UNITED STATES – COUNTERVAILING DUTY MEASURES ON CERTAIN PRODUCTS FROM CHINA
Document: COMMUNICATION FROM THE PANEL
Date: 21 February 2013
Document codes: WT/DS437/4; WT/DS437/2
Complainant: China
Respondent: U.S.
Third parties: Australia, Brazil, Canada, EU, India, Japan, South Korea, Norway, Russia, Turkey, Vietnam, Saudi Arabia
Dispute stage: Implementation & Compliance
Agreements cited: Art. 11.1, 11.2, 11.3, 1.1(a)(1), 2, 1.1(b), 14(d), 12.7, 1.1, 10, 32.1  Subsidies and Countervailing Measures (SCM)Art. VI, XXIII  GATT 1994Art. 30  Subsidies and Countervailing Measures (SCM)Art. 15  Protocol of Accession

UNITED STATES – COUNTERVAILING DUTY MEASURES
ON CERTAIN PRODUCTS FROM CHINA

COMMUNICATION FROM THE PANEL
 The following communication, dated 14 February 2013, was received from the Chairperson
of the Panel with the request that it be circulated to the Dispute Settlement Body ("DSB").

 On 14 December 2012, the United States submitted to the Panel a request for a preliminary
ruling concerning the consistency of China's request for the establishment of a Panel
() with Article 6.2 of the Understa nding on Rules and Procedures Governing the
Settlement of Disputes ("DSU").

On 8 February 2013, the Panel issued the encl osed preliminary ruling to the parties. The
preliminary ruling will become an integral part of the Panel's final report, subject to any changes
that may be necessary in the light of comments received from the parties during Interim Review.

After consulting the parties to the dispute, the Panel decided to inform the DSB of the
content of its preliminary ruling. Therefore, I woul d be grateful if you would circulate the body of
this letter and the enclosed preliminary ruling as document

COMMUNICATION FROM THE PANEL
PRELIMINARY RULING

1 PROCEDURAL BACKGROUND
1.1. On 14 December 2012, the United States submitted to the Panel a request for a preliminary
ruling concerning the consistency of China's request for the establishment of a Panel
() with Article 6.2 of the Understa nding on Rules and Procedures Governing the
Settlement of Disputes ("DSU").
1.2. The United States requested that the Panel ru le on the preliminary issue before the filing of
first written submissions. In contrast, China argued that the Panel should rule on the preliminary
request at a later stage of proceedings. Ultimately, the Panel decided it would issue a
communication to the parties on the preliminary ruling request prior to the filing of first written
submissions. As a result of this decision, some third parties communicated concerns to the Panel
about their rights to participate in the preliminar y ruling process. The Panel sought the views of
the parties on this issue, and both the United St ates and China supported third parties being given
the opportunity to comment during the preliminary ruling process.
1.3. The Panel decided to allow third parties the opportunity to comment on the preliminary ruling
request. In reaching this decision, the Panel reas oned that, while Article 10.2 of the DSU provides
third parties with an "opportunity to be heard", it does not explicitly state whether this extends to
commenting on a preliminary review process, in circumstances where a panel has decided to make
its ruling prior to the receipt of the first written submissions of the parties and third parties.
Therefore, the Panel was of the view that it had some discretion in this regard. The Panel decided
to exercise its discretion in favour of the third pa rties in this dispute for a number of reasons. In
particular, the Panel noted that neither party had objected to this course of action. Further, the
Panel was of the view that the jurisdictional issue before it was a systemic one and that the
consequences of the Panel accepting the United States' request not to assume jurisdiction on a
particular issue would be serious.
1 Finally, in the particular circumstances of this dispute, the Panel
noted that one of the United States' arguments in its preliminary ruling request was that
Article 6.2 protects the rights of third partie s, and that these third party rights had been
prejudiced due to China's allegedly deficient panel request.
2 In the Panel's view, given that the
issues of substance relate to third party rights, it was particularly important that third parties be
given the opportunity to comment on the preliminary ruling request.
1.4. Finally, although the United States proposed that the Panel meet with the parties to consider
the preliminary ruling request, the Panel did not consider this necessary.
2 ARGUMENTS OF THE PARTIES
2.1 United States
2.1. The United States requests the Panel to find that China's "as applied" challenge to "instances"
in which the United States Department of Commerce ("USDOC") "used facts available" is not
within its terms of reference because China's pa nel request does not meet the requirements of
Article 6.2 of the DSU.
2.2. The United States' request relates to the section of China's panel request that sets out the
"legal basis of the complaint" in relation to China's "as applied" claims. This section of the panel
request commences with the following paragraph:
China considers that the initiation and conduct of the identified countervailing duty
investigations, as well as the countervailing duty determinations, orders, and any
definitive countervailing duties imposed pursuant thereto, are inconsistent, at a
minimum, with the obligations of the United States specified below.

1 In this regard, see also Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.6.
2 United States' preliminary ruling request, para. 29.

