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Source(s) of the information:
Source(s) of the information:

Report of the Panel

WTO AND GATT CASES CITED IN THIS REPORT

Short TitleFull Case Title and Citation
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
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 – 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
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, p. 3
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
Dominican Republic – Import and Sale of Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted 19 May 2005, DSR 2005:XV, p. 7367
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 – 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 – IT Products Panel Reports, European Communities and its member States – Tariff Treatment of Certain Information Technology Products, WT/DS375/R / WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III, p. 933
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998, DSR 1998:V, p. 2031
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 to WTO Members 25 November 2013 [adoption/appeal pending]
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EC – Selected Customs Matters Panel Report, European Communities – Selected Customs Matters, WT/DS315/R, adopted 11 December 2006, as modified by Appellate Body Report WT/DS315/AB/R, DSR 2006:IX, p. 3915
EEC – Apples (US) GATT Panel Report, European Economic Community – Restrictions on Imports of Apples – Complaint by the United States, L/6513, adopted 22 June 1989, BISD 36S, p. 135
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, adopted 22 February 2012
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, p. 9
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
US – Anti-Dumping and Countervailing Duties (China) Appellate Body Report, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R, adopted 25 March 2011, DSR 2011:V, p. 2869
US – Anti-Dumping and Countervailing Duties (China) Panel Report, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/R, adopted 25 March 2011, as modified by Appellate Body Report WT/DS379/AB/R, DSR 2011:VI, p. 3143
US – Anti‑Dumping Measures on Oil Country Tubular Goods Panel Report, United States – Anti‑Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico, WT/DS282/R, adopted 28 November 2005, as modified by Appellate Body Report WT/DS282/AB/R, DSR 2005:XXI, p. 10225
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 – 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, p. 1291
US – Countervailing Measures on Certain EC Products Appellate Body Report, United States – Countervailing Measures Concerning Certain Products from the European Communities, WT/DS212/AB/R, adopted 8 January 2003, DSR 2003:I, p. 5
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 – Gasoline Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3
US – Hot‑Rolled Steel Panel Report, United States – Anti‑Dumping Measures on Certain Hot‑Rolled Steel Products from Japan, WT/DS184/R, adopted 23 August 2001 modified by Appellate Body Report WT/DS184/AB/R, DSR 2001:X, p. 4769
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, p. 3257
US – Section 129(c)(1) URAA Panel Report, United States – Section 129(c)(1) of the Uruguay Round Agreements Act, WT/DS221/R, adopted 30 August 2002, DSR 2002:VII, p. 2581
US – Shrimp (Article 21.5 – Malaysia) Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6481
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, p. 513
US – Stainless Steel (Korea) Panel Report, United States – Anti‑Dumping Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea, WT/DS179/R, adopted 1 February 2001, DSR 2001:IV, p. 1295
US – Underwear Appellate Body Report, United States – Restrictions on Imports of Cotton and Man‑made Fibre Underwear, WT/DS24/AB/R, adopted 25 February 1997, DSR 1997:I, p. 11
US – Underwear Panel Report, United States – Restrictions on Imports of Cotton and Man‑made Fibre Underwear, WT/DS24/R, adopted 25 February 1997, as modified by Appellate Body Report WT/DS24/AB/R, DSR 1997:I, p. 31
US – Upland Cotton (Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/AB/RW, adopted 20 June 2008, DSR 2008:III, p. 809
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 – 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

ABBREVIATIONS

AbbreviationDescription
AD Anti‑dumping
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
ATC Agreement on Textiles and Clothing
CFS Paper US Court of International Trade, Government of the People’s Republic of China v. United States, 483 F. Supp. 2d 1274 (CIT 2007)
CAFC United States Court of Appeals for the Federal Circuit
CIT United States Court of International Trade
CVD Countervailing duty
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT 1947 General Agreement on Tariffs and Trade 1947
GATT 1994 General Agreement on Tariffs and Trade 1994
GAO United States Government Accountability Office
Georgetown Steel US Court of Appeals for the Federal Circuit, Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1310 (Fed. Cir. 1986)
GPX I US Court of International Trade, GPX Int'l Tire Corp. v. United States, 587 F. Supp. 2d 1278 (CIT 2008)
GPX II US Court of International Trade, GPX Int'l Tire Corp. v. United States, 645 F. Supp. 2d 1231 (CIT Sept. 18, 2009)
GPX III US Court of International Trade, GPX Int'l Tire Corp. v. United States, 715 F. Supp. 2d 1337 (CIT Aug. 4, 2010)
GPX IV US Court of International Trade, GPX Int'l Tire Corp. v. United States, slip op. 2010-112 (CIT Oct. 1, 2010)
GPX V US Court of Appeals for the Federal Circuit, GPX Int'l Tire Corp. v. United States, 666 F.3d 732 (Fed. Cir. 2011)
GPX VI US Court of International Trade, GPX Int'l Tire Corp. v. United States, 678 F.3d 1308 (Fed. Cir. 2012)
GPX VII US Court of International Trade, GPX Int'l Tire Corp. v. United States, slip op. 13-2, p. 12 (CIT Jan. 7, 2013)
NME Non-market economy
PL 112-99 US Public Law 112-99 "An act to apply the countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries, and for other purposes", 126 Sta. 265 (Mar. 13, 2012)
SCM Agreement Agreement on Subsidies and Countervailing Measures
The Shorter Oxford Dictionary (1993) New Shorter Oxford English Dictionary, 1993 (4th edition), Volumes I and II
The Shorter Oxford Dictionary (2002) New Shorter Oxford English Dictionary, 2002 (5th edition), Volumes I and II
USCBP United States Customs and Border Protection
USDOC United States Department of Commerce
USITC United States International Trade Commission
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679
WTO World Trade Organization
WTO Agreement Marrakesh Agreement Establishing the WTO

1 INTRODUCTION

1.1 COMPLAINT BY CHINA

1.1.
On 17 September 2012, China requested consultations with the United States pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994), Article 30 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement), and Article 17 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (AD Agreement) with respect to the measures and claims set out below.1
1.2.
Consultations were held on 5 November 2012. These failed to resolve the dispute.

1.2 PANEL ESTABLISHMENT AND COMPOSITION

1.3.
On 19 November 2012, China requested the establishment of a panel pursuant to Articles 4.7 and 6 of the DSU with standard terms of reference.2 At its meeting on 17 December 2012, the Dispute Settlement Body (DSB) established a panel pursuant to the request of China in document WT/DS449/2, in accordance with Article 6 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 China in document WT/DS449/2 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 21 February 2013, China requested the Director-General to determine the composition of the panel, pursuant to Article 8.7 of the DSU. On 4 March 2013, the Director-General accordingly composed the Panel as follows:

Chairperson: Mr José Graça Lima

Members: Mr Donald Greenfield

Mr Arie Reich

1.6.
Australia, Canada, the European Union, India, Japan, Russian Federation, Turkey, 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 on 14 March 2013 and its timetable on 28 March 2013.
1.8.
The Panel held a first substantive meeting with the parties on 2-3 July 2013. A session with the third parties took place on 3 July 2013. The Panel held a second substantive meeting with the parties on 27-28 August 2013. On 30 September 2013, the Panel issued the descriptive part of its Report to the parties. The Panel issued its Interim Report to the parties on 15 November 2013. The Panel issued its Final Report to the parties on 20 December 2013.

1.3.2 Preliminary ruling under Article 6.2 of the DSU

1.9.
On 15 March 2013, the United States submitted to the Panel a request for a preliminary ruling with respect to the consistency of certain aspects of China's request for the establishment of a panel (panel request) with Article 6.2 of the DSU. The United States requested that the Panel issue a preliminary ruling before the filing of the first written submissions of the parties.6 In contrast, China argued that the Panel should rule on the preliminary ruling request at a later stage of the proceedings.7 Ultimately, the Panel decided to issue a preliminary ruling prior to the filing of the first written submissions of the parties. The Panel provided the United States with an opportunity to submit written comments on China's panel request. As neither party requested a hearing on the preliminary ruling issue, the parties were given an opportunity to submit further written comments to respond to each other's comments on the United States' request. The Panel invited the third parties to submit any written comments they might have in response to the views expressed by the parties.8 The Panel also posed several written questions to the parties and third parties, and gave China and the United States the opportunity to submit comments on the responses received.9
1.10.
On 7 May 2013, the Panel issued its preliminary ruling to the parties and provided a copy to the third parties, with an indication that the ruling would become an integral part of the Panel's final report, subject to any changes that may be necessary in the light of comments received from the parties at the interim review stage. After consulting the parties, the Panel requested the Chairperson of the DSB to circulate the ruling to the WTO membership. The ruling was circulated on 7 June 2013 as document WT/DS449/4.

2 FACTUAL ASPECTS

2.1.
China identified the following measures in its panel request:

a. Sections 1 and 2 of United States Public Law 112-99, "An act to apply the countervailing duty provisions of the US Tariff Act of 1930 to nonmarket economy countries, and for other purposes" (P.L. 112-99);

b. any and all determinations or actions by the United States Department of Commerce (USDOC), the United States International Trade Commission (USITC), or United States Customs and Border Protection (USCBP) relating to the imposition or collection of countervailing duties on products imported into the territory of the United States from the People's Republic of China, where such determinations or actions were made or performed in connection with countervailing duty investigations or reviews initiated between 20 November 2006 and 13 March 2012;

c. the anti-dumping measures listed in Appendix B of its panel request, including the definitive anti-dumping duties imposed pursuant to their authority, as well as the combined effect of these anti-dumping measures and the parallel countervailing duty measures identified in Appendix A of its panel request; and

d. the failure of the United States to provide the USDOC with legal authority to identify and avoid the double remedies that are likely to result when the USDOC applies countervailing duties in conjunction with anti-dumping duties determined in accordance with the US non-market economy methodology, in respect of investigations or periodic reviews initiated between 20 November 2006 and 13 March 2012.

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

3.1.
China identified a number of claims in its panel request:

a. Section 1 of P.L. 112-99, including the new Section 701(f) of the United States Tariff Act which it establishes, is inconsistent as such with Articles X:1, X:210, X:3(a), and X:3(b) of the GATT 1994;

b. Section 2 of P.L. 112-99 amending Section 777A of the United States Tariff Act is inconsistent as such with Article X:3(a) of the GATT 1994;

c. the United States lacks legal authority to identify and avoid double remedies in respect of certain investigations and reviews initiated between 20 November 2006 and 13 March 2012, and is thereby prevented in all such investigations and reviews, from ensuring that the imposition of countervailing duties is consistent with Articles 10, 15, 19, 21, and 32 of the SCM Agreement and Article VI of the GATT 1994, and from ensuring that the imposition of anti-dumping duties in the associated anti-dumping investigations and reviews is consistent with Articles 9 and 11 of the AD Agreement and Article VI of the GATT 1994;

d. the United States failed to investigate and avoid double remedies in certain investigations and reviews initiated between 20 November 2006 and 13 March 2012; that the resulting countervailing duty measures, including any countervailing duties collected pursuant to their authority, are inconsistent with Articles 10, 15, 19, 21, and 32 of the SCM Agreement and Article VI of the GATT 1994; and that the associated anti‑dumping measures in each such instance, including any anti-dumping duties collected pursuant to their authority, are inconsistent with Articles 9 and 11 of the AD Agreement and Article VI of the GATT 1994.

3.2.
China subsequently indicated that it had decided to narrow the scope of its claims in this dispute.11 Accordingly, as elaborated in the Panel's preliminary ruling and in paragraphs 7.6-7.8, China requests the Panel to find that:

a. Section 1 of P.L. 112-99, including the new Section 701(f) of the United States Tariff Act which it establishes, is inconsistent as such with Articles X:1, X:212, and X:3(b) of the GATT 1994;

b. the United States failed to investigate and avoid double remedies in certain investigations and reviews initiated between 20 November 2006 and 13 March 2012; and that the resulting countervailing duty measures, including any countervailing duties collected pursuant to their authority, are inconsistent with Articles 10, 19, and 32 of the SCM Agreement.

3.3.
China further requests, pursuant to Article 19.1 of the DSU, that the Panel recommend that the United States bring its measures into conformity with its WTO obligations.
3.4.
The United States requests that the Panel reject all of China's claims in this dispute.

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 and B-2).

5 ARGUMENTS OF THE THIRD PARTIES

5.1.
The arguments of Australia, Canada, the European Union, and Japan are reflected in their executive summaries, provided in accordance with paragraph 19 of the Working Procedures adopted by the Panel (see Annexes C-1, C-2, C-3, and C-4). Canada did not make an oral statement. India, Russian Federation, Turkey, and Viet Nam did not submit written or oral statements to the Panel.

6 INTERIM REVIEW

6.1.
On 15 November 2013, the Panel submitted its Interim Report to the parties. On 29 November 2013, China and the United States each submitted written requests for the review of precise aspects of the Interim Report. Neither party requested an interim review meeting. On 13 December 2013, both parties submitted comments on each other's requests for review.
6.2.
In accordance with Article 15.3 of the DSU, this section of the Panel Report sets out the Panel's response to the parties' requests made at the interim review stage. The Panel modified aspects of its Report in the light of the parties' comments where it considered it appropriate, as explained below. References to sections and paragraph numbers in this section relate to the Interim Report, except as otherwise noted.
6.3.
In addition to the modifications specified below, the Panel also corrected a number of typographical and other non-substantive errors throughout the Report, including those identified by the parties.
6.4.
In order to facilitate understanding of the interim review comments and changes made, the following section is structured to follow the organization of the findings section of this Report (Section 7), with the review requests of the parties, and their comments, addressed sequentially, according to the paragraph numbers that attracted comments.

6.1 PRELIMINARY RULING UNDER ARTICLE 6.2 OF THE DSU

6.5.
Regarding paragraph 7.5 of the findings section, the United States considers that the findings contained in a preliminary ruling should be set out as a part of a panel's report, rather than being incorporated by reference. The United States submits that this would be more consistent with the process for drafting and review of a panel's findings set out in Article 15 of the DSU, and would also be of considerable benefit to Members and the public as they would not need to locate and download an additional document to be able to review all of the Panel's findings.
6.6.
The Panel recalls that, following consultation with the parties, we publicly circulated an 18‑page preliminary ruling to the DSB as document WT/DS449/4. Paragraph 4.3 of that preliminary ruling clarified that "[t]his preliminary ruling will become an integral part of the Panel's final report, subject to any changes that may be necessary in the light of comments received from the parties at the interim review stage". We have reiterated in paragraph 7.5 of this Report that our preliminary ruling "forms an integral part of the present findings". Also, neither party provided comments on the substance of our preliminary ruling at the interim review stage. These considerations lead us to conclude that it is unnecessary to reproduce our preliminary ruling in this Report. Furthermore, the United States has not explained how Members or others who are able to locate and download this Report would have any difficulty in locating and downloading our preliminary ruling contained in document WT/DS449/4. Other panels have adopted the economical technique of incorporating previously-circulated preliminary rulings by reference into their reports13, and at least one previous panel expressly declined a request to reproduce such a ruling in its report on the grounds that it was unnecessary.14 Based on the foregoing, we decline the United States' request that we reproduce the body of our 18-page preliminary ruling in our Report.

6.2 MEASURES AT ISSUE

6.7.
Regarding paragraph 7.12, the United States requests that the Panel revise this sentence to reflect the fact that the United States refers to the entirety of PL 112-99 as the "GPX legislation".
6.8.
The Panel has revised paragraph 7.12 in accordance with the United States request.
6.9.
Regarding the table at paragraph 7.15, the United States notes that the second column of the table had been left blank, and suggests that this column be numbered to correspond to the table in Exhibit CHI-24. The United States further requests that the phrase "Preliminary Determination" be added to the official name of the last two anti-dumping and countervailing proceedings.
6.10.
The Panel added the missing information to this table, as suggested by the United States.

6.3 CHINA'S CLAIM UNDER ARTICLE X:1 OF THE GATT 1994

6.11.
Regarding paragraph 7.23, the United States suggests inserting a reference to China's claim to capture more accurately the United States' arguments.
6.12.
The Panel notes that paragraph 7.23 correctly reflects the United States' arguments. Nevertheless, the Panel accepted to add a phrase that appropriately clarifies the paragraph in question.
6.13.
Regarding paragraph 7.26, the United States suggests that the Panel avoid a duplicative reference when referring to the United States legislature in the fourth sentence.
6.14.
The Panel made a change to paragraph 7.26 to include in the sentence what had been inadvertently omitted and ensure consistency with paragraph 7.67.
6.15.
Regarding paragraphs 7.27, 7.28 and 7.29, the United States suggests that to avoid confusion, the Panel use the word "statute" instead of "law" in paragraph 7.27, delete a reference to Section 1 as an integral part of a law in paragraph 7.28, and replace the term "statutory provision" by "law" in paragraph 7.29.
6.16.
The Panel does not agree that the paragraphs in question gave rise to possible confusion, but has nonetheless made certain editorial changes to paragraphs 7.27, 7.28 and 7.29 to reflect the United States' request.
6.17.
Regarding paragraph 7.31, the United States suggests deleting the second footnote in order to avoid providing an interpretation of a provision that would not appear necessary and proposes an alternative text.
6.18.
The Panel deleted the footnote in question.
6.19.
Regarding paragraphs 7.32, 7.83 and 7,109, the United States suggests that the Panel not use the term "WTO dispute settlement practice" in the interest of clarity and to refer instead to "panel and Appellate Body reports".
6.20.
The Panel made the requested change in paragraph 7.32, and made appropriate changes to paragraphs 7.83 and 7,109.
6.21.
Regarding paragraph 7.39, the United States suggests that the Panel mention that the term "nonmarket economy country" is defined in Section 771(18) of the United States Tariff Act of 1930, as amended, and that it add the definition to the first footnote of the paragraph.
6.22.
The Panel added appropriate language to the first footnote of paragraph 7.39 to explain the term "nonmarket economy".
6.23.
Regarding paragraph 7.46, the United States suggests that the Panel replace the term "rule" with the term "statutory provision" and the term "governments" with "WTO Members".
6.24.
The Panel replaced the word "rule" with "provision". However, we do not find it appropriate to replace the term "Member governments", as the paragraph in question concerns Article X:1, which specifically refers in relevant part to "governments".

6.4 CHINA'S CLAIM UNDER ARTICLE X:2 OF THE GATT 1994

6.25.
Regarding paragraph 7,103, the United States suggests revisions of the Panel's summary of the United States' arguments to provide further explanation of the United States' use of the term "secret", saying this would provide a more complete record of its arguments.
6.26.
The Panel appropriately supplemented its summary of the United States' arguments in paragraph 7,103 on the basis of paragraph 4 of the United States' second written submission and paragraph 50 of the United States' second oral statement.
6.27.
Regarding paragraph 7,112, the United States suggests that the Panel delete the word "merely" and replace it with the term "inter alia" to reflect more accurately its position.
6.28.
China requests that the Panel reject the United States' request to modify this paragraph. According to China, the United States never identified any other purpose of Article X:2 that would distinguish it from the prompt publication requirement of Article X:1. In China's view, it would therefore be inaccurate to replace the word "merely" with "inter alia".
6.29.
The Panel deleted the word "merely" from paragraph 7,112.
6.30.
Regarding paragraphs 7,120, 7,121, 7,122 and 7,188, the United States requests that the Panel add the word "pending" in a number of instances and the word "active" in one case. The United States further suggests adding references to 20 November 2006. In relation to paragraph 7,122, the United States also argues that it would be more accurate to state that Section 1(b) "was applicable" to relevant CVD proceedings predating the publication of Section 1 rather than "applied" by US administrative agencies. The United States notes in this respect that the second sentence of paragraph 7,257 also discusses Section 1(b) and uses the word "applicable".
6.31.
China submits that the Panel should reject the United States' request to modify the identified paragraphs. Section 1(b) contains neither the term "pending" nor the term "active". In China's view, the addition of these terms would therefore not more accurately reflect the language of the relevant provision. Regarding the separate comment about paragraph 7,122, China submits that the Panel should reject the United States' request to make the suggested change. China submits hat the United States has failed to explain how or why a statutory provision could "apply to" countervailing duty proceedings initiated on or after 20 November 2006 without requiring the relevant administrative agencies to "apply" the provision to these proceedings as a matter of law. China further argues that the Panel's statement in paragraph 7,122 follows directly from its analysis of the text of Section 1 in paragraph 7,120.
6.32.
The Panel notes that the United States did not explain the asserted inaccuracy that in its view would make it appropriate to add the words "pending" and "active". Also, these words are not actually used in Section 1(b). Therefore, we did not make these changes to paragraphs 7,120, 7,121, 7,122 and 7,188. Moreover, a careful reading of paragraph 7,121 indicates that the suggested references to 20 November 2006 are unnecessary. As regards paragraph 7,122, we added explicit references to the relevant time-periods. While we had no difficulty deleting two parallel phrases in response to the United States' suggestion, we do not agree with the United States that it is more accurate to use the phrase "was applicable" when referring to Section 1(b). Indeed, the text of Section 1(b) uses the term "applies to". For this reason, we also modified paragraph 7,257 to use the actual statutory term there as well. As part of its comments on paragraph 7,122, the United States asserts that relevant United States administering agencies did not take any affirmative actions to apply or administer Section 1(b) to the CVD proceedings initiated between 20 November 2006 and 13 March 2012. Even if true, however, this would not detract from our statements at, for instance, paragraphs 7,122, 7,125 or 7,188. Section 1(b) required United States administering agencies to apply the new Section 701(f). Also, the absence of "affirmative actions" would not imply that Section 701(f) has not been applied since 13 March 2012 with a view to ensuring its observance. Rather, it would indicate that in the view of the administering agencies there was no need to discontinue previous actions, or take additional actions, after Section 1(b) had entered into force.
6.33.
Regarding paragraph 7,124, the United States requests that the Panel replace the phrase "relies on the fact" in the first sentence with "argues". The United States submits that Section 1 did not replace the underlying legal authority for USDOC to initiate CVD investigations from 20 November 2006 to 13 March 2012.
6.34.
China submits that the Panel should reject the United States' request to modify the paragraph, because the statement in relevant part reflects a fact, not an "argument". In China's view, Section 701(f) provided the legal basis for the application of countervailing duties to imports from NME countries after 20 November 2006. China further notes that the parties disagree as to whether Section 701(a) also provided legal authority for USDOC to apply countervailing duties to imports from NME countries prior to the enactment of Section 701(f).
6.35.
The Panel made appropriate changes to the first sentence of paragraph 7,124.
6.36.
Regarding paragraph 7,150, the United States requests that the Panel provide a summary of the United States' explanation in response to an argument by China that the CAFC failed to vacate in GPX V.
6.37.
The Panel added two sentences at the end of paragraph 7,150, noting, however, that the United States' position was already reflected in footnote 293.
6.38.
Regarding paragraph 7,162, China requests that the Panel delete part of, or make a change to, the second sentence to avoid the appearance that it is making a finding regarding whether Section 701(a) provided a legal basis for applying CVDs to imports from NME countries. China considers that this is a contested issue of fact and that the Panel majority need not make a finding in this respect to resolve China's claim.
6.39.
The United States does not support China's request to modify the second sentence of paragraph 7,162, because the sentence describes the Panel's understanding of the statutory authority for USDOC's application of United States CVD law to imports from a country, including an NME country. According to the United States, that understanding is based on the plain text of Section 701(a) of the United States' Tariff Act, which states that where USDOC determines that "a country" is providing a countervailable subsidy, a countervailing duty "shall be" imposed upon the imported merchandise.
6.40.
The Panel added a reference to USDOC in the second sentence in order to clarify the sentence.
6.41.
Regarding paragraph 7,163, the United States suggests that in the fifth sentence the Panel replace the term "would" with "must", as this would more accurately reflect the requirements of United States law.
6.42.
The Panel made the requested change in the fifth sentence of paragraph 7,163.
6.43.
Regarding paragraph 7,170, the United States suggests that the Panel delete the word "general" from the last sentence.
6.44.
The Panel made the requested change in the last sentence of paragraph 7,170.
6.45.
Regarding paragraph 7,174, China requests that the Panel delete part of, or make a change to, the fourth sentence in order to avoid what it views as a factually inaccurate statement regarding whether the scope of the CAFC's decision in Georgetown Steel was resolved prior to enactment of Section 1 of PL 112-99.
6.46.
The United States does not support China's request to delete or modify the fourth sentence of paragraph 7,174. The United States considers that the Panel's statement that the disagreement over the scope of the Georgetown Steel ruling was not resolved is clear and accurate. According to the United States, the evidence before the Panel established that no United States court had resolved the disagreement over the scope of the Georgetown Steel ruling prior to the enactment of Section 1 of PL 112-99. The United States further observes that the issue was also not resolved by the CAFC's opinion in GPX V, because an appeal was pending when Section was enacted and a mandate was never issued for the GPX V opinion.
6.47.
The Panel made an addition to the fourth sentence in order to enhance clarity.
6.48.
Regarding paragraph 7,183, the United States suggests that the Panel add a reference in the footnote to the United States' comments on China's response to Panel question No. 96, concerning application of the Appellate Body's guidance in US – Shrimp (Article 21.5 – Malaysia) to the treatment of the CAFC's opinion in GPX V.
6.49.
China submits that the Panel should reject the United States' request for a citation to its arguments about the Appellate Body report in US – Shrimp (Article 21.5 – Malaysia). In China's view, if the Panel considers that the Appellate Body report in that dispute supports its reasoning, then a citation to that report is sufficient and there is no need to refer to one party's argument concerning that Appellate Body report.
6.50.
The Panel does not find it appropriate to refer to the United States' arguments in a footnote that relates to the Panel's analysis. We also note that the United States' comments on China's response to Panel question No. 96 are already referenced in footnote 299.
6.51.
Regarding paragraph 7,190, China requests that the Panel restate part of the final sentence. China argues that this would ensure that the Panel's statement about the lawfulness aspect is not misconstrued. China recalls that in its view USDOC's application of CVDs to imports from China prior to 13 March 2012 was unlawful in the sense that it was not in accordance with United States law as it then existed.
6.52.
The United States believes that the Panel's statement in paragraph 7,190 is clear and an accurate assessment of the record, and therefore should not be modified. According to the United States, the evidence before the Panel demonstrates that USDOC's interpretation of United States' CVD law as being applicable to NME countries has been and is governing United States law. As there has been no final court decision finding that USDOC's interpretation is unreasonable or contrary to the plain text of the statute, there is no evidence demonstrating that USDOC's interpretation was unlawful.
6.53.
The Panel clarified the last sentence in a manner that is consistent with paragraphs 7,165 and 7,171.
6.54.
Regarding paragraph 7,203, the United States suggests insertion of the term "published" when describing the practice or interpretation of an administering agency under United States law. The United States submits that USDOC notified China and other interested parties of the application of United States CVD law to China on multiple occasions since November 2006.
6.55.
China submits that the Panel should reject the United States' request for modification of this paragraph. In China's view, it would be inaccurate and misleading to suggest that USDOC had a published practice or published interpretation concerning the application of countervailing duties to imports from NME countries. China contends that the last "practice" or "interpretation" published by USDOC concerning the application of countervailing duties to imports from NME countries was and remains the statement in the preamble to its 1998 countervailing duty regulations. According to China, the Panel should not modify the paragraph to imply that that USDOC published its subsequent practice or interpretation in the same manner as its 1998 countervailing duty regulations.
6.56.
The Panel made appropriate changes to the first, second and sixth sentences of paragraph 7,203 in response to the United States' request that it reflect that USDOC notified China and other interested parties.
6.57.
Regarding paragraph 7,212, the United States suggests that it would be helpful to identify with greater precision the findings of the majority opinion that the dissenting panelist agrees with and those that he does not agree with.
6.58.
The dissenting panelist appropriately clarified paragraph 7,212.
6.59.
Regarding paragraph 7,216, the United States suggests that the dissenting panelist delete the penultimate sentence and footnote, as the United States does not agree that it did not have the authority or could not apply CVDs to NME countries prior to the enactment of Section 1.
6.60.
The dissenting panelist amended the relevant sentence and footnote from paragraph 7,216.
6.61.
Regarding paragraph 7,225, the United States suggests that to ensure consistency with regard to how the United States constitutional law experts relied on by the parties are referred to in the dissenting opinion, the dissenting panelist delete certain terms from the last sentence of the paragraph.
6.62.
The dissenting panelist made an appropriate change to the last sentence of paragraph 7,225.
6.63.
Regarding paragraph 7,226, the United States suggests that the phrase relating to USDOC in the fourth sentence be replaced by the term "Congress", because USDOC has no legal authority to enact or ensure passage of proposed legislation.
6.64.
China submits that the United States' request in respect of this paragraph is unfounded and unnecessary. China considers that the dissenting panelist should therefore reject the United States' request. In China's view, the statement in question does not imply that USDOC has any legal authority to enact or ensure passage of proposed legislation. China argues that, rather, consistent with the CAFC's holding in GPX V, USDOC was "seeking" the enactment of new legislation to amend the Tariff Act and to have that amendment applied retroactively to ensure that the CAFC's decision did not become final.
6.65.
The dissenting panelist does not consider it necessary to change the wording of paragraph 7,226. The phrase relating to USDOC does not say that USDOC enacted the proposed legislation, but only that it heeded the CAFC's advice to "seek legislative change" (these were the words of the Court). USDOC did so by turning to Congress and asking it to make this legislative change, as reflected in the Letter from the United States Secretary of Commerce and the United States Trade Representative to the Chairman of the House Ways and Means Committee (Exhibit CHI-12).
6.66.
Regarding paragraph 7,228, the United States suggests that the description of its position regarding the relevant baseline for the determination of whether there has been a covered change under Article X:2 be revised to accurately reflect its position.
6.67.
China submits that the statement by the dissenting panelist that the United States seeks to modify is correct, as it correctly characterizes the United States' position. China contends that the United States did take the position that it is irrelevant for purposes of Article X:2 whether USDOC's existing approach of applying countervailing duties to imports from China was consistent with United States law. China further observes that having started from the position that the consistency of USDOC's approach with United States law was irrelevant for purposes of establishing the baseline under Article X:2, the United States now, at the very end of the proceedings, seems to be taking the position that it is relevant.
6.68.
The dissenting panelist made appropriate changes to the description of the United States' position on the baseline issue at the end of paragraph 7,228.
6.69.
Regarding paragraph 7,239, the United States suggests that the description fails to accurately reflect the United States' response to the Panel's question and that it would therefore be more accurate to describe the other elements by adding a sentence at the end.
6.70.
The dissenting panelist added a sentence toward the end of paragraph 7,239 relating to the United States' response to Panel question No. 94 and also corrected internal quotation marks.

6.5 CLAIM UNDER ARTICLE X:3(B) OF THE GATT 1994

6.71.
Regarding paragraphs 7,256 and 7,258, China requests that the Panel delete certain statements that could be construed as endorsing the United States' view that Section 1 of PL 112‑99 was a "clarification" of existing United States law. China argues that such an endorsement would be inconsistent with the statements at paragraph 7,184 and 7,225 of the Report, and therefore it does not appear to be the Panel's intention to make such a finding. China also reiterates its argument that there is no evidence on record to support the United States' "clarification" theory. China requests, in the alternative, that the Panel qualify each statement to indicate that it is "the USDOC's opinion" that Section 1 "confirmed" or "re-affirmed" its prior interpretation of the statute.
6.72.
The United States requests that the Panel reject China's proposed deletions or amendments to the first sentence of paragraph 7,256 or the first sentence of paragraph 7,258. The United States notes that the Panel describes the objective of the GPX legislation by citing to statements of the CAFC and to United States submissions to the Panel, and submits that these statements, along with the plain text of Section 1(a) of the GPX legislation, clearly demonstrate that the law "confirmed" and "affirmed" USDOC's interpretation of the United States CVD law. The United States observes that the objective of the GPX legislation was to settle or make firm whether the United States CVD law was applicable to NME countries following the issuance of the CAFC opinion in GPX V, a non-binding court opinion concerning USDOC's longstanding interpretation of the law, and that in response to the CAFC opinion in GPX V, the GPX legislation strengthened and supported USDOC's existing interpretation of the United States CVD law.
6.73.
The Panel observes that China's comments concern our statements that Congress enacted PL 112-99 to overrule and supersede the CAFC decision in GPX V, "thus effectively confirming USDOC's understanding of United States CVD law", and that the objective of the legislation appears to have been to "reaffirm and continue the interpretation of United States CVD law that had been applied by USDOC since 2006". These statements were not intended to constitute findings on the contested issue of whether Section 1 was a mere "clarification" of the law, rather than a "change" to the law. To avoid any misunderstanding, we nonetheless rephrased these statements in paragraphs 7,256 and 7,258.
6.74.
Regarding paragraph 7,259, the United States suggests the insertion of the term "pending" before the phrase "judicial proceedings" in the third sentence of the paragraph to more accurately reflect the language of Section 1(b) of the GPX legislation.
6.75.
China disagrees with the United States' suggestion to add the term "pending" in paragraph 7,259 to more accurately reflect the language of Section 1(b), because Section 1(b) does not contain the term "pending".
6.76.
The Panel, as indicated above in respect of the United States' requests regarding paragraphs 7,120, 7,121, 7,122, and 7,188, considers that the United States has not explained why adding the word "pending" before the phrase "judicial proceedings" would more accurately reflect the language of Section 1(b). Accordingly, the Panel has not modified paragraph 7,259 as requested by the United States.
6.77.
Regarding paragraph 7,261, the United States suggests that the reference to "trade‑restrictive" measures in the last sentence be changed to "trade-remedy" measures. In the United States' view, antidumping and countervailing duties are considered remedial in nature rather than trade-restrictive.
6.78.
The Panel deleted the phrase "trade-restrictive" from the last sentence of paragraph 7,261.

6.6 "DOUBLE REMEDIES": ARTICLES 19.3, 10 AND 32.1 OF THE SCM AGREEMENT

6.79.
Regarding paragraphs 7,315 to 7,317, the United States argues that the language used in these paragraphs could be read as indicating the view that a panel need not conduct an objective assessment of the matter referred to it by the DSB if there are relevant prior Appellate Body reports. The United States elaborates on the multiple bases underlying its disagreement with that view, noting its view that the discussion by the Appellate Body in US – Stainless Steel (Mexico) appeared to be at best obiter dicta, given that the Appellate Body ultimately did not find that the panel in that dispute acted inconsistently with Article 11 of the DSU. The United States requests that the Panel delete most of paragraph 7,317, and that the Panel modify paragraphs 7,318, 7,326, 7,327, 7,342, 7,343, and 7,351 by deleting the references therein to "cogent reasons".
6.80.
China submits that the Panel should reject this request for review in its entirety. China notes that the Panel is undoubtedly aware of the United States' position concerning the "cogent reasons" standard articulated by the Appellate Body in US – Stainless Steel (Mexico), and recalls that during the course of the Panel proceedings, the United States presented extensive argumentation in support of its position that a panel may depart from an adopted Appellate Body report if it finds the reasoning of that report to be unpersuasive. According to China, it is evident from the Interim Report that the Panel considered these arguments but did not find them to be persuasive. China submits that it is inappropriate for the United States to try to use the interim review process to re-argue an issue that was discussed in detail in its prior submissions, when the Panel has already considered and rejected the United States interpretation.
6.81.
The Panel is not convinced that the Appellate Body statements that we refer to at paragraphs 7,315 to 7,317 are themselves incorrect or inappropriate, or that we have proceeded incorrectly or improperly in referring to, and taking into account, those statements. Even if these statements by the Appellate Body were not a basis for a finding by the Appellate Body that the panel in US – Stainless Steel (Mexico) acted inconsistently with Article 11 of the DSU, the Appellate Body made it clear that those statements were not intended to be limited in their relevance to the case before it.15 We are also not convinced that there is any contradiction between the proposition that a panel is obliged under Article 11 of the DSU to conduct an "objective assessment" of the matter put before it, and the proposition that, in the absence of cogent reasons, a panel should not depart from an earlier finding by the Appellate Body in an adopted report when that finding concerns the very same interpretative question that is put before the panel. Accordingly, the Panel declines the United States' request that we delete most of paragraph 7,317, and we also decline its request that we delete the references to "cogent reasons" in paragraphs 7,318, 7,326, 7,327, 7,342, 7,343, and 7,351. We nonetheless made appropriate editorial changes to paragraphs 7,318 and 7,343.
6.82.
Regarding paragraph 7,331, the United States requests that the Panel clarify that the statements in the second and third sentences therein constitute arguments of China and not findings of the Panel.
6.83.
China submits that the Panel should reject the United States request to modify this paragraph, because contrary to the United States' request for review, the statements in question reflect undisputed facts, not "arguments of China".
6.84.
The Panel modified paragraph 7,331 to make explicit that the statements in the second and third sentences therein do not constitute findings of the Panel.
6.85.
Regarding paragraph 7,340, China and the United States both note that USDOC found that only certain types of domestic subsidies, referred to by USDOC as "input subsidies", had been double counted. China and the United States both request that the Panel modify paragraph 7,340 accordingly.
6.86.
The Panel modified paragraph 7,340 to reflect the parties' comments, and to harmonize the wording of this paragraph with the wording of paragraph 7,378 (on which neither party commented) and where we state that "63% of the input subsidies that the USDOC had identified had been double counted".
6.87.
Regarding paragraph 7,370, the United States notes the Panel's discussion of the Preliminary Decision Memorandum in the Drawn Stainless Steel Sinks investigation, which confirms the Panel's analysis of other evidence on the record of the dispute. The United States submits that panels are not in a position to consider evidence that has not been submitted by a party to the dispute, but that Article 13 of the DSU supplies a panel with authority to request information from a party. The United States considers that the Panel is authorized under Article 13 to request a copy of the Preliminary Decision Memorandum, and the United States is therefore providing a copy of the Preliminary Decision Memorandum as Exhibit USA-126.
6.88.
The Panel found it appropriate to consult the electronic version of the Preliminary Decision Memorandum that is explicitly referenced in Exhibit CHI-78, taking into account the very particular circumstances and limited purpose set forth in paragraph 7,370. While the United States provided a copy of this document as Exhibit USA-126 at the interim review stage, it has not requested that we make any change to paragraph 7,370. Insofar as the United States should be understood as having requested that we modify paragraph 7,370 so as to make reference to Exhibit USA-126, we are not convinced that such a change would be appropriate.
6.89.
Regarding paragraph 7,379, the United States suggests revising the first sentence to acknowledge that the CIT decisions in GPX II and GPX III were ultimately vacated by the CAFC in GPX VI, but remain instructive for the Panel's analysis.
6.90.
The Panel modified the first sentence of paragraph 7,379 to reflect that the CIT decisions in GPX II and GPX III were ultimately vacated, and to explain why these decisions are still instructive for the Panel's analysis of whether USDOC was taking steps to investigate and avoid double remedies during the relevant period of time.

6.7 CONCLUSIONS AND RECOMMENDATION

6.91.
Regarding paragraph 8.3, the United States requests that the Panel specify which measures are subject to its recommendation to avoid any ambiguity.
6.92.
The Panel modified paragraph 8.3 to specify which investigations and reviews are subject to its recommendation.

7 FINDINGS

7.1 PRELIMINARY RULING UNDER ARTICLE 6.2 OF THE DSU

7.1.
As noted in paragraphs 1.9 to 1.10 above, on 15 March 2013, the United States submitted a request for a preliminary ruling to the Panel with respect to the consistency of certain aspects of China's panel request with Article 6.2 of the DSU. The United States argued that Parts C and D of China's panel request, regarding USDOC's alleged failure to investigate and avoid "double remedies", fail to meet the requirement in Article 6.2 to "provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly" and, therefore, are not within the Panel's terms of reference.16 The United States requested that the Panel issue a preliminary ruling before the filing of the parties' first written submissions.17
7.2.
In response, China indicated that it would not pursue certain claims that were the subject of the United States' preliminary ruling request. More specifically, China indicated that it would not pursue its claims in Parts C and D of its panel request, except for those under Articles 10, 19, and 32 of the SCM Agreement as set forth in Part D of its panel request.18 China argued that with respect to China's claims under Articles 10, 19, and 32 of the SCM Agreement, Part D is consistent with the requirements of Article 6.2 of the DSU19, and requested the Panel to reject the United States' preliminary ruling request. China argued that the Panel should rule on the preliminary ruling request at the first substantive meeting or a later stage of the proceedings, rather than before the filing of the parties' first written submissions.20
7.3.
The Panel ultimately decided to issue a preliminary ruling prior to the filing of the first written submissions of the parties. On 7 May 2013, the Panel issued its preliminary ruling to the parties and provided a copy to the third parties. After consulting the parties, the Panel requested the Chairperson of the DSB to circulate the ruling to the WTO membership. The ruling was circulated on 7 June 2013 as document WT/DS449/4.
7.4.
As set out in further detail in its preliminary ruling, the Panel declined to rule on whether the panel request is consistent with Article 6.2 of the DSU insofar as it relates to certain claims, in the light of China's representation that it would not pursue those claims.21 Thus, the Panel concluded that it was appropriate to limit the scope of its preliminary ruling and make findings on the consistency with Article 6.2 of the DSU only with regard to Part D of China's panel request, insofar as it specifies claims under Articles 10, 19, and 32 of the SCM Agreement. The Panel concluded that the United States had failed to establish that Part C and Part D of China's panel request, insofar as they specify claims under Articles 10, 19, and 32 of the SCM Agreement, are inconsistent with Article 6.2 of the DSU on the grounds that they do not provide a brief summary of the legal basis sufficient to present the problem clearly. In this regard, the Panel found that the general references to Articles 10, 19, and 32 contained in Part D of the panel request warrant the inference that the obligations at issue are those contained in Articles 10, 19.3, and 32.1 of the SCM Agreement, and that the United States had not established that Part D of China's panel request fails to "plainly connect" the challenged measures with those obligations. In sum, the Panel: (i) declined the United States' request that it rule on whether the panel request in its Part C and Part D, insofar as it specifies claims other than those under Articles 10, 19, and 32 of the SCM Agreement, is inconsistent with Article 6.2; and (ii) rejected the United States' request that it rule that Part D, insofar as it specifies claims under Articles 10, 19, and 32 of the SCM Agreement, is inconsistent with Article 6.2 of the DSU.
7.5.
The Panel's preliminary ruling, as set forth in document WT/DS449/4, forms an integral part of the present findings.

