UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
Document: Notification of an Appeal by China under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 20(1) of the Working Procedures for Appellate Review
Date: 27 May 2011
Document codes: WT/DS399/6
Complainant: China
Respondent: U.S.
Third parties: EU, Japan, Taiwan, Turkey, Vietnam
Dispute stage: Appellate Body
Agreements cited: Art. 16.1, 16.3, 16.4, 16.6  Protocol of AccessionArt. I:1, II, XIX  GATT 1994  Safeguards

UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER
VEHICLE AND LIGHT TRUCK TYRES FROM CHINA

Notification of an Appeal by China

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

 The following notification, dated 24 May 201 1, from the Delegation of China, is being
circulated to Members.
Governing the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate
Review, the People’s Republic of China hereby notifies the Dispute Settlement Body of its decision to
appeal to the Appellate Body certain issues of law and legal interpretation covered in the Panel Report
in (WT/DS399) ("Panel Report"). Pursuant to Rule 20(1) of the Working Procedures for
Appellate Review , China is simultaneously filing this Noti ce of Appeal with the Appellate Body
Secretariat.
2. The measure at issue is a transitional product- specific safeguard measure under Paragraph 16
of the Protocol of Accession that has been applied by the United States on imports of certain
passenger vehicle and light truck tyres from China pursuant to Section 421 of the Trade Act of 1974.
The U.S. International Trade Commission ("USITC") determined that there was market disruption as
a result of rapidly increasing imports of subject tyres from China that were a significant cause of
material injury to the domestic industry. The USIT C made this determination in its investigation of
Certain Passenger Vehicle and Light Truck Tires from China (Inv. No. TA-421-7).
3. The issues that China raises in this appeal relate to the Pane l’s findings and conclusions in
respect of the consistency of the challenged measures with the Protocol on the Accession of the
People’s Republic of China ("the Protocol") and the Understanding on Rules and Procedures
Governing the Settlement of Disputes ("DSU").
4. For the reasons stated below, and as will be de veloped in its submissions to the Appellate
Body, China appeals the following errors of law and legal interpretation contained in the Panel Report
and requests the Appellate Body to reverse or m odify the related findings and conclusions of the

Panel. In doing so, China makes five specific cl aims, delineated below and to be detailed in its
submissions to the Appellate Body.
1
5. First, China seeks review by the Appellate Body of the Panel’s interpretation of
Paragraph 16.4 of the Protocol as it relates to th e USITC’s determination that imports from China
were "increasing rapidly" within the meaning of th at provision. The Panel’s legal interpretation erred
by not giving appropriate meani ng to the phrase "increasing rapidly." 2 The Panel’s errors of law and
legal interpretation include:
(a) The Panel erred in interpreting the term "increasing" from Paragraph 16.4 as meaning
nothing more than the term "increased" from Paragraph 16.1 and failing to otherwise
address the analytically appropriate period of time in a meaningful way.3

(b) The Panel erred in interpreting the term "r apidly" from Paragraph 16.4 as meaning "with
great speed" but not requiring an assessment of the rate of increase in imports or any
other alternative metric to give meaning to the idea of great speed.4

(c) The Panel erred in interpreting the phrase "increasing rapidly" from Paragraph 16.4 as not
requiring the most recent rate of increase in im ports to be put in context relative to prior
rates of increase earlier in the period, or in any other context, that would distinguish
imports that are "increasing rapidly" from those that merely "increased" or are merely
"increasing."
5

6. Second, China seeks review by the Appella te Body of the Panel’s application of
Paragraph 16.4 of the Protocol as it relates to th e USITC’s determination that imports from China
were "increasing rapidly" within the meaning of th at provision. The Panel’s application of the legal
standard erred by upholding the USITC finding that imports from China were "increasing rapidly." 6
The Panel’s errors of law and legal application include:
(a) The Panel erred in upholding the USITC determination even though the USITC assessed
the period as a whole, instead of the most recent period.7 Rather than requiring a focus on
the most recent period, as is necessary to determine properly whether subject imports are
"increasing rapidly," the Panel approved a temporal assessment that stressed the entire
five-year period as a whole.

(b) The Panel erred in upholding the USITC dete rmination even though the USITC failed to
assess properly the rate of increase in imports, particularly that of the most recent year.
8
Instead of determining whether this rate constituted a "rapid" increase, the Panel
dismissed the notion that the USITC was requi red to assess the rate of increase in subject
imports when determining whether they were "increasing rapidly."

1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review this Notice of Appeal
includes citations to the paragraphs of the Panel Report containing the alleged errors. These citations, however,
do not prejudice to the ability of China to refer to other paragraphs of the Panel Report in its appeal.
2 Panel Report, para. 7.110.
3 Panel Report, paras. 7.90-7.91.
4 Panel Report, para. 7.92.
5 Panel Report, paras. 7.90-7.93.
6 Panel Report, para. 7.110.
7 Panel Report, paras. 7.83-7.85, 7.96-7.100, 7.104.
8 Panel Report, paras. 7.92-7.93.

