Source(s) of the information:

Lawyers, other representatives, expert(s), tribunal’s secretary

Reports of the Panel

CASES CITED IN THESE REPORTS

Short TitleFull Case Title and Citation
Argentina – Hides and Leather Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and Import of Finished Leather, WT/DS155/R and Corr.1, adopted 16 February 2001, DSR 2001:V, 1779
Argentina – Textiles and Apparel Appellate Body Report, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/AB/R and Corr.1, adopted 22 April 1998, DSR 1998:III, p. 1003
Argentina – Textiles and Apparel Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/R, adopted 22 April 1998, as modified by Appellate Body Report WT/DS56/AB/R, DSR 1998:III, p. 1033
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
Brazil – Desiccated Coconut Panel Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/R, adopted 20 March 1997, upheld by Appellate Body Report WT/DS22/AB/R, DSR 1997:I, p. 189
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, 1527
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body Report WT/DS332/AB/R, DSR 2007:V, 1649
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1377
Canada – Aircraft Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/R, adopted 20 August 1999, upheld by Appellate Body Report WT/DS70/AB/R, DSR 1999:IV, p. 1443
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, DSR 2000:VI, 2985
Canada – Autos Panel Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, 3043
Canada – Renewable Energy / Canada – Feed-in Tariff Program Appellate Body Reports, Canada – Certain Measures Affecting the Renewable Energy Generation Sector / Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013
Canada – Renewable Energy / Canada – Feed-in Tariff Program Panel Reports, Canada – Certain Measures Affecting the Renewable Energy Generation Sector / Canada – Measures Relating to the Feed‑in Tariff Program, WT/DS412/R / WT/DS426/R / and Add.1, adopted 24 May 2013, as modified by Appellate Body Reports WT/DS412/AB/R / WT/DS426/AB/R
Chile – Alcoholic Beverages Appellate Body Report, Chile – Taxes on Alcoholic Beverages, WT/DS87/AB/R, WT/DS110/AB/R, adopted 12 January 2000, DSR 2000:I, 281
Chile – Alcoholic Beverages Panel Report, Chile – Taxes on Alcoholic Beverages, WT/DS87/R, WT/DS110/R, adopted 12 January 2000, as modified by Appellate Body Report WT/DS87/AB/R, WT/DS110/AB/R, DSR 2000:I, 303
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile Parts, WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted 12 January 2009, DSR 2009:I, 3
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile Parts, WT/DS339/R / WT/DS340/R / WT/DS342/R / and Add.1 and Add.2, adopted 12 January 2009, upheld (WT/DS339/R) and as modified (WT/DS340/R / WT/DS342/R) by Appellate Body Reports WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, DSR 2009:I, 119-DSR 2009:II, 625
China – Publications and Audiovisual Products Appellate Body Report, China –Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, adopted 19 January 2010, DSR 2010:I, 3
China – Publications and Audiovisual Products Panel Report, China –Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report WT/DS363/AB/R, DSR 2010:II, 261
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, adopted 22 February 2012
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R / WT/DS395/R / WT/DS398/R / and Corr.1, adopted 22 February 2012, as modified by Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry, WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535
Dominican Republic – Safeguard Measures Panel Report, Dominican Republic – Safeguard Measures on Imports of Polypropylene Bags and Tubular Fabric, WT/DS415/R, WT/DS416/R, WT/DS417/R, WT/DS418/R, adopted 22 February 2012
EC – Approval and Marketing of Biotech Products Panel Reports, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R / WT/DS292/R / WT/DS293/R, Add.1 to Add.9, and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos‑Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 3243
EC – Asbestos Panel Report, European Communities – Measures Affecting Asbestos and Asbestos‑Containing Products, WT/DS135/R and Add.1, adopted 5 April 2001, as modified by Appellate Body Report WT/DS135/AB/R, DSR 2001:VIII, p. 3305
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591
EC – Bananas III (Ecuador) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by Ecuador, WT/DS27/R/ECU, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:III, p. 1085
EC – Bananas III (Article 21.5 – US) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by the United States, WT/DS27/RW/USA and Corr.1, adopted 22 December 2008, upheld by Appellate Body Report WT/DS27/AB/RW/USA, DSR 2008:XIX, p. 7761
EC – Chicken Cuts Appellate Body Report, EuropeanCommunities – Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157
EC – Chicken Cuts (Brazil) Panel Report, EuropeanCommunities – Customs Classification of Frozen Boneless Chicken Cuts, Complaint by Brazil, WT/DS269/R, adopted 27 September 2005, as modified by Appellate Body Report WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XIX, p. 9295
EC – Computer Equipment Appellate Body Report, European Communities – Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, p. 1851
EC – Computer Equipment Panel Report, European Communities – Customs Classification of Certain Computer Equipment, WT/DS62/R, WT/DS67/R, WT/DS68/R, adopted 22 June 1998, as modified by Appellate Body Report WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, DSR 1998:V, p. 1891
EC – Export Subsidies on Sugar Appellate Body Report, European Communities – Export Subsidies on Sugar, WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, adopted 19 May 2005, DSR 2005:XIII, p. 6365
EC – Export Subsidies on Sugar (Australia) Panel Report, European Communities – Export Subsidies on Sugar, Complaint by Australia, WT/DS265/R, adopted 19 May 2005, as modified by Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIII, p. 6499
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, p. 135
EC – Hormones (Canada) Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, WT/DS48/R/CAN, adopted 13 February 1998, as modified by Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:II, p. 235
EC and certain member States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted 1 June 2011, DSR 2011:I, p. 7
EC and certain member States – Large Civil Aircraft Panel Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/R, adopted 1 June 2011, as modified by Appellate Body Report, WT/DS316/AB/R, DSR 2011:II, p. 685
EC – Sardines Appellate Body Report, European Communities – Trade Description of Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3359
EC – Sardines Panel Report, European Communities – Trade Description of Sardines, WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by Appellate Body Report WT/DS231/AB/R, DSR 2002:VIII, 3451
EC – Seal Products Panel Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R / WT/DS401/R and Add.1, circulated on 25 November 2013
EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R, adopted 20 April 2004, DSR 2004:III, p. 925
EC – Tariff Preferences Panel Report, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/R, adopted 20 April 2004, as modified by Appellate Body Report WT/DS246/AB/R, DSR 2004:III, p. 1009
Dominican Republic – Safeguard Measures Panel Report, Dominican Republic – Safeguard Measures on Imports of Polypropylene Bags and Tubular Fabric, WT/DS415/R, WT/DS416/R, WT/DS417/R, WT/DS418/R, adopted 22 February 2012
India – Quantitative Restrictions Appellate Body Report, India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted 22 September 1999, DSR 1999:IV, 1763
India – Quantitative Restrictions Panel Report, India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R, adopted 22 September 1999, upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, 1799
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179
Japan – Semi-Conductors GATT Panel Report, Japan – Trade in Semi-Conductors, L/6309, adopted 4 May 1988, BISD 35S, p. 116
Korea – Various Measures on Beef Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001:I, 5
Korea – Various Measures on Beef Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/R, WT/DS169/R, adopted 10 January 2001, as modified by Appellate Body Report WT/DS161/AB/R, WT/DS169/AB/R, DSR 2001:I, 59
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, p. 3
Korea – Alcoholic Beverages Panel Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/R, WT/DS84/R, adopted 17 February 1999, as modified by Appellate Body Report WT/DS75/AB/R, WT/DS84/AB/R, DSR 1999:I, p. 44
Thailand – Cigarettes (Philippines) Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, adopted 15 July 2011, DSR 2011:IV, p. 2203
Thailand – Cigarettes (Philippines) Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/R, adopted 15 July 2011, as modified by Appellate Body Report WT/DS371/AB/R, DSR 2011:IV, p. 2299
Turkey – Textiles Appellate Body Report, Turkey – Restrictions on Imports of Textile and Clothing Products, WT/DS34/AB/R, adopted 19 November 1999, DSR 1999:VI, 2345
Turkey – Textiles Panel Report, Turkey – Restrictions on Imports of Textile and Clothing Products, WT/DS34/R, adopted 19 November 1999, as modified by Appellate Body Report WT/DS34/AB/R, DSR 1999:VI, 2363
US – 1916 Act Appellate Body Report, United States – Anti‑Dumping Act of 1916, WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, p. 4793
US – 1916 Act (EC) Panel Report, United States – Anti‑Dumping Act of 1916, Complaint by the European Communities, WT/DS136/R and Corr.1, adopted 26 September 2000, upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, p. 4593
US – 1916 Act (Japan) Panel Report, United States – Anti‑Dumping Act of 1916, Complaint by Japan, WT/DS162/R and Add.1, adopted 26 September 2000, upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, p. 4831
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain Corrosion‑Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779
US – Carbon Steel Panel Report, United States – Countervailing Duties on Certain Corrosion‑Resistant Carbon Steel Flat Products from Germany, WT/DS213/R and Corr.1, adopted 19 December 2002, as modified by Appellate Body Report WT/DS213/AB/R, DSR 2002:IX, p. 3833
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R, adopted 24 April 2012
US – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, adopted 24 April 2012, as modified by Appellate Body Report WT/DS406/AB/R
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 2012
US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R / WT/DS386/R, adopted 23 July 2012, as modified by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14 November 2008, DSR 2008:X, 3507
US – Continued Suspension Panel Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/R, adopted 14 November 2008, as modified by Appellate Body Report WT/DS320/AB/R, DSR 2008:XI, 3891-DSR 2008:XIII, 4913
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009, DSR 2009:III, 1291
US – Continued Zeroing Panel Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/R, adopted 19 February 2009, as modified as Appellate Body Report WT/DS350/AB/R, DSR 2009:III, 1481- DSR 2009:IV, 1619
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations", WT/DS108/AB/R, adopted 20 March 2000, DSR 2000:III, p. 1619
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales Corporations", WT/DS108/R, adopted 20 March 2000, as modified by Appellate Body Report WT/DS108/AB/R, DSR 2000:IV, p. 1675
US – FSC (Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, p. 55
US – FSC (Article 21.5 – EC) Panel Report, United States – Tax Treatment for "Foreign Sales Corporations" – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/RW, adopted 29 January 2002, as modified by Appellate Body Report WT/DS108/AB/RW, DSR 2002:I, p. 119
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross‑Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, p. 5663 (Corr.1, DSR 2006:XII, p. 5475)
US – Gambling Panel Report, United States – Measures Affecting the Cross‑Border Supply of Gambling and Betting Services, WT/DS285/R, adopted 20 April 2005, as modified by Appellate Body Report WT/DS285/AB/R, DSR 2005:XII, p. 5797
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3
US – Gasoline Panel Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body Report WT/DS2/AB/R, DSR 1996:I, 29
US – Large Civil Aircraft (2nd complaint) Appellate Body Report, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS353/AB/R, adopted 23 March 2012
US – Large Civil Aircraft (2nd complaint) Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS353/R, adopted 23 March 2012, as modified by Appellate Body Report WT/DS353/AB/R
US – Oil Country Tubular Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti‑Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R, adopted 17 December 2004, DSR 2004:VII, 3257
US – Oil Country Tubular Goods Sunset Reviews Panel Report, United States – Sunset Reviews of Anti‑Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/R and Corr.1, adopted 17 December 2004, as modified by Appellate Body Report W/DS/268/AB/R, DSR 2004:VIII, 3421
US – Section 211 Appropriations Act Appellate Body Report, United States – Section 211 Omnibus Appropriations Act of 1998, WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, 589
US – Section 211 Appropriations Act Panel Report, United States – Section 211 Omnibus Appropriations Act of 1998, WT/DS176/R, adopted 1 February 2002, as modified by Appellate Body Report WT/DS176/AB/R, DSR 2002:II, 683
US – Section 301 Trade Act Panel Report, United States – Sections 301‑310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January 2000, DSR 2000:II, p. 815
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755
US – Shrimp Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R and Corr.1, adopted 6 November 1998, as modified by Appellate Body Report WT/DS58/AB/R, DSR 1998:VII, 2821
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, p. 571
US – Softwood Lumber IV Panel Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/R and Corr.1, adopted 17 February 2004, as modified by Appellate Body Report WT/DS257/AB/R, DSR 2004:II, p. 641
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti‑Dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008, DSR 2008:II, 513
US – Stainless Steel (Mexico) Panel Report, United States – Final Anti‑Dumping Measures on Stainless Steel from Mexico, WT/DS344/R, adopted 20 May 2008, as modified by Appellate Body Report WT/DS344/AB/R, DSR 2008:II, 599
US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, adopted 13 June 2012
US – Tuna II (Mexico) Panel Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, adopted 13 June 2012, as modified by Appellate Body Report WT/DS381/AB/R
US – Tyres (China) Appellate Body Report, United States – Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres from China, WT/DS399/AB/R, adopted 5 October 2011, DSR 2011:IX, p. 4811
US – Tyres (China) Panel Report, United States – Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres from China, WT/DS399/R, adopted 5 October 2011, upheld by Appellate Body Report WT/DS399/AB/R, DSR 2011:IX, p. 4945
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr.1, DSR 1997:I, p. 323
US – Wool Shirts and Blouses Panel Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/R, adopted 23 May 1997, upheld by Appellate Body Report WT/DS33/AB/R, DSR 1997:I, p. 343

ABBREVIATIONS

AbbreviationDescription
AoA Agreement on Agriculture
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
APT Ammonium paratungstate
ASEAN Association of South East Asian Nations
China's Accession Protocol Protocol on the Accession of the People's Republic of China to the WTO, WT/L/432
China's Working Party Report Report of the Working Party on the Accession of China, WT/ACC/CHN/49 and Corr.1
Customs Valuation Agreement Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
Final Act the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations
GATS General Agreement on Trade in Services
GATT 1994 General Agreement on Tariffs and Trade 1994
HS Harmonized System
ICSID International Centre for Settlement of Investment Disputes
Import Licensing Agreement Agreement on Import Licensing Procedures
MFN Most-Favoured-Nation treatment
MIIT Ministry of Industry and Information Technology
MLR Ministry of Land and Resources
REO Rare Earth Ore
SCM Agreement Agreement on Subsidies and Countervailing Measures
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures
TBT Agreement Agreement on Technical Barriers to Trade
TRIMs Agreement Agreement on Trade-Related Investment Measures
TRIPS Agreement Agreement on Trade-Related Aspects of Intellectual Property Rights
VAT Value‑Added Tax
Vienna Convention Vienna Convention on the Law of Treaties
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization
WTO World Trade Organization

1 INTRODUCTION

1.1 COMPLAINTS BY THE UNITED STATES, THE EUROPEAN UNION, AND JAPAN

1.1.
On 13 March 2012, the United States, the European Union, and Japan each requested consultations with 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 the measures and claims set out below.1
1.2.
Consultations were held on 25-26 April 2012. These consultations did not resolve the dispute.

1.2 PANEL ESTABLISHMENT AND COMPOSITION

1.3.
On 27 June 2012, the United States, the European Union, and Japan each requested the establishment of a panel pursuant to Article 6 of the DSU with standard terms of reference.2 At its meeting on 23 July 2012, the Dispute Settlement Body (DSB) established a single panel pursuant to the requests of the United States, the European Union, and Japan in accordance with Article 9.1 of the DSU.3
1.4.
The Panel's terms of reference are the following:

To examine, in the light of the relevant provisions of the covered agreements cited by the parties to the dispute, the matter referred to the DSB by the United States in document WT/DS431/6, the European Union in document WT/DS432/6, and Japan in document WT/DS433/6 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.4

1.5.
On 12 September 2012, the United States, the European Union, and Japan requested the Director-General to determine the composition of the panel, pursuant to Article 8.7 of the DSU. On 24 September 2012, the Director-General accordingly composed the Panel as follows:

Chairperson: Mr Nacer Benjelloun-Touimi

Members: Mr Hugo Cayrús

Mr Darlington Mwape

1.6.
Argentina, Australia, Brazil, Canada, Colombia, the European Union (with respect to WT/DS431 and WT/DS433), India, Indonesia, Japan (with respect to WT/DS431 and WT/DS432), the Republic of Korea, Norway, Oman, Peru, the Russian Federation, the Kingdom of Saudi Arabia, Chinese Taipei, Turkey, the United States (with respect to WT/DS432 and WT/DS433), and Viet Nam notified their interest in participating in the Panel proceedings as third parties.

1.3 PANEL PROCEEDINGS

1.3.1 General

1.7.
After consultation with the parties, the Panel adopted its Working Procedures5 and timetable on 18 October 2012.
1.8.
The Panel held a first substantive meeting with the parties on 26-28 February 2013. A session with the third parties took place on 27 February 2013. The Panel held a second substantive meeting with the parties on 18-19 June 2013. The Panel sent questions to the parties both before and after the substantive meetings, the questions were sent on 13 February 2013, 1 March 2013, 11 April 2013, 30 May 2013, and 21 June 2013.
1.9.
On 31 July 2013, the Panel issued the descriptive part of its Reports to the parties. The Panel issued its Interim Reports to the parties on 23 October 2013. The Panel issued its Final Reports to the parties on 13 December 2013.

1.3.2 Request for enhanced third-party rights

1.10.
On 9 October 2012, Canada requested enhanced third-party rights, including third-party access to the entirety of both substantive meetings and all written submissions, and the right to make an oral statement at the second substantive meeting. After considering Canada's request and consulting the parties on the request, the Panel informed Canada on 19 October 2012 that it had decided to decline its request. The Panel concluded that the reasons Canada raised were not among those that would justify departing from the third-party rights established in paragraphs 2 and 3 of Article 10 of the DSU, paragraph 6 of Appendix 3 to the DSU and subsequent panel practice regarding enhanced third-party rights. In its communication, the Panel indicated that it would provide the reasons for its reasoning on this matter in its Reports.6

1.3.3 Request for a preliminary ruling on the availability of a defence under Article XX of the GATT 1994 for a violation of Paragraph 11.3 of China's Accession Protocol

1.11.
On 20 December 2012, in its first written submission, China requested that the Panel make a preliminary ruling on a substantive legal issue: whether the obligation in Paragraph 11.3 of China's Accession Protocol is subject to the general exceptions contained in Article XX of the GATT 1994. China requested that the Panel rule on this issue on an expedited basis. On 10 January 2013, the Panel informed the parties that it expected to send its decision on China's request for a preliminary ruling by Monday, 11 February 2013.7 The complainants submitted their response to China's preliminary ruling request on 21 January 2013. China filed its comments on the complainants' responses on 25 January 2013 and the complainants submitted comments on China's comments on 30 January 2013.8 On 1 February 20139, the Panel informed the parties and third parties that it had decided not to issue a ruling on this issue prior to the first Panel meeting. The Panel further stated that if China intended to present a substantive defence under Article XX of the GATT 1994 with respect to Paragraph 11.3 of its Accession Protocol, it should provide a written submission presenting this defence no later than 15 February 2013 so as to allow the parties and third parties to have a meaningful opportunity to respond at the first Panel meeting.
1.12.
On 6 February 201310, China requested the Panel to make a preliminary ruling on this issue prior to the first meeting. On 8 February 201311, the Panel reiterated its decision not to issue a preliminary ruling on this issue prior to the first Panel meeting and recalled its statement in its letter of 1 February concerning the date by which China should present a substantive defence under Article XX of the GATT 1994 with respect to Paragraph 11.3 of its Accession Protocol.
1.13.
On 15 February 2013, China submitted its substantive defence under Article XX of the GATT 1994 with respect to Paragraph 11.3 of its Accession Protocol.
1.14.
At the first substantive meeting with the parties, the Panel informed the parties that it would not issue a preliminary ruling on this matter. The Panel stated that the reasons were that the request concerned a complex issue of substance as opposed to an issue of procedure or jurisdiction and the Panel required sufficient time to carefully consider the extensive argumentation of the parties and third parties. The Panel indicated that it would address the issue in its Reports.

2 FACTUAL ASPECTS

2.1.
This dispute concerns China's use of export quotas and export duties on various forms of rare earths, tungsten, and molybdenum. The complainants also challenge the administration and allocation, including through export licensing, of the export quotas.

2.1 THE PRODUCTS AT ISSUE

2.2.
The products at issue in this dispute are rare earths, tungsten, and molybdenum. The raw materials at issue are either naturally occurring minerals or materials that have undergone some initial processing.
2.3.
"Rare earths" is the common name for a group of 15 chemical elements in the periodic table with atomic numbers 57 to 71. These elements are part of the so-called "lanthanide group", composed of: lanthanum, cerium, praseodymium, neodymium, promethium, samarium, europium, gadolinium, terbium, dysprosium, holmium, erbium, thulium, ytterbium and lutetium. Two other rare earth elements are included in the scope of this dispute, namely, scandium (atomic No. 21) and yttrium (atomic No. 39).12
2.4.
China divides this group of products into light and medium/heavy rare earths. China considers the following rare earth elements to be medium/heavy rare earths: scandium (atomic No. 21), yttrium (atomic No. 39), samarium, europium, gadolinium, terbium, dysprosium, holmium, erbium, thulium, ytterbium, and lutetium (atomic Nos. 62-71).13 The complainants state that the rare earths from lanthanum to europium (atomic Nos. 57-63) are often called light rare earths and that the elements from gadolinium to lutetium (atomic Nos. 64-71), along with yttrium (atomic No. 39), are often referred to as heavy rare earths.14
2.5.
Once mined, rare earth ores can be processed into concentrates, individual oxides/mixtures of oxides15, salts and then metals. Rare earth metal can be alloyed with other elements, depending on its intended end-use.16
2.6.
Tungsten is the name given to the element with the atomic number 74. Tungsten is primarily found in two ores: wolframite and scheelite. Once mined, ores containing tungsten can be processed to produce tungsten concentrates, ammonium paratungstate (APT), and a number of other intermediate products, such as tungsten oxide. Tungsten oxide can also be reduced to form tungsten powder and tungsten carbide.17
2.7.
Molybdenum is a silvery metallic element with the atomic number 42. Molybdenum is mined from ore containing molybdenite, which is often recovered as a by-product of copper mining. Molybdenite can be concentrated and then roasted to form roasted molybdenite (MoO3) concentrate (Technical Mo Oxide). Roasted molybdenite (MoO3) concentrate can be smelted into ferromolybdenum, further processed into various molybdenum chemicals, or reduced into molybdenum metal.18

2.2 THE MEASURES AT ISSUE

2.8.
The United States, the European Union, and Japan identified a number of different instruments in their panel requests in connection with their claims concerning export duties, export quotas, and the administration and allocation of the export quotas.

