CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS
Document: Request for the Establishment of a Panel by the United States
Date: 9 November 2009
Document codes: WT/DS394/7
Complainant: U.S.
Respondent: China
Third parties: Argentina, Brazil, Canada, Chile, Colombia, Ecuador, EU, India, Japan, South Korea, Mexico, Norway, Taiwan, Turkey, Saudi Arabia
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

Request for the Establishment of a Panel by the United States

 The following communication, dated 4 Novemb er 2009, from the delegation of the United
States to the Chairman of the Dispute Settlement Bo dy, is circulated pursuant to Article 6.2 of the
DSU.

 On 23 June 2009, the United States requested consultations with the Government of the
People's Republic of China ("China") pursuant to Articles 1 and 4 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes ("DSU") and Article XXII of the General
Agreement on Tariffs and Trade 1994 ("GATT 1994") with respect to China's restraints on the
exportation from China of various forms of bauxite
1, coke 2, fluorspar 3, magnesium 4, manganese 5,
silicon carbide6, silicon metal 7, yellow phosphorus 8, and zinc 9 (the "materials"). The United States

1 Bauxite includes but is not limited to items falling under the following ten-digit Chinese Commodity
Codes, as listed in Attachment 1 of Notice "2009 Ex port Licensing Management Commodities List" (Ministry
of Commerce and General Administration of Customs, Notice (2008) No. 100, January 1, 2009) ("2009 Export
Licensing List") and/or the following eight-digit HS numbers as listed in Table 7 of Notice Regarding the 2009
Tariff Implementation Program (State Council Tariff Policy Commission, shuiweihui (2008) No. 40, January 1,
2009) ("2009 Export Duty List"): 2508300000/25083000, 2606000000/26060000, 26204000.
2 Coke includes but is not limited to items falling under the following ten-digit Chinese Commodity
Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export
Duty List: 2704001000/27040010.
3 Fluorspar includes but is not limited to items falling under the following ten-digit Chinese
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the
2009 Export Duty List: 2529210000/25292100, 2529220000/25292200.
4 Magnesium includes but is not limited to items falling under the following ten-digit Chinese
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the
2009 Export Duty List: 81041100, 81041900, 81042000.
5 Manganese includes but is not limited to items falling under the following ten-digit Chinese
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the
2009 Export Duty List: 26020000, 8111001010/81110010, 8111001090/81110010.
6 Silicon carbide includes but is not limited to items falling under the following ten-digit Chinese
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the
2009 Export Duty List: 2849200000, 3824909910.
7 Silicon metal includes but is not limited to items falling under the following ten-digit Chinese
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the
2009 Export Duty List: 28046900.
8 Yellow phosphorus includes but is not limited to items falling under the following ten-digit Chinese
Commodity Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the
2009 Export Duty List: 28047010.

held consultations with China on 31 July 2009, and 1-2 September 2009. Those consultations
unfortunately did not resolve the dispute.

I. EXPORT QUOTAS
 China subjects the exportation of bauxite, c oke, fluorspar, silicon carbide, and zinc to
quantitative restrictions such as quotas.

 The United States understands that these Chinese measures are reflected in, among others:

• Foreign Trade Law of the People's Republic of China (adopted at the 8
th Session of
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004,
promulgated on July 1, 2004)

• Regulation of the People's Republic of China on the Administration of the Import and
Export of Goods (passed at the forty-sixth executive meeting of the State Council on
October 31, 2001, January 1, 2002)

• Measures for the Administration of License for the Export of Goods (Order of the
Ministry of Commerce (2008) No. 11, July 1, 2008)

• Measures for the Administration of E xport Commodities Quotas (Order of the
Ministry of Foreign Trade and Economic Cooperation No. 12, adopted on December
20, 2001, January 1, 2002)

• Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001,
January 1, 2002)

• Measures for the Administration of the Organs for Issuing the Licenses of Import and
Export Commodities (Ministry of Fore ign Trade and Econom ic Cooperation,
waijingmaopeiguanhanzi (1999) No. 68, September 21, 1999)

• Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of
Foreign Trade and Economic Cooperation, November 8, 2001)