7.2 CLAIMS ON WHICH FINDINGS HAVE BEEN REQUESTED

7.6.
China identified the following claims in Parts A, B, C, and D of its panel request:

a. Section 1 of Public Law (PL) 112-99 is inconsistent as such with Articles X:1, X:222, X:3(a), and X:3(b) of the GATT 1994;

b. Section 2 of PL 112-99, amending Section 777A of the United States Tariff Act, is inconsistent as such with Article X:3(a) of the GATT 1994;

c. the United States lacks legal authority to identify and avoid double remedies in respect of certain investigations and reviews initiated between 20 November 2006 and 13 March 2012, and is thereby prevented in all such investigations and reviews, from ensuring that the imposition of countervailing duties is consistent with Articles 10, 15, 19, 21, and 32 of the SCM Agreement and Article VI of the GATT 1994, and from ensuring that the imposition of anti-dumping duties in the associated anti-dumping investigations and reviews is consistent with Articles 9 and 11 of the Anti-Dumping Agreement and Article VI of the GATT 1994; and

d. the United States failed to investigate and avoid double remedies in certain investigations and reviews initiated between 20 November 2006 and 13 March 2012; that the resulting countervailing duty measures, including any countervailing duties collected pursuant to their authority, are inconsistent with Articles 10, 15, 19, 21, and 32 of the SCM Agreement and Article VI of the GATT 1994; and that the associated anti‑dumping measures in each such instance, including any anti-dumping duties collected pursuant to their authority, are inconsistent with Articles 9 and 11 of the Anti-Dumping Agreement and Article VI of the GATT 1994.

7.7.
China subsequently narrowed the scope of its claims in this dispute, as follows:

a. China indicated that it was not pursuing the claim, contained in Part A of its panel request, that Section 1 of PL 112-99 is inconsistent with Article X:3(a) of the GATT 199423;

b. China indicated that it was not pursuing the claim, contained in Part B of its panel request, that Section 2 of PL 112-99, amending Section 777A of the United States Tariff Act, is inconsistent as such with Article X:3(a) of the GATT 199424;

c. China indicated that it was not pursuing the claims, contained in Part C of its panel request, that the United States lacks authority to identify and avoid double remedies in respect of certain investigations and reviews initiated between 20 November 2006 and 13 March 201225; and

d. China indicated that with respect to the claims in Part D of its panel request, regarding the USDOC's alleged failure to investigate and avoid double remedies in certain investigations and reviews initiated between 20 November 2006 and 13 March 2012, China would only pursue its claims under Articles 10, 19, and 32 of the SCM Agreement. Furthermore, the Panel, in its preliminary ruling, ruled that the general references to Articles 10, 19, and 32 contained in Part D of the panel request warrant the inference that the obligations at issue are those contained in Articles 10, 19.3, and 32.1 of the SCM Agreement.26

7.8.
Based on the foregoing, China requests the Panel to find that:

a. Section 1 of PL 112-99 is inconsistent as such with Articles X:1, X:227, and X:3(b) of the GATT 1994; and

b. the United States failed to investigate and avoid double remedies in certain investigations and reviews initiated between 20 November 2006 and 13 March 2012, and the resulting countervailing duty measures are therefore inconsistent with Articles 10, 19.3, and 32.1 of the SCM Agreement.

7.9.
The United States requests that the Panel reject all of China's claims in this dispute.

7.3 MEASURES AT ISSUE

7.3.1 Section 1 of PL 112-99

7.10.
On 13 March 2012, the United States enacted PL 112-99, entitled "An Act to apply the countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries, and for other purposes". Section 1 of PL 112-99 is the measure at issue with respect to China's claims under Articles X:1, X:2, and X:3(b) of the GATT 1994.
7.11.
The text of PL 112-9928, including Sections 1 and 2 thereof, is reproduced below:

Public Law 112-99—March 13, 2012

Public Law 112-99

112th Congress

An Act

To apply the countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. APPLICATION OF COUNTERVAILING DUTY PROVISIONS TO NONMARKET ECONOMY COUNTRIES.

(a) In General.—Section 701 of the Tariff Act of 1930 (19 U.S.C. 1671) is amended by adding at the end the following:

"(f) Applicability to Proceedings Involving Nonmarket Economy Countries.—

"(1) In general.--Except as provided in paragraph (2), the merchandise on which countervailing duties shall be imposed under subsection (a) includes a class or kind of merchandise imported, or sold (or likely to be sold) for importation, into the United States from a nonmarket economy country.

"(2) Exception.—A countervailing duty is not required to be imposed under subsection (a) on a class or kind of merchandise imported, or sold (or likely to be sold) for importation, into the United States from a nonmarket economy country if the administering authority is unable to identify and measure subsidies provided by the government of the nonmarket economy country or a public entity within the territory of the nonmarket economy country because the economy of that country is essentially comprised of a single entity.''.

(b) Effective Date.—Subsection (f) of section 701 of the Tariff Act of 1930, as added by subsection (a) of this section, applies to—

(1) all proceedings initiated under subtitle A of title VII of that Act (19 U.S.C. 1671 et seq.) on or after November 20, 2006;

(2) all resulting actions by U.S. Customs and Border Protection; and

(3) all civil actions, criminal proceedings, and other proceedings before a Federal court relating to proceedings referred to in paragraph (1) or actions referred to in paragraph (2).

SEC. 2. ADJUSTMENT OF ANTIDUMPING DUTY IN CERTAIN PROCEEDINGS RELATING TO IMPORTS FROM NONMARKET ECONOMY COUNTRIES.

(a) In General.—Section 777A of the Tariff Act of 1930 (19 U.S.C. 1677f-1) is amended by adding at the end the following:

"(f) Adjustment of Antidumping Duty in Certain Proceedings Relating to Imports From Nonmarket Economy Countries.—

"(1) In general.—If the administering authority determines, with respect to a class or kind of merchandise from a nonmarket economy country for which an antidumping duty is determined using normal value pursuant to section 773(c), that—

"(A) pursuant to section 701(a)(1), a countervailable subsidy (other than an export subsidy referred to in section 772(c)(1)(C)) has been provided with respect to the class or kind of merchandise,

"(B) such countervailable subsidy has been demonstrated to have reduced the average price of imports of the class or kind of merchandise during the relevant period, and

"(C) the administering authority can reasonably estimate the extent to which the countervailable subsidy referred to in subparagraph (B), in combination with the use of normal value determined pursuant to section 773(c), has increased the weighted average dumping margin for the class or kind of merchandise,

the administering authority shall, except as provided in paragraph (2), reduce the antidumping duty by the amount of the increase in the weighted average dumping margin estimated by the administering authority under subparagraph (C).

"(2) Maximum reduction in antidumping duty.—The administering authority may not reduce the antidumping duty applicable to a class or kind of merchandise from a nonmarket economy country under this subsection by more than the portion of the countervailing duty rate attributable to a countervailable subsidy that is provided with respect to the class or kind of merchandise and that meets the conditions described in subparagraphs (A), (B), and (C) of paragraph (1).''.

(b) Effective Date.—Subsection (f) of section 777A of the Tariff Act of 1930, as added by subsection (a) of this section, applies to—

(1) all investigations and reviews initiated pursuant to title VII of that Act (19 U.S.C. 1671 et seq.) on or after the date of the enactment of this Act; and

(2) subject to subsection (c) of section 129 of the Uruguay Round Agreements Act (19 U.S.C. 3538), all determinations issued under subsection (b)(2) of that section on or after the date of the enactment of this Act.

Approved March 13, 2012.

7.12.
The United States refers to PL 112-99 as the "GPX legislation".29

7.3.2 CVD investigations and administrative reviews

7.13.
The measures at issue with respect to China's claims under Articles 10, 19.3, and 32.1 of the SCM Agreement include a number of CVD investigations and reviews initiated between 20 November 2006 and 13 March 2012.
7.14.
China asserts that between 20 November 2006 and 13 March 2012, the United States authorities initiated a series of anti-dumping and CVD investigations and reviews that resulted in the imposition of anti-dumping duties and CVDs in respect of the same imported products from China. China asserts that in none of these investigations or reviews did the United States authorities take steps to investigate and avoid "double remedies".
7.15.
The CVD investigations and reviews at issue in this dispute are specified in Appendix A to China's panel request, and again in Exhibit CHI-24. Table 1 lists these investigations and reviews and includes the parallel anti-dumping investigations and reviews. We discuss these investigations and reviews further below, in the context of addressing China's claims under Articles 10, 19.3, and 32.1 of the SCM Agreement.

Table 1: List of Investigations and Reviews Cited by China30

WT/DS449/2Exhibit CHI-24OFFICIAL NAMECVDAD
1* Coated Free Sheet Paper from the People's Republic of China C-570-907 A-570-906
2* Circular Welded Carbon Quality Steel Pipe from the People's Republic of China C-570-911 A-570-910
3* Light-Walled Rectangular Pipe and Tube from the People's Republic of China C-570-915 A-570-916
4* Laminated Woven Sacks from the People's Republic of China C-570-917 A-570-914
5* Certain New Pneumatic Off-The-Road Tires from the People's Republic of China C-570-913 A-570-912
5a 1 Certain New Pneumatic Off-The-Road Tires from the People's Republic of China [Administrative Review] C-570-913 A-570-912
6 2 Raw Flexible Magnets from the People's Republic of China C-570-923 A-570-922
7 3 Lightweight Thermal Paper from the People's Republic of China C-570-921 A-570-920
8 4 Sodium Nitrite from the People's Republic of China C-570-926 A-570-925
9 5 Circular Welded Austenitic Stainless Pressure Pipe from the People's Republic of China C-570-931 A-570-930
10 6 Certain Circular Welded Carbon Quality Steel Line Pipe from the People's Republic of China C-570-936 A-570-935
11 7 Citric Acid and Certain Citrate Salts From the People's Republic of China C-570-938 A-570-937
11a 8 Citric Acid and Certain Citrate Salts From the People's Republic of China [Administrative Review] C-570-938 A-570-937
12 9 Certain Tow Behind Lawn Groomers and Certain Parts Thereof from the People's Republic of China C-570-940 A-570-939
13 10 Certain Kitchen Appliance Shelving and Racks From the People's Republic of China C-570-942 A-570-941
13a 11 Certain Kitchen Appliance Shelving and Racks From the People's Republic of China [Administrative Review] C-570-942 A-570-941
14 12 Certain Oil Country Tubular Goods from the People's Republic of China C-570-944 A-570-943
15 13 Prestressed Concrete Steel Wire Strand From the People's Republic of China C-570-946 A-570-945
16 14 Certain Steel Grating From the People's Republic of China C-570-948 A-570-947
17* Wire Decking from the People's Republic of China C-570-950 A-570-949
18 15 Narrow Woven Ribbons With Woven Selvedge From the People's Republic of China C-570-953 A-570-952
19 16 Certain Magnesia Carbon Bricks From the People's Republic of China C-570-955 A-570-954
20 17 Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from the People's Republic of China C-570-957 A-570-956
21 18 Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses From the People's Republic of China C-570-959 A-570-958
22 19 Certain Potassium Phosphate Salts from the People's Republic of China C-570-963 A-570-962
23 20 Drill Pipe From the People's Republic of China C-570-966 A-570-965
24 21 Aluminum Extrusions From the People's Republic of China C-570-968 A-570-967
25 22 Multilayered Wood Flooring From the People's Republic of China C-570-971 A-570-970
26* Certain Steel Wheels From the People's Republic of China C-570-974 A-570-973
27* Galvanized Steel Wire From the People's Republic of China C-570-976 A-570-975
28 23 High Pressure Steel Cylinders From the People's Republic of China C-570-978 A-570-977
29 24 Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China C-570-980 A-570-979
30 25 Utility Scale Wind Towers From the People's Republic of China [Preliminary Determination] C-570-982 A-570-981
31 26 Drawn Stainless Steel Sinks From the People's Republic of China [Preliminary Determination] C-570-984 A-570-983

7.4 CHINA'S CLAIM UNDER ARTICLE X:1 OF THE GATT 1994

7.16.
The Panel begins its examination of the four claims of violation in respect of which China requested findings with the claim under Article X:1 of the GATT 1994. Article X:1 provides as follows:

Laws, regulations, judicial decisions and administrative rulings of general application, made effective by any [Member31], pertaining to the classification or the valuation of products for customs purposes, or to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports or on the transfer of payments therefor, or affecting their sale, distribution, transportation, insurance, warehousing inspection, exhibition, processing, mixing or other use, shall be published promptly in such a manner as to enable governments and traders to become acquainted with them. Agreements affecting international trade policy which are in force between the government or a governmental agency of any contracting party and the government or governmental agency of any other contracting party shall also be published. The provisions of this paragraph shall not require any contracting party to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.

7.17.
China claims that Section 1 of PL 112-99 was not "published promptly in such a manner as to enable governments and traders to become acquainted" with it. According to China, PL 112-99 is a law of "general application" pertaining to "rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports". China asserts further that Section 1 of PL 112-99 was "made effective" as of 20 November 2006. In China's view, the fact that Section 1 was not published promptly is evident from the fact that it was published nearly five and a half years after the date on which Section 1 became effective. China therefore requests the Panel to find that the United States has acted inconsistently with Article X:1.32
7.18.
The United States submits that China's claim under Article X:1 is without merit. The United States considers that, as an initial matter, China has failed to make a prima facie case that Section 1 is a measure of the type listed in Article X:1. The United States further observes that PL 112-99 was published the same day that it was enacted, and that it could not have been published more promptly. In the United States' view, Article X:1 does not prohibit a measure from touching on events that have occurred prior to the publication of the measure. The United States submits, finally, that Article X:1 is directed to the publication of trade regulations to provide notice and transparency to traders. The United States observes in this regard that the application of the United States CVD law to China has always been rigorously open and transparent.33
7.19.
The Panel notes that the measure at issue is Section 1 of PL 112-99. China claims that the United States acted inconsistently with Article X:1 by failing to publish Section 1 promptly. China's claim of inconsistency is based on the first sentence of Article X:1. As may be inferred from the text of the first sentence, for the Panel to uphold China's claim, China must establish that Section 1:

a. is a "[l]aw[], regulation[], judicial decision[] [or] administrative ruling[] of general application … pertaining to the classification or the valuation of products for customs purposes, or to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports or on the transfer of payments therefor, or affecting their sale, distribution, transportation, insurance, warehousing inspection, exhibition, processing, mixing or other use";

b. was "made effective" by the United States; and

c. was not "published promptly in such a manner as to enable governments and traders to become acquainted" with it.

7.20.
The Panel will address these three elements in the order in which they have been identified.

7.4.1 Is Section 1 a "[l]aw[] … of general application … pertaining to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports"?

7.21.
The first element calls for an examination of whether Section 1 falls within the types of measure specified in Article X:1, first sentence.
7.22.
China submits that PL 112-99 is a "law" of the United States pertaining to "rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports". China argues that Section 1 authorizes the application of countervailing duties, which are "rates of duty" or alternatively "other charges", to imports from NME countries. According to a response by China to a Panel question, Section 1 pertains to rates of duty or other charges because it subjects imported products to the imposition of an additional duty (or charge) if the conditions of a countervailing duty rate are met. Specifically with regard to the investigations to which Section 1 applies prior to its official publication, China argues that Section 1 increases the total duty (or charge) imposed on the imported products that are subject to the resulting orders, as it increases the CVD rate from no countervailing duty to whatever the countervailing duty rate USDOC determined in respect of each such product. In addition, China argues that PL 112-99 also imposes a "requirement", or a type of "restriction", on imports by making countervailing duties applicable to imports from NME countries. In response to a Panel question, China argues more particularly that the new Section 701(f) "requires" (i) that imports from NME countries become potentially subject to countervailing duty investigations, (ii) that importers participate in any such investigations to the extent it relates to them, and (iii) that importers pay any countervailing duty that may be imposed as a result of such investigations. China considers that the new Section 701(f)(1) is also a "restriction", to the extent that imports are actually or potentially investigated and subjected to the imposition of countervailing duties.34 As regards the "general application" element, China submits that PL 112-99 is also a law of "general application" because it is not limited to a single import or single importer, but affects a range of products, producers, importers, and countries.35 In response to a Panel question, China further stated that Section 1 is a measure of general application, or a provision of a law of general application.36
7.23.
The United States contends that China fails to state which of the types of measure listed in Article X:1 is applicable to PL 112-99. In the United States' view, without satisfying this threshold issue, China's claim under Article X:1 must fail.37 Regarding the "general application" element, the United States in response to a Panel question accepts that Section 1 of PL 112-99 sets out a measure of general application with respect to those imports and associated proceedings that were not known at the time of enactment of the measure. However, the United States notes that Section 1 also applies to proceedings "initiated under subtitle A of title VII of that Act (19 U.S.C. 1671 et seq.) on or after November 20, 2006" through the date of enactment of the legislation. According to the United States, those proceedings were known as of the date of enactment of the measure as were the imports subject to those proceedings.38 The United States considers that in relation to this limited and known set of imports and proceedings, which the United States understands is the basis of China's claim, it is difficult to see in what respect Section 1 is a measure of general application.39 Moreover, again in response to a Panel question, the United States submits that, as a general matter, a measure pertaining to "rates of duty" would not appear to pertain, at the same time, to "requirements, restrictions or prohibitions" on imports, and China has not demonstrated otherwise in the case of Section 1.40
7.24.
The Panel considers that, contrary to what the United States contends, China has identified the categories of measure listed in Article X:1 that in its view cover Section 1 of PL 112-99.41 We understand China's position to be that PL 112-99 is a "law" of "general application" and that its Section 1 "pertains" to "rates of duty" on imports, or "other charges" on imports, and to "requirements" on imports, or "restrictions" on imports. Accordingly, we proceed with our analysis of China's claim.

7.4.1.1 Law

7.25.
The issue we consider first is whether Section 1 falls within the category of "laws".
7.26.
We first address PL 112-99. It is not in dispute between the parties that PL 112-99 constitutes a "law" within the meaning of Article X:1. We agree. PL 112-99 is, by its terms, an "Act" of the United States' legislature, enacted by the Senate and House of Representatives of the United States Congress and approved by the United States' President.42 That PL 112-99 is a law is confirmed by the fact that it was published in the "United States Statutes at Large".43
7.27.
Turning to Section 1 of PL 112-99, i.e. the measure at issue, we observe that it is a provision of a law and as such is part of a law. In our view, however, the term "laws" as it appears in Article X:1 must be construed to include the entire piece of legislation as well as any individual parts or provisions that make up these laws. Were it otherwise, Members could meet their obligations under Article X:1 by promptly publishing laws that do not contain all parts or provisions. It would also lead to the anomalous result that Article X:1 would oblige a Member to promptly publish a law once it has been made effective, but would not oblige that Member to publish any subsequent amendments to that same law. This would run counter to the basic principle of transparency and full disclosure of governmental acts affecting governments or traders that we consider inherent in Article X:1.44
7.28.
For these reasons, we find that Section 1 falls within the category of "laws" identified in Article X:1.

7.4.1.2 Law of general application

7.29.
The issue we turn to next is whether Section 1 in addition falls within the category of laws of "general application".
7.30.
As an initial matter, we note that the phrase "of general application" appears in the text of Article X:1 after the listed items "laws", "regulations", "judicial decisions" and "administrative rulings". In the view of prior panels45 as well as the parties to this dispute46, the phrase "of general application" qualifies not just the immediately preceding item "administrative rulings", or the more encompassing phrase "judicial decisions and administrative rulings", but the entire series of items. This means that where, as in the present dispute, the category at issue is that of "laws", only laws that are "of general application" can fall within the scope of Article X:1.
7.31.
Under customary rules of treaty interpretation, we are to ascertain the ordinary meaning of the terms of a treaty by reference, inter alia, to "their context".47 A modifier such as "of general application" that follows a list of items may in some contexts qualify only the immediately preceding term or phrase. But we consider that it would not be in accord with contextual interpretation to assume that this would necessarily be the case in other contexts. Thus, consistent with the view of prior panels interpreting Article X:1, the relevant context may indicate that the same modifier should be interpreted so as to qualify each of the preceding terms.48 We further observe that the term "laws" accords well with the phrase "of general application". Based on these considerations, we have no difficulty accepting that Article X:1 applies to laws of general application, provided they also fall within the subject-matter categories identified in Article X:1.
7.32.
Before proceeding to examine whether Section 1 is a provision of general application, we need to address in more detail what is a provision of "general application". The ordinary meaning of the word "general", when used as in Article X:1 to refer to certain measures "of general application", is "[n]ot specifically limited in application; relating to a whole class of objects, cases, occasions, etc.".49 The ordinary meaning of the word "class", in turn, is "[a] group of people or things having some attribute in common; a set, a category".50 Thus, a measure of "general application" can be understood to refer to a measure that applies to a class, or a set or category, of persons, entities, situations or cases that have some attribute in common. Prior panel and Appellate Body reports afford further guidance in this respect. The panel in US – Underwear found a country-specific safeguard measure on cotton and man-made fibre underwear to be of "general application". It observed in this respect:

Nor does the fact that it was a country-specific measure exclude the possibility of it being a measure of general application. If, for instance, the restraint was addressed to a specific company or applied to a specific shipment, it would not have qualified as a measure of general application. However, to the extent that the restraint affects an unidentified number of economic operators, including domestic and foreign producers, we find it to be a measure of general application.51

7.33.
On appeal in the same dispute, the Appellate Body agreed with the panel's conclusion, stating that:

While the restraint measure was addressed to particular, i.e. named, exporting Members, including Appellant Costa Rica …, we note that the measure did not try to become specific as to the individual persons or entities engaged in exporting the specified textile or clothing items to the importing Member and hence affected by the proposed restraint.52

7.34.
Subsequently, the panel in EC – Selected Customs Matters stated that the types of measure covered by Article X:1 apply to "a range of situations or cases, rather than being limited in their scope of application".53 And finally, we note that the panel in EC – IT Products concluded that the draft amendments to the European Community's Explanatory Notes to the Combined Nomenclature (CNENs) that were at issue in that dispute were of "general application". The panel reasoned that "the application of a CNEN is not limited to a single import or a single importer" and that the objective of CNENs was "to ensure the uniform application of the Common Customs Tariff to all products falling under a specific CN code…".54
7.35.
These various statements lead us to the view that two aspects are usefully distinguished when assessing whether a law or another relevant measure is of "general application" within the meaning of Article X:1: (i) its subject-matter or content; and (ii) the persons or entities to whom it applies, or the situations or cases in which it applies. The subject-matter or content of a relevant measure may be narrowly drawn – e.g. it may regulate imports of only one or a few named products from only one or a few named countries – yet this would not preclude it being considered a measure of general application, insofar as it applies to a class of persons or entities, e.g. all those engaged in importing the product(s) concerned. The fact that a relevant measure has a narrow regulatory scope does not demonstrate that this measure is not generally applicable. As regards the second aspect, a relevant measure that applies to a class or category of people, entities, situations, or cases, that have some attribute in common would, in principle, constitute a measure of general application. In contrast, a relevant measure that applies to named or otherwise specifically identified persons, entities, situations, or cases would not be a measure of general application, but one of particular application.55
7.36.
This interpretation accords well with the provisions of Article X:1, in particular the requirement of prompt publication and the principle of transparency that is inherent in Article X:1, as mentioned above. Article X:1 is addressed, fundamentally, to situations of rule-making and, notably in the case of judicial decisions and administrative rulings of general application, rule interpretation or rule clarification. In cases where, for example, a new rule or interpretation applies to an entire class of people or entities, public notice in the form of prompt publication of the relevant measure is desirable, but it is understandable that individual members of that class would not require individual notice thereof.
7.37.
Having elucidated what is a law of general application, it is well to also explain our analytical approach. As the argument summary above makes clear, China at least initially addressed the issue of "general application" at the level of PL 112-99.56 In the circumstances of this case, we consider it more appropriate to focus our inquiry on Section 1 of PL 112-99. If Section 1 did not contain a provision of general application, PL 112-99 would not, to that extent, fall within the scope of Article X:1, and China's Article X:1 claim would fail because it relates to Section 1. Conversely, if Section 1 did contain a provision of general application, PL 112-99 would, to that extent, fall within the scope of Article X:1, even if other parts or provisions of PL 112-99 were not of general application, and China's claim would not fail on that ground. To find otherwise would be to accept that Members can escape the requirement to promptly publish their laws of general application by incorporating them in measures that contain parts or provisions that are not of general application.
7.38.
We recall that Section 1 has two subsections. Section 1(a) amends Section 701 of the United States Tariff Act of 1930 so as to provide, in a new Section 701(f), for the applicability of United States countervailing duty provisions to imports from NME countries, except in cases where the administering authority (USDOC) is unable to identify and measure subsidies provided by the government or a public entity of an NME country because the economy of that country is essentially composed of a single entity. Section 1(b) provides that Section 701(f) applies to: (1) all proceedings initiated under subtitle A of title VII of the United States Tariff Act of 1930 on or after 20 November 2006; (2) all resulting actions by United States Customs and Border Protection (USCBP); and (3) all civil actions, criminal proceedings, and other proceedings before a United States Federal court relating to proceedings referred to under (1) or actions referred to under (2).
7.39.
We commence our analysis with Section 1(a), which adds the new Section 701(f) to United States law. The introductory clause of Section 1(a) states that Section 701 is amended by adding a new subsection (f), and Section 1(a) then goes on to set out in full the text of the new subsection. The introductory clause is not addressed only to specifically identified persons or entities, but rather generally to all those who are actually or potentially interested in knowing about the amendment. As concerns the new Section 701(f), it is in one sense quite narrow in its regulatory scope. It concerns the applicability of United States' countervailing duty provisions to imports of unspecified goods from NME countries.57 While there is no limitation on the kind of goods that fall within its scope, i.e. the potentially affected industries, Section 701(f) does not concern the applicability of countervailing duty provisions to countries other than NME countries. However, for the reason explained earlier, the mere fact that Section 701(f) concerns only imports from NME countries does not warrant the conclusion that Section 1(a) adds a measure that is of particular rather than of general application.58 This view also draws support from the passages of the panel and Appellate Body reports in US – Underwear that we quoted above.59 Furthermore, we observe that Section 701(f) does not name or otherwise specifically identify any persons or entities that engage, or are involved, in the importation (or sale for importation) of goods from NME countries and to whom it applies. By its terms, Section 701(f) applies to imports of goods from such countries generally, regardless of who imports them (or sells them for importation).
7.40.
We now proceed to consider the three paragraphs of Section 1(b). Section 1(b)(1) provides that Section 701(f) applies to CVD proceedings initiated on or after 20 November. This necessarily implies that it applies to any proceedings whose initiation pre-dates the publication of PL 112-99 on 13 March 201260 (provided they were initiated on or after 20 November 2006) as well as to any proceedings whose initiation post-dates the publication of PL 112-99. As we understand it, Section 1(b)(1) concerns not just USDOC determinations made, or actions taken, in the context of covered proceedings, but also those made or taken by USITC. Section 1(b)(2) clarifies that Section 701(f) also applies to actions by USCBP that result from the proceedings covered by Section 1(b)(1). Any relevant actions carried out by USCBP before the publication of PL 112-99 (but not before 20 November 2006) are accordingly covered by Section 701(f) as well as any such actions undertaken after the publication of PL 112-99. Finally, Section 1(b)(3) makes clear that Section 701(f) applies to Federal court proceedings relating to the proceedings and actions identified in Sections 1(b)(1) and (2). The covered court proceedings therefore comprise any relevant court proceedings initiated either before the publication of PL 112-99 (but not before 20 November 2006) or after the publication of PL 112-99.
7.41.
As we understand it, China's claim under Article X:1 arises out of the fact that Section 701(f) is to be applied by USDOC, USITC, USCBP and Federal courts to events or circumstances that occurred prior to the date of publication of Section 1 of PL 112-99, which we recall is 13 March 2012.61 The United States considers that to the extent that Section 701(f) applies to events or circumstances that occurred prior to the date of publication of Section 1, Section 1 cannot be regarded as a measure of general application because it applies to a known and identifiable set of proceedings and imports subject to those proceedings.62
7.42.
In examining this issue, we note that Section 1(b) does not specifically identify, by name or otherwise, any relevant individual USDOC proceedings, USCBP actions or Federal court proceedings. Nor does it specifically identify any persons or entities involved in such proceedings or directly affected by such actions. Instead, Section 1(b) identifies the covered proceedings and actions generically, referring broadly and by its express terms to "all" proceedings initiated under subtitle A of title VII of the United States Tariff Act of 1930, "all" resulting USCBP actions, and "all" associated proceedings before a Federal court. In other words, Section 1(b), in each of its three paragraphs, identifies a class of situations in which Section 701(f) applies.
7.43.
We recognize that to the extent that Section 701(f) applies to proceedings initiated or actions taken before the date of publication of PL 112-99, the generic descriptions in Section 1(b) could have enabled identification of relevant individual proceedings and actions and perhaps individual persons or entities involved or directly affected, provided relevant information was accessible to Congress at the time.63 This is ultimately a consequence of the fact that Section 1(b) brings within the scope of Section 701(f) past events and circumstances. That is to say, it is a consequence of the fact that the past is known rather than unknown.
7.44.
The fact remains, however, that Section 1(b) uses broad generic descriptions to identify relevant proceedings and actions that pre-date the publication of PL 112-99. Moreover, the three paragraphs of Section 1(b) are drafted in a manner that ensures that Section 701(f) is applied comprehensively and across the board in all relevant situations – USDOC proceedings, USCBP actions and Federal court proceedings – that arose during a past period (20 November 2006 to 13 March 2012) or that arose, or will arise, subsequently, in the period beginning from the date of publication of PL 112-99. To us, these features of Section 1(b) do not suggest that Section 701(f) is concerned, insofar as it applies to past events or circumstances, with individual proceedings and actions as such, or with individual persons or entities as such, or that it selectively targets any of these. Rather, these features indicate that it is concerned with individual proceedings and actions only insofar as they are part of a comprehensive class of relevant proceedings and actions.
7.45.
The United States argued at the second substantive meeting with the Panel that in keeping with China's claim, our analysis should focus on the part of Section 1(b) that concerns proceedings initiated between 20 November 2006 and 12 March 2012.64 The United States argues in this respect that Congress could have chosen to pass, in lieu of a single law, two separate laws to address the matter of application of its CVD provisions to imports from NME countries: one whose Section 1(b) would provide that Section 701(f) applies to proceedings initiated between 20 November 2006 and 12 March 2012, and another whose Section 1(b) would be identical, except that it would provide that Section 701(f) applies to proceedings initiated on or after 13 March 2012. The United States argues that our conclusions should therefore not be based on the part of Section 1(b) that relates to proceedings initiated on or after 13 March 2012. China submits that a measure cannot be a measure of general application for some purposes (e.g. to the extent it applies to past events or circumstances) and not a measure of general application for other purposes. We note in this respect that our analysis of Section 1(b) does not hinge upon its integrated nature, i.e. the fact that it renders Section 701(f) applicable to proceedings or actions that either pre- or post-date the publication of PL 112-99. Indeed, our analysis focuses on those aspects and elements of the text of Section 1 that concern events or circumstances that pre-date the publication of PL 112-99. We do not therefore consider that the alternative legislative approach that the United States says was open to it calls into question the preceding examination of Section 1(b).65
7.46.
As an additional matter, we note the United States' view that Section 701(f) is not of general application to the extent that it applies to events or circumstances that pre-date the publication of PL 112-99, but is of general application to the extent that it applies to events or circumstances that post-date the publication of PL 112-99. Having regard to the actual terms in which Section 1(a) and (b) have been cast, we consider that Section 1 is about rule-making, and that the new provision that it adds – the new Section 701(f) – applies to future events or circumstances as well as past ones. In the light of this, we are not persuaded that it would be appropriate to accept the curiously asymmetric result to which the United States' view leads. Moreover, we see no convincing rationale for why public notice in the form of publication would be warranted only to the extent that Section 701(f) applies to events or circumstances that post-date the publication of PL 112-99. It appears to us that persons or entities that are affected by the fact that Section 701(f) applies to past events or circumstances would likewise wish to become acquainted promptly with its terms. It is true that they could not undo any past import transactions. But they could seek a modification of Section 1 by using any political or legal means available. Also, upon becoming aware of Section 1, they might decide to discontinue any ongoing proceedings before Federal courts concerning covered USDOC proceedings or USCBP actions, or, in the case of Member governments, they might see fit to file a complaint with the WTO.
7.47.
Finally, looking at all other parts of the text of PL 112-99, we see nothing there that would suggest that Section 1 contains a provision that is not of general application.
7.48.
In sum, having reviewed both subsections of Section 1 as well as PL 112-99 as a whole, we find that Section 1 contains a provision of general application. That this provision applies to events or circumstances that pre-date the publication of PL 112-99 does not detract from it being a provision of general application.

7.4.1.3 Law pertaining to rates of duty, or other charges, or to requirements, or restrictions, on imports

7.49.
The final issue that remains for us to consider in relation to the first element of Article X:1 is whether Section 1 falls within the type of laws that "pertain" to "rates of duty", or "other charges", or to "requirements", or "restrictions", on imports.
7.50.
The text of Article X:1 separates the terms "rates of duty" and "other charges", on the one hand, and "requirements" and "restrictions" on imports, on the other hand, by the disjunctive "or". We deduce from this that a law pertaining to one of the two categories of subject-matter is subject to Article X:1, provided that it has also been made effective by a Member, as specified in the earlier part of the provision. Consequently, once a panel has determined that a law pertains to one category, it need not go on to examine whether that law pertains, at the same time, to the other.
7.51.
We begin our analysis with the "rates of duty" category. The term "rates of duty" is unqualified and therefore capable of encompassing various types of duty. As is apparent from, for example, Article II of the GATT 1994, the GATT 1994 distinguishes such duties as ordinary customs duties, other duties imposed on or in connection with the importation of products, anti-dumping duties and, most pertinent to our analysis of Section 1, countervailing duties.66 The latter term is defined in Article VI:3 of the GATT 1994 as "a special duty levied for the purpose of offsetting any bounty or subsidy bestowed directly, or indirectly, on the manufacture, production or export of any merchandise".67 Also, the SCM Agreement explicitly uses the term "countervailing duty rate".68 There is therefore no question that the term "rates of duty" includes rates of countervailing duty.
7.52.
Article X:1 contemplates laws "pertaining" to rates of duty. The verb "pertain to" is defined, inter alia, as "[h]ave reference or relation to, relate to".69 This definition indicates that Article X:1 does not seek to limit the prompt publication requirement to only those relevant measures that directly set or determine particular rates of duty. Indeed, Article X:1 does not refer, narrowly, to laws "establishing" rates of duty, but uses the broader term "pertain". To "pertain" to rates of duty, a law simply needs to have reference, or relate, to rates of duty.
7.53.
With these observations in mind, we now assess whether Section 1 "pertains" to "rates of duty", as asserted by China. We observe, first, that Section 1 is entitled "Application of countervailing duty provisions to nonmarket economy countries".70 Additionally, we note that Section 1(a) adds a new Section 701(f) to the United States Tariff Act of 1930. It stipulates that "the merchandise on which countervailing duties shall be imposed under subsection (a)"71 includes imports from NME countries. At the same time, however, the new Section 701(f) provides that "[a] countervailing duty is not required to be imposed under subsection (a)"72 on imports from NME countries, if the administering authority is unable to identify and measure subsidies provided in NME countries. As these textual elements demonstrate, Section 1 unquestionably has reference, and relates, to a particular type of "duty", specifically, countervailing duties.
7.54.
Section 1 does not itself set particular "rates" of duty. But it provides a basis for the imposition of countervailing duties on imports from NME countries. That is to say, it makes clear that, in appropriate cases, greater-than-zero (positive) rates of countervailing duty may (and must) be applied to imports from NME countries.73 In the light of this, Section 1 in our view also has reference, and relates, to "rates" of countervailing duty and thus "pertains" to such rates.
7.55.
This view accords well with, and gives proper effect to, the prompt publication requirement in Article X:1. It would be incongruous to interpret Article X:1 to require prompt publication of the particular rate(s) of countervailing duty applicable to imports of a specific product from an NME country74, but not of the law that authorizes the application of countervailing duties to imports from NME countries at rates greater than zero. Traders have a legitimate interest in becoming acquainted not just with the particular rate(s) of countervailing duty applied to imports of a specific product from NME countries, but also with the basis for applying any rate greater than zero to imports of that product.
7.56.
For these reasons, we determine that Section 1 "pertains" to "rates of duty" within the meaning of Article X:1. In view of this affirmative determination, there is no need to go on to examine whether Section 1 also "pertains" to "requirements", or "restrictions", on imports, as China maintains.

7.4.1.4 Conclusion

7.57.
Having regard to the foregoing considerations, we conclude that Section 1 meets the first element of our Article X:1 analysis. Section 1 is an integral part of a law. As such, it falls within the category of "laws". It also contains a provision that is of "general application" and "pertains" to "rates of duty".

