EXHIBIT CHN-65
Document: Contents Page Annex H-1 Panel's Decision concerning Exhibit CHN-65 H-2
Document codes: WT/DS397/R
Complainant: China
Respondent: EU
Third parties: Brazil, Canada, Chile, Colombia, India, Japan, Norway, Taiwan, Thailand, Turkey, U.S.
Dispute stage: Implementation & Compliance
Agreements cited: Art. 6, 9, 5, 2, 3, 4  Anti-dumpingArt. I, X:3(a), VI:1  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

ANNEX H

PANEL'S DECISION CONCERNING
EXHIBIT CHN-65

Contents Page
Annex H-1 Panel's Decision concerning H-2

ANNEX H-1

PANEL'S DECISION CONCERNING

1. The European Union, in its first written subm ission, argued that a number of claims raised by
China fell outside the Panel's terms of reference because they were not subject to consultations
between the parties. In response, China, during th e first substantive meeting of the Panel with the
parties, sought to submit a document allegedly sent by China to the European Union prior to the
consultations and used during the consultations. The European Union objected to the submission of
this document, arguing that it would violate Article 4.6 of the DSU, which provides that consultations
are confidential. At the meeting, the Panel declined to receive the document at issue and stated that if
China wished to submit this document to the Panel it could make a written request to that effect and
the Panel would decide whether to accept it.

2. China subsequently submitted the document at issue as to its second written
submission on 19 April 2010. On 22 April 2010, the European Union objected, asserting that China
had failed to follow the procedures established by th e Panel with respect to possible submission of
this document, and asking the Panel to indicate wh ether "" and references to it in
China's second written submission were part of the r ecord, or if not, how this issue should be dealt
with. This was followed by further letters from both parties to the Panel on 23 and 26 April 2010.
The parties disagree as to the procedures for possibl e submission of the document in question, and as
to the significance of Article 4.6 of the DSU in this context.

3. We recall that the European Union has raised preliminary jurisdictional objections to certain
of China's claims on the ground that those claims were not subject to consultations, either because
they were not identified in China's request for consultations and/or becau se no consultations took
place between the parties to the dispute with respect to them.
1 Thus, it is clear to us that the
European Union asserts, as a matter of fact, that certa in of China's claims were not the object of the
consultations between the parties. China, on the ot her hand, seeks to rebut this factual assertion by
submitting , which sets out a "Lis t of Questions for the consultations" which
allegedly was sent to the European Union prior to the consultations and formed the basis for the
consultations.2

4. In these circumstances, we consider it appropr iate to accept . While it is true
that China did not make a separate written request to submit the document in question as an exhibit,
we do not consider this to preclude its submission as an exhibit in this dispute, as it is clear that the
European could, as it did, object to the submission.

5. We see nothing in Article 4.6 of the DSU that would preclude accepting this document as an
exhibit in this dispute. Article 4.6 of the DSU provides:

"Consultations shall be confidential, and without prejudice to the rights of any
Member in any further proceedings."

1 See, e.g., First Written Submission of the European Union, paras. 244, 248, 488, 491.
2 See, e.g., Second Written Submission of China, para. 418. The EU has not disputed that this
document was provided to it prior to the consultations.

We do not consider that submission of Exhibit CH N-65 to the panel called upon to resolve the same
dispute that was the subject of the consultations is inconsistent with the confidentiality requirement of
Article 4.6. In this regard, we reca ll the view expressed by the panel in Korea – Alcoholic Beverages
that:

"this confidentiality extends only as far as re quiring the parties to the consultations
not to disclose any information obtained in th e consultations to any parties that were
not involved in those consultations. ... It would seriously hamper the dispute
settlement process if the information ac quired during consul tations could not
subsequently be used by any party in the ensuing proceedings."
3

If information obtained during consultations may be used in the ensuing proceedings, we see no
reason to exclude a priori an exhibit purporting to set out a list of questions the complaining party
considers should be discussed during consultations.

6. The statement of the Appellate Body in US – Upland Cotton , relied upon by the
European Union, does not apply to this issue. In that case, the Appellate Body expressed agreement
with the views of the panel in Korea – Alcoholic Beverages that "[t]he only requirement under the
DSU is that consultations were in fact held ... [w ]hat takes place in those consultations is not the
concern of a panel".
4 We do not read either the panel in Korea – Alcoholic Beverages or the
Appellate Body in US – Upland Cotton to have concluded that in determining the scope of the
consultations a panel is precluded from considerin g evidence submitted by a party as to what it
believes to have been subject to those consultati ons. We recall the Appellate Body's statement in
US – Shrimp (Thailand) / US – Customs B ond Directive that "whether a complaining party has
"expand[ed] the scope of the dispute" or changed th e "essence" of the dispute through the inclusion of
a measure in its panel request that was not part of its consultations request must be determined on a
case-by-case basis".5 Evidence of a party's intention to discu ss certain questions may well be relevant
in making such a case-by-case determination as to the scope of the consultations. This is not, in our
view, the same as "[e]xamining what took place in the consultations", which was the focus of the
Appellate Body statement relied upon by the European Union.

7. We emphasise that our decision to accept Exhib it CHN-65 in this dispute is without prejudice
to our consideration of its relevance to, or the wei ght we may accord to it in our consideration of the
preliminary jurisdictional objections raised by the European Union.

WT/DS84/R, adopted 17 February 1999, as modified by Appellate Body Report WT/DS75/AB/R,
WT/DS84/AB/R, DSR 1999:I, 44, para. 10.23. We note that this approach was subsequently also followed by
the panel in Mexico – Corn Syrup . See, panel Report, Mexico – Anti-Dumping Investigation of High Fructose
Corn Syrup (HFCS) from the United States ("Mexico – Corn Syrup"), WT/DS132/R, adopted 24 February 2000,
4 Appellate Body Report, United States – Subsidies on Upland Cotton (" US – Upland Cotton "),
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3, para. 287.
5 Appellate Body Report, United States – Measures Relating to Shrimp from Thailand / United States –
Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties (" US – Shrimp
(Thailand) / US – Customs Bond Directive "), WT/DS343/AB/R, WT/DS345/AB/R, adopted 1 August 2008,
para. 293.