CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS
Document: Communication from the Panel The Panel has asked the Chairman of the Di spute Settlement Body to circulate to the Members for their information, the following commun ication dated 7 May 2010 from the Panel to the Parties.
Date: 18 May 2010
Document codes: WT/DS394/9; WT/DS395/9; WT/DS398/8
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

Communication from the Panel

 The Panel has asked the Chairman of the Di spute Settlement Body to circulate to the
Members for their information, the following commun ication dated 7 May 2010 from the Panel to the
Parties.

By means of this communication, the Panel hereby responds to China's request for a
preliminary ruling dated 30 March 2010, regardi ng the compliance of the Complainants' panel
requests with the requirements of Article 6.2 of the DSU in the above-mentioned disputes.
The Panel has carefully examined the views expressed by all Parties and Third Parties with
respect to China's request. The Panel has decided to rule today on some parts of China's request and
to reserve its decision on other parts.
 In sum, the Panel today rules as follows:
• The Panel finds that its terms of reference ar e limited to those measures explicitly identified
by bullet points in each of the three sections of the Complainants' panel requests.
• Of these measures, the Panel finds that the term "related measures" as referred to in the last
bullet point in each of the listed measures, is too broad and undefined a term and therefore
falls outside the Panel's terms of reference.
• The Panel decides that its terms of reference are not
 limited to those products falling under
the tariff lines described in footnotes one to nine of the panel requests. The Panel concludes
that these tariff lines are only indicative of the broad scope of the challenge.
• The Panel rules that the panel requests include the two corrected tariff lines regarding zinc.
• The Panel finds that the Complainants' clai ms under paragraph 342 of the Report of the
Working Party on the Accession of China fall outside its terms of reference.
• The Panel will not consider the preliminar y ruling submitted by the Complainants from a
separate, ongoing panel proceeding.
 Until it has examined the Complainants' first written submissions and in order to preserve
fully China's ability to defend itself, the Panel decides to reserve its decision on:

• Whether the Complainants' panel requests suffici ently identify the measures at issue and the
products possibly affected by such measures.
• Whether the Complainants' panel requests provide for a summary of the legal basis of the
complaint sufficient to present the problem clearly.
 The Panel's detailed analysis of the issues unde r consideration and rulings with respect to
these issues is hereby annexed.

For purposes of transparency and due process, and having consulted the Parties, the Panel
intends to send a copy of this communication to all Third Parties in the proceedings and will also
request that this communication be circulated to all WTO Members.

ANALYSIS AND RULINGS BY THE PANEL

1. On 30 March 2010, China filed a request befo re this Panel for a preliminary ruling.
1 China
asserted that specific sections of the Complainants' panel requests 2 for the establishment of this Panel
(panel requests) are inconsistent with Article 6. 2 of the Understanding on the Rules and Procedures
Governing the Settlement of Disputes (DSU). 3 The Parties presented preliminary written
submissions. China commented on the Complainants ' Joint Response to Chin a's preliminary ruling
request whereas the Complainants di d not comment on China's comments. 4 On 29 April 2010, the
Panel held a hearing with the Parties and a separat e session with the Third Parties on China's request.
On the same date, the Panel sent written questions to the Parties on China's request. The Parties
responded to the Panel's questions on 3 May 20 10 and submitted comments on 5 May 2010 on each
other's responses.
2. Essentially, China argues that the Complainan ts' panel requests do not comply with the
requirements of Article 6.2 of the DSU because th ey do not identify clearly and specifically enough
which measures are challenged and for which specifi c products. China also argues that the panel
requests do not provide a brief summary of the legal basis sufficient to present the problem clearly, as
the measures identified in Section III of the panel requests are not plainly connected to the list of
provisions that the Complainants consider to be infringed.
3. The Panel recalls that the DSU does not provide for preliminary rulings requests by parties
although their occurrence has increased recently, nota bly in challenging the jurisdiction of panels
traditionally based on the Complaining party's panel request.
4. Article 6.2 of the DSU requires, inter alia , that a panel request identifies the "specific
measures at issue" and provides "a brief summary of the legal basis (...) sufficient to present the
problem clearly". The need for precision in th e panel requests flows from the two essential purposes
of the terms of reference, namely, to define the " scope of the dispute" and to serve the "due process"
objective of notifying the parties and third par ties of the nature of the complainants' case. 5
Compliance with the requirements of Article 6.2 mu st be determined on the merits of each case,
having considered the panel request as a whole and the parties' first written submission if necessary,
and in the light of attendant circumstances.6