7.4.2 When was Section 1 "made effective"?

7.58.
The Panel now turns to the second element of its Article X:1 analysis, which concerns the issue whether, and if so when, the United States made Section 1 "effective".
7.59.
China asserts that, by its express terms, Section 1 was "made effective" as of 20 November 2006, because Section 1(b) refers to that date as the "effective date" of this section. China argues by reference to the panel reports in EC – IT Products that the term "made effective" refers to when the measure became "operative", i.e. when it could have an actual effect "in practice", not the date on which it was formally promulgated or formally entered into force.75 According to China, Section 1 became "operative" on 20 November 2006, because that is the date on which the new Section 701(f) of the United States Tariff Act came into effect as a legal basis for the USDOC to apply countervailing duties to imports from NME countries.76
7.60.
China also considers that Article X:1 would be meaningless if it were interpreted to permit the retroactive application of Section 1 to imports that occurred prior to its publication. China refers in this connection to the report of the GATT panel in EEC – Apples (US). According to China, the situation before this Panel is analogous to the backdated import quota which that panel found to be inconsistent with Article X:1.77 China recalls that the panel in that dispute interpreted Article X:1 as prohibiting back-dated quotas and found the EEC in breach of Article X:1 "since it had given public notice of the quota allocation only about two months after the quota period had begun".78 China submits that in the case of Section 1 of PL 112-99, the United States backdated USDOC's legal authority to conduct countervailing duty investigations in respect of imports from NME countries and did not provide public notice of this authority until more than five years after it became effective.79
7.61.
The United States rejects China's assertion, arguing that PL 112-99 was "made effective" on the date of its enactment, i.e. on 13 March 2012.80 The United States observes in this connection that the starting point of Article X:1 is the existence of a measure of general application: the laws, regulations, etc., to which Article X:1 applies must be in existence for the prompt publication obligation to apply. According to the United States, the "made effective" clause serves, however, to exclude from the scope of Article X:1 measures that may be in existence, but have not been made effective. The United States submits that the ordinary meaning of the "made effective" clause confirms that it is aimed at limiting the application of Article X:1 to measures that have been adopted or brought into operation.81 On that basis, the United States considers that PL 112-99 came into existence and was made effective on 13 March 2012.82
7.62.
The United States adds that China's view finds no support in the panel reports in EC – IT Products. The United States notes in this respect that at no time before the date of enactment and publication of the law (13 March 2012) could any person or entity in the United States rely on Section 1 of PL 112-99 to assert legal rights or consequences, and that there is no evidence that any entity applied Section 1 prior to its adoption to bring it into effect in practice.83
7.63.
The United States further considers that China's claim rests on an implausible reading of Article X:1 that would require publication before the existence of a measure.84 In the United States' view, Article X:1 does not prohibit a measure from touching on events that have occurred prior to its publication.85 The "made effective" clause cannot be read as a substantive obligation to the effect that measures of general application must not apply to past factual situations.86 According to the United States, the title to Article X – "Publication … of Trade Regulations" – suggests that Article X:1 does not impose an obligation concerning the substantive content of measures, but a procedural requirement on publication.87 The United States further argues that the term "made effective" is used in the past tense, indicating that the relevant measures have been enacted or adopted at some point in the past. In addition, the requirement in Article X:2 that certain measures not be "enforced" before publication presumes, in the United States' view, that measures could be effective before publication, just not enforced, and that some set of other measures could be enforced before publication. The United States submits that this confirms that measures may affect events prior to their publication.88 Finally, the United States argues that public international law and the parties' own legal systems refute any proposition that a measure may not affect events that have occurred prior to its publication.89
7.64.
Regarding the GATT panel report cited by China, the United States submits that the panel does not provide a discussion of the interpretation of Article X:1. The United States observes that the panel's conclusions on Article X:1 regarding the use of so-called backdated quotas appear to be an afterthought to the panel's analysis of the substantive obligations of Article XIII:3 of the GATT 1947. According to the United States, without an interpretation of the requirements of Article X:1, there is no reasoning for the panel findings, and therefore no reasoning that has any persuasive value.90
7.65.
China responds that it is hard to see how the statute was "made effective" on 13 March 2012 when the statute itself has an "effective date" of 20 November 2006. China further argues that nothing in Article X:1 refers to the "existence" of a measure as the baseline for determining whether it was published promptly. It refers, instead, to when the measure was "made effective". China submits that a measure can be "made effective" prior to the date on which the measure might be said to have "existed", "in some sense".91
7.66.
The Panel recalls that in accordance with the terms of Article X:1 only relevant measures that have been "made effective" by a Member need to be "published promptly in such a manner as to enable governments and traders to become acquainted with them". The phrase "made effective" was the subject of a detailed interpretive inquiry by the panel in EC – IT Products. According to that panel, a measure of the type covered by Article X:1 has been "made effective" if it has been "brought into effect, or made operative, in practice and is not limited to measures formally promulgated or that have formally 'entered into force'".92 This finding identifies two distinct types of situations in which relevant measures would be found to have been "made effective" within the meaning of Article X:1: (i) situations where the relevant measures have been formally promulgated or have formally entered into force; and (ii) situations where they have not, or not yet, been formally promulgated or formally entered into force, but have nevertheless been brought into effect, or made operative, in practice. We understand the second type of situation to concern measures that have been brought into effect de facto ("in practice") as distinct from measures that have been brought into effect de jure ("formally").93 This interpretation ensures that Members cannot escape their prompt publication obligation by putting relevant measures into effect de facto, without completing all, or any, of the steps necessary to put them into effect de jure. We find the panel's interpretation of the phrase "made effective" persuasive for purposes of our consideration of China's claim, and we will therefore base our analysis on it.
7.67.
Having elucidated the meaning of "made effective", we proceed to examine whether, and if so when, Section 1 was "made effective". It is apparent from the face of PL 112-99 that it was "enacted by the [United States] Senate and House of Representatives"94 and that it was "approved", and thereby enacted, on 13 March 2012.95 Furthermore, it is undisputed that PL 112‑99 was published on 13 March 2012.96 According to the United States, PL 112-99 entered into force that same day, which China has not contested.97 Taken together, these elements support the inference that PL 112-99 was formally brought into effect on 13 March 2012. There is no evidence on the record to indicate that the United States brought PL 112-99 into effect "in practice", or de facto, prior to 13 March 2012. In the light of the foregoing, we conclude that PL 112-99 was indeed "made effective" by the United States, and more particularly that it was "made effective" on 13 March 2012.
7.68.
The measure at issue, Section 1, is unquestionably part of PL 112-99. As emphasized by China, however, Section 1(b) sets forth a specific "effective date". Relying on Section 1(b), China submits that Section 1 was "made effective", not on 13 March 2012, but on 20 November 2006. Before addressing this argument, it is well to recall once more the content of the two subsections of Section 1. Section 1(a) "amends" United States law, "adding" a new Section 701(f) to the United States Tariff Act of 1930.98 Section 1(b) is entitled "Effective Date". It provides that the new Section 701(f) "applies to" (i) all proceedings initiated under subtitle A of title VII of the United States Tariff Act of 1930 "on or after November 20, 2006", (ii) all resulting USCBP actions, and (iii) all proceedings before Federal courts linked to (i) or (ii).
7.69.
A careful reading of the text of Section 1 thus calls attention to two issues that it is important not to conflate: first, "When was the new Section 701(f) added to United States law?", and second, "To which proceedings and actions does Section 701(f) apply?". We first consider when Section 701(f) was added to United States law. Section 1(b) does not speak to this issue. In fact, its text takes as a point of departure that Section 701(f) has been added to United States law by Section 1(a).99 Section 1(a) does not specify any date. But Section 1 is part of PL 112-99, which entered into force on 13 March 2012. Absent an indication to the contrary in Section 1(a), we infer that Section 1(a), and with it the new Section 701(f) that it adds, formally entered into force on the same date as PL 112-99. This means that, as from that date, Section 701(f) has provided a legal basis for the United States to apply countervailing duty provisions to NME countries.
7.70.
The second issue relates to the proceedings and actions to which Section 701(f) applies. This issue is addressed in Section 1(b).100 As is suggested by its textual elements "Effective Date"101 and "applies to", Section 1(b) serves, inter alia, to define the temporal scope of application of Section 701(f). It makes clear that once Section 701(f) has entered into force, it applies to all relevant proceedings initiated on or after 20 November 2006, to all resulting USCBP actions, and to all proceedings before Federal courts relating to the aforementioned proceedings or actions.102 Thus, Section 701(f) applies also to events or circumstances that pre-date its formal entry into force on 13 March 2012. Or, to put it another way and with particular reference to the title of Section 1(b) ("Effective Date"103), the new Section 701(f) produces legal effects also with regard to past events or circumstances.
7.71.
It is worth recalling in respect of Section 1(b) that the mere fact that the phrase "Effective Date" bears a certain textual resemblance to the phrase "made effective" in Article X:1 is not dispositive of the characterization of Section 1(b) under WTO law.104 Indeed, our analysis in the preceding paragraph indicates that Section 1(b) does not set forth the date on which Section 1 was formally "made effective".105 Nor does Section 1(b) imply or otherwise document, as China suggests106, that Section 701(f) entered into force, or became operable, "in practice" (de facto) on 20 November 2006 and produced legal effects as from that date in respect of proceedings and actions that occurred on or after that date. As explained, it was not until 13 March 2012 that Section 701(f) began to produce any legal effects in respect of proceedings or actions relating to the period between 20 November 2006 and 12 March 2012. Finally, we note that there is also no evidence on the record to indicate that Section 701(f) was brought into effect, in practice, at any point prior to its formal entry into force.107
7.72.
We are therefore unable to accept China's position that 20 November 2006 is the date on which Section 701(f) was brought into effect either formally or in practice. In our view, 20 November 2006 is a date that serves to circumscribe the temporal scope of application of the new Section 701(f). More specifically, pursuant to Section 1(b), proceedings initiated on or after 20 November 2006 fall within the temporal scope of application of Section 701(f), as do any resulting USCBP actions and associated Federal court proceedings. Accordingly, 20 November 2006 is the earliest date of a covered event or circumstance in respect of which Section 701(f) produces any legal effects. This view is consistent with the text of Section 1(b), which provides that Section 701(f) "applies" to proceedings initiated on or after 20 November 2006. Furthermore, our reading of Section 1(b) gives meaning to its title ("Effective Date") in that, on our view, Section 1(b) identifies by date the proceedings or actions in respect of which it produces legal effects.
7.73.
Were we to accept that 20 November 2006 is the date on which Section 1 was "made effective", we would also have to conclude that, pursuant to Article X:1, Section 1 should have been "published promptly" after that date. This, of course, would have been impossible, for Section 1 did not exist at that time. Indeed, the practical consequence of adopting China's view would render inconsistent with Article X:1 a wide range of measures that bring within their temporal scope of application events or circumstances that occurred before their entry into force. As we explain below, we consider that Article X:2 precludes enforcement of certain types of restrictive measures in respect of events or circumstances that occurred prior to their date of publication.108 But we see nothing in Article X:1 that prohibits Members from "making effective" measures of the type that fall within the ambit of Article X:1 and that apply to events or circumstances that occurred before their entry into force, provided such measures are promptly published. It is worth mentioning in this connection that some such measures may be remedial or otherwise non-restrictive in nature. These considerations reinforce our view that it is important, in the context of an Article X:1 inquiry, not to conflate the issue of when a relevant measure entered into force – i.e. was "made effective" within the meaning of Article X:1 – with the separate issue of its temporal scope of application, about which the text of Article X:1 says nothing.109
7.74.
According to China, its submission that Section 1 was "made effective" on 20 November 2006 draws support, by analogy, from the adopted report of the GATT panel in EEC – Apples (US). The panel in that dispute concluded that the operation of a backdated EEC restriction on imports of apples in respect of, inter alia, the United States was inconsistent with Article X:1.110 In support of its conclusion, the panel reasoned, in two short sentences, that Article X:1 prohibits "back-dated quotas", and that the EEC was therefore in breach of Article X:1 as "it had given public notice of the quota allocation only about two months after the quota period had begun".111
7.75.
As the panel offered no interpretative analysis of Article X:1, it is not clear why the panel considered that Article X:1 prohibits backdated quotas. What is clear is that the panel's conclusion on the United States' Article X:1 claim is immediately preceded by an examination of another claim put forward by the United States, under Article XIII:3(c) of the GATT 1947. That Article concerns the allocation of quotas among supplying countries.112 The panel read it together with Article XIII:3(b) of the GATT 1947, which requires that public notice be given of the total quantity or value of the product that will be permitted to be imported "during a specified future period". The panel deduced from these two provisions that "both the total quota and the shares allocated in it had to be publicly notified for a specified future period".113 According to the panel, the requirement in Article XIII:3(c) "to promptly notify other contracting parties with an interest in supplying the product would otherwise be meaningless, as would the Article XIII:3(b) provision for supplies en route to be counted against quota entitlement".114 The panel concluded on that basis that the allocation by the EEC of backdated quotas was inconsistent with Article XIII:3(b) and (c).115
7.76.
We note in respect of Article X:1 that, unlike Article XIII:3(b), it does not refer to a "specified future period" of application or a specified future date of application. Nor do we see any justification for reading such a reference into the text. We consider that Article X:1 is by no means "meaningless", to use the GATT panel's term, if it does not prohibit such measures as Section 1 that apply to events or circumstances that pre-date their publication. We have already explained above that Article X:1 serves a useful purpose, including in respect of such measures.116 Furthermore, it must be remembered that Article X:2 imposes relevant disciplines: the measures it covers may not be enforced before they have been officially published.117 It is noteworthy that the GATT panel's interpretation of Article X:1 pays no regard to Article X:2.
7.77.
Consequently, we do not consider that the GATT panel report assists China in establishing that Section 1 was made effective on 20 November 2006.
7.78.
For all the reasons cited above, we thus conclude that Section 1 was "made effective" by the United States, and more particularly that both Section 1(a) (and with it the new Section 701(f)) and Section 1(b) were "made effective" on 13 March 2012 and not on 20 November 2006 or any other date prior to 13 March 2012.

7.4.3 Was Section 1 "published promptly in such a manner as to enable governments and traders to become acquainted"?

7.79.
The third and final element of our Article X:1 analysis requires the Panel to consider whether, as claimed by China, Section 1 was not published promptly in such a manner as to enable governments and traders to become acquainted with it.
7.80.
China argues that the appropriate reference point for determining whether a measure was "published promptly" is the date on which it was made effective.118 China further argues that in evaluating whether a measure was published promptly, it is necessary to consider whether the measure was published in a sufficiently timely manner to enable "governments and traders to become acquainted" with the content of the measure. China notes that, as it pertains here, the ordinary meaning of the term "promptly" is "quickly" and "without undue delay".119 In response to a Panel question, China stated that ordinarily, publication would occur prior to the date on which a measure is made effective, but that there may be circumstances, such as measures to address an emergency situation, in which a measure could be published shortly after it is made effective.120 According to China, PL 112-99 was, however, published nearly five and a half years after the date on which it was made effective.121 China submits that this was not "prompt" by any conceivable standard. In China's view, this conclusion is underscored by the fact that the Government of China and Chinese producers could not possibly have become acquainted with Section 1 of PL 112-99 before it took effect, since the law was not published until long after it took effect. China considers that this is inconsistent with the due process and transparency requirements that underlie all of Article X.122
7.81.
The United States argues that Article X:1 imposes two requirements. The first is that measures be "promptly published" upon their adoption. According to the United States, the issue of "promptness" must be evaluated in relation to the time when a measure has come into existence and been made effective. In the United States' view, a measure cannot be inconsistent with the prompt publication obligation if it is published as soon as the measure comes into existence; it would not be possible to publish the measure with any less delay. The United States observes that PL 112-99 was published on the same day that it came into existence. Therefore, the United States maintains, China has no basis for any claim that the measure was not published "promptly" under Article X:1.123
7.82.
The second requirement imposed by Article X:1 is that relevant measures be published in such a "manner as to enable governments and traders to become acquainted" with them. The United States submits in this respect that PL 112-99 was published in the "United States Statutes at Large", which is readily available to China, Chinese traders and other members of the public. The United States considers, therefore, that Section 1 was published in such a "manner as to enable governments and traders to become acquainted" with it.124 In response to China's argument that governments and traders could not have become acquainted with Section 1 before it took effect, the United States observes that the obligation in Article X:1 regarding the "manner" of publication involves how the measure is published, not the timing of publication.125
7.83.
The Panel, relying on the wording of Article X:1, agrees with the United States that a breach of that Article may arise from (i) a failure to publish a relevant measure "promptly" or (ii) a failure to publish a relevant measure in such a "manner" as to enable governments and traders to become acquainted with it. Prior panel reports indicate that the "manner" of publication relates, not to the date of publication, but to such aspects as the medium of publication or the content or quality of what is published.126
7.84.
We understand China to raise a claim that the United States did not publish Section 1 "promptly", and not that the United States did not publish Section 1 in an appropriate "manner". China argues that its view about prompt publication is "underscored" by the fact that China and Chinese producers could not have become acquainted with Section 1, since it was not published "until long after" it took effect, which China considers was on 20 November 2006.127 This argument, however, concerns the timing of publication, and not the "manner" of publication as a distinct issue. In any event, as explained by the United States, PL 112-99 was published in the "United States Statutes at Large" official publication series. China did not assert that this did not meet the requirement to publish Section 1 in such a manner as to enable governments and traders to become acquainted with it.128 Furthermore, as we have determined above, Section 1 was not made effective on 20 November 2006, but on 13 March 2012. We therefore see no need to address further the issue of the manner of publication.
7.85.
As regards the issue whether Section 1 was published "promptly", we agree with the panel in EC – IT Products, and the parties, that the "promptness" of publication, or lack thereof, must be assessed by reference to the date on which the relevant measure has been "made effective".129 We likewise agree with the view of that panel that "promptly" as that term is used in Article X:1 means "quickly" and "without undue delay", and that whether a measure has been published "promptly" must be determined on a case-specific basis.130 We infer from these elements that Article X:1 requires Members to publish measures falling within its ambit quickly and without undue delay, once they have been made effective.131 This interpretation ensures that Members enable governments and traders to become acquainted with the content of these measures in a timely fashion.
7.86.
Applying this interpretation to Section 1, we recall our earlier finding that Section 1 was made effective on 13 March 2012 and not, as China argues, on 20 November 2006. Moreover, it is common ground that Section 1 was published on 13 March 2012. As the date on which Section 1 was made effective and the date on which it was published coincide, we consider that Section 1 was published both quickly and without any delay, once it had been made effective.
7.87.
In the light of the above, we conclude that Section 1 was published "promptly".132

7.4.4 Overall conclusion

7.88.
In sum, the Panel has determined above that:

a. Section 1 is part of a "law" and contains a provision that is of "general application" and "pertains" to "rates of duty";

b. Section 1 as a whole was "made effective" by the United States on 13 March 2012; and

c. Section 1 was published "promptly", once it had been made effective.

7.89.
Whereas we thus agree with China that Section 1 falls within the scope of Article X:1, we are unable to agree with China that, contrary to Article X:1, Section 1 was not published promptly. We therefore come to the overall conclusion that China has failed to establish its claim that the United States has acted inconsistently with Article X:1 in respect of Section 1.

7.5 CHINA'S CLAIM UNDER ARTICLE X:2 OF THE GATT 1994

7.90.
The Panel now turns to examine China's claim of violation under Article X:2 of the GATT 1994. The text of Article X:2 provides in full that:

No measure of general application taken by any contracting party effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor, shall be enforced before such measure has been officially published.

7.91.
China requests the Panel to find that Section 1 of PL 112-99 is a measure of general application effecting an advance in a rate of duty and imposing a new or more burdensome requirement or restriction on imports, which the United States enforced prior to its official publication on 13 March 2012, in violation of Article X:2. China contends that the United States enforced that measure of general application in Section 1(b) of PL 112-99 by having the measure provide retroactive legal authority for the imposition and continued maintenance of countervailing duty measures on Chinese products resulting from investigations initiated between 20 November 2006 and 13 March 2012. China submits that the retroactive enforcement of Section 1 is inconsistent, on its face, with the prohibition in Article X:2 against the enforcement of a measure "before such measure has been officially published".133
7.92.
The United States submits that China has presented no valid basis for its claim under Article X:2. The United States maintains that China has failed to prove that PL 112-99 (i) falls within the scope of Article X:2 or (ii) is somehow inconsistent with the Article X:2 obligation. In the United States' view, Section 1 is not of general application and neither effects an advance in a rate of duty nor imposes a new or more burdensome requirement or restriction on imports. The United States further contends that Section 1 was not enforced until its publication on 13 March 2012.134
7.93.
The Panel notes that the measure taken by the United States that China alleges was enforced prior to its official publication – Section 1 of PL 112-99 – is the same measure that China said was not published promptly contrary to the requirements of Article X:1. China claims that the United States acted inconsistently with Article X:2 by enforcing Section 1 before its official publication. The text of Article X:2 indicates that, to sustain its claim, China has to establish that Section 1:

a. is a "measure of general application taken by [a Member] effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor"; and

b. has been "enforced before [it] has been officially published".

7.94.
As these two elements are cumulative in nature, we need not address them in any particular order. In the specific circumstances of this proceeding, we find it appropriate to first address the second element, for three main reasons. To begin with, the parties in this dispute differ not only on whether Section 1 is a measure of the type that falls within the scope of Article X:2 (element a). They also hold starkly opposing views as to whether the United States has even engaged in the conduct that is prohibited in respect of any measure covered by Article X:2, namely enforcement of such a measure prior to its official publication (element b). In the interest of efficiency, we therefore consider this issue before any other. Another reason is that in any event we need to amplify a point that we made succinctly above135 when examining China's claim under Article X:1, and to which we will again revert below136 when we examine China's claim under Article X:3(b). This point, which relates to our understanding of what constitutes prohibited conduct under Article X:2, is not linked to the question of whether or not Section 1 falls within the scope of Article X:2. Finally, one member of the Panel disagrees with the majority about whether Section 1 is covered by Article X:2. It is appropriate also for that reason to address first whether Section 1 has been enforced before its official publication.

7.5.1 Has Section 1 been "enforced" before its official publication?

7.95.
The Panel thus begins its analysis with an examination of whether Section 1 has been "enforced", in the sense of Article X:2, before it has been officially published.
7.96.
China contends that in the context of laws and regulations, the ordinary meaning of the term "enforce" includes to "carry out effectively" and to "compel the observance of", and that a common synonym is "to apply".137 China observes that this view finds support in the panel reports in EC – IT Products138, in which the panel considered that "proof that a measure has been applied would establish that it was enforced".139 China also refers to the dispute in US – Underwear, noting the Appellate Body's statement that "[t]o apply a measure is to make it effective with respect to things or events or acts falling within its scope".140
7.97.
China recalls that, according to the Appellate Body141, Article X:2 reflects "basic principles of transparency and due process". China argues that these principles compel the conclusion that measures of general application affecting the conduct of governments and traders should apply only in respect of actions taken after the publication of the measure. China considers that governments and traders should have a reasonable opportunity to learn about a measure, and to adjust their conduct accordingly, before that measure is enforced in respect of their conduct. In China's view, the principle of due process is necessarily offended when a statute reaches back in time and changes the law applicable to events and circumstances that have already occurred. Government and traders cannot possibly adjust their conduct in light of such a measure, since the conduct affected by the measure has already occurred. China argues that this is why "prior publication is required for all measures falling within the scope of Article X:2"142 – "prior", that is, to the application of the measure to particular conduct or actions. China infers from this that Article X:2 "precludes retroactive application of a measure"143 in all cases.144 According to China, there are a variety of different ways in which a Member might apply a measure of general application prior to its official publication in violation of Article X:2. China observes that the essential inquiry in all cases is whether such a measure was applied to events and circumstances that occurred prior to its official publication.145
7.98.
With regard to the measure at issue, China considers that a measure of general application with a retroactive effective date is, by definition, a measure that has been enforced prior to its official publication. China recalls that pursuant to Section 1(b), Section 1 "applies to all proceedings initiated under Subtitle A of title VII [of the Tariff Act] on or after November 20, 2006; (2) all resulting actions by U.S. Customs and Border Protection; and (3) all civil actions, criminal proceedings, and other proceedings before a Federal court relating to [such] proceedings …". In China's view, by stating that Section 1 "applies" to events that occurred prior to 13 March 2012, it is evident on the face of the legislation that Section 1 applies on a retroactive basis. China submits that it is therefore clear from the measure itself that the United States has acted inconsistently with Article X:2 by enforcing a measure of general application prior to its official publication.146
7.99.
China argues that the fact that the United States has applied Section 1 prior to its official publication is confirmed by the United States having imposed countervailing duty orders on imports from China at a time when existing United States law did not permit this action, and then continuing to maintain these pre-existing orders subsequent to the official publication of the measure. China maintains that in the absence of the retroactive application of Section 1, USDOC would have been required under United States law to revoke these pre-existing orders. According to China, the fact that the United States has continued to maintain these orders subsequent to the official publication of PL 112-99 provides further evidence and confirms that the United States has applied Section 1 to events and circumstances that occurred prior to its official publication.147
7.100.
For these reasons, China is of the view that the United States has enforced Section 1 prior to its official publication, and that the United States has enforced that measure through Section 1(b), which provides retroactive legal authority for the imposition and continued maintenance of countervailing duty measures on Chinese products resulting from investigations initiated between 20 November 2006 and 13 March 2012. China further considers that as measures that enforce Section 1 prior to its official publication, the CVD investigations initiated prior to 13 March 2012, and the resulting CVD order, are themselves inconsistent with Article X:2.148 Thus, China contends that Section 1(b), and the countervailing duty measures for which it provides retroactive legal authority, are inconsistent with Article X:2 because they constitute the enforcement of a measure of general application prior to its official publication.149
7.101.
The United States submits that China has not established that the measure at issue was enforced before it was officially published. The United States contends that PL 112-99 was officially published on 13 March 2012, and that USDOC or United States courts took no action prior to that date to enforce the measure.150 The United States observes that instead of addressing the specific language of the WTO provision and the facts of this dispute, China primarily relies on the Appellate Body's findings in US – Underwear to support a general proposition that Article X:2 precludes retroactivity.151 The United States notes that citation to a prior Appellate Body report does not substitute for the application of the specific language in Article X:2 to the specific facts in this dispute, and that "retroactivity" is not a term used anywhere in the GATT 1994. The United States further contends that China also misrepresents the Appellate Body findings in US – Underwear, which related to a safeguard measure taken under the Agreement on Textiles and Clothing. According to the United States, China notably fails to mention that the Appellate Body stated that it was improper for the panel in US – Underwear to rely on Article X:2 to analyse the permissibility of whether a textiles safeguard could be backdated. The Appellate Body observed that "we are bound to observe that Article X:2 of the General Agreement does not speak to, and hence does not resolve, the issue of permissibility of giving retroactive effect to a safeguard restraint measure". The United States submits that the answer must lie in the relevant covered agreement. The United States recalls in this regard that in US – Underwear, the Appellate Body interpreted a specific article of the Agreement on Textiles and Clothing as creating a presumption that "a measure may be applied only prospectively".152 The United States considers that, as the present dispute involves neither a safeguard, nor claims under the Agreement on Textiles and Clothing, the Appellate Body finding does not support China's claims.153
7.102.
China disagrees with the United States' understanding of the Appellate Body Report in US – Underwear. According to China, the panel in that dispute had held that the application of a measure to imports that occurred prior to its official publication would be inconsistent with Article X:2. China notes that the Appellate Body considered this interpretation of Article X:2 "appropriately protective" of the basic principle of due process that Article X:2 embodies, even though the Appellate Body did not consider that the panel's finding resolved the specific issue in that dispute. China submits in this respect that the Appellate Body's statement that Article X:2 does not speak to the issue of permissibility of giving retroactive effect to a safeguard restraint measure meant only that Article X:2 did not resolve the question of whether Article 6.10 of the Agreement on Textiles and Clothing permitted the application of such a measure to imports that occurred prior to the expiration of the 60-day period for consultations mandated by that provision.154
7.103.
The United States responds that China cannot impute or import a legal concept that is not addressed in the plain text of Article X:2. The United States contends that Article X:2 is a procedural obligation that does not discipline the substance of the covered measures. In the United States' view, China's so-called principle of retroactivity does not apply to measures in the absence of a textual basis. The United States considers that any challenge concerning whether a measure may affect events or actions that predate its enactment must be based on a treaty article other than Article X, i.e. a treaty article that imposes a substantive obligation. According to the United States, consistent with the title and focus of Article X, Article X:2 links a requirement for transparency with the administration of a measure to ensure that Members do not enforce a "secret" measure on imports effecting an advance in a rate of duty or imposing a new or more burdensome requirement, restriction, or prohibition. For those changes, the United States submits, Article X:2 requires a Member to publish the measure in an official publication prior to its enforcement. The United States considers that this understanding flows directly from the text of Article X:2 and the Appellate Body's observation in US – Underwear that Article X:2 serves to promote full disclosure of governmental acts affecting Members, private persons and enterprises.155
7.104.
The United States further calls attention to Article 20 of the SCM Agreement and Article 10 of the Anti-Dumping Agreement. According to the United States, they provide explicit instructions for when countervailing duties and anti-dumping duties may be levied retroactively. The United States submits that if Article X:2 had already imposed a blanket prohibition on retroactivity, as argued by China, then the Article 20 and Article 10 elements that discipline the application of countervailing duties and anti-dumping duties with respect to past entries would have been unnecessary. The United States further notes that these two provisions also include exceptions that allow for the application of countervailing duties and anti-dumping duties to entries made prior to the completion of proceedings.156
7.105.
The Panel begins its analysis by addressing the meaning of the phrase "[n]o measure of general application … shall be enforced before such measure has been officially published", with a particular focus on the term "enforced". The verb "enforce" is defined as "carr[ied] out effectively"157 or "[c]ompel the observance of (a law, rule, practice, etc.); support (a demand, claim, etc.) by force"158. The panel in EC – IT Products looked at the equivalent term in the Spanish version of Article X:2, which is "aplicada" and means "applied", whereas the French version uses "mise en vigueur", which the panel said means "put into application".159 On that basis, the term "enforce" as it is used in Article X:2 may in our view be understood as meaning "apply", particularly "apply with a view to ensuring observance of a law, rule, practice, etc.".
7.106.
Article X:3(b) of the GATT 1994, which is part of the context of Article X:2, refers to "agencies entrusted with administrative enforcement". The Appellate Body observed in respect of this reference that agencies that "enforce" rules are agencies that "'apply' relevant rules".160 In our view, the term "enforcement" is used in Article X:3(b) in the same sense in which it is used in Article X:2. It is important to bear in mind, however, that Article X:3(b) qualifies "enforcement" by the adjective "administrative". Article X:2 lacks such a qualification of the verb "enforce". We consider that the term "enforce" is susceptible of an interpretation that encompasses administrative enforcement, but is not limited to it. Like administrative agencies, courts play a significant part in the enforcement of Members' domestic laws. They, too, apply measures of general application, such as laws and regulations, with a view to ensuring their observance. In the light of this, we consider that Article X:2 covers also judicial enforcement.
7.107.
The panel in EC – IT Products expressed the view that "proof that a measure has been applied would establish that it was enforced".161 We concur that instances of actual application may constitute proof of enforcement. By its terms, however, Article X:2 does not talk about instances of actual enforcement. Therefore, we do not consider that absence of an instance of actual application necessarily demonstrates lack of enforcement. As we see it, a showing that a measure of general application requires a Member's competent authorities to apply that measure may in appropriate circumstances be sufficient to demonstrate that the Member concerned is acting inconsistently with the requirement not to enforce a measure before its official publication.
7.108.
As an additional matter, we observe that, conceptually, it is important to distinguish two aspects of administrative and judicial enforcement. The first relates to when an entity such as a court or administrative agency enforces a particular measure. The second relates to the question whether a particular measure is enforced in respect of past, current and/or future events or circumstances. As a linguistic and logical matter, a measure can only be "enforced" if it has first been "made effective", either formally or informally. But once a measure enters into force, agency officials and judges can apply it, if, for instance, a law so provides, in respect of events or circumstances that occurred in the past, that is to say, that occurred before the measure entered into force.
7.109.
Concordant with the finding of another panel, we consider that Article X:2 addresses the first aspect by prohibiting an administrative agency or court from taking action to enforce a relevant measure of general application before it has been officially published.162 The question this presents, then, is whether Article X:2 is also concerned with the second aspect and likewise prohibits an agency or court from enforcing a relevant measure in respect of events or circumstances that occurred before it has been officially published. To answer this question, which is not explicitly resolved by the text of Article X:2163, we consider the immediate context of the term "enforce" in Article X:2 as well as the object and purpose of the GATT 1994 and the WTO Agreement.
7.110.
By its terms, Article X:2 applies only to measures of general application "effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor". What these types of measures have in common is that they are restrictive in nature, in the sense that they make the importing Member's trade regime more restrictive rather than less.164 Having regard to the object and purpose of the GATT 1994 and the WTO Agreement, which include providing security and predictability to the multilateral trading system165, it is understandable why Article X:2 would not permit restrictive measures of the identified kind to apply and thereby affect past trade. If it did, traders and governments might suffer actual losses or an actual reduction in profits on long-completed international transactions.166 Also, traders and governments might be deterred from trading in the first place, because there would then be uncertainty as to the conditions of access to other Members' markets. The situation would be different in a case where a Member introduces a similar measure that is non-restrictive in nature (and, hence, not covered by Article X:2), such as a measure that lowers a rate of duty on imports. If such a measure were applied to past trade, it might turn out that some traders or governments could have realized bigger potential profits had that measure been in place from the beginning. But they would not conclude that they should have engaged in less trade than they actually did. Thus, certainly in the case of the restrictive measures falling within the scope of Article X:2, it makes sense to supplement the publication requirement laid down in Article X:1 by a prohibition on pre-publication enforcement, as this additional discipline removes a potential element of insecurity and unpredictability in relation to Members' trade regimes which could impact negatively on trade.
7.111.
Consideration of the immediate context and the object and purpose of the GATT 1994 and the WTO Agreement thus supports the view that Article X:2 should be construed to prohibit the competent authorities from enforcing a measure within its scope in respect of events or circumstances that occurred before it has been officially published. We find further support for this view in the interpretative principle according to which a treaty interpreter should guard against interpretations of treaty provisions that could deprive them of any useful effect.167 If Article X:2 only prohibited an administrative agency or a court from taking action to enforce a relevant measure prior to its official publication, a Member could instruct that agency or court to take action to enforce a law only after its official publication, but that same law could then consistently with Article X:2 provide for enforcement in respect of events or circumstances that occurred before publication. Such an interpretation of Article X:2 would put in doubt the practical significance of the prohibition in Article X:2 against pre-publication enforcement, because this interpretation would permit a Member to do indirectly what it would not be permitted to do directly.168
7.112.
According to the United States, Article X:2 serves to ensure that Members do not enforce "secret" measures that are of the type described in Article X:2. However, Article X:2 does not use the term "secret", and the United States itself has emphasized that a treaty interpreter should not read words into a treaty provision.169 We note that the text of Article X:2 enjoins Members not to enforce certain measures "before" they have been officially published. In our view, the term "before" is important, in that it indicates that enforcement must in no case precede publication. In contrast, the United States' interpretation implies that as soon as a measure falling within the scope of Article X:2 is no longer secret, it may be enforced, even in respect of events or circumstances that have occurred before it has been published. As an additional matter, we observe that the United States' interpretation appears to focus on a concern – lack of transparency – that is already addressed by the prompt publication requirement in Article X:1. Indeed, secret measures that are being enforced are measures that have been made effective, either formally or informally, and that should have been promptly published.170
7.113.
The United States further contends that Article X:2 is a procedural obligation that does not discipline the substance of the covered measures. As an initial matter, we note that the substance, or content, of a measure is plainly relevant to an Article X:2 analysis, inasmuch as it covers only measures effecting an advance in a rate of duty or other charge, or imposing a relevant new or more burdensome requirement, restrictions or prohibition on imports, or on the transfer of payments therefor. Even disregarding that, interpreting Article X:2 to prohibit relevant measures from being enforced in respect of events or circumstances that have occurred before they have been officially published does not turn that Article into an essentially substantive obligation. Indeed, under this interpretation Members remain free to determine the substantive details of their measures, e.g. the extent of an advance in a rate of duty on imports or the range of products subject to any such advance. Interpreted in this way, Article X:2 merely imposes disciplines with regard to the temporal scope of application of relevant measures. It makes clear that whatever the specific content of a relevant measure, a Member may not enforce that specific content in respect of events or circumstances that occurred before the official publication of the measure. We note, finally, that according to the Appellate Body, Article X:2 has "due process dimensions", in that it ensures that traders and governments have an opportunity "to protect and adjust their activities or alternatively to seek modification of such measures".171 It is fully consistent with this observation to interpret Article X:2 to prohibit enforcement of a measure in respect of events or circumstances that have occurred before it has been published, because such a prohibition ensures that traders and governments are in a position to protect or adjust their activities and also to seek a modification of the measure.
7.114.
The United States also cites Article 20 of the SCM Agreement and Article 10 of the Anti-Dumping Agreement, arguing that these provisions would be redundant if Article X:2 prohibited the enforcement of a measure in respect of events or circumstances that occurred before it was officially published. China considers that these provisions help to confirm that Article X:2 precludes the application of a measure falling within its scope to conduct that took place prior to its official publication, and that there is no question of these provisions being made redundant if Article X:2 were interpreted in the manner described by the United States.172 Articles 20 and 10 apply to provisional measures, countervailing duties and anti-dumping duties. Even assuming that such measures fall within the scope of Article X:2 (and we make no finding in this regard), we note that Articles 20 and 10 are different from Article X:2 in that unlike the latter, which talks about enforcement of a measure before that same measure has been published, Articles 20.1 and 10.1 talk about application of a measure (e.g. a countervailing duty) after the entry into force of another measure (e.g. the preliminary or final determination). Due to these differences, it is not apparent to us that Articles 20 and 10 are simply "unnecessary"173 in view of Article X:2 as we interpret it. Furthermore, as the United States itself notes, Articles 20.2 and 10.2 stipulate important exceptions to permit the retroactive levying of countervailing duties and anti-dumping duties in certain situations. These provisions would not be redundant if Article X:2 also applied in the situations covered by Articles 20.2 and 10.2. This is because even if Article X:2 applied in these situations, the SCM Agreement and the Anti-Dumping Agreement would be leges speciales in relation to Article X:2. Consequently, it is the provisions of these agreements that would be applied rather than Article X:2. Furthermore, the fact that Articles 20.2 and 10.1 on an exceptional basis permit the retroactive levy of countervailing duties and anti-dumping duties does not support the conclusion that Article X:2 permits enforcement of a measure in respect of events or circumstances that have occurred before its official publication.
7.115.
Finally, we turn to address the United States' arguments about the Appellate Body's interpretation of Article X:2 in US – Underwear. The United States considers that this Appellate Body report supports its view that Article X:2 does not prohibit the enforcement of a measure in respect of events or circumstances that have occurred before its official publication. The panel in that dispute found, in essence, that the United States was in breach of its obligations under Article X:2 and Article 6.10 of the Agreement on Textiles and Clothing because it applied a safeguard restraint measure as from 27 March 1995 in respect of imports that took place prior to the publication of the measure on 21 April 1995. The panel also observed, however, that there would have been no breach of Article X:2 or Article 6.10 if the United States had applied the measure as from 21 April 1995. The Appellate Body disagreed, however, with the latter observation.174 It is in this context that the Appellate Body made a statement about Article X:2, which it is useful to set out in full:

At the same time, we are bound to observe that Article X:2 of the General Agreement, does not speak to, and hence does not resolve, the issue of permissibility of giving retroactive effect to a safeguard restraint measure. The presumption of prospective effect only does, of course, relate to the basic principles of transparency and due process, being grounded on, among other things, these principles. But prior publication is required for all measures falling within the scope of Article X:2, not just ATC safeguard restraint measures sought to be applied retrospectively. Prior publication may be an autonomous condition for giving effect at all to a restraint measure. Where no authority exists to give retroactive effect to a restrictive governmental measure, that deficiency is not cured by publishing the measure sometime before its actual application. The necessary authorization is not supplied by Article X:2 of the General Agreement.175

7.116.
We agree with China that the first sentence of the above statement should not be understood to make a general point about Article X:2. Rather, it makes clear that Article X:2 does not address itself to the specific issue of whether retroactive effect may be given to a "safeguard restraint measure" taken under the provisions of the Agreement on Textiles and Clothing. Consistent with this understanding, the Appellate Body later in the paragraph observes, in effect, that the Agreement on Textiles and Clothing may impose disciplines on the use of safeguard restraint measures that go further than those that Article X:2 imposes on the use of such measures.176 If, then, the Agreement on Textiles and Clothing prohibits177 Members from giving retroactive effect to safeguard restraint measures even in situations where Article X:2 does not, it would not be sufficient for a Member that applied such a measure to claim compliance with Article X:2 in order to avoid a finding of violation.178 Or, as the Appellate Body put it, conduct that is consistent with Article X:2 does not "cure" conduct that is inconsistent with the Agreement on Textiles and Clothing. Indeed, the Appellate Body in that dispute found that it was contrary to Article 6.10 of the Agreement on Textiles and Clothing to back-date the effective date of a safeguard restraint measure even in a situation where the panel had said that there would be no breach of Article X:2.179
7.117.
Based on the foregoing observations, we consider that the Appellate Body report in US – Underwear does not stand for the proposition that Article X:2 permits safeguard restraint measures, and by implication other covered measures, to be applied to imports which have taken place prior to the publication of such measures. The panel in that dispute had found that this was contrary to Article X:2.180 And the Appellate Body did not find that this conclusion on Article X:2 was in error. To the contrary, it stated that "the Panel here gave to Article X:2... an interpretation that is appropriately protective of the basic principle here projected", i.e. the principle of transparency and due process that allows traders and governments "to protect and adjust their activities or alternatively to seek modification of [relevant] measures".181 In addition, we consider that the Appellate Body report does not support the United States' view that any challenge concerning whether a measure may affect events or circumstances that predate its official publication must be based on a treaty article other than Article X:2, namely one that imposes a substantive obligation. Rather, as we have explained, what the Appellate Body report indicates is that treaty articles other than Article X:2 may provide a basis for challenging a measure that provides for its application to past events or circumstances even where Article X:2 does not.
7.118.
In the light of all of the above, we conclude that Article X:2 prohibits administrative agencies or courts of a Member from (i) taking action to enforce (or apply) a measure that falls within the scope of Article X:2 before it has been officially published, or (ii) enforcing (or applying) such a measure in respect of events or circumstances that occurred before it has been officially published.
7.119.
Having developed an interpretation of the term "enforced" in Article X:2, we now proceed to apply it to the measure at issue, Section 1 of PL 112-99. For purposes of this part of our analysis, we will assume that Section 1 falls within the scope of Article X:2, as China asserts. We will address this matter in detail below.182 The first issue we address here is when Section 1 was "officially published". We note that it is undisputed that Section 1 was published officially on 13 March 2012.183 What we must examine, therefore, is whether Section 1 has been enforced, or applied with a view to ensuring its observance, before 13 March 2012.
7.120.
We agree with the United States that there is no evidence on the record to suggest that United States administrative agencies or courts took action prior to 13 March 2012 to enforce Section 1. China relies, however, on Section 1(b).184 To recall, Section 1(b) states that the new Section 701(f) "applies to" (1) all CVD proceedings initiated on or after 20 November 2006, (2) all resulting USCBP actions, and (3) all Federal court proceedings relating to (1) or (2), which include proceedings before the CIT and the CAFC relating to CVD proceedings initiated on or after 20 November 2006.185 The United States has confirmed that Section 1(b) is directly applicable and does not require any implementing action.186 Consequently, we understand Section 1(b) to direct USDOC, USITC, USCBP and Federal courts to "apply" the new Section 701(f), once Section 1 has been made effective, to the identified events or circumstances that are relevant to each authority. We found previously that Article X:2 applies irrespective of whether a relevant measure is enforced by an administrative agency, such as USDOC, USITC or USCBP, or a court, such as Federal courts.
7.121.
Some of the events or circumstances that fall within the temporal scope of application of the new Section 701(f) predate 13 March 2012. This is the case for all CVD proceedings initiated on or after 20 November 2006 and before 13 March 2012. The same is true for all resulting USCBP actions that predate 13 March 2012 as well as for all Federal court proceedings concerning CVD proceedings initiated between 20 November 2006 and 13 March 2012 or resulting USCBP actions taken before 13 March 2012.
7.122.
It follows that Section 1(b) requires relevant United States administrative agencies to apply the new Section 701(f) in respect of all CVD proceedings initiated, and resulting USCBP actions taken, between 20 November 2006 and 13 March 2012, i.e. in respect of events or circumstances that occurred before Section 1 was published on 13 March 2012.187 It further requires Federal courts to apply the new Section 701(f) in all judicial proceedings concerning CVD proceedings initiated, and resulting USCBP actions taken, between 20 November 2006 and 13 March 2012, i.e. in judicial proceedings concerning events or circumstances that predate the publication of Section 1.
7.123.
China claims that Section 1 is inconsistent, as such, with Article X:2.188 As Section 1(b) in our view requires United States authorities to apply the new Section 701(f) to events or circumstances that occurred before 13 March 2012, it is not necessary for China to present evidence showing that the new Section 701(f) was actually applied in this manner. We nonetheless note that the record indicates that there were, in fact, 33 CVD investigations and reviews that were initiated in the relevant period and to which Section 701(f) applied as from 13 March 2012.189 We also note that the CAFC decision in GPX VI is a decision that was based on the new Section 701(f) and that concerns a CVD proceeding initiated before 13 March 2012.190
7.124.
In addition to relying on Section 1(b), China submits that as from 13 March 2012, the United States used Section 1 as the legal basis for the initiation of CVD investigations in respect of imports from China and issuance of CVD orders on Chinese products, including for investigations initiated and orders issued between 20 November 2006 and 13 March 2012. More specifically, China seeks a finding that "all determinations or actions by the U.S. authorities between November 20, 2006 and March 13, 2012 relating to the imposition or collection of countervailing duties on Chinese products …, including the ongoing conduct of maintaining and enforcing countervailing duty measures resulting from investigations initiated during this period"191, are inconsistent with Article X:2, because, in China's view, they enforced Section 1 prior to 13 March 2012.192 By "US authorities", China means USDOC, USITC and USCBP.193
7.125.
We consider that the "determinations and actions" referred to by China cannot properly be viewed as actions taken on dates prior to 13 March 2012 to enforce Section 1 before its official publication. As we have said, there is no evidence that the United States took any enforcement action, based on Section 1, prior to 13 March 2012. These determinations and actions were taken pursuant to authority which USDOC considered it had under pre-existing CVD law, not in anticipation of authority that Congress would subsequently provide in Section 1. We do agree, however, that these determinations and actions serve to demonstrate that, as from 13 March 2012, Section 701(f) has been enforced, or applied, as a legal basis for specific conduct of USDOC, USITC and USCBP that occurred before the aforementioned date and concerned imports from China, such as the initiation by USDOC on 27 November 2006 of an investigation of CFS paper from China.
7.126.
We note that China seeks also to include "the ongoing conduct of maintaining and enforcing countervailing duty measures resulting from investigations initiated during this period". To the extent that this phrase is meant to encompass any distinct and new determinations or actions by USDOC, USITC or USCBP that occurred after 13 March 2012 (but follow different determinations or actions that occurred prior to 13 March 2012 and concern imports of the same subject product from China), we are unable to agree. Any distinct determinations and actions made or taken after 13 March 2012 do not assist China in demonstrating that Section 701(f) has been enforced before 13 March 2012.
7.127.
For all these reasons, we conclude, based on Section 1(b) and relevant determinations or actions made or taken by United States authorities between 20 November 2006 and 13 March 2012 in respect of imports from China, that the United States "enforced" Section 1 (which adds the new Section 701(f) to the United States Tariff Act of 1930) before it had been officially published. Section 1 therefore meets the first element of our two-part Article X:2 inquiry.

