accession Protocol, and Ch ina's specific arguments relating thereto, in
this subsection. In the next subsection, we conduct an integrated analysis of the relevant
provisions, as well as China's arguments, in order to assess the relationship between provisions of
its Accession Protocol, on the one hand, an d those of the Marrakesh Agreement and the
Multilateral Trade Agreements annexed thereto, on the other hand.
5.40. The first three paragraphs of Part I of China's Accession Protocol provide:
Part I – General Provisions
1. General
1. Upon accession, China accedes to the WTO Agreement pursuant to Article XII of
that Agreement and thereby becomes a Member of the WTO.
2. The WTO Agreement to which China accedes shall be the WTO Agreement as
rectified, amended or otherwise modified by such legal instruments as may have
entered into force before the date of accession. This Protocol, which shall include the
commitments referred to in paragraph 342 of the Working Party Report, shall be an
integral part of the WTO Agreement.
3. Except as otherwise provided for in this Protocol, those obligations in the
Multilateral Trade Agreements annexed to the WTO Agreement that are to be
implemented over a period of time starting with entry into force of that Agreement
shall be implemented by China as if it had accepted that Agreement on the date of its
entry into force.
5.41. On appeal, China seeks to have us ascertain the meaning of the term "the WTO Agreement"
in the second sentence of Paragraph 1.2 of Ch ina's Accession Protocol. We first note that
Paragraph 1.2, second sentence, does not, itself, define this term. The immediate context of the
term "the WTO Agreement" is found in the remaining words of the same sentence. That sentence
states that the Protocol shall be "an integral part of the WTO Agreement". As noted above, the
dictionary meanings of the word "integral" include "[b]elonging to or making up a whole", and
"constituent, component; necessary to the comple teness or integrity of the whole, not merely

450 China's appellant's submission, para. 98.
451 European Union's appellee's submission, paras. 89-101; Japan's appellee's submission,
paras. 176-197; United States' appellee's submission, paras. 57-65.
452 European Union's appellee's submission, para. 91; Japan's appellee's submission, para. 181.
453 United States' appellee's submission, para. 67.
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attached".454 The term "integral part" is used frequently in the covered agreements in order to
integrate one or more agreements (or legal instruments) into another agreement. An example is
Article II:2 of the Marrakesh Agreement, which, as noted above, stipulates that the Multilateral
Trade Agreements included in Annexes 1, 2, and 3 "are integral parts of" the Marrakesh
Agreement, binding on all Members.
455
5.42. We turn now to the context provided by the first sentence of Paragraph 1.2, as well as
Paragraphs 1 and 3 of Part I of China's Accession Protocol, all of which contain references to "the
WTO Agreement". The first sentence of Paragraph 1.2 stipulates that: "[t]he WTO Agreement to
which China accedes shall be the WTO Agreement as rectified, amended or otherwise modified by
such legal instruments as may have entered into force before the date of accession." We note that
the reference to an agreement as "rectified, amen ded, or modified" is standard language also
found elsewhere in the WTO legal framework, including Article II:4 of the Marrakesh Agreement
and paragraph 1(a) of the language incorporating the GATT 1994 into Annex 1A.
456 In the context
of the first sentence of Paragraph 1.2 of China's Accession Protocol, the language makes clear that
"the WTO Agreement", to which China accedes, is the most recent version of that "Agreement",
including any rectification, amendment, or modification thereto. As we see it, by referring to
rectification, amendment, or modification that " may have entered into force"
457, the first sentence
of Paragraph 1.2 may properly be understood to cover the possibility that the Marrakesh
Agreement may have been rectified, amended, or modified during the period between 1995 and up
to the ratification of the accession protocol by the acceding Member. In this respect, we are not
persuaded by China's argument that the reference to "the WTO Agreement" in Paragraph 1.2, first
sentence, "must include the annexed multilateral trade agreements", because "[t]o interpret it
otherwise would mean that new Members would not necessarily accede to the latest versions of
those agreements".458 We recall that Article II:2 of the Marrakesh Agreement makes all Multilateral
Trade Agreements annexed thereto its "integral parts". Thus, by acceding to the WTO, a new
Member necessarily becomes bound by the Marrakesh Agreement and all Multilateral Trade
Agreements, as rectified, amended, or modified at the time of such accession. This analysis of the
provision, in our view, does not compel a conclusi on that "the WTO Agreement" must be read to
include, or exclude, references to the Multilateral Trade Agreements.
5.43. Turning to Paragraph 1.1 of China's Accession Protocol, we note that this provision states
that: "[u]pon accession, China accedes to the WTO Agreement pursuant to Article XII of that
Agreement and thereby becomes a Member of the WT O." Article XII of "that Agreement" refers to
Article XII of the Marrakesh Agreement, which, as discussed above, provides that any State or
separate customs territory possessing the requis ite authority "may accede to" the Marrakesh
Agreement. Hence, "the WTO Agreement" in Paragraph 1.1, to which "China accedes … pursuant to
Article XII "
459, also refers to the Marrakesh Agreement. To us, moreover, the syntax of
Paragraph 1.1 confirms that "the WTO Agreement" and "that Agreement" necessarily refer to the
same thing. China agrees that the term "that Agreement" in Paragraph 1.1 refers to the Marrakesh

454 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 1402.
455 The term "integral part" is also used in numerous other instances throughout the covered
agreements in which the relevant legal instruments are "made an integral part of" another covered agreement
or the agreements to which they are annexed. For example, Article 3.1 of the Agreement on Agriculture
provides that the domestic support and export subsidy commitments in Part IV of each Member's Schedule
"are hereby made an integral part of GATT 1994". In most other instances, references are made to annexes
being an "integral part" of the agreement to which they are annexed, similar to the reference to "integral
parts" in Article II:2 of the Marrakesh Agreement. For example, Article II:7 of the GATT 1994 states that:
"[t]he Schedules annexed to this Agreement are hereby made an integral part of Part I of this Agreement."
Other examples include Agreement on Agriculture, Article 21.2 (with respect to its annexes); Agreement on the
Application of Sanitary and Phytosanitary Measures (SPS Agreement), Article 1.3 (with respect to its annexes);
TBT Agreement, Article 15.5 (with respect to its annexes); Anti-Dumping Agreement, Article 18.7 (with respect
to its annexes); the Agreement on Subsidies and Countervailing Measures (SCM Agreement), Article 32.8 (with
respect to its annexes); Agreement on Implementation of Article VII of the General Agreement on Tariffs and
Trade 1994 (Agreement on Customs Valuation), Article 14 (with respect to its interpretative notes and
annexes); Agreement on Rules of Origin, Article 9.4 (with respect to the results of the harmonization work
programme to be established by the Ministerial Conference as an annex); and GATS, Article XX:3 (with respect
to the schedules of specific commitments) and Article XXIX (with respect to its annexes).
456 In both instances, the relevant agreement that may have been "rectified, amended or modified" is
the GATT 1947.
457 Emphasis added.
458 China's appellant's submission, para. 103.
459 Emphasis added.
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Agreement.460 China nonetheless argues that "the WTO Agreement" in the same sentence refers to
the Marrakesh Agreement together with its annexed Multilateral Trade Agreements. 461 Our above
analysis of Paragraph 1.1, however, does not support such a reading. We are therefore not
persuaded by China's argument that "the WTO Agreement" in Paragraph 1.1 refers to the
Marrakesh Agreement together with the Multilateral Trade Agreements annexed thereto.
5.44. In addition, Paragraph 1.3 of Part I of China's Accession Protocol states that, "[e]xcept as
otherwise provided for in this Protocol, those obligations in the Multilateral Trade Agreements
annexed to the WTO Agreement that are to be impl emented over a period of time starting with
entry into force of that Agreement shall be impl emented by China as if it had accepted that
Agreement on the date of its entry into force."
462 This provision thus concerns the timing of the
entry into force of those obligations in "the Multilateral Trade Agreements annexed to the
WTO Agreement" to which a transition period is attached. The juxtaposition of the "Multilateral
Trade Agreements" with "the WTO Agreement" in Paragraph 1.3 makes clear that the latter term
refers to the Marrakesh Agreement alone. We note that China does not dispute this reading of
Paragraph 1.3 of its Accession Protocol.
5.45. We also note that the Decision of the Ministerial Conference of 10 November 2001, which
appears on the first page of the document containing China's Accession Protocol, provides that
China "may accede to the Marrakesh Agreement Establishing the World Trade Organization on the
terms and conditions set out in the Protocol annexed to this decision".
463 The first recital of the
preamble of China's Accession Protocol, in turn , identifies the term "WTO Agreement" as the
abbreviation of "the Marrakesh Agreement Establishing the World Trade Organization". 464 This is
consistent with the editorial convention used th roughout the legal texts embodying the results of
the Uruguay Round of Multilateral Trade Negotiations. For example, the "General Interpretative
Note to Annex 1A" makes clear that the Marrakesh Agreement Establishing the World Trade
Organization is referred to as "the WTO Agreement" in the agreements contained in its
Annex 1A.
465
5.46. Thus, read in the immediate context of the remainder of the text of Paragraph 1.2, the
context provided by other provisions of Part I of China's Accession Protocol, as well as the context
provided by the Decision of the Ministerial Conference of 10 November 2001 to which China's
Accession Protocol is annexed and the preamble of China's Accession Protocol, it appears that the
term "the WTO Agreement" in the second sentence of Paragraph 1.2 may refer to the Marrakesh
Agreement, that is, to "the WTO Agreement" ex cluding the Multilateral Trade Agreements. At the
same time, an examination of the term "the WTO Agreement", as used throughout China's
Accession Protocol, indicates that the definition of "the WTO Agreement" contained in the preamble
does not necessarily preclude the annexed Multila teral Trade Agreements from also falling within
the scope of the term "the WTO Agreement" in so me instances. This term may, depending on the
specific context, include a reference to the annexed Multilateral Trade Agreements, or it may refer
to the Marrakesh Agreement alone. For example, as the Appellate Body found in China –
Publications and Audiovisual Products , the phrase "in a manner consistent with the
WTO Agreement" in the introductory clause of Pa ragraph 5.1 of China's Accession Protocol refers

460 China's response to questioning at the oral hearing.
461 China's appellant's submission, paras. 101 and 102.
462 This provision mirrors the language of Article XIV:2 of the Marrakesh Agreement, which provides
that:
A Member which accepts this Agreement after its entry into force shall implement those
concessions and obligations in the Multilateral Trade Agreements that are to be implemented
over a period of time starting with the entry into force of this Agreement as if it had accepted
this Agreement on the date of its entry into force.
463 Accession of the People's Republic of China, Decision of the Ministerial Conference of
10 November 2001, WT/L/432, p. 1.
464 The preamble states, in relevant part, that: "[t]he World Trade Organization ('WTO'), pursuant to the
approval of the Ministerial Conference of the WTO accorded under Article XII of the Marrakesh Agreement
Establishing the World Trade Organization ('WTO Agreement'), and the People's Republic of China ('China'), …
[a]gree as follows".
465 Other examples include paragraph 1 of the Final Act Embodying the Results of the Uruguay Round of
Multilateral Trade Negotiations ("… the Agreement Establ ishing the World Trade Organization (referred to in
this Final Act as the 'WTO Agreement') …"), and the first recital to the preamble of the Decision on the
Acceptance of and Accession to the Agreement Establishing the World Trade Organization ("Noting that
Articles XI and XIV of the Agreement Establishing the World Trade Organization (hereinafter referred to as
'WTO Agreement') …").
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to "the WTO Agreement as a whole, including its Annexes". 466 In contrast, where a specific
provision of "the WTO Agreement" is referred to, such as in the last sentence of Paragraph 18.1
(referring to "paragraph 5 of Article IV of the WTO Agreement"), the term is properly understood
in its narrow sense as the Marrakesh Agreement. Therefore, the term "the WTO Agreement", as
used in China's Accession Protocol, may have either a broad or a narrow connotation depending on
the context in which it is used.
5.47. In our view, the fact that the term "the WTO Agreement", as used throughout China's
Accession Protocol, may have both narrow and broa d connotations is consistent with the principle
of the single undertaking reflected in both Articles II:2 and XII:1 of the Marrakesh Agreement.
Under Article II:2 of the Marrakesh Agreement, the Multilateral Trade Agreements contained in the
annexes are all necessary components of the "same treaty"
467, and they, together, form a single
package of WTO rights and obligations. Furthermore, pursuant to Article XII:1, second sentence,
China must accede to this single package to become a Member of the WTO. In other words, the
Marrakesh Agreement is the umbrella under which all of the annexed Multilateral Trade
Agreements are united in a single package of rights and obligations. Bearing in mind this
fundamental architecture of the WTO system, whet her the term "the WTO Agreement" is, in any
given instance and in particular in the context of the second sentence of Paragraph 1.2,
understood in the broad sense (as the Marrakesh Agreement and the Multilateral Trade
Agreements annexed thereto), or in the narrow sense (as the Marrakesh Agreement alone), will
often be of limited consequence.
5.48. We recall that, in examining the second sentence of Paragraph 1.2, the Panel found that
"the term[] 'the WTO Agreement' … means that China's Accession Protocol is made an integral part
of the Marrakesh Agreement."
468 We note that this statement of the Panel is one intermediate step
leading to the Panel's finding that " the legal effect of the second sentence of Paragraph 1.2 is to
make China's Accession Protocol, in its entirety, an 'integral part' of the Marrakesh Agreement, and
not that, in addition, the individual provisions thereof are also integral parts of Multilateral Trade
Agreements annexed to the Marrakesh Agreement."469 Our above analysis suggests that the key to
understanding the legal effect of Paragraph 1.2 of China's Accession Protocol does not hinge on
whether the term "the WTO Agreement" in the second sentence of Paragraph 1.2 refers, in the
narrow sense, to the Marrakesh Agreement alone, or whether it refers in the broader sense to the
entire WTO legal framework, consisting of the Marrakesh Agreement and its "integral parts", the
Multilateral Trade Agreements.
5.49. In other words, and importantly, we do not consider that determining the scope of the term
"the WTO Agreement" in Paragraph 1.2 was dispositive of the key legal question before the Panel,
that is, the specific relationship between individual provisions of China's Accession Protocol and the
individual provisions of the Marrakesh Agreem ent and the Multilateral Trade Agreements. The
operative term of Paragraph 1.2 – i.e. "an integral part", together with Article XII:1 of the
Marrakesh Agreement – serves the function of integrating China's Accession Protocol into the
single package of WTO rights and obligations, ju st as Article II:2 of the Marrakesh Agreement
serves the same function with regard to the Multilateral Trade Agreements. As a result of
Paragraph 1.2 of China's Accession Protocol ther efore, the Marrakesh Agreement, the Multilateral
Trade Agreements, and China's Accession Protocol together form one package of rights and
obligations that must be read in conjunction.
5.50. Paragraph 1.2 of China's Accession Protocol, and in particular its stipulation that the
Protocol is to be an "integral part" of "the WT O Agreement", essentially serves to build a bridge
between the package of protocol provisions and the existing package of WTO rights and obligations
under the Marrakesh Agreement and the Multilater al Trade Agreements. The bridge created by
Paragraph 1.2 between the protocol provisions and the existing package of rights and obligations
under the WTO legal framework, however, is of a general nature. The fact that such a bridge exists
does not in itself answer the question as to how individual provisions in China's Accession Protocol

466 Appellate Body Report, China – Publications and Audiovisual Products, para. 222. China provided the
following list of provisions of its Accession Protocol in which "the WTO Agreement" refers to one or more of the
Multilateral Trade Agreements: 1.2, 2.A.1, 2.A.3, 4, 5.1, 6.1, 7.1, 8.1, 13.3, 17, 18.1 (first sentence), 18.2,
and 18.3, and Annex 7. (China's opening statement at the oral hearing; China's appellant's submission,
para. 105)
467 Appellate Body Report, Argentina – Footwear (EC), para. 81.
468 See Panel Reports, para. 7.80.
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are related or linked to individual provisions of the other WTO agreements. More specifically, this
bridge does not dispense with the need to an alyse, on a case-by-case basis, the specific
relationship between an individual provision in the Protocol, on the one hand, and provisions of the
Marrakesh Agreement and the Multilateral Trade Agreements, on the other hand.
5.51. As further discussed in the next subsection, the question as to whether a provision in
China's Accession Protocol has an objective link to China's obligations under the GATT 1994, or
whether the exceptions under the GATT 1994 may be invoked to justify a breach of such provision,
cannot be answered on the basis of Paragraph 1.2 of China's Accession Protocol alone, which is a
general provision. Rather, to answer such specific and substantive questions, a thorough analysis is
required regarding the relevant provisions, starting with the text of the relevant provision in
China's Accession Protocol and taking into account its context, including that provided by the
Protocol itself, and by relevant provisions of the Accession Working Party Report, and by the
agreements within the WTO legal framework. The an alysis must also take into account the overall
architecture of the WTO system as a single pa ckage of rights and obligations and any other
relevant interpretative elements, and must be applied to the circumstances of each dispute,
including the measure at issue and the nature of the alleged violation.
5.1.3.4 The relationship between China's A ccession Protocol, on the one hand, and the
Marrakesh Agreement and the Multilateral Tr ade Agreements annexed thereto, on the
other hand
5.52. As discussed in the previous subsection, Pa ragraph 1.2 of China's Accession Protocol serves
to build a bridge between the package of protocol provisions and the exis ting package of rights
and obligations under the WTO legal framework. As a result, the Marrakesh Agreement, the
Multilateral Trade Agreements, and China's Accession Protocol together form one package of rights
and obligations that must be read in conjunction. In order to understand how specific provisions
within this package relate to one another, we cons ider it useful first to examine the relationship
among specific provisions within this package created by Article II:2 of the Marrakesh Agreement.
5.53. As has been established in a number of disp utes to date, the mere fact that each of the
Multilateral Trade Agreements is an integral part of the Marrakesh Agreement by virtue of
Article II:2 of the Marrakesh Agreement does not, in and of itself, answer the question as to how
specific rights and obligations contained in those Multilateral Trade Agreements relate to each
other, particularly when they are contained in different instruments that nevertheless relate to the
same subject matter. For example, in Argentina – Footwear (EC) , the Appellate Body noted that,
pursuant to Article II:2 of the Marrakesh Agreement, "[t]he GATT 1994 and the Agreement on
Safeguards … are both 'integral parts' of the same treaty, the WTO Agreement".
470 Therefore, "the
provisions of Article XIX of the GATT 1994 and the provisions of the Agreement on Safeguards are
all provisions of" that treaty.471 Noting that they "relate to the same thing", namely, the application
of safeguard measures, the Appellate Body endorsed the panel's view that "Article XIX of GATT and
the Agreement on Safeguards must a fortiori be read as representing an inseparable package of
rights and disciplines which have to be considered in conjunction". 472 The Appellate Body went on
to review the panel's finding regarding the relationship between Article XIX of the GATT 1994 and
the Agreement on Safeguards, including arguments that "all the requirements of Article XIX
(including the criterion of 'unforeseen developm ents') are subsumed by the provisions of the
Safeguards Agreement".
473 The panel concluded "that safeguard investigations conducted and
safeguard measures imposed after the entry into force of the WTO agreements which meet the

470 Appellate Body Report, Argentina – Footwear (EC), para. 81. (emphasis original)
471 Appellate Body Report, Argentina – Footwear (EC), para. 81. (emphasis original)
472 Appellate Body Report, Argentina – Footwear (EC), para. 81 (quoting Panel Report, Argentina –
473 Panel Report, Argentina – Footwear (EC), para. 8.51. The panel attached significant interpretative
weight to the fact that the Uruguay Round negotiators "expressly omitted" the "unforeseen developments"
clause in Article XIX of the GATT 1994 from Article 2 of the Agreement on Safeguards. (Appellate Body Report,
Argentina – Footwear (EC), para. 97 (referring to Panel Report, Argentina – Footwear (EC), para. 8.58))
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requirements of the new Safeguards Agreement satisfy the requirements of Article XIX of
GATT".474
5.54. The Appellate Body examined relevant prov isions of both agreements, including Articles 1
and 11.1(a) of the Agreement on Safeguards, which describe "the precise nature of the
relationship" between Article XIX of the GATT 1994 and the Agreement on Safeguards within the
WTO legal framework, as well as Article 2 of the Agreement on Safeguards, and Article XIX of the
GATT 1994.
475 The Appellate Body found nothing in the language of the Agreement on Safeguards
suggesting that the negotiators intended to "subsume" the requirements of Article XIX of the
GATT 1994 within the Agreement on Safeguards. 476 Rather, the Appellate Body found that "the
ordinary meaning of Articles 1 and 11.1(a) of the Agreement on Safeguards confirms that the
intention of the negotiators was that the provis ions of Article XIX of the GATT 1994 and of the
Agreement on Safeguards would apply cumulatively."477 The Appellate Body considered that this
understanding was supported by the relevant cont ext of these provisions, the object and purpose
of Article XIX of the GATT 1994 and of the Agreement on Safeguards, and the General
Interpretative Note to Annex 1A. On this basis, the Appellate Body reversed the panel's finding
that safeguard measures that are consistent with the Agreement on Safeguards necessarily satisfy
all of the requirements of Article XIX of the GATT 1994, including the "unforeseen developments"
requirement that is not mentioned in the Agreement on Safeguards.
478
5.55. This jurisprudence indicates that the specific relationship among individual terms and
provisions of the Multilateral Trade Agreements , and between such provisions and the Marrakesh
Agreement, must be determined on a case-by-case basis through a proper interpretation of the
relevant provisions of these agreements. In other words, this specific relationship must be
ascertained through scrutiny of the provisions concerned, read in the light of their context and
object and purpose, with due account being taken of the overall architecture of the WTO system as
a single package of rights and obligations, and any sp ecific provisions that govern or shed light on
the relationship between the provisions of different instruments (such as the General
Interpretative Note to Annex 1A).
5.56. In some instances, such examination will lead to the conclusion that exceptions in one
covered agreement, such as Article XX of the GATT 1994, may be invoked to justify a breach of an
obligation set forth elsewhere than in the GATT 1994. In principle, different types of provisions and
circumstances may lead to such a conclusion. One clear example is found in Article 3 of the
Agreement on Trade-Related Investment Measur es (TRIMs Agreement), the express terms of
which provide that "[a]ll exceptions under GATT 1994 shall apply, as appropriate, to the provisions
of this Agreement." In other instances, such exam ination may lead to the opposite conclusion. For
example, Article XX of the GATT 1994 has been found by the Appellate Body not to be available to
justify a breach of the Agreement on Tec hnical Barriers to Trade (TBT Agreement).
479 In many
instances, no express language identifying the relationship between specific terms and provisions
of a Multilateral Trade Agreement with those of another Multilateral Trade Agreement or the
Marrakesh Agreement is found in the agreements at issue. Where this is so, recourse to other
interpretative elements will be necessary to determine the specific relationship among individual
terms and provisions of the Multilateral Trade Agreements, and between su ch provisions and the
Marrakesh Agreement.
5.57. Just as the Multilateral Trade Agreements ar e an integral part of the Marrakesh Agreement,
and, thereby, of the single package of WTO righ ts and obligations, so too is China's Accession
Protocol an integral part of the same packag e. Thus, like the approach to ascertaining the
relationship among provisions of the Multilateral Trade Agreements, the specific relationship

474 Panel Report, Argentina – Footwear (EC), para. 8.69. In that dispute, the panel reasoned that, since
it "must give meaning to the fact that the new Safeguards Agreement does not in so many words make a
single reference to the unforeseen developments condition [in Article XIX of the GATT 1994], conformity with
the explicit requirements and conditions embodied in the Safeguards Agreement must be sufficient for the
application of safeguard measures within the meaning of Article XIX of GATT." (Panel Report, Argentina –
Footwear (EC), para. 8.67)
475 Appellate Body Report, Argentina – Footwear (EC), para. 82.
476 Appellate Body Report, Argentina – Footwear (EC), para. 83. (emphasis omitted)
477 Appellate Body Report, Argentina – Footwear (EC), para. 89. (emphasis original)
478 Appellate Body Report, Argentina – Footwear (EC), para. 97. The Appellate Body reached a similar
finding in Korea – Dairy. (See Appellate Body Report, Korea – Dairy, paras. 76-90)
479 See Appellate Body Report, US – Clove Cigarettes, paras. 96 and 101.
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between the provisions of China's Accession Protocol, on the one hand, and the provisions of the
Marrakesh Agreement and the Multilateral Trade Agreements, on the other hand, must also be
determined on a case-by-case basis through a prop er interpretation of all relevant provisions.
Neither obligations nor rights may be automatically transposed from one part of the legal
framework into another. Rather, the questions of whether a particular protocol provision at issue
has an objective link to specific obligations und er the Marrakesh Agreement and the Multilateral
Trade Agreements, and whether the exceptions under those agreements may be invoked to justify
a breach of such protocol provision, must be an swered on a case-by-case basis. They must be
ascertained through a thorough analysis of the relevant provisions on the basis of the customary
rules of treaty interpretation, as well as the circumstances of each dispute.
5.58. In some circumstances, this examination will lead to the conclusion that Article XX may be
invoked to justify a breach of a provision of China's Accession Protocol. For example, in China –
Publications and Audiovisual Products
480, the Appellate Body scrutinized the meaning and effect of
Paragraph 5.1 of China's Accession Protocol and th e rights and obligations specified therein. The
Appellate Body reasoned that the phrase "right to regulate trade in a manner consistent with the
WTO Agreement" in the introductory clause of Paragraph 5.1 encompasses not only rights that the
covered agreements affirmatively recognize as accruing to WTO Members, but also certain rights
to take regulatory action pursuant to relevant exceptions, such as Article XX of the GATT 1994. In
this respect, the Appellate Body observed that "the obligations assumed by China in respect of
trading rights, which relate to traders, and the obligations imposed on all WTO Members in respect
of their regulation of trade in goods, [are] closely intertwined".
481 The Appellate Body found that
this close relationship is confirmed by the text of Paragraph 5.1 itself, by the context of
Paragraph 5.1 (including China's Accession Working Party Report), and by past panel and
Appellate Body reports in which measures that did not directly regulate goods, or the importation
of goods, were nonetheless found to contravene GATT obligations.
482 The Appellate Body
considered that "the introductory clause of pa ragraph 5.1 cannot be interpreted in a way that
would allow a complainant to deny China access to a defence merely by asserting a claim under
paragraph 5.1 and by refraining from asserting a claim under other provisions of the covered
agreements relating to trade in goods that apply to the same or closely linked measures , and
which set out obligations that are closely linked to China's trading rights commitments."483
5.59. In these circumstances, the Appellate Body found that, "whether China may, in the absence
of a specific claim of inconsistency with the GATT 1994, justify its measure under Article XX of the
GATT 1994 must in each case depend on the relationship between the measure found to be
inconsistent with China's trading rights commitments, on the one hand, and China's regulation of
trade in goods, on the other hand."
484 The Appellate Body found, furthermore, that "[w]hether a
measure regulating those who may engage in the import and export of goods falls within the scope
of China's right to regulate trade may also depend on whether the measure has a clearly
discernable, objective link to the regulation of trade in the goods at issue."485
5.60. Based on its reading of the introductory clause of Paragraph 5.1 of China's Accession
Protocol in its context, and having found the specific measures at issue to have "a clearly

480 In that dispute, China claimed that the introductory clause of Paragraph 5.1 of its Accession Protocol
allowed it to justify provisions of its measures found to be inconsistent with its trading rights commitments as
necessary to protect public morals in China within the meaning of Article XX(a) of the GATT 1994. The first
three sentences of Paragraph 5.1 read:
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 trade, so
that, within three years after accession, all enterprises in China shall have the right 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. Such right to trade shall
be the right to import and export goods. All such goods shall be accorded national treatment
under Article III of the GATT 1994, especially paragraph 4 thereof, in respect of their internal
sale, offering for sale, purchase, transportation, distribution or use, including their direct access
to end-users.
481 Appellate Body Report, China – Publications and Audiovisual Products, para. 226.
482 Appellate Body Report, China – Publications and Audiovisual Products, paras. 226 and 227.
483 Appellate Body Report, China – Publications and Audiovisual Products, para. 229. (fn omitted;
emphasis added)
484 Appellate Body Report, China – Publications and Audiovisual Products, para. 229.
485 Appellate Body Report, China – Publications and Audiovisual Products, para. 230.
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discernable, objective link" to China's regulation of trade in the relevant products 486, the
Appellate Body found that China may seek to justify a breach of its trading rights obligations under
Paragraph 5.1 as necessary to protect public morals in China, within the meaning of Article XX(a)
of the GATT 1994.
487 The Appellate Body reached this fi nding even though Article XX of the
GATT 1994 was not expressly referenced in the first sentence of Paragraph 5.1. In so finding, the
Appellate Body was particularly wary of, and refrained from adopting, an interpretation that "would
allow a complainant to deny China access to a defence merely by asserting a claim under
paragraph 5.1 and by refraining from asserting a claim under other provisions of the covered
agreements relating to trade in goods that appl y to the same or closely linked measures, and
which set out obligations that are closely linked to China's trading rights commitments."
488 The
Appellate Body's finding was thus based on a thorough analysis of the text and context of
Paragraph 5.1, as well as the circumstances in that dispute, including the specific measure subject
to China's commitment under Paragraph 5.1, and how this commitment related to China's right to
regulate trade.
5.61. The Appellate Body's findings in China – Publications and Audiovisual Products comport with
our understanding that a case-by-case analysis is required to determine the specific relationship
between an individual provision in China's Accessi on Protocol, on the one hand, and provisions of
the Marrakesh Agreement and the Multilateral Trade Agreements, on the other hand, including
whether Article XX of the GATT 1994 can be invoked to justify a breach of a Protocol provision. As
discussed in the previous subsection, Paragraph 1.2 of China's Accession Protocol essentially
serves to build a bridge between the package of Protocol provisions and the package of existing
rights and obligations under the Marrakesh Agreement and the Multilateral Trade Agreements. This
bridge, however, is only the starting point when examining the question as to whether an objective
link exists between the specific obligations under China's Accession Protocol and the relevant
covered agreement, or whether a breach of th e former may be justified under an exception
contained in the latter. Notably, under the approach adopted by the Appellate Body, express
textual references, or the lack thereof, to a covered agreement (such as the GATT 1994), a
provision thereof (such as Article VIII or Article XX of the GATT 1994), or "the WTO Agreement" in
general, are not dispositive in and of themselves.
5.62. In our view, therefore, questions of whethe r a particular protocol provision at issue has an
objective link to specific obligations under th e Marrakesh Agreement and the Multilateral Trade
Agreements, and of whether the exceptions under those agreements may be invoked to justify a
breach of such protocol provision, must be answ ered through a thorough analysis of the relevant
provisions on the basis of the customary rules of treaty interpretation and the circumstances of the
dispute. The analysis must start with the text of the relevant provision in China's Accession
Protocol and take into account its context, includ ing that provided by the Protocol itself and by
relevant provisions of the Accession Working Pa rty Report, and by the agreements in the WTO
legal framework. The analysis must also take into account the overall architecture of the WTO
system as a single package of rights and obligations and any other relevant interpretative
elements, and must be applied to the circumstan ces of each dispute, including the measure at
issue and the nature of the alleged violation.
5.63. As the findings in China – Raw Materials also indicate, the existence of an express reference
to a GATT provision (Article VIII of the GATT 1994) in a protocol provision does not compel the
conclusion that Article XX of the GATT 1994 is available to justify a breach of the protocol
provision. Nor was the Appellate Body's conclusion based solely on the absence of textual
references to Article XX of the GATT 1994. In those disputes, the Appellate Body applied the same
analytical approach as in China – Publications and Audiovisual Products
489, but reached a different
conclusion following its assessment of the specific provision of China's Accession Protocol at issue,
read in its context and within the structure of the Protocol and the GATT 1994. The Appellate Body
observed that Paragraph 11.3 of China's Accession Protocol requires China to "eliminate all taxes
and charges applied to exports" unless one of the fo llowing conditions is satisfied: (i) such taxes
and charges are "specifically provided for in Annex 6 of this Protocol"; or (ii) such taxes and

486 Appellate Body Report, China – Publications and Audiovisual Products, para. 230.
487 Appellate Body Report, China – Publications and Audiovisual Products, para. 233. After reviewing the
merits of China's claims under Article XX(a) of the GATT 1994, the Appellate Body ultimately found that China's
measures were not justified under this provision. (Ibid., paras. 336 and 337)
488 Appellate Body Report, China – Publications and Audiovisual Products, para. 229. (fn omitted)
489 Appellate Body Reports, China – Raw Materials, para. 291.
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charges are "applied in conformity with the provisions of Article VIII of the GATT 1994". The
Appellate Body examined a number of textual and contextual elements and reached its conclusion
on the basis of a holistic analysis of all elemen ts. First, the Appellate Body noted that Annex 6
specifically provides for maximum export duty levels on 84 listed products, which did not include
the products at issue in that appeal. Annex 6 clarifies that the maximum rates set out therein "will
not be exceeded" and that China will "not increase the presently applied rates, except under
exceptional circumstances ".490 In the light of the rule and exception clearly prescribed in
Paragraph 11.3 and Annex 6, in particular the reference to "exceptional circumstances", the
Appellate Body had difficulty reading Paragraph 11.3 and Annex 6 as allowing, in addition,
recourse to Article XX of the GATT 1994 either to justify the imposition of export duties on
products that are not listed in Annex 6 or to justify the imposition of export duties on listed
products in excess of the maximum levels set forth in Annex 6.
491
5.64. In addition, the Appellate Body considered the relevance of the reference to Article VIII of
the GATT 1994 in Paragraph 11.3. The Appellate Body noted that Article VIII of the GATT 1994
excludes export duties from its scope of application. Consequently, the Appellate Body found that
"the fact that Article XX may be invoked to justify those fees and charges regulated under
Article VIII does not mean that it can also be invoked to justify export duties, which are not
regulated under Article VIII." 492 The Appellate Body also contrasted the narrow and specific
language of Paragraph 11.3, which refers to Article VIII of the GATT 1994 alone, with the broader
references in Paragraphs 11.1 and 11.2, which require China to ensure that certain fees, taxes, or
charges are "in conformity with the GATT 1994". Furthermore, the Appellate Body rejected China's
argument that, unless China expressly "abandons" such right, China has an inherent right to
regulate trade either by complying with affirmat ive obligations or by complying with exceptions.
493
For the Appellate Body, China's arguments could not be reconciled with the Appellate Body's
approach in China – Publications and Audiovisual Products , confirming that such right must be
established on the basis of a careful analysis of the relevant provisions at issue, their proper
context, as well as the nature of the measure at issue.
494
5.65. Thus, the Appellate Body's analysis in China – Raw Materials was not limited to the text of
Paragraph 11.3 alone. Rather, the Appellate Body also relied on the context provided by Annex 6 of
China's Accession Protocol, Article VIII of the GATT 1994, and the relevant structure of the
Accession Protocol, including the specific exceptions to China's obligations to eliminate export
duties. On this basis, the Appellate Body concluded that "a proper interpretation of Paragraph 11.3
of China's Accession Protocol does not make ava ilable to China the exceptions under Article XX of
the GATT 1994".495 In the present appeals, no participant has challenged the Appellate Body's
ruling in China – Raw Materials or the same conclusion reached by the Panel in these disputes. 496
We also see no reason to revisit the ruling of the Appellate Body in China – Raw Materials.
5.66. Having conducted the above analysis rega rding the relationship between, on the one hand,
provisions of China's Accession Protocol and, on the other hand, provisions of the Marrakesh
Agreement and the Multilateral Trade Agreements annexed thereto, we turn to examine specific
arguments of China in this respect. We recall that, according to China's interpretation, Article XII:1
of the Marrakesh Agreement and Paragraph 1.2 of China's Accession Protocol, read together,
indicate that specific Protocol provisions are to be treated as integral parts of either the Marrakesh
Agreement or one of the Multilateral Trade Agreements, depending on the subject matter to which
they "intrinsically relate".
497 The complainants maintain that China's "intrinsic relationship" test is
devoid of any textual support in China's Accession Protocol, the Marrakesh Agreement, or the
Multilateral Trade Agreements.498 Japan and the United States emphasize the speculative nature of