2.2.1 Export duties

2.9.
The complainants assert that China subjects various forms of rare earths, tungsten, and molybdenum to export duties and that those materials are not listed in Annex 6 of China's Accession Protocol. The complainants indicate that these Chinese measures are reflected in the following:

· Customs Law of the People's Republic of China

· Regulations of the People's Republic of China on Import and Export Duties

· Announcement No. 27 Issuing the "2012 Tariff Implementation Program"

· Announcement No. 79 Regarding the "2012 Tariff Implementation Program"

· as well as any annexes or schedules thereto, amendments, supplements, or extensions and implementing measures.19

2.10.
The European Union and Japan also made claims in respect of replacement measures and renewal measures.

2.2.2 Export quotas

2.11.
The complainants assert that China subjects the exportation of various forms of rare earths, tungsten, and molybdenum to quantitative restrictions such as quotas. The complainants indicate that these Chinese measures are reflected in the following:

· Foreign Trade Law of the People's Republic of China

· Regulation of the People's Republic of China on the Administration of the Import and Export of Goods

· Measures for the Administration of Export Commodities Quotas

· Measures for the Administration of the Organs for Issuing the Licences of Import and Export Commodities

· Measures for the Administration of Licensing for the Export of Goods

· Working Rules on Issuing Export Licences

· Rules on the Administration of Import and Export Licence Certificates

· Notice on Issuing the "2012 Export Licensing Management Commodities List"

· Announcement Issuing the "2012 Graded Licence-Issuing List of Commodities Subject to Export Licence Administration"

· 2012 Notice on the Total Export Quota Quantity for Agricultural and Industrial Products in 2012

· Notice Publishing the List of Enterprise Applying for the Export Quota for Rare Earths and Coke in 2012

· Notice Publishing the List of the State Trading Export Enterprises of Tungsten, Antimony and Silver, the Enterprises Exporting and Supplying Tungsten and Antimony, and the Enterprises Applying for the Export Quotas for Indium and Molybdenum in 2012

· 2012 Notice on List of Rare Earth Export Enterprises and First-batch Rare Earth Export Quota

· 2012 Notice on List of Export (Supply) Enterprises and First-batch Export Quota of Tungsten, Antimony and Other Nonferrous Metals

· Announcement on 2012 Application Conditions and Procedures for Qualification for Rare Earth Export Quota

· Announcement Regarding the Qualification Standards of State Owned Tungsten, Antimony and Silver Trade and Enterprises, Tungsten and Antimony Export and Supply Enterprises and Declaration Procedures in 2012

· Announcement on Application Conditions and Procedures for 2012 Indium, Molybdenum and Tin Export Quotas

· Notice on the Supplement to the 2012 First Batch of Rare Earth Export Quota

· as well as any annexes or schedules thereto, amendments, supplements, or extensions and implementing measures.20

2.12.
The European Union and Japan also made claims in respect of replacement measures and renewal measures.

2.2.3 Export quota administration and allocation

2.13.
In their requests for establishment of a panel, the complainants made claims relating to an alleged lack of uniform, impartial, or reasonable administration of the export quotas. The complainants did not develop any argumentation in relation to these claims in their first written submissions, and in response to a Panel question, the complainants confirmed to the Panel that they were no longer pursuing the claims.21
2.14.
The complainants assert that China imposes restrictions on the trading rights of enterprises seeking to export various forms of rare earths and molybdenum, such as prior export performance and minimum registered capital requirements. The complainants indicate that these Chinese measures are reflected in the following:

· Foreign Trade Law of the People's Republic of China

· Regulation of the People's Republic of China on the Administration of the Import and Export of Goods

· Measures for the Administration of Export Commodities Quotas

· Measures for the Administration of Licensing for the Export of Goods

· Measures for the Administration of the Organs for Issuing the Licences of Import and Export Commodities

· Working Rules on Issuing Export Licences

· Rules on the Administration of Import and Export Licence Certificates

· Notice on Issuing the "2012 Export Licensing Management Commodities List"

· Announcement Issuing the "2012 Graded Licence-Issuing List of Commodities Subject to Export Licence Administration"

· 2012 Notice on the Total Export Quota Quantity for Agricultural and Industrial Products in 2012

· Notice Publishing the List of Enterprise Applying for the Export Quota for Rare Earths and Coke in 2012

· Notice Publishing the List of the State Trading Export Enterprises of Tungsten, Antimony and Silver, the Enterprises Exporting and Supplying Tungsten and Antimony, and the Enterprises Applying for the Export Quotas for Indium and Molybdenum in 2012

· 2012 Notice on List of Rare Earth Export Enterprises and First-batch Rare Earth Export Quota

· 2012 Notice on List of Export (Supply) Enterprises and First-batch Export Quota of Tungsten, Antimony and Other Nonferrous

· Announcement on 2012 Application Conditions and Procedures for Qualification for Rare Earth Export Quota

· Announcement on Application Conditions and Procedures for 2012 Indium, Molybdenum and Tin Export Quotas

· Notice on the Supplement to the 2012 First Batch of Rare Earth Export Quota

· as well as any annexes or schedules thereto, amendments, supplements, or extensions and implementing measures.22

2.15.
The European Union and Japan also made claims in respect of replacement measures and renewal measures.
2.16.
The following chart23 identifies the particular raw materials at issue in this dispute by category, product name, product name short form, and in the case or rare earths, the classification of whether the products are light or heavy rare earths24, 2012 Chinese Commodity Codes25 (the basis for the export quotas), Chinese HS Number26 (the basis for the export duties), and the corresponding export duty rate.27

Rare earths

Raw MaterialProduct NameProduct Name (Short Form)Heavy or Light28Export QuotaExport Duty
Chinese Commodity CodeChinese HS Code"Temporary" Export Duty Rate for 2012
Rare Earths Ores of rare earth metals Rare earth ores Heavy 2530902010 2530.9020 15%
Light 2530902090
Thorium ores and concentrates29 Thorium Heavy 2612200000 2612.2000 10%
Neodymium Neodymium Light 2805301100 2805.3011 25%
Dysprosium Dysprosium Heavy 2805301200 2805.3012 25%
Terbium Terbium Heavy 2805301300 2805.3013 25%
Lanthanum Lanthanum Light 2805301400 2805.3014 25%
Cerium Cerium Light 2805301510 2805.3015 25%
Light 2805301590
Praseodymium Praseodymium Light 2805301600 2805.3016 25%
Yttrium Yttrium Heavy 2805301700 2805.3017 25%
Other rare-earth metals, scandium and yttrium, not intermixed or interalloyed Other rare earth metals Heavy 2805301913 2805.3019 25%
Heavy 2805301914
Heavy 2805301915
Light 2805301990
Battery quality rare-earth metals, scandium and yttrium, intermixed or interalloyed Battery quality rare earth metals Heavy 2805302110 2805.3021 25%
Light 2805302190
Other rare-earth metals, scandium and yttrium, intermixed or interalloyed Other mixed rare earth metals Heavy 2805302910 2805.3029 25%
Light 2805302990
Cerium oxide Cerium oxide Light 2846101000 2846.1010 15%
Cerium hydroxide Cerium hydroxide Light 2846102000 2846.1020 15%
Cerium carbonate Cerium carbonate Light 2846103000 2846.1030 15%
Other cerium compounds Other cerium compounds Light 2846109010 2846.1090 15%
2846109090
Yttrium oxide Yttrium oxide Heavy 2846901100 2846.9011 25%
Lanthanum oxide Lanthanum oxide Light 2846901200 2846.9012 15%
Neodymium oxide Neodymium oxide Light 2846901300 2846.9013 15%
Europium oxide Europium oxide Heavy 2846901400 2846.9014 25%
Dysprosium oxide Dysprosium oxide Heavy 2846901500 2846.9015 25%
Terbium oxide Terbium oxide Heavy 2846901600 2846.9016 25%
Praseodymium oxide Praseodymium oxide Light 2846901700 2846.9017 25%
Other rare earth oxides (except for luminescent red phosphors) Other rare earth oxides Heavy 2846901920 2846.9019 15%
Heavy 2846901930
Heavy 2846901940
Heavy 2846901970
Heavy 2846901980
Heavy 2846901991
Heavy 2846901992
Light 2846901999
Terbium chloride Terbium chloride Heavy 2846902100 2846.9021 25%
Dysprosium chloride Dysprosium chloride Heavy 2846902200 2846.9022 25%
Lanthanum chloride Lanthanum chloride Light 2846902300 2846.9023 25%
Neodymium chloride Neodymium chloride Light 2846902400 2846.9024 15%
Praseodymium chloride- Praseodymium chloride Light 2846902500 2846.9025 15%
Yttrium chloride Yttrium chloride Heavy 2846902600 2846.9026 15%
Mixed rare earth chlorinates Mixed rare earth chlorinates Heavy 2846902810 2846.9028 15%
Light 2846902890
Other unmixed rare earth chlorinates Other unmixed rare earth chlorinates Heavy 2846902900 2846.9029 15%
Terbium fluoride Terbium fluoride Heavy 2846903100 2846.9031 15%
Dysprosium fluoride Dysprosium fluoride Heavy 2846903200 2846.9032 15%
Lanthanum fluoride Lanthanum fluoride Light 2846903300 2846.9033 15%
Neodymium fluoride Neodymium fluoride Light 2846903400 2846.9034 15%
Praseodymium fluoride Praseodymium fluoride Light 2846903500 2846.9035 15%
Yttrium fluoride Yttrium fluoride Heavy 2846903600 2846.9036 15%
Other rare earth fluorides Other rare earth fluorides Light 2846903900 2846.9039 15%
Lanthanum carbonate Lanthanum carbonate Light 2846904100 2846.9041 15%
Terbium carbonate Terbium carbonate Heavy 2846904200 2846.9042 25%
Dysprosium carbonate Dysprosium carbonate Heavy 2846904300 2846.9043 25%
Neodymium carbonate Neodymium carbonate Light 2846904400 2846.9044 15%
Praseodymium carbonate Praseodymium carbonate Light 2846904500 2846.9045 15%
Yttrium carbonate Yttrium carbonate Heavy 2846904600 2846.9046 15%
Mixed rare earth carbonate Mixed rare earth carbonate Heavy 2846904810 2846.9048 15%
Light 2846904890
Other unmixed rare earth carbonate Other unmixed rare earth carbonate Heavy 2846904900 2846.9049 15%
Other lanthanum compounds Other lanthanum compounds Light 2846909100 2846.9091 25%
Other neodymium compounds Other neodymium compounds Light 2846909200 2846.9092 25%
Other terbium compounds Other terbium compounds Heavy 2846909300 2846.9093 25%
Other dysprosium compounds Other dysprosium compounds Heavy 2846909400 2846.9094 25%
Other praseodymium compounds Other praseodymium compounds Light 2846909500 2846.9095 25%
Other yttrium compounds Other yttrium compounds Heavy 2846909600 2846.9096 25%
Other rare earth compounds, yttrium and scandium Other rare earth compounds Heavy 2846909910 2846.9099 25%
Light 2846909990
Rapid setting neodymium-iron-boron (NdFeB) magnet film NdFeB magnet film N/A N/A 7202.9911 20%
Other NdFeB alloys Other NdFeB alloys N/A N/A 7202.9919 20%
Ferroalloy containing rare earths with weight of more than 10% Ferroalloy containing rare earths Heavy 7202999110 7202.9991 25%
Light 7202999191
Light 7202999199
Other ferroalloy Other ferroalloys N/A N/A 7202.9999 20%

Tungsten

Raw MaterialProduct NameProduct Name (Short Form)Export QuotaExport Duty
Chinese Commodity CodeChinese HS Code"Temporary" Export Duty Rate for 2012
Tungsten Tungsten ore Tungsten ore 2611000000 N/A30 N/A
Ash and residues containing mainly tungsten Tungsten ash 2620991000 2620.9910 10%
Tungsten acid Tungsten acid 2825901100 2825.9011 5%
Tungsten trioxide Tungsten trioxide 2825901200 2825.9012 5%
Other tungsten oxides and hydroxides Other tungsten oxides and hydroxides 2825901910 2825.9019 5%
Ammonium paratungstate APT 2841801000 2841.8010 5%
Sodium tungstate Sodium tungstate 2841802000 2841.8020 5%
Calcium tungstate Calcium tungstate 2841803000 2841.8030 5%
Ammonium metatungstate Ammonium metatungstate 2841804000 2841.8040 5%
Other tungstates Other tungstates N/A 2841.8090 5%
Tungsten carbide Tungsten carbide 2849902000 2849.9020 5%
Ferro-tungsten Ferro-tungsten N/A 7202.8010 20%
Ferro-silico-tungsten Ferro-silico-tungsten N/A 7202.8020 20%
Tungsten powder Tungsten powder 8101100010 8101.1000 5%
8101100090
Unwrought tungsten Unwrought tungsten 8101940000 8101.9400 5%
Tungsten waste and scrap Tungsten waste 8101970000 8101.9700 15%

Molybdenum

Raw MaterialProduct NameProduct Name (Short Form)Export QuotaExport Duty
Chinese Commodity CodeChinese HS Code31"Temporary" Export Duty Rate for 2012
Molybdenum Roasted molybdenum ores & concentrates Roasted molybdenum ores & concentrates 2613100000 2613.1000 15%
Other molybdenum ores & concentrates Other molybdenum ores & concentrates 2613900000 2613.9000 15%
Molybdenum oxides and hydroxides Molybdenum oxides and hydroxides 2825700000 2825.7000 5%
Ammonium molybdate Ammonium molybdate 2841701000 2841.7010 5%
Other molybdates Other molybdates 2841709000 2841.7090 5%
Ferro-molybdenum Ferro-molybdenum 7202700000 7202.7000 20%
Molybdenum powder Molybdenum powder 8102100000 8102.1000 5%
Unwrought molybdenum Unwrought molybdenum 8102940000 8102.9400 5%
Molybdenum waste and scrap Molybdenum scrap 8102970000 8102.9700 15%

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

3.1.
The United States, the European Union, and Japan request that the Panel find that:

a. In respect of export duties, the measures reflected in the instruments listed under section 2.2.1 above are inconsistent with China's obligations under Paragraph 11.3 of Part I of the Accession Protocol.

b. In respect of export quotas, the measures reflected in the instruments listed under section 2.2.2 above are inconsistent with Article XI:1 of the GATT 1994 and China's obligations under the provisions of Paragraph 1.2 of Part I of the Accession Protocol, which incorporates commitments in Paragraphs 162 and 165 of the Working Party Report on the Accession of China.

c. In respect of export quota administration and allocation, the measures reflected in the instruments listed under section 2.2.3 above are inconsistent with Paragraph 5.1 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 and 84 of the Working Party Report.

3.2.
China requests the Panel to find that:

a. The general exceptions of Article XX of the GATT 1994 are available to China to defend a potential violation of Paragraph 11.3 of China's Accession Protocol, and the export duties on rare earths, tungsten, and molybdenum are justified under Article XX(b) of the GATT 1994.

b. The 2012 export quotas on rare earths, tungsten, and molybdenum are justified under Article XX(g) of the GATT 1994.

c. The trading rights commitments in Paragraph 5.1 of China's Accession Protocol and Paragraphs 83 and 84 of the Working Party Report do not prevent the use of prior export performance and minimum registered capital requirements as criteria to administer the rare earths and molybdenum export quotas.

3.3.
The United States, the European Union, and Japan further request, pursuant to Article 19.1 of the DSU, that the Panel recommend that China brings its measures into conformity with its WTO obligations.

4 ARGUMENTS OF THE PARTIES

4.1.
The arguments of the parties are reflected in their executive summaries, provided to the Panel in accordance with paragraph 18 of the Working Procedures adopted by the Panel (see Annexes B-1 to B-4).

5 ARGUMENTS OF THE THIRD PARTIES

5.1.
The arguments of Argentina, Australia, Brazil, Canada, Colombia, the Republic of Korea, Norway, Oman, Peru, the Russian Federation, the Kingdom of Saudi Arabia, and Turkey are reflected in their executive summaries, provided in accordance with paragraph 19 of the Working Procedures adopted by the Panel (see Annexes C-1 to C-11).32 Chinese Taipei, India, Oman and Viet Nam did not submit written or oral arguments to the Panel. Indonesia submitted a written submission and made an oral statement. However, it did not provide an executive summary of its arguments for inclusion in the Panel report.

6 INTERIM REVIEW

6.1.
On 22 October 2013, the Panel issued its Interim Reports to the parties. On 14 November 2013, China, the United States, the European Union, and Japan submitted written requests for review of precise aspects of the Interim Reports pursuant to Article 15.2 of the DSU. On 21 November 2013, China, the United States, the European Union, and Japan submitted written comments on each other's requests for interim review. No party requested an additional meeting with the Panel.
6.2.
The numbering of paragraphs and footnotes in the Final Reports has changed from the Interim Reports. The text below refers to the paragraph numbers in the Final Reports. References to paragraph numbers include a reference to relevant footnotes. The Panel notes that this section forms an integral part of its findings in this matter. The Panel notes the highly complex nature of many of the legal and factual issues in this dispute. It has thoroughly reviewed the parties' comments, their original arguments, and its own interim findings before issuing these Final Reports.