• Working Rules on Issuing Export Licenses (Ministry of Commerce, shangpeifa
(2008) No. 398, October 9, 2008)

• Rules on the Administration of Import and Export License Certificates (Ministry of
Foreign Trade and Economic Cooperati on, waijingmaopeizi (1999) No. 87,
December 6, 1999)

• Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial
Products (Ministry of Commerce, Notice (2008) No. 83, January 1, 2009)

9 Zinc includes but is not limited to items falling under the following ten-digit Chinese Commodity
Codes as listed in the 2009 Export Licensing List and/or the eight-digit HS numbers as listed in the 2009 Export
Duty List: 2608000001/26080000, 2608000090/26080000, 790111111000/790111100, 7901119000/79011190,
7901120000/79011200, 7901200000/79012000, 79020000, 26201100, 26201900.

• Notice Regarding Passing Down the 2009 First Batch Regular Trade Coke Export
Quota (Ministry of Commerce, shangmaohan (2008) No. 140, January 1, 2009)

• 2009 Coke Export Quota Declaration Cond itions and Declaration Procedures
(Ministry of Commerce, Notice (2008) No. 76, October 13, 2008)

• Notice "2009 Export Licensing Management Commodities List" (Ministry of
Commerce and General Administration of Customs, Notice (2008) No. 100, January
1, 2009)

• Announcement of the Ministry of Commer ce Issuing the "2009 Graded License-
Issuing List of Commodities Subject to Export License Administration" (Ministry of
Commerce, Notice (2008) No. 124, January 1, 2009)

• Announcement Regarding Printing "Working Rules on Issuing Export Licenses"
(Ministry of Commerce, shangpeifa (2008) No. 398, October 9, 2008)

• Announcement of Ministry of Commerce on Matters regarding the First Bidding for
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement
(2008) No. 85, October 30, 2008)

• Announcement of Ministry of Commerce on the Notice for the Second Invitation for
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce,
Announcement (2009) No. 42, June 9, 2009)

• Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products"
(Ministry of Foreign Trade and Economic Cooperation, issued on November 8, 2001)

• Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for
Export Commodity Quotas, December 11, 2008)

• Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export
Commodity Quotas, December 10, 2008)

• Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export
Commodity Quotas, December 11, 2008)

• Announcement on the Second Invitation for the Bidding of Select Industrial Product
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity
Quotas, September 16, 2009)

• Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for
bid for Export Commodity Quotas, September 16, 2009)

• Notice Regarding Passing Down the 2009 Second Batch Regular Trade Coke and
Rare Earth Export Quota (Ministry of Commerce, shangzihan (2009) No. 73,
September 8, 2009)

• Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural
and Industrial Products (Ministry of Commerce, Notice (2009) No. 88, October 29,
2009)

• as well as any amendments or extensions; related measures; replacement measures;
renewal measures; and implementing measures.

 The United States considers that these measures are inconsistent with Article XI:1 of the
GATT 1994 as well as China's obligations under the provi sions of paragraph 1.2 of Part I of the
Protocol on the Accession of the People's Republic of China (WT/L/432) ("Accession Protocol"),
which incorporates commitments in paragraphs 162 and 165 of the Working Party Report on the
Accession of China (WT/MIN(01)/3) ("Working Party Report").

II. EXPORT DUTIES
 China subjects the materials to export duties.

 China imposes export duty rates, "temporary" expo rt duty rates, and/or "special" export duty
rates of various magnitudes on bauxite, coke, fluorspar, magnesium, manganese, silicon metal, yellow
phosphorus, and zinc. These export duties are imposed either on materials that are not listed in Annex
6 of the Accession Protocol, or on materials that are listed in Annex 6 of the Accession Protocol, but
at rates that exceed the maximum rates designated in Annex 6.

 In addition, as discussed in Sec tion III below, China allocates the quotas
10 imposed on the
exportation of bauxite, fluorspar, and silicon carbide through a bidding system. In connection with
the administration of this bidding system, China requires enterprises to pay a charge in order to export
these materials. However, bauxite, fluorspar, a nd silicon carbide are not listed in Annex 6 of the
Accession Protocol.