490 Appellate Body Reports, China – Raw Materials, para. 284. (emphasis added)
491 Appellate Body Reports, China – Raw Materials, paras. 284 and 285.
492 Appellate Body Reports, China – Raw Materials, para. 290.
493 Appellate Body Reports, China – Raw Materials, paras. 300-306.
494 Appellate Body Reports, China – Raw Materials, paras. 300-304.
495 Appellate Body Reports, China – Raw Materials, para. 307.
496 Panel Reports, para. 7.115.
497 See China's appellant's submission, para. 114; and other appellant's submission, para. 67.
498 European Union's appellee's submission, para. 100; Japan's appellee's submission, para. 171;
United States' appellee's submission, para. 43.
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this proposed test, and the uncertainty that it would generate regarding the meaning and scope of
accession commitments.499
5.67. In these disputes, China has not precisely defined the meaning and scope of its "intrinsic
relationship" test, and its arguments in this respect have evolved during the Panel and appellate
proceedings. For example, in its first written submission to the Panel, China identified only
Article XI of the GATT 1994 as the provision to which Paragraph 11.3 of its Accession Protocol
intrinsically relates.
500 China subsequently added Article II of the GATT 1994 as another provision
to which Paragraph 11.3 intrinsically relates. 501 In its written submissions on appeal, China's
arguments suggest that its "intrinsic" relationship test is based on the "subject matter" of the
respective provisions in China's Accession Prot ocol and the Marrakesh Agreement or one of the
Multilateral Trade Agreements
502, although those written submissions contain no reference to
either Paragraph 11.3 or Articles II and XI of the GATT 1994. At the oral hearing, China added that
"the label used to describe this relationship – whether one talks of 'intrinsic relationship',
'conceptual unity', or 'shared subject matter' – is of no consequence."
503
5.68. Thus, China has not provided a clear definition of the "intrinsic relationship" test that it
proposes, and the various permutations of its arguments make the precise contour of this test
unclear. In any event, our interpretation set out above does not support the view that an inquiry
into the relationship between an individual provision of China's Accession Protocol and provisions
of the Marrakesh Agreement and the Multilateral Trade Agreements must start from the premise
that such provision is "intrinsically related" to some other provision(s). As discussed above, the
general provision of Paragraph 1.2, while buildi ng a bridge between the package of Protocol
provisions and the package of existing rights and obligations under the WTO legal framework, does
not resolve the question as to how an individual provision of China's Accession Protocol relates to
those under the other agreements. Rather, the sp ecific relationship between the two must be
ascertained through a thorough analysis of the relevant provisions, on the basis of the customary
rules of treaty interpretation and the circumstance s of each dispute. Therefore, China's position
that a provision in its Accession Protocol is necessarily an integral part of either the Marrakesh
Agreement or one of the Multilateral Trade Agreements by virtue of an "intrinsic relationship", and
in particular its position that the applicability of Article XX of the GATT 1994 arises from the
"intrinsic relationship" alone, sits uncomfortably with our interpretation set out above that rights
and obligations cannot be automatically transposed from one part of the WTO legal framework to
another.
504
5.69. China has submitted several additional ar guments in support of its understanding of the
relationship between China's Accession Protocol , on the one hand, and the Marrakesh Agreement
and the annexed Multilateral Trade Agreements, on the other hand. For example, China has sought
to differentiate its Accession Protocol from the Multilateral Trade Agreements by arguing that,
unlike those agreements, its Protocol is not a "self-contained agreement".
505 China emphasizes, in
this regard, that its Accession Protocol does not "include most of the important features that many
of the Multilateral Trade Agreements possess, such as proper general exceptions, security
exceptions, or a modification clause".
506 Furthermore, at the oral hearing, China contended for the
first time that, where a given accession provision "stands in conflict" with one or more provisions
in the Marrakesh Agreement or the Multilateral Trade Agreements annexed thereto, such conflict is

499 Japan's appellee's submission, paras. 171, 172, 216, and 220; United States' appellee's submission,
paras. 32 and 75.
500 See China's first written submission to the Panel, para. 432.
501 See China's response to the complainants' comments on its request for a preliminary ruling on the
availability of Article XX of the GATT 1994, para. 21.
502 China's appellant's submission, para. 9.
503 China's opening statement at the oral hearing.
504 For these reasons, we also see no basis for the opinion of the dissenting panelist in these disputes
that "the defences provided in the GATT 1994 are automatically available to justify any GATT-related
obligations, including border tariff-related obligations – unless a contrary intention is expressed by the
acceding Member and WTO Members". (Panel Reports, para. 7.137) Indeed, the Appellate Body rejected
arguments by China to this effect in China – Raw Materials. (Appellate Body Reports, China – Raw Materials,
paras. 300 and 303-306)
505 China's appellant's submission, paras. 6, 10, 61, 63, and 111; other appellant's submission, paras. 6,
10, 54, and 64.
506 China's appellant's submission, para. 62; other appellant's submission, fn 16 to para. 64.
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resolved according to the "later-in-time" rule under Article 30(3) of the Vienna Convention. 507 This
means that, to the extent that specific provisions under post-1994 accession protocols conflict with
pre-existing provisions of the Marrakesh Agreem ent or the Multilateral Trade Agreements annexed
thereto, the provisions of the accession protocol must prevail to the extent of the conflict. To
illustrate, China points to Paragraph 11.3 of its Accession Protocol and Article XI:1 of the
GATT 1994. China explains that, pursuant to Article 30(3) of the Vienna Convention, Article XI:1 of
the GATT 1994 "has been modified by Paragraph 11.3 of China's Accession Protocol", such that
"China, unlike other Members, cannot freely impose export duties under Article XI:1 of the
GATT 1994".
508
5.70. These arguments, and the concepts on whic h they are based, were not elaborated by China
and do not, in our view, comport well with the analysis that we have set out above. We do not, for
example, see the term "self-contained agreements " as an apt descriptor of the integrated WTO
framework, or of any of the agreements contained therein. 509 In any event, as discussed above,
Paragraph 1.2 of China's Accession Protocol, together with Article XII:1 of the Marrakesh
Agreement, means that the Marrakesh Agreement, the Multilateral Trade Agreements, and China's
Accession Protocol together form a single package of rights and obligations. 510 Within this single
package, whether an instrument can be characterized as a "self-contained agreement", or not,
seems to us to be of limited relevance for the question before us (that is, the specific relationship
between a Protocol provision and provisions of a covered agreement). In the same vein, we do not
consider Article 30(3) of the Vienna Convention to be apposite for understanding the relationship
between the different components of this single package of rights and obligations, all of which
form part of "the same treaty"511 to which China acceded in 2001.
5.1.3.5 Conclusion
5.71. We have found that the first sentence of Article XII:1 of the Marrakesh Agreement sets out
the general rule for acceding to the WTO, whereby an applicant may accede to the Marrakesh
Agreement on "terms to be agreed" by the applicant and the WTO. The second sentence of
Article XII:1 further provides that the act of acceding to the WTO must apply to both the
Marrakesh Agreement and the Multilateral Trade Agreements annexed thereto. Article XII:1,
second sentence, thus reflects the fundamental principle of the single undertaking established
under Article II:2 of the Marrakesh Agreement, wh ereby the Multilateral Trade Agreements are all
"integral parts" of the Marrakesh Agreement. Article XII:1 does not contain any further elaboration
on what the "terms" of accession should be, and does not provide specific guidance on how these
terms relate to the rights and obligations und er the Marrakesh Agreement and the Multilateral
Trade Agreements. To understand how they relate to each other, further inquiry is needed.
5.72. The "terms" of China's accession are spelt out in China's Accession Protocol and those
specific commitments of China's Accession Working Party Report that are incorporated into its
Accession Protocol. Pursuant to Paragraph 1.2 of China's Accession Protocol, the Protocol, in its
entirety, is made "an integral part of the WTO Agreement". When used in different contexts in
China's Accession Protocol, the term "the WTO Agreement" may refer narrowly to the Marrakesh
Agreement alone, or it may refer broadly to the Marrakesh Agreement together with the
Multilateral Trade Agreements annexed thereto. We consider this to be consistent with the fact
that, pursuant to Article II:2 of the Marrakesh Ag reement, all the Multilateral Trade Agreements
constitute integral parts of the Marrakesh Agreem ent. They together make up the same treaty,
representing a single package of rights an d obligations. In our view, whether the term
"the WTO Agreement", as used in Paragraph 1.2, second sentence, of China's Accession Protocol,
is referring to the narrow or broad connotation of the term is not dispositive of our understanding
of the legal effect of Paragraph 1.2. Rather, the operative term of Paragraph 1.2 is "an integral
part". Thus, just as Article II:2 of the Marrakesh Agreement makes the Multilateral Trade
Agreements integral parts of the single package of WTO rights and obligations, Paragraph 1.2 of

507 Article 30(3) of the Vienna Convention states: "When all the parties to the earlier treaty are parties
also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the
earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty."
508 China's opening statement at the oral hearing.
509 As all three complainants point out, the concept of "self-contained agreements" introduced by China
is not found anywhere in the covered agreements. (See European Union's appellee's submission, para. 86;
Japan's appellee's submission, para. 175; and United States' appellee's submission, para. 71)
510 See paragraph 5.49 of these Reports.
511 Appellate Body Report, Argentina – Footwear (EC), para. 81.
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China's Accession Protocol makes China's Accession Protocol, in its entirety, an integral part of the
same package. Together, China's Accession Protoc ol and the other agreements that make up the
same undertaking form a single package of rights and obligations with respect to China as a WTO
Member.
5.73. For these reasons, we decline to accept Ch ina's interpretation of Paragraph 1.2 of China's
Accession Protocol and Article XII:1 of the Marrakesh Agreement as meaning that a specific
provision in China's Accession Protocol is an integral part of the Marrakesh Agreement or one of
the Multilateral Trade Agreements to which it intrinsically relates. Instead, we find that the Panel
did not err in concluding that the legal effect of the second sentence of Paragraph 1.2 and
Article XII:1 of the Marrakesh Agreement is not that the individual provisions of China's Accession
Protocol are integral parts of Multilateral Trade Agreements annexed to the
Marrakesh Agreement.
512 W e r e c a l l t h a t t h e P a n e l a l s o e x p ressed the view that the term "the
WTO Agreement" in Paragraph 1.2 refers to the Marrakesh Agreement. 513 However, as discussed
above, whether the term "the WTO Agreement" in Paragraph 1.2 is understood in its narrow or
broad sense is not dispositive of the issue regarding the relationship between a specific provision
of China's Accession Protocol and provisions of the Marrakesh Agreement and the Multilateral Trade
Agreements annexed thereto. We therefore find it unnecessary to opine on the scope of the term
"the WTO Agreement" in the second sentence of Paragraph 1.2 of China's Accession Protocol.
5.74. In our view, Paragraph 1.2 of China's Accession Protocol serves to build a bridge between
the package of Protocol provisions and the packag e of existing rights and obligations under the
WTO legal framework. Nonetheless, neither obligations nor rights may be automatically transposed
from one part of this legal framework into another. The fact that Paragraph 1.2 builds such a
bridge is only the starting point, and does not in itself answer the questions of whether there is an
objective link between an individual provision in China's Accession Protocol and existing obligations
under the Marrakesh Agreements and the Multilateral Trade Agreements, and whether China may
rely on an exception provided for in those agreements to justify a breach of such Protocol
provision. Such questions must be answered through a thorough analysis of the relevant
provisions on the basis of the customary rules of treaty interpretation and the circumstances of the
dispute. The analysis must start with the text of the relevant provision in China's Accession
Protocol and take into account its context, includ ing that provided by the Protocol itself and by
relevant provisions of the Accession Working Pa rty Report, and by the agreements in the WTO
legal framework. The analysis must also take into account the overall architecture of the WTO
system as a single package of rights and obligations and any other relevant interpretative
elements, and must be applied to the circumstan ces of each dispute, including the measure at
issue and the nature of the alleged violation.
5.2 Article XX(g) of the GATT 1994
5.2.1 China's claims under Article XX(g) of the GATT 1994
5.75. China appeals two sets of intermediate findings in the Panel's analysis of whether China's
export quotas on rare earths, tungsten, and molybdenum are justified pursuant to Article XX(g) of
the GATT 1994. First, China contends that the Pane l erred in its interpretation and application of
Article XX(g) of the GATT 1994, and acted inconsistently with Article 11 of the DSU, in finding that
China's export quotas on rare earths and tungsten do not "relate to" conservation within the
meaning of Article XX(g). Second, China claims that the Panel erred in its interpretation and
application of Article XX(g) of the GATT 1994, and acted inconsistently with Article 11 of the DSU,
in finding that China's export quotas on rare earths, tungsten, and molybdenum are not "made
effective in conjunction with" domestic restrict ions under Article XX(g) of the GATT 1994. Thus,
China requests us to reverse the Panel's intermediate findings that China's export quotas on rare
earths and tungsten do not "relate to" conservati on within the meaning of Article XX(g) of the
GATT 1994
514, and that China's export quotas on rare earths, tungsten, and molybdenum are not
"made effective in conjunction with" domestic restrictions pursuant to Article XX(g) of the

512 Panel Reports, para. 7.93. See also ibid., paras. 7.80 and 7.89.
513 Panel Reports, paras. 7.80, 7.89, and 7.93.
514 China's appellant's submission, paras. 30, 208, 209, 319, and 320; other appellant's submission,
paras. 30, 139, 140, 250, and 251 (referring to Panel Reports, paras. 7.279-7.293, 7.444, 7.446-7.448, 7.541,
7.542, 7.604, 7.725, and 7.731).
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GATT 1994.515 Furthermore, to the extent that the Panel's errors, made in its analyses of the
"relating to" and "made effective in conjunction with" requirements of Article XX(g), taint the
Panel's conclusions that China's export quotas on rare earths, tungsten, and molybdenum cannot
be provisionally justified under Article XX(g) of the GATT 1994, China also requests us to reverse
these findings of the Panel.
516
5.76. Before the Panel, China conceded that its export quotas on rare earths, tungsten, and
molybdenum are inconsistent with Article XI:1 of the GATT 1994. China asserted, however, that
these quotas are justified under Article XX(g) of the GATT 1994. In this regard, China contended
that its sovereignty over its exhaustible natural resources entitles it to manage the supply of such
resources and, more specifically, to use export quotas to allocate, as between foreign and
domestic consumers, the supply of Chinese exhausti ble natural resources. In order to establish its
defence under Article XX(g), China submitted various measures to the Panel in order to
demonstrate that China had in place: (i) a comprehensive conservation policy for each of the
product groups at issue
517; and (ii) restrictions on domestic production or consumption of rare
earths, tungsten, and molybdenum, including through the imposition of extraction and production
quotas.518 As the sections below explain, China's appeal takes issue only with limited aspects of
the Panel's findings under Article XX(g) of the GATT 1994.
5.2.2 The Panel's findings
5.77. In addressing China's defence, the Pane l began by setting out its interpretation of
Article XX(g) of the GATT 1994. The Panel noted that, for a measure to be justified under
Article XX(g), such measure must: (i) "relate to" the "conservation" of an "exhaustible natural
resource"; and (ii) be "made effective" "in conjunc tion" with "restrictions" on "domestic production
or consumption". The Panel stressed that, while a measure must comply with each of these
elements, Article XX(g) ultimately lays down a single test, the entirety of which must be satisfied if
a measure is to be justified pursuant to that provision. Therefore, a measure's compliance with
Article XX(g) can be determined only on the basis of a holistic assessment. The Panel further
considered that, given the unitary nature of the test, facts and arguments submitted by the parties
could be relevant in more than one part of the Panel's analysis.
519
5.78. With regard to the term "exhaustible natu ral resources", the Panel concluded that it did not
need to decide the precise meaning or scope of the term to resolve these disputes, because the
parties agreed that measures may "'relate to the conservation of exhaustible natural resources'
even if they are not imposed directly upon those resources". 520 For the specific product categories
at issue in these disputes, the Panel found that rare earth, tungsten, and molybdenum ores are
"exhaustible natural resources", but did not determine more generally the extent to which
semi-processed or processed products fall within the scope of that concept.
521 In respect of
"conservation", the Panel noted that, for the purposes of Article XX(g), this word has a "broad
meaning" that strikes an appropriate balance between trade-liberalization, sovereignty over
natural resources, and the right to sustainable development.
522 The Panel found that China had

515 China seeks reversal of paragraphs 7.301, 7.314-7.337, 7.568-7.599, 7.792-7.809,
and 7.919-7.935. (China's appellant's submission, paras. 44, 313, 314, 315, 322, and 323; other appellant's
submission, paras. 44, 244, 245, 246, 253, and 254)
516 China seeks reversal of paragraphs 7.600-7.614, 7.810-7.820, and 7.936-7.944 of the Panel
Reports; and US Panel Report, para. 8.2.c; EU Panel Report, para. 8.7.c; and Japan Panel Report, para. 8.12.c.
(China's appellant's submission, paras. 31, 45, 210, 288, 316, 321, and 324; other appellant's submission,
paras. 31, 45, 141, 219, 247, 252, and 255)
517 See e.g. Panel Reports, paras. 7.368, 7.399, 7.407 (rare earths); 7.690-7.706 (tungsten); and
7.863-7.874 (molybdenum).
518 See e.g. Panel Reports, paras. 7.493-7.495 (rare earths); 7.738-7.740 (tungsten); and 7.881-7.883
(molybdenum).
519 Panel Reports, para. 7.240 (referring to Appellate Body Report, US – Gasoline, p. 21, DSR 1996:I,
p. 19).
520 Panel Reports, para. 7.250.
521 Panel Reports, paras. 7.364, 7.365, 7.689, and 7.854 (referring to Appellate Body Report, US –
522 Panel Reports, para. 7.277.
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demonstrated that it has in place a comprehensive conservation policy for rare earths 523,
tungsten524, and molybdenum525, respectively.
5.79. In applying its interpretation of Article XX(g) to the facts of the case, the Panel separately
analysed the export quota imposed on each of the three product groups. The Panel then made
three sets of intermediate findings for each of the export quotas: (i) that China had not
established that the relevant export quota "relates to" the conservation of the respective
exhaustible natural resource for the purposes of Article XX(g) of the GATT 1994
526; (ii) that China
had not established that the relevant export quota is "made effective in conjunction with"
restrictions on domestic production or consumption for the purposes of Article XX(g) of the
GATT 1994
527; and (iii) that China had not established that the relevant export quota is not applied
in a manner that constitutes arbitrary or unjustifiable discrimination or a disguised restriction on
international trade within the meaning of the chapeau of Article XX of the GATT 1994.528 The Panel
concluded overall that China had not demonstrated that its export quotas on rare earths, tungsten,
and molybdenum are provisionally justified pursuant to subparagraph (g).
529 In addition, the Panel
found that China had not demonstrated that these measures are applied in a manner that satisfies
the chapeau of Article XX of the GATT 1994.530
5.2.3 The Panel findings appealed by China
5.80. On appeal, China contends that the Panel erred in its interpretation and application of
Article XX(g) of the GATT 1994, and acted inconsistently with Article 11 of the DSU, in finding that
China's export quotas on rare earths and tungsten do not "relate to" conservation within the
meaning of Article XX(g) of the GATT 1994. China also claims that the Panel erred in its
interpretation and application of Article XX(g) of the GATT 1994, and acte d inconsistently with
Article 11 of the DSU, in finding that China's export quotas on rare earths, tungsten, and
molybdenum are not "made effective in conjunction with" domestic restrictions under Article XX(g)
of the GATT 1994.
5.81. Before addressing China's claims of error, and in order to situate China's appeal in its proper
context, we note the limited scope and segmented na ture of China's appeal of the Panel's findings
under Article XX(g) of the GATT 1994. China does not appeal the Panel's findings with respect to
"conservation" or "exhaustible natural resources". Moreover, China's claim that the Panel erred in
its interpretation and application of "relating to" concerns only the Panel's findings regarding
China's export quotas on rare earths and tungsten, and does not involve any challenge to the
Panel's findings regarding China's export quota on molybdenum. With respect to the Panel's
analysis of whether China's export quotas on rare earths and tungsten "relate to" conservation,
China's appeal is directed at only a short segment of the Panel's overall analysis, namely, the
Panel's findings in respect of the "signalling function" of China's export quotas. In considering
whether China's measures "relate to" the conservation of exhaustible rare earth ore resources, the
Panel addressed two sets of arguments made by China concerning: (i) the text of the measure;
and (ii) the design, structure, and architecture of the measure. The Panel found the various
references to conservation in the text of China's export quota for rare earths and related
documents to be inconclusive.
531 In examining the design, structur e, and architecture of China's
export quota on rare earths, the Panel addressed six distinct arguments by China that its export

523 Panel Reports, para. 7.375.
524 Panel Reports, para. 7.697.
525 Panel Reports, para. 7.860.
526 Panel Reports, paras. 7.601 (rare earths); 7.811 (tungsten); and 7.937 (molybdenum). The Panel
found that, rather than "relating to the conservation of exhaustible natural resources", China's export quotas
seem designed to reserve amounts of rare earth products for domestic consumption. See e.g. Panel Reports,
para. 7.601.
527 Panel Reports, paras. 7.609-7.611 (rare earths); 7.813 (tungsten); and 7.939 (molybdenum).
528 Panel Reports, paras. 7.679 (rare earths); 7.844 (tungsten); and 7.969 (molybdenum).
529 Panel Reports, paras. 7.614 (rare earths); 7.820 (tungsten); and 7.939 (molybdenum).
530 Panel Reports, paras. 7.679 (rare earths); 7.844 (tungsten); and 7.969 (molybdenum). US Panel
531 Panel Reports, para. 7.407.
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quota "relates to" the conservation of rare earth ores. The Panel rejected all six arguments. 532 The
third of these six arguments was China's contention that its export quota on rare earths sends a
signal to foreign consumers of rare earth products to diversify their sources of supply and/or find
substitutes for the rare earth products that they import from China. As regards the export quota
on tungsten, the Panel addressed two arguments by China supporting its claim that its export
quota on tungsten bears a "close", "real", and "substantial" connection to the goal of conserving
exhaustible tungsten ores
533, one of which was based on the conservation-related signals sent by
the export quota to foreign consumers of tungsten.534 As stated above, China's appeal is limited to
the Panel's intermediate findings rejecting China's arguments with respect to the "signalling
function" of the export quotas on rare earths and tungsten.
5.82. China's appeal regarding the Panel's findings that China's export quotas on rare earths,
tungsten, and molybdenum are not made effective in conjunction with restrictions on domestic
production or consumption is also limited in its scope. China's appeal focuses on the Panel's
articulation and application of the "even-handed ness" requirement. China does not appeal the
Panel's interpretation of "restrictions" or its findings that China's domestic extraction and
production caps on rare earths, tungsten, and molybdenum do not constitute "restrictions on
domestic production or consumption" for the purposes of Article XX(g) of the GATT 1994.
535
5.83. Finally, China does not appeal the Panel's findings that China had not established that its
export quotas on these three groups of produc ts meet the requirements of the chapeau of
Article XX of the GATT 1994.536
5.2.4 Article XX(g) of the GATT 1994 as a whole
5.84. China's appeal calls for us to consider certain issues relating to the interpretation of discrete
elements of Article XX(g) of the GATT 1994. In or der properly to situate these elements within
Article XX(g), we begin by setting out our understanding of Article XX(g), as a whole, as explained
in previous Appellate Body reports.

532 Panel Reports, para. 7.415. The Panel first considered China's argument that the export quota on
rare earths prevents smuggling and/or the export of illegally extracted rare earth products. The Panel found
that China's measures are "overbroad" because they prevent the export of legally produced rare earth products
(above a certain absolute numerical limit), rather than just illegally produced products. (Ibid., para. 7.430
(referring to Appellate Body Report, US – Shrimp, para. 141)) Second, although China argued that the export
quota reduces domestic demand for illegally extracted and/or produced rare earth products, the Panel was not
convinced that an export quota could discourage illegal extraction and production intended for the domestic
market. (Ibid., para. 7.434) Third, China argued that the export quota "signals" to rare earth consumers that
additional sources of supply must be found. The Panel determined that China had not demonstrated that, in
the design of its export quota and its conservation programme more generally, there is any mechanism to
ensure that the export quota and the extraction and/or production caps will work together in such a way as to
counteract the "perverse signals" sent by its export quota to domestic consumers. As such, the Panel
considered that the risk of "perverse signals" is real, and this cast doubt on China's claim that the export quota
"relates to" conservation. (Ibid., para. 7.447) China's fourth argument was that its export quota works as a
"safeguard" against "speculative surges" in demand. The Panel considered that China's desire to moderate
"speculative demand surges that could upset the market balance and certainty sought by China" is not a
conservation-related objective, but an aspect of China's industrial policy. (Ibid., para. 7.452) In respect of
China's fifth submission that the export quota enables China to "allocate" the limited supply of rare earth
resources, the Panel failed to see how China's allocation of quantities between foreign and domestic users
could relate to conservation. (Ibid., para. 7.462) China's sixth argument was that the way in which the export
quota is established shows that China's export quota "relates to" conservation. The Panel found that China had
failed to explain the significance of the establishment procedures or their connection to the conservation
objective. (Ibid., paras. 7.473 and 7.483)
533 China's other argument was based on the text of the measures at issue. However, the Panel found
that China could not discharge its burden of proof simply by citing a number of references to conservation in
the text of a challenged measure without explaining how the challenged measure "relates to", supports, or
furthers the goal of conserving exhaustible tungsten ores. (Panel Reports, para. 7.720)
534 Panel Reports, para. 7.700.
535 Panel Reports, paras. 7.609 (rare earths); 7.814 (tungsten); and 7.940 (molybdenum).
536 Panel Reports, paras. 7.679 (rare earths); 7.844 (tungsten); and 7.969 (molybdenum).
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5.85. Article XX(g) of the GATT 1994 states:
Article XX
General Exceptions
Subject to the requirement that such measures are not applied in a manner which
would constitute a means of arbitrary or unjustifiable discrimination between countries
where the same conditions prevail, or a disguised restriction on international trade,
nothing in this Agreement shall be construe d to prevent the adoption or enforcement
by any Member 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;
5.86. 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.
537 The assessment of a defence under
Article XX involves a two-tiered analysis in which a measure must first be provisionally justified
under one of the subparagraphs of Article XX, and th en shown to be consistent with the conditions
of the chapeau of Article XX. 538 As the Appellate Body has noted, this "sequence of steps" in the
analysis of a claim of justification under Article XX reflects "not inadvertence or random choice",
but rather the fundamental structure and logic of Article XX of the GATT 1994.539
5.87. We further recall that provisional justification under one of the subparagraphs of Article XX
requires that a challenged measure "address the particular interest specified in that paragraph"
and that "there be a sufficient nexus between the measure and the interest protected". 540 We also
bear in mind that Article XX uses different terms in its different subparagraphs: "necessary" – in
subparagraphs (a), (b), and (d); "essential" – in subparagraph (j); "relating to" – in
subparagraphs (c), (e), and (g); "for the protecti on of" – in subparagraph (f); "in pursuance of" –
in subparagraph (h); and "involving" – in subparagraph (i). As the Appellate Body has found, these
different terms suggest that the negotiators of th e GATT did not intend to require, in respect of
each and every category, "the same kind or degree of connection or relationship between the
measure under appraisal and the state interest or policy sought to be promoted or realized".
541
5.88. A Member seeking to justify its measure pursuant to Article XX(g) must demonstrate that its
GATT-inconsistent measure has the requisite nexus ("relates to") with the legitimate policy goal
(the conservation of exhaustible natural resources). The Member must also show that its measure
is "made effective in conjunction with restrictions on domestic production or consumption".
5.89. With respect to the first clause of Article XX(g), "relating to the conservation of exhaustible
natural resources", the Appellate Body has rema rked, with reference to the preamble of the
Marrakesh Agreement, that the generic term "natural resources" in Article XX(g) is not "static" in
its content or reference, but is rather, "by definition, evolutionary". 542 The word "conservation", in
turn, means "the preservation of the enviro nment, especially of natural resources". 543 It seems to
us that, for the purposes of Article XX(g), the precise contours of the word "conservation" can only
be fully understood in the context of the exhaustible natural resource at issue in a given dispute.
For example, "conservation" in the context of an exhaustible mineral resource may entail
preservation through a reduction in the pace of its extraction, or by stopping its extraction

537 Appellate Body Reports, US – Gasoline, p. 24, DSR 1996:I, p. 22; China – Raw Materials, para. 334.
538 Appellate Body Reports, US – Gasoline, p. 22, DSR 1996:I, p. 20; US – Shrimp, paras. 119 and 120;
EC – Seal Products, para. 5.169. See also Appellate Body Report, US – Gambling, para. 292.
539 Appellate Body Report, US – Shrimp, para. 119.
540 Appellate Body Reports, EC – Seal Products, para. 5.169 (quoting Appellate Body Report, US –
Gambling, para. 292, in turn referring to Article XIV(a) of the GATS).
541 Appellate Body Report, US – Gasoline, pp. 18, DSR 1996:I, p. 16.
542 Appellate Body Report, US – Shrimp, para. 130.
543 Appellate Body Reports, China – Raw Materials, para. 355 (quoting Shorter Oxford English
Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, p. 496).
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altogether. In respect of the "conservation" of a living natural resource, such as a species facing
the threat of extinction, the word may encompass not only limiting or halting the activities creating
the danger of extinction, but also facilitating the replenishment of that endangered species.
544
5.90. Turning to the term "relating to", we recall that, for a measure to "relate to" conservation in
the sense of Article XX(g), there must be "a cl ose and genuine relationship of ends and means"
between that measure and the conservation obje ctive of the Member maintaining the measure. 545
Hence, a GATT-inconsistent measure that is merely incidentally or inadvertently aimed at a
conservation objective would not satisfy the "relating to" requirement of Article XX(g). 546
Furthermore, the absence of a domestic restriction, or the way in which a challenged measure
applies to domestic production or consumption, may be relevant to an assessment of whether the
challenged measure "relates to" conservation.
547
5.91. The second clause of Article XX(g) requires that the GATT-inconsistent conservation
measure be "made effective in conjunction with restrictions on domestic production or
consumption". Accordingly, Article XX(g) requires that, when international trade is restricted,
restrictions be imposed also on domestic production or consumption. The Appellate Body has
described a "restriction" as "[a] thing which restricts someone or something, a limitation on action,
a limiting condition or regulation".
548
5.92. In addition, the words "made effective", when used in connection with a governmental
measure, refer to a measure being "operative", "in force", or having "come into effect". 549 It must
be "in operation at a given time" in the sense of being "brought into operation, adopted, or
applied".550 The phrase "in conjunction with" signifies "together with" or "jointly with". 551 Taking
both of these elements together, the second clause of Article XX(g) refers to governmental
measures that are promulgated or brought into effect, and that operate together with restrictions
on domestic production or consumption of exha ustible natural resources. Thus, the requirement
that restrictions be made effective "in conjunction" suggests that, in their joint operation towards a
conservation objective, such restrictions limit not only international trade, but must also limit
domestic production or consumption. Moreover, in order to comply with the "made effective"
element of the second clause of Article XX(g), it would not be sufficient for domestic production or
consumption to be subject to a possible limitation at some undefined point in the future. Rather, a
Member must impose a "real" restriction on domestic production or consumption that reinforces
and complements the restriction on international trade.
5.93. Accordingly, the second clause of Article XX(g) is appropriately read as a requirement that a
Member seeking to rely upon Article XX(g) in its pursuit of a conservation objective must
demonstrate that it imposes restrictions, not only in respect of international trade, but also in
respect of domestic production or consumption. In other words, the trade restrictions must
operate jointly with the restrictions on domestic production or consumption.
552 Such restrictions
must place effective limitations on domestic production or consumption and thus operate so as to
reinforce and complement the restrictions imposed on international trade. In that sense,