1 China's request for a preliminary ruling pursuant to Article 6.2 of the DSU, 30 March 2010 (China's
request).
2 Request for the Establishment of a Panel by the United States (WT/DS394/7); Request for the
Establishment of a Panel by the European Communities (WT/DS395/7) and Request for the Establishment of a
Panel by Mexico (WT/DS398/6).
3 For instance, see China's request, paras. 3 and 30, as well as the Annex of China's request.
4 See China's request; Response of the United States, European Union, and Mexico to China's request
(Joint response on 21 April 2010) and China's Comments on the Joint Response (China's comments) (23 April
2010). The Complainants sent emails on 25 April informing the Panel that they chose not to comment in
writing on China's comments. This was an optional procedure in the Panel’s timetable for the Preliminary ruling
proceedings.
5 Appellate Body Report on EC – Chicken Cuts , para 155 referring to Appellate Body Report on US –
Carbon Steel, para. 126 (quoting Appellate Body Report on Brazil – Desiccated Coconut , DSR 1997:I, 167, at
186 (emphasis omitted); and referring to Appellate Body Report on EC – Bananas III, para. 142).
6 Appellate Body Report on Korea – Dairy, paras. 124-127. See also, Appellate Body Report on US –
Carbon Steel, para. 127

5. The Panel has given due consideration to the Par ties' requests and arguments. It has carefully
examined the Complainants' panel requests in light of both the letter and the spirit of Article 6.2 of the
DSU
7, as they define its jurisdiction and terms of reference. The Panel has also taken into account the
need to ensure China's ability to defend itself 8 and its right to be well informed of the Complainants'
case, as well as the right of the Complainants to have a prompt resolution of the disputes 9 in
accordance with Article 3.3 of the DSU, while keepi ng in mind that "[t]he procedural rules of WTO
dispute settlement are designed to promote, not th e development of litigation techniques, but simply
the fair, prompt and effective resolution of trade disputes."10
6. Taking into account all these elements, the Panel issues its preliminary ruling on the
following aspects.
THE MEASURES CHALLENGED
7. China claims that in their panel requests the Complainants failed to sufficiently identify the
measures they challenge. 11 China's main focus is on the allege d lack of defined products covered by
each challenged measure. Before addressing this argument from China, the Panel will discuss two
sets of terms used by the Complainants in thei r panel requests of concern to the Panel itself: 12 the use
of "among others" preceding the lists of challenged measures and the reference to "any amendments
or extensions; related measures; replacement measures; renewal measures; and implementing
measures" to any of the listed measures, as identifie d in the last bullet point of each of the listed
measures in each of the three sections of the Complainants' panel requests.
8. The Panel recalls that within the meaning of Article 6.2 of the DSU, a panel request must
specify the measures challenged. The Panel is aw are that the obligation to identify the specific
measure at issue does not oblige the complainant to set forth the "precise content" of the measure in
its panel request. Instead, the Appellate Body f ound that "although a measure cannot be identified
without some indication of its contents, the iden tification of a measure within the meaning of
Article 6.2 needs be framed only with sufficient pa rticularity so as to indicate the nature of the
measure and the gist of what is at issue." 13 A measure may thus be identified by its substance or
nature14, so long as what is referred for adjudicatio n by a panel may be discerned from the panel
request.15
9. As the goal of such requirements is, inter alia, to ensure that the defendant is well aware of
the scope of the challenge it faces in a dispute, the Panel believes that the defendant in any panel
procedure must know clearly which of its measure s are challenged. So "as a general rule, the