2.3. The United States' position is that su bparagraph (d), following the above introductory
paragraph, does not satisfy Article 6.2 of the DSU. It provides:
In connection with all the identified countervailing duty investigations in which the
USDOC has issued a preliminary or final countervailing duty determination:
(1) Article 12.7 of the SCM Agreement, because the USDOC resorted to facts
available, and used facts available, includ ing so-called "adverse" facts available, in
manners that were inconsistent with that provision.10
WTO obligation and the measures listed in the panel request
3; has failed to "provide a brief
summary" of the legal basis of its claim "sufficient to present the problem clearly" 4; and has failed
to explain "how or why" the measure at issue is considered by China to be inconsistent with
Article 12.7 of the Agreement on Subsidies and Countervailing Measures ("SCM Agreement").5 The
United States contends that each of these defici encies in the panel request arises because of the
failure to identify the "instances" of the use of facts available challenged by China.
2.6. We note that in its preliminary ruling requ est, the United States submits that an explanation
of "how or why" the measures at issue violates Article 12.7 of the SCM Agreement required China
to "indicate what portions of the various documents … are the alleged breach of the facts available
obligations in Article 12.7".6 However, in response to a Panel question, the United States adds that
in order to explain "how or why" a measure has breached Article 12.7, a complainant could state,
for example, that "a Member has breached Article 12.7 because it improperly rejected necessary
information provided by an importer in an investigation".
7
2.7. The United States also refers to "another source of ambiguity in China's panel request",
namely that China did not specify which of the obligations found within Article 12.7 of the
SCM Agreement USDOC is alleged to have breached. 8 However, in its preliminary ruling request,
the United States "does not assert that this lack of clarity, standing alone, necessarily renders this
or any other panel request deficient".
9

3 United States' preliminary ruling request, paras. 23 and 25 and United States' comments on China's
response to the preliminary ruling request, paras. 13 and 16.
4 United States' preliminary ruling request, paras. 3, 23, 25, 26 and 27 and United States' comments on
China's response to the preliminary ruling request, paras. 1, 3 and 17.
5 United States' preliminary ruling request, para. 26 and United States' comments on China's response
to the preliminary ruling request, para. 18.
6 United States' preliminary ruling request, para. 26.
7 United States' response to Panel question 4, para. 7.
8 United States' preliminary ruling request, para. 22.
9 United States' preliminary ruling request, para. 22. In response to China's rebuttal about whether it
needed to specify which obligations under Article 12.7 of the SCM Agreement it is challenging, the
United States again reiterates that it does not assert the "lack of clarity" surrounding the obligations at issue
under Article 12.7 necessarily renders the panel request inconsistent with Article 6.2 of the DSU (United States'
comments on China's response to the preliminary ruling request, para. 14).

2.8. Finally, in relation to China's submissions on the preliminary ruling request, the United States
argues that China provides new descriptions of its facts available claims, which only serve to
demonstrate that the claims, as described in the panel request, fail adequately to present the
problem. The United States also refutes the suggestion from China that it should be able to discern
the content of the facts available claims on the basi s of the content of the United States' claims in
China – GOES. According to the United States, the claims in China – GOES have no relationship to
China's claims in this dispute.
2.2 China
2.9. China argues that the United States' preliminary ruling request is essentially based upon the
proposition that the large number of instances in which USDOC used facts available in the
determinations at issue imposed an enhanced obligation under Article 6.2 of the DSU. China
contends that the United States has no authority for this proposition. Rather, China's position is
that the instances in which USDOC used facts available are identified within each of the
determinations at issue. Further, the panel request plainly states that "each" such instance is
inconsistent with Article 12.7 of the SCM Agreement. Therefore, China has met its obligations
under Article 6.2 of the DSU.
2.10. In its first submission to the Panel, many of China's submissions refer to USDOC's use of
"adverse" facts available. However, in its second submission, China clarifies that its position is that
the panel request states that China is challenging "each instance" in which USDOC used facts
available, "including so-called 'adverse' facts available". However, virtually all of the instances in
which USDOC used facts available involved the use of "adverse" facts available, as is evident on
the face of the determinations at issue. This is why it is China's principal concern.
2.11. According to China, the specific instance s in which USDOC used "adverse" facts available
are simple to discern. The only measures at i ssue in which USDOC would have used "adverse"
facts available for any purpose are the 19 final determinations and the three preliminary
determinations listed in Appendix 1 to the panel request. China notes that USDOC releases an
"Issues and Decision Memorandum" and a Federal Register notice to explain its reasoning in
relation to final and preliminary determinations respectively. These documents set forth USDOC's
rationale for the use of facts available, including "adverse" facts available. Therefore, China argues
that it is preposterous for the United States to argue that "it is not possible to discern" the
"instances" in which China considers USDOC to have used facts available.
2.12. According to China, it is apparent that the United States' actual concern is not its ability to
identify the instances in which USDOC used "adverse" facts available, but rather the number of
instances in which USDOC did so. However, China notes that regardless of the number of instances
of a violation involved in a claim, a Member is only ever required to connect the challenged
measures to the provision of the covered agreemen ts claimed to have been infringed. China has
fulfilled this requirement by indicating that "each instance" of the use of "adverse" facts available
infringes Article 12.7 of the SCM Agreement, where the ordinary meaning of "each" is "every".
2.13. China asserts that it was not required to explain in its panel request which aspects of
Article 12.7 it considers the United States to have violated. This would amount to arguments,
which are not required in a panel request.
2.14. According to China, the United States fails to identify any prior decision under Article 6.2 of
the DSU that is even remotely analogous to what the United States is requesting from the Panel in
this case. Further, China submits that the United States should understand China's "adverse" facts
available claim, given that it recently successfully litigated the same issue against China in China –
GOES. Therefore, it should have been obvious to the United States that China's claim in
subsection (d)(1) of the panel request relates, at least in part, to the issue of whether an
investigating authority may resort to "adverse" facts available under Article 12.7 of the
SCM Agreement.