544 We note that the Panel engaged in an extensive discussion of the scope of the word "conservation" in
Article XX(g), ultimately finding that this word has a "rather broad meaning". We also note that the Panel's
interpretation of the word "conservation" in Article XX(g) is not appealed. Consequently, we neither endorse
nor reject the Panel's statements in this regard. (See Panel Reports, paras. 7.252-7.277)
546 Appellate Body Report, US – Gasoline, p. 19, DSR 1996:I, p. 18.
547 Appellate Body Report, US – Gasoline, p. 21, DSR 1996:I, p. 19 (referring to GATT Panel Reports,
Canada – Herring and Salmon, para. 5.1; and US – Canadian Tuna, paras. 4.10-4.12).
548 Appellate Body Reports, China – Raw Materials, para. 319 (referring to Shorter Oxford English
Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 2, p. 2553). The Appellate Body
made this observation with respect to the word "restrictions" in Article XI:1 of the GATT 1994, and added that
the word "restriction" "refers generally to something that has a limiting effect". (Ibid.)
549 Appellate Body Report, US – Gasoline, p. 20, DSR 1996:I, p. 19 (quoting The New Shorter Oxford
English Dictionary on Historical Principles, L. Brown (ed.) (Clarendon Press, 1993), Vol. I, p. 786).
550 Appellate Body Reports, China – Raw Materials, para. 356.
551 Appellate Body Report, US – Gasoline, p. 20, DSR 1996:I, p. 19 (quoting The New Shorter Oxford
English Dictionary on Historical Principles, L. Brown (ed.) (Clarendon Press, 1993), Vol. I, p. 481).
552 Appellate Body Reports, China – Raw Materials, para. 356.
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subparagraph (g) "is a requirement of even-handedness in the imposition of restrictions, in the
pursuit of conservation, upon the production or consumption of exhaustible natural resources".553
5.94. In sum, Article XX(g) permits the adoption or enforcement of trade measures that have "a
close and genuine relationship of ends and means" 554 to the conservation of exhaustible natural
resources, when such trade measures are brought into operation, adopted, or applied and "work
together with restrictions on domestic production or consumption, which operate so as to conserve
an exhaustible natural resource".
555 In order to justify a measure pursuant to Article XX(g), a WTO
Member must show that it satisfies all the requirements set out in that provision. Indeed, the text
of Article XX(g), particularly its use of the conjunctive "if", suggests a holistic assessment of its
component elements, as the Panel rightly recognized.
556
5.95. While Article XX(g) calls for a holistic assessment, the provision itself must be applied on a
case-by-case basis, through careful scrutiny of the factual and legal context in a given dispute,
including the exhaustible natural resource concerned and the specific conservation objectives of
the Member seeking to rely upon Article XX(g). Due regard must be paid to the words used by the
WTO Members to express their intent and purpose
557, but a panel cannot limit its analysis to the
text of the measure at issue, or simply accept, without question, a Member's characterization of its
measure.
558
5.96. The text of Article XX(g) does not prescribe a specific analytical framework for assessing
whether a measure satisfies the component requirements of that provision. All the same, we
observe that, in past disputes, the Appellate Body has emphasized the importance of the design
and structure of the challenged measure to a proper assessment of whether a measure satisfies
the requirements of Article XX(g).
559 Assessing a measure based on its design and structure is an
objective methodology that also helps to determine whether or not a measure does what it
purports to do.
560 For instance, a measure declared to serve the purpose of conservation may,
through an examination of its design and structure, be found not to genuinely serve that purpose.
The analysis of a measure's design and structur e allows a panel or the Appellate Body to go
beyond the text of the measure and either confirm that the measure is indeed related to
conservation, or determine that, despite the text of the measure, its design and structure reveals
that it is not genuinely related to conservation. This is so because the design and structure of a
measure do not vary, and are not contingent on the occurrence of subsequent events. In sum, we
consider that, by focusing on the design and structure of the measure, particularly where a
measure is challenged "as such", a panel or the Appellate Body has the benefit of an objective
methodology for assessing whether a measure satisfies the requirements of Article XX(g).
5.97. At the same time, the analysis of the design and structure of the measure cannot be
undertaken in isolation from the conditions of the market in which the measure operates. Due
regard should also be given to key features of the relevant market. Since the characteristics and
structure of the market would normally influence a Member's choice and design of a measure, such
market features may also shed light on whether a given measure, in its design and structure,
satisfies the requirements of Article XX(g). Rele vant market features could include not only the

553 Appellate Body Report, US – Gasoline, p. 21, DSR 1996:I, p. 19. (emphasis original) On appeal,
China challenges the Panel's understanding of the term "even-handedness". We discuss China's claims on this
issue in detail below.
555 Appellate Body Reports, China – Raw Materials, para. 356.
556 Panel Reports, para. 7.240.
557 Appellate Body Report, US – Gasoline, p. 18, DSR 1996:I, p. 17.
558 In a similar vein, in US – Gambling, in its examination of an appeal under Article XIV(a) of the GATS,
the Appellate Body stated:
To be sure, a Member's characterization of a measure's objectives and of the effectiveness of its
regulatory approach – as evidenced, for example, by texts of statutes, legislative history, and
pronouncements of government agencies or officials – will be relevant in determining whether
the measure is, objectively, "necessary". A panel is not bound by these characterizations,
however, and may also find guidance in the structure and operation of the measure and in
contrary evidence proffered by the complaining party.
(Appellate Body Report, US – Gambling, para. 304 (referring to Appellate Body Report, India – Patents (US),
para. 66) (fn omitted))
559 Appellate Body Reports, US – Shrimp, paras. 135-137; China – Raw Materials, para. 355 (referring
to Appellate Body Report, US – Shrimp, para. 136).
560 Appellate Body Report, Japan – Alcoholic Beverages II, p. 29, DSR 1996:I, p. 120.
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exhaustible natural resource to be conserved, but also the market structure, the product and
geographical scope of the market, and the signif icance of the role that foreign and domestic
market participants play.
5.98. Furthermore, the Appellate Body has clarif ied that there is no requirement to apply an
"empirical effects test" under Article XX(g). 561 In US – Gasoline, the Appellate Body identified two
primary challenges that a panel, as trier of fact, would face if it were required to evaluate
"effects":
In the first place, the problem of determining causation, well-known in both domestic
and international law, is always a difficult one. In the second place, in the field of
conservation of exhaustible natural resources, a substantial period of time, perhaps
years, may have to elapse before the effects attributable to implementation of a given
measure may be observable.
562
5.99. We also observe that the measures that may be justified pursuant to Article XX(g) are those
already found to be inconsistent with obligations contained in the GATT 1994. 563 Such measures
may themselves have had a distorting effect in the marketplace. This, to our minds, compounds
the problems of determining causation, and reinforces the need for caution in relying on an
"empirical effects test" in the context of Article XX(g).
5.100. The Appellate Body has nevertheless acknowledged that consideration of the predictable
effects of a measure may be relevant for the analysis under Article XX(g).
564 In referring to
"predictable effects" in US – Gasoline , the Appellate Body was denoting effects that careful
evaluation of the design and structure of the measure reveals are likely to or will occur in the
future. Although "predictable effects" might be understood also to encompass future effects
projected on the basis of empirical data of actual effects, reliance upon such effects in assessing a
measure's compliance with Article XX(g) would also be fraught with the causation difficulties
identified by the Appellate Body in US – Gasoline.
5.101. Having explained our understanding of Arti cle XX(g), including our view that Article XX(g)
always calls for a holistic assessment of all of its constituent elements, we now turn to China's
claims that the Panel erred in its interpretation of certain terms in Article XX(g). First, we address
China's claim that the Panel erred in its interpretation of the term "relating to", to the extent that
this interpretation required the Panel to limit its analysis to an examination of the design and
structure of China's export quotas.
565 Second, we address China's claims that the Panel erred in its
interpretation of the phrase "made effective in conjunction with", by requiring a separate and
distinct inquiry into "even-handedness" and whether the burden of conservation-related measures
is distributed in a balanced way between domest ic and foreign consumers or producers, and by
finding that it must limit the analysis under its "even-handedness" test to considering the design
and structure of the measures.
5.2.5 China's claim that the Panel erred in its interpretation of the term "relating to"
5.102. China requests us to reverse the Panel's interpretation of the term "relating to" in
Article XX(g) of the GATT 1994, "to the extent th at this interpretation required the Panel to
examine solely the structure and design of China's export quotas".
566
5.103. We begin by observing that the Panel's inte rpretation of the words "relating to" is set out
in paragraphs 7.279 to 7.293 of its Reports. China's appeal, however, challenges only the Panel's
articulation of its analytical framework for assessing whether a challenged measure "relates to"
conservation. According to China, the errors in the Panel's approach are found in two paragraphs
of the Panel Reports. The first is the Panel's explanation that:

561 Appellate Body Report, US – Gasoline, p. 21, DSR 1996:I, p. 20.
562 Appellate Body Report, US – Gasoline, p. 21, DSR 1996:I, p. 20.
563 Appellate Body Reports, US – Gasoline, p. 24, DSR 1996:I, p. 22; China – Raw Materials, para. 334.
564 Appellate Body Report, US – Gasoline, p. 21, DSR 1996:I, p. 20.
565 China's appellant's submission, para. 208; other appellant's submission, para. 139.
566 China's appellant's submission, para. 208; other appellant's submission, para. 139 (referring to Panel
Reports, paras. 7.279-7.293). (emphasis added)
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… in assessing the existence and nature of the challenged measure's relationship with
conservation, the Panel must focus on the "design and structure" of the measure . It is
these which, taken together with the measure's text, must demonstrate a clear link
with the conservation objective.
567
5.104. The second example of the Panel's erroneous approach is, according to China, found in the
following explanation by the Panel as to how it intended to apply Article XX(g) to China's export
quota on rare earths in order to ascertain whether that quota is a measure "relating to"
conservation:
The Panel recalls, however, that according to the Appellate Body, the test for whether
a challenged measure "relates to" conservation turns on an examination of its
"general design and structure", and in particular on whether the measure is
"disproportionately wide in its scope and reach in relation to the policy objective of
protection and conservation" or whether, conversely, it is "reasonably related" to the
conservation objective, such that its relationship with conservation is "close and real"
and "substantial". As the Panel explained in its discussion of the legal test, the test in
Article XX(g) focuses on the written measure, on the design and architecture of the
challenged export quota, and its operation, while under the chapeau of Article XX the
Panel will review the manner in which the quota system is applied. As the Panel noted,
the analysis under subparagraph (g) does not require an evaluation of the actual
effects of the concerned measures. The Panel is thus not required to examine whether
a challenged measure has in fact improved the level of conservation of exhaustible
natural resources. There is therefore no need for the Panel to decide, in quantitative
or qualitative terms, precisely what level of contribution a challenged measure has
made to the conservation objective. Instead, the Panel looks at the nature of the
challenged measures to determine whether, as a matter of design and architecture,
they assist, support or further the goal of conservation.
568
5.105. As we have explained above, for a measure to relate to conservation in the sense of
Article XX(g), there must be "a close and genuine relationship of ends and means". 569 China
accepts that this is the nexus required to satisfy the "relating to" test of Article XX(g). However,
according to China, the Panel's statements quoted above illustrate the Panel's view that, as a
general rule, in order to ascertain whether there is a close and genuine relationship of ends and
means between a measure and its objective, it is appropriate for a panel "to consider solely the
'general structure and design' of the measure at issue".
570 China also contends that the Panel
considered that it was legally compelled to disregard evidence regarding the effects of China's
export quotas, as well as the operation of the ot her elements of China's conservation scheme in
the marketplace. Thus, according to China, although the Panel correctly recognized that a measure
cannot be considered in isolation and without regard to its wider regulatory context, the Panel did
just that by asserting that it was legally bound to examine only the text, structure, and design of
the measure, and not how the measure actually works in the context of China's comprehensive
conservation policy. According to China, this co nstitutes legal error. For China, where evidence
sheds light on how a measure actually operates, a proper analysis under Article XX(g) of the
GATT 1994 cannot end with "abstract conclusion s" about the design and structure of the
measure.
571 Unless a responding Member succeeds in showing that its measure relates to
conservation, based on its design and structure, or there is no evidence regarding the operation of
a regulatory scheme, a panel should also have re gard to how the regulatory scheme of trade and
domestic measures operates in the market as a means to the realization of conservation ends. In
its arguments supporting this allegation of Panel error, China adds that an analysis of the

567 Panel Reports, para. 7.290 (referring to Panel Reports, China – Raw Materials, para. 7.418). (fn
omitted; emphasis added)
568 Panel Reports, para. 7.379 (referring to Appellate Body Report, US – Shrimp, para. 141). (fn
omitted; emphasis added)
570 China's appellant's submission, para. 155; other appellant's submission, para. 86 (referring to Panel
Reports, para. 7.290). (emphasis added by China) In response to questioning at the oral hearing, China
identified paragraph 7.379 of the Panel Reports as containing the statement that Article XX(g) does not require
an evaluation of actual effects. China did not identify any specific statement by the Panel reflecting that the
Panel considered itself precluded from examining such effects.
571 China's appellant's submission, para. 166; other appellant's submission, para. 97 (referring to Panel
Reports, para. 7.446).
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"contribution" of a measure to the conservation of exhaustible natural resources may also be used
as a method of assessing whether there is a close and genuine relationship of ends and means
between the measure at issue and the conservation objective.
5.106. The complainants assert that China's claim that the Panel erred in its interpretation of the
term "relating to" is based on a misreading of the Panel's analysis.
572 The complainants agree that
a panel is not precluded from examining the effects of a measure in an analysis under
Article XX(g). However, once a panel is satisfied that, due to a fundamental deficiency in the
design and structure of the measure, no genuine link between the measure and the conservation
objective can be established, other factors, such as the effects of the measure, are no longer
relevant. The complainants emphasize that Articl e XX(g) does not establish an "effects" test. A
panel's task under Article XX(g) is to determin e whether a measure has as its genuine objective
the goal of conservation. According to the United States, to make actual effects in the marketplace
a touchstone for making this determination would render the task meaningless. The "vagaries of
the market place" would mean that measures that might at one point in time appear, based on
empirical effects, to "relate to" conservation might, at a different point in time, with different data,
appear not to "relate to" conservation, and would also raise difficult questions of causation.
573 The
complainants also disagree with China's assertion that, to satisfy the "relating to" requirement of
Article XX(g), "it is enough to show that a measure is apt to produce a contribution to the
achievement of its objective".574 The complainants consider it inappropriate to mix the concepts of
"relating to" and "contribution", and thus the proper interpretation of Article XX(g) with that of
Article XX(a), (b), and (d) of the GATT 1994, because such mixing would result in an approach
that ignores important distinctions between the various subparagraphs of Article XX.
575
5.107. In our view, two issues arise from China' s claim of error: (i) whether the Panel made the
findings attributed to it by China, i.e. that the assessment of whether a measure "relates to"
conservation must be limited to an examination of the design and structure of the measure at
issue; and (ii) whether it was proper for the Panel to place an analytical emphasis on the design
and structure of the measures at issue. We address each of these issues in turn.
5.108. Concerning the first issue, we observe that China is correct that the Panel indicated that an
assessment of whether a measure "relates to" conservation must focus on the design and
structure of that measure.
576 The Panel additionally focused on the text of the challenged
measure.577 However, the Panel did not state, as China contends 578, that the assessment of
whether a measure "relates to" conservation must be limited to an examination of the design and
structure of the measure at issue. Nor do we read the Panel's reasoning as suggesting that it
considered itself legally compelled to disregard evidence of the effects of China's export quotas, as
well as of the operation of the other elements of China's conservation scheme in the marketplace.
Instead, in its interpretation of the term "relating to", the Panel emphasized the need to make the
determination of whether a GATT-inconsistent measure "relates to" conservation on a
case-by-case basis. For example, the Panel rema rked that the "relating to" criterion must be
considered by looking at the challenged measures "in their policy and regulatory context, and not
only in isolation".
579 The Panel added that the question of whether a given export quota relates to
the conservation of an exhaustible natural resource could only be answered on a case-by-case
basis, "by careful scrutiny of the factual and legal context in a given dispute". 580 The Panel also
expressed the view that "a measure's compliance with Article XX(g) can be determined only on the
basis of a holistic assessment of whether the challenged measure relates to the conservation of

572 European Union's appellee's submission, paras. 17 and 140; Japan's appellee's submission, paras. 26
and 40; United States' appellee's submission, para. 102.
573 United States' appellee's submission, para. 97.
574 China's appellant's submission, para. 152; other appellant's submission, para. 83.
575 European Union's appellee's submission, paras. 164-167; Japan's appellee's submission,
paras. 32-36; United States' appellee's submission, para. 88.
576 Panel Reports, paras. 7.290 and 7.379.
577 Panel Reports, para. 7.290.
578 China's appellant's submission, para. 155; other appellant's submission, para. 86.
579 Panel Reports, para. 7.289.
580 Panel Reports, para. 7.292 (referring to Appellate Body Report, US – Gasoline, pp. 16-17,
DSR 1996:I, p. 17).
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rare earths and is made effective in conjunction with restrictions on domestic production or
consumption".581
5.109. Hence, based on our reading of the Panel Reports, we consider it inaccurate to characterize
the Panel's reasoning as suggesting that it was required to limit its analysis to an examination of
the general design and structure of the measures at issue. We also do not read the Panel's
reasoning as suggesting that it considered itself precluded from considering any evidence of the
effects of the export quotas or other elements of China's conservation scheme in the marketplace.
5.110. This brings us to the second issue – whether the Panel's focus on the design and structure
of the measure was proper and, particularly, whether the Panel was correct in stating that "the
analysis under subparagraph (g) does not require an evaluation of the actual effects of the
concerned measures."
582
5.111. As we have explained above, the text of Article XX(g) does not prescribe a specific
analytical framework for assessing whether a measure satisfies the component requirements of
that provision. Nonetheless, we recall that the Appellate Body has consistently emphasized the
primacy of the design and structure of the measure at issue in the assessment of whether that
measure is related to the conservation of exhaustible natural resources.
583 In US – Shrimp , the
Appellate Body explained that it had to examine the relationship "between the general structure
and design of the measure here at stake … and the policy goal it purports to serve". 584 The
Appellate Body has relied on its assessment of th e design and structure to determine that "[t]he
means and ends relationship between [the cha llenged measure] and the legitimate policy of
conserving an exhaustible, and, in fact, endangered species, is observably a close and real one".585
Similarly, in US – Gasoline, the Appellate Body examined the design of the challenged measure. 586
Moreover, the Appellate Body has also clarified that the legal characterization of a measure cannot
be contingent upon the occurrence of subsequent events.
587
5.112. As we have stated above, by focusing on the design and structure of the measure,
particularly where a measure is challenged "as such", a panel or the Appellate Body has the
benefit of an objective methodology for assessing whether a measure satisfies the requirements of
Article XX(g), thus diminishing the uncertainty that would arise in basing such assessment on
actual effects or the occurrence of subsequent events. Furthermore, as explained above,
Article XX(g) does not prescribe an empirical effects test
588, in particular, given the well-known
problems associated with determining causation. 589 In any event, where the design and structure
of a challenged measure clearly illustrate the absence of a nexus between that measure and the
conservation objective, it would be difficult to attribute the evidence of positive effects on
conservation to that measure. As the Appellate Body has remarked, a challenged measure that is
merely incidentally or inadvertently aimed at a conservation objective would not satisfy the
"relating to" requirement of Article XX(g) of the GATT 1994.
590
5.113. Nevertheless, consideration of the predictable effects of a measure, being those effects
inherent in, and discernible from, the design and structure of a measure, may be relevant for the
analysis under Article XX(g). Moreover, while panels are not required to examine empirical or
actual effects in their assessment of whether a measure "relates to" conservation within the
meaning of Article XX(g), panels are not preclude d from doing so. For example, when causation
can be shown, actual effects may be used to confirm the predictable effects of a challenged
measure. Simply put, the question of whether a measure "relates to" conservation must be

582 Panel Reports, para. 7.379.
583 Appellate Body Reports, US – Shrimp, paras. 135-137; China – Raw Materials, para. 355 (referring
to Appellate Body Report, US – Shrimp, para. 136).
584 Appellate Body Report, US – Shrimp, para. 137.
585 Appellate Body Report, US – Shrimp, para. 141.
586 Appellate Body Report, US – Gasoline, p. 19, DSR 1996:I, p. 17.
587 Appellate Body Report, US – Gasoline, p. 21, DSR 1996:I, p. 20.
588 Appellate Body Report, US – Gasoline, p. 21, DSR 1996:I, p. 20.
589 United States' appellee's submission, para. 97. As the United States explains, the "vagaries of the
market place" would mean that measures that might at one point in time appear, based on empirical effects, to
"relate to" conservation might, at a different point in time, with different data, appear not to "relate to"
conservation.
590 Appellate Body Report, US – Gasoline, p. 19, DSR 1996:I, p. 18.
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answered on a case-by-case basis, through careful scrutiny of the factual and legal context in a
given dispute. Due regard must also be paid to the words used by the WTO Members themselves
to express their intent and purpose.
591
5.114. Based on the foregoing, we find that the Panel did not err by considering that it should
focus on the design and structure of the measur es at issue in its assessment of whether those
measures relate to the conservation of exhaus tible natural resources within the meaning of
Article XX(g) of the GATT 1994. Nor do we consider that the Panel erred in stating that "the
analysis under subparagraph (g) does not require an evaluation of the actual effects of the
concerned measures." 592 However, we also wish to clarify that panels are not precluded from
considering evidence relating to the actual operat ion or the impact of the measure at issue in an
assessment under subparagraph (g).
5.115. Before concluding this part of our analysis, we recall that China also expresses the view
that a measure relates to conservation whenever the measure "contributes" to the realization of a
Member's conservation goals. China further suggests that a measure's contribution to such goals
might be demonstrated through a showing of that measure's aptness to contribute to
conservation, since the results of regulatory actions aimed at conservation may not be
immediately observable.
593 China avers that, owing to the similarities between the language that
the Appellate Body has used in discussing the "c ontribution" element of the "necessity" test in
Article XX(b), on the one hand, and that used in the context of the "relating to" test in
Article XX(g) of the GATT 1994, on the other hand, th e concepts of "relating to" and "contribution"
are closely linked.594
5.116. Article XX(b) of the GATT 1994 is concerned with measures that are "necessary" to protect
human, animal, or plant life or health, whereas Article XX(g) of the GATT 1994 is concerned with
measures "relating to" the conservation of exha ustible natural resources. In the light of the
different connecting words used, we consider that a mixing of the different tests under
Article XX(b) and Article XX(g), absent of context, wo u ld r e s u l t in a n a p p r o a c h t h a t ig n o r e s t h e
important distinctions between the various subparagraphs of Article XX.
595 Furthermore, we note
that "contribution" is only one aspect of the "weighing and balancing" analysis called for in an
assessment of "necessity" under Article XX(b).596 Hence, even if one were to contemplate applying
the analytical framework for the "necessity" test to determine whether a measure "relates to"
conservation, China has not persuaded us that a piece-meal application of a single element of the
"necessity" test, absent of context, suffices.
5.117. We stress that our statements above are not intended to suggest that an examination of
the "contribution" that a challenged measure makes to a conservation objective could never be
useful in assessing whether a "close and genuine relationship of ends and means" exists between
that measure and the conservation objective for the purposes of Article XX(g). Nevertheless, in our
view, using a "contribution" test for the "relating to" analysis, is not, by itself, an appropriate

591 Appellate Body Report, US – Gasoline, p. 18, DSR 1996:I, p. 17.
593 China's appellant's submission, paras. 15 and 150-152; other appellant's submission, paras. 15
and 81-83.
594 China's appellant's submission, para. 147; other appellant's submission, para. 78 (referring to
Appellate Body Reports, China – Raw Materials, para. 355; and Brazil – Retreaded Tyres, paras. 145 and 210).
We note that these arguments by China, while falling under its general claim that the Panel erred in its
interpretation of "relating to", do not seem to challenge or take issue with any specific Panel finding or
statement in the Panel Reports. Moreover, according to Japan, China's arguments on "contribution" were
introduced for the first time at the appellate review stage. (Japan's appellee's submission, paras. 31 and 32)
595 Appellate Body Report, Korea – Various Measures on Beef, para. 161 and fn 104 thereto (referring to
Appellate Body Reports, US – Gasoline, p. 19, DSR 1996:I, p. 18; and US – Shrimp, para. 141). See also
United States' appellee's submission, para. 91. We also note that the Panel made a similar observation in
reaction to arguments made by the complainants to the effect that the availability of alternative measures for
conserving rare earths "demonstrates that China's export quotas on downstream products … are not 'related
to' … conservation". (See Panel Reports, para. 7.417) This, in our view, is yet another illustration that there are
key distinctions in the various subparagraphs of Article XX of the GATT 1994 that render inappropriate the
mixing of their respective analyses.
596 See Appellate Body Reports, EC – Seal Products, para. 5.169 (referring to Appellate Body Reports,
Korea – Various Measures on Beef, para. 164; US – Gambling, paras. 306 and 307; and Brazil – Retreaded
Tyres, para. 182).
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substitute for a holistic assessment of whether a measure has a close, genuine, and substantial
relationship to conservation for the purposes of Article XX(g).
5.118. For the reasons set out above, we reach the following conclusions regarding the Panel's
interpretation of the term "relating to" in Article XX(g) of the GATT 1994. We find it inaccurate to
characterize the Panel's reasoning as suggesting that it considered itself required to limit its
analysis to an examination of the general design and structure of the measures at issue. Nor do
we read the Panel's reasoning as suggesting that the Panel considered itself precluded from
examining evidence of the effects of China's export quotas as well as of the operation of the other
elements of China's conservation scheme in the ma rketplace. Accordingly, we find that the Panel
did not err by considering that it should focus on the design and structure of the export quotas in
its assessment of whether those measures relate to the conservation of exhaustible natural
resources within the meaning of Article XX(g) of the GATT 1994. In addition, we find that the Panel
did not err in stating that "the analysis under subparagraph (g) does not require an evaluation of
the actual effects of the concerned measures."
597
5.2.6 China's claims that the Panel erred in its interpretation of the phrase "made
effective in conjunction with" restrictions on domestic production or consumption
5.119. China alleges that the Panel erred in its interpretation of the second clause of Article XX(g)
of the GATT 1994 for two reasons. First, China alleges that the Panel erred in finding an
"additional" requirement of "even-handedness", an d requiring that the burden of conservation-
related measures be distributed in a balanced way between domestic and foreign consumers or
producers.
598 Second, China asserts that the Panel erred in limiting its analysis to an examination
of the general design and structure of China's export quotas, to the exclusion of evidence
regarding the effects of such quotas in the marketplace.599
5.120. In support of its first allegation of error, China contends that, in interpreting the clause
"made effective in conjunction with restrictions on domestic production or consumption" in
subparagraph (g), the Panel identified three separate requirements that a respondent must
demonstrate: (i) that the inconsistent border restriction "relates to the conservation of exhaustible
natural resources"; (ii) that the inconsistent border restriction is "made effective in conjunction
with restrictions on domestic production or consumption"; and (iii) that there is "even-
handedness", that is, proof that the burden of cons ervation is evenly distributed. For China, the
Panel's approach is erroneous because there is no such third requirement. "Even-handedness" is a
relevant part of an Article XX(g) defence, but not in the way that the Panel defined it. For China,
"even-handedness" is simply a shorthand way of referring to the fact that the restrictions on
imports or exports must work "in conjunction with" domestic restrictions. In China's view, there is
no additional requirement to show that the resp ective burdens imposed on foreign consumption,
on the one hand, and domestic production or consumption, on the other hand, are equivalent or
balanced.
5.121. The complainants consider the Panel's approach to be correct and consistent with previous
jurisprudence on Article XX(g). The United States contends that subparagraph (g) requires broad
structural correspondence between the non-conforming measure and the domestic restriction to
determine if the former operated "in conjunction with" the latter.
600 Japan argues that the burden
of conservation must be distributed in a balanced manner between foreign and domestic
consumers, and that it would be difficult to see how a trade measure can work together with
restrictions on domestic production or consumption if this balance is missing.
601 The
European Union submits that, where measures pursuing conservation objectives differ for goods
intended for export and goods intended for domestic consumption, any substantial structural
incoherence between the ways in which each set of restrictions tries to achieve the conservation
goal raises doubts as to whether the measures are genuine conservation measures, and that,

597 Panel Reports, para. 7.379.
598 China's appellant's submission, paras. 217-245; other appellant's submission, paras. 148-176.
599 China's appellant's submission, paras. 246-265; other appellant's submission, paras. 177-196.
600 United States' appellee's submission, paras. 150-160.
601 Japan's appellee's submission, paras. 101-108.
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therefore, the issue of balance or coherence between the two sets of restrictions is a critical part of
the assessment to be made under subparagraph (g).602
5.122. In our view, China's appeal requires us to consider three distinct questions. First, the
question of whether the Panel erred in consider ing the "even-handedness" requirement to be a
separate requirement that had to be fulfilled in addition to the conditions expressly set out in
Article XX(g). Second, the substantive question of whether the Panel correctly understood the
nature of the balance that Article XX(g) requires. Third, whether the Panel erred in finding that it
must limit its analysis under the second clause of Article XX(g) to an examination of the general
design and structure of China's export quotas, to the exclusion of evidence regarding the effects of
these quotas in the marketplace.
5.123. We begin with the first question, that is, whether the Panel considered the "even-
handedness requirement" to be a separate requirem ent that must be fulfilled in addition to the
conditions expressly set out in Article XX(g). We recall that "even-handedness", in the context of
Article XX(g), was first referred to by the Appellate Body in US – Gasoline . At the end of its
interpretation of Article XX(g), the Appellate Body concluded by stating:
[T]he clause "if such measures are made effective in conjunction with restrictions on
domestic product or consumption" is appropriately read as a requirement that the
measures concerned impose restrictions, not just in respect of imported gasoline but
also with respect to domestic gasoline. The clause is a requirement of even-
handedness in the imposition of restrictions, in the name of conservation, upon the
production or consumption of exhaustible natural resources.
603
5.124. The term "even-handedness" was used in US – Gasoline as a synonym or shorthand
reference for the requirement in Article XX(g) that restrictions be imposed not only on international
trade but also on domestic consumption or production. As we see it, "even-handedness" is not a
separate requirement to be fulfilled in addition to the conditions expressly set out in
subparagraph (g). Rather, and in keepin g with the Appellate Body report in US – Gasoline , the
terms of Article XX(g) themselves embody a requir ement of even-handedness in the imposition of
restrictions.
5.125. We note that the Panel explained its understanding of the "even-handedness" requirement
in the context of its interpretation of Article XX(g). That section of the Panel Reports contains three
subsections: first, a subsection entitled "Meaning of 'relating to the conservation of exhaustible
natural resources'"; second, a subsection entitled "Meaning of 'made effective in conjunction with
restrictions on domestic production or consumption'"; and, third, a subsection entitled "The
'even-handedness' requirement". Further, we note the Panel's statement that "the
even-handedness requirement is to be read toge ther with the requirement that the challenged
border restriction be made effective in conjunction with domestic restrictions."
604 These aspects of
the Panel's analysis seem to suggest that the Panel regarded the "even-handedness" requirement
as a separate and additional requirement to be fulfilled for a defence under subparagraph (g) to
succeed. In contrast, the Panel also stated that it understood the "'even-handedness' test to be a
synonym for the second part of subparagraph (g)".
605 This statement seems to indicate that the
Panel understood the second clause of Articl e XX(g), itself, to be the "even-handedness"
requirement.
5.126. It is therefore not clear from the struct ure of the Panel Reports and the Panel statements
identified above whether the Panel considered the "even-handedness" requirement to be a
separate requirement that had to be fulfilled in addition to the conditions expressly set out in
subparagraph (g) as China alleges, or whether it considered the second clause of
subparagraph (g), itself, to be the "even-handed ness" requirement. The Panel's reasoning seems
inconsistent in this regard.
5.127. In any event, we emphasize that we do not see the notion of "even-handedness" as
imposing a separate requirement that must be fulfilled in addition to the condition that a measure

602 European Union's appellee's submission, paras. 256-269.
603 Appellate Body Report, US – Gasoline, p. 20, DSR 1996:I, p. 19. (emphasis original)
605 Panel Reports, para. 7.331.
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be "made effective in conjunction with restrictions on domestic production or consumption".
Rather, and in keeping with the Appellate Body report in US – Gasoline, the terms of Article XX(g)
themselves reflect the notion of even-handedness in the imposition of restrictions. Accordingly, we
find that the Panel erred to the extent that it found that "even-handedness" is a separate
requirement that must be fulfilled in addition to the condition that a measure be "made effective in
conjunction with restrictions on domestic production or consumption".
5.128. Turning to the second question, we consider whether the Panel correctly understood the
balance that Article XX(g) requires, and in particular whether such balance requires a Member
seeking to justify its GATT-inconsistent measure under Article XX(g) to demonstrate that the
burden of conservation is evenly distributed. China alleges that the Panel erred in so finding. China
emphasizes that, in discussing the balance required under Article XX(g), the Appellate Body has
consistently found that there must be a measure that works together with the impugned measure
towards conservation, but has not required, in addition, a balancing of the relative burdens
imposed through the foreign and domestic restrictions.
606
5.129. We begin by noting that, in its analysis of the phrase "made effective in conjunction with",
the Panel used a number of different expressions to describe the way in which the GATT-
inconsistent measure and the domestic restriction must work together in order to meet the
conditions laid down in the second clause of Article XX(g). However, the Panel did not define these
various different expressions and it is not clear from the Panel's analysis whether or how the
various concepts listed differ, or whether the Pane l envisaged that the conditions of the various
concepts must be met alternatively or cumulatively. For instance, the Panel stated that the phrase
"made effective in conjunction with" requires "cooperation between the two measures", and it
found that restrictions on international trade and domestic restrictions must "somehow help or
reinforce one another", or "cooperate with" each other.
607 The Panel also found that "working
together" requires some "positive interaction, mutual reinforcement, complementarity, and
coherent cooperation". 608 These statements appear to be in keeping with the Appellate Body's
interpretation of Article XX(g) in previous disputes . In any event, China has not appealed this part
of the Panel's analysis.
5.130. Subsequently, in its analysis of the "eve n-handedness" requirement, the Panel stated that
China needed to demonstrate that the export qu ota was "somehow balanced" with one or more
measures imposing restrictions on domestic users. 609 The Panel considered that this required an
investigation into the "regulatory" or "structural" balance. 610 The Panel added that
subparagraph (g) also requires a Member seeking to justify its measures to:
… show that, in addition to its GATT-inconsistent measures, it has also imposed real
conservation restrictions on the domestic production or consumption of the resource
subject to its GATT-inconsistent measures. These domestic measures must distribute
the burden of conservation between foreign and domestic consumers in an
even-handed or balanced manner.
611
In addition, in its assessment of the measures at issue, the Panel found with respect to all three
groups of products that, "[f]rom a structural perspective, China's [extraction and] production
restrictions … do not counterbalance its export restrictions"
612, and referred, in a general sense, to
subparagraph (g) as seeking to ensure that the "burden is distributed in an even-handed manner
between foreign and domestic users". 613 The Panel also referred to an "uneven burden … without
any equivalent, counterbalancing burden".614
5.131. The meaning of these statements of the Pane l is not entirely clear, and they may be read
as expressing different concepts. Accordingly, it is difficult to judge whether and to what extent
these statements are consistent with the Appellate Body's interpretation of Article XX(g). If