7 Appellate Body on EC – Bananas III, para. 142.
8 Appellate Body Report on US – Carbon Steel, para. 127. See also, Appellate Body Report on Korea
– Dairy, para. 127.
9 Regardless of the fact that there are three complaints (DS394, DS395 and DS398) which implies three
different disputes, the Panel will refe r in its subsequent communications to "dispute" when referring to the
process of this current Panel.
10 Appellate Body Report on US – FSC, para. 166.
11 For instance, see China's request, paras. 13-19 and 59-66; and China's comments, paras. 10-32.
12 The Panel has the right and obligation to address issues even if the parties to the dispute remain silent
on those issues. Appellate Body Report on Mexico – Corn Syrup (Article 21.5 – US), para. 35.
13 Appellate Body Report on US – Continued Zeroing, para. 169.
14 Panel Report on Argentina – Footwear (EC) , para. 8.40. See also, Panel Report on EC – Approval
and Marketing of Biotech Products, para. 7.47.
15 Appellate Body Report on US – Continued Zeroing, para. 168.

measures included in a panel terms' of reference must be measures that are in existence at the time of
the establishment of the panel".
16
1. "among others"
10. The panel requests contain an introductory para graph and then three sections. Each section
refers to a generic type of measure – export quotas, export duties and additional restraints imposed on
exportation. Each section is composed first of na rrative paragraphs describing what the complainants'
consider generally to be the "problem", second, of a list of challenged legal instruments and finally,
of a list of the WTO obligations alleged to have been violated by the listed measures.
11. The Panel is concerned with certain aspects of the three lists of challenged measures. After
the narrative paragraph(s) in each of the three sections, the Complainants identify the lists of measures
with the following phrase: "...these Chinese measures are reflected in, among others " (emphasis
added). This phrase indicates that the measures listed by bullet points in the panel requests are not the
only measures allegedly inconsiste nt with WTO obligations and leaves open the possibility that the
Complainants might include additional measures in subsequent submissions.
12. The Panel is of the view that the Complain ants cannot be allowed to include additional
measures other than those listed and identified by bul let points in the panel requests. Such an "open
ended" list would not contribute to the "security and predictability" of the WTO dispute settlement
system as required by Article 3.2 of the DSU.
13. For this reason, the Panel considers that only the listed measures explicitly identified by bullet
points in the three sections of the Complainants' panel requests fall within the Panel's terms of
reference and will thus be examined by the Panel.
2. "as well as any amendments or extensio ns; related measures; replacement measures;
 renewal measures; and implementing measures"
14. In response to the Panel's questions during the preliminary ruling hearing, the Complainants
suggested that they do not intend to introduce ne w measures and that the phrase "among others" is
intended to cover the same situations as those envisag ed by the last bullet point of each of those three
lists which reads "as well as any amendments or ex tensions; related measures; replacement measures;
renewal measures; and implementing measures".
15. The Complainants add that the purpose of the "among others" phrase, as well as the last bullet
in the list of legal instruments referring to "a ny amendments or extens ions; related measures;
replacement measures; renewal measures; and implementing measures" is to make clear that the
Chinese legal instruments that the Co mplainants have been able to identify to date may not be the
only ones through which China maintains the measures at issue, and to specifically include such
instruments within the Panel's terms of reference.17
16. The Panel shares the concern that a respondent s hould not be allowed to unilaterally modify
one or more of the initially challenged measures with a view to avoiding a Panel's jurisdiction. At the
same time, measures to be included in the Panel's te rms of reference should generally exist at the time
of the filing of the panel request. There are none theless situations where new governmental actions
were considered to be so closely linked to the cha llenged measure that they were also considered to

16 Appellate Body Report on EC – Chicken Cuts, paras. 156.
17 Complainants' answer to the Panel's questions after the preliminary ruling hearing, para. 19.

