CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS
Document: 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
Date: 2 September 2011
Document codes: WT/DS394/11; WT/DS395/11; WT/DS398/10
Complainant: Mexico
Respondent: China
Third parties: Argentina, Brazil, Canada, Chile, Colombia, Ecuador, EU, India, Japan, South Korea, Norway, Taiwan, Turkey, Saudi Arabia, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. VIII:1, VIII:4, X:1, X:3, XI:1  GATT 1994Part I, para. 1.2, Part I, para. 5.1, Part I, para. 5.2, , Part I, para. 8.2  Protocol of Accession

CHINA – MEASURES RELATED TO THE EXPORTATION
OF VARIOUS RAW MATERIALS

Notification of an Appeal by China under Article 16.4 and Article 17
of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU), and under Rule 20(1)
of the Working Procedures for Appellate Review

 The following notification, dated 31 Augus t 2011, from the Delegation of the People's
Republic of China, is being circulated to Members.

Dispute Settlement Body ("DSB") of its decision to appeal certain issues of law and legal
interpretations in the Panel Reports in (WT/DS394, WT/DS395, WT/DS398) ("Panel Report"). As set out in this notice of appeal,
and pursuant to Article 17.13 of the DSU, China requ ests that the Appellate Body reverse or modify
various legal findings and conclusions of the Panel, as a result of the errors identified below.
2. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review , this notice of
appeal includes an indicative list of the paragraphs of the Panel Report containing the alleged errors,
without prejudice to China's ability to refer to othe r paragraphs of the Panel Report in the context of
its appeal.
I. A
PPEAL OF THE PANEL'S FINDING THAT SECTION III OF THE COMPLAINANTS' PANEL
REQUESTS "PRESENTS THE PROBLEM CLEARLY" BY PROVIDING SUFFICIENT
CONNECTIONS BETWEEN THE 37 LISTED MEASURES AND THE 13 LISTED TREATY
PROVISIONS
3. The Panel erred in its interpretation and applica tion of Article 6.2 of the DSU, in finding, in
paragraph 77 of its Second Prelim inary Ruling of 1 October 2010 and paragraph 7.3(b) of the Panel
Report, that Section III of the Complainants' Panel Requests 1 complies with the requirement to
"provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly".

1 – Request for the
Establishment of a Panel by the European Communities, WT/DS395/7 (9 November 2009); – Request for the Establishment of a Panel by Mexico,
WT/DS398/6 (9 November 2009); –
Request for the Establishment of a Panel by the United States, WT/DS394/7 (9 November 2009).

4. China requests that the Appellate Body reverse this finding, and find that Section III of the
Panel Requests does not comply with Article 6.2 of the DSU, with the exception of the Complainants'
claims under Article X:1 of the GATT 1994 regarding non-publication of measures concerning zinc.
5. As a consequence of this reversal, China also requests that the Appellate Body reverse the
Panel findings regarding claims pur portedly made by the Complainants on the basis of Section III of
the Panel Requests, including the findings in paragr aphs 7.669; 7.670; 7.678; 7.756; 7.807; 7.958;
7.1082; 7.1102; 7.1103; 8.4(a)-(b); 8.5(b); 8.6 (a)-(b ); 8.11(a), (c), (e) and (f); 8.12(b); 8.13(a)-(b);
8.18(a)-(b); 8.19(b) and 8.20(a)-(b) of the Panel Report.
II. A
PPEAL OF THE PANEL'S DECISION TO MAKE RECOMMENDATIONS WITH RESPECT TO
THE "SERIES OF MEASURES" THAT HAVE AN ONGOING EFFECT THROUGH ANNUAL
REPLACEMENT MEASURES
6. China appeals the Panel's recommendations in pa ragraphs 8.8; 8.15 and 8.22 of the Panel
Report that China must bring its export duty and quota measures into conformity with its WTO
obligations, to the extent that the Panel's reco mmendations apply to annual replacement measures
regarding export quotas and export duties on products at issue in these disputes.
7. In making recommendations extending to measure s excluded from the dispute, the Panel
acted inconsistently with Article 7.1 of the DSU; failed to make an objective assessment of the matter
under Article 11 of the DSU; and, made recommendations on measures that are not part of the matter,
inconsistently with Article 19.1 of the DSU.
8. China requests that the Appellate Body reverse the Panel's recommendations in
paragraphs 8.8; 8.15 and 8.22 of the Panel Report to the extent that they apply to annual replacement
measures.
III. A
PPEAL OF THE PANEL'S FINDING THAT CHINA DOES NOT HAVE THE RIGHT TO INVOKE
ARTICLE XX OF THE GATT 1994 IN DEFENSE OF A CLAIM UNDER PARAGRAPH 11.3 OF
CHINA'S ACCESSION PROTOCOL
9. China appeals the Panel's erroneous interpretati on and application of Pa ragraphs 1.2 and 11.3
of China's Accession Protocol2 and Paragraphs 170 and 342 of China's Working Party Report3 as not
according China the right to invoke Article XX of the GATT 1994 in defense of a claim under
Paragraph 11.3 of China's Accession Protocol and Paragraph 170 of China's Working Party Report.
10. As a result of these errors, China requests th at the Appellate Body reverse the Panel's
findings, in paragraphs 7.158; 7.1 59; 8.2 (b)-(c); 8.9 (b)-(c) and 8.16 (b)-(c) of the Panel Report, that
China may not seek to justify export duties pursuant to Article XX of the GATT 1994.