606 China's appellant's submission, para. 239; other appellant's submission, para. 170.
607 Panel Reports, para. 7.301.
608 Panel Reports, para. 7.302.
609 Panel Reports, para. 7.331.
610 Panel Reports, para. 7.332.
611 Panel Reports, para. 7.337.
612 Panel Reports, paras. 7.595 (rare earths); 7.808 (tungsten); and 7.934 (molybdenum).
613 Panel Reports, paras. 7.600 (rare earths); 7.810 (tungsten); and 7.936 (molybdenum).
614 Panel Reports, para. 7.595.
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understood as meaning that, in the absence of domestic restrictions, a GATT-inconsistent measure
cannot satisfy the second clause of subparagraph (g), the Panel's statement that, "[f]rom a
structural perspective, China's extraction and production restrictions do not counterbalance its
export restrictions" does not seem problematic. However, when read jointly with the Panel's
statement that Article XX(g) seeks to ensure that the "conservation burden is distributed in an
even-handed manner between foreign and domestic users", the same statement may be read to
imply that the export restrictions and domestic measures must evenly distribute the burden of
conservation, for instance, between foreign consumers, on the one hand, and domestic producers
or consumers, on the other hand. Read in that way, the Panel's statements would raise concerns.
5.132. We recall our interpretation of the clause "made effective in conjunction with restrictions
on domestic production or consumption" in Article XX(g). We consider that the phrase "made
effective in conjunction with" requires that, when international trade is restricted, effective
restrictions are also imposed on domestic production or consumption. Just as GATT-inconsistent
measures impose limitations on international trade, domestic restrictions must impose limitations
on domestic production or consumption. In other words, to comply with the "made effective"
element of the second clause of Article XX(g), a Member must impose "real" restrictions on
domestic production or consumption that reinforce and complement the restriction on international
trade
615, and particularly so in circumstances where domestic consumption accounts for a major
part of the exhaustible natural resource to be conserved.
5.133. In previous appeals, in which Members sought to justify measures imposing restrictions on
imported goods under Article XX(g), the Appellate Body has examined in some detail the
restrictive nature of the measures imposed on domestic producers. In US – Gasoline and US –
Shrimp, for example, consideration of the restrictive nature of the measures imposed on domestic
producers was relevant to the Appellate Body's analysis of whether the measures affecting
d o m e s t i c p r o d u c e r s w e r e r e s t r i c t i o n s , a s w e l l a s t o t h e A p p e l l a t e B o d y ' s a n a l y s i s u n d e r t h e
chapeau of Article XX. However, the Appellate Body neither assessed whether the burden of
conservation was evenly distributed between foreign producers, on the one hand, and domestic
producers or consumers, on the other hand, nor suggested that such an assessment was required.
5.134. In other words, the Appellate Body's reasoning does not suggest that Article XX(g)
contains a requirement that the burden of conservation be evenly distributed, for instance, in the
case of export quotas, between foreign consumers, on the one hand, and domestic producers or
consumers, on the other hand. Having said that, we note that it would be difficult to conceive of a
measure that would impose a significantly more onerous burden on foreign consumers or
producers and that could still be shown to satisfy all of the requirements of Article XX(g).
5.135. This understanding of subparagraph (g) is also confirmed by the context provided by the
chapeau of Article XX.
616 The chapeau of Article XX requires that measures falling within the ambit
of Article XX of the GATT 1994 are not applied in a manner that would constitute either a means of
arbitrary and unjustifiable discrimination between co untries where the same conditions prevail, or
a disguised restriction on international trade. In order to comply with Article XX, a measure needs
to fulfil cumulatively the conditions specified both in subparagraph (g) and in the chapeau. If,
however, subparagraph (g) itself required an anal ysis of whether the burden of conservation is
evenly distributed, this could entail duplication of the analysis to be conducted under the chapeau,
in particular in cases involving discriminatory measures. This would not comport with the principle
of effective treaty interpretation.
5.136. Accordingly, we consider that the clause "made effective in conjunction with restrictions on
domestic production or consumption" requires that, when GATT-inconsistent measures are in
place, effective restrictions must also be imposed on domestic production or consumption. Just as
GATT-inconsistent measures impose limitations on international trade, domestic restrictions must
impose limitations on domestic production or consumption. Such restrictions must be "real" rather

615 Panel Reports, paras. 7.310, 7.312, and 7.330.
616 The chapeau of Article XX stipulates:
Subject to the requirement that such measures are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where the same
conditions prevail, or a disguised restriction on international trade, nothing in this Agreement
shall be construed to prevent the adoption or enforcement by any contracting party of
measures[.]
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

than existing merely "on the books", particularly in circumstances where domestic consumption
accounts for a major part of the exhaustible natural resources to be conserved. Moreover, such
restrictions on domestic production or consumption must reinforce and complement the restriction
on international trade. However, we have also clarified that Article XX(g) does not require a
Member seeking to justify its measure to establish that its regulatory regime achieves an even
distribution of the burden of conservation. Accordin gly, we find that the Panel erred to the extent
that it found that the burden of conservation mu st be evenly distributed, for example, between
foreign consumers, on the one hand, and domestic producers or consumers, on the other hand.
5.137. Finally, we address China's allegation that the Panel erred in its interpretation in finding
that it must limit its analysis under the second clause of subparagraph (g) of Article XX of the
GATT 1994 to an examination of the general design and structure of China's export quotas, to the
exclusion of evidence regarding the effects of such quotas in the marketplace.
617 China takes issue
with, inter alia, the following statements made by the Panel:
The Panel's task under subparagraph (g) is limited to determining whether China's
regulatory system balances conservation-r elated regulatory burdens between foreign
and domestic users; the Panel is not required under subparagraph (g) to consider the
actual effects which a regulatory structure has in the marketplace. Such effects are
properly examined under the chapeau of Article XX.
618
These domestic measures must distribute the burden of conservation between foreign
and domestic consumers in an even-handed or balanced manner. However,
"even-handedness" under subparagraph (g) does not require the Panel to assess the
effects of the concerned restrictions. Instead, the relevant "balance" or "even-
handedness" under subparagraph (g) is stru ctural or regulatory. The balanced or
even-handed nature of the domestic and foreign restrictions should be evident from
the design, structure, and architecture of the challenged measure. Therefore, the
Panel believes that issues relating to the effects of China's challenged export quotas
on prices, as well as the question why the challenged export quotas were not filled
and what effect if any an unfilled export quota has on foreign consumers, are
concerned with the application and effects of the challenged export quotas, which are
properly assessed under the chapeau of Article XX.
619
5.138. We begin by noting the similarities between this claim of error by China and its claim that
the Panel erred in its interpretation of the "relating to" requirement of Article XX(g). We recall that,
in addressing China's claim regarding the interpretation of the term "relating to" above, we have
found that, although the assessment under Articl e XX(g) of the GATT 1994 does not require an
examination of the actual effects of the challenged measure, a panel is not precluded from
examining evidence of such effects.
620 We also explained that, while the legal characterization of a
measure cannot be contingent upon the occurrence of subsequent events, the predictable effects
of a measure – those that are discernible from its design and structure – may still be relevant to
an assessment of whether a measure satisfies the conditions prescribed in Article XX(g). These
considerations apply equally to the assessment of whether the measure at issue "relates to" the
conservation of exhaustible natural resources an d to the assessment of whether the responding
Member imposes real restrictions on domestic producers or consumers that are "made effective in
conjunction with" the measure at issue.
5.139. We note that the Panel repeatedly emphasized that it had to focus its analysis on the
"structure, design, and architecture" of the measure.
621 The Panel also emphasized that such
analysis "does not entail any form of 'effects test'". 622 In addition, the Panel stated that it is "not
required under subparagraph (g) to consider the actual effects which a regulatory structure has in

617 China's appellant's submission, paras. 247-265; other appellant's submission, paras. 177-196.
618 Panel Reports, para. 7.332.
619 Panel Reports, para. 7.337.
620 See paragraph 5.113 of these Reports.
621 Panel Reports, para. 7.332. See also ibid., paras. 7.328 and 7.337.
622 Panel Reports, para. 7.332. See also ibid., paras. 7.328 and 7.337.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

the marketplace" and that "[s]uch effects ar e properly examined under the chapeau of
Article XX."623
5.140. Contrary to what China suggests, however, the Panel did not state that "a panel is
precluded from examining the market 'effects' of domestic and export restrictions under the
second clause of Article XX(g)." 624 We read the Panel's explanations of its approach as revealing
that, while the Panel considered that evidence rela ting to the actual operation and impact of the
measure at issue was primarily relevant to the analysis under the chapeau of Article XX, it did not
consider itself precluded from considering such evidence in the context of the analysis under
subparagraph (g). Moreover, we do not read the Panel's statement that effects are properly
examined under the chapeau of Article XX as suggesting that effects could only be examined under
the chapeau.
625 Accordingly, we find that the Panel di d not err in focusing on the design and
structure of the measures at issue in its analysis under subparagraph (g).
5.141. In sum, we find that the Panel erred to th e extent that it found that "even-handedness" is
a separate requirement that must be fulfilled in addition to the condition that a measure be "made
effective in conjunction with" restrictions on domestic production or consumption, and to the
extent that it found that Article XX(g) requires the burden of conservation to be evenly distributed,
for instance, between foreign consumers, on the one hand, and domestic producers or consumers,
on the other hand. However, other elements of the Panel's interpretation of the phrase "made
effective in conjunction with" appear to be in k eeping with the Appellate Body's interpretation of
Article XX(g). We consider that, to the extent that the Panel erred, such error does not taint the
remaining elements of the Panel's interpretation of the second clause of subparagraph (g). In any
event, we note that China's appeal does not concern those other elements. Furthermore, we find
that the Panel did not err in focusing on the desi gn and structure of the measures at issue in its
analysis of Article XX(g) of the GATT 1994.
5.2.7 Application of Article XX(g) of the GATT 1994
5.2.7.1 Introduction
5.142. Having addressed China's claims that the Panel erred in its interpretation of the terms
"relating to" and "made effective in conjunction with" in Article XX(g) of the GATT 1994, we now
direct our attention to China's claims that the Panel erred in its application of the legal standard
under Article XX(g) to the facts of this case. First, we examine China's claim that the Panel erred in
its application of the legal standard of "relating to" with particular respect to the "signalling
function" of China's export quotas on rare earths and tungsten. Second, we address China's claim
that the Panel erred in its application of the legal standard for "made effective in conjunction with"
to China's export quotas on rare earths, tungsten, and molybdenum.
5.2.7.2 China's claim that the Panel erre d in its application of the "relating to"
requirement
5.143. China requests us to reverse the Panel's findings that China's export quotas on rare earths
and tungsten do not "relate to" conservation within the meaning of Article XX(g) of the GATT 1994

624 China's appellant's submission, para. 322; other appellant's submission, para. 253.
625 In this vein, we note that, with respect to the chapeau, the Appellate Body has held that:
Although … the focus of the inquiry is on the manner in which the measure is applied, the
Appellate Body has noted that whether a measure is applied in a particular manner "can most
often be discerned from the design, the architecture, and the revealing structure of a measure".
It is thus relevant to consider the design, architecture, and revealing structure of a measure in
order to establish whether the measure, in its actual or expected application, constitutes a
means of arbitrary or unjustifiable discrimination between countries where the same conditions
prevail.
(Appellate Body Reports, EC – Seal Products, para. 5.302 (quoting Appellate Body Report, Japan – Alcoholic
Beverages II, p. 29, DSR 1996:I, p. 120) (fn omitted))
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

by virtue of their signalling function. 626 In particular, China challenges the following intermediate
finding by the Panel:
The Panel agrees with China that its export quota may signal to the world its limited
resources and its conservation policy, but China has not been able to demonstrate
how it manages to tackle the perverse signals that export quotas usually send to
domestic consumers. The Panel therefore does not accept China's argument that its
export quota relates to conservation by virtue of its signalling function.
627
5.144. China raises two sets of issues in its claim. First, China submits that, because of the
Panel's incorrect interpretation that "subparagraph (g) does not require an evaluation of the actual
effects of the concerned measures"
628, the Panel did not move beyond an examination of the
design and structure of China's export quotas by testing to see whether: (i) the theoretical
"perverse signals" were actually present in the marketplace for rare earths and tungsten; and
(ii) there was in fact a risk that "perverse signals" sent by export quotas to domestic users might
offset the positive effect of conservation signals to foreign users. Second, China contends that,
even limiting the analysis to the elements of desi gn and structure of the export quotas, the Panel
erred because: (i) the Panel's own factual findings based on the design and structure were
sufficient for it to conclude that China's export quotas relate to conservation based on the finding
that the quotas can send effective conservation signals to foreign users; and (ii) even if the Panel
were right that the general effect of export quotas is to send a "perverse signal" to domestic users,
the Panel also found that China maintains a comprehensive conservation programme and such
conservation programme is clearly capable of mitigating such perverse effects.
5.145. The complainants request us to reject China's arguments and to uphold the relevant Panel
findings and conclusions. The complainants stress that the reasoning of the Panel with respect to
"signalling" is only part of the Panel's analysis of the "relating to" requirement, and that China's
appeal focuses on isolated fragments of the Panel's reasoning. The complainants also point out
that, contrary to China's assertion, the Panel did not conclude that it was precluded from reviewing
China's evidence. Moreover, the Panel did, in fact, review the evidence provided by China, but still
found that China had failed to show how its export quotas, in their design and structure, relate to
conservation. The complainants also contest China's assertion that the Panel found that China's
export quotas on rare earths and tungsten can send effective conservation signals to foreign users.
5.146. Before turning to the two sets of issues rais ed by China, we consider it useful to underline
once again the limited scope of China's appeal in this regard. Although China requests a reversal of
the Panel's findings that China's export quotas on rare earths and tungsten do not satisfy the
"relating to" requirement of Article XX(g), China's appeal takes issue with only limited aspects of
the reasoning underlying these findings.
629 Furthermore, in response to questioning at the oral
hearing, China acknowledged that even the requeste d reversal of the Panel's findings would, if
accepted, not affect the ultimate conclusion of the Panel under Article XX(g) of the GATT 1994.
According to China, its main concern in challenging these Panel findings is that they suggest that
export quotas are per se incapable of justification under Article XX of the GATT 1994.
5.147. We start by recalling our finding, in paragraph 5.118 above, that it is inaccurate to
characterize the Panel's reasoning as suggesting that the Panel considered itself required to limit
its analysis to an examination of the general design and structure of the measures at issue. Nor do
we read the Panel's reasoning as suggesting that the Panel considered itself legally compelled to
disregard evidence of the effects of China's export quotas as well as of the operation of the other
elements of China's conservation scheme in the ma rketplace. We have also found that the Panel
did not err by considering that it should focus on the design and structure of the export quotas in
an assessment of whether those measures relate to the conservation of exhaustible natural

626 China's appellant's submission, paras. 30, 208, 209, 319, and 320; other appellant's submission,
paras. 30, 139, 140, 250, and 251. China's request refers to paragraphs 7.444, 7.446-7.448, 7.541, 7.542,
7.604, 7.725, and 7.731 of the Panel Reports. The Panel's analysis of the "signalling function" of China's export
quota on rare earths is set out at paragraphs 7.440-7.448 of its Reports. The Panel's analysis of the "signalling
function" of China's export quota on tungsten is set out at paragraphs 7.721-7.731 of its Reports.
627 Panel Reports, para. 7.604. This finding is specific to China's export quota on rare earths. The Panel
made a similar finding in respect of China's export quota on tungsten. (Panel Reports, para. 7.725)
628 China's appellant's submission, paras. 17 and 141; other appellant's submission, paras. 17 and 72
(quoting Panel Reports, para. 7.379).
629 See paragraph 5.81 of these Reports.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

resources within the meaning of Article XX(g) of the GATT 1994. In addition, we have found that
the Panel did not err in stating that "the analysis under subparagraph (g) does not require an
evaluation of the actual effects of the concerned measures".
630 We have clarified, however, that a
panel is not precluded from examining evidence of such effects.
5.148. Bearing these findings in mind, we observe that China argued before the Panel that its
export quotas on rare earths and tungsten relate to conservation because they send a
conservation "signal" to foreign consumers. China explained that the export quotas contributed to
the effectiveness of China's overall conservation po licy by signalling to foreign users the need to
explore other sources of supply, in cluding substitutes and recycling.
631 The complainants, on their
part, argued before the Panel that, while an export quota may send a conservation-related signal
to foreign users, it simultaneously signals to domestic consumers that they should increase their
consumption of the product concerned. According to the complainants, such "perverse signals"
contradicted China's claim that its export quotas relate to conservation
632, particularly given that
most rare earths and tungsten produced in China are consumed in China.
5.149. In respect of China's export quota on rare earths, the Panel found that:
… China has not demonstrated that, in the design of its export quota and its
conservation programme more generally, there is any mechanism to ensure that the
export quota and the extraction and/or produc tion caps will work together in such a
way as to counteract the perverse signals sent by its export quota to domestic
consumers. As such, the Panel considers that the risk of perverse signals is real, and
this casts doubt on China's claim that the export quota "relates to" conservation.
The Panel takes note of China's indication that various rare earth recycling projects,
efforts to modify industrial designs of downstream products so that they use less rare
earths, and developments of rare earth substitutes are under way. The Panel
acknowledges that these efforts may go a long way towards furthering what all
involved in this dispute recognize is China's bona fide conservation policy.
Nevertheless, our consideration of the design and architecture of China's export quota
on rare earths does not convince us that the export quota is designed in such a way
as to ensure that domestic demand is not stimulated by low prices. There does not
appear to be any mechanism to ensure that the export quota is set at such a level
that, in combination with the extraction and/or production caps, no perverse
incentives will be sent to domestic consumers.
633
5.150. With respect to China's export quota on tungsten, the Panel found:
The Panel has dealt with the argument that export quotas send a "signal" to foreign
users above in its analysis of the export quota on rare earths, and considers that what
was said there applies with equal force here. While the Panel accepts that export
quotas do or at least can send conservation-related signals to foreign users, the Panel
is concerned that such quotas can also send perverse signals to domestic consumers,
and can even stimulate domestic demand, contrary to China's stated conservation
goals. Moreover, the Panel has explained ab ove why the imposition of an extraction
and/or a production quota may not suffice to counteract or offset such perverse
incentives. As was the case in the context of rare earths, the Panel is not convinced
that the design and architecture of China's export quotas, even taken together with
the extraction and production caps, is such as to counteract the perverse signals
which are generally sent by export quotas. As such, the Panel has difficulty concluding
that the export quota on tungsten, which risks encouraging or stimulating domestic
demand and even leading, in the medium-lon g-term, to more, rather than less, illegal

630 Panel Reports, para. 7.379.
631 Panel Reports, paras. 7.440 and 7.721.
632 Panel Reports, paras. 7.441, 7.723, and 7.724.
633 Panel Reports, paras. 7.447 and 7.448 (referring to China's first written submission to the Panel,
paras. 143 and 144 (fn omitted)).
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

extraction and production, can be said to "relate to" conservation for the purposes of
Article XX(g).634
5.151. On appeal, it is China's contention that, due to the Panel's error of interpretation in holding
that "subparagraph (g) does not require an evaluation of the actual effects of the concerned
measures"635, the Panel failed to go beyond an examinat ion of the design and structure of China's
export quotas on rare earths and tungsten to test whether the theoretical "perverse signals" sent
by the export quotas were actually pres ent in the marketplace for those products.
636 For China,
this error of interpretation also led the Panel to fail to engage with considerable evidence on how
China's measures work as part of China's comprehensive conservation policy in the context of the
reality of the Chinese and world markets for rare earths and tungsten. As part of this context,
China alleges that it: (i) provided extensive eviden ce on the operation and the effects of domestic
extraction and production caps on rare earths; (ii) demonstrated that it has in place mechanisms
to enforce these caps and has taken regular enfo rcement actions to combat illegal mining and
production; and (iii) provided evidence demonstrating the effects of these measures, including of a
decline in the extraction and production of rare earths.
637
5.152. Our review of the Panel's analysis reveals that the Panel indeed focused on the design and
structure of the export quotas on rare earths and tungsten in arriving at its conclusion that China
had not demonstrated that these export quotas do not "relate to" conservation by virtue of their
"signalling" function. For the same reasons as set out above in our consideration of the Panel's
alleged error of interpretation, this focus, in and of itself, does not constitute an error by the Panel
in its application of the "relating to" requirement of Article XX(g). More importantly, we do not
agree with China's contention that the Panel's focu s on the design and structure of China's export
quotas meant that it failed to engage with the evidence submitted by China. Indeed, we note that
the Panel in fact considered evidence submitted by China regarding the operation of China's export
quotas and its interaction with China's extraction and production quotas. We address this issue in
more detail in our analysis of China's claims under Article 11 of the DSU below.
5.153. In sum, we do not agree with China's contention that the Panel applied an incorrect legal
standard that limited its analysis to an examinat ion of the design and structure of China's export
quotas only, or that this prevented the Panel from engaging with evidence of the broader
operation of China's conservation regime.
5.154. We turn to China's second contention that, even limiting the analysis to the elements of
design and structure, the Panel erred because: (i) the Panel's own factual findings based on the
design and structure of China's export quotas on rare earths and tungsten were sufficient for it to
conclude that these export quotas relate to cons ervation based on the finding that the quotas can
send effective conservation signals to foreign users; and (ii) even if the Panel were right that a
general effect of export quotas is to send a "perverse signal" to domestic users, the existence of
China's comprehensive conservation programme is capable of mitigating such perverse effects.
5.155. China points to paragraphs 7.443 and 7.725 of the Panel Reports in making its allegation
that the Panel should have found that the design and structure of China's export quotas "relate to"
conservation "based on its finding that the quotas can send effective conservation signals to
foreign users".
638 These paragraphs read, in relevant part:
The Panel accepts China's argument that encouraging foreign users and investors to
explore alternative sources of supply could relate to the goal of conserving China's
exhaustible natural resources, since the development of alternative supply sources
would "relieve the pressure on" China's own rare earth supplies.
639

634 Panel Reports, para. 7.725 (referring to Panel Reports, China – Raw Materials, para. 7.586).
635 China's appellant's submission, paras. 17 and 141; other appellant's submission, paras. 17 and 72
(quoting Panel Reports, para. 7.379).
636 China's appellant's submission, para. 143; other appellant's submission, para. 74.
637 China's appellant's submission, paras. 168-171; other appellant's submission, paras. 99-102
(referring to Panel Exhibits CHN-39 and CHN-85).
638 China's appellant's submission, para. 175; other appellant's submission, para. 106 (referring to Panel
Reports, paras. 7.443 and 7.725).
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

The Panel has dealt with the argument that export quotas send a "signal" to foreign
users above in its analysis of the export quota on rare earths, and considers that what
was said there applies with equal force here. While the Panel accepts that export
quotas do or at least can send conservation-related signals to foreign users, the Panel
is concerned that such quotas can also send perverse signals to domestic consumers,
and can even stimulate domestic demand, contrary to China's stated conservation
goals. Moreover, the Panel has explained ab ove why the imposition of an extraction
and/or a production quota may not suffice to counteract or offset such perverse
incentives. … As such, the Panel has difficulty concluding that the export quota on
tungsten, … can be said to "relate to" conservation for the purposes of
Article XX(g).
640
5.156. We consider China's representation of the Panel's findings to be inaccurate. The Panel did
not find that export quotas can send " effective conservation signals to foreign users". 641 Rather,
while the Panel acknowledged that "export quotas do or at least can send conservation-related
signals to foreign users", the Panel also noted that this was undermined by the "perverse signals"
that export quotas are liable to send to domest ic consumers. The Panel considered that export
quotas also "stimulate domestic consumption by effectively reserving a supply of low-price raw
materials for use by domestic downstream industries". 642 The Panel further found that the export
quotas "may also encourage relocation of rare earth-consuming industries to China". 643 China's
contention that the Panel's finding that "export quotas do or at least can send conservation-related
signals to foreign users" should have been sufficient for the Panel to find that China's export
quotas relate to conservation fails to acknowledge important elements of the Panel's reasoning in
this regard. In particular, while it is accepted that, in principle, encouraging foreign users to
explore alternative sources of supply "could" relate to a conservation objective, and that export
quotas "can" send such a signal, the Panel did not find that China's export quotas do send such
signals, much less that such signals are "effective".
644 Furthermore, these Panel findings were
coupled with its additional determination that any conservation-related signals sent by the export
quotas were, in any event, undermined by the "perverse signals" that the export quotas are liable
to send to domestic users. 645 Accordingly, we do not consider that China has demonstrated that
the Panel erred in its application of the law to the facts on this point.
5.157. We turn now to China's additional argument that, even if the Panel were right that the
general effect of export quotas is to send "perverse signals" to domestic users, the existence of
China's comprehensive conservation programme is capable of mitigating such "perverse signals".
China's position is that, even if it were relevant to consider the relationship between the "perverse
signals" of the export quotas, on the one hand, an d domestic conditions that might mitigate such
signals to domestic users, on the other hand, the Panel should have found – purely as a matter of
design and structure – that China's regime "relates to" conservation, because there are domestic
production caps that could mitigate any "per verse signals". Based on this argument that
production caps could, in principle, mitigate th e "perverse signals" found by the Panel to exist,

640 Panel Reports, para. 7.725 (referring to Panel Reports, China – Raw Materials, para. 7.586) (fn
omitted).
641 China's appellant's submission, para. 175; other appellant's submission, para. 106. (emphasis
added)
642 Panel Reports, para. 7.444 (referring to Panel Reports, China – Raw Materials, para. 7.586).
(emphasis omitted)
643 Panel Reports, para. 7.444.
644 Panel Reports, paras. 7.443 and 7.725.
645 In a similar vein, we note that, in the context of its analysis of whether China's export quota on rare
earths is "made effective in conjunction with" domestic restrictions, the Panel also addressed the significantly
large quantity of rare earths consumed in China's domestic market, and the doubts that this raised regarding
China's conservation objective. The Panel considered that, if domestic users of a resource are exempted from
the domestic restriction, it would be difficult to conclude that a GATT-inconsistent measure supposedly justified
under Article XX(g) properly "relates to" conservation, since unregulated domestic exploitation could
undermine such conservation – and this would be especially the case when the majority of what is to be
conserved is consumed only domestically. The Panel observed that China's domestic consumers represent an
important share of world consumption of rare earths. The Panel further noted that an important quantity of
rare earths that was initially designated for export was redirected to the domestic market (for which it was not
destined under China's original comprehensive conservation policy). To the Panel, this reinforced the
fundamental fact that the vast majority of rare earths produced in China are consumed domestically, further
raising doubts about the usefulness and effectiveness of export quotas. (See Panel Reports, paras. 7.328
and 7.579)
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

China contends that the theoretical "sum" of the de sign and structure of this regulatory regime is
that it is one "apt" to make a positive overall contribution to the realization of China's conservation
ends.
646
5.158. In connection with this argument, China challenges the reasoning of the Panel as set out at
paragraphs 7.446 and 7.725 of its Reports. These paragraphs read, in relevant part:
… While it may be true that extraction and/or production quotas could, in theory,
counteract the perverse signals sent by export quotas to domestic consumers, it
seems to us that whether or not a production quota coupled with an export quota cuts
domestic consumption depends entirely on the level at which the production quota is
set and the way in which the export and production quotas interact. According to [the
expert report submitted by the complain ants as Panel] Exhibit JE-183, if the
production quota is very tight, it will reduce domestic consumption. At more generous
levels, however, it may not reduce consumption at all, or it may reduce it while still
leaving it above the level it would be in the absence of export restrictions.
647
The Panel has dealt with the argument that export quotas send a "signal" to foreign
users above in its analysis of the export quota on rare earths, and considers that what
was said there applies with equal force here. While the Panel accepts that export
quotas do or at least can send conservation-related signals to foreign users, the Panel
is concerned that such quotas can also send perverse signals to domestic consumers,
and can even stimulate domestic demand, contrary to China's stated conservation
goals. Moreover, the Panel has explained ab ove why the imposition of an extraction
and/or a production quota may not suffice to counteract or offset such perverse
incentives. As was the case in the context of rare earths, the Panel is not convinced
that the design and architecture of China's export quotas, even taken together with
the extraction and production caps, is such as to counteract the perverse signals
which are generally sent by export quotas. As such, the Panel has difficulty concluding
that the export quota on tungsten, which risks encouraging or stimulating domestic
demand and even leading, in the medium-lon g-term, to more, rather than less, illegal
extraction and production, can be said to "relate to" conservation for the purposes of
Article XX(g).
648
5.159. The Panel thus found that whether or not the production quotas could counteract the
"perverse signals" generated by export quotas to domestic consumers depended on: (i) the level
at which each production quota was set; and ( ii) the way in which the export and production
quotas interact. This shows that, contrary to what China suggests, the Panel considered that the
mere existence of China's domestic production caps, alone, would not necessarily mitigate any
"perverse signals" that flow from China's export quotas. Indeed, this uncertainty regarding the
levels of the export and production quotas led the Panel to highlight its concern about the absence
of "any mechanism to ensure that the export quota is set at such a level that, in combination with
the extraction and/or production caps, no perverse incentives will be sent to domestic
consumers".
649 Hence, following our review of the Panel's analysis, we are not persuaded by
China's argument that the Panel should have found – purely as a matter of design and structure –
that China's regime relates to conservation because there are domestic production caps that could
mitigate any "perverse signals" that exist.
5.160. For all of the reasons discussed above, we do not share China's view that the Panel erred
in its application of the "relating to" requirement in Article XX(g) of the GATT 1994. In particular,
we do not agree with China's contention that the Panel applied an incorrect legal standard that
limited its analysis to an examination of the desi gn and structure of China's export quotas only,
and that this prevented the Panel from engaging wi th evidence of the broader operation of China's
conservation regime. We also consider that the Panel did not, as suggested by China, find that
export quotas can send effective conservation signals to foreign users. Additionally, we are not
persuaded by China's argument that the Panel should have found – purely as a matter of design

646 China's appellant's submission, para. 179; other appellant's submission, para. 110.
647 Panel Reports, para. 7.446 (referring to Panel Exhibit JE-183, p. 5). (emphasis original; fn omitted)
648 Panel Reports, para. 7.725 (referring to Panel Reports, China – Raw Materials, para. 7.586). (fn
omitted)
649 Panel Reports, para. 7.448.
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and structure – that China's regime relates to conservation because the existence of domestic
production caps mitigate any "perverse signals" sent to domestic consumers by the export quotas.
5.161. Before concluding our analysis, we briefly address China's concern that the Panel's findings
suggest that export quotas are per se incompatible with Article XX of the GATT 1994, and that this
prevents China from having any "realistic implementation options". 650 We take note of the
following remarks by the Panel:
[I]n principle, Article XX is available as a defence to any and every kind of
GATT-inconsistent trade measure, including export quotas. The Panel's analysis in this
case – or, indeed, the analyses of other panels and the Appellate Body in prior cases –
should not be understood as suggesting that export quotas can never relate to
conservation.
651
5.162. We concur with these remarks by the Panel. Article XX(g) of the GATT 1994 does not
exclude, a priori, export quotas or any other type of measure from being justified by a WTO
Member pursuing the conservation of an exhaustible natural resource. Instead, Article XX(g)
simply prescribes the multiple conditions that must all be satisfied for a WTO Member to justify its
GATT-inconsistent measure.
5.2.7.3 China's claims that the Panel erred in its application of the "made effective in
conjunction with" requirement
5.163. China requests us to reverse the Panel's findings concerning the application of the phrase
"made effective in conjunction with" in su bparagraph (g) of Article XX of the GATT 1994. 652 China
alleges that the Panel erred, first, in applying an additional and separate requirement of
"even-handedness", in understanding the balancing that Article XX(g) requires as meaning that
the burden of conservation must be evenly di stributed between foreign consumers, on the one
hand, and domestic producers or consumers, on the other hand; and, second, by focusing on the
design and structure of the domestic restrictions, to the exclusion of evidence relating to their
operation.653
5.164. With regard to its first allegation, China challenges the Panel's reasoning set out at
paragraphs 7.594 and 7.595 of its Reports discussing "even-handedness" in the context of the
export quota on rare earths; in paragraphs 7.808 and 7.809 discussing "even-handedness" in the
context of the export quota on tungsten; and paragraphs 7.934 and 7.935 discussing "even-
handedness" in the context of the export quota on molybdenum. For China, the Panel's application
of even-handedness as requiring th at the burden of conservation be evenly distributed is an error
flowing directly from the Panel's flawed interpretative finding that there is such a requirement of
an even distribution of the burden of conservation in subparagraph (g).
5.165. We recall our analysis of the Panel's interpretation of the clause "made effective in
conjunction with restrictions on domestic production or consumption". We have concluded that
Article XX(g) requires the imposition of real limitations on domestic production or consumption
that operate so as to reinforce and complement the restriction imposed on international trade.
Subparagraph (g) thus requires that the trade measure and the domestic restriction in their joint
operation impose effective limitations, both on international trade and on domestic production or
consumption. However, we have also found above that Article XX(g) contains no requirement that
the burden of conservation be evenly distributed, for example, in the case of the export quotas at
issue, between foreign consumers, on the one hand, and domestic producers or consumers, on the
other hand, and that the Panel erred to the extent that it stated that the burden of conservation
must be distributed in that manner.
5.166. Turning back to the Panel's application of the clause "made effective in conjunction with",
we note that the Panel addressed the question of "even-handedness" in its separate analyses with

650 China's response to questioning at the oral hearing.
652 China's appellant's submission, para. 322; other appellant's submission, para. 253. China refers
specifically to paragraphs 7.301, 7.314-7.337, 7.568-7.599, 7.792-7.809, and 7.919-7.935 of the Panel
Reports.
653 China's appellant's submission, para. 267; other appellant's submission, para. 198.
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regard to the export quotas on rare earths, tungsten, and molybdenum, respectively. The Panel
found with respect to all three groups of products that, "[f]rom a structural perspective", China's
extraction and production restrictions "do not counterbalance its export restrictions"
654, and
referred, in a general sense, to subparagraph (g ) as seeking to ensure that the conservation
burden is "distributed in an even-handed manner between foreign and domestic users".655
5.167. While the Panel made the above general stat ements in the course of its analysis that can
be read as suggesting that subparagraph (g) requires a Member to establish an even distribution
of the burden of conservation, the Panel did not in fact engage in any such assessment in applying
Article XX(g). Contrary to what China alleges, th e Panel did not apply a requirement that China's
measures must evenly distribute the burden of conservation between foreign consumers, on the
one hand, and domestic producers or consumers, on the other hand. Rather, the Panel relied
primarily on the fact that the challenged export quota had no domestic counterpart 656, and
therefore the Panel's specific findings in this regard were based on the absence of restrictions
imposed on domestic producers or consumers. More over, with respect to each product, the Panel
correctly referred to the requirement that the ex port quota must "work together" with domestic
restrictions.657
5.168. For these reasons, the Panel's application of Article XX(g) to China's export quotas, which
does not contain an inquiry into whether the relative conservation burdens imposed by China on
domestic and foreign producers or consumers were evenly distributed, is consistent with our
interpretation of the clause "made effective in conjunction with restrictions on domestic production
or consumption" set out above. We have found that Article XX(g) requires an effective limitation
on domestic production or consumption that operates together with, and so as to reinforce and
complement, the restriction imposed on international trade. While subparagraph (g) requires that
the trade measure and the domestic restriction in their joint operation impose limitations, not only
on international trade but also on domestic prod uction or consumption, subparagraph (g) does not
require an inquiry into whether the burden of co nservation is evenly distributed between foreign
and domestic consumers. In the present disputes, the Panel found, without undertaking an
assessment of whether the burden of conservati on was evenly distributed between foreign and
domestic consumers, that China's export quotas on rare earths, tungsten, and molybdenum are
not "made effective in conjunction with restrictions on domestic production or consumption", based
primarily on the absence of specific restrictions on domestic production or consumption.
658
5.169. Accordingly, we consider that, despite certain flaws in the Panel's interpretation, the Panel
did not commit legal error in its application of Article XX(g) to the export quotas. We therefore do
not disturb the Panel's findings concerning the application of Article XX(g) of the GATT 1994.
5.170. Finally, China alleges that the Panel erred in its application of subparagraph (g) because it
failed to explain or demonstrate why evidence submitted by China relating to the export,
extraction, and production quotas discounted the restrictive effect on domestic consumers of
enforced extraction and production quotas. China emphasizes that its evidence demonstrated that
its extraction and production quotas were enforced by a wide range of measures and maintained
at levels that placed an overarching limit on total extraction and production.
5.171. We note that China makes essentially the same allegations in relation to its claim that the
Panel failed to make an objective assessment of the matter as required by Article 11 of the DSU.
In both its appellant's and other appellant's submissions, China refers to arguments set out in
relation to its claims under Article 11 for a "det ailed discussion" and "more detailed arguments" in
support of its claim that the Panel erred in its application of the clause "made effective in
conjunction with restrictions on domestic production or consumption" in Article XX(g).
659 In doing
so, China itself acknowledges that its claims relating to the Panel's application of Article XX(g)
overlap with its claims under Article 11 of the DSU.

