CHINA – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES ON WINE FROM AUSTRALIA AGREED PROCEDURES FOR ARBITRATION UNDER ARTICLE 25 OF THE DSU
Document: panel report
Date: 20 December 2021
Document codes: WT/DS602/3
Complainant: Australia
Respondent: China
Third parties: Brazil, Canada, EU, India, Japan, South Korea, Mexico, New Zealand, Norway, Russia, Singapore, Switzerland, Taiwan, Turkey, Ukraine, United Kingdom, U.S., Vietnam
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 1, 2.1, 2.2, 2.2.1, 2.2.1.1, 2.2.2, 2.3, 2.4, 2.4.2, 3.1, 3.2, 3.4, 3.5, 4.1, 5.1, 5.2, 5.2(i), 5.2(iii), 5.2(iv), 5.3, 5.4, 5.8, 6.1, 6.1.1, 6.1.2, 6.1.3, 6.2, 6.4, 6.5, 6.5.1, 6.6, 6.8, 6.9, 6.10, 6.13, 9.1, 9.2, 9.3, 9.4, 12.1, 12.1.1(iii), 12.2, 12.2.2, 18.1, Annex II  Anti-dumpingArt. VI, VI:2  GATT 1994

CHINA – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES ON WINE
FROM AUSTRALIA
AGREED PROCEDURES FOR ARBITRATION UNDER ARTICLE 25 OF THE DSU
The following communication dated 16 December 2021 , from the delegation of Australia and the
delegation of China to the Chairperson of the Dispute Settlement Body, is circulated at the request
of these delegations.

Procedures Governing the Settlement of Disputes (DSU) to enter into arbitration under Article 25
of the DSU to decide any appeal from any final panel report 1 as issued to the parties in dispute
China – Anti-Dumping and Countervailing Duty Measures on Wine from Australia (DS602). Any party
to the dispute may initiate arbitration in accordance with these agreed procedures.

2. The arbitration may only be initiated if the Appellate Body is not able to hear an appeal in this
dispute under Article 16.4 and 17 of the DSU. For the purposes of these agreed procedures, such
situation is deemed to arise where, on the date of issuance of the final panel report to t he parties,
there are fewer than three Appellate Body members.

For greater certainty, if the Appellate Body is able to hear appeals at the date on which the final
panel report is issued to the parties, a party may not initiate an arbitration, and the parties shall be
free to consider an appeal under Articles 16.4 and 17 of the DSU.

3. In order to facilitate the proper administration of arbitration under these agreed procedures, the
parties hereby jointly request the panel to notify the parties of the anticipated date of circulation of
the final panel report within the meaning of Article 16 of the DSU, no later than 45 days in advance
of that date.

4. Following the issuance of the final panel report to the parties, but no later than 10 days prior to
the anticipated date of circulation of the final panel report to the rest of the Membership, any party
to the dispute may request that the panel suspend the panel proceedings with a view to initiating
the arbitration under these agreed procedures. Such request by any party to the dispute is deemed
to constitute a joint request by the parties for suspensi on of the panel proceedings for 12 months
pursuant to Article 12.12 of the DSU.

The parties hereby jointly request the panel to provide for the following, before the suspension takes
effect:

i. the lifting of confidentiality with respect of the final panel report under the
Working Procedures of the panel, subject to the protection of any business
confidential information ("BCI") and highly sensitive business information
("HSBI") in accordance with any procedures adopted by the Panel for the
protection of such information;

1 For greater certainty, this includes any final panel report issued in compliance proceedings pursuant to
Article 21.5 of the DSU.

ii. the transmission of the panel record (including any BCI and HSBI submissions
and exhibits and the confidential version(s) of the final panel report) to the
arbitrators upon the filing of the Notice of Appeal: Rule 25 of the Working
Procedures for Appellate Review shall apply mutatis mutandis; and,
iii. the transmission of the final panel report in the working languages of the WTO to
the parties and to the third parties2, subject to the protection of any BCI and HSBI
in accordance with the Panel's adopted procedures.
Except as provided in paragraphs 6 and 18, the parties shall not request the panel to resume the
panel proceedings.

5. The arbitration shall be initiated by filing of a Notice of Appeal with the WTO Secretariat no later
than 20 days after the suspension of the panel proceedings referred to in paragraph 4 has taken
effect. The Notice of Appeal shall include the non -confidential final panel report in the working
languages of the WTO. The Notice of Appeal shall be simultaneously notified to the other party and
to the third parties in the panel proceedings. Rules 20 -23 of the Working Procedures for Appellate
Review shall apply mutatis mutandis.

6. Subject to paragraph 2, where the arbitration has not been initiated under these agreed
procedures, the parties shall be deemed to have agreed not to appeal the panel report pursuant to
Articles 16.4 and 17 of the DSU, with a view to its adoption by the Dispute Settlement Body ("DSB").
If the panel proceedings have been suspended in accordance w ith paragraph 4, but no Notice of
Appeal has been filed in accordance with paragraph 5, the parties hereby jointly request the panel
to resume the panel proceedings.