6.1 COMMENTS ON THE PANEL'S INTERIM FINDINGS

6.1.1 General

6.3.
Throughout its comments on the Interim Reports, China alleges that the Panel has acted inconsistently with Article 11 of the DSU by failing to make an objective assessment of the matter, including of the facts of the case. The Panel has seriously and attentively considered each one of China's allegations in this regard, as they go to the integrity of the Panel and the quality of its Reports. In the end, the Panel believes that each of China's allegations under Article 11 is based either on a disagreement with the Panel's assessment of the evidence, or with the way in which the Panel has clarified and applied the applicable provisions of the WTO Agreement. In light of China's allegations under Article 11, the Panel feels it appropriate to make some comments on the standard that it is required to apply.
6.4.
First, Article 11 requires a Panel to "determine the facts of the case and to arrive at factual findings".33 In fulfilling this mandate, a panel must "consider all the evidence presented to it, assess its credibility, determine its weight, and ensure that its factual findings have a proper basis in that evidence".34 As the trier of facts in the WTO dispute settlement system, a panel is required to treat all the evidence "even-handedly"35 and may not apply a double standard of proof.36 The Panel must also be careful not to disregard or ignore evidence that is relevant to one or another party's case.37 Having said that, it is well-established that "panels enjoy a margin of discretion in their assessment of the facts"38, and this discretion includes the prerogative both to "decide which evidence it chooses to utilize in making its findings" and "how much weight to attach to the various items of evidence placed before it by the parties".39 As long as a panel provides "reasoned and adequate explanations"40 as to its decisions in this respect, it will not violate Article 11 merely because one or more of the parties disagrees with its treatment of the evidence or would have liked the panel to come to a different conclusion. In this regard, we recall the Appellate Body's finding that panels "are not required to accord to factual evidence of the parties the same meaning and weight as do the parties".41
6.5.
Second, the Panel notes that, according to the Appellate Body, an allegation that a Panel has acted inconsistently with Article 11 must "stand on its own", and parties to a dispute should not simply "recast" their arguments "under the guise of an Article 11 claim" where they are unhappy with the panel's findings and disposition.42 In this regard, a party should not allege a violation of Article 11 as a "subsidiary argument" merely in support of an assertion that a panel erred in its application of a provision.43
6.6.
As is evident in the following paragraphs, the Panel has carefully considered all of the parties' assertions regarding the Panel's appreciation of the facts and the relevant legal provisions, and adjusted its Reports where appropriate. The Panel of course respects the right of the parties to comment at the interim review stage, and is grateful for the helpful clarification provided by all parties. Nevertheless, the Panel is of the view that China's comments regarding the Panel's failure to act consistently with Article 11 constitute subsidiary arguments in support of an assertion that the Panel has erred in its application of the relevant provisions.
6.7.
The Panel also notes that it has revised the text in footnote 32 to reflect more accurately the timing of third parties' submissions.
6.8.
The Panel will now proceed to discuss the parties' comments on the Panel's Interim Reports.
6.9.
The parties submitted several editorial revisions as well as other linguistic changes, which were not contested by the other parties. We have made these adjustments. The Panel also made minor editorial and non-substantive consequential changes as a result of other adjustments. The Panel has also corrected typographical and other non-substantive errors throughout the Report, including those identified by the parties. These are not referred to specifically below.
6.10.
In addition to minor typographical errors, the parties pointed to a number of wording and numbering errors in the Panel's findings. The Panel has adjusted its Reports accordingly and also made related changes, including in footnote 77 of paragraph 7.30 and paragraphs 7.57, 7.60, 7.85, 7.98, 7,266, 7,268, 7,271, 7,276, 7,321, 7,322, 7,326, 7,327, 7,332, 7,336, 7,353, 7,354, 7,356, 7,357, 7,375, 7,380 (including footnote 580), 7,423(b), 7,436, footnote 689 of paragraph 7,445, 7,473, 7,486, 7,495, 7,509, 7,510, 7,518, 7,520, 7,524, 7,526, 7,528, 7,555, 7,587, 7,588, 7,589, 7,591, 7,593, 7,600, 7,603, 7,610, 7,611, 7,612, 7,622, 7,625, 7,630, 7,633, 7,643, 7,646, 7,648, 7,650, 7,652, 7,656, 7,662, 7,683, footnote 1030 of paragraph 7,695, 7,798, 7,809, 7,828, 7,829, 7,835, 7,926, 7,935, 7,953, 7,956, 7,960, 7,981, 7,985, 7.1008, and footnote 1359 of paragraph 7.1037. The title of section 7.6.2.2.2.3 has been adjusted to better reflect its contents. Finally, in order to ensure consistency in its Reports, the panel has inserted a new title at 7.8.1.3.1.6.
6.11.
All parties requested that the Panel adjust its Reports to more fully and/or accurately reflect their arguments on specific points. The Panel has generally accepted these requests, and has also made related changes including at paragraphs 7.3 (concerning the United States' arguments on enhanced third party rights), footnote 77 of paragraph 7.30 (concerning whether any of the products concerned is listed in Annex 6 of China's Accession Protocol), 7.87 and 7.90, (concerning China's argument on the existence of a link between the WTO Agreement and GATT 1994 and its Accession Protocol and Working Party Report), 7,172 (concerning China's argument on the relationship between its export duties and its resource tax and Deposit for Ecological Recovery, and other environmental regulations), 7,184 (concerning the United States' argument regarding China's implementation of alternative measures), 7,302 (concerning one of China's arguments on the meaning of "work together"), 7,372 (concerning one of China's arguments as to how its conservation policy restricts extraction of rare earths), 7,380 (including footnote 580) (concerning China's signalling argument in the context of tungsten), 7,386 (including footnote 595), 7,399, 7,405, and 7,407 (concerning China's argument on the nature of the various instruments that form part of and/or relate to its conservation policy on rare earths), 7,413 (concerning China's "domestic supply squeeze" argument), footnote 699 of paragraph 7,450 (concerning Japan's argument on the use of export quotas as a safeguard), 7,479 (including footnote 745), 7,481 (including footnote 749) and 7,482 (including footnote 750) (concerning China's allocation of its export quota in "light" and "medium/heavy" rare earths), 7,484, 7,485, and 7,654 (concerning the formula by which China allocates export quota shares), 7,495, 7,743, and 7,885 (concerning China's arguments on the benefits of consolidation in the mining industry), 7,545 (concerning China's argument that domestic consumption cannot exceed the production quota minus actual exports), 7,550 (concerning China's argument on the method by which it sets the level of its extraction and production quotas), 7,651 (concerning the different product scopes of China's various quotas), 7,725 (concerning China's argument on signalling), 7,830 and 7,955 (concerning the reliability of data from Metal Pages), 7.1000 (concerning the Panel's agreement with China's argument on the non-existence of pre-conditions in the revised Foreign Trade Law).
6.12.
The parties requested that the Panel clarify some of its descriptions (including in the descriptive part) and factual conclusions. The Panel has adjusted its Reports accordingly and made a number of related revisions, including at footnote 29 of paragraph 2.16, paragraph 7,210 (concerning penalties related to the obligation to return unused export quota shares), 7,252 (concerning China's argument on the meaning of conservation), 7,292 (clarifying that the quota system under consideration is the one challenged by the complainants), footnote 611 of paragraph 7,398 (concerning the different versions of China's Foreign Trade Law), 7,440 (concerning China's signalling argument in the context of rare earths), 7,473 (concerning the alleged simultaneity of China's quotas), footnote 797 of paragraph 7,509, 7,510 and 7,550, (concerning the method by which China allegedly set the level of its extraction and production quotas), footnote 863 of paragraph 7,543, 7,549, 7,612, and 7,779 (including footnote 1127) (concerning China's VAT rebate system), 7,554 (concerning China's evidence on Baiyun Obo ores), 7,547 (concerning the existence of a volume restriction on domestic consumption), 7,574 and 7,579 (concerning the timing of China's first and second export quota batches), 7,596, (concerning the goals of China's export quota on rare earths), 7,668, 7,676, and 7,677 (concerning proposed alternative measures to China's rare earths export quota), 7,672 (concerning China's allegation that certain alternative measures proposed by the complainants would impose administrative costs), 7,748, 7,889 (concerning access conditions), 7,629 (concerning the United States' argument about the division of China's rare earth export quota into two categories), 7,695 (concerning the European Union's argument that China's export quota on tungsten does not "relate to" its conservation policy), 7,759 (concerning sanctions on over-quota production), 7,765, 7,771 (concerning the tungsten extraction and production quotas), 7,829 (concerning price differences for tungsten), and 7,989 (including footnote 1316) (concerning China's trading rights requirements).
6.13.
The parties requested the Panel to clarify some provisions of its findings. The Panel has adjusted its Reports accordingly, and made a number of related revisions, including at paragraphs. 7,186 (concerning alternative measures under Article XX(b)), 7,256 and 7,451 (concerning the Panel's understanding of "conservation"), 7,322 and 7,323 (concerning the Panel's use of jurisprudence and concepts developed in other international legal systems), 7,333 (concerning the meaning of "even-handed"), footnote 515 of 7,335 (concerning the use of "even-handedness" in recent WTO jurisprudence), footnote 723 of paragraph 7,462 (concerning the positive and negative signalling effects of export quotas), 7,453 (concerning the Appellate Body's interpretation of Article XI.2 of the GATT 1994), 7,487 (concerning China's right to pursue industrial policies within the limits of its conservation programme), 7,510, 7,526, and 7,528 (concerning whether or not China's extraction and/or production quotas were "restrictive"), 7,798 (concerning the Panel's assessment of the implications of China's setting different levels in different quotas), and 7,885 (concerning the Panel's assessment of China's access restrictions).

6.1.2 Specific comments

6.1.2.1 Export duties

6.14.
The United States requested that the Panel delete the paragraphs in its Interim Reports discussing the legal value of the Appellate Body's decision in China – Raw Materials on the applicability of Article XX of the GATT 1994 to Article 11.3 of China's Accession Protocol, which is again at issue in this dispute. The Panel believes that it is important to have regard to earlier findings of the Appellate Body that are directly relevant to the dispute. The Panel's discussion in section 7.3.2.1.1 is therefore appropriate, and we have maintained it in our Final Reports.

6.1.2.2 Export quotas

6.15.
The parties requested the Panel to revise its reference to the relevance of simultaneity in its discussion of the legal test relating to "work together" and in its description of China's export quota. The Panel has adjusted its Reports accordingly, including at paragraphs 7,300 and 7,473.
6.16.
China requested the Panel to review its description of the reasons why China allocates its export quota on rare earths in two broad categories. The complainants disagreed in part with China's request. The Panel has adjusted its findings taking into account the parties' interim comments, and has made adjustments as appropriate, including in paragraphs 7,479, 7,481, and 7,482.
6.17.
All parties requested the Panel to review its description of the export quota system with particular reference to the fact that unused quota shares are required to be returned to the Chinese authorities by 31 October each year and may not be exchanged among or between exporters. The Panel has reviewed its findings and made some adjustments, including at paragraphs 7,488, 7,594, 7,627, 7,656, 7,659, 7,661, 7,734, 7,808, 7,835, 7,926, 7,956 and 7,960. To reflect these changes, the Panel has also adjusted titles at 7.6.2.1.3.9, 7.7.2.1.3.3, and 7.8.1.2.3.2.
6.18.
China requested that its argument on industrial relocation be discussed more extensively by the Panel. The Panel has accepted this request, and modified its findings accordingly, including in section 7.6.3.1.2.
6.19.
China claimed that no evidence in the record would support the Panel's conclusion that "exporting firms tend to deal in one or a few products". According to China, "[i]t is obvious and logical that theoretical and speculative potential problems do not constitute evidence of actual problems".44 The Panel agrees with China that a Panel must not reach a conclusion purely on the basis of speculation. We have not done so. Our conclusions are based on evidence and analysis, of the design, structure, and architecture of the measures at issue, considered in light of the relevant economic environment. The Panel's view that because some firms, for whatever reason (including specialization, technical capacity, and/or business strategy) may not export every product contained in the light and/or medium/heavy categories – coupled with the fact that exporters cannot exchange their export licences inter se – could lead to discrimination even though the overall export quota is unfilled, is, as the European Union observed, a conceptual and structural analysis based on the parties' arguments and evidence. It is also based on China's explanations regarding the export quota's structure and operation, and is supported by the parties' descriptions of the rare earths market and associated practices.
6.20.
In paragraphs 50 and 51 of its comments on the Panel's Interim Reports, China argued for the first time that "exporting firms, even if not allowed to sell export quota shares among themselves, can always purchase individual rare earths elements that are in demand on the market and export until their quota share is filled". According to China, "[i]f exporters consider that a particular type of rare earth is needed more than another element by their clients, it is undisputed that they can buy this rare earth element on the market and export it to clients". This new argument was not supported by any reference or other evidence. For this reason, the Panel cannot, in keeping with its obligations under Article 11 of the DSU, properly assess the implications of China's statement that exporters can always purchase individual products on the market without reopening its investigation, asking further questions, and allowing the parties to debate further on this issue. Nevertheless, we take note of China's point, and we have adjusted our reasoning so that it will be clear that our findings are not based on the Panel's understanding that some exporters may not export all products. Section 7.6.2.2.2.3 of the Interim Reports has been partially revised and merged into section 7.6.3.1.1. of the Final Reports. Additionally, in light of the parties' comments, the Panel has modified paragraphs 7,926 and 7,927 concerning the Panel's understanding of the molybdenum export quota. Regarding the United States' request to extend this analysis to tungsten, the Panel has declined to accept the United States' request, since the export quota on tungsten was more fully used. The Panel has also made consequential adjustments to paragraphs 7,638 (including footnote 962), 7,639 (including footnote 963), 7,640, 7,641, 7,642, 7,643, 7,646, and 7,648.
6.21.
China asked the Panel to deal more directly with its arguments concerning industrial relocation under the chapeau of Article XX. The Panel has accepted China's request, and has adjusted its descriptions and findings as necessary and in light of the comments made by all the parties on this issue, including at paragraphs 7,621, 7,622, 7,623, 7,632, 7,633, 7,634, and 7,635. The Panel has also adjusted other of its findings that relate to relocation, including paragraph 7,444.
6.22.
China complained that it had not been asked to clarify its pricing analysis on molybdenum. In this connection, the Panel recalls that on 17 June 2013 at 17.00, on the eve of the second meeting, the Panel sent an email to the parties inter alia, revising the scope of question No. 85 – which originally referred to price information on rare earths - to include price information on tungsten and molybdenum. The revised question sent in the email was in the following terms:

To China: The analysis of price differences for rare earth products, tungsten and molybdenum that China provides in Annex 1 of its second written submission appears to suggest that in some cases, domestic prices are higher than adjusted foreign prices (examples include specific periods for Cerium oxide, Dysprosium metal, Europium oxide, Europium metal, Terbium oxide, Terbium metal. Yttrium metal, Praseodymium metal). Could China explain how domestic prices of exported goods can be higher than foreign prices?

6.23.
The Panel recalls that China made reference to this revised question at the second meeting with the Panel.
6.24.
It was evident that one of the objects of the email of 17 June was to extend the scope of question 85 to include tungsten and molybdenum. China responded to the Panel's question in writing on 8 July 2013. China's discussion in its response is very general, and, especially at paragraphs 71, 72, and 73, made a number of general observations, including on the relevance and reliability of data from Metal Pages. Since China has relied on data from Metal Pages with respect to all three products, the Panel was entitled to understand that these observations concerned the three products, and not just rare earths. The Panel was therefore entitled to conclude that China's response to question No. 85, and especially in paragraphs 71, 72, and 73, referred to all products at issue.
6.25.
If, at this late stage, China suggests that it intentionally declined to answer the Panel's question with regard to tungsten and molybdenum, the Panel is still entitled to raise the same doubts with respect to the reliability of the Metal Pages data on those products as it raised with respect to the data on rare earths. This is because, as we explained in the preceding paragraph, Metal Pages contains data on all three products, and China has relied on Metal Pages data in its arguments on all three products. Therefore, the Panel maintains the same position on this issue.
6.26.
Moreover, there is nothing in these paragraphs to suggest that China's answer was limited to rare earths and was not relevant to tungsten or molybdenum as well.
6.27.
Finally, the Panel recalls that the burden of proof is on China, since it raised the absence of price discrimination to demonstrate the compliance of its export quotas with the chapeau of Article XX of the GATT 1994.
6.28.
In light of the above, the Panel has slightly modified its language in paragraphs 7,830 and 7,955, and added text to footnotes 1165 and 1287.

6.2 ALLEGATIONS OF VIOLATION OF CONFIDENTIALITY OF THE INTERIM REPORTS

6.29.
We would like to address the issue of the confidentiality of the Interim Reports. When we transmitted our Interim Reports to the parties on 23 October 2013, we clearly indicated that such Reports were confidential. In addition, paragraph 23 of the Panel's working procedures clearly states that "The interim reports as well as the final reports before translation shall be kept strictly confidential and shall not be disclosed". Therefore, we are very concerned that information concerning the Interim Reports or their contents appears to have been disclosed by one or more parties. Based on the information subsequently provided to us by the parties, it appears that aspects of the Interim Reports were leaked to the press.45 The Panel does not have any evidence as to the source of this leak to the press. The Panel also notes that one party to the dispute alleged that an official of another party to the dispute leaked details of the Interim Reports. Ultimately, while the Panel is not in a position to take any action regarding these leaks, it wishes to emphasize its disappointment and concern that the confidentiality of the Interim Reports was not respected.

7 FINDINGS46

7.1 REQUEST FOR ENHANCED THIRD-PARTY RIGHTS

7.1.
On 9 October 2012, Canada requested47 the following rights for itself and the other third parties in these proceedings: (i) to receive copies of the parties' written submissions, their oral statements, rebuttals, and answers to questions from the Panel and each other, through all stages of the proceedings; (ii) to be present for the entirety of all substantive meetings of the Panel with the parties; (iii) to make a second written submission, and/or to present an oral statement, in a special session set aside for this purpose, during the second substantive meeting, should such a special session be held; and (iv) to review the draft summary of its own arguments in the descriptive part of the Panel Report. After considering Canada's request and consulting the parties on this request, the Panel informed Canada on 19 October 2012 that it had decided to decline its request. The Panel concluded that the reasons Canada raised were not among those that would justify departing from the third-party rights established in paragraphs 2 and 3 of Article 10 of DSU, paragraph 6 of Appendix 3 to the DSU and panel practice regarding enhanced third-party rights. In its communication, the Panel indicated that it would provide its reasoning on this matter in its Reports. Our reasons are provided below.
7.2.
Canada argues that it has, along with the other third parties, "significant direct legal and systemic interests" in the outcome of this dispute, given both the "nature" of the measures at issue (i.e. export restrictions), and the provisions of the WTO Agreement under which these measures are challenged. Canada argues that it, along with the other third parties, is a significant producer and consumer of the materials in this dispute, "or of other resources that are similar or analogous to these", such that the Panel's interpretation of the WTO obligations in question may have "significant and sustained implications" for their economic interests. Canada notes that the Panel's interpretation of the availability and application of defences under the GATT 1994 may affect its own rights and obligations. Canada stresses that arguments on this point may not receive attention until the late stages of the dispute, to which third parties are not given access under standard Working Procedures. Canada also makes systemic arguments in favour of its position. Canada argues that negotiations on amending the DSU, though incomplete, demonstrate a "broad consensus" that the traditional framework for third party participation is inadequate, and that such inadequacy is evident from the increasing tendency of panels to grant enhanced third-party rights on an ad hoc basis. Canada cites the panel reports in Canada Renewable Energy / Canada Feed-In Tariff Program, US – COOL, EC – Tariff Preferences and EC – Export Subsidies on Sugar as evidence of this tendency, and argues that these cases are unified by the recognition of the "inherent and significant interests" of third parties in each case. Canada argues that granting its request would not disturb the balance between parties and third parties.48
7.3.
All parties request that the Panel deny Canada's request for enhanced third-party rights. The United States asserts that under Article 12.1 of the DSU, any departure from the Working Procedures in Appendix 3 to the DSU should only be decided "after consulting the parties to the dispute." The United States considers that with the agreement of the parties granting a request for enhanced third-party rights could be seen as contributing to securing a positive solution to the dispute. However, the United States asserts that as the parties had not agreed to support Canada's request in this dispute, the Panel should decline that request. In addition, the United States argues that neither Canada Renewable Energy / Canada Feed-In Tariff Program nor US – COOL provides reasoning that supports Canada's request, given that the Reports in Canada Renewable Energy / Canada Feed-In Tariff Program had yet to be circulated as of the time of Canada's request in these proceedings, and that the panel in US – COOL provided no explanation of why it granted enhanced third-party rights, thus rendering impossible an evaluation of either panel's reasoning. The United States also distinguishes the reports in EC – Tariff Preferences and EC – Export Subsidies on Sugar, on the basis that enhanced third-party rights were granted in those cases to Members that were at risk of losing the benefits of the EC measures at issue, such that "their interests could almost be characterized as those of co-responding parties", which is not the case in this dispute. The United States disagrees with the other assertions made by Canada in support of its request. The United States argues that the DSU already provides certain rights for Members with a substantial interest in a dispute, and articulates which opportunities they shall enjoy. The United States disputes Canada's assertion that its rights and obligations might be implicated by this dispute, given that Canada is not a party to this dispute and therefore any DSB recommendations and rulings cannot affect Canada's rights and obligations. Finally, the United States argues that Canada's arguments would tend to justify the granting of third-party rights in most, if not all, disputes, and if Canada advocates such a model for enhanced third-party rights, it should do so through DSU negotiations rather than pre-empting them and adopting a model not agreed to by Members.49
7.4.
The European Union submits that Canada cannot demonstrate that it will experience direct legal and economic consequences as a result of this dispute, thus distinguishing this case from EC – Export Subsidies on Sugar and EC – Bananas III, in which third parties were granted enhanced rights. The European Union argues that Canada's concerns are shared by at least the majority of WTO Members, such that their interest does not substantially exceed the interests of other Members. Moreover, the granting of such rights would unduly interfere with the smooth functioning of the dispute, considering the complexities associated with having three co-complainants and 19 third parties.50
7.5.
Japan did not make written submissions to the Panel regarding Canada's request. However, at the organizational meeting of the parties on 11 October 2012, Japan expressed its opposition to the granting of enhanced rights to Canada.
7.6.
China notes that Canada already has, under existing procedures, the opportunity to articulate its views to the Panel, and that Canada retains the right to initiate its own dispute. However, China's primary opposition to Canada's request is based on the additional burden that the granting of enhanced third-party rights would place on China's participation in this dispute. China faces time, cost, and resource burdens in responding to the evidence and arguments of three separate complainants. Such burdens are magnified by the "extraordinary" number of third parties, which increase the burden on China, the complaining parties, and the Secretariat. China submits that the basis for Canada's request would render it "difficult" for the Panel to grant such enhanced rights without granting similar rights to the other third parties given that all parties have a systemic interest in, for example, the interpretation of Article XX of the GATT 1994. China therefore expresses concern that it will be required to respond to the first and second submissions of all 19 third parties, thus creating a "significant additional burden on China at a time in the proceedings when its resources will already be fully deployed". China submits that the consequence of granting such rights is that China requires an additional 30 days to prepare for the second substantive meeting.51
7.10.
For these reasons, the Panel declines Canada's request.67

7.2 EVIDENCE SUBMITTED ON 17 JULY 2013

7.11.
Before proceeding to analyse the main issues in this matter, there is an important issue that the Panel must address. This relates to China's request regarding certain exhibits submitted by the complainants together with their responses to the Panel's questions after the second meeting on 17 July 2013. On 18 July 2013, China wrote the Panel expressing its "strong objection" to this evidence, which consists of 10 exhibits68 including four expert reports69, and asked the Panel to reject it and the arguments that are based on it.
7.12.
On 20 July 2013, the Panel wrote to the parties regarding China's letter. The Panel noted that the relevant exhibits were submitted together with the complainants' comments on China's responses to the Panel's questions after the second meeting, rather than with the complainants' answers to those questions. The Panel also extended to China the option of responding to the exhibits by 17.00 on 24 July 2013, but reserved its right to decide whether the relevant exhibits should be considered as late evidence under WTO law in its final reports.
7.13.
On 22 July 2013, the complainants jointly sent a response to China's letter and the Panel's communication. In their letter, the complainants asked the Panel to reject China's request. They noted that the Working Procedures in this dispute specifically provide that parties may submit evidence for purposes of rebuttal or comments on answers provided by other parties, and argued that each exhibit submitted by them together with their comments on China's responses to the Panel's questions after the second meeting was in accordance with the said Working Procedures.
7.14.
Finally, on 24 July 2013, China submitted its comments on the complainants' exhibits, and repeated its contention that all of the exhibits should have been submitted earlier. China also explained that it had not had sufficient time to respond to all of the points raised by the exhibits, and claimed that the time period provided by the Panel was too short.
7.15.
The exhibits challenged by China are:

a. Web-Published Notice on the 2013 Initial Approval List of Enterprises Qualified to Export Rare Earths in the Annual Review (Ministry of Commerce, Department of Foreign Trade, December 17, 2012), (Exhibit JE‑188).

b. Sina.com.cn, Rare Earth Mining Controls said to "might as well not exist", real production remains over-quota every year (April 1, 2011), (Exhibit JE‑189).

c. Yancheng Evening News, Rare Earth Industry Reorganizing, Guandong Staking an Early Claim (February 28, 2012), (Exhibit JE‑190).

d. Xinhuanet.com, China Minmetals Proposes Production Freeze, Revealing Unspoken Rules inside RE Industry, (Exhibit JE‑191).

e. Quotes from China's Export Quotas and Measures Promoting Downstream Industries, (Exhibit JE‑192).

f. Professor L Alan Winters: Comments on China's replies to Questions 76 and 87, (Exhibit JE‑193).

g. Professor L Alan Winters: Comments on China's replies to Questions 78 and 86, (Exhibit JE‑194).

h. Professor L Alan Winters: Response to Professor De Melo, Exhibit CHN-206 and certain points in China's Answers of 8th July 2013, (Exhibit JE‑195).

i. Dudley Kingsnorth, "Rare Earths: An Industry Undergoing Rejuvenation," June 2013, published jointly by Curtin University and IMCOA, (Exhibit JE‑196).

j. Professor Gene Grossman: Response to Professor Jaime de Melo, (Exhibit JE‑197).