3 ARGUMENTS OF THE THIRD PARTIES
3.1 Australia
3.1. In Australia's view, due process requires that responding parties receive details about the
complaint that are sufficient to enable them to frame their response, particularly in the light of the
tight timeframes associated with panel proceedings.
3.2 Brazil
3.2. Brazil contends that in order for a panel re quest to comply with Article 6.2 of the DSU, it
must identify the measure targeted in the dispute and must provide a brief summary of the legal
basis of the claims. There is no obligation under Article 6.2 for the complaining party to develop in
the panel request the legal arguments that support its claims or to provide a detailed explanation
of why and how the measures at issue are inconsistent with a provision of a covered agreement.
However, Brazil does not advocate that permissive standards of specificity should prevail in DSU
proceedings and notes that greater precision and clarity in panel requests would contribute to
better define the boundaries of a panel's jurisdiction.
3.3. In Brazil's view, China's panel request identifies the measures at issue with sufficient
particularity to allow the defendant to identify their "nature and the gist of what is at issue".
10
Brazil notes that merely listing the provisions of the covered agreements allegedly violated may
not always satisfy Article 6.2 of the DSU. However, in the circumstances of this case, the language
of Article 12.7 of the SCM Agreement raises no doubt regarding the legal problem identified by
China.
3.3 European Union
3.4. The European Union provides detailed submissions regarding why, in its view, third parties
have a right to be heard on a preliminary ruling request before any communication on the request
is issued by the panel.
3.5. Regarding the substance of the preliminary ru ling request, the European Union notes that it
is not persuaded that the mere fact that the scope of a particular proceeding is broad is relevant to
the analysis under Article 6.2 of the DSU.
3.6. The European Union observes that there are different issues that might arise under
Article 12.7 of the SCM Agreement in connection with the use of facts available. According to the
European Union, if at the time of submitting the panel request the complaining member has
already worked out which of the issues best describes the problem, it might indicate this in the
panel request. In relation to China's panel request, the European Union notes that China expressly
referred to the use of "adverse" facts available and indicated that this was inconsistent with
Article 12.7. Therefore, in the European Union's view, China's challenge to the use of adverse facts
available falls within the Panel's jurisdiction. However, with respect to the use of facts available
other than the use of adverse facts available, the European Union is of the view that "some further
effort to specify the problem … might have been reasonable".
11
4 EVALUATION BY THE PANEL
4.1 The provision at issue
4.1. Article 6.2 of the DSU provides, relevantly:
The request for the establishment of a panel shall be made in writing. It shall indicate
whether consultations were held, identify the specific measures at issue and provide a
brief summary of the legal basis of the complaint sufficient to present the problem
clearly.

10 Brazil's comments on the preliminary ruling request, para. 8.
11 European Union's comments on the preliminary ruling request, para. 17.