2Protocol on the Accession of the People’s Republic of China , WT/L/432 (23 November 2001)
("Accession Protocol").
3Report of the Working Party on the Accession of China , WT/MIN(01)/3 (10 November 2001)
("Working Party Report").

IV. A
PPEAL OF THE PANEL'S INTERPRETATION AND APPLICATION OF THE TERM
"TEMPORARILY" AND THE PANEL'S INTERPRETATION OF THE TERM "CRITICAL
SHORTAGES" IN ARTICLE XI:2(A) OF THE GATT 1994, AND THE PANEL'S ASSESSMENT
OF THE MATTER, UNDER ARTICLE 11 OF THE DSU
11. China appeals the Panel's erroneous interpreta tion and application of the term "temporarily"
and the Panel's erroneous interpretation of the term "critical shortages", in Article XI:2(a) of the
GATT 1994. The Panel also failed to make an obj ective assessment of the matter, as required under
Article 11 of the DSU. Specifically, the Panel fa iled to assess properly evidence that China's export
restriction is annually reviewed a nd renewed, and employed interna lly inconsistent and incoherent
reasoning in its assessment of the possibility to prevent or relieve critical shortages of exhaustible
natural resources through the temporary application of export restrictions.
12. As a result of these errors, China requests th at the Appellate Body reverse the Panel's
interpretation and application of the term "tempor arily" and the Panel's interpretation of the term
"critical shortages", as set out in paragraphs 7.2 57-7.258; 7.297-7.302; 7.305; 7.306; 7.346; 7.349;
7.351; 7.354 and 7.355 of the Panel Report.
V. APPEAL OF THE PANEL'S INTERPRETATION OF THE PHRASE "MADE EFFECTIVE IN
CONJUNCTION WITH" IN ARTICLE XX(G) OF THE GATT 1994
13. China appeals the Panel's erroneous interpre tation of the phrase "… made effective in
conjunction with …", in Article XX(g) of th e GATT 1994. Specifically, the Panel erred in
interpreting this phrase to require a showing that th e "purpose" of a challenged measure is to make
effective restrictions on domestic production or consumption. As a result of this error, China requests
that the Appellate Body reverse the Panel's finding in paragraph 7.397 of the Panel Report.
VI. APPEAL OF THE PANEL'S INTERPRETATION AND APPLICATION OF PARAGRAPHS 1.2
AND 5.1 OF CHINA'S ACCESSION PROTOCOL AND PARAGRAPHS 83 AND 84 OF THE
WORKING PARTY REPORT IN CONNECTION WITH THE PRIOR EXPORT PERFORMANCE
AND MINIMUM CAPITAL REQUIREMENTS
14. China appeals the Panel's erroneous interpretati on and application of Pa ragraphs 1.2 and 5.1
of China's Accession Protocol , read in combination with Para graphs 83(a), 83(b), 83(d), 84(a),
and 84(b) of China's Working Party Report , to prohibit any "examination and approval system" for
WTO-consistent export quotas opera ted subsequent to 11 December 2004, including elimination of
"export performance" and "prior experience re quirements" and minimum registered capital
requirements. As a result of these errors, China re quests that the Appellate Body reverse the Panel's
findings in paragraphs 7.655; 7.6 65; 7.669; 7.670; 7.678; 8.4(a)-(b); 8.11(a); 8.11(c) and 8.18(a)-(b)
of the Panel Report.
VII. APPEAL OF THE PANEL'S INTERPRETATION AND APPLICATION OF ARTICLE XI:1 OF THE
GATT 1994, AND ITS ASSESSMENT OF THE MATTER UNDER ARTICLE 11 OF THE DSU, IN
CONNECTION WITH CHINA'S EXPORT LICENSING REGIME
15. China appeals various elements of the Panel' s findings under Article XI:1 of the GATT 1994
in connection with China's export licensing requirement.
16. First, the Panel erred in interpreting Article XI:1 to prohibit a measure as such, even where, as
a matter of municipal law, the measure can always be—and has always been—interpreted and applied
in a WTO-consistent manner.