7.16.
The Panel will now proceed to determine whether or not it should accept China's request to reject the relevant exhibits. The Panel begins by recalling that, pursuant to paragraph 7 of its Working Procedures,

Each party shall submit all factual evidence to the Panel no later than during the first substantive meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions or comments on answers provided by the other party(ies). Exceptions to this procedure shall be granted upon a showing of good cause. Where such exception has been granted, the Panel shall accord the other party(ies) a period of time for comment, as appropriate, on any new factual evidence submitted after the first substantive meeting.

7.18.
Moreover, the Panel is aware that in the context of a dispute where the respondent invokes Article XX, the first meeting may be the first occasion for the complainant to learn about the respondent's arguments and evidence related to that defence. As such, it may, depending on the circumstances, be appropriate to allow the submission of new evidence after the first meeting, in order to allow the complainants sufficient opportunity to file evidence in response.
7.20.
In the Panel's opinion, due process in this case requires that the exhibits submitted by the complainants with their comments on China's responses to the Panel's questions after the second meeting not be admitted. This is so for a number of reasons.
7.21.
First, the Panel believes that the vast majority of this evidence could and should have been submitted at an earlier date. For instance, the Panel does not understand why the complainants waited until the middle of July to submit Yangcheng Evening News, Rare Earth Industry Reorganizing, Guandong Staking an Early Claim, (Exhibit JE‑190), since that document was published on 28 February 2012. The same is true of Sina.com.cn, Rare Earth Mining Controls Said to "Might As Well Not Exist", Real Production Remains Over-Quota Every Year, (Exhibit JE‑189), which was published on 1 April 2011, and of Xinhuanet.com, China Minmetals Proposes Production Freeze, Revealing Unspoken Rules inside RE Industry, (Exhibit JE‑191), which was published on 2 August 2011. Finally, the Web-Published Notice on the 2013 Initial Approval List of Enterprises Qualified to Export Rare Earths in the Annual Review, (JE-188) was released by MOFCOM on 17 December 2012.
7.22.
The complainants have alleged that these exhibits rebut new arguments made by China at the second meeting with the Panel. We disagree. The Panel is rather of the view that these exhibits contain facts and evidence supporting the complainants' statements at the second meeting. It is not clear why the complainants did not submit these exhibits with their responses to the Panel's questions after the second meeting, rather than with their comments on China's responses to those questions.
7.23.
The Panel notes that, in Thailand – Cigarettes (Philippines), the Appellate Body stated that "[d]ue process may be of particular concern in cases where a party raises new facts at a late stage of the panel proceedings".74 As the Panel will explain further below, it does not believe that any of the exhibits submitted by the complainants on 17 July 2013 contain "new facts". Nevertheless, the Panel considers that even where challenged evidence does not contain new facts, the submission by any party of a large bundle of evidence at a very late stage in the proceedings, especially when such evidence could have been provided earlier, raises due process issues for the opposing party (here, China), whose opportunity to make its defence could be undermined, and complicates a panel's task of resolving disputes in a timely manner.
7.24.
Second, the Panel is concerned by the submission of new expert reports at this late stage. The Panel understands the complainants' desire to rebut China's arguments as effectively as possible. However, as is recognized in Article 3.3 of the DSU, the "prompt settlement" of disputes is "essential to the effective functioning" of the WTO dispute resolution system, and panels have an interest in seeing that cases are "brought to a close" in a timely manner.75 In the Panel's opinion, allowing the submission of new expert reports at this late stage in the proceedings could prolong the dispute unnecessarily, since China would no doubt wish to submit expert reports of its own that the complainants would then wish to rebut with new expert reports, and so on. Endless rounds of expert reports, while they may "rebut" each other, are not in the interests of prompt dispute settlement.
7.25.
Finally, the Panel notes that Quotes from China's Export Quotas and Measures Promoting Downstream Industries, (Exhibit JE‑192) consists, as its name suggests, entirely of quotes from exhibits already submitted as evidence to the Panel. With respect to this exhibit, the Panel recalls that Paragraph 7 of the Panel's Working Procedures does not allow the submission of any rebuttal evidence.Instead, the paragraph is explicit that only evidence "necessary for purposes of rebuttal" should be admitted. In the Panel's opinion, Exhibit JE‑192 adds nothing substantial to the evidence already submitted. It does not change the outcome of the case or the Panel's analysis. Accordingly, the Panel does not consider that it is "necessary for purposes of rebuttal".
7.26.
Indeed, and more generally, the Panel considers that none of the challenged exhibits are "necessary for purposes of rebuttal". In the Panel's opinion, the media reports and complainants' new expert reports, the Web-Published Notice on the 2013 Initial Approval List of Enterprises Qualified to Export Rare Earths in the Annual Review, and as we have said, the compilation of quotations generally restate arguments or evidence that is already stated elsewhere. As such, the Panel does not consider that these exhibits are "necessary" to enable the complainants to rebut China's case. While they may be helpful or confirmatory, this, in the Panel's opinion, does not rise to the required level of necessity.
7.27.
In sum, the Panel believes that the relevant exhibits were submitted too late; they could have been submitted earlier and in a manner consistent with due process. Additionally, these exhibits do not supplement the evidence already accepted by the Panel. They do not, as far as the Panel can see, say anything substantially new or different from what is said in the exhibits that the complainants submitted prior to 17 July 2013.
7.28.
In conclusion, the Panel accepts China's request that the exhibits submitted by the complainants on 17 July 2013 be rejected. The Panel will therefore proceed to analyse this dispute without reference to such exhibits.76

7.3 EXPORT DUTIES

7.3.1 Introduction and claim under Paragraph 11.3 of China's Accession Protocol

7.29.
Paragraph 11.3 of China's Accession Protocol states that "China shall eliminate all taxes and charges applied to exports unless specifically provided for in Annex 6 of this Protocol or applied in conformity with the provisions of Article VIII of the GATT 1994."
7.30.
The complainants assert that, in 2012, China imposed export duties on 363 products, including 58 rare earths products, 15 tungsten products77, and nine molybdenum products.78 The complainants submit that these latter 82 products are not identified in Annex 6 of China's Accession Protocol, and that China's imposition of export duties on these products is therefore inconsistent with Paragraph 11.3 of its Accession Protocol.
7.31.
China does not dispute the complainants' allegation that it has acted inconsistently with Paragraph 11.3 of its Accession Protocol.79 However, China argues that the obligation in Paragraph 11.3 is subject to the general exceptions in Article XX of the GATT 1994, and submits that the export duties at issue are justified under Article XX(b) of the GATT 1994 because they are "necessary to protect human, animal or plant life or health".
7.32.
The complainants respond that the obligation in Paragraph 11.3 of China's Accession Protocol is not subject to the general exceptions in Article XX of the GATT 1994, and that China has in any event failed to demonstrate that its export duties are necessary to protect human, animal or plant life or health.
7.33.
The Panel will begin by determining whether the measures at issue are inconsistent with Paragraph 11.3 of China's Accession Protocol, and will then turn to China's defence under Article XX(b) of the GATT 1994.
7.34.
The Panel will begin its analysis with a brief review of the obligation contained in Paragraph 11.3 of China's Accession Protocol. The Panel will then review the evidence provided by the complainants in support of their claim, which is uncontested by China, that China has imposed export duties in violation of this obligation.

7.3.1.1 The obligation in Paragraph 11.3 of China's Accession Protocol

7.35.
When China was negotiating its accession to the WTO, some Members raised concerns over taxes and charges that China applied exclusively to exports.80 As a result, the following legal obligation was included in Paragraph 11.3 of China's Accession Protocol:

China shall eliminate all taxes and charges applied to exports unless specifically provided for in Annex 6 of this Protocol or applied in conformity with the provisions of Article VIII of the GATT 1994.

7.36.
In China – Raw Materials, the Appellate Body saw no ambiguity in the text of Paragraph 11.3 of China's Accession Protocol:

By its terms, Paragraph 11.3 of China's Accession Protocol requires China to "eliminate all taxes and charges applied to exports" unless one of the following conditions is satisfied: (i) such taxes and charges are "specifically provided for in Annex 6 of [China's Accession] Protocol"; or (ii) such taxes and charges are "applied in conformity with the provisions of Article VIII of the GATT 1994".81

7.37.
Thus, Paragraph 11.3 of China's Accession Protocol requires China to eliminate taxes and charges applied to exports unless such taxes and charges are "specifically provided for in Annex 6" of China's Accession Protocol. Annex 6 in turn "specifically provides for" maximum export duty levels on 84 listed products. Annex 6 is entitled "Products Subject to Export Duty". It contains a table listing the 84 different products (each identified by an eight-digit Harmonized System (HS) number and product description), and specifies a maximum export duty rate for each.
7.38.
Following the table listing the 84 different products that are subject to the continued imposition of export duties, Annex 6 includes the following text (Note to Annex 6):

China confirmed that the tariff levels in this Annex are maximum levels which will not be exceeded. China confirmed furthermore that it would not increase the presently applied rates, except under exceptional circumstances. If such circumstances occurred, China would consult with affected members prior to increasing applied tariffs with a view to finding a mutually acceptable solution.

7.39.
In China – Raw Materials, the Appellate Body confirmed the ordinary meaning of the terms of the Note to Annex 6:

The Note to Annex 6 clarifies that the maximum rates set out in Annex 6 "will not be exceeded" and that China will "not increase the presently applied rates, except under exceptional circumstances". The Note therefore indicates that China may increase the "presently applied rates" on the 84 products listed in Annex 6 to levels that remain within the maximum levels listed in the Annex.82

7.3.1.2 The measures at issue

7.41.
The measures at issue in this dispute are the so-called temporary export duties that China imposed on various rare earths, tungsten, and molybdenum products for 2012. China's system of export duties is composed of framework legislation, implementing regulations, other applicable laws and the specific annual measures imposing the export duties. The Panel recalls in this respect that the panel and the Appellate Body in China – Raw Materials also made findings on a series of measures.84 Accordingly, the Panel will make findings and recommendations with respect to the series of measures comprising the relevant framework legislation, the implementing regulation(s), other applicable laws and the specific annual measures imposing the export duties existing at the date of the Panel's establishment.
7.42.
Chapter V, Article 53 of the Customs Law of People's Republic of China gives China's Customs the authority to collect export duties.85
7.43.
The Regulations on Import and Export Duties86 provide that China's Customs authority shall "collect import or export duties on all goods permitted by the People's Republic of China to be imported into or exported out of the Customs territory".87 The Tariff Commission of China, which is established by the State Council, has various responsibilities referred to specifically in the Regulations on Import and Export Duties. According to Article 4 of the Regulations on Import and Export Duties, the Tariff Commission is responsible for adjusting and interpreting tariff items and duty rates, as well as for "determining the goods subject to temporary duty rates" and "determining the application of duty rates under special circumstances". Article 9 of the Regulations on Import and Export Duties states that "[d]uty rates on export goods are designed to collect export duty. Temporary duty rates may apply to export goods within a specific time limit". Article 11 states further that: "[w]here there are temporary duty rates on export goods to which the export duty rates are applicable, such temporary duty rates shall apply". Thus, the Regulations on Import and Export Duties envisage at least three types of export duty rates in China: (i) "regular" export duty rates which are generally applicable; (ii) "temporary" export duty rates which are established for a limited period of time88; and (iii) "special" export duty rates, which are established under special circumstances.89
7.44.
On 9 December 2011, the Tariff Commission issued the 2012 Tariff Implementation Program (Customs Tariff Commission). The 2012 Tariff Implementation Program (Customs Tariff Commission) took effect on 1 January 2012. The 2012 Tariff Implementation Program (Customs Tariff Commission) outlines adjustments to export duties, providing that in 2012 the "export tariff" export tax rates in effect for 2011 will remain unchanged.90 Annex 6 of the 2012 Tariff Implementation Program (Customs Tariff Commission) is entitled "Table of Duty Rates for Exported Commodities".
7.45.
On 23 December 2011, the Customs Administration issued the 2012 Tariff Implementation Plan (General Administration of Customs).91 This instrument came into effect on 1 January 2012, and implemented the aforementioned 2012 Tariff Implementation Program (Customs Tariff Commission).92 The export duties imposed on rare earths, tungsten, and molybdenum are identical in the two measures.
7.46.
The Table of Duty Rates for Exported Commodities contained in Annex 6 of the 2012 Tariff Implementation Program identifies, by HS number, 363 products subject to export duties beginning 1 January 2012.93 The complainants have provided a copy of the relevant parts of the Table of Duty Rates for Exported Commodities in the form of Exhibit JE‑45. The complainants have also reproduced the relevant information therein in a "Chart of Raw Materials Subject to Export Duties", submitted as Exhibit JE‑6. These exhibits set forth the 'temporary' export duty rates imposed on 58 rare earths products, 15 tungsten products94, and nine molybdenum products. These 82 products, along with the individual rates ranging from 5 to 25% ad valorem, are as follows:

Raw MaterialDuty List Item No.Product Name (Short Form)HS Code"Temporary" Export Duty Rate for 2012
Rare Earths 29 Rare earth ores 2530.9020 15%
47 Thorium 2612.2000 10%
87 Neodymium 2805.3011 25%
88 Dysprosium 2805.3012 25%
89 Terbium 2805.3013 25%
90 Lanthanum 2805.3014 25%
91 Cerium 2805.3015 25%
92 Praseodymium 2805.3016 25%
93 Yttrium 2805.3017 25%
94 Other rare earths 2805.3019 25%
95 Battery quality rare earths 2805.3021 25%
96 Other mixed rare earths 2805.3029 25%
123 Cerium oxide 2846.1010 15%
124 Cerium hydroxide 2846.1020 15%
125 Cerium carbonate 2846.1030 15%
126 Other cerium compounds 2846.1090 15%
127 Yttrium oxide 2846.9011 25%
128 Lanthanum oxide 2846.9012 15%
129 Neodymium oxide 2846.9013 15%
130 Europium oxide 2846.9014 25%
131 Dysprosium oxide 2846.9015 25%
132 Terbium oxide 2846.9016 25%
133 Praseodymium oxide 2846.9017 25%
134 Other rare earth oxides 2846.9019 15%
135 Terbium chloride 2846.9021 25%
136 Dysprosium chloride 2846.9022 25%
137 Lanthanum chloride 2846.9023 25%
138 Neodymium chloride 2846.9024 15%
139 Praseodymium chloride 2846.9025 15%
140 Yttrium chloride 2846.9026 15%
141 Mixed rare earth chlorinates 2846.9028 15%
142 Unmixed rare earth chlorinates 2846.9029 15%
143 Terbium fluoride 2846.9031 15%
144 Dysprosium fluoride 2846.9032 15%
145 Lanthanum fluoride 2846.9033 15%
146 Neodymium fluoride 2846.9034 15%
147 Praseodymium fluoride 2846.9035 15%
148 Yttrium fluoride 2846.9036 15%
149 Other rare earth fluorides 2846.9039 15%
150 Lanthanum carbonate 2846.9041 15%
151 Terbium carbonate 2846.9042 25%
152 Dysprosium carbonate 2846.9043 25%
153 Neodymium carbonate 2846.9044 15%
154 Praseodymium carbonate 2846.9045 15%
155 Yttrium carbonate 2846.9046 15%
156 Mixed rare earth carbonate 2846.9048 15%
157 Unmixed rare earth carbonate 2846.9049 15%
158 Other lanthanum compounds 2846.9091 25%
159 Other neodymium compounds 2846.9092 25%
160 Other terbium compounds 2846.9093 25%
161 Other dysprosium compounds 2846.9094 25%
162 Other praseodymium compounds 2846.9095 25%
163 Other yttrium compounds 2846.9096 25%
164 Other rare earth compounds 2846.9099 25%
232 NdFeB magnet film 7202.9911 20%
233 Other NdFeB alloys 7202.9919 20%
234 Ferroalloy containing rare earths 7202.9991 25%
235 Other ferroalloys 7202.9999 20%
Tungsten 70 Tungsten ash 2620.9910 10%
105 Tungsten acid 2825.9011 5%
106 Tungsten trioxides 2825.9012 5%
107 Other tungsten oxides and hydroxides 2825.9019 5%
118 APT 2841.8010 5%
119 Sodium tungstate 2841.8020 5%
120 Calcium tungstate 2841.8030 5%
121 Ammonium metatungstate 2841.8040 5%
122 Other tungstates 2841.8090 5%
165 Tungsten carbide 2849.9020 5%
227 Ferro-tungsten 7202.8010 20%
228 Ferro-silico-tungsten 7202.8020 20%
347 Tungsten powder 8101.1000 5%
348 Unwrought tungsten 8101.9400 5%
349 Tungsten waste 8101.9700 15%
Molybdenum 48 Roasted molybdenum ores & concentrates 2613.1000 15%
49 Other molybdenum ores & concentrates 2613.9000 15%
104 Molybdenum oxides and hydroxides 2825.7000 5%
116 Ammonium molybdate 2841.7010 5%
117 Other molybdates 2841.7090 5%
226 Ferro-molybdenum 7202.7000 20%
350 Molybdenum powder 8102.1000 5%
351 Unwrought molybdenum 8102.9400 5%
352 Molybdenum scrap 8102.9700 15%

7.47.
The Panel considers that these export duties constitute, by definition, "taxes and charges applied to exports" within the meaning of Paragraph 11.3 of China's Accession Protocol. China has not argued otherwise. The Panel observes that none of the 82 products at issue are included among the 84 products identified by HS number in Annex 6 of China's Accession Protocol. The Panel notes that China does not dispute the complainants' assertions or evidence regarding the application of these "temporary" export duties, and that China does not dispute that the measures at issue are inconsistent with Paragraph 11.3 of its Accession Protocol.

7.3.1.3 Conclusion

7.48.
In the light of the foregoing, the Panel concludes that in 2012, China imposed export duties ranging from 5 to 25% ad valorem on 58 rare earths products, 15 tungsten products, and nine molybdenum products.95 The Panel concludes that these products are not included in Annex 6 of China's Accession Protocol. Accordingly, the Panel finds that China's imposition of export duties96 on those products is inconsistent with Paragraph 11.3 of its Accession Protocol.