have been captured by the Panel's initial terms of reference. Amendments to challenged legislation
that do not change the "essence" of the initial m easure bring the amended measure under the initial
terms of reference.
18 The same was said when the initial m easure expired and was replaced by a new
one or when the effect of the new (implementing) measure is the same as the expired one.19 However,
in EC – Chicken Cuts two related measures were adopted during the panel process but were
considered to be excluded from the terms of reference because, alt hough related to the same matter
and having the same effect, they were not amendments to the original measures with the same essence
as the original measures.
17. In the Panel's view, undefined "related measur es" is too broad a term and does not allow
China to know clearly what specifi c measures are being challenged in the current disputes. For this
reason, the Panel believes that the Complainants cannot add to their list of challenged measures a
broad scope of "related measures".20
18. Therefore, the Panel will not read the last bulle t point of each of the three lists of specific
measures as referring to any "related measures".
19. With regard to the reference to "implemen ting measures", it is not clear whether the
Complainants refer to domestic implementing measur es or whether they seek to include the measures
that China may have to implement if the Complainan ts were to succeed in this current challenge. The
Panel reads these terms to refer to actions ta ken by China to implement existing challenged
measures.21
20. For this reason, the Panel considers that only the listed measures explicitly identified by bullet
points in the three sections of the Complainants' panel requests - as well as any future amendment(s)
or extensions, replacement measures, renewal measures and implementing measures, as described
above by the Panel - fall within the Panel's terms of reference and will thus be examined by the Panel.
3. Whether the identification of the measures requires the specification of the products
 concerned
21. China claims that in their panel requests the Complainants failed to sufficiently identify the
measures they challenge because the Complainants do not adequately specify which specific products
are covered by each challenged measure.
 22 In order to properly identify the challenged measures, and
since many of the listed measures are laws of genera l application, China argues that the Complainants
should have identified the specific products for each of the measures. In response, the Complainants
assert that they have clearly listed the basic products concerned by the dispute. 23 The Complainants
argue that the reference to "various forms " of the nine materials mentioned in the introductory
paragraph of the panel requests, as well as th e descriptive list of tariff lines included through
footnotes one to nine, seek to provide examples of the broad scope of their challenge.24 In turn, China

18 Appellate Body Report on Chile – Price Band System, para. 139.
19 Appellate Body Report on US – Upland Cotton (21.5), para. 270
20 The Appellate Body noted in a case that the phrase "implementing measures and other related
measures" does not identify th e specific measures at issue as required in Article 6.2 of the DSU. Appellate
Body Report on EC – Selected Customs Matters, para. 152, footnote 369.
21 The Panel will not read this phrase as involving a measure subject to proceedings under Article 21.5
of the DSU.
22 For instance, see China's request, paras. 13-19 and 59-66; and China's comments, paras. 10-32.
23 Joint Response, paras. 13-22.
24 Ibid.