654 Panel Reports, paras. 7.595 (rare earths); 7.808 (tungsten); and 7.934 (molybdenum).
655 Panel Reports, paras. 7.600 (rare earths); 7.810 (tungsten); and 7.936 (molybdenum).
656 Panel Reports, para. 7.610. See also ibid., paras. 7.808 (tungsten) and 7.934 (molybdenum).
657 Panel Reports, paras. 7.597 (rare earths); 7.808 (tungsten); and 7.934 (molybdenum).
658 Panel Reports, paras. 7.595 (rare earths); 7.808 (tungsten); and 7.934 (molybdenum).
659 China's appellant's submission, fn 232 to para. 281, and fn 239 to para. 285; other appellant's
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5.172. Similarly, with regard to China's claims th at the Panel erred in its application of the legal
standard for the term "relating to", China has put forward arguments that mirror those presented
in support of its claims under Article 11 of the DSU. In particular, China suggests that the Panel's
findings that China's export quotas send "perverse signals" to domestic consumers are "theoretical
assertions" that lack "any factual evidentiary" basis.
660 In the same vein, China alleges that the
Panel arrived at its "'perverse effects' presumption without citing a single piece of evidence". 661
China considers this Panel finding "particularly troubling", given that China provided considerable
evidence relevant to the question of whether ther e actually was a perverse effect from the export
quotas.662 In this regard, China alleges that it provided "extensive evidence" on the operation of
the domestic extraction and production caps on rare earths, as well as evidence demonstrating the
effects of these measures, including the decline of extraction and production of rare earths.
663
Additionally, China contends that it provided evid ence indicating that the 2012 rare earth export
quotas did not have any of the perverse effects alleged by the Panel because they neither
decreased Chinese domestic rare earth prices nor encouraged relocation of rare earth-consuming
industry to China.
664 These arguments and evidence are id entical to those that China has put
forward in support of its claim that, by failing to consider such evidence, the Panel acted
inconsistently with Article 11 of the DSU. Indeed, we note that the footnotes to China's arguments
relating to the Panel's application findings reference the corresponding arguments relating to
China's claims under Article 11 of the DSU, and vice versa.
665
5.173. Distinguishing a claim that a panel erred in applying a legal provision to the facts of the
case from a claim that a panel failed to make an objective assessment of the matter as required by
Article 11 of the DSU may, at times, prove a diff icult task. However, as the Appellate Body has
previously stated, "[i]n most cases … an issue will either be one of application of the law to the
facts or an issue of the objective assessment of facts, and not both." 666 Allegations implicating a
panel's appreciation of facts and evidence fall under Article 11 of the DSU. By contrast, the
consistency or inconsistency of a given fact or set of facts with the requirements of a given treaty
provision involves a legal characterization and is therefore a legal question.
667 Importantly, a claim
that a panel failed to comply with its duties under Article 11 of the DSU "must stand by itself" and
should not be made merely as a subsidiary argument or claim in support of a claim that the panel
failed to apply correctly a provision of the covered agreements.
668 In our view, the opposite is also
true.
5.174. We note that, when the Appellate Body was faced with similarly overlapping claims of error
in the application of a legal provision to the facts and under Article 11 of the DSU in China – GOES,
it determined that, as the claims related to the panel's application of the legal standard, there was
no basis to have an additional examination of whether the panel had conducted an objective
assessment of the facts under Article 11 of the DSU. 669 More recently, the Appellate Body in EC –
Seal Products noted that, where claims relate to a panel's weighing and appreciation of the
evidence, they are primarily factual in nature, and such claims are properly addressed under
Article 11 of the DSU as challenges to the objectivity of the panel's assessment of the facts.670
5.175. Based on the language used by China in substantiating its claims that the Panel erred in its
application of subparagraph (g) of Article XX, we consider that these allegations implicate the
Panel's assessment of the facts and evidence an d thus should properly be considered under
Article 11 of the DSU. For example, we note that China asserts a "lack of any factual evidentiary

660 China's appellant's submission, para. 168; other appellant's submission, para. 99. (emphasis
omitted)
661 China's appellant's submission, para. 183; other appellant's submission, para. 114.
662 China's appellant's submission, para. 168; other appellant's submission, para. 99.
663 China's appellant's submission, para. 169; other appellant's submission, para. 100 (referring to
China's opening statement at the second Panel meeting, paras. 24 and 39, and Figures 2, 3, and 4).
664 China's appellant's submission, para. 170; other appellant's submission, para. 101.
665 China's appellant's submission, fns 95, 109, 110, and 139; other appellant's submission, fns 49, 63,
64, and 93.
666 Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 872. (emphasis
original)
667 Appellate Body Report, China – GOES, para. 183. (fns omitted)
668 Appellate Body Report, EC – Fasteners (China), para. 442 (referring to Appellate Body Reports, US –
Steel Safeguards, para. 498; and Chile – Price Band System (Article 21.5 – Argentina), para. 238).
669 Appellate Body Report, China – GOES, para. 184.
670 Appellate Body Reports, EC – Seal Products, para. 5.243.
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findings" by the Panel 671, and that the Panel "failed to explain" 672, "failed to address evidence" 673,
"failed to grapple with arguments" 674, "did not address or grapple with arguments and
evidence"675, and that "did not discuss or engage with evidence". 676 All of these statements
suggest that the alleged errors concern the Pane l's assessment of the facts and evidence rather
than the characterization of the consistency or inconsistency of the measures at issue with the
requirements of Article XX(g). We therefore ad dress China's allegations in this respect under
Article 11 of the DSU in the context of the claims raised by China under that provision.
5.2.8 China's claims under Article 11 of the DSU
5.176. China requests us to find that the Panel failed to make an objective assessment of the
matter as required under Article 11 of the DSU. China alleges multiple failures by the Panel to
comply with its duties under Article 11 of the DSU. Due to these alleged failures, China requests us
to reverse the Panel's findings that the rare earth and tungsten export quotas send "perverse
signals" to domestic consumers and, consequently, do not "relate to" conservation within the
meaning of Article XX(g) of the GATT 1994.
677 China further requests that we reverse the Panel's
findings that China's export quotas on rare earths, tungsten, and molybdenum are not "made
effective in conjunction with" domestic restrictions.678
5.177. Article 11 of the DSU provides, in relevant part:
Function of Panels
The function of panels is to assist the DSB in discharging its responsibilities under this
Understanding and the covered agreements. Accordingly, a panel should make an
objective assessment of the matter before it, including an objective assessment of the
facts of the case and the applicability of and conformity with the relevant covered
agreements, and make such other findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in the covered agreements.
5.178. We begin by recalling the standard articu lated by the Appellate Body for establishing a
violation of Article 11 of the DSU. In accordance with Article 11, a panel is required to "consider all
the evidence presented to it, assess its credibility, determine its weight, and ensure that its factual
findings have a proper basis in that evidence".
679 Panels may not "make affirmative findings that
lack a basis in the evidence contained in the panel record". 680 Within these parameters, "it is
generally within the discretion of the Panel to decide which evidence it chooses to utilize in making
findings"
681, and the mere fact that a panel did not explicitly refer to each and every piece of

671 China's appellant's submission, para. 168; other appellant's submission, para. 99. (emphasis
original)
672 China's appellant's submission, para. 281; other appellant's submission, para. 212.
673 China's appellant's submission, para. 282; other appellant's submission, para. 213.
674 China's appellant's submission, para. 283; other appellant's submission, para. 214. See also China's
675 China's appellant's submission, para. 284; other appellant's submission, para. 215.
676 China's appellant's submission, para. 286; other appellant's submission, para. 217.
677 Panel Reports, paras. 7.444, 7.446-7.448, 7.541, 7.542, 7.604, 7.725, and 7.731.
678 Panel Reports, paras. 7.568-7.599, 7.792-7.809, and 7.919-7.935.
679 Appellate Body Report, Brazil – Retreaded Tyres, para. 185 (referring to Appellate Body Report, EC –
Hormones, paras. 132 and 133). See also Appellate Body Reports, Australia – Salmon, para. 266; EC –
Asbestos, para. 161; EC – Bed Linen (Article 21.5 – India), paras. 170, 177, and 181; EC – Sardines,
paras. 141 and 142; Korea – Alcoholic Beverages, paras. 161 and 162; Korea – Dairy, para. 138; US – Carbon
680 Appellate Body Report, US – Carbon Steel, para. 142 (referring to Appellate Body Report, US –
Wheat Gluten, paras. 161 and 162).
681 Appellate Body Report, EC – Hormones, para. 135. The Appellate Body has also stated that a panel
"must base its findings on a sufficient evidentiary basis on the record" (Appellate Body Report, EC – Fasteners
(China), para. 441 (emphasis added; fn omitted)); "may not … appl[y] a double standard of proof"
(Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 293 (fn omitted)); and its treatment
of the evidence must not lack "even-handedness" (ibid., para. 292).
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evidence in its reasoning is insufficient to establish a claim of violation under Article 11. 682 Rather,
an appellant must explain why such evidence is so material to its case that the panel's failure to
explicitly address and rely upon the evidence has a bearing on the objectivity of the panel's factual
assessment.
683 The Appellate Body has also considered it unacceptable for an appellant to simply
recast factual arguments that it made before the panel in the guise of an Article 11 claim. 684
Instead, an appellant must identify specific errors regarding the objectivity of the panel's
assessment
685, and "it is incumbent on a participant raising a claim under Article 11 on appeal to
explain why the alleged error meets the standard of review under that provision".686
5.179. The Appellate Body has also held that it will not "interfere lightly" with a panel's fact-
finding authority.687 Rather, for a claim under Article 11 to succeed, the Appellate Body "must be
satisfied that the panel has exceeded the bounds of its discretion, as the trier of facts". 688 In other
words, "not every error allegedly committed by a panel amounts to a violation of Article 11 of the
DSU"689, but only those that are so material that, "taken together or singly" 690, they undermine
the objectivity of the panel's assessment of the matter before it.
5.180. Before turning to China's claims under Article 11 of the DSU, we reiterate that China, in
elaborating its claims that the Panel erred in its application of Article XX(g) of the GATT 1994,
made arguments identical to those in its claims under Article 11 of the DSU, and utilized the
following phrases: "lack of any factual evidentiary findings"
691, "failed to explain" 692, "failed to
address evidence" 693, "failed to grapple with arguments" 694, "did not address or grapple with
arguments and evidence" 695, and "did not discuss or engage with evidence". 696 As we s t a t e d i n
paragraph 5.175 above, we consider that these types of arguments by China implicate the Panel's
assessment of the facts and evidence, rather than its characterization of the consistency or
inconsistency of the export quotas with the requ irements of Article XX(g). We therefore address
China's allegations in this respect as part of its claims under Article 11 of the DSU, bearing in
mind, however, that a claim that a panel failed to comply with its duties under Article 11 of the
DSU "must stand by itself".697
5.2.8.1 Claims that the Panel failed to comply with Article 11 of the DSU in its analysis
of whether China's export quotas "relate to" conservation
5.181. China submits that the Panel acted inconsis tently with Article 11 of the DSU in two main
ways. First, China contends that the Panel's findings lacked a sufficient evidentiary basis and that
the Panel failed to "reconcile its findings" with contrary evidence.
698 Second, China argues that the
Panel's reasoning was incoherent insofar as the Panel considered that the relevant question was

682 Appellate Body Reports, EC – Fasteners (China), paras. 441 and 442; Brazil – Retreaded Tyres,
para. 202.
683 Appellate Body Report, EC – Fasteners (China), para. 442.
684 Appellate Body Report, EC – Fasteners (China), para. 442 (referring to Appellate Body Reports, US –
Steel Safeguards, para. 498; and Chile – Price Band System (Article 21.5 – Argentina), para. 238).
685 Appellate Body Report, EC – Fasteners (China), para. 442 (referring to Appellate Body Reports, US –
Steel Safeguards, para. 498; and Chile – Price Band System (Article 21.5 – Argentina), para. 238).
686 Appellate Body Report, EC – Fasteners (China), para. 442. (emphasis original)
687 Appellate Body Report, EC – Sardines, para. 299; Appellate Body Report, US – Carbon Steel,
688 Appellate Body Report, US – Wheat Gluten, para. 151.
689 Appellate Body Report, EC – Fasteners (China), para. 442.
690 Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1318. See also
Appellate Body Report, EC – Fasteners (China), para. 499.
691 China's appellant's submission, para. 168; other appellant's submission, para. 99. (emphasis
original)
692 China's appellant's submission, paras. 164, 281, and 282; other appellant's submission, paras. 95,
212, and 213.
693 China's appellant's submission, paras. 164 and 282; other appellant's submission, paras. 95
and 213.
694 China's appellant's submission, para. 283; other appellant's submission, para. 214. See also China's
695 China's appellant's submission, para. 284; other appellant's submission, para. 215.
696 China's appellant's submission, para. 286; other appellant's submission, para. 217.
697 Appellate Body Report, EC – Fasteners (China), para. 442 (referring to Appellate Body Reports, US –
Steel Safeguards, para. 498; and Chile – Price Band System (Article 21.5 – Argentina), para. 238).
698 China's appellant's submission, paras. 201 and 203; other appellant's submission, paras. 132
and 134.
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whether the "perverse signals" sent by China's export quotas were offset by domestic restrictions,
but then declined to examine evidence relevant to precisely that issue. For these reasons, China
requests us to reverse the Panel's findings that China's export quotas on rare earths and tungsten
do not "relate to" conservation within the meanin g of Article XX(g) of the GATT 1994 by virtue of
their signalling function.
699
5.182. The complainants request us to reject China's claims. The complainants assert that the
record of these disputes shows that there is no basis for China's claims that the Panel acted
inconsistently with Article 11 of the DSU. To the contrary, the Panel Reports illustrate that the
Panel undertook a thorough legal and factual analysis of the "relating to" test of Article XX(g), in
compliance with its duties under Article 11 of the DSU.
5.183. We discuss China's two sets of arguments in turn.
5.2.8.1.1 Allegations that the Panel's find ings were based on a presumption and that
the Panel failed to reconcile its findings with contrary evidence
5.184. China asserts that the Panel's finding that China's export quotas on rare earths and
tungsten are liable to send "perverse signals" to domestic consumers is merely a "presumption"
and lacks an evidentiary basis.
700 In addition to this assertion, China identifies three instances in
which the Panel allegedly failed to "reconcile its finding" of "perverse signals" with contrary
evidence submitted by China.
5.185. The complainants disagree with China's assertions. They indicate that the Panel's "perverse
signals" finding is not a mere presumption, but is rather based on evidence provided by the
complainants establishing the existence of such "perverse signals" not only as a function of
economic theory, but also specifically in China. The complainants point, in particular, to evidence
that China expressly invited foreign users to relocate to China in order to gain access to unlimited
supplies of rare earths at a cheaper price.
701
5.186. In making its assertion that the Panel's finding lacks an evidentiary basis, China specifically
challenges the following statements by the Panel:
Having said that, the Panel considers that export quotas are liable to send a perverse
signal to domestic consumers. Whereas export quotas may reduce foreign demand for
Chinese rare earths, it seems likely to the Panel that they will also stimulate domestic
consumption by effectively reserving a supply of low-price raw materials for use by
domestic downstream industries. They may also encourage relocation of rare earth-
consuming industries to China.
702
…
The Panel has dealt with the argument that export quotas send a "signal" to foreign
users above in its analysis of the export quota on rare earths, and considers that what
was said there applies with equal force here. While the Panel accepts that export
quotas do or at least can send conservation-related signals to foreign users, the Panel
is concerned that such quotas can also send perverse signals to domestic consumers,
and can even stimulate domestic demand, contrary to China's stated conservation
goals. Moreover, the Panel has explained ab ove why the imposition of an extraction
and/or a production quota may not suffice to counteract or offset such perverse
incentives. As was the case in the context of rare earths, the Panel is not convinced
that the design and architecture of China's export quotas, even taken together with
the extraction and production caps, is such as to counteract the perverse signals
which are generally sent by export quotas. As such, the Panel has difficulty concluding
that the export quota on tungsten, which risks encouraging or stimulating domestic

699 China's request refers to the following paragraphs of the Panel Reports, paras. 7.444, 7.446-7.448,
7.541-7.542, 7.604, 7.725, and 7.731.
700 China's appellant's submission, paras. 25 and 201; other appellant's submission, paras. 25 and 132.
701 Panel Exhibits CHN-157, JE-112, JE-118, JE-152, JE-183, and JE-196.
702 Panel Reports. para. 7.444 (referring to Panel Reports, China – Raw Materials, para. 7.586).
(emphasis original)
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demand and even leading, in the medium-lon g-term, to more, rather than less, illegal
extraction and production, can be said to "relate to" conservation for the purposes of
Article XX(g).
703
5.187. We first observe that China is correct in asserting that these paragraphs contain no
express references to evidence on the Panel record. However, to properly situate these findings in
their context, we look at the structure of the Panel's analysis in the section dealing with the
"signalling" arguments presented by China with regard to its export quota on rare earths.
5.188. The Panel started by noting China's arguments to the effect that "the export quota system
contributes to the effectiveness of [China's] overall conservation policy by signalling to foreign
users of rare earths the need to explore other sources of supply, including substitutes and
recycling."
704 The Panel then referred to the complainants' counter-arguments that, "while the
export quota may send a conservation-related signal to foreign users, it simultaneously signals to
domestic consumers that they should increase their rare earth consumption, contrary to China's
claim that the export quota relates to conservation."
705 The Panel also took note of the
complainants' arguments that this availability of cheaper domestic rare earths was held out to
attract foreign companies to relocate to China. 706 In its summary of the parties' arguments, the
Panel referred to evidence submitted by the parties in support of their respective arguments. This
included Exhibits JE-118 and JE-152.707
5.189. The Panel then made, in the subsequent pa ragraphs, statements relating to the potential
signals that may be broadcast through the price that a commodity commands on the market, as
well as through the export, extraction, and production quotas.
708 The Panel did not expressly refer
to Exhibits JE-118 and JE-152 in its analysis at paragraphs 7.442-7.444 and 7.447-7.448 of its
Reports. Nonetheless we consider that, from a plain reading of the Panel's reasoning in these
paragraphs, it is clear that the arguments and evidence proffered by the parties, which the Panel
summarized at the beginning of this section of its analysis, informed the Panel's statements and
conclusions in these subsequent paragraphs.
5.190. Moreover, the Panel referred expressly to the following reasoning of the panel in China –
Raw Materials:
The difficulty with China's contention is that export restrictions generally do not
internalize the social environmental costs[*] of EPRs' [Energy-intensive, highly
polluting, resource-based products] producti on in the domestic economy. This is
because export restrictions reduce the domestic price of EPRs and therefore they
stimulate, instead of reducing, further consumption of polluting EPR products. Indeed,
the Panel understands that all parties agree that, in general, export restrictions are
not an efficient policy to address environmental externalities when these derive from

703 Panel Reports, para. 7.725 (referring to Panel Reports, China – Raw Materials, para. 7.586).
704 Panel Reports, para. 7.440.
705 Panel Reports, para. 7.441 (referring to United States' second written submission to the Panel,
paras. 129 and 130; and European Union's second written submission to the Panel, paras. 128 and 129).
706 Panel Reports, para. 7.441 (referring to United States' second written submission to the Panel,
paras. 129 and 130; and European Union's second written submission to the Panel, paras. 128 and 129).
707 Panel Exhibit JE-118 contains an article from Xinhua Insight, entitled "China Tightens Regulation of
Rare Earth Industry" (15 June 2011). According to this article, Chen Guiyuan, the Deputy Director of the
Hohhot Customs Bureau in North China's Inner Mongolian Autonomous Region, is quoted as saying that "[t]o
get past the government regulations, some foreign companies are investing in their own rare earth metal
processing centers in China, aiming to obtain more of the metals at a cheaper price." (Ibid., p. 3)
Panel Exhibit JE-152 contains an English translation of the "Preferential Policies Encouraging
Investments for Fujian (Longyan) Rare Earth Industrial Park", adopted in 2010 by the Longyan Municipal
People's Government. This document, which contains a guarantee of the supply of rare earth raw materials,
states its purpose as follows:
In order to encourage businessmen home and abroad to make investments in Fujian (Longyan)
Rare Earth Industrial Park, promote rare earth industrial development in Longyan and build
Longyan into a first rate fine and further processing industrial base for rare earth as well as a
characteristic "West Coast Rare Earth Center of China" as soon as possible, preferential policies
have been developed as follows based on related regulations and actual situations of our city.
(Preferential Policies Encouraging Investments for Fujian (Longyan) Rare Earth Industrial Park (Panel Exhibit
JE-152), p. 1)
708 Panel Reports, paras. 7.442-7.444, 7.447, and 7.448.
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domestic production rather than exports or imports. This is because generally the
pollution generated by the production of the goods consumed domestically is not less
than that of the goods consumed abroad. So the issue is the production itself and not
the fact that it is traded.
709
[*fn original] 931 The social environmental costs are the costs of polluting the environment while
producing EPRs.
5.191. These statements by the panel in China – Raw Materials enunciate what that panel found
to be a generally accepted principle of economic theory: that export restrictions reduce the
domestic price of energy-intensive, highly poll uting, resource-based products (EPRs), thereby
stimulating, instead of reducing further consumption of these EPRs. 710 As such, export restrictions
generally do not internalize the social environmental costs of EPR production in the domestic
economy, and are therefore not an efficient poli cy to address environmental externalities when
these derive from domestic production rather than exports or imports.
711 This lends additional
credence to this Panel's assertion that export quotas send "perverse signals" to domestic
consumers.
5.192. Furthermore, the Panel stated:
China responds that other measures in its comprehensive conservation plan
counteract or counterbalance the perverse signal sent to domestic consumers by the
export quota. According to China, the export quota is a "balancing tool", since without
it the extraction and production quotas would only provide a signal to domestic users,
while foreign consumers would have no incentive to explore and develop alternative
sources of supply.
712
The Panel has difficulty accepting this argume nt. While it may be true that extraction
and/or production quotas could, in theory, counteract the perverse signals sent by
export quotas to domestic consumers, it seems to us that whether or not a production
quota coupled with an export quota cuts domestic consumption depends entirely on
the level at which the production quota is set and the way in which the export and
production quotas interact. According to [the expert report submitted by the
complainants as Panel] Exhibit JE-183, if the production quota is very tight[*], it will
reduce domestic consumption. At more gene rous levels, however, it may not reduce
consumption at all, or it may reduce it while still leaving it above the level it would be
in the absence of export restrictions.
713
[*fn original] 691 In economics, this means an amount set significantly below demand.

5.193. We understand the above paragraphs as follows. The Panel took note of China's argument
that the export quota is a "balancing tool" that provides a conservation signal to foreign
consumers, without which the extraction and production quotas would provide a conservation
signal only to domestic consumers. The Panel, in addressing this argument, referred to Exhibit
JE-183. This exhibit is a response from the co mplainants' economic expert (Professor L. Alan
Winters) to the statement provided by China' s economic expert (Professor Jaime de Melo).
714 Both
experts agreed that a binding production quota introduced in isolation is likely to reduce both
exports and domestic consumption relative to the unrestricted trade situation as both export and
domestic prices would be driven up.
715 However, the experts disagreed on the nature of the
interaction between production quotas and export quotas that would be necessary to ensure that
no "perverse signals" are sent by the export quotas. The Panel was persuaded by the position

709 Panel Reports, China – Raw Materials, para. 7.586 and fn 931 thereto. (other fns omitted)
710 Panel Reports, China – Raw Materials, para. 7.586.
711 Panel Reports, China – Raw Materials, para. 7.586.
712 Panel Reports, para. 7.445 (referring to China's comments on the complainants' responses to Panel
question Nos. 71 and 123; and China's second written submission, paras. 51 and 52 ("export quotas are a
balancing tool")).
713 Panel Reports, para. 7.446 (referring to Panel Exhibit JE-183, p. 5).
714 Panel Exhibit CHN-157.
715 Panel Exhibit CHN-157, para. 33; Panel Exhibit JE-183, p. 1.
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taken by Professor L. Alan Winters, which we note is also supported by the opinion of Professor
Grossman, also submitted by the complainants.716
5.194. In our view, the summary of the parties' arguments above, the reference to the economic
rationale discussed by the panel in China – Raw Materials , and the Panel's discussion of economic
evidence in this dispute show basis for the Panel' s determination that export quotas are liable to
send "perverse signals" to domestic consumers. Hence, we are not persuaded by China's assertion
that the Panel's finding that China's export quotas on rare earths and tungsten are liable to send
"perverse signals" to domestic consumers is merely a "presumption" and lacks an evidentiary
basis. Nor do we agree that the Panel failed to undertake an objective assessment of the facts, in
breach of Article 11 of the DSU.
5.195. We turn now to the three instances in which, according to China, the Panel failed to
"reconcile its finding" of "perverse signals" with contrary evidence submitted by China.
5.196. In the first instance, China considers the Panel's failure to explain the basis for its
presumption to be "troubling" because China submitted evidence showing that, in some
circumstances, the export quota would have no effect on prices or levels of consumption for either
domestic or foreign consumers
717, as well as evidence showing that any difference between
domestic and foreign prices could not have been caused by the export quota. Additionally, China
argues that the Panel failed to reconcile its findings with evidence suggesting that domestic prices
for rare earths increased, and domestic consumption decreased, between January 2011 and
January 2013, and that there was a considerab le narrowing of the gap between foreign and
domestic prices for several important rare earth metals.
718 The complainants disagree with China's
views on the import of the evidence as well as its characterization of the Panel's treatment of that
evidence.
5.197. In respect of China's evidence that, in some circumstances, the export quota would have
no effect on prices or levels of consumption for either domestic or foreign consumers, we observe
that this evidence is contained in th e statement of Professor Jaime de Melo. 719 Recalling our
discussion in paragraph 5.193 above, we note that the Panel did not ignore this evidence. The
Panel was simply more persuaded by the evidence provided by the complainants rebutting
Professor de Melo's opinion. With respect to the price differences, we note that, contrary to what
China alleges, the Panel explicitly addressed th e pricing data contained in Exhibits CHN-196 and
CHN-197.720 In addressing the pricing data, the Panel expressed "concerns about the reliability of
the data and the methodology used in China's analysis of the price gap". 721 We find it noteworthy
that, in its arguments on appeal, China makes no mention of the Panel's reasoning and
questioning of China's data. As we explained abov e, the Appellate Body will not interfere lightly
with a panel's discretion as the trier of facts and will not permit a participant to recast its
arguments made before the panel in the guise of an Article 11 claim.
722 Thus, as regards this first
issue, we consider that China has not demonstrated that the Panel failed to comply with its duty
under Article 11 of the DSU.
5.198. Second, China points to the "substantial evidence" that its export quota signals have a
positive conservation effect by demonstrating the considerable increase in the number of new rare
earth mining projects starting up outside China and securing investment since 2010.
723 For China,
this evidence shows that the export quotas were also linked to the development, in China and
abroad, of substitutes and the initiation of recycling efforts. China also highlights that it submitted

716 Panel Exhibit JE-183, p. 1 (referring to Panel Exhibits JE-141 and JE-164).
717 China's appellant's submission, para. 189; other appellant's submission, para. 120 (referring to Panel
Exhibit CHN-157).
718 China's appellant's submission, paras. 194-196; other appellant's submission, paras. 125-127
(referring to China's opening statement at the first Panel meeting, Table 1, and paras. 41 and 42; and Panel
Exhibits CHN-132, CHN-196, and CHN-197).
719 Panel Exhibit CHN-157.
720 Panel Reports, paras. 7.636-7.642.
721 Panel Reports, para. 7.640.
722 Appellate Body Report, EC – Fasteners (China), para. 442 (referring to Appellate Body Reports, US –
Steel Safeguards, para. 498; and Chile – Price Band System (Article 21.5 – Argentina), para. 238).
723 China's appellant's submission, paras. 191 and 192; other appellant's submission, paras. 122
and 123 (referring to China's response to Panel question No. 91, paras. 107 and 108; and Panel Exhibits
CHN-192, CHN-193, and CHN-214).
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specific evidence of rare earth recycling projec ts conducted by Chinese enterprises and research
and development and recycling projects being prepared which, according to China, are linked to
the conservation signals produced by the export quotas.
5.199. We observe that, contrary to China's allegations, the Panel did in fact take note of "China's
indication that various rare earth recycling proj ects, efforts to modify industrial designs of
downstream products so that they use less rare earths, and developments of rare earth substitutes
are under way".
724 The Panel acknowledged that "these efforts may go a long way towards
furthering what all involved in this dispute recognize is China's bona fide conservation policy". 725
Nonetheless, for the Panel, these efforts did not resolve what the Panel found to be the main
problem inherent in the design and structure of China's export quotas: the absence of "any
mechanism to ensure that the export quota is set at such a level that, in combination with the
extraction and/or production caps, no perverse incentives will be sent to domestic consumers".
726
Once again, we are not convinced that the Panel, by assessing the facts differently from China,
breached its duty to conduct an objective assessment of the facts of the case.
5.200. As its third example, China refers to additional relevant evidence that it submitted showing
limited investment by foreign companies in downstream industries in China. China repeats
arguments that it made to the Panel emphasizing that there is no evidence of such foreign
downstream users of rare earths relocating to China after 2007 – i.e. the time when the export
quota volumes were cut for the first time.
727 The complainants emphasize that they contested
China's evidence before the Panel, and that they disagree with China's views on the import of
Exhibits CHN-186 and CHN-191. They point instead to the exhibits that they submitted to rebut
China's evidence.728
5.201. We observe that the Panel addressed the parties' arguments on whether China's export
quotas encouraged the relocation of foreign companies in the rare earths industry to China. The
Panel did so in the context of addressing China's contention that the unfilled 2011 and 2012 export
quotas showed that there was no discriminatory treatment of foreign consumers as a consequence
of the 2012 export quota.
729 In addressing these arguments, the Panel did not specifically refer to
Exhibits CHN-186 and CHN-191. Nevertheless, the Panel's reasoning reflects that it took into
account the content of these exhibits. For exampl e, the Panel accepted China's argument that
relocations to China may not necessarily be wholly attributable to the imposition of export
quotas.
730 However, the Panel rejected China's argument, contained in Exhibit CHN-163, and
restated in Exhibit CHN-186, that, "since FDI flows did not increase following the tightening of the
quota, the quota is not a possible cause of relocation". 731 The Panel eventually concluded as
follows:
[T]he Panel is not convinced that industrial relocation is unrelated to China's export
quotas. The Panel is of the view that one cannot simply compare the flow of FDI
before 2008 to the situation after 2008, and conclude that since FDI flows did not
increase following the tightening of the qu ota, the quota is not a possible cause of
relocation, without taking into account the global fall in FDI activity that followed the
2008 economic downturn. Therefore, in the vi ew of the Panel, the evidence provided
by China is not sufficient to exclude the po ssibility that export quotas (and duties)