7.3.2 China's defence under Article XX(b) of the GATT 1994

7.49.
China argues that the obligation in Paragraph 11.3 of its Accession Protocol is subject to the general exceptions in Article XX of the GATT 1994, and that the export duties at issue are justified under Article XX(b) of the GATT 1994 because they are necessary to protect human, animal or plant life or health.
7.50.
The complainants respond that the obligation in Paragraph 11.3 of China's Accession Protocol is not subject to the general exceptions in Article XX of the GATT 1994, and that the export duties at issue are in any event not justified under Article XX(b) of the GATT 1994 because China has failed to demonstrate that they are necessary to protect human, animal or plant life or health.
7.51.
The Panel will begin by considering whether the obligation in Paragraph 11.3 of China's Accession Protocol is subject to the general exceptions in Article XX of the GATT 1994.
7.52.
The parties have submitted extensive arguments on this issue. The Panel also received extensive arguments on this same issue from the third parties. Argentina97 and the Russian Federation98 take the position that the obligation in Paragraph 11.3 of China's Accession Protocol is subject to the general exceptions in Article XX of the GATT 1994. Australia99, Canada100, Norway101, and Turkey102 agree with the complainants' position. Korea103 and Saudi Arabia104 submit that the Panel should be guided by the relevant findings of the Appellate Body in China – Raw Materials. Brazil considers that while "restrictions on the Member's right to promote its sustainable development cannot be presumed or inferred"105, it "takes no definite position"106 on the issue, and clarifies that "it does not necessarily disagree with the ultimate conclusions of the Panel and the Appellate Body in China-Raw Materials on the application of Article XX in that case".107 Colombia "takes no definitive position on the issue of whether Paragraph 11.3 of China's Accession Protocol is subject to Article XX", and considers that "there are compelling arguments to rule on either way".108

7.3.2.1 Whether the obligation in Paragraph 11.3 of China's Accession Protocol is subject to the general exceptions in Article XX of the GATT 1994

7.3.2.1.1 Adopted panel and Appellate Body reports addressing the same legal issue

7.53.
In China – Raw Materials, the complainants in that case109 claimed that China imposed export duties on certain raw materials, and that this violated Paragraph 11.3 of its Accession Protocol. In response, China argued that the obligation in Paragraph 11.3 is subject to the general exceptions in Article XX of the GATT 1994. Following a lengthy analysis of this issue, the panel concluded that "there is no basis in China's Accession Protocol to allow the application of Article XX of the GATT 1994 to China's obligations in Paragraph 11.3 of the Accession Protocol".110 China appealed that finding. Following its own lengthy analysis of this issue, the Appellate Body ultimately found that "a proper interpretation of Paragraph 11.3 of China's Accession Protocol does not make available to China the exceptions under Article XX of the GATT 1994", and accordingly upheld the panel's finding that "there is no basis in China's Accession Protocol to allow the application of Article XX of the GATT 1994 to China's obligations in Paragraph 11.3 of the Accession Protocol".111 The DSB adopted the Appellate Body reports in China – Raw Materials, and the Panel Reports as modified by the Appellate Body, on 22 February 2012.112
7.54.
In the present dispute, China requests that the Panel re-examine the same question of law, and find that Article XX of the GATT 1994 is available to justify a violation of Paragraph 11.3 of its Accession Protocol.113 In support of its position, China presents arguments that are, in its view, "new arguments that have not been asserted previously, or arguments which were neither argued nor addressed fully by the panel and the Appellate Body in China – Raw Materials".114 In the light of these arguments, China asks the Panel to "undertake its own independent interpretation" of the issue.115 In this respect, China asked the Panel to issue a preliminary ruling on the availability, to China, of general exceptions enshrined in the GATT 1994, more specifically the general exceptions enshrined in Article XX of the GATT 1994, to excuse a potential violation of Paragraph 11.3 of China's Accession Protocol. China requested the Panel to make such a ruling on an "expedited basis".116 We declined China's request for a preliminary ruling on the grounds that the request concerned a complex issue of substance as opposed to an issue of procedure or jurisdiction, and we required sufficient time to carefully consider the extensive argumentation of the parties and third parties. Having now considered carefully the argumentation, we set out our ruling on this matter below.

7.3.2.1.2 Overview of China's arguments in this dispute

7.62.
In its first written submission, China argues that while there is no explicit textual language linking Paragraph 11.3 of its Accession Protocol to Article XX of the GATT 1994, "such textual silence does not mean that it was the Members' common intention that no such defence should be available to China".128 China then presents three specific arguments in support of its position that the obligation in Paragraph 11.3 of its Accession Protocol is subject to the general exceptions in Article XX of the GATT 1994. China presents its arguments under the following headings: (i) "Paragraph 11.3 of China's Accession Protocol has to be treated as an integral part of the GATT 1994"129; (ii) "The terms 'nothing in this Agreement' in the chapeau of Article XX of the GATT 1994 do not exclude the availability of Article XX to defend a violation of Paragraph 11.3 of China's Accession Protocol"130; and (iii) "An appropriate holistic interpretation, taking due account of the object and purpose of the WTO Agreement, confirms that China may justify export duties through recourse to Article XX of the GATT 1994".131

7.3.2.1.3 China's argument regarding the interpretation of omissions in the covered agreements

7.63.
In its first written submission, China "accepts the Appellate Body's findings in China – Raw Materials that there is no explicit textual link in China's Accession Protocol that would make the exceptions of Article XX of the GATT 1994 available for excusing a potential violation of Paragraph 11.3 of China's Accession Protocol".132 However, China argues that while there is no explicit textual link between Paragraph 11.3 of its Accession Protocol and Article XX of the GATT 1994, "such textual silence does not mean that it was the Members' common intention that no such defence should be available to China".133 In this regard, China quotes the following passage from the Appellate Body report in US – Carbon Steel:

[T]he task of ascertaining the meaning of a treaty provision with respect to a specific requirement does not end once it has been determined that the text is silent on that requirement. Such silence does not exclude the possibility that the requirement was intended to be included by implication.134

7.64.
China has elsewhere referred to this passage from US – Carbon Steel in its submissions to this Panel.135 China has also made various statements to the same effect. For example, it has argued that "[t]he mere fact" that Paragraph 11.3 of its Accession Protocol does not explicitly reference Article XX of the GATT 1994 "is not a sufficient basis" to deny its applicability.136 In its third-party submission, Brazil comments on "some aspects regarding the interpretation of omissions in the covered agreements", and likewise refers to various panel and Appellate Body reports interpreting omissions and silences in the covered agreements, including this same passage from the Appellate Body report in US – Carbon Steel.137 Brazil submits that "the mere fact" that there is no specific reference to the right of a member to regulate trade in a manner consistent with its WTO obligations "should not be automatically assumed" to mean that Article XX is not available to China.138 China states that it agrees with Brazil's statement that whether there is an explicit reference in Paragraph 11.3 of China's Accession Protocol to the WTO Agreement is not "dispositive" of whether China may invoke Article XX of the GATT 1994 to justify a potential violation of its export-duty commitments.139 In this regard, China submits that "[i]t cannot be stressed often enough that textual silence in a treaty provision is not, in and of itself, dispositive".140
7.65.
The Panel observes that in China – Raw Materials, the Appellate Body did not refer to its approach to interpreting "silence" in US – Carbon Steel. In the interest of undertaking a full exploration of the issues raised by China's specific arguments, we have undertaken a review of the Appellate Body's analysis in China – Raw Materials in the light of the Appellate Body's analysis in US – Carbon Steel. We have done so to determine whether there is any incompatibility, as the argument of China implies, between the Appellate Body's position in China – Raw Materials and US – Carbon Steel. In the Panel's view, there is none.
7.66.
In US – Carbon Steel, the Appellate Body stated that "[t]he task of ascertaining the meaning of a treaty provision with respect to a specific requirement does not end once it has been determined that the text is silent on that requirement … [s]uch silence does not exclude the possibility that the requirement was intended to be included by implication."141 In China – Raw Materials, the Appellate Body did not reach its conclusion on the non-availability of Article XX of the GATT 1994 to Paragraph 11.3 of China's Accession Protocol by treating the absence of an express reference to Article XX as "dispositive". Rather, the Appellate Body explained that this conclusion followed from an analysis that proceeded in a "holistic manner".142 In the course of its analysis, the Appellate Body expressly considered: (i) the rules of treaty interpretation that apply to China's Accession Protocol143; (ii) a prior Appellate Body Report that provided guidance on the availability of Article XX as a defence to claims under China's Accession Protocol (i.e. China – Publications and Audiovisual Products144); (iii) the ordinary meaning of the terms of Paragraph 11.3145, including the fact that Paragraph 11.3 refers to justifications under GATT Article VIII but not GATT Article XX; (iv) the ordinary meaning of the terms of Annex 6 of China's Accession Protocol146; (v) China's argument regarding the applicability of Article XX to Article VIII of the GATT, which is referenced in Paragraph 11.3147; (vi) the context provided by the wording of other provisions of China's Accession Protocol, including Paragraphs 5.1, 11.1 and 11.2, as well as the context provided by other provisions of China's Working Party Report, including Paragraphs 155, 156, 169, and 170148; (vii) the context provided by other provisions of the WTO Agreement149; and (viii) the preamble of the WTO Agreement.150 Thus, the Appellate Body did not treat the absence of an express reference to Article XX as "dispositive".
7.67.
In fact, upon closer examination, there are some striking parallels between the Appellate Body's reasoning in the earlier US – Carbon Steel caseand its reasoning in China – Raw Materials. First, both cases involved a similar problem of treaty interpretation. In US – Carbon Steel, the question was whether the de minimis standard contained in Article 11.9 of the SCM Agreement, which applies to the investigation phase of a countervailing duty proceeding, is applicable to Article 21.3 of the SCM Agreement, which applies to sunset reviews, even though Article 21.3 does not expressly refer to Article 11.9; the Appellate Body ultimately found that it is not. In China – Raw Materials, the question was whether the general exceptions contained in Article XX of the GATT 1994 are applicable to Paragraph 11.3 of China's Accession Protocol, even though Paragraph 11.3 does not expressly refer to Article XX; the Appellate Body ultimately concluded that they are not.
7.68.
Second, the analysis in both cases began with the text of the provision at issue. In US – Carbon Steel, the Appellate Body commenced by observing that the text of Article 21.3 of the SCM Agreement does not make any express reference to the de minimis standard set forth in Article 11.9 of the SCM Agreement.151 In China – Raw Materials, the Appellate Body began by determining whether there is language in Paragraph 11.3 or Annex 6 of China's Accession Protocol that could be read as indicating that China can have recourse to the provisions of Article XX of the GATT 1994.152
7.69.
Third, the analysis in both cases attached weight to the technique of cross-referencing as reflected in other provisions of the instrument in question. In US – Carbon Steel, the Appellate Body observed that "the technique of cross-referencing is frequently used in the SCM Agreement", and explained that "[t]hese cross-references suggest to us that, when the negotiators of the SCM Agreement intended that the disciplines set forth in one provision be applied in another context, they did so expressly"; the Appellate Body observed that Article 11.9 is specifically referred to in Article 15.3 of the SCM Agreement, and noted that the provisions of Article 11 more generally are referred to in a number of other provisions of the SCM Agreement; the Appellate Body reasoned that "[i]n the light of the many express cross-references made in the SCM Agreement, we attach significance to the absence of any textual link between Article 21.3 reviews and the de minimis standard set forth in Article 11.9."153 In China – Raw Materials, the Appellate Body agreed with the panel that "WTO Members have, on occasion, 'incorporated, by cross‑reference, the provisions of Article XX of the GATT 1994 into other covered agreements'" and identified examples of several provisions in China's Accession Protocol and the WTO covered agreements, such as Article 3 of the TRIMs Agreement, that expressly cross-reference Article XX of the GATT 1994; the Appellate Body reasoned that "we attach significance to the fact that Paragraph 11.3 of China's Accession Protocol expressly refers to Article VIII of the GATT 1994, but does not contain any reference to other provisions of the GATT 1994, including Article XX".154
7.70.
Fourth, the analysis in both cases involved an inference drawn from the absence of a cross-reference in one paragraph of an article that is contained in one or more immediately adjacent paragraphs of the same article. In US – Carbon Steel, and as part of its analysis of the use of cross-references in the SCM Agreement, the Appellate Body drew an inference from the cross-reference contained in Article 21.4, a paragraph of Article 21 that formed part of the "immediate context" of Article 21.3, the provision at issue.155 In China – Raw Materials, the Appellate Body drew an inference from the inclusion of an express cross-reference to the GATT 1994, found in both Paragraphs 11.1 and 11.2 of China's Accession Protocol, but not in Paragraph 11.3.156
7.71.
Finally, the analysis in both cases explained why consideration of the need to strike an overall balance between WTO rights and obligations did not provide specific guidance on the interpretative problem at issue. In US – Carbon Steel, the Appellate Body concluded that Part V of the SCM Agreement "is aimed at striking a balance" between the right to impose countervailing duties to offset subsidization that is causing injury, and the obligations that Members must respect in order to do so, but that "[w]hile Part V strikes such a balance, this alone does not assist us" in the task of determining whether the 1% de minimis standard in Article 11.9 is intended to be applied in reviews carried out pursuant to Article 21.3.157 In China – Raw Materials, the Appellate Body concluded that the WTO Agreement "reflect[s] the balance struck by WTO Members between trade and non-trade-related concerns", but that "none of the objectives listed above, nor the balance struck between them, provides specific guidance" on the question of whether Article XX of the GATT 1994 is applicable to Paragraph 11.3 of China's Accession Protocol.158
7.72.
In the light of the foregoing, we fail to see any incompatibility between the Appellate Body's analysis in China – Raw Materials and its earlier analysis in US – Carbon Steel. Rather, we find striking similarities.Accordingly, the Panel finds that China's reliance on US – Carbon Steel is misplaced and its argument that "textual silence in a treaty provision is not, in and of itself, dispositive" cannot be regarded as a "cogent reason" for departing from the Appellate Body's finding that the obligation in Paragraph 11.3 of China's Accession Protocol is not subject to the general exceptions in Article XX of the GATT 1994.

7.3.2.1.4 China's argument regarding the systemic relationship between the provisions of China's Accession Protocol and those of the GATT 1994

7.3.2.1.5 China's argument regarding the terms "nothing in this Agreement" in Article XX of the GATT 1994

7.100.
We turn to China's next specific argument, which is that "[t]he terms "nothing in this Agreement" in the chapeau of Article XX of the GATT 1994 do not exclude the availability of Article XX to defend a violation of Paragraph 11.3 of China's Accession Protocol".187 In this regard, China submits that the exceptions under Article XX of the GATT 1994 are also available to excuse violations of what it labels intrinsically GATT-related "WTO-plus" provisions contained in post-1994 accession protocols. China clarifies that what it terms "intrinsically GATT-related 'WTO-plus' provisions contained in post-1994 accession protocols" consists of "those provisions that are not part of the text of the GATT 1994 as it entered into force on 1 January 1995 but that nevertheless have to be treated as an integral part of the latter as set out above and in relevant parts of China's First Written Submission".188 China clarifies that it "does not argue that the phrase 'nothing in this Agreement' makes the exceptions of Article XX of the GATT 1994 available to violations of provisions contained in (i) other multilateral agreements on trade in goods, (ii) China's Accession Protocol taken as a whole, or (iii) the WTO Agreement as a whole."189 China "acknowledges that, at least at first sight, there seem to be strong indicators that the exceptions enshrined in Article XX of the GATT 1994 are not available in the same manner across all multilateral agreements on trade in goods listed in Annex 1A of the WTO Agreement."190
7.101.
The Panel recalls that the chapeau of Article XX of the GATT 1994 provides that nothing in "this Agreement" prevents the adoption or enforcement of certain measures. In the context of Article XX of the GATT 1994, the ordinary meaning of the term "this Agreement" is the GATT 1994. In this regard, we agree with the panel in China – Raw Materials that "the reference to this 'Agreement' suggests that the exceptions therein relate only to the GATT 1994, and not to other agreements".191 We note that interpreting the term "this Agreement" in accordance with its ordinary meaning is consistent with the Appellate Body's statement, in US – Shrimp, that the general exceptions in Article XX are "exceptions to substantive obligations established in the GATT".192
7.102.
The Panel does not understand China to argue that the term "this Agreement" in the chapeau of Article XX of the GATT 1994 should be interpreted to mean the WTO Agreement including all of its Annexes, or to anything beyond the GATT 1994. Rather, China's argument is that the terms "this Agreement" should be interpreted to mean the GATT 1994, which must include any provisions of post-1994 accession protocols that are legally an "integral part" of the GATT 1994. In the course of this proceeding, China has clarified that it is not arguing that the term "this Agreement" means anything beyond the GATT 1994, or provisions of post-1994 accession protocols that are not legally an "integral part" of the GATT 1994. For example, in response to a question from the Panel, China clarifies that:

China reiterates that,despite tireless efforts by the Complainants to misrepresent China's nuanced argument on this important issue, China does not argue that the phrase "nothing in this Agreement" makes the exceptions of Article XX of the GATT 1994 available to violations of provisions contained in (i) other multilateral agreements on trade in goods, (ii) China's Accession Protocol taken as a whole, or (iii) the WTO Agreement as a whole. … While China does not take any firm position on this issue in the present dispute, China acknowledges that, at least at first sight, there seem to be strong indicators that the exceptions enshrined in Article XX of the GATT 1994 are not available in the same manner across all multilateral agreements on trade in goods listed in Annex 1A of the WTO Agreement.193

7.103.
Thus, China's argument regarding the term "this Agreement" in the chapeau of Article XX of the GATT 1994 is predicated on the presumption that what it labels "WTO-plus" provisions in post-1994 accession protocols that relate to trade in goods are an "integral part" of the GATT 1994. We recall that the Panel has found that Paragraph 11.3 of China's Accession Protocol (an Accession Protocol-specific provision regarding export duties) is not an "integral part" of the GATT 1994; China's Accession Protocol is – according to its Paragraph 1.2 – an integral part of the WTO Agreement.194
7.104.
Based on the foregoing, the Panel finds that China's argument regarding the terms "nothing in this Agreement" in the chapeau of Article XX of the GATT 1994 is moot as a consequence of the Panel's finding that Paragraph 11.3 of China's Accession Protocol (an Accession Protocol-specific provision regarding export duties) is not an "integral part" of the GATT 1994; China's Accession Protocol is – according to its Paragraph 1.2 – an integral part of the WTO Agreement. Accordingly, the Panel finds that China's argument cannot be regarded as a "cogent reason" for departing from the Appellate Body's finding that the obligation in Paragraph 11.3 of China's Accession Protocol is not subject to the general exceptions in Article XX of the GATT 1994.

7.3.2.1.6 China's argument relating to the object and purpose of the WTO Agreement

7.105.
China argues that the result of the Appellate Body's ruling in China – Raw Materials on the non-applicability of Article XX as a defence to a violation of Paragraph 11.3 is that "trade liberalization must be promoted at whatever cost – including forcing Members to endure environmental degradation and the exhaustion of their scarce natural resources".195 China considers this result to be inconsistent with the object and purpose of the WTO Agreement. China argues that "[a]n appropriate holistic interpretation, taking due account of the object and purpose of the WTO Agreement, confirms that China may justify export duties through recourse to Article XX of the GATT 1994".196
7.106.
We note that China advanced the same argument before the panel and the Appellate Body in China – Raw Materials. For example, in the prior dispute China argued that "Members have always had the right to promote fundamental societal interests besides trade liberalization under the WTO Agreement"197; in this dispute, China argues that "the international trade obligations Members have assumed do not prevent them from taking measures to promote other fundamental societal interests recognized in the covered agreements".198 In the prior dispute, China argued that "China rejects the view that China has not only assumed uniquely onerous obligations regarding export duties on goods, but that it has also abandoned its right to use export duties under exceptional circumstances to promote fundamental non-trade interests explicitly recognized by the WTO Agreement"199; in this dispute, China argues that "China finds repugnant the argument that it has not only assumed uniquely onerous obligations, but also that it is denied its 'inherent power' to take measures in relation to these uniquely onerous obligations to promote other fundamental interests, such as conservation and public health."200
7.107.
In China – Raw Materials, the Appellate Body rejected China's argument relating to the object and purpose of the WTO Agreement. The Appellate Body reasoned as follows:

China refers to language contained in the preambles of the WTO Agreement, the GATT 1994, and the Agreement on the Application of Sanitary and Phytosanitary Measures (the "SPS Agreement"), Agreement on Technical Barriers to Trade (the "TBT Agreement"), the Agreement on Import Licensing Procedures (the "Import Licensing Agreement"), the GATS, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") to argue that the Panel distorted the balance of rights and obligations established in China's Accession Protocol by assuming that China had "abandon[ed]" its right to impose export duties "to promote fundamental non-trade-related interests, such as conservation and public health."