seeks to have the scope of the disputes limited to th e explicit tariff lines listed in footnotes one to nine
regarding each product mentioned in the introductory paragraph of those panel requests.
25
22. The Panel notes that the Complainants identifie d in their panel requests nine "materials" 26:
bauxite, coke, fluorspar, magnesium, manganese, silicon carbide, silicon metal, yellow phosphorus
and zinc. 27 The Complainants added a footnote to each of these materials. In each footnote, the
Complainants stated that each material "incl udes but is not limited to" a series of tariff lines. 28 The
Panel understands that the introduc tory paragraph of the Complain ants' panel requests serves to
describe generally the scope of the Complainants' ch allenge. In that introductory paragraph, the
Complainants state, in a general manner their concer ns over export-related rest rictions alleged to be
imposed by China through measures concerned with those nine materials. Then, in each of the
following three sections in their panel requests, the Complainants submit the legal description or
framework of their challenge against the specific measures imposing generally "export quotas",
"export duties" and "additional restraints imposed on exportation", alleged to be maintained by China
on (some of) those nine products. Accordingly, the Panel understands that each of the listed measures
identified in each of the three sections of the panel requests will cover one, some or all of the nine
materials mentioned in the introductory paragraph of the panel requests.
23. The Panel considers that the Complainants could also have identified for the nine materials at
issue, each and every potentially rele vant tariff line, or they could have stated that their claims target
"all" tariff lines between X,Y or Z HS lines concerned by each of the nine products identified. But the
Complainants chose to only announce the broad scope of their challenge and seem to have wanted to
provide more specificity only in the following thr ee sections of their panel requests. Indeed, the
following three sections of each panel request then list the specific measures covering, one or more of
the nine materials listed in the introductory paragraph.
24. In the Panel's view, the introductory paragraph offers a general presentation of the dispute and
the more specific elements of the challenge are incl uded in Sections I, II and III of the panel requests.
If the first general listing of products mentioned in the introductory paragraph does not fully inform
China of the exact scope of the products concer ned by the dispute, the measures listed in the
following sections - the Chinese legal instruments - are alleged to provide more specificity. In other
words, each of these Chinese legal instruments has a specific product application that covers one,
some or all of the products listed in the introductory paragraph of the panel request.29
25. The Panel, therefore, rejects China's claim that the terms of reference of this Panel are limited
to the measures represented by the tariff lines listed in the footnotes to the products mentioned in the
introductory paragraph of the Complainants' panel requests.
26. The Panel agrees with China that the claims n eed to be as clear as possible and as early as
possible in the panel process so as to allow China to defend itself fully. The Panel is also aware that
pursuant to Article 19 of the DSU, it can u ltimately only make recommendations on specific
provisions of specific measures and therefore may need to consider and examine the specific situation
of specific challenged instruments as they apply to specific products or group of products.

25 China's request, paras. 13-19. See also, China's comments, para. 31.
26 By "materials", the Panel also understands "products".
27 As noted in para. 29 of China's request, the Co mplainant's panel requests are nearly identical.
Therefore, any reference to the panel requests refer to any of the documents referred to in footnote 2.
28 See footnotes one to nine of the panel requests.
29 Appellate Body Report on EC – Chicken Cuts, para. 165-66.

27. Even if, as noted above, the Complainants' panel requests could have been more detailed, in
that the Complainants could have identified the measures and the materials they referred to
30, the
Panel is of the view that when it is requested to ass ess the clarity of a panel request, with reference to
the requirements of Article 6.2 of the DSU, it has to consider the panel request as a whole 31 and as
part of an integrated and evolving panel process. The Panel believes that there is a possibility that the
parameters of some challenged measures will be clarified by the Complainants' first written
submissions. Therefore, in the Panel's view, the overall sufficiency of a panel request and whether the
right of the respondent to defend itself adequate ly was or was not prejudiced, may be better
determined in light of the Parties' first written submissions.
32
28. In that context, the Panel notes in particular the undertaking by a representative of the
Complainants that this preliminary procedure is somewhat premature and that all possible concerns
over the undefined scope of their challenge will be answered once China and the Panel receive the
Complainants' first written submissions.
29. In light of the above, the Panel decides to reserve its decision on this part of China's request
and to rule on it at a later stage once it has examined the Parties' first written submissions and is able
to take full account of China's ability to defend itsel f. In that context, the Panel notes that it has
provided China with a long period of time to res pond to the Complainants' first written submissions.
The Panel is not saying that all flaws in a pane l request can be cured by a first written submission
33
but rather that after the parties' first written s ubmission, the Panel will be in a better position to
determine whether China has suffered any prejud ice by the Complainants' panel requests while
ensuring that this panel process is not unduly delayed.
4. The specific problem of the typographica l error of the HS line regarding the zinc
30. China requested that the Panel exclude from its terms of reference any claims concerning two
tariff lines erroneously identified by the Complainants in the context of zinc. 34 As soon as they
became aware of this error, the Complainants admi tted that these two tariff lines were typographical
errors and referred (the Panel and the complainants) to the correct tariff lines.35 In response to a Panel
question and at the request of the Panel, China accepted the correction of these two typographical
errors and it made clear that China's understanding of the panel requests includes the "corrected tariff
lines".36
31. In light of China's response, the Panel will al so read the panel requests as including the two
corrected tariff lines.