7.5.2 Is Section 1 "[a] measure of general application taken by [a Member] effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports "?

7.128.
The Panel now turns to examine whether Section 1 is a measure of the type that falls within the scope of Article X:2. This involves a two-part analysis. First, we must determine whether Section 1 is a measure of general application taken by a Member. Second, we must determine whether Section 1 effects an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposes a requirement, restriction, or prohibition, that is new or more burdensome.194 Only if Section 1 satisfies both parts of this test, does it fall within the scope of Article X:2.
7.129.
China maintains that Section 1 is "plainly" within the scope of Article X:2. In China's view, Section 1 is a "measure" of "general application", "taken by the United States" that "effect[s] an advance in a rate of duty or other charge on imports under an established and uniform practice, or impos[es] a new or more burdensome requirement, restriction or prohibition on imports".195
7.130.
The United States argues that China has failed to make a prima facie case that PL 112-99 is the type of measure covered by Article X:2. According to the United States, China has not established that a measure involving countervailing duties falls within the general type of measure covered by Article X:2. In the present dispute, the relevant covered types of measures are either a measure of general application effecting a duty rate or other charge on imports under an established and uniform practice, or a measure of general application imposing a requirement, restriction or prohibition on imports. The United States considers that China has failed to explain how PL 112-99 falls under either category. The United States further argues that for a measure to be covered by Article X:2, it must be one that departs in a particular way from some prior measure of general application, that is, the measure must effect an advance in a duty rate or other charge on imports under an established and uniform practice, or impose a new or more burdensome requirement, restriction or prohibition. The United States maintains that CVD laws provide the framework for determining a CVD duty. The law itself does not prescribe any particular duty rate, let alone effect an "advance" in such a rate, nor does it impose a requirement, restriction or prohibition on imports. The United States considers that imports are affected only once the separate and distinct legal process of an investigation is completed. The United States submits that PL 112-99 made no change in USDOC's application of countervailing duties, and that China cannot therefore show that it either effected an "advance" ina rate of duty under an established or uniform practice, or imposed a "new or more burdensomerequirement, restriction, or prohibition" on imports.196

7.5.2.1 Measure of general application taken by a WTO Member

7.131.
The Panel will first examine whether Section 1 is a measure of general application taken by a WTO Member.
7.132.
China submits that Section 1 of PL 112-99 is a "measure of general application" taken by the United States. In China's view, PL 112-99 is a "measure of general application" because it prescribes a rule of law that is applicable to different products, producers, importers, and countries.197
7.133.
The United States argues that China has failed to prove that the challenged section of PL 112-99 – the application of Section 1(a) to the 27 CVD proceedings that were initiated prior to the enactment of PL 112-99 – is "of general application". According to the United States, the challenged section, which affects an identifiable number of proceedings and subject imports, does not fall under the plain meaning of the term of "general application" in Article X:2. More specifically, the United States contends that China's claim under Article X:2 relates to the part of Section 1(b)(1) that applies to proceedings already initiated prior to the enactment of PL 112-99 and that had resulted in an order, and that China's claim of violation is limited to this set of proceedings. The United States considers that these 27198 proceedings were known as of the date of enactment of PL 112-99, as were the products subject to those proceedings and the investigated parties. The United States notes that these 27 proceedings have fixed and identified subject imports, because USDOC had already initiated or conducted an investigation on the subject imports. In the United States' view, Section 1(b)(1) is not a law of "general application" as regards this limited and known set of imports and proceedings.199
7.134.
China counters that Section 1 is the relevant measure of general application, and that Section 1 does not need to be a measure of general application in relation to a particular set of proceedings or imports. China considers that Section 1(b) is not a distinct measure, but rather evidence on the face of the statute that the new Section 701(f) was enforced before its official publication. In China's view, it cannot be the case that Section 1 is a measure of general application for some purposes, but not for other purposes. China considers that if that were the case, there could never be a violation of Article X:2, because any measure of general application could be seen as not being a measure of general application when viewed in relation to particular conduct that took place prior to its official publication. China further argues that even if Section 1(b) were deemed to apply to a known set of investigations and products, the exporters subject to the resulting countervailing duty orders would constitute an unidentified number of economic operators.200 China notes that this is because any exporter – past, present, or future, and whether investigated or not – that exports the goods subject to the countervailing duty orders will be liable for an assessment of countervailing duties. Accordingly, China maintains, even if it were possible to view Section 1(b) as a distinct measure, it would still constitute a measure of general application, because the economic operators who are potentially subject to the imposition of countervailing duties under those orders are not a defined set.201
7.135.
The United States responds that if it is appropriate to separate Section 1 from Section 2, then there also would be a basis to further separate Section 1(a) from Section 1(b). As China's claims relate to the application of Section 1(a) to those CVD proceedings that were initiated prior to the enactment of the GPX legislation, the United States considers that it would indeed reflect China's claim to consider the measure as actually challenged by China, and to consider the measure in respect of those proceedings initiated prior to the law's enactment from those that were initiated after the law's enactment. The United States further argues that the possibility that a CVD order may reach an unknown set of exporters in the future is irrelevant to China's claim. According to the United States, for the past proceedings that are the subject of China's claim, the exporters subject to those investigations and resulting orders or determinations were known as of the date of enactment of PL 112-99; past exporters are therefore necessarily a defined set. The United States notes, finally, that China's claims are with respect to Section 1, not each of the CVD orders on imports from China that resulted from the named CVD proceedings. The United States submits that if China had wished to support claims on each CVD order as a measure of general application, it would have had to allege that each order was enforced prior to publication.202
7.136.
The Panel begins by recalling its earlier finding that Section 1, as an integral part of a law (PL 112-99), falls within the category of "laws" identified in Article X:1.203 The term "measure" in Article X:2 undoubtedly encompasses "laws" as envisaged in Article X:1.204 Indeed, Article X:1 requires certain laws to be published under Article X:1, and pursuant to Article X:2, a subset of such laws205 may not be enforced before they have been officially published. In the light of this, Section 1, as an integral part of a law, falls within the category of "measure" as contemplated in Article X:2. Moreover, PL 112-99, being a measure taken by the United States, is a measure taken by a Member. In sum, we consider that Section 1 is part of a measure taken by a Member.
7.137.
We address, next, whether Section 1 is a statutory provision of "general application". As an initial matter, we note that the identical term – "of general application" – appears in both Article X:1 and Article X:2. We agree with the panel in EC – IT Products that it can be presumed that the term has the same meaning in both articles, which are closely related.206 Therefore, for purposes of our Article X:2 analysis, we adopt the same interpretation of the term "of general application" and follow the same analytical approach as we have for purposes of our Article X:1 analysis.207
7.138.
The measure at issue in respect of China's claim under Article X:2 is Section 1, which, to recall, is the same as the measure at issue in respect of China's claim under Article X:1. For this reason, and because we adopt the same interpretation of and analytical approach to the concept of "general application", we consider that it is not necessary to repeat, in this subsection of our Report, our previous analysis of the same issue. With the necessary modifications, our earlier considerations are equally applicable in the context of China's claim under Article X:2. We therefore rely on them in support of our conclusion here.208
7.139.
Consequently, we find that Section 1 contains a provision of general application, notwithstanding the fact that, in relevant part, it applies to events or circumstances that pre-date the official publication of PL 112-99.

7.5.2.2 Measure effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a requirement, restriction, or prohibition, that is new or more burdensome

7.140.
In view of the Panel's finding in the preceding subsection, the Panel must continue with its examination of whether Section 1 falls within the scope of Article X:2. Specifically, the Panel must examine whether, as China asserts, Section 1 is a measure effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, and also a measure imposing a requirement, restriction, or prohibition, that is new or more burdensome. The Panel will begin its analysis with the first possibility identified by China.

7.5.2.2.1 Whether Section 1 effects an advance in a rate of duty or other charge on imports under an established and uniform practice

7.141.
China submits that Section 1 "effect[s] an advance in a rate of duty" or a "charge on imports" insofar as it makes certain categories of imports potentially subject to the imposition of countervailing duties. China maintains that this potential charge on imports is pursuant to an "established and uniform practice", because the imposition of countervailing duties (the "practice") is required in each instance ("uniform") in which the conditions set forth in the law ("established") are satisfied.209
7.142.
China considers that in evaluating whether Section 1 advances a rate of duty the fundamental inquiry is whether it effects an advance in a rate of duty in relation to prior municipal law, properly determined as a question of fact. China submits that the relevant baseline of comparison under Article X:2 is the prior municipal law of the importing Member, as reflected in its previously published measures of general application, including judicial decisions interpreting those laws and regulations. China contends that it is on the basis of these previously published measures, including judicial decisions, that governments and traders come to understand the requirements of the municipal law of the importing Member, and develop their expectations about what law the importing Member will apply until such time as the Member publishes a superseding measure. The meaning of prior municipal law must be determined as a matter of fact, by reference to the laws themselves and the manner in which those laws have been interpreted by domestic courts. Regarding the meaning of prior United States law, China asserts that it should be understood not to have permitted the application of countervailing duties to imports from NME countries.210
7.143.
In relation to whether Section 1 "effect[s] an advance in a rate of duty or other charge on imports under an established and uniform practice", China argues that it does, not only because, in its view, it makes imports from NME countries potentially subject to the imposition of countervailing duties, but also because it provides a legal basis for the continued maintenance of a considerable number of pre-existing countervailing duty orders which, in the absence of this legislation, would have been revoked. China submits that in these instances, at a minimum, PL 112-99 has effected an advance in the duty or charge applicable to imports. According to China, the applicable countervailing duty rate went from zero – i.e. the countervailing duty rate in the absence of any legal basis to impose countervailing duties – to whatever countervailing duty rate the USDOC had established in the particular investigations at issue.211
7.144.
The United States counters that China has failed to explain how PL 112-99 is a measure effecting a duty rate or other charge on imports under an established and uniform practice. The United States further submits that China has provided no basis for a finding that PL 112-99 effected an "advance" in a duty rate or other charge on imports as compared to the duty rate under an established and uniform practice. According to the United States, legislation relating to the application of the CVD law does not "effect" the "rate" of duty or other import charge, much less an "advance" in a rate of duty or other charge on imports. The United States argues that countervailing duties do not "effect" (which, the United States maintains, means to "bring about" or "produce") any particular "rate" or level of a CVD duty under established or uniform practice, unlike a customs tariff which sets out rates of duty. In the United States' view, CVD laws describe a process for determining a special CVD duty, and CVD laws themselves do not bring about or produce any particular duty rate. The United States further argues that PL 112-99 does not establish the rate of CVDs for the proceedings at issue. The United States considers that PL 112-99 maintains the status quo and did not make imports from NME countries potentially subject to the imposition of countervailing duties; these imports were already subject to the imposition of countervailing duties well prior to the adoption of PL 112-99.212
7.145.
As to whether PL 112-99 effected an advance in a rate of duty on imports, the United States argues that Article X:2 does not address the issue whether USDOC's approach was legally permissible under United States law. The United States submits that China's "prior municipal law" baseline would compel the Panel to speculate on the content of United States law and determine whether USDOC's interpretation was in conformity with United States law. According to the United States, the legal issue whether USDOC was prohibited from applying the United States CVD law to China has not been resolved by United States courts. The United States maintains that in the absence of a final, binding, and legally authoritative decision by the judiciary, USDOC's understanding of the United States CVD law remains lawful as a matter of United States law. In the United States' view, given that the courts have not finally spoken to the contrary and therefore USDOC's interpretation remains valid as a matter of United States law, the Panel has no basis under United States law to substitute its judgment for that of USDOC.213
7.146.
The United States argues, in addition, that Section 1 of PL 112-99 did not change the existing manner in which USDOC applied the United States CVD law to NME countries.214 The United States observes that dating back to the determinations from the 1980s involving imports from the Soviet-bloc countries, USDOC has acknowledged that the United States CVD law applied to NME imports, but refrained from doing so given the inherent difficulties in identifying and measuring subsidies in those centralized command-and-control economies. The United States notes that by 2006, USDOC recognized that China was sufficiently distinct from such economies to permit the identification and measurement of countervailable subsidies. In the United States' view, because there was no change to USDOC's existing approach in how it interpreted the United States CVD law with respect to imports from NME countries, Section 1 could not effect an increase in a rate of a duty. Rather, the United States maintains, Section 1 "is Congress' statement on an existing USDOC approach".215 The United States notes that Congress enacted PL 112-99 to end the longstanding domestic litigation regarding whether Congress intended the United States CVD law to apply to NME countries in cases where subsidies can be identified. According to the United States, PL 112-99 confirmed that USDOC had legal authority to apply the CVD provisions of the United States Tariff Act of 1930 to imports from China and thus ratified its application of those provisions to China with respect to the challenged CVD measures. Specifically, the United States contends that PL 112-99 has not changed or otherwise affected any part of the CVD proceedings and orders listed in Appendix A of China's panel request. The United States notes that the CVD rates established through those proceedings remain the same as prior to the enactment of PL 112-99, that is to say, the law maintains the status quo for these orders.216
7.147.
The United States further argues that, even if PL 112-99 could be considered as modifying United States law, it could never be said that the situation prior to PL 112-99 could be described as an "established and uniform practice" not to apply CVDs to imports of China. The United States observes that the established and uniform practice since 2006 was to apply CVDs to China. Moreover, even before that time, USDOC maintained procedures for applying the United States CVD law to any country where a countervailable subsidy (or bounty or grant) could be determined.217
7.148.
China disagrees with the contention by the United States that Congress was merely clarifying existing law or resolving confusion in ongoing litigation. China considers that the proposition that PL 112-99 did not effect a substantive change in United States law is refuted both by the plain language of the statute itself and by the facts and circumstances leading up to its enactment. China notes that PL 112-99 is entitled "an act to apply the countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries". China argues that if the purpose of the act is "to apply the countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries", it must be the case that those provisions previously did not apply to NME economy countries. China further contends that it is the new Section 701(f), not the old Section 701(a), that creates the legal basis for the imposition of countervailing duties on imports from NME countries. China considers that if the statute was merely restating the law that already existed, then there would have been no need for Congress to make the new law retroactive to a specific date in the past. China adds that it is no coincidence that PL 112-99 is commonly referred to as the "GPX legislation". This is because, according to China, the purpose of PL 112-99 was to change the law in response to the CAFC's holding in GPX V.218
7.149.
China observes that the CAFC's decision in GPX V held that what the United States tries to characterize as the "status quo" was, in fact, inconsistent with United States law as it then existed. China notes that the CAFC ruled that the United States Tariff Act of 1930 did not permit the application of countervailing duties to imports from NME countries. In China's view, this "ruling of law" constitutes the relevant status quo prior to the enactment of PL 112-99, not USDOC's prior interpretation of its authority, which the CAFC had considered and found to be incorrect. China asserts that the CAFC's decision in GPX V is a published, precedential decision of a United States court. China notes that the decision is bound in the official reports of the United States courts of appeals, notwithstanding the repeated attempts by the United States to have the CAFC "vacate" this decision, which the court has declined to do. China considers that GPX V is therefore a valid statement of United States law as it existed prior to the enactment of the statute at issue in this dispute.219
7.150.
The United States counters that the opinion of the CAFC in GPX V never became final or legally binding on USDOC, and it therefore could not be implemented by USDOC.220 The United States notes that a "mandate" is required to finalize a United States appellate court opinion, and that the CAFC itself stated that a mandate was not issued for the GPX V opinion because the case was still under appeal.221 Therefore, the United States maintains, GPX V was not a final decision and has no legal effect under United States law, and the CIT, as the court of first instance, could not direct its implementation prior to the CAFC's issuance of a mandate.222 The United States notes that prior to the issuance of a mandate, the GPX V opinion was still subject to change. The United States explains that such changes could be made by either the three-person panel of the CAFC that heard the GPX V case, the CAFC sitting en banc, or the United States Supreme Court.223 In GPX V, the United States filed a timely petition for rehearing before the CAFC sitting en banc.224 According to the United States, this means that the proceedings in that case had not concluded and that the United States had not exhausted its rights to appeal. The United States notes that in the subsequent final decision, in GPX VI, the CAFC found that USDOC was not prohibited from applying the United States CVD law to China. The United States notes that a mandate was issued for this decision in GPX VI. Further, in response to China's arguments about the CAFC's failure to vacate the decision in GPX V, the United States contends that regardless of whether a decision is formally vacated, the original decision of a United States appeals court loses any effect when an appeals court grants a rehearing. The United States also points out that the CAFC granted a motion by the United States and amended its judgment in GPX VI to state that the judgment of the CIT was vacated.225
7.151.
China responds that in GPX VI, the CAFC began its decision by reiterating its prior holding in GPX V that the United States Tariff Act did not permit the application of countervailing duties to imports from NME countries.226 China notes that the court then observed, however, that Congress had subsequently "enacted legislation to apply countervailing duty law to NME countries".227 China notes that the court explained that this new legislation "applies retroactively" to countervailing duty investigations initiated on or after 20 November 2006, including any appeals in Federal courts relating to those investigations.228 Therefore, China contends, the CAFC applied the new law retroactively to alter the outcome of the case, without casting any doubt upon its decision in GPX V as a valid interpretation of the prior law.229
7.152.
China further states that the Panel should not accept the United States' characterization of what United States law meant prior to the enactment of PL 112-99, when the CAFC has already considered those arguments and found them unpersuasive. China submits that the meaning of United States law is not a matter for the Panel to resolve through its own interpretation, but rather a fact to be discerned from the laws themselves and from the manner in which those laws have been interpreted by the United States courts. China argues that like prior panels, the Panel should take notice of the fact that "under the US legal system, the judicial branch of the government is the final authority regarding the meaning of federal laws".230 In China's view, the CAFC's decisions in GPX V and GPX VI establish the "determinative meaning"231 of United States law both before and after Congress enacted the legislation at issue in this dispute. China maintains that United States law is not synonymous with USDOC's treatment of imports from China.232
7.153.
The United States responds that the issue of whether PL 112-99 was a change or clarification of United States law has not been determined by the United States courts in the ongoing GPX litigation or other pending court challenges. The United States submits that the Panel need not make a finding on this issue because even if China's suggestions were taken at face value, its claim would still fail. The United States argues that, contrary to China's assertions, the inquiry under Article X:2 is not whether there has been some theoretical change in United States law; the correct approach is to evaluate the treatment given to imports before and after the challenged measure. According to the United States, the text of Article X:2 itself indicates that the issue is whether there has been an advance in a rate of duty "on imports". The United States therefore considers that the term "advance" must be evaluated in the context of the "imports" at issue. The United States submits that the correct "baseline" is the rate of duty on imports prior to the new measure. The United States notes that the "imports" at issue are those subject to the CVD investigations listed by China in its panel request that resulted in a CVD order. The United States submits that PL 112-99 did not increase the CVD rates already in place for the subject imports; the most that could be said of PL 112-99 is that it maintained the CVD rates at whatever rate was determined for each product prior to its enactment. The United States adds that at no point, even in the immediate aftermath of the CAFC's opinion in GPX V, were the Chinese products at issue in this dispute ever exempt from CVD rates, as the CVD orders remained in place, undisturbed.233
7.154.
The Panel begins by addressing the meaning of the phrase "measure … effecting an advance in a rate of duty or other charge on imports under an established and uniform practice". We note that the panel in EC – IT Products interpreted the first part of that phrase – "effecting an advance in a rate of duty or other charge on imports" – to mean "of a type that 'bring[s] about an 'increase' in a rate of duty [or other charge on imports]".234 We concur. We also agree with that panel that the remaining part of the phrase in question – "under an established and uniform practice" – "must relate to both 'rate of duty' and 'other charge' and that it should not be read to refer to 'other charge' only".235
7.155.
The ordinary meaning of the word "advance", when used together with the term "in a rate", is "[a] rise in amount, value, or price".236 Conceptually, the term "advance in a rate" calls for a comparison of two rates of duty or charge: a new rate on imports of a particular product and a prior, initial237 rate on imports of that product. It is only if the new rate is higher than the prior rate that an "advance", or increase, in a rate has been effected. In the light of this, it is clear to us that the term "under an established and uniform practice" serves to define the relevant prior rate that is to be used to establish whether or not an advance in a rate has been effected. It follows, then, that the relevant comparison contemplated by Article X:2 is between the new rate effected by the measure at issue and the rate that was previously applicable under an established and uniform practice.238
7.156.
Regarding the term "established", similarly to the panel in EC – IT Products, we consider that this term indicates that the practice in question has been securely in place for some time.239 As concerns the term "uniform", we note that the panel in EC – Selected Customs Matters found that the dictionary defines "uniform" as meaning "of one unchanging form, character, or kind; that is or stays the same in different places or circumstances or at different times".240 A "uniform" practice, then, is one that does not change according to the time or place of importation, or depending on the traders or governments involved.
7.157.
Our interpretation of the phrase "effecting an advance in a rate of duty or other charge on imports under an established and uniform practice" accords well with its immediate context, in particular the prohibition in Article X:2 against "enforcement" of a measure effecting an advance in a rate before its official publication. When, as Article X:2 contemplates, a rate of duty or charge is applied on imports under an established and uniform practice, such practice is liable to give rise to expectations on the part of traders and governments as to the rate of duty or charge applicable to future imports of that product. More particularly, where there is an "established and uniform" practice with regard to the applicable rate of duty or charge, economic operators are likely to rely on it when making business decisions, including production, sourcing and investment decisions. Viewed in this light, the aforementioned prohibition in Article X:2 safeguards traders and governments against the risk of basing decisions on a formerly established and uniform practice when they should no longer do so because the practice changed or was discontinued before public notice thereof was given. Indeed, the prohibition means that traders and governments can rest secure in the knowledge that no adverse "change in practice" will occur, in the sense that no new restrictive measure or practice will be "enforced", or applied, until and unless public notice is given (in the form of official publication) of the relevant measure effecting such change.241
7.158.
There is one additional issue that is presented by the term "under an established and uniform practice" and that arises in the dispute before us. The issue was raised notably by China.242 It concerns whether, for purposes of an analysis under Article X:2, a distinction should be made between, on the one hand, established and uniform practices that are lawful under the domestic law of the importing Member and, on the other hand, practices of the same type that are unlawful under the domestic law of that Member.
7.159.
As both parties have presented argument and evidence regarding whether USDOC's practice prior to enactment of Section 1 was lawful under United States law, we will proceed on the basis that it is potentially relevant, and at a minimum not inappropriate243, to address this issue for purposes of an analysis under Article X:2. It is only if we find that said practice was unlawful that we would need to determine whether or not that practice can nonetheless be relied on for purposes of our analysis under Article X:2. We will revert to this matter below, as appropriate, once we have completed our examination of USDOC's practice.
7.160.
China argues that in evaluating whether Section 1 effected an advance in a rate of duty on imports under an established and uniform USDOC practice, the relevant baseline of comparison is the prior municipal law of the United States, properly determined as a question of fact. According to China, it is by reference to the relevant United States laws themselves and the manner in which those laws have been interpreted by United States courts that we should determine whether there has been an advance in a rate of duty. The United States rejects what it terms China's "speculate and substitute" baseline, arguing that China is asking the Panel to determine whether USDOC acted in a manner that was not provided for under municipal law. The United States considers that the relevant question under Article X:2 is whether there has been a relevant change to the treatment of imports, and not whether an administering authority "properly" interpreted domestic law or "properly" acted in accordance with domestic law. In the United States' view, the Panel should not substitute its own judgment on domestic law for that of USDOC.244 The United States further contends that China's "prior municipal law" approach also "would not make sense". According to the United States, this approach would mean, for example, that if domestic law requires a particular rate of duty, but a lower rate has been mistakenly applied, then an increase in the rate to the required level would not amount to an "advance" in a rate of duty and would not be subject to the requirements of Article X:2.245
7.161.
In our view, it is neither necessary nor appropriate to follow the "prior municipal law" approach advocated by China. China is in effect asking us to put to one side, from the beginning, the practice of USDOC – followed since 2006 or at least 2007246 – of applying CVDs to imports from NME countries. China would then have us consider the published text of relevant United States laws and such judicial decisions as may exist to shed light on their meaning, and make a determination on that basis as to the rate(s) applicable under prior United States law to imports from NME countries. It appears peculiar to us, however, to use as an analytical point of departure anything other than the practice of USDOC as the primary agency administering the United States Tariff Act of 1930. This is because the text of Article X:2 directs us to compare any new, changed rates of duty with the rates of duty under a prior established and uniform practice.247
7.162.
Even assuming that our analysis could properly focus on determining what was required under United States law before Section 1 entered into force, such determination would need to be based, in keeping with Appellate Body guidance, on "the text of the relevant legislation or legal instruments, which may be supported, as appropriate, by evidence of the consistent application of such laws, the pronouncements of domestic courts on the meaning of such laws, the opinions of legal experts and the writings of recognized scholars".248 However, China has offered virtually no specific analysis of the text of Section 701(a) of the United States Tariff Act of 1930, which we understand was relied on by USDOC as the legal basis for applying CVDs to imports from any country, including NME countries, before the new Section 701(f) came into force.249 Instead China referred us to the text of Section 1, the measure that China says effected an advance in a rate of duty.250 It is not apparent to us that the analysis should focus, not on the actual text of Section 701(a) and the meaning and effect that may permissibly be given to it, but on indirect inferences that might be drawn from a subsequent enactment of Congress, Section 1 of PL 112-99.251
7.163.
Furthermore, the above-quoted statement of the Appellate Body indicates that "evidence of consistent application" of a law may be taken into account, as appropriate, in determining what that law requires. An established and uniform practice of an agency reflecting an interpretation of a law which that agency administers would undoubtedly be "evidence of consistent application" of that law. Moreover, certainly in the case of United States law, it is appropriate to take account of any practice of an administering agency.252 As the United States explained, under United States law, even when a court reviews the interpretation of a law that underlies action taken by an agency administering that law, the agency's interpretation of the law "governs in the absence of unambiguous statutory language to the contrary or unreasonable resolution of language that is ambiguous".253 This means that, within these limits, a reviewing United States court must defer to the agency's interpretation rather than impose its own interpretation.254 Consequently, it is clear that even were we to follow China's "prior municipal law" approach, it would be improper, certainly when ascertaining the meaning of United States law, to disregard from the outset an established and uniform practice by USDOC that reflects the latter's interpretation of Section 701(a). Any such practice would need to be given due weight in our factual analysis.255 This would be required to correctly establish the meaning of United States law as a matter of fact, and would not amount to "defer[ring] to the assertions by the United States about the meaning of its own municipal law".256
7.164.
As a final consideration concerning China's "prior municipal law" approach, we observe that, in accordance with Article X:3(b) of the GATT 1994257, it is the role of domestic "judicial, arbitral or administrative tribunals", and not WTO panels, to determine whether agency practices relating to customs matters are unlawful under domestic law. In contrast, under China's approach, a WTO panel might very well find that what a Member's law requires is not what an administering agency of that Member considers it requires. In so doing, a WTO panel would end up taking a position, either expressly or in effect, about the conformity of an agency practice with "prior municipal law" as determined by that panel. We do not mean to suggest that this would never be necessary or justifiable in the context of an examination of a claim based on the WTO Agreement. But we consider that panels should not needlessly venture into the domestic law arena.258 We are not persuaded that there is any need to do so in the present dispute.
7.165.
In view of our misgivings about China's "prior municipal law" approach, we adopt a different approach to establishing whether USDOC's practice was lawful before enactment of Section 1. This involves examining whether a relevant agency practice has been judicially determined to be unlawful by a domestic court, including, where an appeal is lodged, a domestic court of superior jurisdiction, such that the practice needed to be either discontinued or appropriately changed. Absent a determination of this kind, the agency practice should be regarded as presumptively lawful, unless the domestic law of the Member concerned precludes this presumption.
7.166.
This approach sits comfortably with Article X:3(b). It states that "decisions" of domestic courts must "be implemented by, and … govern the practice of, … agencies ['entrusted with administrative enforcement'] unless an appeal is lodged with a court … of superior jurisdiction within the time prescribed". Thus, once a judicial determination has been made that a particular agency practice is unlawful, the agency may no longer follow that practice. Interpreting Article X:3(b) a contrario supports the further inference that in situations where there is no such judicial determination that governs the practice of an agency, it is in principle the agency's own practice that governs, unless the domestic law of the Member concerned indicates otherwise. This interpretation is reinforced by the reference in Article X:3(b) to agencies "entrusted with administrative enforcement". Indeed, such agencies can effectively discharge their mandated function of "administrative enforcement" only if their practice is permitted to govern absent a binding judicial determination that it is unlawful. Contextual considerations therefore lend strength to the view that a relevant agency practice should be considered presumptively lawful under domestic law until and unless there is a binding domestic court decision to the contrary or domestic law precludes this presumption.259
7.167.
China appears to consider that an analytical approach other than its "prior municipal law" approach would open the door to Members evading the prohibition laid down in Article X:2. Specifically, China maintains, a Member could then act in open disregard of its previously published measures of general application, subsequently adopt and publish a new measure of general application that expressly applies to conduct occurring prior to its official publication, and avoid being found in breach of Article X:2 because the new measure is substantively the same as its pre-existing practice.260 In our view, this hypothetical scenario does not establish that the approach we have said we will follow will effectively convert the prohibition in Article X:2 into a nullity.261 The only thing that China's hypothetical scenario establishes is the significance of Article X:3(b), which enjoins Members to maintain procedures for the prompt review and, where appropriate, correction of administrative action relating to customs matters. Article X:3(b) serves precisely as a deterrent or corrective to Members taking administrative action "in open disregard" of their published measures of general publication.
7.168.
With these general considerations in mind, we now proceed to examine as a first step whether prior to the enactment of Section 1 there was an established and uniform USDOC practice concerning the rates of countervailing duty applicable to imports from NME countries. Should this be the case, we will examine as a second step whether that practice was unlawful under United States law.
7.169.
The record shows that, in November 2006, USDOC published the initiation of a CVD investigation of CFS paper from China, and that in December 2006, it published a notice of opportunity to comment on whether the CVD law "should now be applied to imports from the PRC".262 In April 2007, USDOC published an affirmative preliminary determination in the CVD investigation of CFS paper, in which it preliminarily determined that the United States CVD law could be applied to imports from China.263 In October 2007, USDOC issued an affirmative final determination in the CVD investigation concerned.264 The record further shows that between November 2006 and March 2012, USDOC initiated 33 investigations and reviews in respect of imports from China under United States CVD law, notifying China and other parties of its application of United States CVD law to China265, and that in many of those proceedings USDOC issued CVD orders.266 USDOC undertook those investigations and reviews, and issued those orders, even though, then as later, the United States designated China as an NME country. The United States contends that these facts reflect an established and uniform practice. For its part, China has not identified any instance pertaining to the relevant time-period in which USDOC determined that it lacked authority under domestic law to apply countervailing duties to imports from NME countries. In our view, these elements therefore support the view that between November 2006, or at least April 2007267, and March 2012, there was indeed a USDOC practice with regard to the application of countervailing duties to imports from China as an NME country that was securely in place (established) and that did not change over time (uniform).
7.170.
We further consider that this USDOC practice constituted a practice regarding "rates of duty" applicable to imports from China as an NME country. This is because under this practice, the rates of countervailing duty applicable to imports from China were whatever rates of countervailing duty that were warranted, in cases where countervailable subsidies could be determined, by the application of United States CVD law to such imports.268
7.171.
Having determined that prior to the enactment of Section 1 there was an established and uniform USDOC practice concerning the rates of countervailing duty applicable to imports from China as an NME country, we proceed to examine whether that practice was unlawful under United States law, as China contends. Consistent with the approach we set out above, we will thus consider whether the relevant USDOC practice269, or the interpretation of United States CVD law on which it is based, has been determined to be unlawful by a United States court, including, where an appeal was lodged, a United States court of appeals (such as the CAFC) or the United States Supreme Court, such that the practice needed to be changed. We add in this respect that the United States has confirmed that, in the absence of a United States court decision that would govern the practice of USDOC, it is USDOC's own practice or interpretation that governs under United States law.270
7.172.
The parties have extensively discussed various relevant decisions by United States courts, specifically the CIT, which is a first-instance Federal court, and the CAFC.271 Those decisions arose from USDOC actions relating to the application of United States CVD law to imports from China. Among the decisions that prompted the most discussion were the decisions in Georgetown Steel (CAFC), CFS Paper (CIT), as well as a series of decisions emanating from the so-called GPX litigation, and particularly the decisions in GPXI (CIT), II (CIT), V (CAFC)and VI (CAFC). The parties have offered divergent views as to the holdings in some of these court decisions, or their legal import. Significantly, however, neither party contends, and nothing in the record indicates, that in relation to any of the court decisions submitted to us by the parties, USDOC received an order from a United States court to either change or discontinue its practice of applying United States CVD law to imports from NME countries, or to give a different interpretation to United States CVD law. Nor has either party asserted that there are any other United States court decisions that resulted in such orders.272
7.173.
Thus, there is no evidence that up until the time of our review of China's claim the relevant USDOC practice has been determined unlawful by a United States court, either at first instance or following appeal(s), such that USDOC would have been required to change its practice or interpretation of United States CVD law.273 In fact, in the 33 investigations and reviews cited by China, USDOC proceeded on the basis, since at least April 2007, that it had the authority to apply United States CVD law to imports from NME countries. It is altogether implausible that USDOC would have been able to do so in the face of a court order to the contrary. As the United States explained, if an administrative agency did not comply with a court order, it would be subject to severe sanctions.274 China similarly referred us to a decision by a United States court of appeals which stated that "once a court has issued a legal ruling on a dispute, the Board [i.e. the National Labour Relations Board as one particular administrative agency] is bound to follow the court's judgment unless and until it is reversed by the Supreme Court".275 According to China, USDOC is similarly bound by the CAFC's decisions "not just in the specific case decided, but also in relation to other cases that raise the same issue of law".276
7.174.
Despite the fact that these court decisions did not require USDOC to change or discontinue its relevant practice, it is useful briefly to address them. We start with the 1986 CAFC decision in Georgetown Steel, in which the CAFC upheld USDOC's decision not to apply CVD measures to NME countries.277 The parties agree that this decision was a final, unappealed decision, and was governing and controlling under United States law.278 However, the scope of the CAFC holding in Georgetown Steel was the subject of disagreement in the United States throughout the period 2006-2012279, and that disagreement was not resolved prior to the enactment of Section 1 by any decision of a United States court that was final, non-appealable, and governing and controlling under United States law. Throughout this period, USDOC interpreted the CAFC decision in Georgetown Steel as affirming USDOC's discretion to determine whether to apply countervailing duties to imports from NME countries, and not as a broader holding that United States CVD law did not apply to imports from NME countries. USDOC's interpretation of Georgetown Steel was reflected in the notice of initiation280 and preliminary determination281 in the CFS Paper investigation that was initiated in 2006. Also, USDOC reiterated its interpretation of Georgetown Steel in a series of subsequent CVD determinations over the period 2006-2012.282
7.175.
China also referred to the final countervailing duty regulations issued by USDOC to conform to the results of the Uruguay Round of multilateral trade negotiations, which date from November 1998. There, USDOC referred to its past practice of "not applying the CVD law to non-market economies". It went on to say that the CAFC "upheld this practice" in Georgetown Steel, and noted that USDOC intended to continue to follow this practice.283 In our view, the countervailing duty regulations from 1998 do not detract from what we have said about the holding in Georgetown Steel. As explained, that decision has been understood by USDOC to have left it within its discretion to determine whether in a given case United States CVD law could be applied to particular imports from NME countries.
7.176.
In CFS Paper, the CIT appeared to accept USDOC's interpretation of Georgetown Steel, stating that "the Georgetown Steel court only affirmed Commerce's decision not to apply countervailing duty law to the NMEs in question in that particular case and recognized the continuing 'broad discretion' of the agency to determine whether to apply countervailing duty law to NMEs".284 Subsequently, in GPX I, the CIT stated that it was "not clear" whether Georgetown Steel "was deferring to a determination of Commerce based on ambiguity in the statute or whether the Court held that there was only one legally valid interpretation of the statute"; the CIT further stated that "in a case of this type of ambiguity, that is, when we are not sure what the court meant", United States Supreme Court precedent established that "we are to read the case as deciding that the agency determination at issue did not conflict with the statute, not that a new agency reading, not before the court at the time, must be rejected".285 Furthermore, in GPX II, the CIT recalled that "[t]he court previously noted that the leading case upholding Commerce's decision not to apply CVD remedies to imports from an NME country, Georgetown Steel Corp. v. United States, 801 F.2d 1308 (Fed.Cir.1986), is ambiguous".286
7.177.
We are not persuaded that the decision in Georgetown Steel demonstrates that USDOC's practice, since at least April 2007, of applying United States CVD law to imports from China had, in effect, been judicially determined to be unlawful under United States law well before USDOC developed the practice. USDOC clearly considered its practice to be consistent with the Georgetown Steel decision. Also, the CIT, being a first-instance court required to follow the CAFC's decisions, concluded on at least three occasions that the holding in Georgetown Steel was at the very least "ambiguous". Finally, at the time that Section 1 was enacted, there was no final court decision determining that USDOC's interpretation of Georgetown Steel was impermissible. In these circumstances, we have no basis upon which to find that USDOC's interpretation of Georgetown Steel was incorrect as a matter of United States law.
7.178.
China also finds significant the 2011 CAFC decision in GPX V.287 There, the CAFC held that, contrary to USDOC's practice, it was not in accordance with United States law for USDOC to apply United States CVD law to imports from NME countries, including China.288 However, the CAFC issued no "mandate" in that proceeding.289 The reason why the CAFC did not issue a mandate is that following a request by the United States Government, the CAFC granted a rehearing.290 When Section 1 was enacted, the rehearing of the case was still pending. A mandate was finally issued in the GPX VI decision.291 Relying on United States Supreme Court precedent292, the CAFC in GPX VI based its decision on the new Section 1, even though the case was still pending on appeal at the time Section 1 entered into force.
7.179.
In the United States' view, the fact that the CAFC issued no mandate means that the decision never became final293 and was of no binding legal effect.294 The United States considers that the decision in GPX V has therefore no legal status under United States law.295 The legal expert opinion submitted by China accepts that the decision in GPX V was not final during the subsequent pendency period for rehearing en banc, and that it did not conclusively determine the rights and obligations of the parties in that case.296 The same opinion also refers to two United States court of appeals decisions whose correctness it describes as "reasonably disputable", however. The legal expert opinion argues that in view of these court of appeals decisions and the fact that the decision in GPX V was not vacated297, a United States court could "very plausibly regard" the decision in GPX V as having established and continuing to establish that Section 701(a) of the United States Tariff Act of 1930, prior to the enactment of PL 112-99, did not apply to imports from NME countries.298 Ultimately, though, the opinion seeks to advance a "much narrower conclusion", which is that the CAFC in GPX VI – the decision that the CAFC issued after granting and conducting a rehearing of the GPX V case – "permissibly relied on the analysis in GPX V to help it establish the prior state of the law" for purposes of determining whether Section 1 improperly interfered with the judicial function.299
7.180.
For purposes of our analysis, we need not determine whether under United States law a United States court could justifiably rely on the decision in GPX V to establish what the law was prior to enactment of Section 1.300 What matters is that USDOC was not legally required to adjust its relevant practice as a consequence of the CAFC decision in GPX V, be it in the GPX case itself or any other case. As indicated, the CAFC did not issue a mandate in GPX V and its decision therefore never became final. Moreover, the decision in GPX V did not result in any order to USDOC requiring it to adjust its practice or follow the CAFC's interpretation of United States CVD law in GPX V.301 Consequently, the decision in GPX V in our view does not assist China in demonstrating that USDOC's practice has been judicially determined to be unlawful under United States law, such that USDOC had to change its practice of applying United States CVD law to imports from China.
7.181.
Given that at the time of our review we have been made aware of no final court decision determining that USDOC's relevant practice or interpretation was unlawful and requiring USDOC to change its relevant practice, there is, under our analytical approach, neither a need nor a justification for speculating about what the CAFC on rehearing the case would have concluded regarding the lawfulness of USDOC's relevant practice, if Section 1 had not been enacted.302 Nor will we try to anticipate the conclusion of ongoing judicial proceedings in the United States that may have a bearing on this question.303
7.182.
We observe that the panel in US – Shrimp (Article 21.5 – Malaysia) was confronted with a similar situation. In that dispute, the question was whether the panel should have taken account of the fact that a United States CIT decision, of which it had taken note in its findings, was under appeal at the time of the panel's review. The Appellate Body stated in this respect that:

It would have been an exercise in speculation on the part of the Panel to predict either when or how that case may be concluded, or to assume that injunctive relief ultimately would be granted and that the United States Court of Appeals or the Supreme Court of the United States eventually would compel the Department of State to modify the Revised Guidelines. The Panel was correct not to indulge in such speculation, which would have been contrary to the duty of the Panel, under Article 11 of the DSU, to make "an objective assessment of the matter … including an objective assessment of the facts of the case".304

7.183.
Consistent with this guidance, our examination of the question of the lawfulness of the relevant USDOC practice takes account of the status of United States law in respect of this question, up until the time of our review of China's claim.305
7.184.
The parties' submissions go into some detail about whether Section 1 simply confirmed, and made more explicit, what United States CVD law already provided (if correctly interpreted), or whether it added something that United States CVD law did not already contain.306 The former view is supported by the United States; the latter view by China. In our view, it is not necessary to address, let alone to try to resolve, this issue which is still being litigated before United States courts.307 Even assuming that Section 1 added something to United States CVD law that it did not already contain308, and that it could be inferred from this that USDOC's relevant practice rested on an incorrect interpretation of United States CVD law as it stood at the time, this would not detract from the fact that, up until our review of China's claim, USDOC was not ordered by a United States court to modify or discontinue its relevant practice or interpretation.
7.185.
In the light of the foregoing, it is clear to us that we have no basis for concluding that USDOC's relevant practice was unlawful under United States law, because no United States court ordered USDOC to cease applying United States CVD law as it stood at the time to imports from China. To the contrary, the evidence before us suggests that this practice was presumptively lawful under United States law, as USDOC's interpretation of United States CVD law governed in the absence of a binding judicial determination indicating otherwise. This finding obviates the need for further analysis of whether we could rely on that practice in our Article X:2 inquiry if a United States court had determined it to be unlawful.
7.186.
Based on the evidence before us, we thus come to the conclusion that between November 2006, or at least April 2007, and March 2012 there was an established and uniform practice by USDOC regarding "rates of duty" applicable to imports from China as an NME country, and that there is no basis on which to find that, under United States law as it stood at the time, USDOC could not lawfully develop and maintain that practice of applying rates of countervailing duty to imports from China.
7.187.
The issue we turn to examine next is whether Section 1 effected an "advance in a rate of duty or charge on imports under an established and uniform practice".309 We recall at the outset our view that Section 1 relates to countervailing duties and that the term "duty" in Article X:2 covers countervailing duties. We further recall our finding above310, in the context of our analysis of China's claim under Article X:1, that Section 1 pertains to "rates of duty". Accordingly, we must determine whether Section 1 has brought about ("effected") an increase ("advance") in rates of countervailing duty on imports from China as an NME country, relative to the rates of countervailing duty applicable to such imports under USDOC's prior established and uniform practice.
7.188.
To reiterate, the new Section 701(f), which is added by Section 1(a) of PL 112-99, provides that, except in cases where countervailable subsidies cannot be identified or measured, countervailing duties must be imposed on imports from NME countries. Section 1(b) then provides that Section 701(f) applies to (i) all USDOC CVD proceedings initiated on or after 20 November 2006, (ii) all resulting USCBP actions, and (iii) all Federal court proceedings relating to (i) or (ii). This means that as a consequence of Section 1(a), and the new Section 701(f) which it adds, USDOC as from 13 March 2012 was required to impose, in all CVD proceedings involving NME countries that were initiated between 20 November 2006 and 13 March 2012, countervailing duties, if any, at the rates that were warranted by the application of (pre-existing) United States countervailing duty provisions to the imports at issue in each proceeding. It also means that in respect of any duties imposed at rates determined by USDOC, USCBP was required to take any resulting actions, and that Federal courts likewise were required to uphold any rates of duty lawfully imposed under United States countervailing duty provisions by USDOC in the context of relevant proceedings.
7.189.
Having addressed the content of Section 1, we can proceed to compare the new rates of duty on imports of NME products resulting from Section 1 with the prior rates applicable under USDOC's established and uniform practice. In undertaking this comparison, it is important to remember that the United States countervailing duty provisions that the new Section 701(f) requires to be applied are the exact same United States countervailing duty provisions that USDOC applied to imports from China before the entry into force of Section 1. Hence, in respect of the relevant CVD proceedings, the new rates of countervailing duty applicable to imports from China as a consequence of Section 1, like the prior rates applicable under USDOC's established and uniform practice, were whatever rates of countervailing duty that were warranted by the application of United States countervailing duty provisions to such imports. Since the facts of the underlying CVD proceedings initiated between November 2006 and 13 March 2012 were not affected by the entry into force of Section 1, USDOC was neither required nor authorized by Section 1 to impose countervailing duties at rates that differed from the rates that USDOC established in these proceedings before Section 1 entered into force. Indeed, neither party suggested that following the entry into force of Section 1, USDOC proceeded to change any of the rates established in the context of the relevant CVD proceedings. It follows from these considerations that, in respect of the relevant CVD proceedings, Section 1 did not bring about an increase, and thus did not effect an advance, in rates of countervailing duty on imports from China as an NME country.
7.190.
Our finding that Section 1 did not effect an advance in a rate of duty is based on the fact that this provision maintained the same rates of duty that were already applied, pursuant to USDOC's established and uniform practice, prior to the enactment of Section 1. Our finding is the same irrespective of whether or not we conduct an assessment of the lawfulness of that practice under United States law, because there is no evidence in the record demonstrating that this practice was found to be unlawful, such that the practice needed to be discontinued or changed before Section 1 was enacted.
7.191.
For all the above reasons, we conclude that China has not established that Section 1 is a provision "effecting an advance in a rate of duty or other charge on imports under an established and uniform practice".