4.2 The measures at issue
4.2. At the outset, we note that the "specific measures at issue" in relation to China's claims
under Article 12.7 are identified in the panel request. While the introduction to the "as applied"
section of China's panel request refers to the initiation and conduct of investigations, the
determinations, orders and definitive duties, it is clear that for the purposes of a facts available
claim under Article 12.7 of the SCM Agreement, the only measures in which USDOC could have
applied facts available are the final and preliminary countervailing duty determinations. Therefore,
the "specific measures at issue" are the 19 final and the three preliminary countervailing duty
determinations listed in Appendix 1 to the panel request.
4.3 Did China adequately identify the "instanc es" of the use of facts available that it is
challenging?
4.3. The United States' principal complaint is that China's panel request does not adequately
identify the "instances" of the use of facts av ailable by USDOC that China is challenging and
therefore does not "present the problem clearly". The United States variously complains that China
has failed to "plainly connect" the cited WTO obligation and the measures listed in the panel
request
12; has failed to "provide a brief summary" of the legal basis of its claim "sufficient to
present the problem clearly" 13; and has failed to explain "how or why" the measure at issue is
considered by China to be inconsistent with Article 12.7 of the SCM Agreement. 14 The
United States contends that each of these defici encies in the panel request arises because of the
failure to identify the "instances" of the use of facts available that are challenged by China.
4.4. The Panel notes that the measures at issue in relation to the facts available claims include
the Issues and Decisions Memoranda and Federal Register Notices, which are incorporated by
reference into the final and preliminary determinations respectively. 15 The Panel has examined the
memoranda and notices which are incorporated into the determinations listed in Appendix 1 to the
panel request, and which are publicly available. In our view, in these documents the "instances" in
which USDOC applied facts available are readily identifiable. Consequently, we are not persuaded
by the United States' argument that "it is not possible to discern what are those 'instances' in
which China considers the investigating authority used facts available".
16
4.5. The United States' complaint that China did not adequately identify the "instances" of the use
of facts available at issue appears to be premised upon an assumption that China is not intending
to challenge every application of facts available by USDOC. For example, the United States argues
that China fails to indicate "which of the potentially hundreds of applications of facts available are
of concern for purposes of the dispute".
17 However, the panel request states that China will
challenge "each" instance of the use of facts avai lable and China insists that this should be read
literally. In particular, China argues that it will challenge "each", in the sense of "every", use of
facts available by USDOC. 18 If the panel request were to state that China challenges "some" or
"numerous" applications of facts available, we would consider the United States to have a valid
argument. However, in our view, the panel request is clear that all "instances" of the use of facts
available will be challenged, and China confirms this in its submissions to the panel.
4.6. Therefore, in our view, it is possible to identify the specific aspects of each measure that will
be challenged by China under Article 12.7 of the SCM Agreement, namely, all instances of the use
of facts available, as found in the relevant I ssues and Decisions Memoranda and Federal Register
notices. Although the number of applications of facts available is indeed large, as argued by the

12 United States' preliminary ruling request, paras. 23 and 25 and United States' comments on China's
response to the preliminary ruling request, paras. 13 and 16.
13 United States' preliminary ruling request, paras. 3, 23, 25, 26 and 27 and United States' comments
on China's response to the preliminary ruling request, paras. 1, 3 and 17.
14 United States' preliminary ruling request, para. 26 and United States' comments on China's response
to the preliminary ruling request, para. 18.
15 The panel request expressly states that the preliminary and countervailing duty measures include
"any notices [and] decision memoranda … issued by the United States in connection with the … measures"
("WT/DS437/2, p.1, part A).
16 United States' preliminary ruling request, para. 18.
17 United States' preliminary ruling request, para. 3.
18 See China's response to the United States' preliminary ruling request, para. 4.

United States, this does not prevent the United St ates, third parties and the Panel from being able
to identify all of the "instances" in which USDOC applied facts available.
4.7. The Panel is not convinced that the situation before the Panel is equivalent to that before the
Appellate Body in China – Raw Materials. In that case, it was not clear on the face of the panel
request which of the listed measures allegedly vi olated which of the listed provisions of the
covered agreements. However, in the case before the Panel, it is clear that every final and
preliminary determination listed in Appendix 1 to the panel request is alleged to be inconsistent
with a single provision of the SCM Agreement, namely 12.7. Therefore, in our view, the panel
request "plainly connects" the measures to the provision at issue.
4.4 Did China otherwise "provide a brief su mmary of the legal basis of the complaint
sufficient to present the problem clearly"?
4.8. In its preliminary ruling request and its comments on China's response to the request, the
United States' argument that China did not "provide a brief summary of the legal basis of the
complaint sufficient to present the problem clearly" is based upon the contention that China did
not adequately identify the "instances" of the use of facts available that are at issue. For example,
the United States' reliance on the Appellate Body's statement in EC – Selected Customs Matters,
namely that Article 6.2 of the DSU requires a succinct explanation of "how or why" the measure at
issue is considered to be violating the WTO obligation in question, is rather limited.
19 It does not
suggest that, in order to explain "how or why" the measure was inconsistent with Article 12.7 of
the SCM Agreement, China was required to include further details of which aspects of the
obligations under Article 12.7 it would be challenging in the dispute. Rather, the United States
argues that "by failing to indicate what portions of the various documents in the 22 covered
investigations are the alleged breach of the facts available obligations in Article 12.7, China's panel
request includes no explanation - succinct or otherwise - on how or why these measures violate
Article 12.7".
20
4.9. However, in response to a Panel question, the United States perhaps presents a broader view
of how the "instances" of application of facts available could have been identified. In particular, the
United States notes that:
China might have described the uses of fact s available (e.g., the specific proceeding,
respondent, and type of fact) that it wished to challenge and the bases for challenging
those uses. Or, perhaps China could have described a specific class or type of facts
available determination that it intended to challenge and the basis for that
challenge.
21
Further, in responding to a Panel question regarding the distinction between, on the one hand,
"how and why" a measure violates a WTO obligation and, on the other hand, the arguments
supporting a claim of violation, the United States argues:
A complaining party bringing a facts available claim could summarize it in a number of
ways, depending on the facts and legal theori es at issue. For example, a complainant
could state that a Member has breached Article 12.7 because it improperly rejected
necessary information provided by an importer in an investigation, or because it
applied facts available to an importer who was not a respondent in an investigation.
Such a description would explain how or why a Member is alleged to have breached
Article 12.7 but does not involve argumentation.
22
4.10. The United States' responses to these panel questions appear to be related to the
United States' submission in its preliminary ruling request in which it refers to "another source of
ambiguity in China's panel request", namely that China did not specify which of the obligations
found within Article 12.7 of the SCM Agreement USDOC is alleged to have breached.
23 However,