724 Panel Reports, para. 7.448.
725 Panel Reports, para. 7.448.
726 Panel Reports, para. 7.448.
727 China's appellant's submission, para. 200; other appellant's submission, para. 131 (referring to
China's opening statement at the second Panel meeting, para. 57; and Panel Exhibits CHN-186 and CHN-191).
728 United States' appellee's submission, paras. 125-128; European Union's appellee's submission,
para. 211; Japan appellee's submission, para. 84. The exhibits referred to are Panel Exhibits JE-102, JE-118,
JE-145, JE-146, and JE-147.
729 Panel Reports, para. 7.622.
730 Panel Reports, para. 7.633 and fn 951 thereto (referring to Panel Exhibit CHN-163).
731 Panel Reports, paras. 7.632 and 7.633 (referring to Dr David Humphreys, "Developments in rare
earth-using industries" (Panel Exhibit CHN-163); and Prof. Jaime de Melo, "Selected Economic Issues
Regarding Export Quotas and Production Quotas" (Panel Exhibit CHN-157)). In Panel Exhibit CHN-163, p. 15,
Dr Humphreys states: "Consistent … also with the data provided on the relocation of operations of foreign
investors in rare earth-consuming facilities, the shift in the pattern of exports for rare earth-containing
products came before the lowering of the extraction, production and export quotas in 2008 and 2010, making
it difficult to sustain the argument that the tightening of quotas was the cause of the observed industrial and
trade trends". Dr Humphreys reiterates this statement in Panel Exhibit CHN-186, p. 2.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

were a significant reason for industrial relocation. As China itself acknowledges, if
foreign demand shifts inward, the export quota can cease to be "binding", that is, it
can remain unfilled, but this is not necessarily an indication that the export quota does
not have any discriminatory effect on foreign users. Rather, this could be an indication
that the export restriction, which China has applied for over a decade, has distorted
international trade and investment. In other words, the effects of the export quota are
not being compared to the appropriate counterfactual (China's exports had the quota
not been in place).
732
5.202. We recall that the Appellate Body will not interfere lightly with a panel's discretion as the
trier of facts and will not permit a participant to recast its arguments made before the panel in the
guise of an Article 11 claim.
733 We note, as we did earlier, that in its arguments on appeal, China
does not acknowledge this reasoning by the Panel. China's restatement of its argument before the
Panel to the effect that there was limited investment by foreign companies in downstream
industries in China, and no evidence of such foreign downstream users of rare earths relocating to
China after 2007, cannot suffice to impugn the Panel's reasoning set out above. Thus, we are not
persuaded that the Panel fell short of its duty as articulated in Article 11 of the DSU.
5.203. In sum, it appears that China's arguments that the Panel's finding of "perverse signals"
was a mere "presumption" and that the Panel failed to reconcile its findings with contrary
evidence, are premised primarily on China's disagreement with the Panel's reasoning and weighing
of the evidence. However, as set out above, the Appellate Body has consistently held that this
does not suffice to establish that a panel acted inconsistently with Article 11 of the DSU.
Therefore, we conclude that China has not demonstrated that the Panel failed to conduct an
objective assessment of the facts of the case, or otherwise acted inconsistently with Article 11 of
the DSU.
5.2.8.1.2 Allegations that the Panel's reasoning was incoherent
5.204. China further contends that the Panel's findings breach Article 11 of the DSU because they
are based on incoherent reasoning. On that basis too, China requests us to reverse the Panel's
findings. First, China argues that the Panel's reas oning that the export quotas are not capable of
making a positive contribution to conservation by virtue of the perverse signals is incoherent with
its reasoning that domestic restrictions were capable of mitigating these "perverse signals".
Second, China considers it improper for the Panel to have recognized that the key issue of its
"relating to" analysis depended on the level at which the production quota is set and the way in
which the export and production quotas interact, but to have then refused to consider any
evidence of these very alleged effects.
5.205. The complainants disagree and submit that the Panel Reports show that all the Panel's
factual findings had a proper basis in the ev idence and were accompanied by coherent and
adequate reasoning.
5.206. In our view, China's first allegation conflates several of the Panel's statements in its
"relating to" analysis of China's export quota on rare earths. To situate these statements in their
proper context, we reproduce them in relevant part below.
5.207. The Panel found that China had in place a conservation policy for rare earths and
tungsten.
734 The Panel then addressed China's argument that the export quota system contributes
to the effectiveness of its overall conservation policy by signalling to foreign users of rare earths
the need to explore other sources of su pply, including substitutes and recycling.
735 The Panel
stated:
The Panel accepts China's argument that encouraging foreign users and investors to
explore alternative sources of supply could relate to the goal of conserving China's

732 Panel Reports, para. 7.633 (referring to Panel Exhibits CHN-157 and CHN-163). See also ibid.,
para. 7.632.
733 Appellate Body Report, EC – Fasteners (China), para. 442 (referring to Appellate Body Reports, US –
Steel Safeguards, para. 498; and Chile – Price Band System (Article 21.5 – Argentina), para. 238).
734 Panel Reports, paras. 7.375-7.377 (tungsten) and 7.696-7.698 (molybdenum).
735 Panel Reports, para. 7.440.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

exhaustible natural resources, since the development of alternative supply sources
would "relieve the pressure on" China's own rare earth supplies. To the extent that
the export quota communicates to foreign rare earth consumers that China will no
longer supply all the rare earth products needed, it is logical to assume that it will
provide a stimulus to consumers, investors, and innovators to explore and develop
alternative sources of supply and thus reduce demand for limited Chinese rare earth
reserves.
736
5.208. The Panel, however, tempered these rema rks by acknowledging the perverse signal that
export quotas are liable to send, as follows:
[T]he Panel considers that export quotas are liable to send a perverse signal to
domestic consumers. Whereas export quotas may reduce foreign demand for Chinese
rare earths, it seems likely to the Panel that they will also stimulate domestic
consumption by effectively reserving a supply of low-price raw materials for use by
domestic downstream industries. They may also encourage relocation of rare earth-
consuming industries to China.
737
5.209. The Panel then acknowledged China's argument that "other measures in its comprehensive
conservation plan counteract or counterbalance the perverse signal sent to domestic consumers by
the export quota".738 China argued that the export quota is a "balancing tool", since without it the
extraction and production quotas would provide a signal only to domestic users, while foreign
consumers would have no incentive to explore and develop alternative sources of supply.
739
However, contrary to what China suggests, the Panel did not accept China's argument in its
entirety. Rather, the Panel observed as follows:
The Panel has difficulty accepting this argume nt. While it may be true that extraction
and/or production quotas could, in theory, counteract the perverse signals sent by
export quotas to domestic consumers, it seems to us that whether or not a production
quota coupled with an export quota cuts domestic consumption depends entirely on
the level at which the production quota is set and the way in which the export and
production quotas interact. According to Exhibit JE-183, if the production quota is very
tight, it will reduce domestic consumption. At more generous levels, however, it may
not reduce consumption at all, or it may reduce it while still leaving it above the level
it would be in the absence of export restrictions.
740
5.210. Based on the reasons provided above, the Panel concluded as follows:
The Panel takes note of China's indication that various rare earth recycling projects,
efforts to modify industrial designs of downstream products so that they use less rare
earths and developments of rare earth substitutes are under way. The Panel
acknowledges that these efforts may go a long way towards furthering what all
involved in this dispute recognize is China's bona fide conservation policy.
Nevertheless, our consideration of the design and architecture of China's export quota
on rare earths does not convince us that the export quota is designed in such a way
as to ensure that domestic demand is not stimulated by low prices. There does not
appear to be any mechanism to ensure that the export quota is set at such a level
that, in combination with the extraction and/or production caps, no perverse
incentives will be sent to domestic consumers.
741
5.211. Thereafter, the Panel, in the context of its analysis of whether China had in place
restrictions on domestic production or consumption within the meaning of Article XX(g) of the

737 Panel Reports, para. 7.444. (emphasis original; fn omitted)
738 Panel Reports, para. 7.445 (referring to China's comments on the complainants' responses to Panel
question Nos. 71 and 123; and China's second written submission to the Panel, para. 52).
739 Panel Reports, para. 7.445 (referring to China's second written submission to the Panel, paras. 51
and 52).
740 Panel Reports, para. 7.446 (referring to Professor L. Alan Winters, "Response to Professor de Melo"
(Panel Exhibit JE-183), p. 5). (emphasis original; fn omitted)
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GATT 1994, found that China had not demonstrated that its "production quota" was capable of
counteracting the perverse signal broadcast by China's rare earth export quota.742 We therefore do
not agree with China's assertion that the Panel reasoned that China's domestic restrictions are
capable of mitigating the perverse signal of China's export quotas. In the light of the foregoing, we
are not persuaded by China's first allegation and find that China has not demonstrated that the
Panel engaged in incoherent reasoning.
5.212. Second, we address China's assertion that, while the Panel correctly recognized that it was
essential to examine the level at which the production quota was set and the way in which the
production quota and the export quota interact, the Panel then failed to do so.
743 We note that in
support of this argument China points to evidence in the Panel record that allegedly demonstrates
how the quotas interact. This is the same evidence relating to pricing that was the subject of our
discussion at paragraph 5.197 above, and our analysis in that paragraph applies equally here. The
Panel considered the evidence relating to alleged differences in foreign and domestic prices. Such
evidence was submitted, in part, to demonstrate the effects of the export and production quotas.
The Panel expressed concerns about the reliability of the evidence submitted by China. It follows
that we see no "incoherence" in the reasoning empl oyed by the Panel in dealing with these issues
and evidence.
5.213. For the reasons set out above, and having reviewed the Panel's findings identified by China
in its claims under Article 11 in their proper context, we do not agree that the Panel engaged in
incoherent reasoning. Consequently, we are not persuaded that China has demonstrated that the
Panel breached its duty under Article 11 of the DSU to conduct an objective assessment of the
facts.
5.2.8.2 Claims that the Panel failed to comply with Article 11 of the DSU in its analysis
of whether China's export quotas were "made effective in conjunction with" restrictions
on domestic production or consumption
5.214. With regard to the Panel's analysis of the second clause of subparagraph (g) of Article XX
of the GATT 1994, China raises numerous allegations under Article 11 of the DSU, which it groups
into the following three categories: (i) allegations relating to the Panel's treatment of the
evidence; (ii) allegations of incoherent reasoning; and (iii) allegations of a "double standard" in the
Panel's application of Article XX(g) to the facts of the case.
5.215. The complainants request the Appellate Body to reject China's claims under Article 11 of
the DSU relating to the Panel's treatment of the ev idence, to allegations of incoherent reasoning,
as well as China's allegation that the Panel employed a "double standard" in applying Article XX(g)
of the GATT 1994 to the facts of the case. For the complainants, the Panel undertook a thorough
legal and factual analysis and thus complied with its duty under Article 11 of the DSU.
5.216. Below, we address each of the three categories of allegations raised by China in turn.
5.2.8.2.1 Allegations relating to the Panel's treatment of evidence
5.217. China alleges, first, that the Panel lacked objectivity in its treatment of the evidence it
considered relevant to determine how domestic restrictions and export quotas work together.
China asserts, in particular, that the Panel ignored evidence submitted by China, failed to reflect
arguments made by China, and failed to explain ho w, in the light of evidence submitted by China,
the conclusions of the Panel were nonetheless valid.
744 China refers specifically to evidence
regarding the timing of the quotas, suggesting that there was indeed coordination among export
quotas, production quotas, and extraction quotas.
745 S e c o n d , w i t h r e g a r d t o t h e l e ve l s o f q u o t a s ,
China refers to its argument that unfilled export quotas need not necessarily be redirected for
domestic consumption, and that this was not a relevant factor in determining whether the export

742 Panel Reports, para. 7.542. In this regard, we take note of the Panel's statement casting doubt on
whether China's 2012 production plan imposed a "real restriction".
743 China's appellant's submission, para. 205; other appellant's submission, para. 136.
744 China's appellant's submission, para. 293; other appellant's submission, para. 224.
745 China's appellant's submission, para. 293; other appellant's submission, para. 224 (referring to Panel
Reports, para. 7.577).
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quota worked in conjunction with the domestic restrictions.746 Third, China contends that the Panel
failed to address arguments and evidence submitted by China explaining why China did not adopt a
domestic consumption quota or why there was no need for such a quota.
747 Fourth, China alleges
that the Panel failed to address certain evid ence submitted by China showing a temporal
connection in the way that the domestic caps and export quotas work together.748
5.218. First, with regard to the manner in which the Panel analysed the timing of the 2012 export,
extraction, and production quotas, China alleges that the Panel failed to address evidence
submitted by China as to the manner in which allocation of the quotas is coordinated between the
competent Ministries, and contends that all quota le vels are set by the competent Ministries at the
same time, even if the actual publication of the respective amounts may differ in time.749
5.219. We note that the Panel considered the timing of the quota setting relevant because it
"could affect the certainty of the rare earths market and enterprises' capacity to make business
plans for 2012".750 The Panel considered relevant the fact that the total export quota for 2012 was
not set at the end of 2011 or at the beginning of 2012, but that it was set only in late 2012.751 The
Panel also observed that the export, extracti on, and production quotas for 2012 were set in
several batches at different times between the end of 2011 and August 2012. 752 The Panel
considered that setting the export quota for 2012 only late in the year led to uncertainty for
market participants, and that such uncertainty cast doubt on China's contention that its domestic
and foreign restrictions "work together". The Panel further found that "uncertainty and
unpredictability caused by determining the level of the export quota only late in the year do not
help rare earth users to rationally utilize the available amounts of rare earths."
753 Moreover, the
Panel observed that each batch of the production quota was announced after the export quota was
set. The Panel found that this contributed to th e unfilled export quota and the unpredictability of
the export market for rare earths, and the Panel co nsidered it illogical to determine a level for the
export quota before the extraction and production quotas are determined.754
5.220. In our view, evidence presented by China indicating that there was coordination in the
legislative process leading up to the setting of the three categories of quotas does not detract from
the Panel's analysis described above. The Panel was concerned with uncertainty in the marketplace
created by the fact that quota levels were made known only late in the year and by the sequence
in which the export and production quotas were pu blished. Also, contrary to what China alleges,
the Panel did not simply find that "there was no coordination among the three categories of
quotas".755 Rather, "[t]he Panel fail[ed] to see any coordination among the three categories of
quotas that would suggest that they work together, be it for conservation of rare earths or for
other reasons".
756 Significantly, the Panel's statement about the apparent lack of coordination is
qualified by the clause "that would suggest that".
5.221. For the Panel, this lack of coordination wa s also evidenced by the fact that each batch of
the production quota was announced only after the export quota was set. The Panel considered
this sequence of setting the quotas illogical and saw in this sequence a reason for the
unpredictability of the export market for rare earths. 757 It is not clear to us that the evidence
identified by China on appeal was relevant to these considerations of the Panel. The fact that the
Panel did not refer to this evidence therefore is no indication of a failure by the Panel to undertake

746 China's appellant's submission, paras. 283 and 293; other appellant's submission, paras. 214
and 224 (referring to China's response to Panel question No. 123(b), paras. 258-261).
747 China's appellant's submission, paras. 284 and 293; other appellant's submission, paras. 215
and 224 (referring to China's second written submission to the Panel, paras. 84 and 86-100; opening
statement at the second Panel meeting, paras. 40-45; and response to Panel question No. 123,
paras. 262-265).
748 China's appellant's submission, para. 294; other appellant's submission, para. 225.
749 China's appellant's submission, para. 282; other appellant's submission, para. 213 (referring to Panel
Exhibits CHN-13, CHN-21, and CHN-63).
750 Panel Reports, para. 7.575.
751 Panel Reports, para. 7.574.
752 Panel Reports, para. 7.576.
753 Panel Reports, para. 7.578.
754 Panel Reports, para. 7.580.
755 China's appellant's submission, para. 282; other appellant's submission, para. 213 (referring to Panel
Reports, para. 7.577).
756 Panel Reports, para. 7.577.
757 Panel Reports, para. 7.580.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

an objective assessment of the evidence. Rather, th e fact that the Panel did not specifically refer
to this evidence simply indicates that the Panel did not consider it relevant to the specific issue
before it, or did not attribute to it the weight or significance that China considers it should have.
5.222. Second, with respect to the levels of the quotas, China maintains that the Panel erred in
focusing on the fact that export quota shares not used by foreign users were redirected to the
domestic market, and that it failed to address arguments made by China that the unfilled export
quota amounts need not necessarily be redirected and that, in any event, redirection of quota shares
was not a relevant factor in determining whether the export quotas worked in conjunction with the
domestic restrictions.
758
5.223. We note that, in the context of its anal ysis of the levels and timing of the 2012 export,
extraction, and production quotas, the Panel also observed that an important quantity of rare
earths that was initially designated for export wa s redirected to the domestic market, even though
it had not been destined for the domestic market under China's original comprehensive
conservation plan. On this issue, the Panel consid ered that the redirection of unfilled export quota
shares of one batch of a quota to the domestic ma rket upon issuance of a new batch of the same
quota effectively lowered the overall export qu ota amount, and increased the amounts available
for domestic consumption.
5.224. Regarding China's allegation that the Panel failed to address arguments made by China that
the unfilled export quota amount need not necessarily be redirected to the domestic market, we
note, first, that China does not allege that the Panel failed to consider the evidence. Rather, China
maintains that the Panel did not address an argument made by China. In this respect, we note that a
panel has no obligation under Article 11 of the DSU to address in its report every argument raised by
a party.
759
5.225. Furthermore, the Panel noted that, in 2012, an important quantity of rare earths that was
initially designated for export was redirected to the domestic market, and that this raised doubts
about the usefulness and effectiveness of export quotas, and also suggested that export
restrictions and domestic restrictions do not "work together" for the goal of conserving exhaustible
natural resources. The Panel stated:
The Panel understands that the total legal supply of rare earths is determined by the
extraction quota, which, as we have noted, was determined in April 2012. However,
the Panel notes that an important quantity of rare earths that was initially designated
for export was redirected to the domestic market (for which it was not destined under
China's original comprehensive conservation plan). To the Panel, this reinforces the
fundamental fact that the vast majority of rare earths produced in China is consumed
domestically, further raising doubts about the usefulness and effectiveness of export
quotas. It also suggests that, if the export and domestic restrictions "work together"
at all, they tend to do so to secure the supply of rare earths to downstream domestic
users, rather than for the goal of conserving exhaustible natural resources.
760
5.226. Contrary to what China alleges, this reasoning by the Panel does address China's argument
that the redirecting of quota shares to the domestic market was not a relevant factor in
determining whether the export quotas worked in conjunction with the domestic restrictions. Indeed,
the Panel rejected this argument by stating the opposite. The Panel considered that redirection of
quota shares to the domestic market was not irrelevant, but that it was a factor suggesting export
restrictions and domestic restrictions did not "work together" for the goal of conserving exhaustible
natural resources. The fact that the Panel disagreed with China's argument does not establish that
it committed an error under Article 11 of the DSU.
5.227. Third, China contends that the Panel failed to address arguments and evidence submitted by
China explaining why China did not adopt a domestic consumption quota or why there was no need

758 China's appellant's submission, paras. 283 and 293; other appellant's submission, paras. 214
and 224 (referring to Panel Reports, para. 7.579; and China's response to Panel question No. 123(b),
paras. 258-261).
759 Appellate Body Report, EC – Fasteners (China), para. 511.
760 Panel Reports, para. 7.579.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

for such a quota.761 China's submissions in this regard are extremely brief. China does not identify a
particular section or specific paragraphs of the Panel Reports with which it takes issue, and China
does not develop its arguments beyond the mere allegation that the Panel failed to grapple with
China's evidence. We recall that the Appellate Body has found that a challenge under Article 11 of
the DSU cannot be made out simply by asserting that a panel did not agree with arguments or
evidence
762, in particular given that a simple error of judgement in the appreciation of evidence
does not, alone, suffice to establish panel error under this provision.763 Rather, an allegation that a
panel has failed to conduct the "objective assessment of the matter before it" required by
Article 11 is "a very serious allegation". 764 As such, an Article 11 claim must be clearly articulated
and substantiated with specific arguments765, including an explanation of why the alleged error has a
bearing on the objectivity of the panel's assessment. 766 This Article 11 claim raised by China does
not meet these requirements and we therefore reject it.
5.228. We emphasize that, in so finding, we do not wish to suggest that participants should simply
present more extensive argumentation in support of claims under Article 11 of the DSU. Rather, we
wish to encourage appellants to consider carefully when and to what extent to challenge a panel's
assessment of a matter pursuant to Article 11, bearing in mind that an allegation of violation of
Article 11 is a very serious allegation. This is in keeping with the objective of the prompt settlement
of disputes, and the requirement in Article 3.7 of the DSU that Members exercise judgement in
deciding whether action under the WTO dispute settlement procedures would be fruitful.
5.229. Fourth, China alleges that the Panel failed to address evidence submitted by China showing
a temporal connection in the way that the domestic and export quotas work together. In
particular, China criticizes the Panel for taking into consideration the "non-existence of domestic
extraction quotas between 2002 and 2006" and allege s that the Panel failed to address evidence
demonstrating that between 2006 and 2012, China di d have an extraction quota in place and has
significantly increased its enforcement measures.
767 China has included three different graphs in
its other appellant's submission to demonstrate that extraction levels of rare earths in China
declined significantly since 2006.
768
5.230. This allegation relates to the Panel's reasoning under the subheading "Temporal disconnect
between the export quota and the domestic restrictions referred to by China". 769 This is one factor
considered by the Panel in its assessment of whether the 2012 export quota on rare earths was
"made effective in conjunction with" restrictions on domestic production or consumption. In this
subsection, the Panel discussed the fact that China has imposed quotas on the export of rare earth
products since at least 2002, but has, according to its own arguments, only maintained restrictions
on domestic extraction since 2006 and on domestic production since 2007.
770 The Panel recalled
China's argument that one of the goals of its export quota on rare earths is to enforce its domestic
extraction and production quotas. The Panel cons idered that China's argument that the export
quota is aimed at enforcing domestic quotas is difficult to reconcile with the fact that, between
2002 and 2007, China did not impose any domestic restrictions.
5.231. The Panel then stated that:
[t]his raises doubts in the Panel's mind about the nature and, indeed, the existence of
any coordination and interaction between the export quota and any domestic
restrictions between at least 2002 and 2006.771

761 China's appellant's submission, paras. 284 and 293; other appellant's submission, paras. 215
and 224 (referring to China's second written submission to the Panel, paras. 84 and 86-100; opening
statement at the second Panel meeting, paras. 40-45; and response to Panel question No. 123,
paras. 262-265).
762 Appellate Body Report, Chile – Price Band System (Article 21.5 – Argentina), para. 238.
763 Appellate Body Report, EC – Hormones, para. 133.
764 Appellate Body Report, EC – Poultry, para. 133.
765 Appellate Body Reports, US – Steel Safeguards, para. 498; US – Tyres (China), para. 321.
766 Appellate Body Report, EC – Fasteners (China), paras. 499 and 500.
767 China's appellant's submission, para. 294; other appellant's submission, para. 225.
768 China's appellant's submission, paras. 295-297; other appellant's submission, paras. 226-228.
769 Panel Reports, paras. 7.596-7.599.
770 Panel Exhibit CHN-137.
771 Panel Reports, para. 7.596.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

5.232. The Panel further considered that:
… the mere fact that a restriction on foreign trade was enacted prior to domestic
restrictions does not, without more, preclude a regulating Member from arguing that
such measure began 'working together' with domestic restrictions at a later date (in
this dispute, in 2012) and so from relying on the exception in Article XX(g) as of that
date.
772
Nevertheless, the fact that China's export restrictions pre-date its extraction and
production restrictions by 4 and 5 years respectively raises doubts as to whether
these two sets of restrictions are designed to work together for conservation.773
5.233. It is apparent from the above quoted statements that the Panel was concerned with a
"temporal disconnect" of four and five years betw een the introduction of the export quota and the
introduction of the measures alleged to constitute domestic restrictions, that is, prior to 2006.
Arguments and evidence submitted by China as to the "temporal connection between the domestic
restriction and export quotas since China introduced its extraction quota in 2006 "774 related to a
subsequent period of time and, as such, were not relevant to the issue the Panel was considering
in that part of its analysis. Accordingly, the fact that the Panel did not explicitly address these
arguments in its Reports does not cast doubt on the objectivity of the Panel's assessment. We
therefore do not see that the Panel failed objectively to assess evidence submitted by China.
5.2.8.2.2 Allegations that the Panel's reasoning was incoherent
5.234. China further alleges that the Panel breached its duties under Article 11 of the DSU
because its finding that China did not impose domestic restrictions is based on incoherent
reasoning. China refers to statements by the Panel that "China has demonstrated that it has a
comprehensive conservation policy" by developing "a series of interconnected measures and
programmes, including extraction and production caps and enforcement actions, which are
designed to manage the extraction and supply of rare earth resources through a conservation
policy."
775 Elsewhere in its Reports, however, the Panel found that none of the domestic measures
imposed by China constituted "restrictions".776 China alleges that, in making these two statements,
the Panel engaged in incoherent reasoning.
5.235. China takes issue, first, with the Panel's statement that "China has failed to place before
[the Panel] evidence or other demonstration sufficient to support the conclusion that China set its
domestic production quota below the expected level of demand in 2012."
777 China submits that it
provided testimony that the Ministries, in se tting the 2012 extraction, production, and export
quotas "did rely on market reports". 778 Furthermore, China contends that it provided the Panel
with a report in which a rare earth industry expert predicted that, by the end of 2011, the
expected level of demand for rare earths would increase. 779 China explains that the Ministries
thereafter set the 2012 quota levels below that predicted level of rare earth demand. 780 China
alleges that the Panel failed to assess the relevance of this evidence.

772 Panel Reports, para. 7.596.
773 Panel Reports, para. 7.597.
774 China's appellant's submission, para. 294; other appellant's submission, para. 225.
775 China's appellant's submission, para. 299; other appellant's submission, para. 230 (referring to Panel
Reports, para. 7.375).
776 China's appellant's submission, para. 302; other appellant's submission, para. 233 (referring to Panel
Reports, paras. 7.526 and 7.528).
777 China's appellant's submission, para. 302; other appellant's submission, para. 233 (referring to Panel
Reports, para. 7.526).
778 China's appellant's submission, para. 302; other appellant's submission, para. 233 (referring to
Declaration on the Setting of 2012 Export Quotas on Rare Earth Products (Panel Exhibit CHN-63)).
779 China's appellant's submission, para. 302; other appellant's submission, para. 233 (referring to
"Current situation of China rare earth industry and outlook for 2011-2015", China Rare Earths Information
Journal, Vol. 17, No. 12 (December 2011), and Vol. 18, No. 1 (January 2012) (Panel Exhibit CHN-64), p. 4).
780 China's appellant's submission, para. 302; other appellant's submission, para. 233 (referring to
"Current situation of China rare earth industry and outlook for 2011-2015", China Rare Earths Information
Journal, Vol. 17, No. 12 (December 2011), and Vol. 18, No. 1 (January 2012) (Panel Exhibit CHN-64), p. 4).
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

5.236. This allegation relates to the Panel's analysis of whether China has imposed restrictions on
domestic production or consumption of rare earths and, in particular, whether the production
quota applicable to rare earths imposes a restriction on domestic production or consumption.
China argued before the Panel that its production quota is a domestic restriction imposed in
conjunction with its export quota and therefore consistent with Article XX(g) of the GATT 1994.
The Panel referred to Paragraph 24 of the Declaration on the Setting of 2012 Export Quotas on
Rare Earth Products.
781 The Panel observed that this document states that "in setting the
production quota, the relevant Ministries 'considered that the overall domestic and foreign demand
for the rare earths would continue to be significant', in particular because 'prices for rare earths
were falling from the levels that they had rapidly achieved in late 2010 and early 2011'."
782
Nevertheless, the Panel explained that:
… it is very difficult to assess whether a measure such as China's constitutes a
"restriction" without evidence showing how China's reasoning, which appears to run
contrary to the trend towards reduced domestic demand, is justified. Accordingly, the
Panel's view is that China has not provided sufficient evidence as to the expected level
of demand for 2012 on the basis of which the Panel would be able to assess whether
the 2012 production plan constituted a "res triction" for the purposes of Article XX(g).
In this dispute such evidence is especia lly important, since in 2012 all consumption
levels (both domestic and foreign) for ores and smelted and separated products
declined significantly from the 2010 and 2011 levels. This suggests to the Panel that
demand for such products was especially low in 2012 independently of China's
restrictions.
783
5.237. We note that the Declaration on the Setting of 2012 Export Quotas on Rare Earth Products,
from which the Panel quoted in the above paragraph, is Exhibit CHN-63, with which China alleges
the Panel did not engage. Moreover, contrary to what China alleges, it is clear from
paragraph 7.526 that the Panel did engage with this Panel Exhibit and evidence relating to demand
for rare earths in 2012 in general. The Panel considered the statement that demand for rare earths
would continue to be significant. However, the Pa nel also noted an overall trend of significantly
declining consumption levels in 2012 for rare earths as compared to the 2010 and 2011 levels. On
this basis, the Panel concluded that China had not provided sufficient evidence regarding the
expected level of demand for 2012, on the basis of which the Panel would have been able to
assess whether the 2012 production plan constituted a "restriction" for the purposes of
Article XX(g). Accordingly, we do not see that this reasoning by the Panel can be characterized as
"incoherent".
5.238. Second, China alleges that the Panel engaged in incoherent reasoning in, on the one hand,
finding that it should assess only the design, st ructure, and architecture and not the impact of
China's resource tax, and, on the other hand, acknowledging that by design and structure the
increased costs caused by the tax could lead to a reduction in demand and therefore limit
production of rare earth ores and work to reduce extraction of rare earths.
784 Paragraph 7.554 of
the Panel Reports sets out the following reasoning by the Panel:
Nevertheless, the Panel acknowledges that increased costs caused by the tax could, in
the long run, lead to a reduction in demand and therefore limit production of rare
earth ores. Thus, resources taxes could work to reduce extraction of rare earths.
However, in the Panel's opinion, China has not adduced sufficient evidence to
persuade the Panel that the tax at issue here would be capable of having a limiting
effect.
5.239. In our reading of paragraph 7.554 of the Panel Reports, the first sentence of the
paragraph, which uses the conditional mode "could, in the long run, lead to …", sets out a
hypothetical. The third sentence contrasts that to the concrete measure at issue in this case with
the words "However, … the tax at issue here …". As we see it, these are not two conflicting
statements relating to one and the same measure. Rather, the Panel contrasts a hypothetical with

781 Panel Reports, para. 7.526.
782 Panel Reports, para. 7.526.
783 Panel Reports, para. 7.526.
784 China's appellant's submission, para. 303; other appellant's submission, para. 234 (referring to Panel
Reports, paras. 7.554 and 7.555).
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

the specific measure invoked by China in support of its defence. In addition, the Panel specifically
explains, why, in its view, China had not established "that the resource tax was designed in such a
way as to increase the costs, and thus decrease demand for, rare earth products." The Panel
explained that the increase in costs might also have been caused by enlargement of production.
The Panel also explained what evidence China would have had to provide in order to properly
support its argument. In addition, the Panel emphasized in the subsequent paragraph that it was
not assessing the impact of China's resource tax, but rather its design and structure. Accordingly,
we do not see that the Panel engaged in incoherent reasoning in paragraphs 7.554 and 7.555.
5.240. Third, China alleges that the Panel engaged in incoherent reasoning because it failed to
assess the trends in rare earth extraction and production data objectively. China alleges that the
Panel failed to address China's arguments that the extraction, production and consumption data
suggest that the decreased production and consum ption levels are the result of China's overall
conservation policy.
5.241. In connection with this claim, China refe rs to arguments set out in connection with its
claim that the Panel lacked objectivity in its treatment of the evidence in determining how
domestic restrictions and export quotas work together. We have addressed these arguments at
paragraphs 5.229 through 5.233 above in the context of the claim concerning the temporal
connection between domestic restrictions and export quotas. China does not advance any
additional argumentation in regard to its further claim that the Panel failed to assess the trends in
rare earth extraction and production data object ively, and China does not explain whether or how
this claim is distinct from its claim concerning the Panel's error in considering the temporal
connection between domestic restrictions and export quotas. Accordingly, we do not see that
China has established that the Panel was incoherent in its reasoning or acted inconsistently with
Article 11 of the DSU.
5.2.8.2.3 Allegation of a "double st andard" in the Panel's analysis of
"even-handedness"
5.242. Finally, China alleges that the Panel acte d inconsistently with Article 11 of the DSU
because it employed a "double standard" in its an alysis of even-handedness. China argues that,
with respect to the export quotas, the Panel failed to address the extent to which China's export
quotas impose an actual and not merely a theoretical burden on foreign consumers. In contrast,
with regard to domestic restrictions, the Panel focused on whether these restrictions are actually
enforced and have actual restrictive effects. In particular, China alleges that Panel erred in failing
to assess the question of why the challenged export quotas were not filled but according significant
weight to the effects of the domestic restrictions.
5.243. We have already explained, in the context of another claim under Article 11 of the DSU,
that the Panel did address the effects of under-f illed export quotas when addressing China's
contention that the unfilled 2011 and 2012 export quotas showed that there was no discriminatory
treatment of foreign consumers as a consequence of these quotas.
785 The Panel rejected that
contention and was not convinced that, in this case, unfilled quota shares were evidence of non-
discrimination.
786 Accordingly, for the same reasons as set out above, we do not see that the Panel
failed to address the question of the effects of the unfilled export quotas, or employed a "double
standard" in its analysis of "even-handedness".
5.2.9 Overall summary and conclusion on Article XX(g) of the GATT 1994
5.244. We recall that, with respect to the "rel ating to" requirement in Article XX(g) of the
GATT 1994, China requests us to find that the Pane l erred in its interpretation and application of
this requirement, and acted inconsistently with Article 11 of the DSU, in finding that China's export
quotas on rare earths and tungsten do not "relat e to" conservation. China therefore requests us to
reverse the Panel's intermediate findings that China's export quotas on rare earths and tungsten

785 See paragraph 5.201 of these Reports.
786 Panel Reports, paras. 7.630-7.635.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

are not measures "relating to" conservation within the meaning of Article XX(g) of the GATT 1994
by virtue of their "signalling" function.787
5.245. As explained above, we have found that the Panel did not interpret the "relating to"
requirement in Article XX(g) as obliging it to limit its analysis to an examination of the design and
structure of the measures at issue. Nor did the Pane l, either in its interpretation or its application
of the "relating to" requirement, consider itself precluded from taking account of evidence of the
effects of China's export quotas and other elem ents of China's conservation regime in the
marketplace. We have also found that the Panel did not fail to comply with its duty to make an
objective assessment of the matter. Accordingly, we do not accept China's request for reversal of
the relevant Panel findings setting out its interpretation and application of Article XX(g). Instead,
we find that the Panel did not err in its reasoning regarding the signals sent to foreign and
domestic consumers by China's export quotas on rare earths and tungsten, or in rejecting China's
argument that, by virtue of their signalling function, China's export quotas on rare earths and
tungsten relate to conservation.
5.246. With respect to the "made effective in conjunction with" requirement under Article XX(g) of
the GATT 1994, China also requests us to find that the Panel erred in its interpretation and
application of this requirement, and that it failed to make an objective assessment of the matter in
accordance with Article 11 of the DSU. China requests us, in consequence, to reverse the relevant
findings of the Panel.
788
5.247. As explained above, we have found that the Panel did not interpret Article XX(g) as
requiring it to limit its analysis to an examination of the design and structure of the measures and
did not, either in its interpretation or its application of Article XX(g), consider itself precluded from
taking account of evidence of the effects of th e export quotas and domestic measures in the
marketplace. However, we further determined that the Panel erred to the extent that it interpreted
Article XX(g) as imposing a separate requirement of "even-handedness" that must be fulfilled in
addition to the condition that a measure must be "made effective in conjunction with restrictions
on domestic production or consumption". We also found that the Panel erred to the extent it found
that Article XX(g) requires a showing that the bu rden of conservation is evenly distributed.
Nevertheless we have found that this error of the Panel does not taint the remainder of its
interpretation of Article XX(g), which also contains elements that China has not appealed.
5.248. In addition, we found that, despite certain flaws in the Panel's interpretation, the Panel did
not commit legal error in its application of the "made effective in conjunction with" requirement of
Article XX(g) to the export quotas, because it di d not engage in an assessment of whether China's
export quotas on rare earths, tungsten, and molybdenum evenly distribute the burden of
conservation. Further, we found that the Panel did not fail to make an objective assessment of the
matter in this regard. Accordingly, we do not acce pt China's request for reversal of the relevant
Panel findings setting out its interpretation and application of Article XX(g). Instead, we find that
the Panel did not err in rejecting China's argument that the export quotas on rare earths,
tungsten, and molybdenum are "made effective in conjunction with" restrictions on domestic
production or consumption.
5.249. China further requests reversal of the Panel's overall conclusions regarding Article XX(g) of
the GATT 1994 "[t]o the extent that the Panel's errors" in connection with its analysis of the
"relating to" element and/or the "made effe ctive in conjunction with" requirement of
subparagraph (g) of Article XX "taint" the Panel's conclusions, in such paragraphs, that China's
export quotas on rare earths, tungsten and molybdenum cannot be provisionally justified under
subparagraph (g) of Article XX of the GATT 1994.
789

787 China's appellant's submission, paras. 30, 208, 209, 319, and 320; other appellant's submission,
paras. 30, 139, 140, 250, and 251 (referring to Panel Reports, paras. 7.279-7.293, 7.444, 7.446-7.448,
7.541-7.542, 7.604, 7.725, and 7.731).
788 China seeks reversal of paragraphs 7.301, 7.314-7.337, 7.568-7.599, 7.792-7.809,
and 7.919-7.935. (China's appellant's submission, paras. 44, 313, 314, 315, 322, and 323; other appellant's
submission, paras. 44, 244, 245, 246, 253, and 254)
789 China seeks reversal of paragraphs 7.600-7.614, 7.810-7.820, and 7.936-7.944 of the Panel
Reports; and US Panel Report, para. 8.2.c; EU Panel Report, para. 8.7.c; and Japan Panel Report, para. 8.12.c.
(China's appellant's submission, paras. 31, 45, 210, 288, 316, 321, and 324; other appellant's submission,
paras. 31, 45, 141, 219, 247, 252, and 255)
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

5.250. The paragraph ranges cited by China set out the Panel's summary of the entirety of its
Article XX(g) analysis with respect to the export quotas on rare earths 790, tungsten 791, and
molybdenum.792 China also refers to the Panel's ultimate conclusion that China had not established
that these export quotas are justified under Article XX(g) of the GATT 1994. 793 We recall that we
have rejected China's requests for reversal of th e intermediate findings made by the Panel with
respect to the "relating to" and the "made effective in conjunction with" elements of Article XX(g).
5.251. For a GATT-inconsistent measure to be justified under Article XX(g), the Member
maintaining such a measure must demonstrate compliance with all the different elements
prescribed in Article XX(g). China has not, in its arguments on appeal, elaborated how or to what
extent it considers the Panel's ultimate conclusions to be "tainted" by its alleged errors. In any
event, we have found that the Panel did not err in its analysis and findings with respect to the
"relating to" element. We have also found that the Panel did not commit reversible legal error in its
analysis and findings with respect to the "made effective in conjunction with" requirement.
Moreover, the Panel found that China had not established an additional key element of its asserted
defence under Article XX(g), namely, that China's extraction and production caps for rare earths,
tungsten, and molybdenum constitute "restrictions" within the meaning of Article XX(g) of the
GATT 1994
794, and China has not appealed this finding. Finally, the Panel's ultimate finding that
China had not demonstrated that its export quotas are justified under Article XX(g) also rested on
its finding that China had not demonstrated that its 2012 export quotas on rare earths, tungsten,
and molybdenum were applied in a manner consistent with the chapeau of Article XX.
795 This
finding is also not challenged on appeal. Accordingly, there is no basis for disturbing the Panel's
ultimate conclusions under Article XX(g) of the GATT 1994.
5.252. For all of the above reasons, we uphold the Panel's conclusion that "China has not
demonstrated that the export quotas that China applies to various forms of rare earths, tungsten,
and molybdenum are justified pursuant to subparagraph (g) of Article XX of the GATT 1994."796
5.3 Exclusion of Panel Exhibits JE-188 through JE-197 in DS431 (Appeal by the
United States)
5.253. In its Reports, the Panel decided to reject 10 exhibits that had been jointly submitted by
the complainants at a late stage of the Panel proceedings, on 17 July 2013. The Panel did so in
response to a request made by China immediately after the exhibits in question were submitted.
The Panel summarized the reasons for its decision as follows:
… the relevant exhibits were submitted too late; they could have been submitted
earlier and in a manner consistent with due process. Additionally, these exhibits do
not supplement the evidence already accepted by the Panel. They do not, as far as the
Panel can see, say anything substantially new or different from what is said in the
exhibits that the complainants submitted prior to 17 July 2013.
797
5.254. On appeal, the United States requests us to find that the Panel's decision to reject this
evidence was inconsistent with Articles 11 and 12.4 of the DSU. 798 Although the 10 exhibits at
issue were jointly submitted to the Panel by all three complainants, neither the European Union
nor Japan has appealed the Panel's decision to exclude them.
799 Accordingly this issue on appeal
pertains only to DS431 (complaint by the United States), and not to DS432 (complaint by the
European Union) or DS433 (complaint by Japan).