 The United States understands that these Chinese measures are reflected in, among others:

• Customs Law of the People's Republic of China (adopted at the 19
th Meeting of the
Standing Committee of the Sixth Nationa l People's Congress on January 22, 1987,
amended July 8, 2000)

• Regulations of the People's Republic of Ch ina on Import and Export Duties (Order of
the State Council (2003) No. 392, adopted at the 26 th executive meeting of the State
Council on October 29, 2003, January 1, 2004)

• Notice Regarding the 2009 Tariff Implemen tation Program (State Council Tariff
Policy Commission, shuiweihui (2008) No. 40, January 1, 2009)

• Foreign Trade Law of the People's Republic of China (adopted at the 8 th Session of
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004,
promulgated on July 1, 2004)

• Regulation of the People's Republic of China on the Administration of the Import and
Export of Goods (passed at the forty-sixth executive meeting of the State Council on
October 31, 2001, January 1, 2002)

• Measures for the Administration of License for the Export of Goods (Order of the
Ministry of Commerce (2008) No. 11, July 1, 2008)

10 Discussed in Section I above.

• Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001,
January 1, 2002)

• Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of
Foreign Trade and Economic Cooperation, November 8, 2001)

• Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial
Products (Ministry of Commerce, Notice (2008) No. 83, January 1, 2009)

• Notice "2009 Export Licensing Management Commodities List" (Ministry of
Commerce and General Administration of Customs, Notice (2008) No. 100, January
1, 2009)

• Announcement of Ministry of Commerce on Matters regarding the First Bidding for
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement
(2008) No. 85, October 30, 2008)

• Announcement of Ministry of Commerce on the Notice for the Second Invitation for
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce,
Announcement (2009) No. 42, June 9, 2009)

• Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products"
(Ministry of Foreign Trade and Economic Cooperation, issued on November 8, 2001)

• Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for
Export Commodity Quotas, December 11, 2008)

• Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export
Commodity Quotas, December 10, 2008)

• Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export
Commodity Quotas, December 11, 2008)

• Announcement on the Second Invitation for the Bidding of Select Industrial Product
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity
Quotas, September 16, 2009)

• Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for
bid for Export Commodity Quotas, September 16, 2009)

• Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural
and Industrial Products (Ministry of Commerce, Notice (2009) No. 88, October 29,
2009)

• as well as any amendments or extensions; related measures; replacement measures;
renewal measures; and implementing measures.

 The United States considers that these measures are inconsistent with paragraph 11.3 of Part I
of the Accession Protocol, as well as China's obligations under the provisions of paragraph 1.2 of Part

I of the Accession Protocol, which incorporates commi tments referred to in paragraph 342 of the
Working Party Report.

III. ADDITIONAL RESTRAINTS IMPOSED ON EXPORTATION
 In addition to the export quotas and export du ties discussed in Sections I and II above, China
imposes other restraints on the exportation of the mate rials, administers its measures in a manner that
is not uniform, impartial, and reasonable, impo ses excessive fees and formalities on exportation, and
does not publish certain measures pertaining to requirements, restrictions, or prohibitions on exports.

 China administers the export quotas imposed on bauxite, coke, fluorspar, silicon carbide, and
zinc discussed in Section I above, through its mi nistries and other organizations under the State
Council as well as chambers of commerce and industry associations, in a manner that restricts exports
and is not uniform, impartial and reasonable. In connection with the administration of the quotas for
these materials, China imposes restrictions on the right of Chinese enterprises as well as foreign
enterprises and individuals to export.

 China allocates the export quotas imposed on bauxite, fluorspar, and silicon carbide discussed
in Section I above, through a bidding system. Chin a administers the requirements and procedures for
this bidding system through its ministries and ot her organizations under the State Council as well as
chambers of commerce and industry associations, in a manner that restricts exports and is not
uniform, impartial and reasonable. In connection with the administration of this bidding system,
China also requires foreign-invest ed enterprises to satisfy certain criteria in order to export these
materials that Chinese enterprises need not satisfy. Further, China requires enterprises to pay a charge
in order to export these materials that is excessive and imposes excessive formalities on the
exportation of these materials.