7. The arbitrators shall be three persons selected from the pool of 10 standing appeal a rbitrators
composed in accordance with paragraph 4 of communication JOB/DSB/1/Add.12 (hereafter the "pool
of arbitrators").3 The selection from the pool of arbitrators will be done on the basis of the same
principles and methods that apply to form a division of the Appellate Body under Article 17.1 of the
DSU and Rule 6(2) of the Working Procedures for Appellate Review, including the principle of
rotation.4 The WTO Director General will notify the parties and third parties of the results of the
selection. The arbitrators shall elect a Chairperson. Rule 3(2) of the Working Procedure for Appellate
Review shall apply, mutatis mutandis, to the decision-making by the arbitrators.

8. In order to give effect to paragraph 5 of communication JOB/DSB/1/Add.12 in th is dispute, the
arbitrators may discuss their decisions relating to the appeal with all of the other members of the
pool of arbitrators, without prejudice to the exclusive responsibility and freedom of the arbitrators
with respect to such decisions and their quality. All members of the pool of arbitrators shall receive
any document relating to the appeal.

9. An appeal shall be limited to issues of law covered by the panel report and legal interpretations
developed by the panel. The arbitrators may uphold, modify or reverse the legal fin dings and
conclusions of the panel. Where applicable, the arbitration award shall include recommendations, as
envisaged in Article 19 of the DSU. The findings of the panel which have not been appealed shall be
deemed to form an integral part of the arbitration award together with the arbitrators' own findings.

10. The arbitrators shall only address those issues that are necessary for the resolution of the
dispute. They shall address only those issues that have been raised by the parties, without prejudice
to their obligation to rule on jurisdictional issues.

11. Unless otherwise provided for in these agreed procedures, the arbitration shall be governed,
mutatis mutandis , by the provisions of the DSU and other rules and procedures applicable to
Appellate Review. This includes in particular the Working Procedures for Appellate Review and the

2 The parties confirm that it is not their intention that the panel report be circulated within the meaning
of Article 16 of the DSU.
3 If the pool of arbitrators has not been composed, footnote 1 to paragraph 4 of communication
JOB/DSB/1/Add.12 shall apply.
4 However, at the request of a party to a dispute, any member of the pool of arbitrators who is not a
national of a participating Member shall be excluded from the selection process. Two nationals of the same
Member shall not serve on the same case.

timetable for appeals provided for therein as well as the Rules of Conduct 5. The arbitrators may
adapt the Working Procedures for Appellate Review and the timetable for appeals provided for
therein, as well as any BCI and HSBI procedures, where justified under Rule 16 of the Working
Procedures for Appellate Review, after consulting the parties.

12. The parties request the arbitrators to issue the award within 90 days following the filing of the
Notice of Appeal. To that end, the arbitrators may take appropriate organizational measures to
streamline the proceedings, without prejudice to the procedural rights and obligations of the parties
and due process. Such measures may include decisions on page limits, time limits and deadlines as
well as on the length and number of hearings required.

13. If necessary in order to issue the award within the 90 day time-period, the arbitrators may also
propose substantive measures to the parties, such as an exclusion of claims based on the alleged
lack of an objective assessment of the facts pursuant to Article 11 of the DSU6.

14. On a proposal from the arbitrators, the parties may agree to extend the 90 day time-period for
the issuance of the award.

15. The parties agree to abide by the arbitration award, which shall be final. Pursuant to Article 25.3
of the DSU, the award shall be notified to, bu t not adopted by, the DSB and to the Council or
Committee of any relevant agreement.

16. Only parties to the dispute, not third parties, may initiate the arbitration. Third parties which
have notified the DSB of a substantial interest in the matter befor e the panel pursuant to Article
10.2 of the DSU may make written submissions to, and shall be given an opportunity to be heard
by, the arbitrators. Rule 24 of the Working Procedures for Appellate Review shall apply mutatis
mutandis.

17. Pursuant to Article 25.4 of the DSU, Articles 21 and 22 of the DSU shall apply mutatis mutandis
to the arbitration award issued in this dispute.

18. At any time during the arbitration, the appellant, or other appellant, may withdraw its appeal,
or other appeal, by notifying the arbitrators. This notification shall also be notified to the panel and
third parties, at the same time as the notification to the arbitrators. If no other appeal or appeal
remains, the notification shall be deemed to constitute a joint request by the parties to resume panel
proceedings under Article 12.12 of the DSU 7. If an other appeal or appeal remains at the time an
appeal or other appeal is withdrawn, the arbitration shall continue.

19. The parties shall jointly notify these agreed procedures to the panel in China – Anti-Dumping
and Countervailing Duty Measures on Wine from Australia (DS602) and ask the panel to grant, where
applicable, the joint requests formulated in paragraphs 3, 4, 6, and 188.