790 Panel Reports, paras. 7.600-7.614.
791 Panel Reports, paras. 7.810-7.820.
792 Panel Reports, paras. 7.936-7.944.
794 Panel Reports, paras. 7.609, 7.816, and 7.940.
795 Panel Reports, paras. 7.679 (rare earths); 7.844 (tungsten); and 7.969 (molybdenum).
796 US Panel Report, para. 8.2.c; EU Panel Report, para. 8.7.c; Japan Panel Report, para. 8.12.c. See
also Panel Reports, paras. 7.614 and 7.680 (rare earths); 7.820 and 7.845 (tungsten); and 7.944 and 7.970
(molybdenum).
797 Panel Reports, para. 7.27.
798 United States' appellant's submission, para. 12.
799 Although each of the three complainants in the three disputes prepared its written submissions and
answers to questions separately, they submitted a single, joint set of exhibits to the Panel numbered from Joint
Exhibit JE-1 to JE-197.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

5.255. This appeal by the United States is made on a conditional basis. In its Notice of Appeal, the
United States indicates that we need not rule on its appeal if either of two scenarios were to arise,
that is, if "China were not to appeal the Panel Repo rt" or if "the Appellate Body were not to modify
or reverse the legal findings or conclusions of the Panel pursuant to an appeal by China".
800 The
first of these scenarios did not arise because China filed an other appeal in DS431 on 13 April
2014.
5.256. We have not, in our above findings, revers ed or modified any of the ultimate findings and
conclusions made by the Panel. Indeed, with respect to the "Conclusions and Recommendations"
set out by the Panel in Section 8 of its Reports, China's appeal related to only one legal
conclusion – that "China has not demonstrated that the export quotas that China applies to various
forms of rare earths, tungsten, and molybdenum are justified pursuant to subparagraph (g) of
Article XX of the GATT 1994" – and we have upheld that conclusion.
801
5.257. At the same time, the United States also clarified, in response to questioning at the oral
hearing, that the second condition on which its appeal is premised does not relate solely to the
Panel's ultimate findings and conclusions, expressed in Section 8 of its Reports, but also to
"intermediate findings" made by the Panel. We recall, in this regard, that although we have not, in
our reasoning above, reversed any intermediate findings of the Panel, we have, in considering the
Panel's interpretation of the phrase "made effective in conjunction with" in Article XX(g) of the
GATT 1994, identified certain erroneous statemen ts made by the Panel in the course of its
interpretation and application of "made effective in conjunction with", and expressed the view that
the Panel erred to the extent that such statements could be read as suggesting that Article XX(g)
imposes a requirement of even-handedness that is separate and additional to the conditions
expressly prescribed in that provision, or as suggesting that Article XX(g) requires an assessment
of whether the burden of conservation is evenly distributed. We found, however, that,
notwithstanding such erroneous statements, the Panel did not commit reversible legal error in its
analysis and findings with respect to the "made effective in conjunction with" requirement.
Moreover, several other elements of the Panel's Article XX(g) analysis are in any event not
appealed. Therefore, we have not identified any legal findings or conclusions of the Panel that
must be reversed or modified.
5.258. In these circumstances, we consider that one of the conditions on which the United States'
appeal is made is not satisfied. Accordingly, we do not rule on whether the Panel erred and acted
inconsistently with Articles 11 and/or 12.4 of the DSU in excluding Panel Exhibits JE-188 through
JE-197.

800 As explained in section 1.3.2 above, China challenged the United States' Notice of Appeal and
requested us to issue a preliminary ruling rejecting the United States' Notice of Appeal due to its "conditional"
nature. We rejected China's request in our Procedural Ruling of 13 April 2014, attached as Annex 4 to these
Reports.
801 See paragraph 5.252 of these Reports; and US Panel Report, para. 8.2.c; EU Panel Report,

- US-154 -

6 FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT IN DS431
6.1. In the appeal of the Panel Report, China – Measures Related to the Exportation of Rare
Earths, Tungsten, and Molybdenum (WT/DS431/R) (US Panel Report), for the reasons set out in
section 5.1 of this Report, with respect to the relationship between specific provisions of China's
Accession Protocol, on the one hand, and the Marrakesh Agreement and the Multilateral Trade
Agreements annexed thereto, on the other hand, the Appellate Body:
a. rejects China's interpretation of Paragraph 1.2 of China's Accession Protocol and
Article XII:1 of the Marrakesh Agreement as making each specific provision of China's
Accession Protocol an integral part of the Marrakesh Agreement or one of the Multilateral
Trade Agreements to which such provision intrinsically relates;
b. finds that the Panel did not err in stating that "the legal effect of the second sentence of
Paragraph 1.2" of China's Accession Protocol is not that "the individual provisions thereof
are … integral parts of Multilateral Trade Agreements annexed to the Marrakesh
Agreement"
802;
c. finds it unnecessary to opine on the scope of the term "WTO Agreement" in the second
sentence of Paragraph 1.2 of China's Accession Protocol; and
d. finds that questions concerning the specific relationship between an individual provision
in China's Accession Protocol and provisions of the Marrakesh Agreement and the
Multilateral Trade Agreements annexed thereto, including whether exceptions under
those agreements may apply to a breach of the Protocol provision, must be answered
through a thorough analysis of the relevant provisions on the basis of the customary
rules of treaty interpretation and the circum stances of the dispute. The analysis must
start with the text of the relevant provision in China's Accession Protocol and take into
account its context, including that provided by the Protocol itself and by relevant
provisions of the Accession Working Party Report, and by the agreements within the
WTO legal framework. The analysis must also take into account the overall architecture
of the WTO system as a single package and any other relevant interpretative elements,
and must be applied to the circumstances of each dispute, including the measure at
issue and the nature of the alleged violation.
6.2. For the reasons set out in section 5.2 above, with respect to Article XX(g) of the GATT 1994,
the Appellate Body:
a. regarding the Panel's finding that China's export quotas on rare earths and tungsten are
not measures "relating to" conservation and, in particular, its reasoning regarding the
signals sent by those export quotas to foreign and domestic consumers:
i. finds that the Panel did not interpret Article XX(g) as requiring it to limit its analysis
to an examination of the design and struct ure of the measures at issue and did not,
either in its interpretation or in its application of Article XX(g), consider itself
precluded from taking account of evidence of the effects of China's export quotas
and other elements of China's conservation regime in the marketplace; and
ii. finds that the Panel did not fail to comply with its duty, under Article 11 of the DSU,
to make an objective assessment of the matter;
b. regarding the Panel's finding that China's export quotas on rare earths, tungsten, and
molybdenum are not "made effective in conjunction with restrictions on domestic
production or consumption" and, in particular, its reasoning regarding the "even-
handedness" requirement:
i. finds that the Panel did not interpret Article XX(g) as requiring it to limit its analysis
to an examination of the design and struct ure of the measures at issue and did not,
either in its interpretation or in its application of Article XX(g), consider itself

802 Panel Reports, para. 7.93. See also ibid., paras. 7.80 and 7.89.

- EU-156 -

6 FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT IN DS432
6.1. In the appeal of the Panel Report, China – Measures Related to the Exportation of Rare
Earths, Tungsten, and Molybdenum (WT/DS432/R) (EU Panel Report), for the reasons set out in
section 5.1 of this Report, with respect to the relationship between specific provisions of China's
Accession Protocol, on the one hand, and the Marrakesh Agreement and the Multilateral Trade
Agreements annexed thereto, on the other hand, the Appellate Body:
a. rejects China's interpretation of Paragraph 1.2 of China's Accession Protocol and
Article XII:1 of the Marrakesh Agreement as making each specific provision of China's
Accession Protocol an integral part of the Marrakesh Agreement or one of the Multilateral
Trade Agreements to which such provision intrinsically relates;
b. finds that the Panel did not err in stating that "the legal effect of the second sentence of
Paragraph 1.2" of China's Accession Protocol is not that "the individual provisions thereof
are … integral parts of Multilateral Trade Agreements annexed to the Marrakesh
Agreement"
802;
c. finds it unnecessary to opine on the scope of the term "WTO Agreement" in the second
sentence of Paragraph 1.2 of China's Accession Protocol; and
d. finds that questions concerning the specific relationship between an individual provision
in China's Accession Protocol and provisions of the Marrakesh Agreement and the
Multilateral Trade Agreements annexed thereto, including whether exceptions under
those agreements may apply to a breach of the Protocol provision, must be answered
through a thorough analysis of the relevant provisions on the basis of the customary
rules of treaty interpretation and the circum stances of the dispute. The analysis must
start with the text of the relevant provision in China's Accession Protocol and take into
account its context, including that provided by the Protocol itself and by relevant
provisions of the Accession Working Party Report, and by the agreements within the
WTO legal framework. The analysis must also take into account the overall architecture
of the WTO system as a single package and any other relevant interpretative elements,
and must be applied to the circumstances of each dispute, including the measure at
issue and the nature of the alleged violation.
6.2. For the reasons set out in section 5.2 above, with respect to Article XX(g) of the GATT 1994,
the Appellate Body:
a. regarding the Panel's finding that China's export quotas on rare earths and tungsten are
not measures "relating to" conservation and, in particular, its reasoning regarding the
signals sent by those export quotas to foreign and domestic consumers:
i. finds that the Panel did not interpret Article XX(g) as requiring it to limit its analysis
to an examination of the design and struct ure of the measures at issue and did not,
either in its interpretation or in its application of Article XX(g), consider itself
precluded from taking account of evidence of the effects of China's export quotas
and other elements of China's conservation regime in the marketplace; and
ii. finds that the Panel did not fail to comply with its duty, under Article 11 of the DSU,
to make an objective assessment of the matter;
b. regarding the Panel's finding that China's export quotas on rare earths, tungsten, and
molybdenum are not "made effective in conjunction with restrictions on domestic
production or consumption" and, in particular, its reasoning regarding the "even-
handedness" requirement:
i. finds that the Panel did not interpret Article XX(g) as requiring it to limit its analysis
to an examination of the design and struct ure of the measures at issue and did not,
either in its interpretation or in its application of Article XX(g), consider itself

802 Panel Reports, para. 7.93. See also ibid., paras. 7.80 and 7.89.

- JPN-158 -

6 FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT IN DS433
6.1. In the appeal of the Panel Report, China – Measures Related to the Exportation of Rare
Earths, Tungsten, and Molybdenum (WT/DS433/R) (Japan Panel Report), for the reasons set out in
section 5.1 of this Report, with respect to the relationship between specific provisions of China's
Accession Protocol, on the one hand, and the Marrakesh Agreement and the Multilateral Trade
Agreements annexed thereto, on the other hand, the Appellate Body:
a. rejects China's interpretation of Paragraph 1.2 of China's Accession Protocol and
Article XII:1 of the Marrakesh Agreement as making each specific provision of China's
Accession Protocol an integral part of the Marrakesh Agreement or one of the Multilateral
Trade Agreements to which such provision intrinsically relates;
b. finds that the Panel did not err in stating that "the legal effect of the second sentence of
Paragraph 1.2" of China's Accession Protocol is not that "the individual provisions thereof
are … integral parts of Multilateral Trade Agreements annexed to the Marrakesh
Agreement"
802;
c. finds it unnecessary to opine on the scope of the term "WTO Agreement" in the second
sentence of Paragraph 1.2 of China's Accession Protocol; and
d. finds that questions concerning the specific relationship between an individual provision
in China's Accession Protocol and provisions of the Marrakesh Agreement and the
Multilateral Trade Agreements annexed thereto, including whether exceptions under
those agreements may apply to a breach of the Protocol provision, must be answered
through a thorough analysis of the relevant provisions on the basis of the customary
rules of treaty interpretation and the circum stances of the dispute. The analysis must
start with the text of the relevant provision in China's Accession Protocol and take into
account its context, including that provided by the Protocol itself and by relevant
provisions of the Accession Working Party Report, and by the agreements within the
WTO legal framework. The analysis must also take into account the overall architecture
of the WTO system as a single package and any other relevant interpretative elements,
and must be applied to the circumstances of each dispute, including the measure at
issue and the nature of the alleged violation.
6.2. For the reasons set out in section 5.2 above, with respect to Article XX(g) of the GATT 1994,
the Appellate Body:
a. regarding the Panel's finding that China's export quotas on rare earths and tungsten are
not measures "relating to" conservation and, in particular, its reasoning regarding the
signals sent by those export quotas to foreign and domestic consumers:
i. finds that the Panel did not interpret Article XX(g) as requiring it to limit its analysis
to an examination of the design and struct ure of the measures at issue and did not,
either in its interpretation or in its application of Article XX(g), consider itself
precluded from taking account of evidence of the effects of China's export quotas
and other elements of China's conservation regime in the marketplace; and
ii. finds that the Panel did not fail to comply with its duty, under Article 11 of the DSU,
to make an objective assessment of the matter;
b. regarding the Panel's finding that China's export quotas on rare earths, tungsten, and
molybdenum are not "made effective in conjunction with restrictions on domestic
production or consumption" and, in particular, its reasoning regarding "the even-
handedness requirement":
i. finds that the Panel did not interpret Article XX(g) as requiring it to limit its analysis
to an examination of the design and struct ure of the measures at issue and did not,
either in its interpretation or in its application of Article XX(g), consider itself

802 Panel Reports, para. 7.93. See also ibid., paras. 7.80 and 7.89.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

ANNEX 1

11 April 2014
(14-2276) Page: 1/1
 Original: English
CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
NOTIFICATION OF AN 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 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
 The following notification, dated 8 April 2014, 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 20 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 on China – Measures Related to the Exportation of Rare Earths,
Tungsten and Molybdenum (WT/DS431/R) and certain legal interpretations developed by the Panel
in this dispute. If China were not to appeal the Panel Report, or if the Appellate Body were not to
modify or reverse the legal findings or conclusions of the Panel pursuant to an appeal by China,
then the Appellate Body would not need to reach the following issues.

1. The United States seeks review by the Appellate Body of the Panel's legal conclusion that it
should reject exhibits submitted by the complainants with their comments on China's responses to
the Panel's questions after the second meeting pursuant to Article 3.3 of the DSU and
paragraph 7 of the Panel's Working Procedures.
1 This finding is in error and is based on erroneous
findings on issues of law and legal interpretations, including, for example: the Panel's conclusion
that acceptance of such evidence would have presented "due process" concerns for China;
2 the
Panel's conclusion that "the submission of new expert reports" would have interfered with the
prompt settlement of the dispute; 3 and the Panel's conclusion that to be accepted as rebuttal
evidence an exhibit must "rise to the required level of necessity." 4 In reaching these conclusions,
the Panel erroneously applied DSU Article 3.3 and failed to provide sufficient time to the United
States to prepare its submissions pursuant to DSU Article 12.4.

2. The United States also requests the Appellate Body to find that the Panel acted
inconsistently with Article 11 of the DSU by failing to make an objective assessment of the facts by
excluding exhibits submitted by the complainants with their comments on China's responses to the
Panel's questions after the second meeting; by fi nding that "the evidence [in question] could and
should have been submitted at an earlier date;"
5 and by finding that the evidence in question does
not rebut arguments made by China at the second meeting of the Panel.6
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

ANNEX 2

24 April 2014
(14-2489) Page: 1/3
 Original: English
 CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
NOTIFICATION OF AN OTHER 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 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
 The following notification, dated 17 April 2014, fr om the Delegation of the People's Republic
of China, is being circulated to Members.

Rare Earths, Tungsten, and Molybdenum (WT/DS431) ("Panel Report").

I. A PPEAL OF THE PANEL'S INTERPRETATION OF ARTICLE XII:1 OF THE MARRAKESH AGREEMENT
ESTABLISHING THE WORLD TRADE ORGANIZATION , READ IN CONJUNCTION WITH PARAGRAPH 1.2,
SECOND SENTENCE, OF CHINA'S ACCESSION PROTOCOL

2. China seeks review by the Appellate Body of th e Panel's interpretation of Article XII:1 of
the Marrakesh Agreement Establishing the World Trade Organization (the " Marrakesh
Agreement"), read in conjunction with the second sentence of Paragraph 1.2 of China's Accession
Protocol.
1
3. The Panel's interpretation is in error, inter alia, because:
 the Panel failed to give effective meaning to the second sentence of Article XII:1
which does not merely prescribe that newly acceding Members may not pick and
choose among the various covered agreements but have to accept the WTO legal
framework as a single undertaking;
 the Panel failed properly to read Article XII:1 of the Marrakesh Agreement together
with the second sentence of Paragraph 1.2 of China's Accession Protocol;

1 The relevant analysis by the Panel is contained in paras. 7.73-7.93 of the Panel Report.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

 the Panel erred in interpreting the terms contained in the second sentence of
Paragraph 1.2 of China's Accession Protocol;
 the Panel unduly found that the words "shall be an integral part of the WTO
Agreement" in the second sentence of Paragraph 1.2 of China's Accession Protocol
leads to the conclusion that China's Accession Protocol is thereby made an integral
part of the Marrakesh Agreement excluding the multilateral trade agreements
annexed thereto.
4. Accordingly, China requests that the Appellate Body reverse the Panel's findings in
paragraphs 7.80, 7.89 and 7.93 of the Panel Report in this regard.
II. A PPEAL OF THE PANEL'S FINDINGS THAT CHINA'S EXPORT QUOTAS ON RARE EARTHS AND TUNGSTEN
DO NOT "RELAT[E] TO" CONSERVATION UNDER ARTICLE XX(G) OF THE GATT 1994

5. China seeks review by the Appellate Body of the Panel's findings and conclusions that
export quotas for rare earths and tungsten do not "relat[e]" to conservation within the meaning of
subparagraph (g) to Article XX of the GATT 1994 beca use they send a perverse signal to domestic
users.2
6. The Panel's findings are based on errors in the interpretation and application of the
"relating to" element of subparagraph(g) of Article XX, inter alia, because the Panel:
 focused on the design structure and architecture of China's export quotas to the
exclusion of evidence regarding the operat ion of the export quotas together with
other elements of China's comprehensive conservation policy, in circumstances
where China submitted substantial evidence on the operation of the conservation
programme in the marketplace; and
 required China to show that there is no risk that perverse signals to domestic users
might offset the positive effect of conservation signals to foreign users.
7. In addition, China submits that the Panel acted inconsistently with Article 11 of the DSU in
relation to these issues by failing to make an objective assessment of the matter, including an
objective assessment of the facts relating to the existence of "perverse signals" and through
providing incoherent reasoning.
8. Accordingly, China requests the Appellate Body to reverse the Panel's interpretation in
paragraphs 7.279-7.293 to the extent that this inte rpretation required the Panel to examine solely
the structure and design of China's export quotas, as well as the Panel's failure to apply the proper
legal standard and make an objective assessment in paragraphs 7.444, 7.446-7.448, 7.541-7.542,
7.604, 7.725 and 7.731 of the Panel Report.
9. To the extent that these errors taint the Panel's conclusions, in paragraphs 7.600-7.614,
7.810-7.820, 8.2(c), 8.7(c) and 8.12(c) of the Pane l Report, that China's export quotas on rare
earths and tungsten cannot be provisionally justified under subparagraph (g) of Article XX of the
GATT 1994, China requests the Appellate Body also to reverse these findings of the Panel.
III. A PPEAL OF THE PANEL'S FINDINGS THAT THE CHINA 'S EXPORT QUOTAS ON RARE EARTHS, TUNGSTEN
AND MOLYBDENUM ARE NOT "MADE EFFECTIVE IN CONJUNCTION WITH " DOMESTIC RESTRICTIONS
UNDER ARTICLE XX(G) OF THE GATT 1994

10. China seeks review by the Appellate Body of the Panel's findings and conclusions that
China's export quotas on rare earths, tungsten and molybdenum are not "made effective in

2 The relevant Panel findings are contained, inter alia, in paras. 7.279-7.293, 7.444, 7.446-7.448,
7.541-7.542, 7.604, 7.725, 7.731. The relevant Panel conclusions are contained, inter alia, in Panel Report,
paras. 7.600-7.614, 7.810-7.820, 8.2(c), 8.7(c) and 8.12(c).
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

conjunction with" domestic restrictions within the meaning off subparagraph (g) of Article XX of
the GATT 1994.3
11. The Panel's findings are based on errors in the interpretation and application of the "made
effective in conjunction with" domestic restrictions element of subparagraph (g) of Article XX
because the Panel erroneously in terpreted and applied the term "made effective in conjunction
with" domestic restrictions to mean that the Panel was:
 required to engage in a separate and distinct enquiry to determine whether, and find
that, China "distributes the burden of conservation-related measures between
domestic and foreign consumers in a balanced way"; 4 "counterbalance[ed]" 5 the
restrictions on domestic and foreign users; or achieved "substantive
complementarity"
6 between foreign and domestic restrictions; and
 confined to assessing the "objective structure, design and architecture" 7 of China 's
regulatory system of conservation measures and it was precluded from having
regard to "the actual effects which a regulatory system has in the market place",
8 in
circumstances where China submitted substa ntial evidence on the operation of the
conservation programme in the marketplace.
12. In addition, China submits that the Panel acted inconsistently with Article 11 of the DSU in
relation to these issues by failing to make an objective assessment of the matter, including an
objective assessment of the facts, through its lack of objectivity in the treatment of evidence it
considered relevant; through its inconsistent reasoning in finding that none of the domestic
measures advanced by China amounts to a "domestic restriction"; and by relying on inconsistent
reasoning as well as a double standard of proof in comparing the relative burden of China's
restrictions on foreign and domestic users.
13. Accordingly, China requests that the Appellate Body reverse the Panel's interpretation in
paragraphs 7.301 and 7.314-7.337 with respect to the Panel's additional enquiry regarding the
relative burdens borne by domestic and foreign interests under relevant conservation measures, as
well as the Panel's failure to apply the proper legal standard and make an objective assessment in
paragraphs 7.568-7.599, 7.792-7.809, and 7.919-7.935 of the Panel Report.
14. To the extent that these errors taint the Panel's conclusions, in paragraphs 7.600-7.614,
7.810-7.820, 7.936-7.944, 8.2(c), 8.7(c) and 8.12(c ) of the Panel Report, that China's export
quotas on rare earths, tungsten and molybdenum cannot be provisionally justified under
subparagraph (g) of Article XX of the GATT 1994, China requests the Appellate Body also to
reverse these findings of the Panel.

WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

ANNEX 3

30 April 2014
(14-2646) Page: 1/3
 Original: English

CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
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 25 April 2014, from the Delegation of the People's Republic of
China, is being circulated to Members.
Rare Earths, Tungsten, and Molybdenum (WT/DS432, WT/DS433 ) ("Panel Reports").
I. APPEAL OF THE PANEL'S INTERPRE TATION OF ARTICLE XII:1 OF THE MARRAKESH
AGREEMENT ESTABLISHING TH E WORLD TRADE ORGANIZATION , READ IN
CONJUNCTION WITH PARAGRAPH 1.2, SECOND SENTENCE, OF CHINA'S ACCESSION
PROTOCOL
2. China seeks review by the Appellate Body of the Panel's interpretation of Article XII:1 of the
Marrakesh Agreement Establishing the World Trade Organization (the " Marrakesh Agreement "),
read in conjunction with the second sentence of Paragraph 1.2 of China's Accession Protocol.1
3. The Panel's interpretation is in error, inter alia, because:
 the Panel failed to give effective meaning to the second sentence of Article XII:1 which
does not merely prescribe that newly acceding Members may not pick and choose among
the various covered agreements but have to accept the WTO legal framework as a single
undertaking;
 the Panel failed properly to read Article XII:1 of the Marrakesh Agreement together with
the second sentence of Paragraph 1.2 of China's Accession Protocol;
 the Panel erred in interpreting the terms contained in the second sentence of
Paragraph 1.2 of China's Accession Protocol;

1 The relevant analysis by the Panel is contained in paras. 7.73-7.93 of the Panel Reports.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

 the Panel unduly found that the words "shall be an integral part of the WTO Agreement"
in the second sentence of Paragraph 1.2 of China's Accession Protocol leads to the
conclusion that China's Accession Protocol i s t h e r e b y m a d e a n i n t e g r a l p a r t o f t h e
Marrakesh Agreement excluding the multilateral trade agreements annexed thereto.
4. Accordingly, China requests that the Appellate Body reverse the Panel's findings in
paragraphs 7.80, 7.89 and 7.93 of the Panel Reports in this regard.
II. APPEAL OF THE PANEL'S FINDINGS THAT CHINA'S EXPORT QUOTAS ON RARE
EARTHS AND TUNGSTEN DO NOT "RELAT[E] TO" CONSERVATION UNDER ARTICLE XX(G)
OF THE GATT 1994
5. China seeks review by the Appellate Body of the Panel's findings and conclusions that export
quotas for rare earths and tungsten do not "relat[e]" to conservation within the meaning of
subparagraph (g) to Article XX of the GATT 1994 beca use they send a perverse signal to domestic
users.2
6. The Panel's findings are based on errors in the interpretation and application of the "relating
to" element of subparagraph(g) of Article XX, inter alia, because the Panel:
 focused on the design structure and archit ecture of China's export quotas to the
exclusion of evidence regarding the operation of the export quotas together with other
elements of China's comprehensive conserva tion policy, in circumstances where China
submitted substantial evidence on the operation of the conservation programme in the
marketplace; and
 required China to show that there is no risk that perverse signals to domestic users might
offset the positive effect of conservation signals to foreign users.
7. In addition, China submits that the Panel acted inconsistently with Article 11 of the DSU in
relation to these issues by failing to make an objective assessment of the matter, including an
objective assessment of the facts relating to the existence of "perverse signals" and through
providing incoherent reasoning.
8. Accordingly, China requests the Appellate Body to reverse the Panel's interpretation in
paragraphs 7.279-7.293 to the extent that this inte rpretation required the Panel to examine solely
the structure and design of China's export quotas, as well as the Panel's failure to apply the proper
legal standard and make an objective assessment in paragraphs 7.444, 7.446-7.448, 7.541-7.542,
7.604, 7.725 and 7.731 of the Panel Reports.
9. To the extent that these errors taint the Panel's conclusions, in paragraphs 7.600-7.614,
7.810-7.820, 8.2(c), 8.7(c) and 8.12(c) of the Panel Reports, that China's export quotas on rare
earths and tungsten cannot be provisionally justified under subparagraph (g) of Article XX of the
GATT 1994, China requests the Appellate Body also to reverse these findings of the Panel.
III. APPEAL OF THE PANEL'S FINDINGS TH AT CHINA'S EXPORT QUOTAS ON RARE
EARTHS, TUNGSTEN AND MOLYBDENUM ARE NOT "MADE EFFECTIVE IN CONJUNCTION
WITH" DOMESTIC RESTRICTIONS UNDER ARTICLE XX(G) OF THE GATT 1994
10. China seeks review by the Appellate Body of the Panel's findings and conclusions that
China's export quotas on rare earths, tungsten and molybdenum are not "made effective in
conjunction with" domestic restrictions within the meaning of subparagraph (g) of Article XX of the
GATT 1994.
3

2 The relevant Panel findings are contained, inter alia, in Panel Reports, paras. 7.279-7.293, 7.444,
7.446-7.448, 7.541-7.542, 7.604, 7.725, 7.731. The relevant Panel conclusions are contained, inter alia, in
Panel Reports, paras. 7.600-7.614, 7.810-7.820, 8.2(c), 8.7(c) and 8.12(c).
3 The relevant Panel findings are contained, inter alia, in Panel Reports, paras. 7.301, 7.314-7.337,
7.568 -7.599, 7.792-7.809, and 7.919-7.935. The relevant Panel conclusions are contained in Panel Reports,
paras. 7.600-7.614, 7.810-7.820, 7.936-7.944, 8.2(c), 8.7(c) and 8.12(c).
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

11. The Panel's findings are based on errors in the interpretation and application of the "made
effective in conjunction with" domestic restrictions element of subparagraph (g) of Article XX
because the Panel erroneously in terpreted and applied the term "made effective in conjunction
with" domestic restrictions to mean that the Panel was:
 required to engage in a separate and distinct enquiry to determine whether, and find
that, China "distributes the burden of conservation-related measures between domestic
and foreign consumers in a balanced way";
4 "counterbalance[ed]" 5 the restrictions on
domestic and foreign users; or achieved "substantive complementarity" 6 between foreign
and domestic restrictions; and
 confined to assessing the "objective structure, design and architecture" 7 of China's
regulatory system of conservation measures and it was precluded from having regard to
"the actual effects which a regulatory system has in the market place", 8 in circumstances
where China submitted substantial evidence on the operation of the conservation
programme in the marketplace.
12. In addition, China submits that the Panel acted inconsistently with Article 11 of the DSU in
relation to these issues by failing to make an objective assessment of the matter, including an
objective assessment of the facts, through its lack of objectivity in the treatment of evidence it
considered relevant; through its inconsistent reasoning in finding that none of the domestic
measures advanced by China amounts to a "domestic restriction"; and by relying on inconsistent
reasoning as well as a double standard of proof in comparing the relative burden of China's
restrictions on foreign and domestic users.
13. Accordingly, China requests that the Appellate Body reverse the Panel's interpretation in
paragraphs 7.301 and 7.314-7.337 with respect to the Panel's additional enquiry regarding the
relative burdens borne by domestic and foreign interests under relevant conservation measures, as
well as the Panel's failure to apply the proper legal standard and make an objective assessment in
paragraphs 7.568-7.599, 7.792-7.809, and 7.919-7.935 of the Panel Reports.
14. To the extent that these errors taint the Panel's conclusions, in paragraphs 7.600-7.614,
7.810-7.820, 7.936-7.944, 8.2(c), 8.7(c) and 8.12(c ) of the Panel Reports, that China's export
quotas on rare earths, tungsten and molybdenum cannot be provisionally justified under
subparagraph (g) of Article XX of the GATT 1994, China requests the Appellate Body also to
reverse these findings of the Panel.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