17. Second, the Panel also erred in applying its err oneous interpretation of Article XI:1 to China's
export licensing requirement. Specifically, the Panel erroneously found that Article 11(7) of China's
Measures for the Administration of License for the Export of Goods and Articles 5(5) and 8(4) of
China's Working Rules on Issuing Export Licenses , as such , are inconsistent with Article XI:1,
because they accord discretion to request undefine d or unspecified documents or materials of
applicants for export licenses.
18. Third, the Panel erred in its assessment of the matter, under Article 11 of the DSU.
Specifically, the Panel had no evidentiary basis on wh ich to find that any documents requested of an
applicant pursuant to Article 11(7) of China's Measures for the Administration of License for the
Export of Goods and Articles 5(5) and 8(4) of China's Working Rules on Issuing Export Licenses
would be of such a nature as to impose an export restriction.
19. As a result of these errors, China requests that the Appellate Body reverse the Panel's findings
and recommendations, at paragraphs 7.921; 7.946; 7. 948; 7.958; 8.5(b); 8.8; 8.12(b); 8.15; 8.19(b)
and 8.22 of the Panel Report.
VIII. A
PPEAL OF THE PANEL'S INTERPRETATION AND APPLICATION OF ARTICLE X:3(A) OF
THE GATT 1994, AND ITS ASSESSMENT OF THE MATTER UNDER ARTICLE 11 OF THE
DSU, IN CONNECTION WITH THE "OPERATION CAPACITY" CRITERION FOR EXPORT
QUOTA ADMINISTRATION
20. China appeals various elements of the Panel' s findings under Article X:3(a) of the GATT
1994 in connection with the "operation capacity" cr iterion for export quota administration, under
Article 19 of China's Measures for the Administration of Export Commodities Quotas.
21. First, the Panel erred in interpreting Article X:3(a) to prohibit a measure as such, even where,
as a matter of municipal law, the measure can al ways be—and has always been—interpreted and
applied in such a way as to avoid WTO-inconsistent administration.
22. Second, the Panel also erred in applying its e rroneous interpretation of Article X:3(a) to
China's "operation capacity" criterion. Specifically , the Panel erroneously found that Article 19 of
China's Measures for the Administration of Export Commodities Quotas , as such, is inconsistent with
Article X:3(a), because the term "operation capacity" is undefined, thus reserving the discretion for
China to interpret and apply the term in such a manner as to constitute WTO-inconsistent
administration.
23. Third, the Panel erred in its assessment of the matter, under Article 11 of the DSU.
Specifically, the Panel had no evidentiary basis on wh ich to find that the term "operation capacity"
would be interpreted and applied in a manner that would constitute WTO-inconsistent administration.
24. As a result of these errors, China requests that the Appellate Body reverse the Panel's findings
and recommendations, at paragraphs 7.708; 7.742-7.7 46; 7.748-7.752; 7.756; 8.11(e) and 8.15 of the
Panel Report.