19 United States' preliminary ruling request, para. 26 and United States' comments on China's response
to the preliminary ruling request, para. 18.
20 United States' preliminary ruling request, para. 26.
21 United States' response to Panel question 3, para. 6.
22 United States' response to Panel question 4, para. 7.
23 United States' preliminary ruling request, para. 22.

this argument is not forcefully pursued by the United States. In particular, the United States "does
not assert that this lack of clarity, standing alone, necessarily renders this or any other panel
request deficient".24
4.11. We note that the Appellate Body has arti culated various means by which a panel request is
able to "provide a brief summary of the legal basis of the complaint sufficient to present the
problem clearly". In particular, the Appellate Body has noted that a panel request must "plainly
connect" the challenged measures with the provisions of the covered agreements at issue.
25
Further, the Appellate Body has stated that a brief summary of the legal basis of the complaint
"aims to explain succinctly how or why the measure at issue is considered by the complaining
Member to be violating the WTO obligation in question". 26 However, the Appellate Body has
consistently held that "Article 6.2 of the DSU requires that the claims, but not the arguments,
must all be specified sufficiently in the request for the establishment of a panel". 27 Finally, the
Appellate Body has noted that whether a particular panel request meets the requirements of
Article 6.2 must be assessed on a case-by-case basis.
28
4.12. While the Appellate Body has articulated these broad statements, the precise manner in
which they should be applied is not entirely clear. In particular, it is not always clear how a
summary of claims should be distinguished from arguments in support of a claim. In our view,
some guidance on the application of these stat ements, and the requirement to "provide a brief
summary of the legal basis of a complaint" can be found by examining the Appellate Body's own
application of Article 6.2 in specific cases.
4.13. In US – Carbon Steel, the Appellate Body noted that whether merely listing a treaty
provision is sufficient to constitute a brief summary of the legal basis of the complaint under
Article 6.2 of the DSU "will depend on the circumstances of each case, and in particular on the
extent to which mere reference to a treaty provision sheds light on the nature of the obligation at
issue".
29 In US – Certain EC Products, the panel request stated that the "European Communities
considers that this US measure is in flagrant breach of…Article 23 of the DSU". 30 The
Appellate Body held that this was sufficient to include a claim of violation of Article 23.2(a) of the
DSU within the panel's terms of reference. The Appellate Body reasoned that there is a close link
between the all the obligations listed in the sub-pa ragraphs of Article 23, in that they all concern
the obligation on WTO members not to have recourse to unilateral action, and so concluded that
the general reference to Article 23 of the DSU was sufficient to include a claim under
Article 23.2(a) of the DSU within the panel's jurisdiction.
31 Therefore, it seems the Appellate Body
accepted the reference to the "flagrant breach of Article 23" as sufficient to "provide a brief
summary of the legal basis of the complaint sufficient to present the problem clearly". Similarly in
Thailand – H-Beams, both the Panel and the Appellate Body held the panel request at issue to be
consistent with Article 6.2 of the DSU. The panel request provided, relevantly, that "Thai
authorities initiated and conducted this investigation in violation of the procedural and evidentiary
requirements of … Article 5 … of the Anti-Dumping Agreement".
32 Ultimately, Poland's claims under
Article 5 were brought under Articles 5.2, 5.3 and 5.5 of the Anti-Dumping Agreement. However,
the Appellate Body held that due to the "interlinked nature of the obligations in Article 5, we are of
the view that, in the facts and circumstances of this case, Poland's reference to 'the
procedural…requirements' of Article 5 was sufficient to meet the minimum requirements of
Article 6.2".
33
4.14. In a more recent case, EC – Fasteners (China), the Appellate Body held that although a
complainant need not provide arguments in a panel request, in the circumstances of the case
before it, it did not consider the mere listing of Articles 6.2 and 6.4 of the Anti-Dumping