7.5.2.2.2 Whether Section 1 imposes a new or more burdensome requirement, restriction, or prohibition

7.192.
As the Panel does not agree with China that Section 1 is a provision "effecting an advance in a rate of duty or other charge on imports under an established and uniform practice", it is necessary to examine whether Section 1 nevertheless falls within the scope of Article X:2 because it "imposes a new or more burdensome requirement, restriction or prohibition on imports". China considers that it does; the United States considers that it does not.
7.193.
China contends that PL 112-99 "impos[es] a new or more burdensome requirement, restriction or prohibition on imports" insofar as it makes certain categories of imports subject to the initiation and conduct of countervailing duty investigations, as well as to the potential imposition of countervailing duties. China notes that Section 1 of PL 112-99 amends section 701 of the United States Tariff Act to add a new subsection (f), the express purpose of which is "to apply the countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries". According to China, an act that "applies" countervailing duties to a particular class of imports is, without question, one that "impos[es] a new or more burdensome requirement, restriction or prohibition on imports". In China's view, being subject to CVD investigations and procedures, as well as the actual imposition of countervailing duties, is a "requirement" or "restriction" on imports.311
7.194.
China further submits that this requirement or restriction is "new" and "more burdensome". According to China, this is evident not only from the text of the statute itself, but from the fact that this provision was enacted in direct response to the CAFC's holding in GPX V. China argues that the new subsection 701(f) that the statute creates was plainly intended to establish a new rule of law in response to the CAFC's decision that existing United States law did not permit the application of countervailing duties to imports from NME countries. China submits that it is this new rule of law that has been applied, and is being applied, to maintain the countervailing duty orders issued by Commerce prior to the enactment of this legislation. China therefore considers that Section 701(f) "impos[es] a new or more burdensome requirement, restriction or prohibition on imports", and that it is this new provision of law that provides the legal basis for the imposition and continued maintenance of countervailing duty orders on products from China. According to China, going from a situation in which imports were not subject to countervailing duty procedures to a situation in which they are subject to countervailing duty procedures is, without question, "new" and "more burdensome".312
7.195.
The United States observes that requirements, restrictions and prohibitions are different types of measures, and that China fails to explain which of these three types China believes apply to PL 112-99, and how PL 112-99 imposes a requirement, restriction, or prohibition. In the United States' view, PL 112-99 does not impose any requirement on imports subject to the relevant CVD investigations involving imports from China. The United States argues that CVD laws generally are not "restrictions" on imports; they establish the framework for the application, if any, of countervailing duties. The United States further argues that a CVD proceeding is not a "requirement" on imports, as it does not impose requirements or conditions on the importation of goods. The United States points out that in a CVD proceeding, all of the reviewed goods have already entered the importing country. The United States also considers, more specifically, that Section 1 of PL 112-99 is not a "restriction" on the imports subject to the CVD proceedings at issue. The United States submits that CVD laws do not restrict imports, but establish the framework under which any alleged subsidies might be investigated and any resulting countervailing duties might be imposed.313
7.196.
The United States considers, in addition, that China cannot show that PL 112-99 is "new" or "more burdensome" as compared to the situation faced by imports from China prior to the adoption of the measure at issue. The United States notes that the term "new" is defined as "not existing before" or "existing for the first time"314, and that the term "more" is defined as "in a greater degree" or "to a greater extent"315. Thus, the United States maintains, to fall within the scope of Article X:2, imports from China must face a requirement, restriction or prohibition that did not previously exist prior to the enactment of PL 112-99, or face a burden that is of a greater degree than prior to PL 112-99.316
7.197.
In the United States' view, Section 1 of PL 112-99 was neither a change in the law, nor did it result in any change in the treatment of imports from China. Rather, the legislation reaffirmed USDOC's interpretation of existing law for the purposes of resolving confusion in ongoing litigation. The United States observes that prior to the law's enactment, USDOC acted pursuant to its reasonable interpretation of the United States Tariff Act of 1930 to apply the United States CVD law to China when it could identify a countervailable subsidy in China, and so imports from China were already subject to the United States CVD law. Thus, according to the United States, PL 112-99 did not impose any condition that had not existed before, nor did it impose a greater degree of burden on such imports. The United States also notes that none of the CVD proceedings cited in China's panel request have been disturbed by PL 112-99. The United States submits that PL 112-99 instead simply maintained the status quo for USDOC's existing approach and the existing CVD orders. The United States submits that, for these reasons, Section 1 does not impose any "new or more burdensome" requirements, restrictions or prohibitions, but rather maintains USDOC's existing approach.317
7.198.
The Panel notes that Section 1 falls within the scope of Article X:2 only if two distinct conditions are met: (i) Section 1 must impose a "requirement" or "restriction"318 on "imports" and (ii) such requirement or restriction as it imposes must be "new" or "more burdensome". For purposes of assessing China's Article X:2 claim, it is convenient to begin our review with the second condition.
7.199.
China argues that Section 1 subjects imports from NME countries to CVD investigations and procedures and to the actual imposition of CVDs. According to China, Section 1 therefore imposes a "requirement" or "restriction" on imports. To examine whether the second condition mentioned in the preceding paragraph is met, we will assume for the sake of argument that China is correct in its view that Section 1 imposes either a "requirement" or a "restriction" on "imports" within the meaning of Article X:2 because it subjects imports from NME countries to CVD investigations and procedures and to the imposition of CVDs.
7.200.
Turning to the issue whether Section 1 imposes a "new" or "more burdensome" requirement, we note the dictionary meaning of "new", which is "not existing before" or "existing for the first time", and also that of "more", which is "in a greater degree" or "to a greater extent".319 The term "burdensome" is defined as "[o]f the nature of a burden, oppressive, wearisome".320 Taken together, these definitions indicate that a new or more burdensome requirement or restriction on imports is one that has not previously been imposed ("new") or one that is of the nature of a burden in a greater degree, or is onerous to a greater extent ("more burdensome"). The comparative form "more burdensome" implies that the measure imposing the requirement or restriction at issue must be examined with reference to a pre-existing requirement or restriction.
7.201.
Like the parties, we consider that the analytical approach used to determine whether Section 1 imposes a "new" or "more burdensome" requirement or restriction should be the same as is used to determine whether Section 1 effects an advance in a rate of duty under an established and uniform practice. Otherwise, Members' obligations under Article X:2 with regard to enforcement of tax measures321 and enforcement of regulatory measures could be different in scope, because, for instance, a tax measure might fall within the scope of Article X:2 when a comparable regulatory measure would not.
7.202.
China submits that the Panel should follow its suggested "prior municipal law" approach.322 We have explained above when examining whether Section 1 effected an advance in a rate of duty under an established and uniform practice why we are not persuaded by China's approach. For essentially the same reasons, it is in our view neither necessary nor appropriate to follow China's approach to conduct a proper analysis of whether a "new" or "more burdensome" requirement or restriction has been imposed.323
7.203.
Thus, and recalling also the reference to an established and uniform practice in the part of Article X:2 that relates to advances in rates of duty, we do not consider it appropriate, in the context of an analysis involving United States law, to pay no regard to a publicly known practice of agencies charged with administering a relevant requirement or restriction on imports. Indeed, Article X:2 does not indicate that account may be taken only of a relevant pre-existing requirement or restriction that is set out in explicit terms in a published measure of general application, but not of a requirement or restriction that results from, and reflects, an interpretation of such a measure adopted and publicly communicated by an administering agency. Furthermore, Article X:2 is concerned, in relevant part, not with new or more burdensome requirements or restrictions per se, but with the "enforcement", or application, of the measure imposing them. In the light of this, it would be counterintuitive to proceed on the basis that it is irrelevant for analytical purposes how a measure containing a relevant pre-existing requirement or restriction has actually been applied. We agree that traders and governments develop expectations regarding any applicable requirements or restrictions on imports by taking into account a Member's published measures.324 But we are unable to accept any notion that they develop their expectations without regard for the actual practice that is publicly known to have been adopted under those published measures by administering agencies such as USDOC.325 Finally, as regards the issue, raised by China, whether USDOC lawfully applied a particular requirement or restriction that it considered was imposed under Section 701(a) before the enactment of Section 1, we once again proceed on the basis that it is potentially relevant and not inappropriate to address this issue. We also follow the same approach to establishing whether USDOC's practice prior to Section 1 was lawful under United States law.326
7.204.
We recall our earlier finding that between November 2006, or at least April 2007, and March 2012, USDOC applied United States CVD law as it stood at the time, and notably Section 701(a), to imports from China as an NME country, and it imposed CVDs on imports from China in various proceedings.327 This indicates that as from at least 2007 and on the basis of the published United States CVD law then in force, USDOC subjected imports from China as an NME country to CVD proceedings and imposed CVD duties on such imports. To the extent that it can be properly said (and we make no finding in this regard) that in doing so, USDOC subjected imports from China to a "requirement" or "restriction", as China asserts, it is the same "requirement" or "restriction" that China says was subsequently imposed by the new Section 701(f) that Section 1 added to the United States Tariff Act of 1930. There is nothing surprising about this conclusion. Both before and following the enactment of Section 1, USDOC applied United States CVD law to imports from China as an NME country, and it did so pursuant to the same substantive and procedural provisions of United States CVD law, namely the "countervailing duty provisions" of the United States Tariff Act of 1930 to which the heading of Section 1 and its preamble refer.328
7.205.
As concerns the issue whether USDOC's practice was lawful under United States law, there is no need to repeat here what we have said above regarding the same issue.329 It is sufficient to recall what we have concluded, which is that the evidence before us suggests that USDOC's relevant practice was presumptively lawful under United States law.330 Thus, we need not examine whether we could rely for purposes of our Article X:2 analysis on a "requirement" or "restriction" if a United States court had determined its application by USDOC to be unlawful.
7.206.
In the light of the foregoing, we consider that Section 701(f) does not impose a "requirement" or "restriction" on imports from China as an NME country that was not previously imposed on such imports by USDOC under its prior practice, since at least April 2007, of applying United States CVD law to imports from China. It follows that Section 701(f), and by extension Section 1, does not impose any "new" or "more burdensome" "requirement" or "restriction" on imports from China.
7.207.
Having thus found that China has not demonstrated that Section 1 imposes a "new" or "more burdensome" requirement or restriction even if we accept China's contention regarding why and how Section 1 imposes a "requirement" or "restriction", it is unnecessary to go on and determine whether China is in fact correct in arguing that Section 1 imposes a "requirement" or "restriction" within the meaning of Article X:2. It is clear already at this juncture that Section 1 does not fall within the category of measures of general application "imposing a new or more burdensome requirement [or] restriction".
7.208.
For all these reasons, we conclude that China has not established that Section 1 is a provision "imposing a new or more burdensome requirement, restriction or prohibition on imports".

7.5.2.3 Conclusion

7.209.
Having regard to the foregoing, the Panel concludes that Section 1 does not meet the second element of its Article X:2 analysis. Although Section 1 contains a measure of general application taken by the United States, we are unable to agree with China that Section 1 falls within the scope of Article X:2. This is because we are not persuaded that Section 1 contains a provision that (i) effects an advance in a rate of duty or other charge on imports under an established and uniform practice, or (ii) imposes a new or more burdensome requirement, restriction or prohibition on imports.

7.5.3 Overall conclusion

7.210.
In sum, the Panel has determined the following:

a. Section 1 has been "enforced" before its official publication through Section 1(b) and relevant determinations or actions made or taken by the United States between 20 November 2006 and 13 March 2012 in respect of imports from China;

b. Section 1 is part of a United States law, and hence a "measure" taken by the United States, and contains a provision that is of "general application"; but

c. Section 1 does not effect an "advance" in a rate of duty or other charge on imports under an established and uniform practice, nor does it impose a requirement, restriction, or prohibition, on imports that is "new or more burdensome".

7.211.
Whereas we thus agree with China that Section 1 has been enforced before its official publication, we are ultimately unable to agree with China that the prohibition laid down in Article X:2 against pre-publication enforcement covers Section 1. We therefore come to the overall conclusion that China has failed to establish its claim that the United States has acted inconsistently with Article X:2 in respect of Section 1.

7.5.4 Dissenting opinion

7.212.
I agree with my fellow panelists that Section 1 of PL 112-99 is a measure of "general application" (as explained in subsection 7.5.2.1 above), and that it was "enforced" before it was officially published (as explained in subsection 7.5.1). However, my understanding of whether Section 1 of PL 112-99 "effect[s] an advance in a rate of duty or other charge on imports under an established and uniform practice, or impos[es] a new or more burdensome requirement, restriction or prohibition on imports" differs from that of the majority opinion of my fellow panelists. I therefore do not agree with the findings and conclusions in subsections 7.5.2.2.1, 7.5.2.2.2, 7.5.2.3 and 7.5.3 (specifically the conclusions set out in paragraph 7,210c)).
7.213.
My analysis starts with ascertaining the meaning of "effecting". In this regard I note that dictionaries define this term as "to bring about, produce as a result, cause, accomplish".331 I, like the majority opinion, also agree with the panel in EC – IT Products which interpreted the first part of that phrase – "effecting an advance in a rate of duty or other charge on imports" – to mean "of a type that 'bring[s] about an 'increase' in a rate of duty [or other charge on imports]".332 Hence, we have to examine whether Section 1 of PL 112-99 caused or brought about an increase in a rate of duty or other charge on imports. We will also have to examine whether it imposed "a new or more burdensome requirement, restriction or prohibition on imports."
7.214.
Such an examination must start with the legislative measure at issue, namely PL 112-99. In this regard, the Appellate Body has instructed panels examining the meaning of domestic law implicated in a WTO dispute to start with "the text of the relevant legislation or legal instruments", and for further support, in appropriate cases, to examine "evidence of the consistent application of such laws, the pronouncements of domestic courts on the meaning of such laws, the opinions of legal experts and the writings of recognized scholars."333 In the specific context of the comparison required by Article X:2, this entails a comparison of the measure at issue with the prior municipal law (if any) that it replaces, amends, or otherwise supersedes. In this case, the relevant comparison is between the United States Tariff Act as it existed prior to the enactment of Section 1 of PL 112-99 and the United States Tariff Act as it existed following the enactment and official publication of this new provision.
7.215.
PL 112-99 is entitled "an act to applythe countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries". Section 1 of the law, which is at issue here, is entitled "Application of Countervailing Duty Provisions to Non-Market Economy Countries". The section adds a subsection (f) to section 701 of the United States Tariff Act of 1930, providing that, except for a certain exception, "the merchandise on which countervailing duties shall be imposed under subsection (a) includes a class or kind of merchandise imported, or sold (or likely to be sold) for importation, into the United States from a nonmarket economy country."334 This is a new provision that did not previously exist in the United States Tariff Act of 1930. This legislation from 2012 then goes on and provides in subsection 1(b) that this new provision shall apply to all CVD proceedings "initiated on or after November 26, 2006."
7.216.
It is therefore readily apparent from the text of the legislation itself that what Section 1 of PL 112-99 did was "to apply the countervailing duty provisions of the US Tariff Act of 1930 to nonmarket economy countries" and to do so in relation to events that occurred before its official publication. It is also readily apparent from the text of the law that prior to its enactment, the United States Tariff Act of 1930 did not apply to nonmarket economy countries. Otherwise, what was the purpose of the legislation if those provisions already "applied" to imports from those countries? Section 1 of PL 112-99 thus effects an "advance in duties", namely an increase in countervailing duties that can be applied – and that were applied in practice – to imports from NMEs, in that previously no such duties could be applied (an effective rate of zero) and following the new law CVDs can and must be applied at the rates duly determined by USDOC. I note in this regard how the United States itself characterized the effect of this law in a Letter Brief in Response to Court Order dated March 23, 2012: "the new statute requires that Commerce apply CVDs to imports from NMEs, including China".335 And this new amendment to the law was made effective from a date preceding the official publication of the amendment by several years.
7.217.
PL 112-99 also imposed "a new or more burdensome requirement …. on imports". Being subject to CVD investigations is definitely a "requirement" that is imposed on imports. It is well known to anybody involved in this field that importers and exporters of the products under a CVD investigation are required to respond to lengthy questionnaires sent to them by the administering authorities of the importing country and to present documents and other relevant evidence requested by such authorities.336 If they refuse access to such documents, they run the risk that the administering authorities will base their determinations "on the basis of the facts available".337 Such importers and exporters will usually need to retain legal and professional counsel to represent them in the CVD proceedings, to prepare responses and to appear in the various hearings scheduled by the authorities, all of which obviously imposes a significant financial burden. This requirement is "more burdensome" than being exempt from CVD proceedings, and it is also "new" to the extent that it did not exist in the absence of PL 112-99. Having said that, however, one should stress that under Article X:2 the requirement needs to be either "new" or "more burdensome", and does not have to fulfill both of these conditions in order to fall under the provision.
7.218.
The new subsection 701(f)(2) of the United States Tariff Act of 1930 created by Section 1(a)(2) of PL 112-99 establishes an "exception" from the imposition of countervailing duties for imports from countries in respect of which USDOC is "unable to identify and measure subsidies … because the economy of that country is essentially comprised of a single entity". No such exception previously existed anywhere in the United States Tariff Act of 1930. If the general countervailing duty provisions of the United States Tariff Act of 1930, as set forth in Section 701(a), previously applied to imports from nonmarket economy countries, then this new exception would have been the only substantive change that was required. In that case, the United States Congress could simply have enacted the exception created by Section 1(a)(2) and codified it under Section 701(a). Instead, the United States Congress enacted a new subsection, 701(f), aimed at applying the countervailing duty provisions of the United States Tariff Act of 1930 to imports from NME countries, and it codified the exception in this new subsection. This reconfirms the above conclusion that the application of CVDs to imports from NME countries is an entirely new subject under the United States Tariff Act of 1930. The new Section 701(f) establishes an affirmative rule (the duty to apply countervailing duties to imports from NMEs) and an exception to that rule, all in its own subsection.
7.219.
In an attempt to rebut this conclusion, the United States argues that Section 1 of PL 112‑99 was nothing more than a "clarification" of the United States Tariff Act of 1930 as it always existed. It was a law that "confirmed" that USDOC always had the legal authority to apply the countervailing duty provisions of the United States Tariff Act of 1930 to imports from NMEs.338 China disputes this assertion and argues that there is no basis whatsoever in the text of the legislation itself or in any of the surrounding circumstances to support this assertion.
7.220.
It is questionable whether the United States assertion regarding the clarifying nature of PL 112-99 is capable of changing the conclusion that this is legislation "effecting an advance in a rate of duty". Even assuming, arguendo, that PL 112-99 only clarified the law, it did have the effect – in the words of the United States – of "superseding" the decision of the Federal Circuit, in GPX V "by amending … the CVD statute such that it expressly, and retroactively, requires Commerce to impose CVDs to NME imports".339 Since the CAFC, in GPX V had found that USDOC did not have the authority to impose CVDs on NME countries, and if this ruling had become binding – again in the words of the United States – "Commerce [would have been] required to revoke all CVD orders and terminate all CVD proceedings involving non-market economy countries"340, the new legislation clearly had an effect on these CVD orders. Its effect was to enable the continued imposition of the CVD duties that had originally been imposed before the official publication of the law, including on products imported before such publication. Furthermore, even according to the United States' position, while USDOC had the authority to impose CVDs on products from NME countries, they certainly were not required to do so.341 That situation was changed by PL 112-99 which imposed an obligation to do so ("countervailing duties shall be imposed") and applied it retroactively to proceedings initiated on or after 20 November 2006.
7.221.
In any case, I do not find the United States' assertion about the clarifying nature of PL 112-99 persuasive. I reach this conclusion after having followed the Appellate Body's instruction to examine "evidence of the consistent application of [United States CVD laws], the pronouncements of domestic courts on the meaning of such laws, the opinions of legal experts and the writings of recognized scholars."342
7.222.
Starting with evidence of the consistent application of United States CVD laws, I note the pronouncement of USDOC itself in its countervailing duty regulations, as published in the Federal Register in 1998, about its practice:

In this regard, it is important to note here our practice of not applying the CVD law to non-market economies. The CAFC upheld this practice in Georgetown Steel Corp. v. United States, 801 F.2d 1308 (Fed. Cir. 1986). See also GIA at 37261. We intend to continue to follow this practice. Where the Department determines that a change in status from non-market to market is warranted, subsidies bestowed by that country after the change in status would become subject to the CVD law.343

If Section 1 of PL 112-99 was merely a clarification of existing law, which did not change United States law or make it stricter towards imports from NMEs, this would mean that USDOC was always under an obligation to impose CVDs on subsidized goods from NMEs. That this was not the case can be seen clearly from the above pronouncement by USDOC. Clearly, if USDOC was under such a legal obligation it could not have followed a "practice of not applying the CVD law to non-market economies."

7.223.
I now proceed to examine "the pronouncements of domestic courts on the meaning of [United States CVD] laws", prior to the passing of PL 112-99. I start my examination with the judgment of the CAFC, in Georgetown Steel Corp. v. United States.344 In this case, the appellant challenged USDOC's position that it was not authorized under United States law to impose CVDs on imports from NME countries because the relevant section in the United States Tariff Act of 1930 did not apply to such imports. As explained by the court in its opening statement:

The substantive issue in this case, here on appeal from the Court of International Trade, is whether the countervailing duty provisions in section 303 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1303 (1982), apply to alleged subsidies granted by countries with so-called nonmarket economies for goods exported to the United States. The International Trade Administration of the Department of Commerce (Administration) held that section 303 does not apply to nonmarket economies.345

It is hence clear that USDOC itself did not consider itself at the time authorized to apply CVDs on NMEs. This is so, because if the countervailing duty provisions of United States law, as it then was, did not apply to NMEs, that means that USDOC had no legal authority to impose such duties on NMEs. The court then went on to define the legal question that it had to rule on:

In other words, we must determine, as best we can, whether when Congress enacted the countervailing duty law in 1897 it would have applied the statute to nonmarket economies, if they then had existed.346

The court reached the conclusion that Congress would not have done so, and in the many years that passed since 1897 never wanted to do so (i.e., apply CVD law to NMEs):

Further support for our conclusion is furnished by the more recent actions of Congress in dealing with the problem of exports by nonmarket economies through other statutory provisions. Those statutes indicate that Congress intended that any selling by nonmarket economies at unreasonably low prices should be dealt with under the antidumping law. There is no indication in any of those statutes, or their legislative history, that Congress intended or understood that the countervailing duty law also would apply.347

The court then discussed the 1974 amendments to the CVD laws and noted:

There is no indication, however, that in doing so Congress intended to change the scope of that law or believed that it covered nonmarket economies. If Congress had so intended or believed, it is curious that the legislature gave no such indication, particularly in view of the specific changes it made in the antidumping law to deal with the problem.348

The court concluded its analysis with the following statement:

Congress … has decided that the proper method for protecting the American market against selling by nonmarket economies at unreasonably low prices is through the antidumping law. This law is designed to protect domestic industry from injury resulting from the sale in the United States of foreign merchandise that is priced below its fair value, and provides a remedy therefor in 19 U.S.C. § 1677b(c). If that remedy is inadequate to protect American industry from such foreign competition — a question we could not possibly answer — it is up to Congress to provide any additional remedies it deems appropriate.349

This judgment is a final and binding decision, and as can be seen by the pronouncement of USDOC published in the Federal Register,350 USDOC itself saw it as such and based its practice of not applying CVDs on imports from NMEs on this judgment. Indeed, the parties agree that this decision was a final, unappealed decision, and was governing and controlling under United States law.351

7.224.
Several years later, the CAFC, was again seized with the same issue, this time in a challenge against USDOC, which had decided to change its practice and to conduct CVD proceedings against imports from China, notwithstanding that the United States continued to designate China as an NME country. USDOC did so, starting from 2006, although the relevant CVD legislation had not been changed yet by Congress. In its judgment in GPX V352from 2011, the Court of Appeals confirmed its previous judgment in Georgetown Steel and held:

[W]e find that when amending and reenacting countervailing duty law in 1988 and 1994, Congress legislatively ratified earlier consistent administrative and judicial interpretations that government payments cannot be characterized as "subsidies" in a non-market economy context, and thus that countervailing duty law does not apply to NME countries.353

It went on to hold:

We thus find that in amending and re-enacting the trade laws in 1988 and 1994, Congress adopted the position that countervailing duty law does not apply to NME countries. Although Commerce has wide discretion in administering countervailing duty and antidumping law, it cannot exercise this discretion contrary to congressional intent. We confirm the holding of the Trade Court that countervailing duties cannot be applied to goods from NME countries.

Hence, the CAFC rejected the argument by the United States administration that the United States Tariff Act permitted USDOC to impose countervailing duties on imports from nonmarket economy countries if it was "possible to identify a subsidy" in such countries. The court concluded by stating that if USDOC wished to impose countervailing duties on imports from NME countries, "the appropriate approach is to seek legislative change".354 It was on this background that the United States authorities did in fact turn to Congress and requested it to adopt PL 112-99, which as noted above is entitled "an act to applythe countervailing duty provisions of the Tariff Act of 1930 to nonmarket economy countries".

7.225.
It should be noted that these are two judgments by the most superior courts in the United States ever to examine this issue. They have both ruled loud and clear that prior to the passing of PL 112-99, United States countervailing duty law did not apply to imports from NMEs. Also the CIT had previously ruled in several decisions that USDOC could not impose CVDs on products from China.355 We can therefore safely conclude that PL 112-99 did not "clarify" an existing legal situation, but rather changed the law from one under which countervailing duties could not be imposed on imports from NMEs to one where USDOC not only could, but also is obliged to do so. This conclusion is also confirmed by the opinion of the legal expert Prof. Richard Fallon.356
7.226.
The majority opinion attributes significant weight to the fact that the Court of Appeals' decision in GPX V never became a final binding judgment and that "USDOC [never] received an order from a United States court to either change or discontinue its practice of applying United States CVD law to imports from NME countries, or to give a different interpretation to United States CVD law.357 In my opinion, whether the GPX V decision became final or not is immaterial. It was never overturned by a higher United States court. Rather, it was prevented from becoming final through the actions of USDOC, which heeded the advice of the court "to seek legislative change". To claim that no change has occurred - after "a legislative change" was sought and effected - is a contradiction in terms. The significance of the GPX V decision is that it provides us with an authoritative interpretation of what United States law was prior to the enactment of PL 112-99. The United States agrees that the Georgetown Steel decision by the CAFC was a final and binding judgment, but argues that this decision is ambiguous and can be interpreted to support USDOC's practice between 2006 and 2012. But who could be more authorized to interpret the meaning of this judgment by the CAFC than the CAFC itself? In fact, the United States has not presented us with any other United States court decision, especially not by a United States court at a similar or higher level that upheld USDOC's practice of applying CVDs on products from China before the enactment of PL 112-99. Not even in the expert opinion submitted by the United States, written by Prof. John Jeffries358, can one find any support to the clarification theory advanced by the United States. The facts of this case therefore lead to the inevitable conclusion that it was PL 112-99 that enabled the imposition of CVDs on products from China.
7.227.
I have thus concluded that the effect of PL 112-99 was to authorize and obligate the imposition of CVDs on imports from NMEs and that this was done retroactively on proceedings initiated on or after 20 November 20 2006. This reconfirms my previous conclusion that Section 1 of PL 112-99 effects an "advance in duties", namely an increase in countervailing duties that can be applied – and that were applied in practice – to NMEs, in that previously no such duties could be applied (an effective rate of zero) and following the new law, CVDs can be applied at the rates duly determined by USDOC. Since this advance was effected prior to the official publication of PL 112-99 (namely in relation to proceedings initiated on or after 20 November 20 2006, although the official publication was in 2012), it amounts to a violation of Article X:2.
7.228.
In the course of the pleadings, the parties have devoted considerable attention to the question of what the relevant baseline of comparison is under Article X:2 in order to determine whether a certain measure of general application advances (i.e., increases) a rate of duty. In other words: to what does one compare the new rate of duty, effected by the measure, in order to determine whether it amounts to "an advance"? China considers the relevant baseline to be prior municipal law of the importing Member, properly determinedas a question of fact.359 China submits that this law should be determined based on how it is reflected in the importing Member's previously published measures of general application, including judicial decisions interpreting those laws and regulations. The United States, in contrast, considers the relevant baseline to be the existing approach followed by the administrative agency, provided that it is "a measure of general application".360 The United States notes, however, that there is no singular approach to determine the relevant baseline for an Article X:2 analysis that must be followed in each and every dispute. According to the United States, the determination should be based on the totality of the evidence of how the imports were treated before and after the publication of the measure at issue.361
7.229.
My own view on the proper baseline is somewhat different from both of these suggestions. Rather, I am of the opinion that in order to determine whether "a measure of general application" has "effect[ed] an advance in a rate of duty or other charge on imports", we need to compare the rate of duty effected by such measure to the rate that would exist in its absence.362 This is how we would ascertain the "effect" of the measure. Applied to our case, this would entail a comparison of the rate (or rates) of duty introduced by Section 1 of PL 112-99 to the rate (or rates) of duty that would exist if Section 1 of PL 112-99 had not been passed by the United States Congress. This is so, because whenever one is examining what a certain measure "caused" or "brought about", one compares the situation introduced by such a measure to the situation that would exist in its absence. Thus, if one says, for instance, that "the latest amendment of the tax legislation effected an increase in the tax rate", it means that if it was not for the latest amendment of the tax legislation, the tax rate had not been increased. This is in line with the general principle of ascertaining causation in law which is based on the "but for" principle, or in its Latin term causasine qua non.363
7.230.
In order to apply this test to the facts of this case, we need to ask ourselves what would have happened if the United States Congress had refused to pass PL 112-99, or if for any other reason Section 1 of PL 112-99 had not become a binding law within the United States legal system. The answer to this question is quite apparent and was provided by the United States Secretary of Commerce and the United States Trade Representative in their letter to Congress explaining the importance of passing PL 112-99. In this letter, dated 18 January 2012, they write:

[a]bsent legislation, should the decision of the court [in GPX V] become final, Commerce will be required to revoke all CVD orders and terminate all CVD proceedings involving non-market economy countries, including 24 existing CVD orders on imports from China and Vietnam, as well as five pending investigations and two recently filed petitions.364

7.231.
In other words, absent legislation the decision of the CAFC in GPX V was likely to become final, and in such case USDOC would be required to revoke all CVD orders and terminate all CVD proceedings involving non-market economy countries, including those covered by this dispute. Thus, the rates of those countervailing duties would go from whatever rates they were set at by USDOC in each of the investigation at issue to zero (i.e. the countervailing duty rate in the absence of any legal basis to impose countervailing duties). But since Congress did in fact pass PL 112-99, the existing CVDs were legalized retroactively and did not have to be revoked. Thus the effect of PL 112-99 was to maintain countervailing duties on imports from NMEs that otherwise would have had to be revoked. PL 112-99 thus caused an increase, i.e., "an advance", in these duties from zero to certain rates that were higher, and in most cases significantly higher, than zero.
7.232.
This effect can also be seen clearly from what happened when the case was brought back to the CAFC, following the passage of PL 112-99. When the United States motioned the CAFC to amend and repeal its previous judgment, it described the effect of PL 112-99 as: "superseding" the decision of the Federal Circuit in GPX V "by amending … the CVD statute such that it expressly, and retroactively, requires Commerce to impose CVDs to NME imports".365 Hence, USDOC itself described PL 112-99 as effecting a change in United States CVD law and introducing a new requirement that "retroactively requires Commerce to impose CVDs to NME imports". Clearly, a retroactive imposition of duties, that is, one that takes effect prior to its official publication, is precisely what Article X:2 prohibits.366
7.233.
In response to this motion, the Court of Appeals issued its decision on rehearing in which it considered the implications of PL 112-99. The Court noted that Section 1 of this new law "applies retroactively" to "(1) all proceedings initiated under subtitle A of title VII of [the Tariff Act of 1930] on or after November 20, 2006; (2) all resulting actions by United States Customs and Border Protection; and (3) all civil actions, criminal proceedings, and other proceedings before a Federal court relating to [those] proceedings."367 The court then went on to note the ruling of the United States Supreme Court Plaut v. Spendthrift Farm, Inc.368 according to which "[w]hen a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly." On this basis, the Court of Appeals held that it was required to apply the new law retroactively, even though the court had previously held in GPX V that the United States laws in effect at the time of the underlying countervailing duty investigation did not allow USDOC to apply countervailing duties to imports from NME countries.369 Hence, the Court in effect overturned its own decision which would have led to, as explained by the United States Secretary of Commerce and the United States International Trade Representative,370 a revocation of all CVD orders and termination of all CVD proceedings involving NMEs. It is undisputed that it was PL 112‑99 that effected this change in the Court's ruling, the result of which was to prevent such a revocation. Thus, in effect, PL 112-99 authorized the imposition of countervailing duties on products that had already been imported into the United States prior to the official publication of the law, and retroactively legalized CVD proceedings that had taken place in the approximately five-year period preceding this official publication (i.e., between 20 November 2006 and 13 March 2012). In my view this clearly amounts to an advance, i.e., an increase, in the rates of countervailing duties, and one which is effected before PL 112-99 was officially published. As explained above,371 it also amounts to "imposing a new or more burdensome requirement … on imports".
7.234.
In reaching this conclusion I am guided by the holding of the Appellate Body in US – Underwear.372 There the Appellate Body explained the nature and objective of Article X:2:

Article X:2, General Agreement, may be seen to embody a principle of fundamental importance - that of promoting full disclosure of governmental acts affecting Members and private persons and enterprises, whether of domestic or foreign nationality. The relevant policy principle is widely known as the principle of transparency and has obviously due process dimensions. The essential implication is that Members and other persons affected, or likely to be affected, by governmental measures imposing restraints, requirements and other burdens, should have a reasonable opportunity to acquire authentic information about such measures and accordingly to protect and adjust their activities or alternatively to seek modification of such measures.