The preamble of the WTO Agreement lists various objectives, including "raising standards of living", "seeking both to protect and preserve the environment" and "expanding the production of and trade in goods and services, while allowing for the optimal use of the world's resources in accordance with the objective of sustainable development." The preamble concludes with the resolution "to develop an integrated, more viable and durable multilateral trading system". Based on this language, we understand the WTO Agreement, as a whole, to reflect the balance struck by WTO Members between trade and non-trade-related concerns. However, none of the objectives listed above, nor the balance struck between them, provides specific guidance on the question of whether Article XX of the GATT 1994 is applicable to Paragraph 11.3 of China's Accession Protocol. In the light of China's explicit commitment contained in Paragraph 11.3 to eliminate export duties and the lack of any textual reference to Article XX of the GATT 1994 in that provision, we see no basis to find that Article XX of the GATT 1994 is applicable to export duties found to be inconsistent with Paragraph 11.3.201

7.108.
In this case, China argues that the Appellate Body's "summary dismissal of the interpretative value of the WTO's fundamental objectives without any further explanation" does not rise to the level of a proper objective assessment of legal issues before it.202 In asking this Panel to reverse the Appellate Body's finding that the obligation in Paragraph 11.3 of China's Accession Protocol is not subject to the general exceptions in Article XX of the GATT 1994, China explains that it is presenting arguments that, in its view, are "new arguments that have not been asserted previously, or arguments which were neither argued or addressed fully by the panel and the Appellate Body in China – Raw Materials".203 We understand China's argument relating to the object and purpose of the WTO Agreement to fall into the latter category, i.e. an argument that, in China's view, was not "addressed fully by the panel and the Appellate Body" in the prior dispute.
7.109.
In our view, the Appellate Body's analysis in China – Raw Materials cannot be characterized as a "summary dismissal of the interpretative value of the WTO's fundamental objectives without any further explanation". However, in the interest of providing a full exploration of the issues raised by China's specific arguments, and in the light of China's view that the Appellate Body did not fully address its argument related to the object and purpose of the WTO Agreement, we provide the following observations.
7.110.
China's argument related to the object and purpose of the WTO Agreement rests on a key premise: that the result of the Appellate Body's ruling on the non-applicability of Article XX as an exception to the obligation in Paragraph 11.3 is that "trade liberalization must be promoted at whatever cost – including forcing Members to endure environmental degradation and the exhaustion of their scarce natural resources".204 China argues that this result is inconsistent with the object and purpose of the WTO Agreement. More specifically, China argues that such a result cannot be reconciled with the requirement to interpret treaties in a "holistic manner"205, with the requirement to give due meaning to a treaty's "object and purpose"206, with the specific reference to "the objective of sustainable development" in the preamble of the WTO Agreement207, and the need to "balance trade liberalization with non-trade-related objectives".208
7.111.
The Panel agrees with China that an interpretation of the covered agreements that resulted in sovereign States209 being legally prevented from taking measures that are necessary to protect the environment or human, animal or plant life or health would likely be inconsistent with the object and purpose of the WTO Agreement. In the Panel's view, such a result could even rise to the level of being "manifestly absurd or unreasonable".
7.112.
However, the Panel considers that the premise underlying China's argument is false. The Appellate Body found that the obligation in Paragraph 11.3 of China's Accession Protocol is not subject to the general exceptions in Article XX of the GATT 1994. Paragraph 11.3 of China's Accession Protocol concerns one type of instrument only – export duties. Thus, the only result that follows from this finding is that when seeking to address environmental concerns and protect the life and health of its population, China must use instruments and means other than export duties to do so (unless those export duties are imposed on products within the maximum rates "specifically provided for" in Annex 6 of China's Accession Protocol). Such alternative instruments and means include the entire universe of instruments and means that governments maintain to protect the environment and human health, and that do not violate WTO obligations - or that may violate one or more WTO obligations, but which may be justified under Article XX of the GATT 1994.
7.113.
In the Panel's view, assuming for the sake of argument210 that there could be situations in which the imposition of export duties could make a material contribution to addressing environmental concerns and to protecting the life and health of a population, China, notwithstanding its extensive argumentation on the applicability of Article XX of the GATT 1994 to Paragraph 11.3 in this dispute, has never presented any argument in support of the premise that export duties are the only type of instrument and means that can be used to address environmental concerns and protect the life and health of its population. Indeed, in response to a question from the Panel, China itself indicated that it "would find it difficult to conceive that export duties are the only instrument that can be used to protect the environment or to conserve exhaustible natural resources and China's position is indeed not based on such an assumption."211
7.114.
In sum, the Panel agrees with China that an interpretation of the covered agreements that resulted in sovereign States being legally prevented from taking measures that are necessary to protect the environment or human, animal or plant life or health would likely be inconsistent with the object and purpose of the WTO Agreement. However, the Panel disagrees with China that this is the result of the Appellate Body's finding that the obligation in Paragraph 11.3 of China's Accession Protocol is not subject to the general exceptions in Article XX of the GATT 1994. Accordingly, the Panel finds that China's argument cannot be regarded as a "cogent reason" for departing from that finding.

7.3.2.1.7 Conclusion

7.115.
In its prior adopted reports in China – Raw Materials, the Appellate Body found that there is no basis in China's Accession Protocol to allow the application of Article XX of the GATT 1994 to China's obligations in Paragraph 11.3 of China's Accession Protocol.212. For the reasons set forth above, the Panel concludes that China has not presented this Panel with any cogent reason for departing from the Appellate Body's finding. Accordingly, the Panel finds that the obligation in Paragraph 11.3 of China's Accession Protocol is not subject to the general exceptions in Article XX of the GATT 1994.
7.116.
The Panel wishes to emphasize two points. The first is the narrow scope of this finding. The question that has been presented to the Panel, and the only question that we have addressed, is the applicability of Article XX of the GATT 1994 to the obligation contained in Paragraph 11.3 of China's Accession Protocol. The Panel has not expressed, in this respect, any view, and its findings should not be understood as implying any view, on whether Article XX of the GATT 1994 is applicable to other provisions of China's Accession Protocol, other provisions of other Members' protocols of accession, or other provisions contained in the Multilateral Trade Agreements annexed to the WTO Agreement.
7.117.
Second, the Panel wishes to underscore how limited the implications of this finding are in terms of China being able to adopt and maintain measures to protect the environment and the life and health of its population. When seeking to address environmental concerns and protect the life and health of its population, China must, according to Paragraph 11.3 of its Accession Protocol, use instruments and means other than export duties to do so (except to the extent it has provided for in its Accession Protocol). That is the only implication of this finding. In our view, this finding in no way impairs China's ability to pursue those legitimate objectives.

7.3.2.1.8 Separate opinion by one panelist

7.118.
One panelist is unable to agree with some of the findings and conclusions contained in paragraphs 7.63 to 7,117 above. This section reflects the views of that panelist.
7.119.
I agree with the ultimate conclusion reached by this Panel that, in this dispute, China cannot justify its export duties on rare earths, tungsten, and molybdenum products pursuant to Article XX(b) of the GATT 1994 (GATT Article XX(b)). However, contrary to the finding made by the Panel's majority, I believe that a proper interpretation of the relevant provisions at issue leads to the conclusion that the obligations in Paragraph 11.3 of China's Accession Protocol are subject to the general exceptions in Article XX of the GATT 1994.
7.120.
I am well aware of the findings of the Panel and the Appellate Body in the China – Raw Materials dispute regarding the availability of Article XX of the GATT 1994 (GATT Article XX) to justify violations of Paragraph 11.3 of China's Accession Protocol. In my view, China has submitted new arguments in this dispute that have helped the Panel to appreciate the legal complexity of this issue. The Panel's majority has undertaken a long and careful evaluation of the parties' arguments concerning this matter. I agree with many parts of the Panel's majority's analysis of this issue and I respect this Panel's majority decision. Nonetheless, I respectfully disagree with certain key aspects of its reasoning and findings. I offer, below, my different views on some of the legal issues concerned with this Panel's conclusion.

7.3.2.1.8.1 The structure of the WTO Agreement

7.121.
China admits that its export duties on rare earths, tungsten, and molybdenum are inconsistent with Paragraph 11.3 of its Accession Protocol.213 The disagreement between the parties concerns the availability of Article XX of GATT to a violation of a WTO-plus provision i.e. Paragraph 11.3 of China's Accession Protocol regarding export duties. In my view, a proper determination of the availability of GATT Article XX to justify violations of Paragraph 11.3 of China's Accession Protocol must begin with an understanding of the components and functioning of the WTO Agreement as a Single Undertaking.
7.122.
There are different components to what are considered to be the "Results of the Uruguay Round Negotiations".

a. First, there is the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (Final Act) that was signed by representatives of the Members in Marrakesh in April 1994; its main text is a six-paragraph document that describes the results of the Uruguay Round negotiations. Attached to the Final Act are (a) the Marrakesh Agreement Establishing the World Trade Organization and all its components discussed below, and (b) Ministerial Decisions and Declarations and finally (c) the Understanding on Commitments on Financial Services.

b. The second component is the Marrakesh Agreement Establishing the World Trade Organization (which is referred to as the "WTO Agreement"), an agreement that establishes the WTO as a new international organization.. The first 16 Articles of the WTO Agreement (made up of Articles I to XVI), I will call the "Marrakesh Agreement". Article II:2 of the Marrakesh Agreement provides that the agreements and associated legal instruments (referred to as the "Multilateral Trade Agreements") included in its Annexes 1, 2 and 3 of that WTO Agreement are "integral parts" of the Marrakesh Agreement. According to Article II:3, the legal instruments included in Annex 4 (referred to as Plurilateral Trade Agreements) are also part of the Marrakesh Agreement for those Members that have accepted them. In my discussion, I use the term Marrakesh Agreement to refer to the institutional agreement of the WTO entitled the Marrakesh Agreement Establishing the World Trade Organization, which contains Articles I to XVI. When I use the term Marrakesh Agreement, I do not include its Annexes 1, 2 and 3 or the Plurilateral Agreements (Annex 4). The Members' schedules of commitments are also an integral part of the WTO agreements – for example, the schedules on trade in goods are an integral part of the GATT 1994 and the schedules on services commitments are integral parts of the General Agreement on Trade in Services (GATS). All these elements are integral parts of what we refer to as the WTO Agreement.

7.123.
This dispute is concerned, inter alia, with the provisions of a WTO protocol of accession. In that context, I note that Article XII of the Marrakesh Agreement provides that a Member's accession shall apply to "this Agreement and the Multilateral Trade Agreements annexed thereto". I also note that Paragraph 1.2 of China's Accession Protocol provides that the Protocol "shall be an integral part" of the WTO Agreement. Therefore, in my discussion I will use the term the "WTO Agreement" to refer to the overall agreement that constitutes the entirety of the WTO legal treaty provisions and which includes the Marrakesh Agreement, its four annexes, Members' schedules of commitments, and the commitments included in WTO accession protocols.214 When I use the term "WTO agreements" without a capital "A", I refer to the legal instruments in Annexes 1, 2, 3 or 4. When I refer to "a specific WTO agreement" within the WTO Agreement, I mention the name of the agreement concerned. Finally, in my discussion about the relationship between the provisions of China's Accession Protocol, in particular Paragraph 11.3, and GATT Article XX, I refer to the provisions of the existing GATT 1994, or the existing WTO Agreement. I do so to distinguish conceptually the provisions of the GATT 1994 or the WTO Agreement from the new and additional provisions of China's Accession Protocol that are now integral parts of the WTO Agreement.
7.124.
The Appellate Body has made it clear that the WTO Agreement is a "Single Undertaking" - that is, a single treaty for which there are no reservations and where all WTO provisions are generally simultaneously and cumulatively applicable.215 In that regard, a single measure may be subject, at the same time, to several WTO provisions imposing different disciplines.216 Moreover, as noted by the United States217, within the WTO Agreement, provisions of different multilateral agreements may overlap in application, while other WTO provisions are mutually exclusive. The WTO treaty has rules regarding conflicts in the application of specific provisions218, and the jurisprudence has clarified the conflict rules between WTO provisions. It has also been determined that the provisions of Members' schedules are to be interpreted as treaty provisions219 but they can only develop and yield to – and not contradict – related provisions of the GATT, the Agreement on Agriculture (AoA) or the GATS.220
7.125.
Finally, in WTO law, only provisions of the "covered agreements" can form the basis of a claim of violation that can be brought before the DSB in the form of a request for establishment of a panel to examine the issues between the parties in dispute. Appendix 1 of the DSU lists which of the agreements of the WTO Agreement are "covered agreements" for the purposes of the DSU. It includes the Marrakesh Agreement and the multilateral agreements contained in Annex 1 and the DSU found in Annex 2. Accession protocols are not mentioned directly in Appendix 1 of the DSU. Nonetheless, no party in this dispute has expressed any doubt that violations of China's Accession Protocol commitments, and in particular violations of Paragraph 11.3 of China's Accession Protocol, can be taken to the DSB and be the subject of a request for the establishment of a panel.221 Therefore, this implies that all parties consider that Paragraph 11.3 is an integral part of one of the WTO covered agreements.
7.126.
However, the parties disagree whether Paragraph 11.3 is integrated into, and part of, the GATT 1994, as suggested by China, or whether it is to be interpreted and applied as part of the Marrakesh Agreement per se, or, alternatively, as an integral part of the overall WTO Agreement but outside the GATT 1994, either as a stand-alone provision or as part of an accession agreement such that, upon China's entry into the WTO, it became a new annex to the WTO Agreement. For China, Paragraph 11.3 is concerned with a GATT issue – the use of tariffs at its borders – and has thus become an integral part of the GATT 1994. China is of the view that it can therefore invoke GATT Article XX to justify violations of Paragraph 11.3, as Article XX is available to justify all otherwise-inconsistent breaches to all provisions of the GATT.222 For the complainants, Paragraph 11.3 cannot be interpreted as forming an integral part of the GATT 1994.223 For example, the United States argues that China's Accession Protocol is akin to a new annexed multilateral agreement, parallel to Annexes 1A, 1B, and 1C, and an integral part of the WTO Agreement.224

7.3.2.1.8.2 The relationship between the terms of an accession package and provisions of the WTO Agreement

7.127.
To appreciate how the provisions of China's Accession Protocol, and in particular Paragraph 11.3, interact with the provisions of the existing WTO Agreement (including the Marrakesh Agreement, the GATT 1994 and the other Multilateral Trade Agreements), and of which covered agreement(s) they are an integral part, it is necessary to understand the nature of WTO accession protocols.
7.128.
In this discussion, I use the term "accession package" to refer to the results of a WTO accession process. An accession package includes at least four documents: a protocol of accession, a working party report, different schedules, and a decision of the Ministerial Conference/General Council confirming that the Members agree to the accession on the terms set out in the other three documents.
7.129.
The Protocol of Accession is annexed to the decision of the Ministerial Conference and the working party report is attached to the Protocol of Accession. An accession protocol stipulates the terms under which a new Member accedes to the WTO. According to Article XII:1 of the Marrakesh Agreement, "[s]uch accession shall apply to this Agreement and the Multilateral Trade Agreements annexed thereto". In other words, a WTO accession protocol serves to specify the terms of application of the WTO Agreement to the acceding Member, in particular those of the Marrakesh Agreement and the Multilateral Trade Agreements annexed thereto.225 A working party report contains a summary of proceedings leading to the accession and the conditions of entry, some of which are binding commitments when incorporated into the protocol of accession, while other provisions are explanations and statements provided by the acceding Member and the working party. The obligations contained in the working party report overlap with, or complement, those contained in the accession protocol. In the case of China's accession, Paragraph 1.2 of its Accession Protocol provides that the commitments embodied in those paragraphs referred to in paragraph 342 of the Working Party Report are incorporated into the Protocol. Provisions of China's Accession Protocol and its Working Party Report have been agreed to by the WTO pursuant to Article XII of the Marrakesh Agreement through the Decision adopted by the Ministerial Conference or the General Council.226
7.130.
Each term of an accession package calls for a distinct interpretation analysis and the determination of each term's relationship with provisions of the WTO Agreement requires a specific analysis. In some cases, it may be that an acceding Member and WTO Members wanted a provision of an accession package to become an integral part of a specific WTO agreement because they wanted that accession provision to be interpreted and applied together with, and as an integral part of, the balance of rights and obligations of that specific WTO agreement. In other cases, it may be that an acceding Member and the WTO Members wanted a specific provision of an accession package to be a stand-alone provision within the WTO Agreement while other provisions of an accession package would have a horizontal application.
7.131.
There are various ways for the acceding Member and WTO Members to express their common intention on the relationship between a provision of the accession package and the WTO Agreement, or a specific WTO agreement or provision. Some provisions of accession protocols have explicitly been made part of a specific existing WTO agreement. This is the case with the goods and agriculture schedules of acceding Members, which are considered to be integral parts of the GATT 1994. In the case of China's accession package, I observe that some of its provisions reiterate obligations already included in the Multilateral Trade Agreements and thus overlap with them. For instance, Paragraph 96 of the Working Party Report, which sets out China's obligations with respect to "other duties and charges", reaffirms certain obligations embodied in a similar language under GATT 1994. Some provisions of an accession package may clarify and elaborate on specific obligations of the Multilateral Trade Agreements. For example, Paragraphs 92 and 93 of the Working Party Report of China's accession package set out China's commitments with respect to the tariff treatment of certain products. Some provisions of an accession package may go beyond the WTO Members' basic obligations and rights set out in the Marrakesh Agreement and the Multilateral Trade Agreements. All parties agree that this is the case with Paragraph 11.3 of China's Accession Protocol, which sets out China's obligations with respect to export duties. I consider that Paragraph 11.3 is a WTO-plus provision regarding export tariffs/duties. Further, as I will explain hereafter, this additional obligation on export tariffs/duties exists and works in conjunction with other existing WTO obligations applicable to trade in goods, including provisions of the GATT 1994, and in particular those related to border tariff measures.
7.132.
I agree with China that, when a dispute involves a WTO-plus provision of a WTO accession protocol, the Panel has to determine, in light of the subject matter and the underlying rationale of a given accession commitment, whether the WTO-plus provision has become (i) an integral part of a specific WTO agreement, like the GATT 1994; or (ii) a new provision that is part of the Marrakesh Agreement itself or the Member's schedules, or (iii) is somehow within the WTO Agreement, meaning the entire package of WTO rights and obligations. As argued by all parties, the determination of whether GATT Article XX can be invoked to justify a breach of a provision of an accession protocol is to be determined on a case-by-case basis. Thus, it is for the interpreter to determine the common intention of the parties as to how the WTO-plus provision of an accession package interacts with existing WTO provisions. It is only after this analysis that the interpreter can determine of which covered agreement, if any, the specific WTO-plus provision is an integral part. Taking into account the institutional principles of the WTO Single Undertaking discussed above, I am of the view that the determination of whether Paragraph 11.3 of China's Accession Protocol is an integral part of GATT 1994, and can therefore benefit from the GATT Article XX exceptions, requires a holistic interpretation of the concerned provisions.

7.3.2.1.8.3 The relationship between Paragraph 11.3 of China's Accession Protocol and the GATT 1994

7.133.
Paragraph 11.3 of China's Accession Protocol sets out China's obligation in relation to trade in goods and, in particular, commitments to eliminate all taxes and charges applied to exports unless specifically provided for in Annex 6 of its Accession Protocol. It is worth noting that Paragraphs 155 and 156 China's Working Party Report include provisions that use language similar to that of Paragraph 11.3 and which reflect the Working Party and China's discussion on this subject. Paragraphs 155 and 156 are found under the subheading, "Customs Tariffs, Fees and Charges for Services Rendered, Application of Internal Taxes to Export", as part of Part IV of China's Working Party Report entitled "Policies Affecting Trade in Goods". Annex 1A of the WTO Agreement establishes disciplines on trade in goods.
7.134.
All parties agree that China is bound by the provisions of Paragraph 11.3 and those of the existing GATT 1994 Agreement. Moreover, all parties agree that Paragraph 11.3 adds to the existing GATT obligations, including the GATT disciplines on tariffs; that is why it is often referred to as a WTO-plus provision, the term I have already used above. Paragraph 11.3 of China's Accession Protocol prohibits the use of export duties, except for certain listed products which are subject to prescribed maximum levels. As distinguished from Russia's Accession Protocol, where its export duty commitments are included in its goods schedule and considered to be an integral part of GATT 1994227, China's Accession Protocol is silent as to which WTO covered agreement, if any, is considered to include Paragraph 11.3.
7.135.
I also note that, other than referring to GATT Article VIII, the text of Paragraph 11.3 is silent on its relationship with the provisions of GATT 1994. However, as submitted by Brazil, the Appellate Body has stated in previous WTO disputes that omissions in different contexts may have different meanings, and an omission, in and of itself, is not necessarily dispositive.228 For instance, although for different reasons, no party in this dispute has any doubt that China must comply with GATT Article I (MFN), even though there is no reference to Article I of the GATT 1994 in Paragraph 11.3 of China's Accession Protocol.229 Therefore, to address the availability of GATT Article XX to justify violations of Paragraph 11.3, I am of the view that other contextual elements of Paragraph 11.3 should be examined, taking into account the object and purpose of the WTO Agreement. As I have said before, only a holistic interpretation of the relevant provisions can resolve such a fundamental issue.
7.136.
As observed by Argentina230, the obligation with respect to export duties under Paragraph 11.3 is specific to China. This specific obligation modifies the general rule contained in GATT Article XI:1 – that is, China waived its right to apply export duties except on those products listed in Annex 6 of its Accession Protocol. I also note that China's export tariff commitments under Paragraph 11.3, by their nature, expand China's obligations in the area of trade in goods; in particular, Paragraph 11.3 adds to the provisions of Articles II and XI:1 of the GATT 1994, which deal, inter alia, with the overlapping subject matter of border tariff duties. Paragraph 11.3 of China's Accession Protocol expands China's obligations in respect of these two GATT provisions. Given the close relationship between these provisions, I believe that, for the purpose of determining China's rights and obligations, Articles II and XI of the GATT 1994 must be read together with Paragraph 11.3 of China's Accession Protocol. It seems to me that provisions from an accession protocol prohibiting border export tariffs must be interpreted and applied together with the GATT provision allowing Members to use them. Interpreting and applying rights and obligations of an accession package together with the related provisions of an existing WTO agreement facilitates the coherent implementation of an acceding Member's obligations. Consequently, in my view, Paragraph 11.3 of China's Accession Protocolbecame, upon accession, an integral part of the GATT 1994 as GATT 1994 applies between China and the WTO Members.231 In other words, China must comply with all GATT-related provisions of its Accession Protocol as they operate together with the existing relevant provisions of the GATT 1994 (such as GATT Article I), in a simultaneous and cumulative manner. When China implements its WTO tariff-border measures, it must interpret and implement together all of its associated obligations relating and applicable to border tariffs, included those within the WTO Agreement – no matter whether such obligations stem from its Accession Protocol, or from the existing GATT 1994. Under the circumstances, I believe that it was the common intention of the parties to treat the provisions of Paragraph 11.3 as an integral part of the GATT 1994 system of rights and obligations applicable to export tariffs – and thus as an integral part of the GATT 1994 covered agreement.
7.137.
I am also of the view that the defences provided in the GATT 1994 are automatically available to justify any GATT-related obligations, including border tariff-related obligations - unless a contrary intention is expressed by the acceding Member and WTO Members.232 In light of the preamble of the WTO Agreement, which embodies the purpose and objective of the WTO, the fundamental importance of the flexibilities provided in GATT Article XX, GATT Article XXI, GATT Article XXIV and GATT Article XVIII(C) is incontrovertible. These provisions strike a balance between the policy space governments enjoy to pursue legitimate objectives and their obligations under the GATT 1994. It may be possible to have situations where an acceding Member waives its rights to have recourse to the exception provisions contained in a specific WTO covered agreement. For instance, in Paragraph 7.3 of China's Accession Protocol,China explicitly agrees not to have recourse to notification and transitional arrangements under Article 5 of the TRIMs Agreement. In my view, if China and WTO Members had wanted to exclude a benefit generally provided with respect to all GATT obligations, they could and should have done so explicitly. Members did not provide in Paragraph 11.3 or elsewhere that GATT Article XX was not available to justify violations of Paragraph 11.3 obligations. Therefore, I agree with China233, Argentina234, Brazil235 and Russia236 that if it had been the common intention of China and the WTO Members that China should not have access to Article XX of the GATT 1994 to defend a violation of an integral element of the GATT 1994, namely Paragraph 11.3 of its Accession Protocol, they would have said so explicitly. I see nothing in China's Accession Protocol that clearly indicates that it was the negotiating parties' common intention that China should not have access to the general exceptions of Article XX of the GATT 1994 to defend violations of the export duty commitments it made upon acceding to the WTO. In that context, I believe that the flexibilities provided in GATT Article XX, GATT Article XXI, GATT Article XVIII(C), or GATT Article XXIV, which are generally applicable to GATT violations, can in principle be invoked to justify violations of Paragraph 11.3.
7.138.
In sum, I believe that Paragraph 11.3 of China's Accession Protocol is an integral part of China's obligations on trade in goods in the sense that it adds to the basic obligations of the GATT 1994 relating to border tariffs. A proper interpretation on the availability of Article XX of the GATT 1994 to Paragraph 11.3 of China's Accession Protocol should take into account the fact that Paragraph 11.3 must be read cumulatively and simultaneously with related GATT Articles II and XI and as an integral part of the GATT system of rights and obligations. Therefore, in my view, unless China explicitly gave up its right to invoke Article XX of GATT 1994, which it did not, the general exception provisions of the GATT 1994 are available to China to justify a violation of Paragraph 11.3 of its Accession Protocol. I see nothing in China's Accession Protocol that clearly indicates such a waiver. In my view, finding that the obligation in Paragraph 11.3 is subject to the general exceptions in Article XX of the GATT 1994 allows China to exercise its rights and obligations with a view to favouring its sustainable development. This concludes my separate opinion.