ANNEX 4

 ORGANISATION MONDIALE ORGANIZACIÓN MUNDIAL
 DU COMMERCE DEL COMERCIO

APPELLATE BODY
China – Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum

AB-2014-3
Procedural Ruling

1 BACKGROUND
1.1. On Tuesday, 8 April 2014, the United States notified the Dispute Settlement Body and filed a
Notice of Appeal with the Appellate Body Secretariat with respect to the Panel Report in China –
Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum (WT/DS431/R).
In its Notice of Appeal, the United States challenges the Panel's decision to dismiss certain exhibits
submitted by the United States, arguing that the Panel erroneously applied Articles 3.3 and 12.4 of
the DSU, and acted inconsistently with Article 11 of the DSU. The United States further states that
the Appellate Body would not need to reach the i ssues raised on appeal in one of two scenarios:
(i) if China were not to appeal the Panel Report; or (ii) if the Appellate Body were not to modify or
reverse the legal findings or conclusions of the Panel pursuant to an appeal by China.
1.2. By letter of 9 April 2014, China requested the Appellate Body to reject the Notice of Appeal
on the grounds that, due to its "conditional" nature, the Notice of Appeal does not constitute a
proper Notice of Appeal within the meaning of the Working Procedures for Appellate Review
(Working Procedures). In the event that the Appe llate Body were not to reject the Notice of
Appeal, China requested the Appellate Body to extend the time-limits for filing relevant documents
pursuant to Rule 16(2) of the Working Procedures.
1.3. By letter of 10 April 2014, the Chair of the Appellate Body invited the participants and third
participants to provide their comments on China's requests by noon on 11 April 2014. Australia,
Brazil, Canada, Japan, and the United States submitted comments within the deadline. China and
the European Union did not submit comments on 11 April. Instead, they referred to their
respective letters of 10 April concerning the sepa rate procedural issue of the sequencing of the
appeals in this dispute and in United States – Countervailing and Anti-Dumping Measures on
Certain Products from China (DS449).
1.4. China maintains that the United States' Notice of Appeal is deficient because it is conditional
upon China exercising its right to appeal on issues unrelated to those raised by the United States
in its Notice of Appeal. In China's view, the documents filed by the United States on 8 April
represent merely an attempt to force China to file an appeal of the Panel Report earlier than it had
otherwise intended. China emphasizes that allowing the United States to resort to such litigation
tactics would lead to serious systemic implications, because it sets a precedent according to which
a Member could file a specious appeal, conditional upon the other party's filing of an other appeal,
and thereby dictate the timing of the latter. China further submits that the "exceptional
circumstances" present in this dispute mean that strict adherence to the regular deadlines would
result in "manifest unfairness" within the mean ing of Rule 16(2) of the Working Procedures,
effectively denying China a proper opportunity to develop its arguments on appeal.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

1.5. The United States requests the Appellate Body to deny China's request to reject the
United States' Notice of Appeal. The United States disagrees with China's assertion that the United
States has made the exercise of its right to appeal conditional upon China exercising its right to
appeal. Rather, the United States explains that its appeal is formulated such that the Appellate
Body would not be compelled to reach the issues raised in certain circumstances. The United
States further requests the Appellate Body to deny China's request to extend the deadlines for
filing documents. The United States disagrees with China that the circumstances of this dispute are
"exceptional" in the sense of Rule 16(2) of the Work ing Procedures or that they result in "manifest
unfairness" to China.
1.6. Australia notes that Rule 20 of the Working Procedures sets out the requirements for a Notice
of Appeal, and the question for the Appellate Body is whether the Notice of Appeal conforms to
those requirements. Moreover, it is within the pu rview of the Appellate Body to extend the time-
limits under Rule 16(2) of the Working Procedures. Brazil argues that, apart from the requirements
in Article 17.6 of the DSU and Rule 20 of the Working Procedures, there are no limits on the
subject matter or the length of an appeal. Brazil argues, however, that the Appellate Body should
bear in mind the systemic implications of allowing notices of appeal to shorten the timeframe
available to all parties for their submissions. Canada considers that the Appellate Body should treat
the United States' appeal as an other appeal th at would follow an eventual appeal by China.
Moreover, requiring the third participants to file written submissions on 29 April 2014 would result
in manifest unfairness, due to the fact that they have had access to the Panel Report for only a
few days. The European Union contends that China mischaracterizes the United States' appeal as
conditional. The European Union submits, instead, that the United States has filed an unconditional
appeal while indicating that such appeal may effectively be withdrawn if a particular condition is
satisfied. Japan maintains that the United States ha s filed its Notice of Appeal and notification to
the DSB of its decision to appeal in a manner fully consistent with the relevant provisions of the
DSU and the Working Procedures. Moreover, the time -limits decided by the Appellate Body should
not prejudice the rights of any party to defend its interests effectively.
2 CHINA'S REQUEST TO REJECT THE UNITED STATES' NOTICE OF APPEAL AS
IMPROPERLY FILED
2.1. Rule 20(1) of the Working Procedures prov ides that "[a]n appeal shall be commenced by
notification in writing to the DSB" in accordance with Article 16.4 of the DSU "and simultaneous
filing of a Notice of Appeal with the Secretaria t". Furthermore, Rule 20(2) specifies the required
contents of a Notice of Appeal, namely: the title of the panel report, the name of the party filing
the Notice, the service list, and a brief statement of the nature of the appeal, including:
(i) identification of the alleged errors in the panel report; (ii) a list of the legal provisions of the
covered agreements that the panel is alleged to have erred in interpreting or applying; and (iii) an
indicative list of the paragraphs of the panel report containing the alleged errors.
2.2. We note that China has not identified any of the above provisions as the basis for its request
that the Appellate Body reject the United States ' Notice of Appeal. Indeed, China does not claim
that the United States' Notice of Appeal fails to conform to the requirements set out in Rule 20
regarding the form and content of a Notice of Appeal, or is otherwise insufficient to provide proper
notice to China concerning the scope of the appeal.
2.3. Our examination of the United States' Notice of Appeal also confirms that the Notice contains
all of the required elements listed in Rule 20 of the Working Procedures. On its face, the Notice
contains the title of the Panel Report, an indication that it is filed by the United States, and the
service list. Moreover, it is clear from the conten ts of the Notice that the issues subject to the
United States' appeal are whether, in dismissing certain exhibits submitted by the United States on
17 July 2013, the Panel: (i) erred in applying Article 3.3 of the DSU, and failed to provide sufficient
time to the United States to prepare its submissions pursuant to Article 12.4 of the DSU; and
(ii) acted inconsistently with Article 11 of the DSU by failing to conduct an objective assessment of
the facts. These issues appear, on their face, t o b e " i s s u e s o f l a w " w i t h i n t h e m e a n i n g o f
Article 17.6 of the DSU. Moreover, the United Stat es' Notice of Appeal identifies the relevant
provisions of the DSU that the Panel is alleged to have erred in applying, as well as the paragraphs
of the Panel Report in which these alleged errors are found.
2.4. It follows that, in our view, the United States' Notice of Appeal conforms to the formal
requirements prescribed by Rule 20 of the Working Procedures, and sufficiently sets out a brief
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

statement of the nature of the United States' ap peal. We are further of the view that, on their
face, the issues appealed by the United States fall within the scope of appellate review pursuant to
Article 17.6 of the DSU. We therefore consider that our jurisdiction to consider the issues raised in
the United States' appeal has been validly established.
2.5. In this regard, we note that nothing in Articles 17.6 or 17.13 of the DSU prevents a party
from appealing even a favourable finding or conclusion of a panel. A party may choose to exercise
its right to appeal even in respect of a favourable ruling in order to challenge, for example, an
intermediate finding or a legal interpretation developed by the panel. It may do so even when an
alternative legal interpretation developed by th e Appellate Body, or the outcome of an appeal
raised for systemic reasons, would not change the ultimate conclusion of the panel.
2.6. China maintains, however, that the conditional nature of the United States' Notice of Appeal
is a substantial flaw and that, as a result, the Notice of Appeal cannot be considered properly filed
under the Working Procedures. We recall that the United States' Notice of Appeal states that:
If China were not to appeal the Panel Report, or if the Appellate Body
were not to modify or reverse the legal findings or conclusions of the
Panel pursuant to an appeal by China, then the Appellate Body would not
need to reach the … issues [raised on appeal].
2.7. The United States' Notice of Appeal thus id entifies two scenarios in which the Appellate Body
need not reach a finding on the issues raised on appeal. Should one of these two scenarios arise,
the Appellate Body may determine that it need not address the issues raised by the United States'
appeal further, and need not reach a finding or make a recommendation on such issues. In our
view, the possibility that the Appellate Body may find it unnecessary to rule on these issues at a
later stage of these appellate proceedings, however, does not undermine either the validity of the
United States' Notice of Appeal or the jurisdiction of the Appellate Body over the United States'
appeal established by that Notice of Appeal.
2.8. Moreover, at present, the Appellate Body is not in a position to speculate as to whether either
of the two scenarios that the United States identifies would materialize. Until either scenario
occurs, the prerequisite for the Appellate Body not t o r u l e o n t h e i s s u e s r a i s e d b y t h e
United States is not fulfilled. The fact that the Appellate Body might find itself in a situation where
it is unnecessary to rule on the issues raised on appeal, alone, does not provide a legal basis for
the Appellate Body to reject that appeal at th e outset of these appellate proceedings when its
jurisdiction to hear the issues appealed has been properly established.
2.9. The Appellate Body has taken a similar appr oach in the analogous situation of "conditional
appeals", whereby a participant requests the Appellate Body to make a certain finding in the event
that specific conditions identified by the participant are fulfilled. The Appellate Body has declined to
review or to make a finding on issues when the conditions on which the appeals of those issues
were predicated were not met.
1 We also consider useful the analogy to those appeals in which
certain appealed issues have been withdrawn purs uant to Rule 30(1) of the Working Procedures,
thus rendering a ruling by the Appellate Body unnecessary. 2 Indeed, in at least one instance
conditional appeals were explicitly withdrawn once it became clear to the party that had raised

1 For example, in Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural
Products, the Appellate Body declined to rule on Argentina's claim that the measure at issue was inconsistent
with Article II:1(b) of the GATT 1994. The claim was conditioned on the Appellate Body reversing the panel's
finding that the measure was inconsistent with Article 4.2 of the Agreement on Agriculture. The Appellate Body
concluded that, because that condition had not been fulfilled, it was not "necessary" to rule on the conditional
claim under the first sentence of Article II:1(b). (Appellate Body Report, Chile – Price Band System and
Safeguard Measures Relating to Certain Agricultural Products, para. 286)
2 For example, in United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint),
the European Union withdrew the part of its appeal relating to subsidies contingent upon export approximately
one month after having initiated the appeal. (Appellate Body Report, United States – Measures Affecting Trade
in Large Civil Aircraft (Second Complaint), para. 28)
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

them that the conditions on which they were predicated would not materialize. 3 Importantly, the
Appellate Body has never rejected an appeal, or declared that the appeal is not properly filed,
simply because the claims of error raised were of a conditional nature. Rather, similar to our
approach here, the Appellate Body has considered that it has jurisdiction over claims on appeal
that are predicated on certain conditions, notwithstanding that it may subsequently transpire that
a ruling on such claims of panel error is not required or requested.
2.10. In sum, we consider that the United States ' Notice of Appeal conforms to the requirements
of Rule 20 of the Working Procedures. Consequently, our jurisdiction to hear the United States'
appeal is validly established. The possibility that we may not need to rule on the issues due to the
occurrence of the scenarios identified by the United States does not provide a valid legal basis for
us to reject the United States' appeal. However, we are mindful of the systemic implications that
China has raised. We will turn to address those implications in the context of our decision
regarding China's request to extend time-limits for filing documents.
3 CHINA'S REQUEST TO EXTEND TIME-LIMITS FOR FILING DOCUMENTS
3.1. China further requests that the Appellate Bo dy extend pursuant to Rule 16(2) of the Working
Procedures the deadlines for filing relevant documents that would otherwise apply under the
Working Procedures. China submits that strict adherence to the regular deadlines would result in
manifest unfairness and deny China a proper opportunity to develop its arguments on appeal.
China alleges that the United States' appeal was an attempt to try to force China to file an appeal
of the Panel Report earlier than it had otherwise intended. China is concerned that this may set a
precedent whereby a Member could file a specious appeal, conditional upon the other party's filing
of an other appeal, and thereby dictate the timing of the appellate proceedings.
3.2. The United States requests the Appellate Body to deny China's request to extend the
deadlines for filing documents. The United States disagrees with China that the circumstances of
this dispute are "exceptional" in the sense of Rule 16(2) of the Working Procedures or that they
would result in "manifest unfairness". The United States argues that neither the limited scope of its
appeal nor its timing constitute exceptional circumstances. The United States maintains that
Article 17.6 of the DSU does not impose limitations on a party's right to appeal issues of modest
scope and that the parties have been aware of the Panel's conclusions for months and that,
therefore, China has had sufficient time to prepare its appeal.
3.3. Rule 16 of the Working Procedures provides as follows:
(1) In the interests of fairness and orderly procedure in the conduct of
an appeal, where a procedural question arises that is not covered
by these Rules, a division may adopt an appropriate procedure for
the purposes of that appeal only, provided that it is not inconsistent
with the DSU, the other covered agreements and these Rules.
Where such a procedure is adopted, the division shall immediately
notify the parties to the dispute, participants, third parties and third
participants as well as the other Members of the Appellate Body.
(2) In exceptional circumstances, where strict adherence to a time-
period set out in these Rules would result in a manifest unfairness,
a party to the dispute, a participant, a third party or a third
participant may request that a division modify a time-period set out
in these Rules for the filing of do cuments or the date set out in the
working schedule for the oral hearing. Where such a request is
granted by a division, any modification of time shall be notified to
the parties to the dispute, participants, third parties and third
participants in a revised working schedule.

3 In European Communities and Certain Member States – Measures Affecting Trade in Large Civil
Aircraft, for example, the European Union presented certain conditional appeals that would be triggered by
an other appeal of the United States. As the conditions on which these appeals were premised did not arise,
the European Union withdrew these conditional appeals pursuant to Rule 30(1) of the Working Procedures.
(Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in
Large Civil Aircraft, fn 77 to para. 21)
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

3.4. In considering China's request we find it useful to begin by observing that, while a party to
the dispute has the right to initiate an appeal at any time during the 60-day period stipulated in
Article 16.4 of the DSU, in practice, in most disputes, Members have appealed panel reports
towards the end of this 60-day period. Presumably they do so in order to maximize the time that
they have to consider the panel report, to decide whether to appeal it, and to prepare their appeal.
We also observe that, in most cases, one of the parties to the dispute places the adoption of a
panel report on the agenda of a DSB meeting that falls within the 60-day period under Article 16.4
of the DSU, and that the date of such DSB meeting thus becomes a de facto deadline by which any
other party must appeal the panel report. We also note that Article 16.1 of the DSU provides that
the panel report shall not be considered for adoption by the DSB until 20 days after the date it has
been circulated to Members.
3.5. In this dispute, the Panel circulated a voluminous report on 26 March 2014. In its Report, the
Panel found in favour of the United States as the complainant on virtually all claims. Accordingly,
China as the respondent appears to have principa l cause to appeal. The first regular DSB meeting
scheduled after the circulation of the Panel Report will occur on 25 April 2014. Neither of the
parties to this dispute placed the adoption of th e Panel Report on the agenda of that DSB meeting
and, in any event, the United States initiated its appeal before the date on which the agenda
closed for the 25 April meeting. The United States launched a limited appeal of the Panel Report
13 days after its circulation, seemingly in reaction to the intention expressed by China to appeal a
panel report in a different dispute early in the 60-day period applicable to that other dispute. As
we have already stated, the United States has the legal right to initiate an appeal at any time
during the 60-day period provided for in Article 16.4 of the DSU. Nevertheless, in the
circumstances of this case, the early initiation of an appeal by the United States, which largely
prevailed in the claims that it raised before the Panel, may adversely affect the ability of China as
the respondent to exercise its right to appeal in a meaningful and effective way. This may be so in
this dispute, in particular to the extent that th e timing of the appeal was unexpected, because the
initiation of the appeal by the United States trig gers the five-day deadline under Rule 23(1) of the
Working Procedures for China to file a Notice of Other Appeal and an other appellant's submission.
Accordingly, in order to participate in the United States' appeal as an other appellant China must,
pursuant to Rule 23(1) of the Working Procedures, file its other appeal 18 days after the
circulation of the Panel Report. We note that this is a period even shorter than the minimum period
of time provided for under Article 16.1 of the DSU before a circulated panel report can be
considered for adoption by the DSB.
3.6. In addition, we take into account that the dispute at hand involves a number of complex and
systemic issues of WTO law. The Panel Report is voluminous and contains numerous findings in
favour of the complainant. Moreover, additional procedural issues stemming from the exceptional
situation of a simultaneous filing of two appeals had to be resolved at the beginning of this appeal.
The deadline set out in Rule 23(1) and (3) for the filing of a Notice of Other Appeal and an other
appellant's submission falls on a date only two and a half weeks after circulation of the Panel
Report. This may be too short for China to effectively exercise its rights under the DSU as an other
appellant in the United States' appeal. Accordingly, we consider that strict adherence to the time-
period set out in Rule 23(1) and (3) would result in manifest unfairness in the particular
circumstances of the case at hand.
3.7. With respect to third party rights, it is important to note, as Canada pointed out in its
comments of 11 April 2014, that the third parties ob tained access to the final report of the Panel
only once that Report was circulated to the Membership in all three official languages, that is, on
26 March 2014. In contrast, the Panel Report was issued to the parties several months earlier,
once it was completed and sent to translation. The United States' initiation of its appeal also
triggers the deadline under Rule 24(1) of the Working Procedures for third participants to file
written submissions within 21 days. Within that period, third parties must review all the
appellants', other appellants', and appellees' subm issions and prepare their own submissions in
response to the Panel Report and these other submissions. We consider therefore, in the
circumstances of this case, and taking account of the early initiation of the appeal by the
United States, that this 21-day period may be insufficient to allow the third parties a meaningful
opportunity to comment and sufficient time to finalize their submissions.
3.8. Finally, we take note of our duty, consistent with Rule 16(1) of the Working Procedures, to
ensure fairness and orderly procedure in the conduct of appeals. This consideration, among others,
contributed to the Appellate Body's decision of 10 April 2014 resolving certain procedural issues
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

raised by the simultaneous filings of Notices of Appeals in this dispute and in United States –
Countervailing and Anti-Dumping Measures on Certain Products from China (DS449). In contrast
to those two appeals, the panel reports in two other disputes (DS432 and DS433) have not been
simultaneously appealed together with the appeal in the present dispute. Indeed, the panel reports
in the latter two disputes have yet to be appealed or adopted. This fact, too, has implications for
the fair and orderly conduct of appellate proceedings.
3.9. In this regard, we note that the Unit ed States, the European Union, and Japan each
challenged the same measures imposed by China. The DSB established a single panel to hear
these disputes, and the Panel issued three separate reports in a single document. As stated above,
apart from the United States, the other two co-complainants have not yet initiated appeal
proceedings. However, in the event that China or either or both of the other co-complainants
decides to initiate appeal proceedings in the other two disputes (DS432 and DS433), it will likely
be in the interest of fairness and orderly procedure in the conduct of the appellate proceedings in
these closely related disputes to facilitate the harmonization of working schedules and to proceed
in a consolidated manner to the extent possible.
3.10. In the light of the above considerations, and taking account of the timelines specified in the
Working Procedures, we have decided to extend the time-period for China to file its Notice of Other
Appeal and other appellant's submission in this dispute to Thursday, 17 April 2014. As a
consequence of this decision, and in order to pr eserve the sequence of and periods between the
other deadlines prescribed under the Working Procedures, it is also necessary to modify the dates
for the filings of other submissions set out in the Working Schedule. We take note that the
Working Procedures provide for all appellees' subm issions to be submitted by the same deadline,
and consider, in the circumstances of this case, that such deadline should be extended for all
appellees irrespective of whether they are respon ding to the appeal or to the other appeal. We,
therefore, also extend the time-period for the fi ling of appellees' submissions to Thursday, 1 May
2014, and we extend the time-period for third particip ants in this dispute to file their submissions
to Monday, 5 May 2014. The Appellate Body may provide additional reasons for this decision at a
later point in time in its eventual report.
Modified Dates for the Submission of Documents

Process Rule Date
Notice of Other Appeal Rules 16 and 23(1) Thursday, 17 April 2014

Other appellant's submission Rules 16 and 23(3) Thursday, 17 April 2014

Appellees' submissions Rules 16, 22 and 23(4) Thursday, 1 May 2014

Third participants' submissions Rules 16 and 24(1) Monday, 5 May 2014

Third participants' notifications Rules 16 and 24(2) Monday, 5 May 2014

Signed in Geneva this 13th day of April 2014 by:

Seung Wha Chang
Presiding Member

Ricardo Ramírez-Hernández
Member

Yuejiao Zhang
Member
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

ANNEX 5

 ORGANISATION MONDIALE ORGANIZACIÓN MUNDIAL
 DU COMMERCE DEL COMERCIO

APPELLATE BODY
China – Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum

DS431, DS432, DS433
AB-2014-3
AB-2014-5
AB-2014-6
Procedural Ruling

1 BACKGROUND
1.1. On Tuesday, 8 April 2014, the United States notified the Dispute Settlement Body and filed a
Notice of Appeal with the Appellate Body Secretariat with respect to the Panel Report in China –
Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum (WT/DS431/R).
On 13 April 2014, the Division hearing the appeal in DS431 sent the participants and the third
participants a Working Schedule for the appellate proceedings relating to that dispute. That
Working Schedule specified the deadlines for the f iling of written submissions, and indicated that
the date of the oral hearing in that appeal would be communicated on a subsequent date.
1.2. On Friday, 25 April 2014, China notified th e Dispute Settlement Body and filed a Notice of
Appeal with the Appellate Body Secretar iat with respect to the Panel Reports in China – Measures
Related to the Exportation of Rare Earths, Tungsten, and Molybdenum (WT/DS432/R,
WT/DS433/R). On the same day, the Division hearing the appeals in DS432 and DS433 sent the
participants and the third participants in those disputes a Working Schedule specifying the
deadlines for the filing of written submissions, and indicating that the date of the oral hearing in
that appeal would be communicated on a subsequent date.
1.3. The participants and third participants in DS431 were notified on Friday, 11 April 2014 that
the Division hearing the appeal is composed of: Mr. Ricardo Ramírez-Hernández, Ms. Yuejiao
Zhang, and Mr. Seung Wha Chang, as Presiding Member. On Friday, 25 April 2014, participants
and third participants were notified that the Division hearing the appeals in DS432 and DS433 is
composed of the same three Appellate Body Members.
1.4. On Tuesday, 15 April 2014, Japan requested an extension of the deadline for filing its third
participant's submission in DS431 from 5 May to 7 May. Japan explained that 3 May through 6 May
2014 are consecutive holidays in Japan and it would therefore be difficult for Japan to file its
submission on 5 May 2014.
1.5. On 25 April 2014, the Appellate Body gave the participants and third participants in these
disputes an opportunity to comment on both Japan's request for an extension and on the
consolidation of these appellate proceedings, including by holding a single oral hearing. In this
respect, the Division referred to the interests of "f airness and orderly procedure", as referred to in
Rule 16(1) of the Working Procedures for Appell ate Review (Working Procedures) and noted the
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

significant overlap in the content of these disputes and the fact that, at the Panel stage, they were
heard by a single Panel in accordance with Article 9.1 of the DSU.
1.6. On Monday, 28 April 2014, China, the United States, the European Union, Japan, Australia,
Brazil, Canada, and Saudi Arabia submitted comments.
1.7. China had no objection to the consolidation of the proceedings. China submitted that since
the disputes were heard by a single Panel, the Panel issued its reports in a single document, and
China had filed appeals in relation to all disputes, it was in the interests of fairness and orderly
procedure to convene a single oral hearing. In a ddition, China requested the Appellate Body to set
the date for the oral hearing in June 2014, preferably later in that month. In that regard, China
submitted that the matters covered in these proceedings concern the competence of many distinct
authorities within China and that organizing its delegation would involve complex and time-
consuming internal approval procedures and logistical arrangements. China had no objection to
Japan's request for the extension of the deadline for its third participant's submission in the appeal
in DS431 from 5 May 2014 to 7 May 2014.
1.8. The United States indicated that it supported holding a single oral hearing in these
proceedings. However, the United States did not consider that consolidating deadlines for
submissions in these disputes was necessary. The Unit ed States noted that it was prepared to file
its appellee's submission in DS431 as scheduled on 1 May 2014. The United States noted that its
appeal in DS431 alleges errors of law and legal interpretation that have not been raised in the
other two disputes. The United States added that, while China alleges the same errors of law and
legal interpretation in respect of all three Panel Reports, China has provided different arguments in
its submissions in the respective proceedings. As such, the United States expressed the view that
providing separate responses to those arguments may assist the Appellate Body's consideration of
those arguments. The United States did not obje ct to Japan's request for an extension of the
deadline of its third participant's submission in the appeal in DS431 from 5 May 2014 to 7 May
2014.
1.9. The European Union requested the Appellate Body to consolidate the proceedings to the
greatest extent possible, including by holding a single oral hearing. The European Union also
requested that the dates for the filing of third participants' submissions be consolidated to Friday,
16 May 2014, and that an Appellate Body report be issued as a single document, with separate
pages for the findings and conclusions in each of the disputes. Furthermore, the European Union
requested that the complainants be granted the option of electing that the submission in the
dispute in which they are a participant be deemed to be their third participant's submission in each
of the other two disputes. The European Union had no objection to Japan's request for the
extension of the deadline for the filing of its third participant's submission in the appeal in DS431
from 5 May 2014 to 7 May 2014, but noted that this request would be rendered moot in the event
that the Appellate Body accepted the European Union's request that the filing of third participants'
submissions be consolidated to Friday, 16 May 2014.
1.10. Japan had no objection to the consolidation of these proceedings, including by having a
single oral hearing. In the event that the Divisi on decided to consolidate the proceedings, Japan
submitted that the Working Schedule and the date for the oral hearing should be set in a manner
that would ensure sufficient time for all those involved in the appellate proceedings to prepare for
the oral hearing, pursuant to the relevant provisions of the DSU and the Working Procedures.
1.11. Australia, Brazil, Canada, and Saudi Arabia were in favour of holding a single oral hearing in
respect of all these appellate proceedings. In particular, Australia noted the significant overlap in
the content of these disputes and expressed a stro ng preference for a single oral hearing. Brazil
referred to the fact that the proceedings were consolidated at the panel stage and submitted that,
notwithstanding the exceptional circumstances regarding the timing of appeals in these disputes,
consolidation was desirable, for it would ensure coherence, expediency, and predictability. Canada
maintained that, in the light of the significant ov erlap in the content of these disputes, and in the
interest of an efficient allocation of the resources of all parties, a single oral hearing should be held
in these proceedings. Furthermore, Canada considered that it would be preferable and appropriate,
in the interests of "orderly procedure in the conduct of an appeal", for there to be a single
consolidated deadline (Friday, 16 May 2014) for the filing of the third participants' submissions in
all disputes. For Canada, a requirement to comment on the appellees' submissions in DS432 and
DS433 in a separate and later submission than the comments on the appellees' submissions in
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

DS431 raises the prospect of multiple and unnecessarily duplicative submissions. Saudi Arabia
referred to the fact that the proceedings were consolidated at the panel stage and that the issues
arising in these proceedings are very similar, and maintained that, therefore, it was preferable to
consolidate the appeal proceedings.
1.12. Australia and Brazil had no objection to Japan's request for the extension of the deadline for
its third participant's submission in the appeal in DS431 from 5 May 2014 to 7 May 2014.
Saudi Arabia also did not object to Japan's reques t, on the understanding that acceptance of this
request would entail that this new deadline would apply to all third participants' submissions in
DS431.
1.13. Rule 16(1) of the Working Procedures provides as follows:
(1) In the interests of fairness and orderly procedure in the conduct of
an appeal, where a procedural question arises that is not covered
by these Rules, a division may adopt an appropriate procedure for
the purposes of that appeal only, provided that it is not inconsistent
with the DSU, the other covered agreements and these Rules.
Where such a procedure is adopted, the division shall immediately
notify the parties to the dispute, participants, third parties and third
participants as well as the other Members of the Appellate Body.
1.14. We note that this provision enables us, where a procedural question arises that is not
covered by the Working Procedures, "to adopt an appropriate procedure for the purposes of that
appeal only". We acknowledge that this discretion is accompanied by the duty to not only ensure
"fairness and orderly procedure" in the conduct of the appeals, but to also ensure that any adopted
procedure is not inconsistent with the DSU, the other covered agreements, and the
Working Procedures. We recall that the Appellate Body has, in the past, relied on Rule 16(1) of the
Working Procedures in consolidating appellate proceedings.
1
1.15. We observe that the disputes DS431, DS432, and DS433 were heard by a single Panel in
accordance with Article 9.1 of the DSU. The Panel circulated a single document constituting three
separate Panel Reports for these disputes, pursua nt to Article 9.2 of the DSU, and there is
significant overlap in the content of these disput es. We further note that China has alleged the
same errors of law and legal interpretation in respect of all three Panel Reports – as an other
appellant in DS431 and as an appellant in DS432 and DS433. Furthermore, we observe that all the
comments received from the participants and third participants support the consolidation of these
appellate proceedings, particularly as regards the convening of a single oral hearing for all these
disputes.
1.16. Having considered all the above, we have decided, pursuant to Rule 16(1) of the Working
Procedures, to consolidate the appeals of the Panel Reports in China – Measures Related to the
Exportation of Rare Earths, Tungsten, and Molybdenum (WT/DS431/R, WT/DS432/R, and
WT/DS433/R).
1.17. Given this consolidation, and taking account of the requests of the participants and third
participants, we find it necessary to make some modifications to the Working Schedules in order to
ensure fairness and orderly procedure in the conduct of these appeals. These modifications are set
out below.
1.18. With respect to the appeal of the Panel Report WT/DS431/R, the Working Schedule
communicated to the participants and third participants on Friday, 11 April 2014 specified Monday,
5 May 2014 as the deadline for the filing of third participants' submissions. With respect to the
appeal of the Panel Reports WT/DS432/R and WT/DS433/R, the Working Schedule communicated
to the participants and third participants on Friday, 25 April 2014 specified Friday, 16 May 2014 as
the deadline for the filing of third participants' su bmissions. We take note of the requests by the
European Union and Canada to have a single de adline for all third participants' submissions,
namely, Friday, 16 May 2014.

1 See, for example, Appellate Body Reports, US/Canada – Continued Suspension, para. 27; EC –
Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US), para. 23; and US – Shrimp
(Thailand) / US – Customs Bond Directive (India), para. 16.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

1.19. In our Procedural Ruling of 13 April 2014 in the appeal in DS431, we expressed the concern
that, in the present circumstances, and taking account of the early initiation of the appeal by the
United States, the 21-day period for filing third participants' submissions "may be insufficient to
allow third parties a meaningful opportunity to comment and sufficient time to finalize their
submissions."
2 Moreover, we consider that it would enhance efficiency and thus facilitate the
orderly conduct of these appeals if third participants provided their submissions in respect of all
aspects of the appeals in these consolidated proceedings in a single document. Accordingly, we
have decided to set a single deadline for third participants' submissions in these disputes on
Friday, 16 May 2014. Nevertheless, to the extent that the third participants are in a position to
file a single submission in all three disputes before this date, we encourage such early filing, as it
would assist the Division's preparation for the oral hearing.
1.20. In light of this new deadline for the filing of all third participants' submissions, it is not
necessary for us to deal separately with Japan's request that we extend the deadline for the filing
of its third participant's submission in DS431 from 5 May 2014 to 7 May 2014.
1.21. We also take note of the European Union' s request that "the parties have the option of
electing that their party submissions in one di spute be deemed to be their third participant
submissions in the other disputes". We accept this request and have decided that the
United States, the European Union, and Japan may elect to have their submissions filed in the
capacity of participant in their respective disputes also serve as their third participants'
submissions in the other disputes. The deadlines for the appellees' submissions remain as follows:
(i) with respect to the appeal in DS431, the deadline for the appellees' submissions is Thursday,
1 May 2014; and (ii) with respect to the appeal in DS432 and DS433, the deadline for the
appellees' submissions is Tuesday, 13 May 2014.
1.22. The above is without prejudice to the righ t of the European Union (as third participant in
DS431 and DS433), Japan (as third participant in DS431 and DS432), and the United States (as
third participant in DS432 and DS433), should they so wish, to file third participants' submissions
by Friday, 16 May 2014, in the event that they do not elect to have their submissions filed in the
capacity of participant in one dispute serve as a third participant's submission in the other
disputes.
1.23. With regard to the oral hearing, the Division will hold a single oral hearing for all these
appellate proceedings. In setting the date for this si ngle oral hearing, we have tried to adhere, to
the greatest extent possible, to the timeframes set out in Annex I of the Working Procedures.
Accordingly, the oral hearing will take place on Wednesday, 4 June 2014 and Thursday,
5 June 2014. If necessary, the oral hearing will continue on Friday, 6 June 2014.
1.24. In sum, we have decided to consolidate the appeals of the Panel Reports in China –
Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum (WT/DS431/R,
WT/DS432/R, WT/DS433/R). As a consequence of this consolidation:
a. The single deadline for the third participants' submissions in respect of all these disputes
is set as Friday, 16 May 2014 . To the extent that the third participants are in a
position to file their submissions earlier than this deadline, we encourage such early
filing as it would assist the Division's preparation for the oral hearing;
b. The United States, the European Union, and Japan may elect to have their submissions
filed in the capacity of participant in their respective disputes also serve as their third
participants' submissions in the disputes in which they are third participants. This is
without prejudice to the right of the European Union (as third participant in DS431 and
DS433), Japan (as third participant in DS431 and DS432), and the United States (as
third participant in DS432 and DS433), should th ey so wish, to file third participants'
submissions, separate from their appellees' submissions, by Friday, 16 May 2014.
c. The Division will hold a single oral hearing for all these appellate proceedings. It will take
place on Wednesday, 4 June 2014 and Thursday, 5 June 2014 . If necessary, the
oral hearing will continue on Friday, 6 June 2014.

2 See Procedural Ruling in AB-2014-3, 13 April 2014, para. 3.7.
WT/DS431/AB/R • WT/DS432/AB/R • WT/DS433/AB/R

1.25. Pursuant to Rule 26 of the Working Procedures, we annex to this Procedural Ruling a revised
consolidated Working Schedule for the appellate proceedings in DS431, DS432, and DS433.
1.26. The Appellate Body may provide additional reasons for this decision at a later point in time
in its eventual Reports.
Signed in Geneva this 1st day of May 2014 by:

Seung Wha Chang
Presiding Member

Ricardo Ramírez-Hernández
Member

Yuejiao Zhang
Member