24 United States' preliminary ruling request, para. 22 and United States' comments on China's response
to the preliminary ruling request, para. 14.
25 Appellate Body Reports, US – Oil Country Tubular Goods Sunset Reviews, para. 162 and China – Raw
Materials, para. 220.
26 Appellate Body Report, EC – Selected Customs Matters, para. 130.
27See, for example, Appellate Body Report, EC – Bananas III, para. 143.
28 See, for example, Appellate Body Report, Korea – Dairy, para. 127.
29 Appellate Body Report, US – Carbon Steel, para. 130.
30 See, Appellate Body Report, US – Certain EC Products, para. 109.
31 Appellate Body Report, US – Certain EC Products, para. 111.
32 See Appellate Body Report, Thailand – H-Beams, para. 89.
33 Appellate Body Report, Thailand – H-Beams, para. 93.

Agreement as adequate to "provide a brief summary of the legal basis of the complaint sufficient
to present the problem clearly". The Appellate Body reasoned that the obligations in Articles 6.2
and 6.4 of the Anti-Dumping Agreement are "relat ively broad in scope and apply on a continuous
basis throughout an investigation".
34
4.15. Therefore, the Appellate Body has held that merely listing the provision that forms the legal
basis of the complaint will not always be sufficien t to meet the requirement of Article 6.2 of the
DSU to provide a brief summary of the legal basis of the complaint, but that in some
circumstances it may be. We note that many panels have made similar statements and in certain
circumstances have found that the listing of a provision is sufficient to satisfy the obligations
encompassed in Article 6.2 of the DSU.
35
4.16. In the circumstances of this case, we note that China has provided more detail than the
complainants in, for example, US – Certain EC Products and Thailand – H-Beams, in that it has not
merely listed the Article at issue, but has referenced the specific sub-paragraph of Article 12 under
which it brings its claim (namely, 12.7 of the SC M Agreement). In our view, in the circumstances
of this case, the reference to Article 12.7 sheds suffi cient "light on the nature of the obligation at
issue" to satisfy Article 6.2 of the DSU.
36 Article 12.7 sets out a relatively limited range of
circumstances in which it is permissible for an investigating authority to apply "facts available". In
addition, the panel request indicates that China will challenge the manner that USDOC resorted to
and used facts available. It also provides a higher level of precision with respect to one aspect of
its claim, namely that China will challenge USDOC's use of "adverse" facts available.
4.17. While we have some sympathy for the United States' position, namely that more detail
could have been provided in the panel request regarding what in particular about the manner in
which the United States resorted to and used facts available is allegedly inconsistent with
Article 12.7 of the SCM Agreement, we are not conv inced that Article 6.2 of the DSU requires this.
We also note that the United States itself concedes that this is not necessarily required under
Article 6.2.
37 Our analysis of the application of Article 6.2 in previous cases seems to suggest that
relatively general summaries of the "legal basis of complaint" have been accepted as sufficient to
"present the problem clearly". Further, providing more precise details regarding what aspects of
the resort to and use of facts available are ch allenged under Article 12.7 of the SCM Agreement
could perhaps best be characterized as the argume nts in support of the claim, rather than the
summary of the claim itself.
4.18. We note that Article 6.2 of the DSU has been characterized by the Appellate Body as serving
the due process objective of notifying the part ies and third parties of the nature of the
complainant's case38. We concur with this view and believe that Article 6.2 serves an important
function in this regard. In the circumstances of this case, in our view, China has met the minimum
requirements to fulfil this due process objective. While more precision in the panel request may
have allowed the United States to prepare a detailed defence prior to receiving China's first written
submission, we are of the view that the summary of the legal basis of the complaint provided by
China was sufficient to put the United States on notice of the case against it to allow the
United States to "begin" preparing its defence.
39 Therefore, we are not convinced that the
United States' ability to defend itself has been prejudiced.
4.19. Finally, we note that the Appellate Body in EC – Selected Customs Matters held that the
summary of the legal basis of the complaint "aims to explain succinctly how or why the measure at
issue is considered by the complaining Member to be violating the WTO obligation in question". 40

34 Appellate Body Report, EC – Fasteners (China), paras. 597-598.
35 See, for example, Panel Reports, EC – Approval and Marketing of Biotech Products, para. 7.47 (sub-
36 Appellate Body Report, US – Carbon Steel, para. 130.
37 United States' preliminary ruling request, para. 22 and United States' comments on China's response
to the preliminary ruling request, para. 14.
38 See, for example, Appellate Body Reports, US – Carbon Steel, para. 126 and EC – Selected Customs
Matters, para. 130.
39 See, for example, Appellate Body Report, Thailand – H-Beams, para. 88. In particular, in our view the
United States was in a position to "begin" preparing a defence to an allegation that the manner in which it
applies "adverse" facts available is inconsistent with Article 12.7 of the SCM Agreement and to consider the
consistency of its other uses of facts available with Article 12.7.
40 Appellate Body Report, EC – Selected Customs Matters, para. 130.