7.3.2.2 The application of Article XX(b) of the GATT 1994 with respect to China's export duties

7.139.
China argues that the export duties at issue are justified under Article XX(b) of the GATT 1994 because they are "necessary to protect human, animal or plant life or health". The complainants disagree.
7.141.
In seeking to defend its export quotas under Article XX(g) of the GATT 1994, China has separately analysed the three groups of products at issue, i.e. rare earths, tungsten, and molybdenum. When analysing whether China's export quotas are justified under Article XX(g), we have taken a similar approach in our Report. In contrast, China has not separately addressed these three groups of products when seeking to justify under Article XX(b) its imposition of export duties. We will follow suit and not separately analyse these three groups of products either. In this regard, our approach takes into account the fact that, as mentioned, China did not provide a separate analysis of the three groups of products in its defence under Article XX(b), the relative brevity of China's arguments under Article XX(b)239, and the fact that the parties' arguments on export duties are virtually identical with respect to rare earths, tungsten, and molybdenum. Of course, insofar as it is necessary to our analysis, we will identify any evidence or argumentation that is specific to only one of these three groups of products.
7.142.
The Panel will begin its analysis with a brief review of the exception contained in Article XX(b) of the GATT 1994. We will then address each of the specific arguments advanced by China, in the order advanced by China, in support of its position that the challenged export duties are necessary to protect human, animal or plant life or health within the meaning of Article XX(b).

7.3.2.2.1 The interpretation of Article XX(b) of the GATT 1994

7.143.
Article XX(b) of the GATT 1994 reads as follows:

General Exceptions

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

(b) Necessary to protect human, animal or plant life or health;

7.144.
To be justified under Article XX(b) of the GATT 1994, a measure must be "necessary to protect human, animal or plant life or health" and it must also meet the requirements of the chapeau of Article XX. It is well established that the party invoking Article XX(b), in this case China, bears the burden of demonstrating that the challenged measure is "necessary to protect human, animal or plant life or health" and complies with the chapeau of Article XX.
7.146.
If a panel finds that the objective of the challenged measure is to protect human, animal or plant life or health, the next issue is whether the measure is "necessary" to fulfil this policy objective. Article XX(b) of the GATT 1994 requires that a challenged measure be "necessary" to achieve the objective it pursues. In Brazil – Retreaded Tyres, the Appellate Body explained that "[i]n order to determine whether a measure is 'necessary' within the meaning of Article XX(b) of the GATT 1994, a panel must consider the relevant factors, particularly the importance of the interests or values at stake, the extent of the contribution to the achievement of the measure's objective, and its trade restrictiveness."241 The Appellate Body concluded that a measure is apt to contribute to the achievement of its objective "when there is a genuine relationship of ends and means between the objective pursued and the measure at issue242," and explained that a measure is necessary if it is "apt to make a material contribution to the achievement of its objective".243 In this regard, the Appellate Body report in Brazil – Retreaded Tyres distinguished between two types of measures: those that "bring[] about" a material contribution to the achievement of their objective; and those that are "apt to produce" a material contribution to the objective pursued.244 In China – Publications and Audiovisual Products, the Appellate Body emphasized again that "the greater the contribution a measure makes to the objective pursued, the more likely it is to be characterized as 'necessary'".245 The Appellate Body also accepted that a measure could be considered "necessary" even if the contribution of the measure "is not immediately observable".246 The Appellate Body has observed that "certain complex public health or environmental problems may be tackled only with a comprehensive policy comprising a multiplicity of interacting measures".247 With respect to such complex problems, the Appellate Body has left open the possibility that a "necessary" measure could contribute to one of the objectives protected under Article XX(b) as part of a policy framework comprising different measures, resulting in possible synergies between those measures.248 The Appellate Body in Brazil – Retreaded Tyres confirmed that "in the short-term, it may prove difficult to isolate the contribution to public health or environmental objectives of one specific measure from those attributable to the other measures that are part of the same comprehensive policy".249 The Appellate Body explained that the contribution of the measure can be demonstrated quantitatively and/or qualitatively:

Such a demonstration can of course be made by resorting to evidence or data, pertaining to the past or the present, that establish that the import ban at issue makes a material contribution to the protection of public health or environmental objectives pursued. This is not, however, the only type of demonstration that could establish such a contribution..… [A] demonstration could consist of quantitative projections in the future, or qualitative reasoning based on a set of hypotheses that are tested and supported by sufficient evidence.250

7.147.
Where the analysis described above results in a preliminary conclusion that the measure is necessary, the next step is to compare the challenged measure with possible alternative measures identified by the complainants.251 The US – Gambling and Brazil – Retreaded Tyres disputes established how the burden of proof would be allocated when examining whether a reasonably available alternative exists. In the first instance, the burden is upon the complaining party to identify possible alternatives to the measure at issue that the responding Member could have taken; the burden then shifts to the responding party to demonstrate that the measure proposed by the complaining party is not a genuine alternative or is not "reasonably available", taking into account the interests or values being pursued and the responding Member's desired level of protection.252 As the Appellate Body has recently confirmed, in the context of addressing the necessity requirement in Article 2.2 of the TBT Agreement, a comparison of the challenged measure with possible alternative measures is not required when the challenged measure makes no contribution to the achievement of the stated objective.253
7.148.
Finally, for a measure to be justified under Article XX(b) of the GATT 1994, the measure must comply with the chapeau of Article XX. The chapeau requires that the measure not be applied in a manner which would constitute a means of "arbitrary or unjustifiable discrimination between countries where the same conditions prevail", or "a disguised restriction on international trade". As regards the first requirement, "arbitrary or unjustifiable discrimination between countries where the same conditions prevail", the chapeau of Article XX covers not only MFN-type discrimination among different countries to which an exported product is destined (for example whether export duties on rare earths accord Japan less favourable treatment than the United States), but also national treatment-type discrimination arising from the difference in treatment accorded to the like product when destined for export, as compared with the treatment of the like product when destined for domestic consumption. The Panel understands China to agree with this view.254

7.3.2.2.2 The measures at issue

7.3.2.2.2.1 Harm arising from the mining and production of the products at issue

7.149.
China asserts that the mining and production of rare earths, tungsten, and molybdenum cause grave harm to the environment and, as a consequence, to the health of humans, animals and plants in China. The European Union and the United States do not dispute that the mining and processing of the materials at issue can cause environmental damage; Japan "defers to the Panel" on whether the mining and processing of rare earths, tungsten, and molybdenum have a negative effect on the environment.255
7.150.
The Panel considers that China has provided the Panel with sufficient evidence to substantiate this assertion that the mining and production of rare earths, tungsten, and molybdenum have caused grave harm to the environment in China, and, as a consequence, to the health of humans, animals and plants in China. We review the evidence provided by China below, beginning with the evidence related to rare earths and then turning to China's evidence that is more specific to tungsten and molybdenum.256
7.151.
China explains that the different environmental risks that may occur along the production chain of rare earth products are described in detail in a 2011 Study for The Greens/EFA Group in the European Parliament257, as well as in a 2012 Study by the United States' Environmental Protection Agency.258 Rare earth production starts with mining of crude ore, which is next milled into fine powder. In order to separate the valuable rare earth metals from the rest of the ore, this powder is floated on water to which chemicals are added. Flotation creates large waste streams, called "tailings", which lead to large ponds called "impoundment areas".259 These tailings contain toxic substances, including radioactive substances (such as uranium and thorium), fluorides, sulphites, acids, and heavy metals and constitute a major environmental health risk.260 In particular, if the ponds are not sufficiently leak-proof, the tailing ponds may pollute groundwater, affecting humans, animals, and plants in the areas that rely on this water.261 Moreover, tailing ponds may flood when exposed to heavy storm water or when dams collapse, thus polluting the surrounding soil and water.262 Water pollution may also arise from exposure of waste rock stockpiles, and the mining pit, to rainwater.263
7.152.
In addition to water pollution, air may also be polluted due to toxic and radioactive dust from the tailings and waste rock stockpiles.264 The air pollution may occur long after the mining site is closed if the site is not adequately cleaned up and tailings and stockpiles remain.265 Analysis of the plants and soil of the Bayan Obo area, where the world's largest rare earths mine is located, showed that radioactivity was 32 times higher in plants and 1.7 times higher in soil.266 Research also found that 61.8 tonnes of radioactive dust is emitted each year as a result of the milling of the ores.267 Radioactive elements, including thorium, cause cancers of the lungs and pancreas as well as leukaemia.268 Reports indicate that in areas near rare earth mines, plants grow more slowly, flower poorly, and bear bad fruits or no fruits at all; animals get sick; and humans suffer from bone and chest illnesses.269
7.153.
Rare earth separation and refining through a process called "saponification" produces further wastewater. Studies have found that the entire rare earth refining industry in China annually produces approximately 20,000 to 25,000 tonnes of wastewater, containing toxic ammonia nitrogen concentrations ranging between 300mg/L and 5000 mg/L.270 The rare earth elements themselves also have a negative impact on human health. For instance, cerium oxide and cerium compounds negatively affect the human heart and lungs.271 Inhalation of lutetium creates lesions of the lungs.272 The use of gadolinium increases the risk of skin diseases.273 Chronic exposure to lanthanum may affect the central nervous system.274
7.154.
China submits that the risks to human, animal or plant life or health and the costs of controlling such risks are key reasons why rare earth production was shut down outside China. In this regard, China submits that companies outside of China that were producing, or had the capability to produce, rare earths were not ready to bear the high costs of implementing technology that would tackle environmental harm and meet national regulatory environmental requirements. For instance, according to China, the Mountain Pass rare earths mine in the United States ceased production in 2002, largely as a result of environmental damage that had occurred as well as cost issues resulting from the requirement to use environment-friendly technologies.275
7.155.
With respect to tungsten and molybdenum, China refers to a number of mining studies in China showing that production of those minerals entails significant environmental risks. One study found that every year 2.2 million cubic meters of solid waste are dumped into rivers by tungsten ore processors, and that dozens of tonnes of arsenicum are discharged with the waste water from producing tungsten alloys/materials.276 Another study on molybdenum mining activities in Northeast China found that concentrations of heavy metals in river sediments around the mines are significantly higher than the reference values.277
7.156.
Based on the foregoing, the Panel considers that China has demonstrated that the mining and production of rare earths, tungsten, and molybdenum have caused grave harm to the environment and to the life and health of humans, animals, and plants in China. However, this does not suffice to demonstrate that the export duties are necessary to protect human, animal or plant life or health. To answer that question, the Panel must consider China's specific arguments and evidence regarding the design and structure of the export duties, whether they are apt to make a material contribution to their stated objective, and whether there are alternative measures available to China.

7.3.2.2.2.2 The design and structure of the export duties

7.157.
In the context of discussing the design and structure of its export duties, China claims that its export duties on rare earths, tungsten, and molybdenum products are "an integral part of a comprehensive policy that has the goal to reduce pollution and protect the health of China's population, its animals and plants".278
7.158.
China asserts that its export duties are part of its "comprehensive policy to protect the environment".279 This policy, according to China, includes a number of other measures besides export duties. It includes environmental requirements on the treatment of these materials when they are being processed, requirements for compliance with the Emission Standards of Pollutants from Rare Earths Industry, a Deposit for Ecological Recovery after a mine has stopped operations, and a Resource Tax paid by the mining companies on the materials mined.280
7.159.
In the Panel's view, the mere assertion by China that the export duties form part of a broader "comprehensive policy for environmental protection" in China is not sufficient to demonstrate that the export duties themselves are measures "designed to achieve" this objective. None of the cited elements of China's comprehensive environmental policy shows a link between export duties and a pollution reduction objective.
7.160.
The Panel observes that in its defence of certain export duties and quotas in the China – Raw Materials dispute, China also asserted that it had a comprehensive environmental framework with respect to the products at issue in that dispute, and offered a number of measures that purported to relate to pollution resulting from the production of the products. However, the panel found that China "still need[ed] persuasive evidence of a connection between environmental protection standards and export restrictions."281 We have come to the same conclusion with respect to China's arguments and evidence in this dispute.
7.161.
In this dispute, China asserts that its intention to use export duties to protect the environment has been consistently expressed by China's Ministry of Finance each time a new list of export duties was adopted.282 For instance, China notes that when the list of export duties for 2009 was adopted in December 2008, the Ministry stated:

Meanwhile, to further restrict the exports of "high-polluting, high-energy-consuming and resource-dependent" products, China will continue with the practice of imposing temporary taxes on the exports of coals, crude oil, metallic mineral ores, ferroalloys, steel billets, etc.283

7.162.
On 15 December 2009, when the 2010 duties were adopted, the Ministry announced the continuation of this policy:

In [2010], China will continue with the practice of imposing temporary taxes on the exports of petroleum, rare earths, wood pulp, steel billet, etc….284

7.163.
On 14 December 2010, the Ministry noted:

In 2011, China will continue with the practice of imposing temporary taxes on the exports of "high-polluting, high-energy-consuming and resource-dependent" products, including coals, crude oil, fertilizers, non-ferrous metals, etc. In order to discipline rare earth exports …, export duties for certain rare earth products have been raised.285

7.164.
When adopting the 2012 export duties, the Ministry stated:

To promote sustainable development and to contribute to the efforts of building a resource-conserving and environment-friendly society, China will continue with the practice of imposing temporary taxes on the exports of "high-polluting, high-energy-consuming and resource-dependent" products, including coals, crude oil, fertilizers, ferroalloys, etc.286

7.165.
In the Panel's view, these extracts from the Ministry of Finance's press releases do not demonstrate that the export duties have the objective of protecting human, animal or plant life or health. They simply state that exports of "high energy-consumption commodities, high-pollution commodities and resource-based commodities" would be taxed. The mere fact that the export of such products would be taxed does not demonstrate the existence of a link between such taxes and the goal of reducing pollution.
7.166.
In this regard, our reasoning and conclusion is similar to that reached by the panel in China – Raw Materials when presented with very similar evidence. That Panel observed that "[t]he reference to serious pollution is descriptive of the products affected by the restrictions, but there is no explanation of how such measures operate together with export restriction policies on raw materials to reduce pollution caused by their production."287 In addition, that panel observed that certain documents submitted by China in that dispute "contain language stressing the importance of controlling the export of 'highly energy-consuming, highly polluting and resource-intensive' products without indicating whether and how controlling the exports will contribute to a decrease in pollution as part of a comprehensive environmental framework".288 The panel in China – Raw Materials stated that:

[W]e do not find evidence that the export measures at issue in this dispute form part of any such framework. This is not to say that Members can only succeed in justifying their measures under Article XX(b) by producing one or more instruments stating explicitly that a challenged measure has been put in place because it is necessary to protect human, animal or plant life or health, or that such instrument details the manner in which its objective will be achieved. However, in our view, a Member must do more than simply produce a list of measures referring, inter alia, to environmental protection and polluting products.289

7.167.
Unlike the press releases from prior years, we note that the announcement for the 2012 export duties contains the language "to promote sustainable development and to contribute to the efforts of building a resource-conserving and environment-friendly society". In response to a question from the Panel, China did not explain why the press release issued in 2012 by China's Ministry of Finance – regarding the export duties China imposes – refers to the conservation of resources and sustainable development, while press releases issued in previous years do not.290 In any event, the additional language does not support China's contention that the 2012 export duties on rare earths, tungsten, and molybdenum are part of a comprehensive environmental policy. Again, the language does not explain how duties can achieve the purported goals of "promot[ing] sustainable development and … contribut[ing] to the efforts of building a resource-conserving and environment-friendly society".
7.168.
In addition, the Panel notes that the measures imposing export duties on rare earths, tungsten, and molybdenum indicate no link between the duties and any environmental or health objective. Neither the 2012 Tariff Implementation Program issued by the Tariff Commission, nor the 2012 Tariff Implementation Program (Customs Tariff Commission) issued by Customs, identifies any objective of protecting life and health. Similarly, the Regulations on Import and Export Duties do not state that the export duties serve health or environmental purposes.
7.169.
Furthermore, some of the evidence submitted by the complainants seems to indicate that, contrary to China's assertions, the export duties at issue are designed and structured to promote increased domestic production of high value-added downstream products that use the raw materials at issue in this dispute as inputs. First, the complainants have submitted, as JE-136, an expert opinion by Professor Gene M. Grossman on "Export Duties as a Means to Address Environmental Externalities". According to this analysis, "a tax on exports of a good generates an increase in price in foreign markets, a fall in price in the home market, and an increase in domestic consumption that offsets the fall in foreign consumption".291 Professor Grossman concludes that "the expansion of domestic sales that results from an export tax is an undesirable consequence for a policy designed to further environmental goals".292 Second, the complainants draw the Panel's attention to certain statements contained in high-level Chinese documents.293 China's State Council acknowledged that the export duties operate to "support the export of deeply processed products with high technology content and high value added".294 China's Ministry of Industry and Information Technology also stated that the export duties are designed to "encourage the export of high value‑added products and deep processing products and at the same time strictly control the export of … rare metal products involved in national strategic security".295 Third, the complainants have submitted evidence pointing to the growth in China's downstream products manufactured with rare earths, tungsten, and molybdenum from the early 2000s to 2010.296 Fourth, the complainants have pointed out that the export duties do not apply to most downstream, value-added products derived from rare earth, molybdenum, or tungsten materials. As a consequence, the complainants argue that the export duties are not a deterrent to overall consumption of rare earths, molybdenum, and tungsten; rather, in conjunction with other measures maintained by China, the duties serve to incentivize their domestic use for the production of value-added products, as opposed to their exportation.
7.170.
We do not consider that China has rebutted this evidence.
7.171.
Based on the foregoing, the Panel finds that China has failed to demonstrate that its export duties are designed and structured to protect human, animal or plant life or health. Having reached this conclusion, the Panel could, at this point, end its analysis of China's defence under Article XX(b) of the GATT 1994. However, we consider it appropriate to continue and examine the remainder of China's arguments.