 China does not publish the amount for the ex port quota for zinc or any conditions or
procedures for applying entities to qualify to export zinc.

 In addition, China restricts the exportation of bauxite, coke, fluorspar, manganese, silicon
carbide, and zinc by subjecting these materials to non-automatic licensing. China imposes the non-
automatic export licensing for bauxite, coke, fluor spar, silicon carbide, and zinc in connection with
the administration of the export quotas discussed in Section I, as an additional restraint on the
exportation of those materials.

 China also imposes quantitative r estrictions on the exportation of the materials by requiring
that prices for the materials meet or exceed a mini mum price before they may be exported. Further,
through its ministries and other organizations un der the State Council as well as chambers of
commerce and industry associations, China admini sters the price requirements in a manner that
restricts exports and is not uniform, impartial, a nd reasonable. China also does not publish certain
measures relating to these requirements in a manner that enables governments and traders to become
acquainted with them.

 The United States understands that these Chinese measures are reflected in, among others:

• Foreign Trade Law of the People's Republic of China (adopted at the 8
th Session of
the Standing Committee of the Tenth Nati onal People's Congress on April 6, 2004,
promulgated on July 1, 2004)

• Regulation of the People's Republic of China on the Administration of the Import and
Export of Goods (passed at the forty-sixth executive meeting of the State Council on
October 31, 2001, January 1, 2002)

• Measures for the Administration of License for the Export of Goods (Order of the
Ministry of Commerce (2008) No. 11, July 1, 2008)

• Measures for the Administration of E xport Commodities Quotas (Order of the
Ministry of Foreign Trade and Economic Cooperation No. 12, adopted on December
20, 2001, January 1, 2002)

• Measures of Quota Bidding for Export Co mmodities (Decree of the Ministry of
Foreign Trade and Economic Cooperation No. 11, adopted on December 20, 2001,
January 1, 2002)

• Measures for the Administration of the Organs for Issuing the Licenses of Import and
Export Commodities (Ministry of Fore ign Trade and Econom ic Cooperation,
waijingmaopeiguanhanzi (1999) No. 68, September 21, 1999)

• Working Rules on Issuing Export Licenses (Ministry of Commerce, shangpeifa
(2008) No. 398, October 9, 2008)

• Rules on the Administration of Import and Export License Certificates (Ministry of
Foreign Trade and Economic Cooperati on, waijingmaopeizi (1999) No. 87,
December 6, 1999)

• Implementation Rules of Export Quota Biddi ng for Industrial Products (Ministry of
Foreign Trade and Economic Cooperation, November 8, 2001)

• Notice Regarding 2009 Export Quota Amounts for Agricultural and Industrial
Products (Ministry of Commerce, Notice (2008) No. 83, January 1, 2009)

• Notice Regarding Passing Down the 2009 First Batch Regular Trade Coke Export
Quota (Ministry of Commerce, shangmaohan (2008) No. 140, January 1, 2009)

• 2009 Coke Export Quota Declaration Cond itions and Declaration Procedures
(Ministry of Commerce, Notice (2008) No. 76, October 13, 2008)

• Notice "2009 Export Licensing Management Commodities List" (Ministry of
Commerce and General Administration of Customs, Notice (2008) No. 100, January
1, 2009)

• Announcement of the Ministry of Commer ce Issuing the "2009 Graded License-
Issuing List of Commodities Subject to Export License Administration" (Ministry of
Commerce, Notice (2008) No. 124, January 1, 2009)

• Announcement Regarding Printing "Working Rules on Issuing Export Licenses"
(Ministry of Commerce, shangpeifa (2008) No. 398, October 9, 2008)

• Announcement of Ministry of Commerce on Matters regarding the First Bidding for
Export Quotas of Industrial Products in 2009 (Ministry of Commerce, Announcement
(2008) No. 85, October 30, 2008)

• Announcement of Ministry of Commerce on the Notice for the Second Invitation for
the Bidding for Industrial Product Export Quotas in 2009 (Ministry of Commerce,
Announcement (2009) No. 42, June 9, 2009)

• Circular of the Ministry of Foreign Trade and Economic Cooperation on Distribution
of the "Implementation Rules of Expor t Quota Bidding for Industrial Products"
(Ministry of Foreign Trade and Economic Cooperation, issued on November 8, 2001)