(c) The Panel erred in upholding the USITC dete rmination even though the USITC failed to
put the most recent rate of increase in proper context with prior rates of increases.9 To the
extent the Panel did assess the most recent rate of increase in context, the Panel erred in
going beyond the USITC determination as written and in finding that a lower rate of
increase constituted "increasing rapidly" b ecause it came "in addition" to prior
increases.
10

7. Third, China seeks review by the Appellate Body of the Panel’s interpretation of
Paragraph 16.4 of the Protocol as it relates to th e USITC’s determination that imports from China
were a "significant cause" within the meaning of that provision. The Panel’s legal interpretation erred
by not giving proper meaning to the term "signifi cant" from the phrase "significant cause" and failing
to distinguish a "significant cause" from a "cause."
11 The Panel’s errors of law and legal
interpretation include:
(a) The Panel erred in offering a definition of the term "significant" but not otherwise
providing an interpretation of what "significan t" meant in application, or explaining how
a "significant cause" differed from a "cause."12

(b) The Panel erred in interpreting the phrase "significant cause" as not requiring a conditions
of competition analysis that meaningfully assesses whether subject imports are capable of
being a "significant cause" of injury and not simply whether they are capable of being a
"cause."
13

(c) The Panel erred in interpreting the phrase "significant cause" as not requiring a
coincidence analysis that assesses whether correlation goes beyond mere overall
correlation, and instead corresponds in the degrees of relative magnitude as well as in a
year-by-year assessment.14

(d) The Panel erred in interpreting the phrase "significant cause" as not requiring analysis that
ensures injury caused by other factors is not being attributed to the significance, or
degree, of the injury allegedly caused by subject imports.15

8. Fourth, China seeks review by the Appellate Body of the Panel’s application of
Paragraph 16.4 of the Protocol as it relates to th e USITC’s determination that imports from China
were a "significant cause" within the meaning of that provision. The Panel’s application of the legal
standard erred by upholding the USITC finding that imports from China were a "significant cause" of
injury even though the USITC’s and Panel never distinguished a "cause" from a "significant cause"
nor modified their causal analyses to conform to this distinct standard.
16 The Panel’s errors of law
and legal application include:

9 Panel Report, paras. 7.92-7.93.
10 Panel Report, para. 7.93.
11 Panel Report, para. 7.379.
12 Panel Report, paras. 7.158, 7.139-7.146, 7.170-7.178.
13 Panel Report, paras. 7.169-170.
14 Panel Report, paras. 7.228-7.234.
15 Panel Report, paras. 7.175-7.177.
16 Panel Report, para. 7.379.

(a) The Panel erred in upholding the USITC determination even though the USITC failed to
conduct the conditions of competition analys is with care sufficient to assess whether
subject imports were in fact capable of be ing a "significant cause" of injury and not
merely a "cause."
17

(b) The Panel erred in upholding the USITC dete rmination even though the USITC failed to
conduct a coincidence analysis that asse ssed whether correlation went beyond mere
general overall correlation and instead corres ponded in the degrees of relative magnitude
and in a year-by-year assessment that would be necessary to establish a "significant
cause."
18

(c) The Panel erred in upholding the USITC dete rmination even though the USITC failed to
analyze other causes properly to ensure that injury caused by these other factors was not
being improperly attributed to the significan ce, or degree, of the injury allegedly caused
by subject imports.19

(d) The Panel erred in upholding the USITC dete rmination even though the USITC failed to
undertake an integrated analysis of all the causation factors to consider their collective
implication for the existence of a sufficie nt link of "significant cause" between those
imports that are "increasing rapidly" at th e end of the period and the condition of the
domestic industry.20

9. Fifth, China seeks review by the Appellate Body under Article 11 of the DSU of how the
Panel applied the "significant cause" standard of Paragraph 16.4 of the Protocol. The Panel acted
inconsistently with Article 11 of the DSU in con ducting its analysis of whether imports from China
were a "significant cause" of injury by failing to conduct an objective assessment of the matter. The
Panel’s errors of law and legal application under Article 11 include:
(a) The Panel erred in failing to consider the to tality of the evidence. Regarding causation,
the Panel approached individual arguments and pieces of evidence in isolation instead of
addressing the ways in which the arguments and supporting evidence interrelated.

(b) The Panel erred in failing to conduct a balan ced assessment of the evidence. Regarding
causation, the Panel went out of its way to c ite evidence the USITC majority did not rely
on from page III-16, footnote 62 of the USITC determination, yet ignored the evidence in
the very same footnote that was not consistent with the USITC conclusion.21

(c) The Panel erred in failing to focus on the US ITC’s decision as written. In upholding the
USITC determination on causation, the Pane l repeatedly went beyond the rationale
contained in the determination itself and relied upon post hoc clarifications by the United
States and the Panel’s own new analysis of the issues.
22

(d) The Panel erred in failing to consider all the ar guments of the parties. The Panel failed to
consider China’s arguments about how other causes interacted with each other and had a
broader cumulative effect,
23 how the more detailed data on the different suppliers to the

17 Panel Report, paras. 7.209-7.216.
18 Panel Report, paras. 7.234-7.238; 7.244-7.245; 7.254-7.260.
19 Panel Report, paras. 7.285-7.322; 7.333-7.345; 7.348-7.350; 7.353-7.354; and 7.364-7.367.
20 Panel Report, paras. 7.376-7.378.
21 Panel Report, paras. 7.301, 7.305, 7.307.
22 Panel Report, paras. 7.195, 7.301, 7.305, 7.336, 7.354, and 7.366-7.367.
23 Panel Report, paras. 7.376-7.377.

aftermarket affected attenuated competition,24 and how it was necessary to distinguish the
Protocol’s "significant cause" requirement from the mere "cause" requirement of other
WTO agreements.25

10. China respectfully requests that the Appellate Body reverse the findings and conclusions of
the Panel that are based on the errors of law and le gal interpretation identified above. With respect to
the claims of error iden tified in paragraphs 6 and 8 above, China respectfully requests that the
Appellate Body complete the analysis to conclude that the challenged measures were inconsistent
with the obligations of the United States under the covered agreements.