7.235.
When an amendment of a law is applied retroactively, that is, to events and importations of goods that occurred before the adoption and official publication of this amendment, and when such amendment imposes "a restraint, requirement or other burden" (such as the application of CVD procedures and countervailing duties), Member States and persons affected by such measures (for instance, exporters and importers) do not have a reasonable opportunity to acquire authentic information about such a measure. Since in the years prior to the passage of PL 112-99 there was no way of knowing if such law would be passed by Congress and what its contents would be, the importers and exporters of products from NME countries could not possibly have had any reasonable opportunity at the time to acquire authentic information about this measure or to adjust their activities in view of it. I therefore reach the conclusion that such a retroactive application of PL 112-99 is in violation of Article X:2.
7.236.
In order to complete my analysis of Article X:2, I also need to explore the meaning of the words "under an established and uniform practice". These words, based on their location in the sentence, seem to relate to the framework under which the "advance in the rate of duty or other charge on imports" has been effected. In other words, the provision requires that the advance in the rate of duty or other charge on imports has been effected within the framework of ("under") "an established and uniform practice". In EC – IT Products the panel reached the conclusion that "uniform practice", in its context, refers to the similar application of a measure in the whole customs territory of a Member.373 As for the term "established", the panel noted that the ordinary meaning of "established" is "[i]nstitute[d] or ordain[ed] permanently by enactment or agreement" or "set up on a permanent or secure basis". "Accordingly, "established" entails an element of duration. Hence, under Article X:2, measures must be of a type that effect an advance in a rate of duty under an established and uniform practice, which means that the advance in a rate of duty must be applied ("practice") in the whole customs territory ("uniform") and its application should be on a secure basis ("established")."374 I agree with this interpretation. Applied to our case, we need to examine whether the measure at hand – namely Section 1 of PL 112-99 – was applied in the whole customs territory of the United States and on a secure basis. From the evidence before us, I can conclude that the answer is yes. Since CVD proceedings are conducted by the United States Federal administration and countervailing duties are imposed and collected by the United States Federal administration, they are applied in the whole customs territory of the United States, and they are applied on a secure and established basis. In this context I recall that PL 112-99 imposes an obligation to impose CVDs on imports from NMEs fulfilling the conditions for such duties. Thus, one can safely presume that USDOC fulfills its obligation under United States Law and that the required CVDs are applied on a secure basis. Put slightly differently, one can say that the imposition of CVDs on NME countries effected by PL 112-99 is pursuant to an "established and uniform practice" because it is required in each instance ("uniform") and it is done within the framework of an "established… practice", namely the United States countervailing duty procedures.
7.237.
My fellow panelists are of the opinion "that the term 'under an established and uniform practice' serves to define the relevant prior rate that is to be used to establish whether or not an advance in a rate has been effected."375 From this reading they therefore conclude "that the relevant comparison contemplated by Article X:2 is between the new rate effected by the measure at issue and the rate that was previously applicable under an established and uniform practice"376. I respectfully disagree. Like the panel in EC – IT Products, I understand the words "under an established and uniform practice" to relate to the "measure of general application" which effects an advance in a duty etc.377 These words describe the measure of general application in the sense that "the advance in a rate of duty or other charge on imports" must be made under"an established and uniform practice", and not to the situation existing prior to this measure to which one should compare the new increased duty. This prior situation is not mentioned or alluded to in Article X:2, and therefore, unlike my fellow panelists, I fail to see how these words can describe the baseline to which to compare the new duty or charge. I believe that my interpretation is in line with Article X:2's wording and plain meaning, where clearly the term refers to the measures mentioned in the beginning of the sentence and describes them, and does not serve as a basis for comparison of the "advance in a rate of duty" or "other charge on imports". The provision does not say "an advance in a rate of duty in comparison to(or "in relation to") an "established and uniform practice". I believe that generally, in the course of interpreting provisions of the covered agreements, an interpreter may not add words that are not there and I can see no justification to do so in this case where the plain and ordinary meaning of Article X:2 is clear and has already been established by a previous WTO panel.
7.238.
In addition to being hard to reconcile with the ordinary meaning of the provision, I am also of the opinion that the approach adopted by my fellow panelists is inimical to the very substance of Article X:2 and to its objective. Generally speaking, the objective of the provision is to prohibit the enforcement of higher rates of duties, new charges on imports or other new or burdensome requirements, restrictions or prohibitions before the official publication of such measures. According to the majority opinion, to enforce such a measure before its official publication may actually be a good thing for a Member to do, because then when one compares the new law (which increased the rates of duties or introduced new and more burdensome requirements, restrictions or prohibitions in relation to what would have existed in its absence) to the "uniform and established practice" that existed prior to its enactment, one will actually find (like the majority opinion found in this case) that there was no increase in the rates of duties, nor any new or more burdensome requirements. Under this interpretation, it is hard to see how there would ever be a violation of Article X, since the conduct that it prohibits would constitute proof that there was no violation. I find it hard to believe that this was what the Members had in mind when they agreed to Article X:2.
7.239.
Indeed, the Panel asked the United States to respond to the following hypothetical question:

Assume that Country A's unbound tariff rate on a certain product is x%, and that it has been published properly in its official gazette. On January 1, 2013, Country A's customs authorities start collecting customs duties on this product at the rate of 2x%, although the published tariff rate is x%, and in spite of protests by importers of the product in question. On June 1, 2013, Country A's Minister of Finance signs an order to raise the duty on this product to 2x% with an effective date of January 1, 2013. The order, which is within his authority under the laws of Country A, is published promptly on the same day that it was signed. Would Country A's actions be consistent with GATT Articles X:1 and X:2?378

The United States responded inter alia that if Country A's customs authorities were acting pursuant to a measure of general application, which was not published, then Country A's actions could be inconsistent with Article X:2 as from January 1, as the measure was enforced before publication. However, "the collection of a duty at the rate of 2x% by only certain customs authorities (perhaps at certain ports or at certain times) would not appear to be a measure of general application"379 and thus not prohibited by Article X:2. The United States further responded that "the Minister of Finance's order on June 1 … would not fall under one of the listed changes under Article X:2 in the scenario in which there was a measure of general application pursuant to which the customs authorities applied a rate of 2x%. That is, the order was not an 'advance' on a rate of duty or other charge on imports under an established and uniform practice, nor was it a 'new' or 'more burdensome' requirement, restriction or prohibition on imports".380

7.240.
I find this result, which is a necessary outcome of the interpretation proposed by the United States to be very troubling and in clear conflict with the ordinary meaning of Article X:2, in its context and in light of its objective and purpose. I also find it hard to believe that this was the intention of the drafters and of the Members when they agreed to Article X:2. The alternative interpretation offered by my fellow panelists, namely that the benchmark for comparison of the "advance" and "new or more burdensome requirement" is the previous practice of the authorities of the importing county so long as such practice has not been found to be illegal by a domestic court in a final and binding decision (and ordered to be discontinued), does not really solve the problem. It is quite unlikely that importers can obtain a final binding judgment within six months (as were the facts in the above hypothetical), considering that most domestic legal systems require a much longer time to resolve such an issue. Even if the unauthorized practice of collecting a duty at a higher rate than was officially published continued for two or three years, it would be unlikely that importers could obtain a final binding judgment against this practice in time to stop it, since the authorities of the importing country could always file an appeal against a such a judgment and thereby prevent it from becoming binding and final. Eventually, a new order could be issued and published with the effect of legalizing the higher charge retroactively, and no violation of Article X:2 could be found. I am of the opinion that such a result is clearly unsatisfactory.
7.241.
For all of the reasons set out above, I have reached the conclusion that in adopting Section 1 of PL 112-99, the United States did not comply with Article X:2 of the GATT 1994.

7.6 CLAIM UNDER ARTICLE X:3(B) OF THE GATT 1994

7.242.
The Panel now turns to China's claim that Section 1 of PL 112-99 violates the United States' obligations under Article X:3(b) of the GATT 1994.381
7.243.
China submits that Section 1 violates the obligation in the second sentence of Article X:3(b).382 Article X:3(b) reads in full:

Each [Member] shall maintain, or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action relating to customs matters. Such tribunals or procedures shall be independent of the agencies entrusted with administrative enforcement and their decisions shall be implemented by, and shall govern the practice of, such agencies unless an appeal is lodged with a court or tribunal of superior jurisdiction within the time prescribed for appeals to be lodged by importers; Provided that the central administration of such agency may take steps to obtain a review of the matter in another proceeding if there is good cause to believe that the decision is inconsistent with established principles of law or the actual facts. (Emphasis added)

7.244.
China claims that Section 1 of PL 112-99 is inconsistent, as such383, with the obligation in the second sentence of Article X:3(b). According to China, Section 1 of PL 112-99 is inconsistent with Article X:3(b) "because it amends United States law retroactively and makes it applicable to judicial proceedings concerning administrative actions taken prior to its enactment".384 China argues that "the intervention in a pending judicial proceeding by the legislative branch of the U.S. government was incompatible with the obligations of the United States under Article X:3(b)".385 China argues that the text of Article X:3(b) contemplates only two "exceptions" to the rule that an agency is required to implement and be governed in its practice by a decision of the court of first instance – the first being where a party appeals the decision to a court of superior jurisdiction, and the second being the possibility of a "collateral challenge" in another proceeding.386 China argues, inter alia, that if the drafters of Article X:3(b) "had intended that the decisions of courts or tribunals could be superseded by legislative enactments, as opposed to the decisions of superior courts or tribunals, they would have referred to this possibility in the text".387
7.245.
According to China, if superseding decisions of courts or tribunals by legislative action were permissible under Article X:3(b), there would be "no point"388 to seeking judicial review of what an interested party considers to be unlawful agency conduct, since even a correct understanding of the law, confirmed as such by an independent tribunal, could always be superseded by the enactment of a new law that renders the agency's actions lawful after the fact. China submits that "[t]his outcome is clearly inimical to Article X:3(b) and to the principles of due process that it embodies".389 China's claim "relates to the requirement that the decisions of reviewing tribunals 'shall be implemented by, and shall govern the practice of' the agency whose action is under review".390 China argues that the United States' actions in this case were contrary to both the letter and the spirit of Article X:3(b), and were inconsistent with "the role that independent judicial review is meant to serve" and the "role of independent tribunals".391
7.246.
The United States submits that the Panel should reject China's claim under Article X:3(b).392 The United States argues that insofar as China's claim is that USDOC should have implemented the decision in GPX V, then China's claim fails because the CAFC opinion in GPX V never became a final decision with legal effect.393 The United States argues that insofar as China is not claiming that USDOC should have implemented the GPX V, and is instead claiming that Section 1 of PL 112-99 violates Article X:3(b), China's claim still fails for two other reasons. First, the United States argues that Article X:3(b) "does not speak to, and therefore does not impose, any limitations on the ability of a national legislature to enact legislation or how that legislation may be applied".394 The United States further argues that Article X:3(b) contains a "structural" obligation, and that "[f]or there to be a breach of Article X:3(b), the Member must have failed to establish tribunals that issue final decisions that shall be implemented by agencies".395
7.247.
Several third parties made written and oral submissions in this dispute, and each that did took the position that Article X:3(b) does not prohibit a Member's legislature from enacting a law that overrides a decision by a reviewing tribunal. In this regard, Australia submits that Article X:3(b) contains specific obligations requiring WTO Members to maintain systems of independent review and to implement the outcomes of such reviews if they are not appealed, and "does not otherwise address the relationship between the legislative, executive and judicial branches of government, nor can any obligation in this regard be implied".396 Canada submits that "there is nothing in the ordinary meaning or context of GATT Article X:3(b) indicating that this provision disciplines actions of Members' legislatures".397 According to the European Union, "Article X:3(b) of the GATT 1994 should not be interpreted as prohibiting Members from taking legislative actions which would impact the decisions issued under the review procedures required under that provision".398 Japan submits that "no express obligations to WTO Members are set forth in Article X:3(b) with respect to actions by the legislature in response to judicial decisions".399
7.248.
The Panel will begin its analysis of China's claim by discussing the nature of the measure at issue. We will then turn to what we consider to be the two main issues concerning the interpretation of Article X:3(b): first, whether Article X:3(b) prohibits a Member from taking legislative action in the nature of Section 1 of PL 112-99; second, the United States' argument that the obligation in Article X:3(b) is only "structural" in nature.400

7.6.1 The nature of the measure at issue

7.249.
As indicated, the Panel begins its analysis by examining the nature of the legislative action that is at issue in this dispute. Once we have determined the nature of the legislative action that is at issue, we will proceed to consider whether that legislative action is inconsistent with the requirement, in Article X:3(b), that the decisions of reviewing tribunals be implemented by, and govern the practice of, administrative agencies.
7.250.
We have been presented with arguments from the parties and third parties that formulate the issue before us in relatively broad and abstract terms. They variously described the issue as being whether Article X:3(b) applies to the "legislative branch", the "actions of Members' legislatures", and "legislative actions".401 We are not persuaded that the issue before us can or should be formulated in such broad terms. First, we consider that formulating the issue so broadly, e.g. in terms of the applicability of Article X:3(b) to the "legislative branch", may lead to confusion, insofar as it could be taken to suggest that what is legally relevant is the source of action – i.e. the legislature – rather than the nature of the action – i.e. the nature of the legislative action at issue. The United States is not arguing that it is not responsible for the actions of the legislature, and it is well established in WTO jurisprudence that, consistent with principles of general international law, a Member is responsible for the conduct of all State organs, including the legislature.402 In addition, we question whether such an analytical approach is consistent with the approach taken by the Appellate Body, in the context of interpreting and applying other provisions of the covered agreements, that a panel must carefully consider the nature of the measure at issue, including its "principal characteristics". Thus, we must first characterize the nature of the measure that is at issue in this dispute. Only then, once the measure at issue has been properly characterized, should we "proceed to assess whether a measure of that nature" falls within the disciplines of Article X:3(b).403
7.251.
In its 1986 decision in Georgetown Steel, the CAFC affirmed USDOC's decision to not apply CVD measures to imports from NME countries.404 USDOC's understanding (documented in several sources, including the June 2005 GAO Report405) was that in Georgetown Steel, the CAFC had ruled only that USDOC was not required to apply the CVD law in factual circumstances where USDOC judged that it was impossible to identify and measure subsidies as a consequence of the economic situation in the NME country in question.
7.252.
Between 1986 and 2006, Congress on several occasions considered the enactment of new legislation relating to the applicability of United States CVD law to imports from NME countries, including in the form of bills in 1988, 1998, 2004, and 2005. However, none of these initiatives ultimately resulted in the enactment of new legislation, explicitly to give the USDOC the authority to apply United States CVD law to imports from NME countries.406
7.253.
Pursuant to a CVD investigation on CFS Paper initiated on 27 November 2006, USDOC began applying United States CVD law to imports from China, notwithstanding that the United States continued to designate China as an NME country. USDOC did so after reaching the conclusion that it was possible to identify and measure subsidies as a consequence of the economic situation in China, and its understanding that this action was in accordance with then-existing United States law. This understanding was based, in part, on its interpretation of the CAFC decision Georgetown Steel.407
7.254.
Following the initiation of the CFS Paper investigation in 2006, years of litigation before the United States courts over this issue ensued. On at least three occasions, the CIT decided that the applicable United States law and the CAFC decision in Georgetown Steel were "ambiguous" regarding whether United States CVD law could be applied to imports from China. The first such decision was in CFS Paper408, followed by the CIT decision in GPX I409, and then its decision GPX II.410
7.255.
However, in its 19 December 2011 decision in GPX V, the CAFC held that, contrary to the understanding and ongoing practice of USDOC, it was not in accordance with United States law for USDOC to apply United States CVD law to imports from NME countries, including China. Following the issuance of this decision, the United States government petitioned the CAFC to grant a rehearing en banc to reconsider its decision. Both parties consider that the United States government's request for a rehearing by the CAFC en banc was "equivalent to an appeal to a court of superior jurisdiction"411 within the meaning of Article X:3(b).
7.256.
On 13 March 2012, Congress enacted PL 112-99 to "overrule"412 and supersede the CAFC decision in GPX V, thus effectively ensuring that USDOC would continue to apply United States CVD law to imports from China. The United States agrees that Congress enacted Section 1 of PL 112-99 to "overturn" the CAFC decision in GPX V413; as previously noted, the United States refers to this measure as "the GPX legislation", and states, for example, that it "ensured that GPX V would never have any effect under U.S. law".414
7.257.
To recall, Section 1(a) of PL 112-99 amends United States law to render United States CVD law applicable to imports from NME countries, except in circumstances where USDOC judges that it is impossible to identify and measure subsidies as a result of the economic situation in the NME country in question. Pursuant to Section 1(b) of PL 112-99, this amendment applies to all CVD proceedings initiated on or after 20 November 2006 (as well as all resulting USCBP actions and associated Federal court proceedings).
7.258.
Based on the foregoing, we consider that the principal characteristics of the measure at issue are (i) the measure at issue is part of a law enacted by Congress, i.e. the legislative branch of the United States government; (ii) the objective of the legislation appears to have been to continue the application by USDOC of United States CVD law to imports from NME countries like China, by effectively "overruling" the CAFC decision in GPX V; (iii) this legislation was enacted following the issuance of the CAFC decision in GPX V, but before that decision could become final and legally binding, and therefore did not involve the reopening of a court decision that had become final; and (iv) the legislation applies to all CVD proceedings (and resulting USCBP actions and Federal court proceedings) initiated on or after 20 November 2006.
7.259.
In its panel request, China defines the measure as "Section 1" of PL 112-99. However, China has also made statements to the effect that its claim under Article X:3(b) relates more particularly to Section 1(b) of PL 112-99.415 As noted, Section 1(b) of PL 112-99 makes the new rule in Section 1(a), Section 701(f), applicable to all CVD proceedings (and resulting actions and judicial proceedings) initiated on or after 20 November 2006. In this regard, as we have explained416, Section 1(b) is not an autonomous provision, and must be considered together with the new rule in Section 1(a). Accordingly, and taking into account how the measure is defined in the panel request, and the relationship between Section 1(a) and 1(b), we conduct our analysis on the understanding that the measure at issue is Section 1.

7.6.2 Interpretation of Article X:3(b)

7.6.2.1 Whether Article X:3(b) prohibits a Member from taking legislative action in the nature of Section 1 of PL 112-99

7.260.
Having considered the nature of the measure at issue, we will now turn to the interpretation of Article X:3(b).
7.261.
We note at the outset that there are two interpretative issues arising from the text of Article X:3(b) in respect of which there appears to be agreement between the parties. First, the parties agree that the phrase "administrative action relating to customs matters" includes administrative action relating to countervailing and anti-dumping duty proceedings in general, and that the CAFC decision in GPX V, for instance, involved a "review" of administrative action relating to customs matters.417 In this regard, the parties are of the view that the obligations in Article X:3(b), Article 23 of the SCM Agreement418, and Article 13 of the Anti-Dumping Agreement419 are cumulative in nature. The latter provisions contain judicial review obligations regarding countervailing duty and anti-dumping duty determinations. We see no reason to disagree with the parties' understanding of the phrase "administrative action relating to customs matters". The dictionary definition of the word "customs" is "such duty levied by a government on imports", which suggests that the term "customs" is broad enough to include countervailing duties.420 As previously noted, the term "countervailing duty" is defined in Article VI:3 of the GATT 1994, and footnote 36 to Article 10 of the SCM Agreement, as "a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise". In addition, we note that in Thailand – Cigarettes (Philippines), the Appellate Body considered the meaning of "administrative action relating to customs matters". The Appellate Body stated that "the obligation contained in Article X:3(b) is not limited to particular types of customs-related 'administrative action'", and agreed with the panel that the phrase "administrative action relating to customs matters" encompasses "a wide range of acts applying legal instruments that have a rational relationship with customs matters".421 Furthermore, as the obligations in Article 23 of the SCM Agreement and Article 13 of the Anti‑Dumping Agreement only came into existence in 1995, interpreting the phrase "administrative action relating to customs matters" in Article X:3(b) so as to exclude countervailing duty and anti-dumping duty determinations would have meant that, prior to 1995, there was no obligation to provide for the prompt review and correction of such measures.
7.262.
Second, the parties agree that the "decisions" that must be implemented under Article X:3(b) include the decisions of courts or tribunals of superior jurisdiction such as the CAFC (once their decisions are final and legally binding), and not only those of "first instance" review tribunals.422 Thus, the United States accepts that in the context of its domestic system of judicial review and with specific reference to USDOC, Article X:3(b) requires that USDOC implement and be governed not only by the decisions of the CIT, which, as we have said, is the court of first instance review in respect of USDOC actions, but also the decisions of the CAFC and, where appropriate, the United States Supreme Court.423 We see no reason to disagree. In EC – Selected Customs Matters, the Appellate Body stated that Article X:3(b) "relates to first instance review", and "requires that first instancereview decisions 'shall be implemented by, and shall govern the practice of, such agencies' (that is, agencies entrusted with the administration of customs matters)".424 However, the Appellate Body did not state that the obligation in Article X:3(b) relates exclusively to first instance review decisions. Indeed, once a final decision has been reached after an appeal, the rationale for an administrative agency to implement that decision is no less compelling than the rationale for an administrative agency to implement a first instance decision that has not been appealed.
7.263.
We will now proceed to address whether Article X:3(b), which requires that administrative agencies implement and be governed by decisions of the tribunals maintained to review their administrative action relating to customs matters, prohibits a Member from taking legislative action in the nature of Section 1 of PL 112-99. We will examine the text of Article X:3(b), its context, the object and purpose underlying Article X:3(b), as well as preparatory work relating to Article X:3(b).

7.6.2.1.1 The text of Article X:3(b)

7.264.
The first sentence of Article X:3(b) provides that each Member "shall maintain, or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action relating to customs matters". The second sentence of Article X:3(b), which is the one on which China's claim rests, goes on to state that "[s]uch tribunals or procedures shall be independent of the agencies entrusted with administrative enforcement and their decisions shall be implemented by, and shall govern the practice of, such agencies", unless an appeal is lodged.
7.265.
The Panel notes that the wording of the second sentence of Article X:3(b) refers only to "tribunals" and "agencies", and not to the legislature (or other entities). It provides that "such tribunals" shall be independent of the "agencies", and requires that the decisions of "such tribunals" be implemented by, and govern the practice of, "such agencies". Notably, the obligation to implement and be governed by the decisions of reviewing tribunals is addressed to "such agencies". Therefore, by its express terms, Article X:3(b) establishes an obligation directed at the reviewing tribunals and the administrative agencies. There is no textual reference to the legislative branch or any other entity.
7.266.
We also note that Article X:3(b) says that it is "decisions" that shall be implemented by the administrative agencies concerned. It is useful to point out in this connection that Section 1(b)(3) of PL 112-99 does not reopen any cases that have already been decided by Federal courts. Rather, the text of Section 1(b) refers to all relevant proceedings "before a Federal court". This indicates that it applies both to cases that were still pending before a Federal court when the PL 112-99 was enacted, and that it applies prospectively to any cases brought after its enactment. It does not, however, apply to any decided cases. This view is also supported by the fact that Section 1(b)(3) provides for application of the new Section 701(f) to "proceedings" and "actions" before Federal courts, and not to "decisions" by such courts. Thus, Section 1(b)(3) does not prevent USDOC from implementing any final court decisions that had been made as of 13 March 2012.425
7.267.
We agree with China that the text of Article X:3(b) contemplates only two "exceptions" to the rule that an agency is required to implement and be governed in its practice by a decision of a court of first instance – the first being situations where a party appeals the decision to a court or tribunal of superior jurisdiction, and the second being the possibility of a "collateral challenge" in another proceeding initiated by the central administration of the agency at issue.426 We further agree with China that legislative action in the nature of Section 1 of PL 112-99 would not fall within the scope of either of those "exceptions". However, the fact that there are only two "exceptions" to justify actions by administrative agencies that might otherwise be inconsistent with the requirement in Article X:3(b) that administrative agencies implement and be governed in their practice by decisions by reviewing tribunals, does not bring within the scope of Article X:3(b) actions such as the type of legislative action at issue in this dispute.
7.268.
In sum, an analysis of the text of Article X:3(b) suggests that the kind of legislative action at issue in this dispute does not fall within the scope of the obligation in the second sentence of Article X:3(b).

7.6.2.1.2 The context of Article X:3(b)

7.269.
We address next the question whether the context of Article X:3(b) suggests that the obligation in the second sentence thereof prohibits legislative action in the nature of Section 1 of PL 112-99. In our view, the obligation in Article X:2 is relevant context with regard to the issue before us.
7.270.
As we have discussed in the context of addressing China's claim under Article X:2, this provision explicitly provides that no measure falling within the scope of Article X:2 shall be enforced prior to its official publication. The measures that fall within the scope of Article X:2 include any measure of general application effecting "an advance in a rate of duty or other charge on imports under an established and uniform practice", or imposing "a new or more burdensome requirement, restriction or prohibition on imports". We have explained above that the kind of restrictive measures that falls within the scope of Article X:2 may not be enforced in respect of events or circumstances that occurred before they have been officially published.
7.271.
The structure of Article X suggests that each of its paragraphs addresses a different issue. Article X:1 concerns, inter alia, the prompt publication of measures. Article X:2 addresses, inter alia, measures of general application, including legislative actions of general application, that are enforced in respect of events or circumstances that occurred prior to their official publication. Finally, Article X:3(b) concerns the prompt review and correction of certain administrative actions by independent tribunals. Article X:3(b) contains no language resembling that found in Article X:2, and it contains no textual link to the obligation in Article X:2. This suggests to us that the same matter, namely legislative actions of general application, is not covered in Article X:3(b) nor is it contemplated by it.
7.272.
In this regard, we note China's argument, regarding the interpretation of the obligation in Article X:3(b), that "[t]o be sure, the national legislature may enact new laws, and national courts may be required to interpret and apply those laws in future cases. But consistent with Article X:1 and Article X:2, any such law must apply prospectively, and may not have the effect of altering the outcome of a judicial decision that was based on the laws in effect at the time the relevant administrative actions were taken".427 Along similar lines, China argues, again in the context of interpreting Article X:3(b), that "Members are free to change their domestic laws and regulations as they see fit, provided that they are otherwise in accordance with relevant provisions of the covered agreements. Under Article X:2, however, any such amended laws and regulations can be applied only in respect of action or conduct that occurs after the official publication of the amending measure, to the extent that the measure advances a rate of duty or other charge on imports, or imposes a new or more burdensome requirement or restriction on imports."428
7.273.
We consider that China's argument amounts to reading the obligation in Article X:2 into Article X:3(b). We find it useful to recall the findings by the panel and the Appellate Body in EC – Selected Customs Matters when presented with a similar argument. In that case, the issue was the relationship between Article X:3(b) and the obligation in Article X:3(a). The panel rejected an interpretation that would amount to "merging different requirements that are currently contained in separate sub-paragraphs of Article X".429 The Appellate Body agreed:

The Panel, however, noted that Article X:3(b) of the GATT 1994 does not contain an express textual link to the obligation of uniform administration of customs laws in Article X:3(a). The Panel contrasted this with Article X:3(c) of the GATT 1994, which explicitly cross-references Article X:3(b).430 Against this background, the Panel considered that it was not possible to infer that the drafters of the GATT 1994 intended the obligation of Article X:3(b) to be read as simultaneously requiring uniform administration in accordance with Article X:3(a). In the Panel's view, this would amount to 'merging different requirements that are currently contained in separate sub-paragraphs of Article X'.431 We see no reason to disagree with the Panel's interpretation. We are also of the view that the requirement of "uniformity" contained in Article X:3(a) does not imply that under Article X:3(b) decisions of review tribunals must govern the practice of all agencies entrusted with customs enforcement throughout the territory of a WTO Member. Article X:3(a) requires, inter alia, uniformity of administration. In contrast, Article X:3(b) relates to the review and correction of administrative action by independent mechanisms.432

7.274.
In the light of the foregoing, the Panel considers that the context of Article X:3(b) does not support the view that the obligation in the second sentence thereof prohibits legislative action in the nature of Section 1 of PL 112-99.

7.6.2.1.3 The object and purpose of Article X:3(b)

7.275.
The Panel now considers whether the object and purpose of the GATT 1994, as reflected in Article X:3(b)433, supports the view that the obligation in Article X:3(b) prohibits a Member from taking legislative action in the nature of Section 1 of PL 112-99.
7.276.
China argues in this connection that if legislative intervention in pending judicial proceedings of the kind at issue here were permissible, an interested party could (i) develop a correct understanding of municipal law through its review of "[l]aws, regulations, judicial decisions and administrative rulings of general application"; (ii) bring an action in a domestic court to enforce its correct understanding of the law against unlawful agency conduct; (iii) have its understanding of municipal law confirmed by the court; but then (iv) have that decision undone by a legislative intervention that amends the law retroactively and directs the courts to apply the amended law to the administrative action under review. China submits that this outcome is "clearly inimical" to Article X:3(b) and to the principles of "due process" that it embodies.434
7.277.
We will begin by considering the question of "due process". We note that in Thailand – Cigarettes (Philippines), the Appellate Body discussed the principle of due process as it relates specifically to Article X:3(b). The Appellate Body stated:

A basic object and purpose of the GATT 1994, as reflected in Article X:3(b), is to ensure due process in relation to customs matters. The Appellate Body referred to this due process objective in EC – Selected Customs Matters.435 In that vein, the panel in EC – Selected Customs Matters stated that Article X:3(b) seeks to 'ensure that a trader who has been adversely affected by a decision of an administrative agency has the ability to have that adverse decision reviewed.'436 In addition, relating more broadly to Article X:3 of the GATT 1994, the Appellate Body has found that this provision establishes certain minimum standards for transparency and procedural fairness in Members' administration of their trade regulations.437 While recognizing WTO Members' discretion to design and administer their own laws and regulations, Article X:3 also serves to ensure that Members afford the protection of due process to individual traders. As we see it, the obligation under Article X:3(b) to maintain tribunals or procedures for the prompt review and correction of administrative action relating to customs matters is an expression of this due process objective of Article X:3.438

7.278.
Thus, the Appellate Body has clarified that Article X:3 serves to ensure that Members afford the protection of due process to individual traders. In EC – Selected Customs Matters, the Appellate Body addressed what is demanded by "due process" in the particular context of Article X:3(b). Specifically, the Appellate Body stated that "this due process objective is not undermined even if first instance review decisions do not govern the practice of all the agencies entrusted with customs enforcement throughout the territory of a WTO Member, so long as there is a possibility of an independent review and correction of the administrative action of every agency".439 In a similar vein, we will now address whether Section 1 undermines the objective of "independent review and correction" of USDOC, USITC or USCBP administrative action relating to customs matters.
7.279.
China argues that the actions of the United States in this case were contrary to both the letter and the spirit of Article X:3(b), and were inconsistent with "the role that independent judicial review is meant to serve" and the "role of independent tribunals".440 China further argues that one function of tribunals established in accordance with Article X:3(b) is to "review and correct" administrative actions, and this "based on the interpretation and application of the relevant laws and regulations in effect at the time the administrative action was taken".441
7.280.
The Panel recalls that Article X:3(b) requires Members to establish and maintain such courts "for the purpose", inter alia, of "prompt review and correction" of administrative action. Article X:3(b) further provides that courts must be "independent" of the administrative agencies whose decisions are being reviewed.442 Reading Article X:3(b) in context, Article 23 of the SCM Agreement and Article 13 of the Anti-Dumping Agreement, which as explained above establish requirements for judicial review that operate cumulatively with Article X:3(b)443, also require that reviewing courts be independent "of the authorities responsible for the determination or review in question". In addition, Article X:3(c) confirms that the independence requirement in Article X:3(b) reflects an objective to ensure that the review be "objective and impartial" as between an affected trader and the administering agency.444 In our view, legislative action in the nature of Section 1 does not adversely affect a court's ability to engage in "objective and impartial" review. Section 1(b) does not itself speak to, much less direct, how Federal courts are to review USDOC, USITC or USCBP actions, or otherwise interfere with the courts' discharge of their reviewing function. Rather, it speaks to the scope of application of a new substantive rule of United States law, the new Section 701(f). Furthermore, it is true that Article X:3(b) requires that traders be afforded the possibility of seeking and obtaining judicial review. Contrary to China, however, we see nothing in Article X:3(b) that explicitly or by necessary implication requires review under the law as it was in force at the time when the agency took the action under review. While we agree that Article X:3(b) contemplates review based on law (as would appear to be confirmed, inter alia, by the reference in the proviso to "established principles of law"), it is ordinarily the case, as also noted by China445, that courts interpret the law and apply it to facts, but that the legislature makes or amends the law. In the absence of any specific requirement to the contrary, the concepts of "review and correction" based on law by an independent, objective and impartial court do not suggest to us that the legislature is thereby precluded from changing the law, even in respect of pending cases.446
7.281.
In addition, having regard to the subject-matter of Article X:3(b), i.e. judicial review, we recall that the panel in EC Selected Customs Matters considered how judicial review functions in domestic legal systems, and we consider that such an examination may usefully inform our interpretation of that provision as well.447 In this regard, it is common ground between the parties that under United States constitutional law, when a new Federal law makes clear that it is retroactive, a United States appellate court must in principle apply that law in reviewing lower-court judgments still under appeal that were rendered before the law entered into force, and must alter the outcome accordingly.448 In GPX VI, the CAFC observed that "Congress clearly sought to overrule our decision in GPX [V]", but found that this did not constitute an impermissible interference with the judicial process:

Although the scope of the new legislation is clear, appellees nonetheless contend that the new legislation is unconstitutional because (1) it attempts to prescribe a rule of decision for this case after our decision in GPX was rendered …

We think the first of these arguments is without merit. The Supreme Court has counselled that "[w]hen a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 226, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). Unlike Plaut, where Congress attempted to undo a final judgment, see id. at 227, 115 S.Ct. 1447, this case was still pending on appeal when Congress enacted the new legislation, as our mandate had not yet issued, see Fed. R.App. P. 41(b)-(c); see also Beardslee v. Brown, 393 F.3d 899, 901 (9th Cir.2004) ("An appellate court's decision is not final until its mandate issues."). It makes no difference that Congress, in the legislative history, addressed the decision in this case by name. See, e.g., Ileto v. Glock, Inc., 565 F.3d 1126, 1139 (9th Cir.2009) ("[A] statute affecting pending cases, indeed designating them by name and number, [does] not offend separation of powers because Congress was changing the law applicable to those cases rather than impermissibly interfering with the judicial process." (citing Robertson v. Seattle Audubon Soc'y, 503 U.S. 429, 440, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992))). Thus, no issue is raised by the fact that our decision in GPX had issued prior to enactment of the new legislation because this case remained pending on appeal.449

7.282.
Thus, legislative intervention in pending cases is not necessarily viewed – even by courts – as impermissible interference with the judicial review function. Having regard to Section 1 of PL 112-99, we consider that the CAFC decision in GPX VI at a minimum indicates that legislative action in the nature of Section 1 is not "inimical", per se, to principles of "independent judicial review", as China contends.450
7.283.
China contends that if legislative action of the nature at issue in this dispute was permissible under Article X:3(b), there would be "no point"451 to seeking judicial review of what an interested party considers to be unlawful agency conduct, since even a correct understanding of the law, confirmed by an independent tribunal, could always be superseded by the enactment of a new law that renders the agency's actions lawful after the fact. China argues that this type of legislative intervention, if accepted, would render independent judicial review "meaningless".452
7.284.
The Panel is not persuaded that the possibility of taking legislative action in the nature of Section 1 of PL 112-99 has as a consequence that there would be "no point"453 to seeking judicial review of what an interested party considers to be unlawful agency conduct. First, China's argument seems to assume that such legislative action would always side with and favour the view of the administering agency. We see no basis for that assumption.454 Second, China's argument focuses on outcomes, yet Article X:3(b) does not guarantee any outcome. Rather, Article X:3(b) guarantees access to judicial review, i.e. "a possibility of an independent review and correction of the administrative action of every agency".455 Third, the argument seems to assume that the only relevant perspective is that of any interested party that is adversely affected by such legislative action. However, from the perspective of the legislature, for example, there may be legitimate reasons for making sure that the new law is applied across the board in all relevant fact situations. Article X:3(b) does not indicate or suggest that the desire that some interested parties may have for judicial review to proceed on the basis of the law in place prevails over the legislature's interest in using its prerogative to make or change the law. Fourth, we note the United States argument456 that there is no reason to assume that legislative action in the nature of Section 1 of PL 112-99 would, if not prohibited by Article X:3(b), become a "routine" occurrence. While we understand that this may be of no consolation to China in the context of the present case457, the apparent exceptional nature of this kind of legislative action has a direct bearing on China's assertion that there would be "no point" to seeking judicial review if this kind of legislative action is possible. If, as we consider, such legislative action can be expected to be infrequent (see paragraph 7,288 below), due to the time and effort ordinarily required to initiate and successfully complete legislative action, then it is difficult to see how such infrequent legislative action would warrant the conclusion that there would be no point to seeking judicial review.
7.285.
In the light of the foregoing, we are not persuaded that the object and purpose of the GATT 1994, as reflected in Article X:3(b), supports the view that Article X:3(b) prohibits legislative action in the nature of Section 1 of PL 112-99.

7.6.2.1.4 Recourse to supplementary means of interpretation

7.286.
Having reviewed the text of Article X:3(b), relevant context, and its object and purpose, we do not consider it necessary to have recourse to supplementary means of interpretation under Article 32 of the Vienna Convention. However, we note that preparatory work relating to Article X:3(b) tends to confirm the meaning resulting from the application of the customary rules of interpretation reflected in Article 31 of the Vienna Convention.458
7.287.
The initial version of the text that ultimately became Article X:3(b) included an obligation for administrative agencies to implement and be governed by judicial decisions, unless an appeal were lodged within the prescribed time-frame. In the context of the negotiations, the United States proposed that there should, in addition, be a possibility of allowing the administrative agency the right to seek review of the same matter in a subsequent proceeding (i.e. a so-called collateral challenge).
7.288.
When explaining the purpose behind an amendment to include what became the proviso459 regarding the right to seek review of the same matter in a subsequent proceeding, the United States delegate explained that such a proviso was desirable because "it is extremely difficult and rare to introduce legislation to correct a judicial decision in customs matters, which is not in line with intended policy". The United States delegate continued by stating that "therefore the central authority must have the right to test such a decision in new cases".460 The preparatory work further records that "[i]n the ensuing discussion several delegates made it clear that the practice in their respective countries was similar", with the United Kingdom delegate stating that "in his country customs authorities are bound by court decisions for all like cases, and corrections could be achieved only by new legislation which was not always easy".461 While the need for such a proviso was the subject of discussion among delegations during the negotiations, it was ultimately included in the final text.
7.289.
It thus appears that the drafters proceeded on the assumption that Article X:3(b) was without prejudice to the right of GATT Contracting Parties to introduce legislation to "correct" a judicial decision in customs matters. We recognize that the United States delegate could have been referring to legislative correction that would occur after a binding judicial decision has been issued by a reviewing tribunal and thus would affect only subsequent judicial decisions. In this regard, the United States delegate indicated that the proposed proviso regarding the right to seek review of the same matter in a subsequent proceeding was not intended to reopen final decisions, stating that "[t]he implementation of any final decision in the specific case to which it refers remains, however, unaffected". But the identified statements nonetheless indicate that even though the legislature is not referred to in the text of Article X:3(b), its drafters were well aware, and apparently did not question, that legislatures can and do choose to use their legislative powers to respond to judicial decisions. Significantly, this possibility appears to have been viewed by delegations as unremarkable, even though Article X:3(b) requires that judicial decisions must govern the practice of agencies.
7.290.
Thus, the Panel considers that the preparatory work of Article X:3(b) at a minimum confirms that Article X:3(b) does not prohibit legislatures from making or changing the law in a manner consistent with its terms.

7.6.2.1.5 Conclusion

7.291.
For the reasons set forth above, the Panel finds that Article X:3(b), which requires that administrative agencies implement and be governed by decisions of the tribunals maintained to review their administrative action relating to customs matters, does not prohibit a Member from taking legislative action in the nature of Section 1 of PL 112-99.
7.292.
In reaching this conclusion, it is useful to recall that we have examined whether Section 1, i.e. a measure with particular characteristics, is inconsistent with Article X:3(b). One of the particular features of Section 1 is that it amends United States law not just in respect of pending cases but also in respect of future cases as well as USDOC proceedings and USCBP actions. In that sense, Section 1 amends the law across the board and does not narrowly target pending court cases. In addition, we recall our finding that Article X:2 contains relevant disciplines addressing measures of general application within its scope, including laws of general application, that are enforced in respect of events or circumstances that occurred prior to their official publication.462

7.6.2.2 Whether the obligation in the second sentence of Article X:3(b) is "structural" in nature

7.293.
The Panel turns, finally, to the United States' argument that the obligation in the second sentence of Article X:3(b) is "structural" in nature.
7.294.
The United States argues that Article X:3(b) imposes nothing more than what it calls an obligation of "structure".463 In this regard, the United States argued that the provisions of Article X:3(b) are directed to ensuring that Members set up an appropriate structure so that tribunals or procedures may review administrative action and that administrative agencies will then implement those decisions. According to the United States, once a Member has put in place a "structure" of independent tribunals to review and correct agency action, it has no obligation to ensure that specific court decisions are actually "implemented by" and "govern the practice of" the government agency whose action is subject to review. The United States explains that "[f]or there to be a breach of Article X:3(b), the Member must have failed to establish tribunals that issue final decisions that shall be implemented by agencies".464 In response to a question from the Panel, the United States submits that the first and second sentences of Article X:3(b) establish a single obligation, which is structural in nature.465 The United States refers to certain statements by the panel and the Appellate Body in Thailand – Cigarettes (Philippines) in support of its view that the obligation in Article X:3(b) is structural in nature.466
7.295.
China rejects the United States' interpretation of the obligations under Article X:3(b).467 In this regard, China argues that the United States' "structural" interpretation is based exclusively on the first sentence of Article X:3(b). China submits that even if the word "maintain" in this sentence could be construed to refer only to the initial establishment of such tribunals – a doubtful proposition according to China – it is the next sentence of Article X:3(b) that establishes the relevant obligation in this dispute. According to China, the wording of the second sentence of Article X:3(b) makes clear that it is a separate and mandatory obligation. This obligation relates to the "decisions" of independent tribunals, i.e. their actual decisions, not just their decisions in some abstract legal "framework". Among other things, China argues that the use of the word "the" in this proviso confirms that the obligation in this sentence refers to specific "decisions", not just "decisions" in the abstract. China argues that the claims under Article X:3(b) in Thailand – Cigarettes (Philippines) concerned the first sentence of Article X:3(b), and is not particularly relevant to the issues before the Panel in this dispute.468
7.296.
The Panel has analysed whether Article X:3(b) prohibits a Member from taking legislative action in the nature of Section 1 of PL 112-99. We conducted this analysis on the arguendo assumption that the obligation in the second sentence of Article X:3(b) goes beyond what the United States terms an obligation of "structure". We have already found that the obligation in the second sentence of Article X:3(b) does not prohibit a Member from taking legislative action in the nature of Section 1 of PL 112-99. As a consequence, we found that Section 1 of PL 112-99 is not inconsistent with the United States' obligation in the second sentence of Article X:3(b), even on the assumption that China is correct in its view that the obligation in the second sentence of Article X:3(b) is more than a "structural" obligation. In these circumstances, it is not necessary for us to go on and examine whether that obligation is only in the nature of a "structural" obligation: were we to agree with the United States on this interpretative issue, this would merely serve to establish a separate basis for our overall conclusion that Section 1 is not inconsistent with Article X:3(b)469; were we to agree with China on this issue, it would not affect our overall conclusion, as we would remain of the view that the obligation in the second sentence of Article X:3(b) does not prohibit a Member from taking legislative action in the nature of Section 1 of PL 112-99. Thus, we consider it unnecessary to resolve the parties' disagreement on whether the obligation in the second sentence of Article X:3(b) is in the nature of a "structural" obligation. We recall that "[j]ust as a panel has the discretion to address only those claims which must be addressed in order to dispose of the matter at issue in a dispute, so too does a panel have the discretion to address only those arguments it deems necessary to resolve a particular claim".470

7.6.3 Overall conclusion

7.297.
For the reasons set forth above, the Panel finds that the United States has not acted inconsistently with Article X:3(b) of the GATT 1994, as Article X:3(b), which requires that administrative agencies implement and be governed by decisions of the tribunals maintained to review their administrative action relating to customs matters, does not prohibit a Member from taking legislative action in the nature of Section 1 of PL 112-99.