30 Appellate Body Report on EC – Chicken Cuts , para. 165-66. However, in paragraph 167 of this
same ruling, the Appellate Body recognized that under some circumstances it may be necessary to identify the
products at issue.
31 Appellate Body Report on Korea – Dairy, paras. 124-127. See also: Appellate Body Report on US –
Carbon Steel, para. 127.
32 Appellate Body Report on US – Carbon Steel, para. 127.
33 Appellate Body Report on EC – Bananas III, para. 143.
35 Footnote 15 and para. 18 of the Joint Response. During the hearing for the preliminary ruling
request, a representative of the Complainants admitted that they b ecame aware of it in the course of the
proceedings.
36 China's answer to the Panel's questions after the preliminary ruling hearing, paras. 4-5.

T
HE REQUIREMENT TO PROVIDE A BRIEF SUMM ARY OF THE LEGAL BASIS OF THE COMPLAINT
SUFFICIENT TO PRESENT THE PRO BLEM CLEARLY WITH REGARD TO SECTION III OF THE PANEL
REQUESTS
32. China submits that the Section III of the Comp lainants' panel requests do not provide a brief
summary of the legal basis of the complaint suffici ent to present the problem clearly, contrary to the
requirements of Article 6.2 of the DSU. For China, this is because in Section III there is no clear
connection between the listed measures, the list of WTO provisions claimed to be violated and the
narrative paragraphs that describe generally how "som e" of the listed measures are inconsistent with
"some" WTO disciplines.37 China claims that this lack of cl arity is exacerbated by the Complainants'
subsequent contradictory argument that "all" 37 listed measures are inconsistent with "all" 13 listed
WTO obligations. According to China, such a "double listing" approach is contrary to the
requirement of Article 6.2 of the DSU to provide a brief summary of the legal basis of the complaint
sufficient to present the problem clearly.38
33. In the Panel's view, whether the mere listing of articles of a particular WTO agreement is
sufficient to comply with the requirement to provi de a summary of the legal basis of the complaint 39,
is to be determined on a case-by-case basis. 40 In some instances, especially if a provision contains
multiple obligations within it, a mere listing would not be sufficient to satisfy the obligation in
Article 6.2.41
34. In that context, the Panel notes in particular that:
"a 'brief summary of the legal basis of the complaint' required by Article 6.2 of the
DSU 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. This brief
summary must be sufficient to present the problem clearly. Taken together [with the
identification of the measures at issue], these different aspects of a panel request
serve not only to define the scope of a dispute, but also to meet the due process
requirements."
42
35. The Panel recalls that Section III of the pa nel requests, entitled "Additional Restraints
Imposed on Exportation", comprises three sub-parts: fi rst, it contains narrative paragraphs, then a list
of measures and, finally, the WTO provisions that the Complainants consider are infringed by the
listed measures. The narrative paragraphs descr ibe generally the types of measures that the
Complainants are challenging and points to some of their WTO inconsistency. In the Panel's view,
these narrative paragraphs aim at explaining su ccinctly how and why some of the challenged
measures at issue are inconsistent with some of the WTO principles. Then, the listed legislative
instruments identified by bullet points appear to be the more specific measures alluded to in the
narrative paragraphs; the final part provides a list of all WTO obligations that would be violated by
one or all of the listed measure.

37 For instance, see China's request, paras. 48-58.
38 For instance, see China's comments, paras. 48-63.
39 Appellate Body Report on Korea – Diary, para. 124.
40 Appellate Body Report on Korea – Diary, para. 127.
41 Appellate Body Report on Korea – Dairy, para. 124.
42 Appellate Body Report on EC – Selected Customs Matters, para. 130.