In our view, this is merely one articulation of a way in which a complainant can provide a brief
summary of the legal basis of the complaint under Article 6.2 of the DSU and does not add a new
element to the Article 6.2 obligation. For the foregoing reasons, we are of the view that China has
indeed provided an adequate summary of its complaint.
4.20. Consequently, we conclude that China was not required under Article 6.2 of the DSU to
provide more precision about its challenge to the United States' use of and resort to facts available
in order to provide "a brief summary of the legal basis of the complaint sufficient to present the
problem clearly".
5 CONCLUSION
5.1. While we do not endorse a cursory approach to panel requests and acknowledge the
important due process objectives served by Articl e 6.2 of the DSU, in the circumstances of this
case, we are of the view that China has met the minimum requirements of the provision. For the
foregoing reasons, we reject the United States' preliminary ruling request and conclude that
China's panel request, as it relates to the facts available claim under Article 12.7 of the
SCM Agreement, is consistent with Article 6.2 of the DSU.
6 DISSENTING OPINION ON WHETHER CHIN A PROVIDED A SUMMARY OF THE LEGAL
BASIS OF THE COMPLAINT SUFFICIENT TO PRESENT THE PROBLEM CLEARLY
6.1. While I agree with the Panel majority that China adequately identified the "instances" of the
use of facts available that it is challenging, in my view, China did not provide a summary of the
legal basis of the complaint sufficient to present the problem clearly.
6.2. The Appellate Body has repeatedly noted that the identification of the specific measures at
issue and the provision of a brief summary of the legal basis of the complaint sufficient to identify
the problem clearly under Article 6.2 of the DSU are two "key" requirements because they
comprise the "matter referred to the DSB", which forms the basis for a panel's terms of reference
under Article 7.1 of the DSU.
41 It has explained further that these are distinct requirements that
should not be confused. 42 Moreover, the fulfilment of these requirements is not a mere formality
because a panel request forms the basis for the terms of reference of the panel and, serves the
due process objective of notifying the respondent and third parties of the nature of the
complainant's case. Compliance with these two requirements is therefore central to defining the
scope of the dispute. 43 Consequently, a panel "must scrutinize carefully the language used in the
panel request".44
6.3. In the circumstances of this case, the United States does not contest that China has identified
the specific measures at issue in its panel request. However, the United States alleges that China
failed to present the problem clearly with respect to its "facts available" claims.
6.4. Since it is not contested that China has listed the measures at issue, we must ascertain, in
light of the circumstances of this case:
a. if China has done more, by way of providing a brief summary of the legal basis of the
complaint; and
b. if so, whether that brief summary is sufficient to present the problem clearly; or
c. whether the mere listing of the measures provides a brief summary sufficient to present
the problem clearly.
6.5. The Appellate Body explained in Korea – Dairy that "Article 6.2 demands only a summary –
and it may be a brief one – of the legal basis of the complaint"
45. In fact, what Article 6.2 demands
is a " brief summary" which suggests that it can be minimal, but not insignificant. A summary is

41 Appellate Body Report, US – Carbon Steel, para. 125.
42 Appellate Body Report, EC – Selected Customs Matters, para. 132.
43 Appellate Body Report, China – Raw Materials, para. 219.
44 Appellate Body, China – Raw Materials, para. 220.
45 Appellate Body Report, Korea - Dairy, para. 120.

already brief — a brief statement or account of the main points of something; an abstract,
abridgment, or compendium of facts or statements — and Article 6.2 requires that the summary of
the legal basis of the complaint contained in the request for the establishment of a panel be brief.
However, the summary cannot be insignificant because it must be sufficient to present the
problem clearly.
6.6. Article 6.2 requires a brief summary of the legal basis of the complaint; not simply that the
legal basis of the complaint be stated . In other words, Article 6.2 requires more than simply
stating the legal basis of the complaint or, put in other terms, more than simply stating the claim.
Because Article 6.2 expressly requires a summary - albeit a brief one - it would be contrary to the
principle of effectiveness ( ut res magis valeat quam pereat ) to strip that word of its meaning and
equate the requirement to provide a brief summary of the legal basis of the complaint to a
requirement to provide a statement of the legal basis of the complaint. Nonetheless, the
Appellate Body has suggested that, depending on the circumstances of a case, a mere listing of
the provisions of the covered agreement alleged to have been violated might serve as a brief
summary of the complaint sufficient to explain the problem clearly. Thus, it would appear that in
certain circumstances the Appellate Body would accept that stating the claim might also serve as a
brief summary of the complaint sufficient to pres ent the problem clearly. In my view, these must
be rare cases and, per force, a model of clarity, in order to avoid depriving the words "brief
summary" of any meaning, contrary to the principle of effectiveness. Thus, if there is doubt as to
whether the mere listing of the provisions alleged to be breached constitutes a brief summary of
the legal basis of the complaint sufficient to present the problem clearly, in my view the conclusion
would have to be that it does not.
6.7. In this case, China specifically claims:
China considers that the initiation and conduct of the identified countervailing duty
investigations, as well as the countervailing duty determinations, orders, and any
definitive countervailing duties imposed pursuant thereto, are inconsistent, at a
minimum, with the obligations of the United States…
(d) In connection with all of the identified countervailing duty
investigations in which the USDOC has issued a preliminary or final
countervailing duty determination:
(1) Article 12.7 of the SCM Agreement, because the USDOC resorted to
facts available, and used facts available, including so-called "adverse"
facts available, in manners that were inconsistent with that provision.
10
The conduct of the identified countervailing duty investigations, as well as the
countervailing duty determinations, and any definitive countervailing duties imposed
pursuant thereto, are inconsistent with Article 12.7 of the SCM Agreement, insofar as
in each instance in which USDOC resorted to facts available, and used facts available,
including so-called "adverse" facts available, it did so in a manner that was
inconsistent with that provision.