7.7 "DOUBLE REMEDIES": ARTICLES 19.3, 10 AND 32.1 OF THE SCM AGREEMENT

7.298.
The Panel now turns to address China's claims that the United States acted inconsistently with Articles 19.3, 10 and 32.1 of the SCM Agreement. As the claims under Articles 10 and 32.1 are in the nature of consequential claims471, we will first examine the claim under Article 19.3.
7.299.
Article 19 of the SCM Agreement is entitled "Imposition and Collection of Countervailing Duties". Article 19.3 contains several obligations, including an obligation to levy countervailing duties "in the appropriate amounts" in each case. The text of Article 19.3 reads:

When a countervailing duty is imposed in respect of any product, such countervailing duty shall be levied, in the appropriate amounts in each case, on a non-discriminatory basis on imports from all sources found to be subsidized and causing injury, except as to imports from those sources which have renounced any subsidies in question or from which undertakings under the terms of this Agreement have been accepted. Any exporter whose exports are subject to a definitive countervailing duty but who was not actually investigated for reasons other than a refusal to cooperate, shall be entitled to an expedited review in order that the investigating authorities promptly establish an individual countervailing duty rate for that exporter.

7.300.
China challenges what it describes as USDOC's "failure to investigate and avoid double remedies" in 26 countervailing duty (CVD) investigations and administrative reviews initiated over the period 2008-2012. Relying on the Appellate Body report in US – Anti-Dumping and Countervailing Duties (China) (hereafter DS379), China argues that Article 19.3 obliges an investigating authority to "investigate" and determine, on the basis of "positive evidence", whether double remedies arise in situations when an investigating authority concurrently imposes CVDs and anti-dumping duties calculated under a nonmarket economy (NME) methodology. China submits that the United States has presented no "cogent reasons" to deviate from the Appellate Body's finding. China asserts that USDOC failed to take any steps to investigate and avoid double remedies in the investigations and reviews at issue in this dispute. Accordingly, China argues that any CVDs collected pursuant to the resulting CVD measures are inconsistent with Article 19.3.472
7.301.
The United States submits that China's claims are baseless both legally and factually. Regarding the legal basis of the claims, the United States argues that China's claim is "founded on an erroneous interpretation" of Article 19.3, and that the Appellate Body's reasoning in DS379 is "not persuasive". Regarding the factual basis of the claims, the United States argues that China has failed to substantiate its assertions regarding USDOC's alleged failure to investigate and avoid double remedies. Accordingly, the United States asks the Panel to reject China's claims under Article 19.3.473
7.302.
The Panel notes that there are two main issues. The first issue is whether, as China contends, Article 19.3 obliges an investigating authority to investigate and avoid double remedies when concurrently imposing CVDs and anti-dumping duties calculated under an NME methodology. The second issue is whether, in the CVD investigations and reviews at issue in this dispute, USDOC imposed CVDs concurrently with anti-dumping duties calculated under an NME methodology without investigating whether double remedies arose. We will begin by explaining what is meant by "double remedies". We will then address the two main issues in turn.

7.7.1 The concept of "double remedies"

7.303.
The Panel considers it useful to explain what is meant by the concept of "double remedies", because it underlies China's claims in this dispute. In short, to the extent that a subsidy leads to a reduction in the export price of a product, that subsidy will necessarily be captured in the dumping margin if that dumping margin, and the resulting anti-dumping duty, are calculated using a nonmarket economy methodology that calculates normal value based on surrogate values from a third country. From this, it follows that if a Member imposes a CVD in an amount equivalent to the full amount of the subsidy in such circumstances, and an anti-dumping duty equivalent to the full amount of the dumping margin is concurrently imposed on the same products to offset the dumping, this will result in the subsidy being offset twice, i.e. a double remedy. Thus, whether or not a double remedy will arise in a particular case depends on whether (and to what extent) a subsidy leads to a reduction in the export price of the product at issue.
7.304.
In DS379, both the panel and the Appellate Body elaborated on what is meant by "double remedies". The Appellate Body, drawing upon the panel's explanation474, stated:

In essence, "double remedies" may arise when both countervailing duties and anti-dumping duties are imposed on the same imported products. The term "double remedies" does not, however, refer simply to the fact that both an anti-dumping and a countervailing duty are imposed on the same product. Rather, as explained below, "double remedies", also referred to as "double counting", refers to circumstances in which the simultaneous application of anti-dumping and countervailing duties on the same imported products results, at least to some extent, in the offsetting of the same subsidization twice. [...]

[...] When investigating authorities calculate a dumping margin in an anti-dumping investigation involving a product from an NME, they compare the export price to a normal value that is calculated based on surrogate costs or prices from a third country.475 Because prices and costs in the NME are considered unreliable, prices, or, more commonly, costs of production, in a market economy are used as the basis for calculating normal value.476 In the dumping margin calculation, investigating authorities compare the product's constructed normal value (not reflecting the amount of any subsidy received by the producer) with the product's actual export price (which, when subsidies have been received by the producer, is presumably lower than it would otherwise have been). The resulting dumping margin is thus based on an asymmetric comparison and is generally higher than would otherwise be the case.477

As the Panel explained, the dumping margin calculated under an NME methodology "reflects not only price discrimination by the investigated producer between the domestic and export markets ('dumping')", but also "economic distortions that affect the producer's costs of production", including specific subsidies to the investigated producer of the relevant product in respect of that product.478 An anti-dumping duty calculated based on an NME methodology may, therefore, "remedy" or "offset" a domestic subsidy, to the extent that such subsidy has contributed to a lowering of the export price.479 Put differently, the subsidization is "counted" within the overall dumping margin. When a countervailing duty is levied against the same imports, the same domestic subsidy is also "counted" in the calculation of the rate of subsidization and, therefore, the resulting countervailing duty offsets the same subsidy a second time. Accordingly, the concurrent imposition of an anti-dumping duty calculated based on an NME methodology, and a countervailing duty may result in a subsidy being offset more than once, that is, in a double remedy. Double remedies may also arise in the context of domestic subsidies granted within market economies when anti-dumping and countervailing duties are concurrently imposed on the same products and an unsubsidized, constructed, or third country normal value is used in the anti-dumping investigation.480

The Panel understood the United States to have accepted the principle that double remedies may result from the concurrent imposition, on the same product, of countervailing duties and anti-dumping duties calculated using an NME methodology.481 The United States nevertheless argued that the existence of a double remedy depends on whether the subsidy leads to a reduction in the export price in any given instance, and contended that it cannot be presumed that domestic subsidies lower export prices pro rata,or one-for-one.482483

7.305.
The parties use the term "double remedies" in the same sense in this dispute, and so do we. Likewise, when referring to an "NME methodology" in this Report, we are referring to a methodology for the calculation of dumping margins under which the export price is compared to a normal value that is constructed on the basis of "surrogate" costs or prices from a third country. In other words, we use the term "NME methodology" in the same sense as the panel and the Appellate Body in DS379.484
7.306.
In outlining the concept of double remedies above, we have sought to explain what is meant by "double remedies". This entails an explanation of why and how double remedies potentially arise when CVDs are imposed concurrently with anti-dumping duties calculated under an NME methodology. The likelihood of double remedies arising is a disputed issue in this case. We will address that issue at a subsequent step of our analysis.485
7.307.
Having defined the concept of "double remedies", we will now proceed to address the first main issue in this dispute, which relates to the interpretation of Article 19.3.

7.7.2 The interpretation of Article 19.3

7.308.
In DS379, China argued that the imposition of double remedies is inconsistent with Article 19.3 and 19.4 of the SCM Agreement (and certain other WTO provisions), whereas the United States argued that Article 19.3 and 19.4 do not relate to the issue of double remedies. The panel agreed with the United States.486 On appeal, the Appellate Body reversed the panel's interpretation of Article 19.3, and in this connection made two findings regarding the interpretation of Article 19.3, which are relevant to the present dispute: (i) the imposition of double remedies arising from the concurrent imposition of CVDs and anti-dumping duties calculated under an NME methodology is inconsistent with the obligation in Article 19.3 to levy CVDs "in the appropriate amounts"487; and (ii) the burden is on an investigating authority imposing such concurrent duties to "investigate" whether it is offsetting the same subsidies twice.488 The Appellate Body proceeded to complete the analysis, and found, based on the panel's factual findings and the undisputed facts in the panel record, that the United States acted inconsistently with Article 19.3 by virtue of USDOC's failure to assess whether double remedies arose in the four sets of investigations at issue in that dispute.489
7.309.
China agrees with both of the Appellate Body's interpretations of Article 19.3 above, and argues that the Panel should adopt those same interpretations in this dispute. The United States disagrees with both interpretations developed by the Appellate Body. The United States also argues that any obligation to investigate double remedies would not apply to CVD investigations in the context of the United States retrospective system of duty assessment.
7.310.
The Panel considers that the relevant issue raised in respect of China's claim under Article 19.3 is whether that provision obliges an investigating authority to assess the existence of double remedies when concurrently imposing CVDs and anti-dumping duties calculated under an NME methodology, and if so, whether such an obligation applies not only to administrative reviews, but also to original investigations, in the context of a retrospective system of duty assessment such as that of the United States.490 To address this issue, we will consider the following: first, whether we should revisit the interpretation of Article 19.3 notwithstanding the Appellate Body Report in DS379; second, whether the phrase "in the appropriate amounts" in Article 19.3 relates to only the non-discrimination obligation in that provision, as the United States contends; third, whether an investigating authority is under an affirmative obligation to investigate the existence of double remedies; and fourth, whether the obligation in Article 19.3 applies to original investigations in the context of the United States retrospective system of duty assessment. We will address these issues in this order.

7.7.2.1 The task of the Panel in the light of the prior Appellate Body Report in DS379

7.311.
The United States argues that with respect to the interpretation of Article 19.3, the Panel is to undertake its own interpretation of that provision by applying the customary rules of interpretation of public international law. The United States submits that a WTO panel is not bound to follow the reasoning set forth in any adopted panel or Appellate Body report. In its view, the rights and obligations of the Members flow not from adoption by the DSB of panel or Appellate Body reports, but from the text of the covered agreements. The United States argues that "a prior Appellate Body report is to be taken into account only to the extent it is relevant and a panel should follow the reasoning in a prior Appellate Body report only if that panel found the reasoning to be persuasive".491 The United States recalls that the Appellate Body has also itself recognized that at a minimum panels are "free to depart"492 from prior Appellate Body findings where there are "cogent reasons", and one example of a cogent reason would be where the Appellate Body findings are not persuasive or not in keeping with the covered agreements.493
7.312.
The United States also submits that it has presented new arguments regarding the interpretation of Article 19.3 that were not considered by the Appellate Body in DS379, and states that Article 19.3 was not the focus of China’s arguments in DS379. According to the United States, China did not argue for the interpretation of Article 19.3 that the Appellate Body adopted in DS379 and largely based it claims on Article 19.4. For this reason, the United States submits that it never had an opportunity to address the interpretation adopted by the Appellate Body in DS379, and that the reasoning of the Appellate Body "strayed far afield"494 from the arguments presented by the parties in DS379. Thus, this dispute represents the first opportunity the United States has had to address rationales first introduced by the Appellate Body in DS379.495
7.313.
China argues that the Panel should reject the United States' invitation to revisit the interpretation of Article 19.3. China recalls prior Appellate Body statements to the effect that panels are expected to follow Appellate Body interpretations where the issues are the same, including the need for "cogent reasons" to deviate from a prior Appellate Body interpretation. The Appellate Body has not defined the concept of "cogent reasons", but, according to China, it cannot be the case that rehearsing arguments that are materially indistinguishable from arguments that the Appellate Body considered and rejected in DS379 would qualify. Likewise, China argues that the mere assertion that the Appellate Body findings are "not persuasive or not in keeping with the covered agreements" is not a "cogent reason" for the Panel to decline to follow the Appellate Body's interpretation. China argues also that this is particularly true in a dispute, such as this one, that involves the same litigants, the same types of measures, and the same claims, in relation to an issue of interpretation that was analysed exhaustively by the Appellate Body in its report. China asserts that the attempt by the United States to re-litigate an interpretative issue that the Appellate Body has already resolved is "even more surprising and inappropriate"496 in light of the fact that Congress enacted a new provision of United States law to comply with that decision. China charges that it is "wasteful in the extreme"497 to continue litigating these issues when the United States has already taken steps to bring itself into compliance, and inconsistent with the goal of bringing security and predictability to the multilateral trading system.498
7.314.
China further argues that in its appeal of the panel report in DS379, China advocated precisely the interpretation of Article 19.3 that the Appellate Body adopted. China submits that the United States had every opportunity to present arguments in opposition to this interpretation. China further argues that the "new" arguments that the United States put forward in this case are "materially indistinguishable"499 from those considered by the Appellate Body in DS379, and amount to "nothing more than taking issue" with the Appellate Body's detailed interpretative analysis of this provision.500
7.315.
The Panel is presented with an interpretative issue that has already been resolved in an adopted Appellate Body report in another dispute. The Appellate Body has stated that its legal interpretation of a provision in the covered agreements "is not limited to the application of a particular provision in a specific case".501 The Appellate Body has emphasized that "following the Appellate Body's conclusions in earlier disputes is not only appropriate, but is what would be expected from panels, especially where the issues are the same".502 In the Appellate Body's view, this expectation supports "a key objective of the dispute settlement system", namely, "to provide security and predictability to the multilateral trading system".503 The Appellate Body has stated that a failure to acknowledge the "hierarchical structure" contemplated in the DSU would "undermine[] the development of a coherent and predictable body of jurisprudence clarifying Members' rights and obligations under the covered agreements".504 In US – Stainless Steel (Mexico),the Appellate Body stated that it was "deeply concerned about the Panel's decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues", and explained that the panel's approach in that dispute had "serious implications for the proper functioning of the WTO dispute settlement system".505 The Appellate Body explained that the DSU contains a number of provisions that support this view, including, among others, Articles 3.2, 17.6, and 17.13.506
7.317.
From the foregoing we conclude that a panel must take the Appellate Body's prior interpretation as a point of departure in its interpretative analysis. However, a panel may confront the issue, e.g. because it has been raised by a party, of whether there are any arguments or there is any evidence submitted to the panel that would provide "cogent reasons" to reach a different interpretation. In our view, bearing in mind the Appellate Body's particular function in the WTO dispute settlement system, reasons that could support but would not compel a different interpretative result to the one ultimately adopted by the Appellate Body would not rise to the level of "cogent" reasons. To our minds, "cogent" reasons, i.e. reasons that could in appropriate cases justify a panel in adopting a different interpretation, would encompass, inter alia: (i) a multilateral interpretation of a provision of the covered agreements under Article IX:2 of the WTO Agreement that departs from a prior Appellate Body interpretation; (ii) a demonstration that a prior Appellate Body interpretation proved to be unworkable in a particular set of circumstances falling within the scope of the relevant obligation at issue; (iii) a demonstration that the Appellate Body's prior interpretation leads to a conflict with another provision of a covered agreement that was not raised before the Appellate Body; or (iv) a demonstration that the Appellate Body's interpretation was based on a factually incorrect premise.

7.7.2.2 The meaning of the phrase "in the appropriate amounts" in Article 19.3

7.318.
With the above observations in mind, the Panel now turns to the meaning of the phrase "in the appropriate amounts" in Article 19.3. We recall that in DS379, the Appellate Body found that the imposition of double remedies would be inconsistent with Article 19.3, specifically with the obligation to levy CVDs "in the appropriate amounts" in each case.508 The issue which the United States' arguments present us with is whether there are cogent reasons to depart from the Appellate Body's interpretation of the phrase "in the appropriate amounts" in Article 19.3.
7.319.
The United States argues that Article 19.3 is essentially a non-discrimination provision requiring that CVDs be levied "on a non-discriminatory basis on imports... from all sources" found to be subsidized and causing injury, and that the phrase "the appropriate amounts in each case" simply means that a Member is permitted to impose different amounts of CVDs upon different exporters because different producers and exporters of the product in question may have received different amounts of subsidies. The United States argues that the Appellate Body's interpretation of the phrase "appropriate amounts", which results in a subjective and open-ended concept and goes far beyond the non-discrimination principle in Article 19.3, is not persuasive.509 In support of its interpretation of the phrase "in the appropriate amounts", the United States presents arguments based on a textual analysis of these terms and the remainder of Article 19.3510; a contextual analysis of the structure of the SCM Agreement and the nature and scope of the obligations in Articles 19.1, 19.2, and 19.4511; the interpretation developed by the panel in EC – Salmon (Norway)512; and the rules that govern(ed) the concurrent application of CVDs and anti-dumping duties in Article VI:5 of the GATT 1994 and Article 15 of the Tokyo Round Subsidies Code.513 In the context of providing comments on China's responses to the second set of questions from the Panel, the United States presents an argument based on what it terms the "negotiating history" of Article 19.3.514
7.320.
China relies on the Appellate Body's interpretation of the phrase "in the appropriate amounts" in DS379. In this regard, China recalls that the Appellate Body found that the amount of a CVD cannot be "appropriate" within the meaning of Article 19.3 in situations where that duty represents the full amount of the subsidy and where antidumping duties, calculated at least to some extent on the basis of the same subsidization, are imposed concurrently to remove the same injury to the domestic industry.515 China counters that the "new" arguments that the United States put forward in this case are "materially indistinguishable" from those considered by the Appellate Body in DS379, and amount to "nothing more than taking issue with the Appellate Body's detailed interpretative analysis of this provision".516
7.321.
The Panel agrees with China that most of the arguments that the United States has presented in this case are similar to those considered by the Appellate Body in DS379. At a minimum, this holds true for the United States' arguments regarding the interpretation developed by the panel in EC – Salmon (Norway)517, and the provisions governing the concurrent application of CVDs and anti-dumping duties in Article VI:5 of the GATT 1994 and Article 15 of the Tokyo Round Subsidies Code.518 As regards the United States' textual analysis of the phrase "in the appropriate amounts" and the remainder of Article 19.3519, and its contextual analysis of the structure of the SCM Agreement and the nature and scope of the obligations in Article 19.1, 19.2, and 19.4520, this appears to be an elaboration of the same interpretation that the Appellate Body considered and rejected in DS379. The Appellate Body devoted nine pages of analysis to the text of Article 19.3521 and its context522, including but not limited to express consideration of Articles 10, 19.1, 19.2, 19.3, 21.1, 32.1 of the SCM Agreement, the parallel provisions of the Anti-Dumping Agreement, and Article VI:5 and the Ad Note to Article VI:1 of the GATT 1994. The Appellate Body reached a different conclusion regarding the interpretation of these provisions from that advanced by the United States.523
7.322.
We do not agree with the United States that it was Article 19.4, and not Article 19.3, that was the focus of China’s arguments in DS379.524 It is clear from the panel report in DS379 that a number of the interpretative arguments advanced by the parties and considered by the panel, were relevant both to Articles 19.3 and 19.4. Rather than repeating its analysis, the panel simply incorporated it by reference in the context of its relatively brief section on Article 19.3. As the Appellate Body noted in its own report:

The Panel reviewed what it considered to be relevant contextual elements for its interpretation of Article 19.4 of the SCM Agreement. However, the Panel also recalled these contextual elements in its interpretation of Article 19.3 and noted that "[t]he same considerations likewise suggest that it was not the intention of the drafters [of] the SCM Agreement to address the question of double remedies in Article 19.3 of the SCM Agreement". (Panel Report, para. 14,129)525

7.323.
We consider that the United States' arguments in this case rebut a position that the Appellate Body did not actually take in DS379. According to the United States, "[t]he interpretation advanced by the Appellate Body … does not relate the phrase 'in the appropriate amounts' at all to the non-discrimination obligations of Article 19.3".526 However, it appears to us that the Appellate Body accepted that the meaning of the phrase "in the appropriate amounts" is informed by, and linked to, the non-discrimination obligation in Article 19.3. The Appellate Body observed in this regard that the first sentence of Article 19.3 contains two elements: first, a requirement that CVDs be levied in the appropriate amounts in each case, and, second, a requirement that these duties be levied on a non-discriminatory basis on imports of such product from all sources found to be subsidized and causing injury, except for imports from sources that have renounced the relevant subsidies or from which undertakings have been accepted.527 The Appellate Body then explained that:

We consider that the two requirements in the first sentence of Article 19.3 inform each other. Thus, it would not be appropriate for an importing Member to levy countervailing duties on imports from sources that have renounced relevant subsidies, or on imports from sources whose price undertakings have been accepted. Similarly, because the requirement that the duty be levied in "appropriate amounts" implies a certain tailoring of the amounts according to circumstances, this suggests that the requirement that the duty be imposed on a non-discriminatory basis on imports from all subsidized sources should not be read in an overly formalistic or rigid manner. The second sentence of Article 19.3 provides a specific example of circumstances in which it is permissible not to differentiate amongst individual exporters, as well as of when and how differentiated treatment in the establishment of a countervailing duty rate is required.528

7.324.
Thus, the Appellate Body did not read the phrase "in the appropriate amounts" in isolation from the non-discrimination obligation in Article 19.3. Rather, the Appellate Body determined that these two obligations "inform" one another. However, the Appellate Body's analysis of the phrase "in the appropriate amounts" shows that it did not read this phrase as being linked exclusively to, or informed exclusively by, the non-discrimination obligation in Article 19.3. Put differently, it appears that both the United States and the Appellate Body considered that the phrase "in the appropriate amounts" must be interpreted having regard to its context. The United States understood the relevant context to consist of the non-discrimination obligation in Article 19.3. The Appellate Body understood the relevant context to include the non-discrimination obligation in Article 19.3, but also other obligations in the SCM Agreement and Anti-Dumping Agreement. This is a significant difference, and so we are not suggesting that the Appellate Body's interpretation of Article 19.3 is essentially the same as the interpretation advocated by the United States. The critical point is that the Appellate Body did not suggest that the phrase "in the appropriate amounts" is unconnected to the non-discrimination obligation in Article 19.3. Rather, it concluded that the phrase "in the appropriate amounts" is not unconnected to other obligations contained in the SCM Agreement, as well as the Anti-Dumping Agreement. Accordingly, we consider that the United States' argument intended to demonstrate that the phrase "in the appropriate amounts" must be interpreted in a manner that links it to the non-discrimination obligation in Article 19.3 does not invalidate the Appellate Body's interpretation of that phrase.
7.325.
This leads us to the United States' arguments relating to the origins of the phrase "in the appropriate amounts". At the second meeting with the Panel, and again in the context of providing comments on China's written responses to the second and final set of questions from the Panel, the United States presented an argument based on what it termed the "negotiating history" of Article 19.3.529 In this regard, the United States traces the phrase "in the appropriate amounts" back to the 1960 "Second Report of the Group of Experts on Anti-Dumping and Countervailing Duties" (L/1141); a 1965 "Draft International Code on Anti-Dumping Procedure and Practice" (Spec(65)86); a 1966 Secretariat document on "Draft Elements to Be Considered for Inclusion in an Anti-Dumping Code" (TN.64/NTB/W/13); a "Revised List" of elements (TN.64/NTB/W/14); and the Kennedy Round Antidumping Code, and the Tokyo Round Subsidies Code.530 According to the United States, these documents suggest that the GATT Contracting Parties viewed the phrase "in the appropriate amounts" as being linked to the non-discrimination obligation that is now contained in Article 19.3 of the SCM Agreement.531 We need not express a view on whether a panel could depart from a prior Appellate Body interpretation on the basis of "supplementary means of interpretation" under Article 32 of the Vienna Convention in the situation where the Appellate Body concluded that the text and context of the provision at issue were sufficiently clear and that it was therefore not necessary to have recourse to supplementary means of interpretation to confirm that interpretation.532 As we have explained above, we do not understand the Appellate Body report in DS379 to mean that the phrase "in the appropriate amounts" is "unconnected"533 to the non-discrimination obligation in Article 19.3. Therefore, even if the documents submitted by the United States supported the view that the phrase "in the appropriate amounts" must be read together with the non-discrimination obligation in Article 19.3, these historical documents would not invalidate the Appellate Body's interpretation in DS379. Moreover, the United States did not indicate to us that any of the special circumstances of the type outlined in paragraph 7.20 above, which could constitute "cogent" reasons that could in appropriate cases justify a panel in adopting a different interpretation, are applicable in the current case.
7.326.
In the light of the foregoing, the Panel considers that the United States has not presented "cogent reasons" to depart from the Appellate Body's prior interpretation that the imposition of double remedies is inconsistent with the obligation in Article 19.3 to levy CVDs "in the appropriate amounts in each case".534 Accordingly, we will base our analysis of China's claim on the Appellate Body's interpretation.

7.7.2.3 Whether an investigating authority is under an affirmative obligation to investigate the existence of double remedies

7.327.
The Panel, having considered the meaning of the phrase "in the appropriate amounts" in Article 19.3, will now proceed to consider whether there are cogent reasons to depart from another element of the Appellate Body's interpretation of Article 19.3. This concerns the issue, put before us by the United States, whether an investigating authority is under an affirmative obligation to investigate the existence of double remedies. We recall that in DS379, the Appellate Body found that an investigating authority is "subject to an affirmative obligation to establish the appropriate amount of the duty under Article 19.3", and that this "affirmative obligation" encompasses "a requirement to conduct a sufficiently diligent 'investigation' into, and solicitation of, relevant facts, and to base its determination on positive evidence in the record".535
7.328.
The United States disagrees with the Appellate Body's finding that Article 19.3 establishes an affirmative obligation to investigate the existence of double remedies. On its face, Article 19 does not contain any obligations that require an administering authority to engage in an investigative function. The United States observes that Article 19 is entitled "imposition and collection" of CVDs, and Article 19.3 sets out an obligation relating to the CVD "levied". The United States argues that nothing in Article 19.3 relates to an obligation to investigate and other provisions in the SCM Agreement govern the conduct of investigations. The United States submits that, to find a duty to investigate residing in Article 19.3, the Appellate Body in DS379 states that it relied on the one hand on its findings in US – Countervailing Measures on Certain EC Products to draw a parallel between Article VI:3 of the GATT 1994 on the one hand, and Articles 19.3 and 19.4 of the SCM Agreement on the other hand. However, the United States avers that the analogy is misplaced because no parallel exists between Article VI:3 and Article 19.3, and the Appellate Body also misconstrued its prior findings in US – Countervailing Measures on Certain EC Products.
7.329.
The United States also disagrees with the premise that double remedies are "likely" to arise when CVDs are imposed concurrently with anti-dumping duties determined in accordance with the United States NME methodology.536 The United States argues that "the Appellate Body in DS379 presumed that domestic subsidies automatically lower export prices to some degree"537; however, the United States argues, this depends on the form of the subsidy, market forces, and other circumstances. The United States calls upon the Panel not to assume the same findings of the panel in DS379, but rather to make its own objective assessment of the facts. The United States further contends that China has made no effort to demonstrate the existence of a double remedy in any of the challenged sets of investigations and reviews or to identify evidence from any of the challenged determinations that would support the "presumptive" theory adopted by the panel, and subsequently by the Appellate Body, in DS379.
7.330.
China relies on the Appellate Body's finding that an investigating authority is under an "affirmative obligation" to investigate double remedies. China recalls that the Appellate Body held that investigating authorities have an "affirmative obligation to establish the appropriate amount of the duty under Article 19.3", and stated that this obligation requires investigating authorities "to conduct a sufficiently diligent 'investigation' into, and solicitation of, relevant facts, and to base its determination on positive evidence in the record". According to China, this includes taking into account "evidence of whether and to what degree the same subsidies are being offset twice", bearing in mind that double remedies are "likely" when the corresponding anti-dumping duties are determined in accordance with the United States NME methodology.
7.331.
China argues that the Appellate Body's legal finding that an investigating authority has an affirmative duty to investigate was based on the panel's finding in DS379, with which the Appellate Body agreed, that double remedies are "likely" to arise when CVDs are imposed concurrently with anti-dumping duties determined in accordance with the United States NME methodology. China notes that the United States has opted not to challenge this finding before the Appellate Body in DS379. According to China, the United States has presented no reason to support reaching a different factual conclusion from what the panel found in DS379. Accordingly, China argues, the Panel can and should adopt this finding.
7.332.
The Panel considers it useful to set out the Appellate Body's statements on this issue in DS379:

On appeal, China claims that it is "the obligation of the investigating authority to investigate and make a determination as to whether it is offsetting the same subsidies twice", whereas the United States argues that "the burden to establish the existence of such an alleged double remedy would be on China".

We observe that, in US – Countervailing Measures on Certain EC Products, the Appellate Body stated that, "under Article VI:3 of the GATT 1994, investigating authorities, before imposing countervailing duties, must ascertain the precise amount of a subsidy attributed to the imported products under investigation."538 We consider that a parallel can be drawn between the obligation of an investigating authority under Article VI:3 of the GATT 1994 to determine the precise amount of the subsidy, on the one hand, and the analogous obligations that an investigating authority has under Articles 19.3 and 19.4 of the SCM Agreement, on the other hand, to determine and levy countervailing duties in amounts that are appropriate in each case and that do not exceed the amount of the subsidy found to exist.

In the same way, therefore, as an investigating authority is subject to an affirmative obligation to ascertain the precise amount of the subsidy, so too is it subject to an affirmative obligation to establish the appropriate amount of the duty under Article 19.3. This obligation encompasses a requirement to conduct a sufficiently diligent "investigation" into, and solicitation of, relevant facts, and to base its determination on positive evidence in the record. We recall our finding above that, among the factors to be taken into account by an investigating authority, in establishing the "appropriate" amount of countervailing duty to be imposed, is evidence of whether and to what degree the same subsidies are being offset twice when anti-dumping and countervailing duties are simultaneously imposed on the same imported products. We also recall that such double remedies are "likely" when the concurrent anti-dumping duties are calculated on the basis of an NME methodology.539540

7.333.
We agree with the United States that the text of Article 19.3 does not contain any explicit obligation to "investigate" the existence of double remedies. However, we do not consider that this is sufficient, in and of itself, to undermine the Appellate Body's conclusion. In our view, the Appellate Body based its finding on a necessary implication arising from the words that are found in Article 19.3. That is, the Appellate Body appeared to reason that the obligation to assess and collect CVDs in the appropriate amounts necessarily implies an affirmative obligation to first establish what the appropriate amount is.
7.334.
We do not agree with the United States that the Appellate Body relied on a misplaced analogy in referring to its prior analysis in US – Countervailing Measures on Certain EC Products. In that dispute, the Appellate Body examined Article VI:3 of the GATT 1994.Article VI:3 states that in order to offset or prevent dumping, a Member "may levy on any dumped product an anti‑dumping duty not greater in amount than the margin of dumping in respect of such product". In US – Countervailing Measures on Certain EC Products, the Appellate Body reasoned that these terms imply an obligation to "ascertain the precise amount of a subsidy attributed to the imported products under investigation".541 The Appellate Body reached that view by interpreting Article VI:3 in the context of a number of other provisions, including Articles 10 and 19.4 of the SCM Agreement. In DS379, the Appellate Body examined Article 19.3 of the SCM Agreement, which states that when a CVD is imposed in respect of any product, such CVD "shall be levied, in the appropriate amounts in each case …". In DS379, the Appellate Body reasoned that these terms of Article 19.3 implied "an affirmative obligation to establish the appropriate amount of the duty under Article 19.3".542 The Appellate Body reached that view by interpreting Article 19.3 in the context of a number of other provisions, including Articles 10 and 19.4 of the SCM Agreement. Thus, we see the analogy on which the Appellate Body relied as apt, and not misplaced.
7.335.
We have indicated that if there was a demonstration that an Appellate Body interpretation was based on a factually incorrect premise, this could amount to a "cogent reason" to depart from that interpretation.543 The United States argues that "the Appellate Body in DS379 presumed that domestic subsidies automatically lower export prices to some degree, but such a presumption is speculative", and that "it is not realistic to assume that an NME producer that receives a domestic subsidy automatically will reduce its export prices by the full amount of the subsidy".544
7.336.
We understand the Appellate Body's interpretation of Article 19.3 to stem, at least in part, from the fact that the Appellate Body, like the panel, accepted the "general proposition"545 that double remedies are "likely" to arise when CVDs are imposed concurrently with anti-dumping duties determined in accordance with the United States NME methodology.546 China agrees with that proposition.547 The United States challenges that proposition, arguing that "the Appellate Body in DS379 presumed that domestic subsidies automatically lower export prices to some degree, but such a presumption is speculative".548 In the light of the United States' arguments, we will proceed to examine (i) what the panel and Appellate Body actually said in DS379, (ii) whether the United States raises issues here that were not considered in DS379, and (iii) China's uncontested assertions regarding USDOC findings in the Section 129 redeterminations for the four investigations that were at issue in DS379.
7.337.
First, we consider what the panel and Appellate Body actually said in DS379. The panel and the Appellate Body in DS379 both accepted the "general proposition" that double remedies are "likely" to arise from the concurrent imposition of CVDs and anti-dumping duties calculated under an NME methodology. The panel and the Appellate Body discussed this general proposition in detail.549 The Appellate Body, like the panel in DS379, explicitly made clear that it was not convinced that double remedies necessarily result in every instance of such concurrent application of CVDs and anti-dumping duties calculated under the NME methodology:

We do not accept China's contention that a finding of inconsistency of the measures at issue must directly follow from our reversal of the Panel's interpretation of Article 19.3 of the SCM Agreement. We have expressed the view that, as a legal matter, this provision prohibits double remedies. But, we have not yet considered the question of when, as a factual matter, double remedies arise. In principle, we agree with the statement by the Panel that double remedies would likely result from the concurrent application of anti-dumping duties calculated on the basis of an NME methodology and countervailing duties550, but we are not convinced that double remedies necessarily result in every instance of such concurrent application of duties. This depends, rather, on whether and to what extent domestic subsidies have lowered the export price of a product, and on whether the investigating authority has taken the necessary corrective steps to adjust its methodology to take account of this factual situation.551

7.338.
In the light of this, it appears to us that the United States misreads the panel and Appellate Body reports in DS379 when the United States argues that "the Appellate Body in DS379 presumed that domestic subsidies automatically lower export prices to some degree".552 Second, insofar as the United States is actually challenging the general proposition that double remedies are "likely" to lower export prices to some degree, its arguments appear to be the same arguments presented to, and rejected by, the panel in DS379. In this case, the United States argues that whether a subsidy lowers export prices depends on the form of the subsidy, market forces, and other circumstances.553 When presented with similar arguments, the panel in DS379 responded:

The United States puts forward a number of scenarios under which it is plausible that the subsidy would not have a one-for-one impact on the producer's costs of production or on export prices. The United States also points out that the imposition of countervailing duties is not conditioned upon a demonstration of the price effects of the subsidy; in other words, that a Member is allowed to countervail subsidies that have no effects on the price of subsidized imports.

All else being equal, one would expect a domestic subsidy to lower the recipient's production costs, allowing that producer to lower its prices in both the domestic and export markets.554 It would, in our view, be a rare case in which a subsidy bestowed upon the producer of an exported good has no effect at all on either the producer's costs of production or – assuming they are relevant – export prices, such that no portion of that subsidy would be subject to a double remedy where both anti-dumping duties based on an NME methodology, and countervailing duties, were imposed on imports of a given product.

In sum, the United States' arguments raise the question of the extent of a double remedy in specific factual circumstances – whether a complete double remedy necessarily results from all instances of concurrent imposition of anti-dumping duties calculated under an NME methodology and of countervailing duties. They do not, however, invalidate the general proposition that at least some double remedy will likely arise from the concurrent imposition of countervailing duties and anti-dumping duties calculated under an NME methodology. If anything, the arguments put forward by the United States reinforce the idea that ascertaining the precise extent of double remedy in specific investigations would be a complex task, a fact which is highlighted by both the GAO, in its 2005 Report, and by the CIT in GPX.555556

7.339.
We recall the Appellate Body's statement that while "factual findings made in prior disputes do not determine facts in another dispute … if the critical evidence is the same and the factual question about the operation of domestic law is the same, it is likely that the finder of facts would reach similar findings in the two proceedings."557 It is not contested that the factual question facing the Panel in this dispute is the same question that was confronted by the panel in DS379, that the underlying NME methodology subject to that factual inquiry is identical, and that the dispute is between the same parties.558
7.340.
Third, we note China's uncontested assertions regarding USDOC's Section 129 redeterminations for the four investigations that were at issue in DS379. Specifically, the United States does not contest China's assertion that, in the Section 129 redeterminations for the four investigations at issue in DS379, USDOC estimated that 63% of the input subsidies that the USDOC had identified had been double counted.559 Thus, insofar as the United States is arguing that it is impossible or incorrect to assert any general proposition regarding the likelihood (or lack thereof) of domestic subsidies lowering export prices, this argument is not supported by the USDOC's recent redeterminations for the four investigations examined in DS379. As these four different investigations would have involved a variety of different subsidies, and a series of producers, USDOC's finding that 63% of the input subsidies that the USDOC had identified had been double counted is consistent with the general proposition, supported by the panel and the Appellate Body in DS379, that domestic subsidies are likely to lower the export price of a product to some extent, and that, for that reason, double remedies are "likely" to arise from the concurrent imposition of CVDs and anti-dumping duties calculated under the United States' NME methodology.
7.341.
Based on all of the foregoing, we consider that the United States has failed to present us with any sufficient basis to reject the general proposition, supported by the panel and Appellate Body in DS379, that domestic subsidies are likely to lower the export price of a product to some extent, and that, for that reason, double remedies are "likely" to arise from the concurrent imposition of CVDs and anti-dumping duties calculated under the United States' NME methodology. Thus, we are not persuaded that the Appellate Body's interpretation of Article 19.3 was based on a factually incorrect premise.
7.342.
In the light of the foregoing, the Panel considers that the United States has not presented "cogent reasons" to depart from the Appellate Body's prior interpretation that an investigating authority is under an affirmative obligation to determine, based on positive evidence, whether the concurrent imposition of CVDs and anti-dumping duties calculated under an NME methodology will result in double remedies.560 Accordingly, we will base our analysis on the Appellate Body's interpretation.

7.7.2.4 Whether the obligation in Article 19.3 applies to original investigations in the context of a retrospective system of duty assessment

7.343.
The Panel will now consider the United States argument that, in the context of a retrospective system of duty assessment, the obligations in Article 19.3 apply only to administrative reviews, and not to original investigations. In DS379, however, the Appellate Body found that the United States acted inconsistently with its obligations in Article 19.3 in the context of four sets of original investigations. In view of the United States argument, we will therefore proceed to consider whether there are cogent reasons to depart from the Appellate Body's interpretation of Article 19.3 insofar as it brings original investigations within the scope of application of Article 19.3.
7.344.
The United States argues that the obligation in Article 19.3 does not apply to original investigations under the United States retrospective system of duty assessment, which results in a decision whether to impose a CVD, and not the amount of duty to levy. Article 19.3 applies to situations when a CVD is "levied". Footnote 51 to Article 19.4 clarifies that, "[a]s used in this Agreement ‘levy’ shall mean the definitive or final legal assessment or collection of a duty or tax". Under the United States retrospective system of duty assessment, investigations serve as the basis to determine whether to issue a CVD "order" on a particular product. When USDOC issues an order following affirmative determinations of subsidization and injury, this directs the customs authority "to collect security against future liability (cash deposits or bonds)". It is the reviews, which may be conducted annually after issuance of an order, that serve as the basis to determine the actual amount of duties to be assessed. Therefore, under the United States retrospective duty system, duties are only "levied" through reviews. Accordingly, any purported obligation to investigate the appropriate amounts of duties to be levied would only apply in the context of administrative reviews (in which duties to be levied are at issue) and not in the context of investigations (in which duties to be levied are not at issue). As is evident in its report, the Appellate Body in DS379 did not consider the distinction between original investigations and administrative reviews in the United States retrospective system in interpreting Article 19.3.561
7.345.
China argues that the United States argument that the obligations in Article 19.3 do not apply to original investigations in the United States retrospective system has been rejected by the Appellate Body and by prior panels that have explicitly or implicitly addressed the issue. According to China, this Panel should also reject this argument.562
7.346.
The Panel recalls that in DS379, the measures at issue encompassed four sets of original investigations, not administrative reviews. Therefore, the Appellate Body's finding of a violation of Article 19.3 in respect of those investigations, by virtue of USDOC's failure to investigate double remedies in those investigations, is an implicit finding that the obligation in Article 19.3 applies to CVD investigations (and not only reviews) in the context of the United States system of duty assessment. We note that in DS379, the United States made the same argument before the panel that it makes before this Panel, i.e. that the obligation in Article 19.3 does not apply to original investigations under the United States retrospective system of duty assessment. The panel in DS379 did not consider it necessary to address the United States' argument, in the light of its conclusion, subsequently reversed by the Appellate Body, that the obligations in Article 19.3 and 19.4 do not relate to the issue of double remedies. However, the United States' arguments on this issue, China's counter-arguments, and the panel's decision, are all reflected in the panel report in DS379.563 It may be surmised that the Appellate Body would therefore have been aware of this issue, and did not expressly address it simply because the United States chose not to present this argument to the Appellate Body on appeal.
7.347.
We note that in at least one prior dispute, the Appellate Body explicitly stated that the obligation in Article 19.4 is applicable to original investigations in the context of the United States retrospective system of duty assessment. In US – Countervailing Measures on Certain EC Products, the Appellate Body upheld the panel's finding that the United States acted inconsistently with Article 19.4 in its original investigation determination by failing to account for the effect of a privatization on the existence of a subsidy benefit.564 In the course of its analysis, the Appellate Body stated that "[b]ecause the 12 determinations challenged in this dispute and on appeal include six original investigations, two administrative reviews and four sunset reviews, we must … examine this matter in the light of the provisions of the SCM Agreement covering each of these three types of countervailing duty determinations".565 After recalling the obligations in several provisions, including Article 19.4, the Appellate Body concluded that "[t]hese obligations apply to original investigations as well as to administrative and sunset reviews".566 We recognize that the obligation at issue in this case is Article 19.3, not Article 19.4. However, the United States argument relating to the interpretation of Article 19.3 is based on the use of the word "levy" in Article 19.3 and the corresponding definition of the term "levy" in footnote 51 to Article 19.4. Accordingly, the United States argument regarding the scope of Article 19.3 would, if correct, apply equally to the interpretation of Article 19.4, because Article 19.4 refers to the amount of countervailing duties that may be "levied".
7.348.
We attach significance to the consequences that would follow from the United States' interpretation of Article 19.3. In US – Carbon Steel, the Appellate Body offered the following observations on the object and purpose of the SCM Agreement:

[T]he [SCM] Agreement contains no preamble to guide us in the task of ascertaining its object and purpose. In Brazil – Desiccated Coconut, we observed that the 'SCM Agreement contains a set of rights and obligations that go well beyond merely applying and interpreting Articles VI, XVI and XXIII of the GATT 1947.'567 The SCM Agreement defines the concept of 'subsidy', as well as the conditions under which Members may not employ subsidies. It establishes remedies when Members employ prohibited subsidies, and sets out additional remedies available to Members whose trading interests are harmed by another Member's subsidization practices. Part V of the SCM Agreement deals with one such remedy, permitting Members to levy countervailing duties on imported products to offset the benefits of specific subsidies bestowed on the manufacture, production or export of those goods. However, Part V also conditions the right to apply such duties on the demonstrated existence of three substantive conditions (subsidization, injury, and a causal link between the two) and on compliance with its procedural and substantive rules, notably the requirement that the countervailing duty cannot exceed the amount of the subsidy. Taken as a whole, the main object and purpose of the SCM Agreement is to increase and improve GATT disciplines relating to the use of both subsidies and countervailing measures.