36. The Panel agrees with China that the Compla inants' argument that all the listed measures
violate all the listed WTO obligations seems to cont radict the substance of the narrative paragraphs
that some (groups of) measures are inconsistent with some of the listed WTO obligations.
37. However, as noted before, the Panel is aware th at WTO panel proceedings are an integrated
and evolving process and the sufficiency of a panel re quest is to be determined by taking into account
the Parties’ first written submissions in order to assess fully whether the ability of the respondent to
defend itself was prejudiced.
43
38. In that context, the Panel notes, in particul ar, the undertaking from a representative of the
Complainants that this preliminary procedure is somewhat premature and that all possible concerns
over the undefined scope of their challenge will be answered once China and the Panel receive the
Complainants' first written submissions.
39. In light of the above, the Panel decides to reserve its decision on this part of China's request
and to rule on it at a later stage, once it has examined the Parties' first written submissions and is more
able to take fully into account Chin a's ability to defend itself. In that context, the Panel notes that it
has provided China with an extensive period of time to respond to the Complainants' first written
submissions. The Panel has already noted that it is not saying that all flaws in a panel request can be
cured by a first written submission44 but rather that after the parties' first written submission, the Panel
will be in a better position to determine whet her China has suffered any prejudiced by the
Complainants' panel requests while ensuring that this panel process is not unduly delayed.
THE COMPLAINANTS' WITHDRAWAL OF THEIR CLAIMS UNDER PARAGRAPH 342 OF THE REPORT
OF THE WORKING PARTY ON THE ACCESSION OF CHINA
40. The Panel notes that the Complainants have in formed China and the Panel that they do not
intend to pursue any claims regarding China's ob ligations under paragraph 342 of the Working Party
Report on the Accession of China and referred to in S ection II of their panel request via Article 1.2 of
China's accession Protocol.45
41. Therefore, the Panel rules that these specific claims fall outside the Panel's terms of reference.
THE REFERENCE TO A PRELIMINARY RULING FROM ANOTHER PENDING CASE
42. The Complainants submitted in support of thei r allegations, a copy of a preliminary ruling
issued by another panel in an ongoing case. Korea, as the respondent in this other dispute and a Third
Party in the present one, requests the Panel to re frain from taking into account in any way this
preliminary ruling. China shares Korea's concerns.46
43. The Panel notes that this preliminary ruling w as not circulated to WTO Members and is not
yet an official WTO document within the meaning of the Decision on Derestriction. 47 The Panel
notes also that WTO dispute proceedings are genera lly understood to be confidential unless otherwise
determined by panels with the agreement of the parties.

43 Appellate Body Report on US – Carbon Steel, para. 127.
44 Appellate Body Report on EC – Bananas III, para. 143.
45 Joint Response, para. 35.
46 China's answer to the Panel's questions after the preliminary ruling hearing, para. 13.
47 Procedures for the Circulation and Derestriction of WTO Documents, WT/L/452, adopted on
14 May 2002.

44. In light of this, the Panel will not consider th is preliminary ruling issued in another ongoing
panel process. The Panel also requests the Parties to omit any further reference to this preliminary
ruling or any other document illustrating panel deliberations from pending cases.
C
ONCLUSION
45. The Panel has decided to issue its preliminary ruling in two stages. 48 In issuing the ruling in
this manner, the Panel has kept in mind that acco rding to Article 3.10 of the DSU, the Parties are
required to engage in dispute settlement procedures "in good faith in an effort to resolve the dispute".
46. The Panel has ruled on issues which are relevant to its own jurisdiction and that could not be
clarified by the parties' first written submission or at any other stage during this panel process. The
Panel reserves its decisions on China's request that the Complainants' panel requests do not
sufficiently identify the product coverage of each of the listed measure and do not comply with the
requirements of Article 6.2 of the DSU. The Panel expects that the Complainants will clarify in their
first written submissions which of the listed meas ures (or group thereof) for which specific products
(or group thereof) are inconsistent with which specific WTO obligations among those listed in the last
part of Section III of their panel requests. In ruling this way, the Panel wants to ensure that China is
able to defend itself appropriately and that this panel process is not unduly delayed.
47. The Panel reserves its decision to develop its reasoning regarding each aspect of its
preliminary ruling in a subsequent ruling or in its final report.