• Quotas of Fluorspar Lump (Powder) of 2009 (Committee for the Invitation for bid for
Export Commodity Quotas, December 11, 2008)

• Quotas of Bauxite of 2009 (Committee fo r the Invitation for bid for Export
Commodity Quotas, December 10, 2008)

• Quotas of Silicon Carbide of 2009 (Committe e for the Invitation for bid for Export
Commodity Quotas, December 11, 2008)

• Announcement on the Second Invitation for the Bidding of Select Industrial Product
Export Quotas in 2009 (Committee for the Invitation for bid for Export Commodity
Quotas, September 16, 2009)

• Quotas of Silicon Carbide of 2009, Sec ond Round (Committee for the Invitation for
Bid for Export Commodity Quotas, September 16, 2009)

• Notice Regarding Passing Down the 2009 Second Batch Regular Trade Coke and
Rare Earth Export Quota (Ministry of Commerce, ShangZiHan (2009) No. 73,
September 8, 2009)

• Notice Regarding Announcement of the 2010 Export Quota Amounts for Agricultural
and Industrial Products (Ministry of Commerce, Notice (2009) No. 88, October 29,
2009)

• Charter of the China Chamber of Commerc e of Metals, Minera ls and Chemicals
Importers and Exporters

• Charter of the China Coking Industry Association

• Measures for the Administration over Foreign Trade and Economic Social
Organizations (Ministry of Foreign Trade and Economic Coopera tion, February 26,
1991)

• Notice Regarding Printing and Distributi on of Several Regulations for Personnel
Management of Chambers of Commerce fo r Importers and Exporters (Ministry of
Foreign Trade and Economic Cooperation, September 23, 1994)

• Interim Regulations of the Ministry of Foreign Trade and Ec onomic Cooperation on
Punishment for Conduct at Exporting at Lower-than-Normal Price (Ministry of
Foreign Trade and Economic Cooperation, March 20, 1996)

•
Notice Regarding Rules for Contract Declaration for Chemicals-Related Verification
and Stamp Products (China Chamber of Commerce of Metals, Minerals and

Chemicals Importers and E xporters Petroleum and Chem icals Products Department,
December 30, 2003)

• Online Verification and Certification Oper ating Steps (China Chamber of Commerce
of Metals, Minerals and Chemicals Importers and Exporters)

• Rules for Coordination with Respect to Cu stoms Price Review of Export Products,
(Ministry of Foreign Trade and Economic Cooperation guanzonghanzi No. 21, 1997)

• Notice of the Rules on Price Reviews of Export Products by the Customs, (Ministry
of Foreign Trade and Economic Cooperation guanzonghanzi No. 21, 1997)

• Notice on the Issuance of "Various Provisions on the Strengthening of Export Product
Coordination and Management" (Ministry of Foreign Economic Relations and Trade,
jinchufa (1991) No. 52, February 22, 1991)

• "Various Provisions on the Strengtheni ng of Export Product Coordination and
Management" (Ministry of Foreign Economic Relations and Trade, jinchufa (1991)
No. 52, February 22, 1991)

• Decision of the State Council on Various Questions on the Further Reform and
Improvement of the Foreign Trade System (State Council, guofa (1990) No. 70,
January 1, 1991)

• as well as any amendments or extensions; related measures; replacement measures;
renewal measures; and implementing measures.

 The United States considers that these measures are inconsistent with Article VIII:1(a) and
VIII:4, Article X:1 and X:3(a), and Article XI:1 of the GATT 1994 and paragraphs 2(A)2, 5.1, 5.2 and
8.2 of Part I of the Accession Protocol, as well as China's obligations under the provisions of
paragraph 1.2 of Part I of the Accession Protocol, which incorporates commitments in paragraphs 83,
84, 162, and 165 of the Working Party Report.

 Accordingly, the United States respectfully requ ests that, pursuant to Article 6 of the DSU,
the Dispute Settlement Body establish a panel to ex amine this matter, with the standard terms of
reference as set out in Article 7.1 of the DSU.