6.10. It should be noted that China’s claim is circular: in essence, its allegation is that the
identified measures are inconsistent with Article 12.7 because certain actions of USDOC - the
resort to, and use of, facts available, including so-called "adverse" facts available - are inconsistent
with that provision. The footnote simply adds that this is the case of each instance in which the
USDOC used (or resorted to) facts available. Thus, it appears that China is essentially stating its
claim: in each instance that USDOC resorted to, and used, facts available, including so-called
"adverse" facts available, it acted inconsistently with Article 12.7 of the SCM Agreement and,
therefore, the identified measures are inconsistent with that provision.
6.11. A review of Appellate Body reports addressing Article 6.2 of the DSU reveals that in general
there are three elements that the complaining party must meet to satisfy the second "key"
requirement in Article 6.2 of the DSU (unless in the circumstances of the case the mere reference
to the provision(s) alleged to be breached would suffice):
a. it must state "the legal basis of the complaint" or, put another way, state its claim that
an obligation contained in a specific provision of a covered agreement has been
violated
46;
b. it must provide a brief summary of the legal basis of the complaint, which is more than
simply stating the claim as it requires the complaining party to explain succinctly how or
why the measure at issue is considered to be violating the WTO obligation in question 47;
and
c. the brief summary must be sufficient to present the problem clearly, by plainly
connecting the challenged measure(s) with the provision(s) of the covered agreements
claimed to have been infringed.48
6.12. In the circumstances of this case, China has certainly stated its claim: it alleges that the
obligation contained in Article 12.7 of the SCM Agr eement has been violated in each instance in
which USDOC used or resorted to facts available. China has also plainly connected the challenged
measures with Article 12.7 of the SCM Agreement, as found by the Panel majority. The question is
whether in the circumstances of this case, by plainly connecting the challenged measures with
Article 12.7 China has satisfied the requirement to "explain succinctly how or why the measure at
issue is considered by the complaining Member to be violating the WTO obligation in question".
6.13. Article 12.7 of the SCM Agreement provides:
In cases in which any interested Member or interested party refuses access to, or
otherwise does not provide, necessary information within a reasonable period or
significantly impedes the investigation, preliminary and final determinations,
affirmative or negative, may be made on the basis of the facts available.
6.14. It contemplates different situations that may justify making affirmative or negative
preliminary and final determinations on the basis of facts available:
a. an interested Member or an interested party may refuse access to necessary information
within a reasonable period;
b. an interested Member or an interested party may otherwise not provide necessary
information within a reasonable period; or
c. an interested Member or an interested party may significantly impede the investigation.
6.15. With reference to the Appellate Body's decision in EC – Fasteners (China), I note that
Article 12.7 of the SCM Agreement is not as broad in scope as Articles 6.2 and 6.4 of the Anti-

46 Appellate Body Report, EC – Selected Customs Matters, para. 130.
47 Appellate Body Report, EC – Selected Customs Matters, para. 130.
48 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 162.

Dumping Agreement. However, Article 12.7 does contemplate several situations and applies on a
continuous basis throughout an investigation.49
6.16. In light of this: is China’s statement in item B(1)(d) of its panel request, including the
reference to Article 12.7 of the SCM Agreement, a brief summary of the claim sufficient to present
the problem clearly?
6.17. Having carefully examined the Appellate Body cases, I find it difficult to conclude that
China's statement that the identified measures are inconsistent with Article 12.7 of the
SCM Agreement is anything other than simply statin g the claim; and, in the light of the content of
that provision, in my view that is not enough to serve as a summary of the legal basis of the
complaint sufficient to present the problem clearly. I would add that in this respect, China’s claim
concerning facts available is different from the other claims included in its request for the
establishment of the panel.
6.18. Consequently, I disagree with the Panel majority regarding whether China's panel request
provides a brief summary of the legal basis of the complaint sufficient to present the problem
clearly. In my view, China's panel request is not sufficient in this regard.