UNITED STATES – MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA
Document: Request for the Establishment of a Panel by China
Date: 11 December 2009
Document codes: WT/DS399/2
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

Request for the Establishment of a Panel by China

 The following communication, dated 9 December 2009, from the delegation of China to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 On 14 September 2009, China requested consultations with the United States ("US") pursuant
to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes ("DSU"), Article XXIII:1 of the General Agreement on Tariffs and Trade ("GATT 1994"),
and Article 14 of the Agreement on Safeguards with regard to certain measures taken by the US
affecting the import of certain passenger vehicle a nd light truck tires from th e People's Republic of
China ("China"). This request for consultations was circulated as document –
– dated 16 September 2009.

 Consultations were held on 9 November 2009 in Geneva, pursuant to each of the above-
referenced provisions and agreements, with a view toward reaching a mutually satisfactory solution.
Although these consultations clarified a few issues relating to this ma tter, the consultations failed to
settle the dispute.

 Therefore, China respectfully requests pur suant to Articles 4.7 and 6 of the DSU,
Article XXIII:2 of the GATT 1994, and Article 14 of the Agreement on Safeguards that the Dispute
Settlement Body ("DSB") establish a Panel to examine this matter.

 This request concerns the restrictions annou nced by the US on imports of certain passenger
vehicle and light truck tires from China, and the legal basis for those restrictions. These restrictions
take the form of substantially higher tariffs over th e next three years well in excess of the tariff rates
permitted under US international obligations to China. These restrictions were announced on
11 September 2009 as a presidential decision following an investigation pursuant to section 421 of the
Trade Act of 1974, 19 U.S.C. 2451 et seq. The repor t by the International Trade Commission issued
as part of this investigation can be found at Certain Passenger Vehicle and Light Truck Tires from
China, Inv. No. TA-421-7, USITC Pub. No. 4085 (July 2009). The decision by the President can be
found in two documents: first, Presidential Determination 2009-28 , which was published at 74 Fed.
Reg. 47433 (16 September 2009); and second, Proclamation 8414, which was published at 74 Fed.
Reg. 47861 (17 September 2009). Pursuant to this decision by President Obama, these measures took
effect on 26 September 2009, and continue in effect today. This request includes both the higher
tariffs that have been announced, and any other measures the US has announced or may announce to
implement this decision.

 China considers that these higher tariffs, not ha ving been justified as emergency action under
relevant WTO rules, are inconsistent with Ar ticle I:1 of the GATT 1994, because the US does not
accord the same treatment it grants to passenger and light truck tires originating in other countries to
the like products originating in Ch ina, and Article II of GATT 1994, since these higher tariffs consist
of unjustified modifications of US concessions thereunder.

 The US has not even attempted to justify these restrictions as a general safeguard action
pursuant to Article XIX of GATT 1994 and the Agreement on Safeguards . The only justification
offered was that these measures have been imposed under the Protocol on the Accession of the
People's Republic of China (the "Protocol of Accession"). Chin a believes these restrictions, and the
basis under US law for imposing these restrictions, ar e inconsistent with US obligations under the
Protocol of Accession, in particular:

(1) The US statute authorizing these restrictions, 19 U.S.C. 2451, is inconsistent on its
face with Article 16 of the Protocol of Accession in that the US statute impermissibly
weakens the standard of "significant cause" by imposing a definition of the term that
contradicts Article 16.4 of the Protocol of Accession.
(2) The restrictions imposed pursuant to 19 U. S.C. 2451 in this particular case are
inconsistent with the following provisions of the Protocol of Accession:
• Articles 16.1 and 16.4, because imports from China in this case were not "in
such increased quantities" and were not "increasing rapidly," and instead had
begun to decline in response to changing US demand conditions.
• Articles 16.1 and 16.4, because imports from China in this case were not a
"significant cause" of material injury or threat of material injury, and are
being improperly blamed by the US for the condition of the industry that, in
fact, reflected other factors in the market.
• Article 16.3, because the restrictions in this case are not necessary, and are
being imposed beyond the "extent necessary to prevent or remedy" any
alleged market disruption, and should not have been set at the high tariff
levels being imposed.
• Article 16.6, because the restrictions in this case are being imposed for a
period of time longer than "necessary to prevent or remedy" any alleged
market disruption, and need not have been imposed for three years.
 China requests that the Panel be established with the standard terms of reference, in
accordance with Article 7.1 of the DSU.

 China asks that this request for the establishm ent of a panel be placed on the agenda for the
next meeting of the DSB, which is scheduled to take place on 21 December 2009.