7.3.2.2.2.3 Existence of a material contribution

7.172.
China argues that its export duties are "apt to make a material contribution" to the protection of human, animal and plant life and health. In this regard, China argues that export duties, "in a synergetic relationship with the resource tax and the Deposit for Ecological Recovery, as well as the imposition and enforcement of costly environmental regulations increase the prices of these products consumed in China and abroad". According to China, "[b]y increasing the price of the domestic and foreign-bound products, demand for these products will decrease and, therefore, production of rare earth, tungsten and molybdenum products in China will be reduced, resulting in less pollution connected with both mining and production".297
7.173.
The Panel understands China's argument to be that if a Member adopts measures that increase the price at which a product is sold – both domestically and abroad – then demand for that product may well decrease, thereby reducing production, and thereby reducing pollution associated with the production of the product. The fact that the intended result is achieved indirectly would not, in and of itself, undermine the validity of this argument. At the same time, the Panel notes that China has not provided any evidence in support of its economic theory. We recall that in Brazil – Retreaded Tyres, theAppellate Body stated that a demonstration of the "material contribution" of the measure to its stated objective should "consist of quantitative projections in the future, or qualitative reasoning based on a set of hypotheses that are tested and supported by sufficient evidence".298
7.175.
We agree with Japan's observation300 that China's answer to this question fails to address the Panel's question, and that China has not offered any explanation why, when its export duties are allegedly designed to internalize the environmental costs of producing the raw materials, China imposes export duties which increase prices only for foreign consumers, without any corresponding tax on sales to domestic consumers.
7.176.
In addition, the complainants have repeatedly argued that the imposition of a tax only on exports, without any corresponding tax on the like product destined for domestic consumption, will not make any contribution to the achievement of China's stated objective. More specifically, the complainants argue that the decrease in foreign demand arising from the imposition of export duties results in the diversion of production to the Chinese domestic market. Thus, the complainants argue, the export duty "per se" would in reality lead to a downward pressure on the prices of these materials in the Chinese domestic market, relative to the situation without export duties. This could offset in the Chinese marketplace the effects of other measures that China claims to have put in place to make the prices of these materials better reflect the environmental costs. The complainants argue that this in turn provides an incentive for more intensive use of such raw materials by China's domestic downstream industries, making the Chinese economy in the long run even more dependent on the use of such inputs.301
7.177.
The Panel also sought to elicit a response from China on these points. China's response to this question was as follows:

As explained in its answer to Question 44, above, and in China's substantive defence of the export duties of 15 February 2013, China uses export duties to increase the price of the products at issue for foreign consumers. The Complainants have not demonstrated that the domestic prices for these products experienced any downward pressure as a consequence of the duties.302

7.178.
We agree with the following observations by the European Union and the United States regarding China's answer to this question. First, it is not clear whether China's answer can be characterized as responding to the Panel's question, and thereby to the complainants' arguments. Second, as the party invoking Article XX(b) of the GATT 1994, China bears the burden of producing evidence and argument to substantiate its defence. In this regard, we recall that it is China that asserts that its export duties are apt to make a material contribution to the achievement of the stated objective, and that in support of this assertion it is China that advances the economic theory (unsupported by any evidence) quoted at paragraph 7,172 above.303 In any event, even if the Panel were to reject the United States' observation that "the effect of an export restriction on domestic prices is a matter of standard economic principles"304, and require instead that the complainants produce evidence on this issue, the complainants have done so. As discussed above in the context of addressing the design and structure of the export duties, the complainants have submitted, as Exhibit JE‑136, an expert opinion by Professor Gene M. Grossman on "Export Duties as a Means to Address Environmental Externalities". According to this analysis, "a tax on exports of a good generates an increase in price in foreign markets, a fall in price in the home market, and an increase in domestic consumption that offsets the fall in foreign consumption."305 Professor Grossman concludes that "the expansion of domestic sales that results from an export tax is an undesirable consequence for a policy designed to further environmental goals."306 China has offered no response to refute this evidence and we see no reason not to accept it. More importantly, however, China has not met its burden of proof in asserting that its export duties are "apt to make a material contribution" to the protection of human, animal and plant life and health.
7.179.
Based on the foregoing, the Panel finds that China has not demonstrated that its export duties are "apt to make a material contribution" to the achievement of the stated objective.

7.3.2.2.2.4 Existence of alternative measures

7.181.
For the reasons set forth above, the Panel has already found that China has failed to demonstrate that the objective of the export duties is to protect human, animal or plant life or health, or that the export duties are "apt to make a material contribution" to the achievement of that objective.308 In these circumstances, it may not be necessary for the complainants to identify alternative measures.309
7.182.
In any event, the complaints have identified alternative measures. The European Union notes that China has confirmed that it is already using a "diverse range of complementary measures"to achieve its objective of environmental protection. These measures include its requirement of strict compliance with environmental requirements as a condition for access to the rare earth, tungsten, and molybdenum industry and for obtaining a share of the production and export quotas; compliance with the Emission Standards of Pollutants from Rare Earths Industry; the requirement for mines to make a deposit for ecological recovery; and the imposition of a resource tax. In this regard, the European Union states that China has already enacted an impressive number of legal measures to protect its environment. In the opinion of the European Union, "these are the measures that can actually make a 'material contribution' to protect China's environment, and consequently the health of human, animal or plant life in China".310
7.183.
Japan identifies several alternative measures that China could apply to address the harm caused by the mining and production of the products at issue. First, China could increase the resource tax on ores significantly enough to deter domestic production. Second, China could impose a pollution tax or "Pigouvian tax" whereby producers are made to pay for each unit of pollution they generate, thus matching the social cost of pollution.311
7.184.
The United States contends that China could increase volume restrictions on mining and production or establish effective pollution controls on how mining or production takes place. The United States also refers to China's existing measures, including its existing environmental regulations related to production, such as pollution controls on production, a resource tax, and a mining deposit, and notes that China might need to adjust those measures to make them more effective. With respect to China's resource tax, the United States argues that "[i]t is unclear why China could not rely upon the resource tax to help ensure that the price of rare earths, tungsten, and molybdenum reflects environmental costs, rather than insisting that only products intended for foreign consumers be subject to export duties (that, as the United States noted, are significantly higher than the existing resource tax)."312
7.185.
China offered no response to these arguments in its statement at the first meeting of the Panel, in its second written submission, or in its statement at the second meeting of the Panel. In its second set of questions, the Panel invited China to comment on the complainants' arguments, and in particular their suggestions that China could (i) increase volume restrictions on mining and production; (ii) establish effective pollution controls on mining and production; (iii) impose a resources tax on consumption; (iv) impose a pollution tax; and (v) develop and impose an export licensing system.
7.187.
Based on the foregoing, the Panel finds that China has not met its burden of demonstrating that the alternative measures identified by the complainants are not reasonably available to China, or do not make the same contribution as the challenged measure.

7.3.2.2.2.5 The chapeau of Article XX of the GATT 1994

7.188.
China argues that its export duties are applied in a manner that satisfies the requirements of the chapeau of GATT Article XX.
7.189.
First, with respect to the question of whether the export duties are applied in a manner that constitutes "arbitrary or unjustifiable discrimination between countries where the same conditions prevail", China argues that the "export duties do not make a distinction according to the destination of the products being exported", and that "[in the absence of any distinction based on origin or destination, there is no cause to consider that the export duty is applied 'in a manner that would constitute arbitrary or unjustifiable discrimination between countries where the same conditions prevail'."314
7.191.
Second, China argues that its export duties are not applied in a manner that constitutes a "disguised restriction on international trade". In support, China advances a one-sentence argument that these measures "are tailored to, and are an intrinsic part of, China's policy aimed at protecting the environment against the harms following from excessive mining and production of rare earth, tungsten and molybdenum products".316
7.192.
In the Panel's view, a mere assertion is not proof and this one-sentence argument fails to meet China's burden of proof. In addition, it appears to the Panel that the export duties are not actually "tailored to" protecting the environment against the harm that results from excessive mining and production of rare earth, tungsten, and molybdenum products. In this regard, China has not provided any explanation of the criteria it has used to set the level of the export duties, or to determine what specific effects on production would be expected from a specific duty level. We recall that China imposes export duties on 82 different rare earth, tungsten, and molybdenum products, ranging from 5-25% ad valorem.
7.193.
Based on the foregoing, the Panel finds that China has not demonstrated that its export duties are applied in a manner that satisfies the requirements of the chapeau of Article XX.

7.3.2.2.3 Conclusion on the chapeau of Article XX of the GATT 1994

7.194.
The Panel concludes that China has demonstrated that the mining and production of rare earths, tungsten, and molybdenum have caused grave harm to the environment and to the life and health of human, animals, and plants in China. The Panel recognizes that in recent years China has considerably enhanced the scope of the environmental measures it has adopted with a view to addressing this harm. In this regard, the Panel recalls the Appellate Body's statement that "few interests are more 'vital' and 'important' than protecting human beings from health risks, and that protecting the environment is no less important".317
7.195.
However, the Panel finds that China has not demonstrated that its export duties are designed to address this problem, or that they are apt to make a material contribution to addressing this problem, or that the alternative measures identified by the complainants are not reasonably available or would not make the same contribution to addressing this problem. In addition, the Panel finds that China has not demonstrated that the measures are applied in a manner that satisfies the chapeau of Article XX of the GATT 1994. For these reasons, the Panel finds that China has not demonstrated that its imposition of export duties on the products at issue are justified under Article XX(b) as measures necessary to protect human, animal or plant life or health.

7.3.3 Overall conclusion on claims relating to export duties

7.196.
For the reasons set forth above, the Panel finds that: (i) China's imposition of export duties on the products at issue318 is inconsistent with Paragraph 11.3 of China's Accession Protocol; (ii) the obligation in Paragraph 11.3 is not subject to the general exceptions in Article XX of the GATT 1994319; and even if it were, (iii) China has not demonstrated that its export duties on the products at issue are justified under Article XX(b) of the GATT 1994 as measures necessary to protect human, animal or plant life or health.

7.4 EXPORT QUOTAS

7.4.1 Introduction and Claims of violation of Article XI:1 of the GATT 1994 and Paragraphs 162 and 165 of China's Working Party Report

7.197.
The complainants assert that China subjects various forms of rare earths, tungsten, and molybdenum to quantitative restrictions, including quotas. According to the complainants, such measures are inconsistent with Article XI:1 of the GATT 1994 and with Paragraph 1.2 of Part I of China's Accession Protocol, which incorporates commitments in Paragraphs 162 and 165 of China's Working Party Report320, because they constitute export restrictions other than duties, taxes, or other charges.321
7.198.
Article XI:1 of the GATT 1994 provides that:

No prohibitions or restrictions other than duties, taxes, or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.

7.199.
Paragraphs 162 and 165 of China's Working Party Report provide that:

162. The representative of China confirmed that China would abide by WTO rules in respect of non-automatic export licensing and export restrictions. The Foreign Trade Law would also be brought into conformity with GATT requirements. Moreover, export restrictions and licensing would only be applied, after the date of accession, in those cases where this was justified by GATT provisions. The Working Party took note of these commitments.

165. The representative of China confirmed that upon accession, remaining non-automatic restrictions on exports would be notified to the WTO annually and would be eliminated unless they could be justified under the WTO Agreement or the Draft Protocol. The Working Party took note of this commitment.

7.201.
In the opinion of the complainants, China has failed to demonstrate that its export quotas fall within the scope of subparagraph (g) of Article XX, or that they comply with the requirements of the chapeau of Article XX. According to the complainants, China's export quota measures on rare earths, tungsten, and molybdenum are primarily designed to serve China's industrial policies.

7.4.1.1 Burden of proof and management of the evidence by the Panel

7.202.
Before examining the relevant evidence and argumentation of the parties with respect to China's export quotas on rare earths, tungsten, and molybdenum, the Panel recalls that it is the Member invoking Article XX that bears the burden of proof to demonstrate that the measure at issue is justified under that Article.323 In relation to China's defence of its export quotas under Article XX(g), the Panel has been required to assess a considerable amount of evidentiary material (including expert evidence). It is well settled that panels enjoy a broad margin of discretion – as the triers of fact – in assessing the value of the evidence before them and in ascribing weight to that evidence.324 At the same time, panels must respect the standard of review set out in Article 11 of the DSU.
7.203.
With these principles in mind, the Panel proceeds to describe China's export quota measures.

7.4.1.2 Description of China's export quota measures

7.4.1.2.1 China's export quota regime – China's legal framework for quota imposition

7.204.
China's Foreign Trade Law allows for the imposition of restrictions or prohibitions on the exportation of goods in pursuance of certain specific objectives, such as protecting human life or health, or conserving exhaustible natural resources.325 Article 19 of the Foreign Trade Law provides that China may restrict or prohibit exportation through export quotas.326 The Regulations on the Administration of the Import and Export of Goods prescribe rules governing the administration of the export and import of goods327, while the Export Quota Administration Measures specify further aspects of the administration of export quotas.328 The Annex to the Export Quota Administration Measures excludes its application to certain agricultural products and industrial products, such as rare earths.
7.205.
China's Foreign Trade Law grants to MOFCOM the authority to administer all Chinese export quotas.329
7.206.
MOFCOM, in collaboration with Customs, is responsible for "formulating, adjusting, and publishing" catalogues of goods the import or export of which is restricted or prohibited.330 MOFCOM also determines and announces the amount of the annual export quota for each restricted product.331
7.207.
China's 2012Export Licensing Catalogue identifies all goods subject to export quotas.332 Article 38 of the Regulations on the Administration of the Import and Export of Goods provides that the relevant Ministry shall publish annual quota amounts for products on this list by 31 October of the preceding year.333
7.208.
China published the 2012 Export Quota Amounts334 on 31 October 2011. This document indicates the total export quota for certain agricultural and industrial products, such as tungsten and molybdenum.
7.209.
Pursuant to the 2012 Export Licensing Catalogue335, concentrates and a variety of processed and alloyed products of rare earths, tungsten, and molybdenum are all subject to export quota licensing administration. This means that quota shares are directly assigned by MOFCOM and require MOFCOM approval.
7.210.
China maintains a series of criminal and administrative penalties for the exportation of restricted goods in a manner inconsistent with the quota regime. Under China's Regulation on Import and Export Administration, the holder of an export quota is required to return any unused quota volume by 31 October of the year for which the export quotas have been issued.336 Exporting enterprises may be subject to sanction if they fail to do so and also fail to fully use their quota by the end of the year.337 Enterprises may also face sanctions for exporting without permission, exceeding the quantitative limitations, or buying or selling quota certificates or other documents without approval.338 Sanctions include refusal to handle the offending enterprise's Customs inspection;339 revocation of the non-complying enterprise's business licence for foreign trade; a reduction in the offending enterprise's quota allocation, and possible criminal punishment.340 Quota administering authorities that distribute quotas exceeding their authority may also be subject to sanction.341
7.211.
Each qualifying company receives a quota for light or heavy/medium rare earths. An export quota holder is free to assign its quota on different rare earth products (light or medium/heavy) with the consequence that a quota holder may assign its entire quota to one or several rare earth products. In practice, exporting firms may export only a few rare earth products.342

7.4.1.3 Application of the quota system

7.4.1.3.1 Export quotas for rare earths

7.212.
The 2012 Export Licensing Catalogue details those rare earth concentrates343 and processed or alloyed products that are subject to export quota licensing administration.344 Accordingly, any firm seeking to export rare earths must apply for an export quota share and meet certain criteria in order to be eligible.345 Firms approved to export rare earths receive a quota certificate. After obtaining a quota certificate, exporters apply to MOFCOM for an export licence, which can be presented to the Chinese customs authorities.346
7.213.
On 26 December 2011, China published the 2012 First Batch Rare Earth Export Quotas, announcing that MOFCOM was distributing the "first batch" export quota on rare earths to specific enterprises listed therein. According to the notice, the first batch allocation represented approximately 80% of the total amount of the 2012 export quota for rare earths.347 In this notice, China distinguished the allocation of the more than 50 items covered by the rare earths quota between (1) light rare earths and (2) medium/ heavy rare earths. Specifically, China allocated 9,095 metric tonnes348 of light rare earths and 1,451 tonnes of medium/heavy rare earths in terms of gross weight in the first batch. In addition, MOFCOM conditionally allocated an additional 12,605 tonnes of light rare earths and 1,753 tonnes of medium/heavy rare earths to "pending enterprises", to be granted on the basis of whether those enterprises could satisfy by July 2012 environmental reviews conducted by the Ministry of Environmental Protection.349
7.214.
On 16 May 2012, MOFCOM allocated an additional 9,490 tonnes of light rare earths and 1,190 tonnes of medium/heavy rare earths in gross weight to companies previously labelled as "pending enterprises". According to the notice, this represented a supplement to the "first batch" of the rare earth quota.350
7.215.
On 16 August 2012, China issued the "second batch" quota allocation for rare earths. MOFCOM allocated 8,537 tonnes of light rare earths and 1,233 tonnes of medium/heavy rare earths.351 As a result, in total, China's rare earth export quota for 2012 was 30,996 tonnes in gross weight.

7.4.1.3.1.1 Application requirements for manufacturing enterprises

7.216.
The 2012 Application Qualifications and Procedures for Rare Earth Export Quotas provide that manufacturing enterprises must be registered as a foreign trade operator and have independent legal status. In addition they must obtain the rare earth materials from an eligible mining enterprise and have environmental treatment facilities suitable to the production scale of the applicant. Further, enterprises must have export performance in each year from 2008-2010 and for those enterprises who acquired a quota after 2010, they must have export performance in each year up to 2010 (for those enterprises whose export quotas were acquired after 2008, the export performance is based on all years from the year in which the quota was acquired up to 2010).352
7.217.
Annex 1 of the 2012 First Batch Rare Earth Export Quotas provides that the rare earth quota for manufacturing enterprises is to be allocated based on a formula that takes into account a manufacturing enterprise's export performance.353

7.4.1.3.1.2 Application requirements for trading enterprises

7.218.
The 2012 Application Qualifications and Procedures for Rare Earth Export Quotas provide that a trading enterprise applying for quota rights must have export performance from 2008 to 2010. Trading enterprises are also required to have a minimum registered capital of more than RMB 50 million.354
7.219.
Annex 1 to the 2012 First Batch Rare Earth Export Quota provides that the rare earth quota for trading enterprises is to be allocated based on a formula that takes into account a trading enterprise's export performance.355

7.4.1.3.2 Export quota for tungsten and tungsten products

7.220.
The 2012 Export Licensing Catalogue subjects tungsten concentrates356 and a variety of processed tungsten products to direct export quota administration in the same manner as rare earths and molybdenum.357 The Catalogue requires enterprises seeking to export tungsten and tungsten products to apply to MOFCOM under the 2012 Application Qualifications and Application Procedures of Tungsten Export (or Supply) Enterprises. According to this regulation, MOFCOM directly assigns a share of the export quota to approved enterprises.358
7.221.
The 2012 Export Quota Amounts359 indicates that the 2012 total annual export quota for tungsten is 15,400 tonnes in metal content.360 The export quota for tungsten was further allocated in two batches among four categories of tungsten products: (a) tungstic acid and its salts; (b) tungstic trioxide and blue tungsten oxide; (c) tungsten powder and its products; and (d) ammonium metatungstate and paratungstate.361
7.222.
On 26 December 2011, China published a notice announcing the distribution of 2012 "first batch" export quota shares for tungsten, indicating the specific amount of specific categories of tungsten allocated to specific enterprises.362 According to the notice, the "first batch" allocation covered approximately 60% of the 2012 quota for non-ferrous metals, including tungsten. MOFCOM allocated, in gross weight, 3,036 tonnes to ammonium metatungstate and paratungstate, 377 tonnes to tungstic acid and its salts, 5,380 tonnes to tungsten trioxide and blue tungsten oxide, and 2,587 tonnes to tungsten powder and its products.
7.223.
On 19 July 2012, China issued the "second batch" quota allocation for tungsten. MOFCOM allocated an additional 7,587 tonnes in gross weight to the tungsten products listed above in similar proportions.363 In total, China's tungsten quota for 2012 was 18,967 tonnes.
7.224.
In addition, the notice announcing the "second batch" export quota clarified that, as of 1 August 2012, the export companies allocated quota allowances for specific tungsten products may adjust the export quota allowances to apply to tungsten products higher in the industrial chain364, without first seeking MOFCOM authorization. According to the notice, such quota shares may be freely allocated to tungsten products higher in the industrial chain, but may not be reallocated to tungsten products with a lesser degree of processing.

7.4.1.3.3 Export quota for molybdenum

7.225.
Under the 2012 Export Licensing Catalogue, molybdenum concentrates365 and a variety of processed molybdenum products are subject to direct export quota administration.366 Shares of the export quota are therefore assigned directly by MOFCOM to individual companies whose applications for molybdenum quota shares have been approved.
7.226.
Exporters apply for export quota shares under procedures spelled out by MOFCOM in the 2012 Application Qualifications and Application Procedures for Molybdenum Export Quota.367
7.227.
The 2012 Export Quota Amounts368 indicates that the 2012 total annual export quota for all molybdenum products is 25,000 tonnes in metal content. The export quota for molybdenum is further allocated among the following three molybdenum product categories: (a) primary raw molybdenum; (b) chemical molybdenum products; and (c) molybdenum products.369
7.228.
On 26 December 2011, China published a notice announcing the distribution of 2012 "first batch" export quota shares for molybdenum, indicating the specific amount of specific categories of molybdenum allocated to the specific enterprises.370 According to the notice, the first batch allocation covered approximately 60% of the 2012 quota for non-ferrous metals, including molybdenum. MOFCOM allocated, in gross weight, 19,914 tonnes to primary raw molybdenum, 2,353 tonnes to chemical molybdenum products, and 2,250 tonnes to other molybdenum products.371
7.229.
On 19 July 2012, China issued the "second batch" quota allocation for the export of molybdenum. MOFCOM allocated an additional 16,345 tonnes in gross weight to the molybdenum products listed above in similar proportions.372 In total, China's molybdenum quota for 2012 was 40,862 tonnes in gross weight.
7.230.
In announcing the second batch export quota for 2012, China indicated that as of 1 August 2012, the export companies allocated quota allowances for specific molybdenum products may adjust the export quota allowances to apply to molybdenum products higher in the industrial chain, without first seeking authorization from MOFCOM.373 These quota shares may be freely allocated to molybdenum products higher in the industrial chain, but may not be reallocated to molybdenum products with a lesser degree of processing.