We thus believe that the Panel properly identified, as among the objectives of the SCM Agreement, the establishment of a framework of rights and obligations relating to countervailing duties568, and the creation of a set of rules which WTO Members must respect in the use of such duties.569 Part V of the 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.570

7.349.
Were we to accept the United States argument, the obligation in Article 19.3 (and, by necessary implication, the obligation in Article 19.4) would be triggered only by a final legal assessment of the amount of a countervailing duty. Under the United States system, such an assessment is in principle not made unless and until an administrative review is carried out; however, if no administrative review is requested, then the cash deposit rate ultimately becomes the final rate. This would mean that an investigating authority operating in a retrospective system of duty assessment could conduct a countervailing duty investigation, determine the precise amount of the subsidy rate (e.g. 25% ad valorem), and then proceed to impose a countervailing duty order in an amount that far exceeds the subsidy rate (e.g. 50% ad valorem). It could also impose the countervailing duty order on a discriminatory basis, given that the obligation in Article 19.3 to levy countervailing duty "on a non-discriminatory basis on imports of such product from all sources found to be subsidized" also applies to the "levy" of countervailing duties. These actions would not be inconsistent with the obligation in Article 19.3 (to levy a countervailing duty "in the appropriate amounts in each case") or Article 19.4 (prohibiting countervailing duties from being levied "in excess of the amount of the subsidy found to exist") under the United States interpretation of those provisions. The reason is that these obligations would not be triggered until such time as there was an administrative review leading to a final legal assessment, which may not take place for a considerable period of time after the imposition of the CVD order and the collection of cash deposits pursuant to that order571, or may not take place at all in the absence of a request from an interested party. As noted, in the absence of an administrative review, the cash deposits collected would ultimately become the final countervailing duties levied. In our view, an interpretation of Article 19.3 that has the potential to produce the aforesaid consequences is at variance with the object and purpose of the SCM Agreement, which includes the imposition of effective disciplines on Members applying CVDs to imports, and in particular "the requirement that the countervailing duty cannot exceed the amount of the subsidy".572
7.350.
We have indicated that if there was evidence that an interpretation developed by the Appellate Body led to a result that was unworkable in practice, this could amount to a "cogent reason" to depart from that interpretation.573 The United States has explained that, in the context of its retrospective system of duty assessment, original investigations and administrative reviews serve different functions. Therefore, we have considered whether the application of an obligation to investigate double remedies to original investigations would be unworkable in the context of the United States retrospective system of duty assessment. In this connection, we find it relevant that Section 2 of PL 112-99 explicitly obliges USDOC to take steps to investigate double remedies not only in the context of administrative reviews, but also in the context of original investigations.574 Specifically, Section 2(a) obliges USDOC to take into account the potential for the simultaneous imposition of anti-dumping and countervailing duties to result in overlapping remedies and to reduce the anti-dumping duty to the extent of overlap, provided certain conditions are met. Section 2(b)(1) then states that this obligation applies to "all investigations and reviews" initiated on or after 13 March 2012. Section 2(b)(2) further provides that it also applies to "all determinations" issued under Section 129(c) of the Uruguay Round Agreements Act, without distinguishing between different types of determinations. Section 2 is a measure apparently taken by the United States to comply with the recommendations and rulings of the DSB in DS379 as they relate to the issue of double remedies.575 Of course, the fact that the United States enacted this legislation does not suggest that it necessarily agrees with all aspects of the Appellate Body's interpretation of Article 19.3 in DS379. However, the fact that the United States enacted legislation that obliges USDOC to take steps to investigate double remedies not only in the context of administrative reviews, but also in the context of original investigations, suggests to us that the application of an obligation to investigate double remedies to original investigations is not unworkable in the context of the United States retrospective system of duty assessment.
7.351.
In the light of the foregoing, the Panel considers that the United States has not presented "cogent reasons" to depart from the Appellate Body's understanding that the obligation in Article 19.3 applies to original investigations in the context of a retrospective system of duty assessment.576 Accordingly, we will follow the Appellate Body's interpretation.

7.7.2.5 Overall conclusion on the interpretation of Article 19.3

7.352.
In the light of the foregoing, the Panel considers that the United States has not presented any "cogent reasons" that would justify the Panel in departing from the Appellate Body's interpretation of Article 19.3 in DS379. Accordingly, we will base our analysis on the Appellate Body's interpretation of Article 19.3.

7.7.3 The 26 investigations and reviews

7.353.
The Panel considers that the relevant question of fact raised in respect of China's claim under Article 19.3 is whether USDOC imposed CVDs concurrently with anti-dumping duties calculated under an NME methodology without investigating whether double remedies arose in the 26 CVD investigations and reviews at issue in this dispute. We will begin by defining the precise measures at issue in this dispute. We will then review the parties' evidence and arguments regarding the 26 investigations and reviews at issue in this dispute.

7.7.3.1 The measures at issue: USDOC's failure to investigate double remedies in a series of investigations and reviews

7.354.
China's claim under Article 19.3 is based on USDOC's alleged "failure to investigate and avoid" double remedies in 26 identified CVD investigations and reviews.
7.355.
The Panel sets out the relevant investigations and reviews below, in chronological order by reference to the date on which the investigation or review was initiated. In our analysis, we will generally refer to proceedings 1 through 25 as the "25 investigations and reviews at issue". For reasons that will be set out further below, we will address the last proceeding separately, i.eDrawn Stainless Steel Sinks (proceeding 26 below). China submitted the associated determinations in these investigations and reviews, and the final column indicates the relevant exhibit numbers.577

No.NAMEC-InitiationDetermination
1 Raw Flexible Magnets from the People's Republic of China C-570-923 72 FR 59076, October 18 2007 CHI-28
2 Lightweight Thermal Paper from the People's Republic of China C-570-921 72 FR 62209, November 2, 2007 CHI-29
3 Sodium Nitrite from the People's Republic of China C-570-926 72 FR 68568, December 5, 2007 CHI-30
4 Circular Welded Austenitic Stainless Pressure Pipe from the People's Republic of China C-570-931 73 FR 9994, February 25, 2008 CHI-31
5 Certain Circular Welded Carbon Quality Steel Line Pipe from the People's Republic of China C-570-936 73 FR 23184, April 29, 2008 CHI-32
6 Citric Acid and Certain Citrate Salts From the People's Republic of China C-570-938 73 FR 26960, May 12, 2008 CHI-33
7 Certain Tow Behind Lawn Groomers and Certain Parts Thereof from the People's Republic of China C-570-940 73 FR 42324, July 21, 2008 CHI-35
8 Certain Kitchen Appliance Shelving and Racks From the People's Republic of China C-570-942 73 FR 50304, August 26, 2008 CHI-36 USA-100
9 Certain Oil Country Tubular Goods from the People's Republic of China C-570-944 74 FR 20678, May 5, 2009 CHI-38
10 Prestressed Concrete Steel Wire Strand From the People's Republic of China C-570-946 74 FR 29670, June 23, 2009 CHI-39
11 Certain Steel Grating From the People's Republic of China C-570-948 74 FR 30278, June 25, 2009 CHI-40
12 Narrow Woven Ribbons With Woven Selvedge From the People's Republic of China C-570-953 74 FR 39298, August 6, 2009 CHI-41
13 Certain Magnesia Carbon Bricks From the People's Republic of China C-570-955 74 FR 42858, August 25, 2009 CHI-42
14 Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from the People's Republic of China C-570-957 74 FR 52945, October 15, 2009 CHI-43
15 Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses From the People's Republic of China C-570-959 74 FR 53703, October 20, 2009 CHI-44
16 Certain Potassium Phosphate Salts from the People's Republic of China C-570-963 74 FR 54778, October 23, 2009 CHI-45
17 Certain New Pneumatic Off-The-Road Tires from the People's Republic of China [Administrative Review] C-570-913 74 FR 54956, October 26, 2009 CHI-27
18 Drill Pipe From the People's Republic of China C-570-966 75 FR 4345, January 27, 2010 CHI-46
19 Aluminum Extrusions From the People's Republic of China C-570-968 75 FR 22114, April 27, 2010 CHI-47
20 Citric Acid and Certain Citrate Salts From the People's Republic of China [Administrative Review] C-570-938 75 FR 37759, June 30, 2010 CHI-34
21 Certain Kitchen Appliance Shelving and Racks From the People's Republic of China [Administrative Review] C-570-942 75 FR 66349, October 28, 2010 CHI-37
22 Multilayered Wood Flooring From the People's Republic of China C-570-971 75 FR 70719, November 18, 2010 CHI-48
23 High Pressure Steel Cylinders From the People's Republic of China C-570-978 76 FR 33239, June 8, 2011 CHI-49
24 Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China C-570-980 76 FR 70966, November 16, 2011 CHI-50
25 Utility Scale Wind Towers From the People's Republic of China C-570-982 77 FR 3447, January 24, 2012 CHI-51
26 Drawn Stainless Steel Sinks From the People's Republic of China C-570-984 77 FR 18211, March 27, 2012 CHI-52

7.356.
As indicated in the table above, proceedings 17, 20, and 21 are administrative reviews. Apart from these three administrative reviews, the remaining 23 proceedings are original investigations.
7.357.
China identified these investigations and reviews in Appendix A to its panel request, and again in Appendix A of Exhibit CHI-24. In addition to providing the information set forth above, China also identified the date, along with the corresponding United States Federal Register reference, for the associated preliminary or final determinations, orders, and amended final determinations and orders (where available) for each of these investigations and reviews.578 China provided the same information for all of the associated anti-dumping investigations and reviews in Appendix B to its panel request, and again in Appendix B of Exhibit CHI-24.
7.358.
In response to a Panel question579, China explained that for the purpose of defining the "measure(s)" at issue, China "does not perceive a distinction" between the relevant determinations themselves and the alleged "failure to investigate and avoid" double remedies in these determinations. According to China, the CVD determination is the relevant "measure" at issue in respect of each of the identified investigations and reviews. The CVD determination sets forth the evidence and reasoning that the USDOC relied upon in reaching its determination, as well as its disposition of issues that the USDOC was required to address in reaching its determination. The failure of the USDOC "to investigate and avoid double remedies" in these investigations and reviews is reflected in its determinations, either explicitly (e.g. in its refusal to investigate and avoid double remedies in response to requests made by interested parties) or implicitly (e.g. in its failure to indicate that it solicited and evaluated relevant information pertaining to double remedies). That being the case, China considers that the determinations and the failure to investigate and avoid double remedies are one and the same thing.
7.359.
Having identified the investigations and reviews at issue in this dispute, the Panel considers that it is important to clarify what China is challenging in respect of these investigations and reviews, and the resulting implications for what China has to prove in this dispute. In our view, two points in particular merit clarification. The first is that China is not asking the Panel to find that USDOC actually imposed double remedies in the investigations and reviews at issue. The second point, to which we shall return further below, concerns the relationship between the measure at issue, i.e. USDOC's "failure to investigate and avoid" double remedies, and China's argument, which China has advanced throughout this proceeding, that USDOC "lacked legal authority" to investigate and avoid double remedies over the period 20 November 2006 to 13 March 2012.580
7.360.
Dealing with the first point, the measure at issue in this dispute is identified in China's panel request as the United States' "failure to investigate and avoid" double remedies in certain investigations and reviews initiated between 20 November 2006 and 13 March 2012.581 In its submissions, China has repeatedly framed the measure before the Panel in the same way, i.e. as USDOC's failure to "investigate and avoid" double remedies. For example, Section VII.B of its first written submission is entitled "Article 19.3 of the SCM Agreement Requires the United States to Investigate and Avoid the Double Remedies that Are Likely to Occur when the United States Applies Countervailing Duties in Conjunction with Anti-Dumping Duties Determined under the U.S. NME Methodology"; Section VII.C of its first written submission is entitled "The USDOC Took No Steps to Investigate and Avoid Double Remedies in the Investigations at Issue in this Dispute"; and in its Request for Findings and Recommendations in its first written submission, China requests that the Panel find that "the United States acted inconsistently with Article 19.3 of the SCM Agreement by failing to investigate and avoid double remedies in the CVD determinations identified in CHI-24".582
7.361.
We recall that in DS379, the Appellate Body found that the United States acted inconsistently with Article 19.3 by failing to investigate whether double remedies arose in the investigations at issue. In DS379, neither the panel nor the Appellate Body arrived at any conclusion as to whether double remedies actually arose (and if so, in what amounts) from any of the four sets of investigations at issue in that dispute. In DS379, the Appellate Body explicitly found that "in the four sets of anti-dumping and CVD investigations at issue, by virtue of the USDOC's imposition of anti-dumping duties calculated on the basis of an NME methodology, concurrently with the imposition of countervailing duties on the same products, without having assessed whether double remedies arose from such concurrent duties, the United States acted inconsistently with its obligations under Article 19.3".583 We further observe that the sections of the panel and Appellate Body reports in DS379 concerning the issue of "double remedies" contain no mention of even basic factual elements that would have to be known to support any conclusion as to whether a double remedy arose in any particular case – including (but not limited to) the amount of the subsid(ies) at issue, and the margin of dumping.
7.362.
China's claim in this dispute is based on the Appellate Body's interpretation of Article 19.3. For the reasons already set forth above, we have also decided to base our analysis on the Appellate Body's interpretation of Article 19.3.584 Thus, the Panel understands China's claim in this dispute to be that USDOC acted inconsistently with Article 19.3 by failing to discharge its affirmative obligation to investigate whether double remedies arose, "irrespective of whether double remedies actually occurred in these investigations and reviews".585 China does not claim that the investigations and reviews at issue actually resulted in the imposition of double remedies. Accordingly, China has neither asserted nor sought to prove that double remedies actually arose in the investigations and reviews at issue. In response to a Panel question, China confirmed that its position is that it does not have to demonstrate, and that to uphold its claim the Panel does not have to find, that double remedies actually occurred in any of the investigations or reviews at issue.586
7.363.
The second point that merits clarification is the relationship between the measure at issue, i.e. USDOC's "failure to investigate and avoid" double remedies, and China's argument, which China has advanced throughout this proceeding, that USDOC "lacked legal authority" to investigate and avoid double remedies over the period 20 November 2006 and 13 March 2012.587 Here, we consider it useful to address a potential source of confusion that may arise from the manner in which China has formulated the measure at issue, namely USDOC's alleged failure to "investigate and avoid" double remedies. As we understand it, China is claiming that USDOC failed to investigate double remedies, and, as a consequence, thereby failed to avoid imposing double remedies. In this regard, when China challenges USDOC's failure to "investigate and avoid" double remedies, we understand China to mean that USDOC did not investigate, for the purpose of avoiding, double remedies.
7.364.
The Panel considers it important to clarify the relationship between the measure at issue, i.e. USDOC's alleged "failure to investigate and avoid" double remedies in proceedings 1 through 26, and China's argument, advanced throughout this proceeding, that USDOC lacked legal authority to investigate and avoid double remedies over the period 20 November 2006 and 13 March 2012. Section C of China's panel request identifies, as a measure at issue, the "Absence of Legal Authority" to identify and avoid double remedies in respect of investigations or reviews initiated between the period 20 November 2006 and 13 March 2012. In its panel request, China made an "as such" claim in respect of this alleged "omission". As reflected in our preliminary ruling under Article 6.2, China subsequently decided not to pursue this claim. Notwithstanding that China is not pursuing this claim, in attempting to substantiate its claim that USDOC failed to investigate and avoid double remedies in the 26 investigations and reviews at issue, China argues, inter alia, that USDOC failed to do so because it lacked legal authority to do so.588 In its response to a Panel question589, China clarified that the measure at issue for the purpose of China's claims in this dispute is USDOC's "failure to investigate and avoid double remedies in the identified investigations", not the alleged "absence of legal authority" to investigate and avoid double remedies prior to the enactment of Section 2 of PL 112-99, and China further clarified that USDOC's alleged "lack of legal authority" under United States law to investigate and avoid double remedies prior to the enactment of Section 2 is one factual basis, but not the only factual basis, supporting the conclusion that USDOC did not actually do so in the 26 investigations and reviews at issue. China explained that:

The fact that the USDOC had no authority under U.S. law to investigate and avoid double remedies prior to 13 March 2012 explains why the USDOC acted inconsistently with Article 19.3 in the investigations and reviews at issue, but it is the USDOC's failure to conduct a "sufficiently diligent 'investigation'"590 with respect to potential double remedies in the investigations and reviews at issue that is the basis for China's claims under Article 19.3.591

7.365.
In sum, the relevant question of fact raised in respect of China's claim under Article 19.3 is whether USDOC imposed CVDs concurrently with anti-dumping duties calculated under an NME methodology without discharging its affirmative obligation to investigate whether double remedies arose in the 26 CVD investigations and reviews at issue in this dispute. The issue is not whether double remedies actually arose, and if so in what amounts, in any of these investigations or reviews. In addition, the question whether USDOC had authority under United States law to investigate and avoid double remedies prior to 13 March 2012 is relevant and necessary to consider only insofar as it sheds light on whether USDOC discharged its affirmative obligation to investigate whether double remedies arose in the 26 CVD investigations and reviews at issue in this dispute.
7.366.
For reasons that will be discussed in the context of its assessment of the facts surrounding proceeding 26, the Panel will discuss that investigation separately from the other 25 investigations and reviews that China challenges in this dispute. We will then undertake an assessment of proceedings 1 through 25.

7.7.3.2 Proceeding 26 (Drawn Stainless Steel Sinks)

7.367.
The Panel recalls that Section 2 of PL 112-99 grants USDOC explicit legal authority to take certain steps to investigate and avoid double remedies in respect of investigations and reviews initiated on or after its date of enactment, i.e. 13 March 2012. China's claim in this dispute, as set forth in its panel request and as reiterated in its subsequent submissions, is that USDOC failed to investigate double remedies in the identified investigations and reviews initiated prior to the enactment of Section 2, i.e. prior to 13 March 2012.592 China identified the CVD investigations and reviews at issue in Appendix A to its panel request, and again in Appendix A of Exhibit CHI-24. China specified the date of initiation for each of the investigations and reviews listed therein. The information that China provided for proceeding 26, Drawn Stainless Steel Sinks, indicates that this investigation was actually initiated after the enactment of Section 2 of PL 112-99:

OFFICIAL NAME C- Initiation Determination
26 Drawn Stainless Steel Sinks From the People's Republic of China C-570-984 77 FR 18211, March 27, 2012 77 FR 46717, August 6, 2012 (prelim)

7.368.
If one or more of the proceedings challenged by China were actually initiated after the enactment of Section 2 of PL 112-99, then any such proceeding would fall outside China's own description of the scope of its claim. In its panel request, China indicated that the date of initiation for proceeding 26 is actually 27 March 2012. The information contained in Exhibit CHI-24 is the same. In the light of the foregoing, we sought clarification from China. China responded that it included the preliminary determination in Drawn StainlessSteel Sinks because USITC published its "notice of institution" of the CVD investigation on 7 March 2012, with an effective date of 1 March 2012.593 China did not elaborate, or provide any supporting evidence, such as the notice of initiation referenced in footnote 1 of the preliminary determination and in China's response. Nor did China say anything about the discrepancy between this information, and the information that it had provided in its panel request and in Exhibit CHI-24. The United States, however, submitted a copy of the corresponding notice of initiation for Drawn Stainless Steel Sinks. This notice of initiation shows that the effective date for the initiation of this proceeding was indeed 27 March 2012, that is to say after the enactment of the Section 2 of PL 112-99.594
7.369.
We consider that the foregoing may be a sufficient basis to conclude that the investigation in Drawn Stainless Steel Sinks falls outside the scope of China's claim. However, with a view to clarifying this factual question and ensuring that our understanding is correct, we examined Exhibit CHI-78, which contains the preliminary determination in the parallel anti-dumping investigation for Drawn Stainless Steel Sinks. This preliminary determination, dated 4 October 2012, indicates that a "full description of the methodology underlying our conclusions" is contained in the "Decision Memorandum for Preliminary Determination for the Antidumping Duty Investigation of Drawn Stainless Steel Sinks from the People’s Republic of China," ("Preliminary Decision Memorandum’’) from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations to Paul Piquado, Assistant Secretary for Import Administration, dated concurrently with this determination and hereby adopted by this notice".595 The preliminary determination further indicates that one of the issues addressed in the Preliminary Decision Memorandum is a "Double Remedies Offset".596
7.370.
Neither party provided us with a copy of the Preliminary Decision Memorandum. However, the preliminary determination submitted to the Panel in Exhibit CHI-78, to which we have just referred, states that "a complete version of the Preliminary Decision Memorandum can be found on the Internet at http://www.trade.gov/ia/", and confirms that "[t]he signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content".597 In the light of the fact that the exhibit submitted to the Panel specifies where this further information can easily be located, and with a view to confirming that our understanding of the facts is correct, the Panel in this case found it appropriate to consult the electronic version of the Preliminary Decision Memorandum that is explicitly referenced in Exhibit CHI-78.598
7.371.
The associated Preliminary Decision Memorandum599 for the preliminary determination submitted as Exhibit CHI-78 makes clear that in Drawn Stainless Steel Sinks, USDOC did take steps to investigate double remedies. Specifically, at pp. 21-23 of the Memorandum, under the heading "Adjustment Under Section 777A(f) of the Act", USDOC provides a detailed explanation of how it arrived at the conclusion that "the Department preliminarily estimates that 61.01 percent of the value of the input subsidies that impact cost of manufacturing were 'passed through' to [export prices] for this industry during the [period of investigation]". This explanation makes clear that USDOC made this adjustment pursuant to the legal requirement contained in Section 2 of PL 112-99. This further confirms our understanding that the investigation in Drawn Stainless Steel Sinks was initiated on 27 March 2012, after the enactment of Section 2 of PL 112-99.
7.372.
Based on the foregoing, the Panel concludes that China has not established that the investigation in Drawn Stainless Steel Sinks was initiated prior to the enactment of Section 2 of PL 112-99 and consequently falls within the description of its claim as set out in its panel request. In any event, China has failed to demonstrate that in Drawn Stainless Steel Sinks, USDOC imposed anti-dumping duties calculated on the basis of an NME methodology, and concurrently imposed CVDs on the same products, without having investigated, on the basis of "positive evidence", whether this resulted in double remedies. Accordingly, the Panel is unable to accept China's claim and finds no violation of Article 19.3 in respect of Drawn Stainless Steel Sinks.

7.7.3.3 Proceedings 1 through 25

7.373.
The Panel now turns to proceedings 1 through 25.
7.374.
In accordance with Article 11 of the DSU, our task is to make an "objective assessment of the facts of the case". Before turning to the 25 proceedings at issue, we consider it useful to recall certain principles that apply in WTO dispute settlement and international law more generally600 with respect to the burden of proof, the assessment of evidence, and the level of proof required. We recall that the general rule on burden of proof in WTO dispute settlement is that a party claiming a violation of a provision of a covered agreement by another Member must assert and substantiate its claim.601 Moreover, any party that asserts a fact, whether the complaining party or the responding party, is responsible for providing proof thereof.602 Thus, in the present dispute, China has the burden of establishing its claim under Article 19.3. To discharge that burden, China must provide evidence that is sufficient to establish a "presumption" that what is claimed is true, and if it does, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut that "presumption".603 With respect to a panel's assessment of the evidence, it is well established that "precisely how much and precisely what kind of evidence will be required to establish such a presumption will necessarily vary from measure to measure, provision to provision, and case to case".604 According to the Appellate Body, the "evidence and arguments underlying a prima facie case … must be sufficient to identify the challenged measure and its basic import, identify the relevant WTO provision and obligation contained therein, and explain the basis for the claimed inconsistency of the measure with that provision".605 In US – Upland Cotton (Article 21.5 – Brazil), the Appellate Body implied thatthe applicable standard of proof is whether there is sufficient evidence demonstrating that it is "more likely than not" that what is claimed is true.606 In US – Continued Zeroing, the Appellate Body explained that "[i]f evidence 'necessarily showing' a particular fact were required, this would suggest that the evidence must in no circumstance permit of a conclusion other than the existence of that fact", and that "such a standard is more stringent than the assessment of whether the evidence meets the required burden of proof".607
7.375.
We recall that in proceedings 1 through 25, USDOC concurrently imposed CVDs and anti-dumping duties calculated under the United States' NME methodology. These 25 parallel CVD and anti-dumping investigations and reviews were initiated between 18 October 2007 (proceeding 1) and 24 January 2012 (proceeding 25). These 25 proceedings comprise all CVD investigations and reviews on imports from China initiated between 20 November 2006 and 13 March 2012 that included a parallel anti-dumping investigation, with the exception of (i) the four sets of investigations that were already examined in DS379; and (ii) several other investigations that resulted in a negative injury determination and therefore did not lead to the imposition of any CVDs.608 In every one of these cases, USDOC imposed CVDs and anti-dumping duties in the full amount (i.e. 100%), without making any adjustment to avoid double remedies; while the parties disagree on why that was, it is not in dispute that "Commerce did not make any adjustment or offset in the challenged determinations".609
7.376.
We have already found that the United States has failed to present any basis to reject the general proposition that double remedies are "likely" to arise when CVDs are imposed concurrently with anti-dumping duties determined in accordance with the United States NME methodology. In reaching that conclusion, we observed, inter alia, that this factual premise was discussed in detail, and accepted, by both the panel and the Appellate Body in DS379.610
7.377.
The Appellate Body has stated that "panels routinely draw inferences from the facts placed on the record. The inferences drawn may be inferences of fact: that is, from fact A and fact B, it is reasonable to infer the existence of fact C."611 In this case: (i) USDOC imposed CVDs concurrently with anti-dumping duties in 25 successive investigations and reviews over a four-year period without making any adjustment or offset to avoid double remedies, either on the anti-dumping or the CVD side612; and (ii) the United States has failed to present us with any sufficient basis to reject the general proposition, supported by the panel and Appellate Body in DS379, that double remedies are "likely" to arise from the concurrent imposition of CVDs and anti-dumping duties calculated under the United States' NME methodology.
7.378.
In our view, the inference to be drawn from these two points taken together is that USDOC failed to take steps to investigate double remedies in these investigations and reviews. We acknowledge that these two facts do not necessarily lead to this (and only this) conclusion. That is to say, we are not suggesting that these facts permit of no conclusion other than this conclusion. The reason is that we do not presume that the concurrent imposition of CVDs and anti-dumping duties calculated under the United States' NME methodology will necessarily result in double remedies; rather, this "depends … on whether and to what extent domestic subsidies have lowered the export price of a product".613 However, as explained above614, the United States has failed to present us with any sufficient basis to reject the general proposition that it is "likely" that subsidies will lower the export price to some degree, and thereby result in some degree of overlapping remedies. It is hypothetically conceivable that USDOC would have investigated whether double remedies arose in the investigations and reviews at issue, and determined – in respect of 25 successive proceedings, and in respect of every subsidy at issue in each one of those proceedings – that none of these subsidies had any effect on the export price for any of the products in question. However, if as a "general proposition"615 double remedies are "likely" to arise when CVDs are imposed concurrently with anti-dumping duties determined in accordance with the United States NME methodology, it is a remote possibility that USDOC investigated and, based on such an investigation, determined on the basis of positive evidence that none of the subsidies at issue in any of the investigations had any effect on the export price of any of the products at issue (and then justifiably imposed CVDs concurrently with anti-dumping duties in 25 successive investigations and reviews without making any adjustments on account of double remedies). We consider that to reject China's claim on the basis of a remote possibility that USDOC might have investigated whether double remedies arose (when 100% CVDs were concurrently imposed with 100% anti-dumping duties without making any adjustments on either the CVD side or the anti-dumping side to offset for double remedies, in 25 successive investigations and reviews, which comprise every CVD investigation on imports from China over a period of more than four years616) would not be in keeping with the standard of proof that applies in WTO panel proceedings. We consider that "such a standard [would be] more stringent" than is required of China to meet "the required burden of proof".617 As explained above, it is uncontested that USDOC itself has since concluded, in the Section 129 determinations for the four investigations at issue in DS379, which were initiated prior the 25 investigations at issue in this dispute, that 63% of the input subsidies that the USDOC had identified had been double counted. These are the only four redeterminations that we have been informed of, and in each of those redeterminations, USDOC found double remedies. Thus, the foregoing suffices, in our view, to establish a presumption that what China asserts is true, namely, that USDOC failed to take steps to investigate double remedies in the identified 25 investigations and reviews, where USDOC made no adjustment to avoid double remedies.
7.379.
We consider that this conclusion is consistent with the decisions of the CIT in GPX II and GPX III, which, although subsequently vacated by theCAFC in GPX VI, shed light on whether USDOC was taking steps to investigate and avoid double remedies during the period of time when the investigations and reviews at issue in this dispute were initiated. In its first written submission, China directed us to the CIT's 18 September 2009 ruling, in GPX II, that it was not reasonable for USDOC to apply CVDs in conjunction with anti-dumping duties determined in accordance with the United States NME methodology, unless USDOC could devise appropriate methodologies to ensure that no double remedies would occur.618 China submitted the subsequent USDOC remand determination. In that determination, USDOC recalled that in GPX II the CIT ordered USDOC "to adopt additional policies and procedures to adapt the Department’s NME AD methodology and CVD methodology to account for the imposition of CVDs on merchandise from the PRC", and stated that it was "complying with the Court’s order, under protest".619 China also directed us to the CIT's ruling in GPX III, reviewing the CIT's approach in this remand determination, and finding that USDOC's proposed solution to the problem of double remedies was a "tacit admission" that USDOC was incapable of addressing the problem of double remedies "in the absence of new statutory tools".620
7.380.
We have read the CIT decisions in GPX II and GPX III. In GPX III, the CIT stated that USDOC's approach in its subsequent remand determination demonstrated that "at this time, it is too difficult for Commerce to determine, using improved methodologies, and in the absence of new statutory tools, whether and to what degree double counting is occurring".621 We agree with the United States that this statement is not a statement, nor necessarily tantamount to a statement, that USDOC necessarily lacked "legal authority" under United States law as it stood at the time to address and avoid the issue of double remedies.622 However, these statements, and the timing and chronology of events, in GPX II and GPX III are consistent with China's assertion that USDOC did not investigate the existence of double remedies during the time-period in question. The significance of this statement in the CIT's decision in GPX III, dated 4 August 2010, is that, as of 4 August 2010, it appears that USDOC did not have any methodology to determine "whether and to what degree double counting is occurring".623 The statements above suggest that USDOC had to devise a methodology to deal with the issue of double remedies to comply with the remand order of the CIT in GPX II (dated 18 September 2009), and did so only "under protest".624 The methodology that USDOC devised for the purpose of this remand determination was to make an adjustment to the anti-dumping duty rate equivalent to the full amount of the CVDs found to exist. In GPX III, the CIT then found that the methodology that USDOC had devised for the purpose of the remand determination that it undertook was unreasonable625, leading the CIT to conclude, as already mentioned, that "at this time, it is too difficult for Commerce to determine, using improved methodologies, and in the absence of new statutory tools, whether and to what degree double counting is occurring".626 The parties have not directed us to anything in the record to suggest that USDOC proceeded to devise any new methodology to address the issue of double remedies during the time-period in question, i.e. between 20 November 2006 and 13 March 2012. We therefore find this contemporaneous evidence to be instructive. If it was "too difficult" for USDOC to have an appropriate methodology to determine "whether and to what degree double counting is occurring", this is consistent with the conclusion that USDOC did not take steps to investigate double remedies in the 25 investigations and reviews at issue.627
7.381.
We now turn to consider the evidence and arguments advanced by the United States to determine whether it has rebutted the prima facie conclusion that, in the investigations and reviews at issue, USDOC failed to investigate double remedies as required by Article 19.3. We begin by discussing the United States' argument regarding the reason why USDOC did not make any adjustment or offset in the identified determinations in proceedings 1 through 25.
7.382.
We recall that, in attempting to substantiate its claim that USDOC failed to investigate and avoid double remedies in the investigations and reviews at issue, China argues, inter alia, that USDOC lacked legal authority to do so, and therefore did not do so.628 The United States regards China's allegation that USDOC lacked legal authority to address overlapping remedies to be "the centrepiece"629 of China's argument that USDOC failed to investigate double remedies in the investigations at issue. The United States disputes China's assertion.630 According to the United States, the reason USDOC did not make any adjustment or offset in the challenged determinations was not because it lacked the legal authority to address potential double remedies, but rather because Chinese parties, despite having had an opportunity to do so, failed to provide USDOC with sufficient evidence demonstrating the existence of double remedies. According to the United States, "Commerce could not properly address any claims of overlapping remedies because interested parties failed to provide sufficient evidence and presented only abstract economic theories".631
7.383.
During the first substantive meeting with the Panel, in support of its explanation why USDOC did not make any adjustments, the United States submitted copies of the final determinations in the parallel CVD and anti-dumping investigations in proceeding 6632, and indicated that a review of these determinations would demonstrate that it was for this reason, and not an alleged lack of legal authority to make an adjustment to offset double remedies, that USDOC did not make any adjustment or offset in the challenged determinations. At pages 10-11 of the final determination in the anti-dumping determination for proceeding 6, USDOC explains its approach as follows:

[G]iven the statute’s relative silence (at most) regarding the issue, the Department has quite properly asked respondents in combined AD and CVD proceedings to substantiate their theory that the concurrent application of such measures automatically results in a double remedy to the full extent that any CVDs are imposed upon domestic subsidies in China. This is especially true in light of the highly theoretical and hypothetical nature of the respondents’ claim, which is explained below. Respondents have declined to submit any positive evidence on the subject. Respondents, including the GOC, have declined to submit any evidence to support their claims. Instead, they refer to the alleged double remedies as if they were an adjustment specifically provided by the AD law, such as the adjustment for CVDs imposed to offset export subsidies. In the case of export subsidies, the argument that the Department would be required to explain how the adjustment should be made would be strong. Where the adjustment is a novel and highly theoretical construct fashioned by respondents, with little, if any, discernible connection to the statute, the situation is the reverse. The respondents must provide some concrete evidence to support their novel theory.633

7.384.
In response to a Panel question, the United States confirmed that these determinations "can be seen as representative of China’s arguments and Commerce’s responses on the issue of overlapping remedies in the challenged determinations".634 For its part, China also agrees that these determinations are representative of USDOC's approach to double remedies in the 25 investigations and reviews at issue.635 Our own reading of the determinations in the 25 investigations and reviews at issue confirms the parties' view that proceeding 6 may be seen as representative of how the issue of double remedies was addressed in the investigations and reviews at issue, when it was addressed. In a number of these determinations, there is no discussion of the issue of double remedies, because it was apparently not raised by China or other interested parties in the investigation in question. However, more than a dozen of the determinations do address the issue (in response to the issue being raised by China or other interested parties), and there one finds explicit language to the effect that USDOC consistently required respondents to demonstrate, on the basis of positive evidence, that double remedies would result from the simultaneous imposition of CVDs and anti-dumping duties. These determinations also reveal that when USDOC concluded that no such evidence was provided, USDOC did not take steps on its own initiative to investigate the possibility of double remedies.636
7.385.
We recall in this connection that in DS379, China claimed that it is "the obligation of the investigating authority to investigate and make a determination as to whether it is offsetting the same subsidies twice", whereas the United States argued that "the burden to establish the existence of such an alleged double remedy would be on China".637 The Appellate Body agreed with China, and found that the burden rests on the investigating authority.638 The Appellate Body's finding, which we have said we will follow, was that an investigating authority imposing CVDs concurrently with anti-dumping duties calculated under an NME methodology is under an "affirmative obligation" to establish the appropriate amount of the duty under Article 19.3, and that this obligation "encompasses a requirement to conduct a sufficiently diligent 'investigation' into, and solicitation of, relevant facts, and to base its determination on positive evidence in the record".639
7.386.
The foregoing, and in particular USDOC's reasoning that the burden to establish the existence of a double remedy would be on Chinese exporters, suggests that USDOC's determinations were based on the absence of positive evidence demonstrating the existence of double remedies. As USDOC stated in the passage from proceeding 6 that we have reproduced above, "[r]espondents have declined to submit any positive evidence on the subject."640 We note that this is consistent with the statement by the Court of International Trade in GPX II, issued during the same time period as the 25 investigations/reviews at issue, that USDOC had proceeded by "placing the burden to demonstrate double counting on GPX" in that case.641 The CIT stated, "Commerce cannot avoid addressing an important aspect of the problem caused by applying CVD and AD methodologies to goods from NME countries by placing the burden to demonstrate double counting on GPX, because there is likely no way for any respondent to accurately prove what may very well be occurring".642
7.387.
In the light of the foregoing, we are unable to agree with China's assertion that USDOC lacked legal authority to investigate double remedies prior to the enactment of Section 2 of PL 112-99. Rather, the determinations demonstrate that USDOC declined to investigate double remedies for a different reason, namely, USDOC's view that respondents had failed to submit positive evidence demonstrating the existence of double remedies.
7.388.
Apart from this aspect of the determinations, there are two other reasons why we are unable to accept China's contention that USDOC lacked legal authority to investigate double remedies prior to the enactment of PL 112-99, and in particular Section 2 thereof. First, the text of Section 2 of PL 112-99 obliges USDOC to take into account the potential for the simultaneous imposition of anti-dumping and countervailing duties to result in overlapping remedies and to reduce ("shall") the anti-dumping duty to the extent of the overlap, provided certain conditions are met. While we have no difficulty accepting that prior to the enactment of Section 2 there was no obligation under United States law for USDOC to take steps to investigate and avoid double remedies, it does not logically follow from this that USDOC did not have permissive authority to do so, e.g. had respondents brought forward positive evidence that USDOC deemed sufficient in order to support their assertions regarding double remedies.643 Second, the determinations before us suggest that USDOC believed that it might well have had legal authority to take steps to investigate and avoid double remedies. From our review of the investigations and reviews at issue, it appears that when the issue of double counting was raised by a respondent, USDOC proceeded in essentially the same way: (i) when the issue was raised in the context of a CVD proceeding, USDOC stated that it had no such authority in the context of the CVD proceeding; (ii) USDOC explained that the possibility of an adjustment could only be made in the context of the associated anti-dumping investigation; (iii) when the issue was raised in the context of the associated anti-dumping proceeding, USDOC proceeded to engage in a relatively detailed and lengthy discussion of the issue, as compared with the relatively cursory manner in which it disposed of the issue in the context of the CVD determinations; and (iv) USDOC ultimately concluded that no adjustment to anti-dumping duties was called for, on the basis that respondents failed to submit sufficient positive evidence in support of their assertions of double counting. We think that it is reasonable to presume that if USDOC considered that it did not have any legal authority to investigate and avoid double remedies, it would have simply responded by invoking that lack of authority – just as it did when the issue of double counting was raised in the context of the CVD determinations at issue. The manner in which USDOC actually proceeded instead suggests that USDOC considered that it had legal authority to take steps to investigate and avoid double remedies – provided that respondents submitted positive evidence on this issue that USDOC deemed to be sufficient.
7.389.
For these reasons, we are unable to accept China's contention that USDOC lacked legal authority to investigate double remedies prior to the enactment of PL 112-99, and in particular Section 2 thereof. We would also note a further difficulty with China's reasoning on this point. China reasons that (i) USDOC had no legal authority under United States law to investigate double remedies prior to the enactment of Section 2; and (ii) it therefore follows that USDOC did not do so. See e.g. China's first written submission, para. 125. In the present case, however, China has also argued, at length, that (i) USDOC had no legal authority under United States law to apply United States CVD law to imports from China prior to the enactment of Section 1 of PL 112-99; but that (ii) nonetheless, USDOC did in fact do so, based on USDOC's flawed (in China's view) understanding of United States law. Thus, even assuming arguendo that it could be deduced from Section 2 of PL 112-99 that USDOC had no legal authority to investigate double remedies prior to the enactment of Section 2, it would not follow, even in China's own view, that USDOC did not in fact do so.
7.390.
However, in our view this does not serve to rebut the prima facie conclusion that in the investigations and reviews at issue, USDOC failed to investigate double remedies as required by the Appellate Body in DS379. Rather, it only amounts to a different explanation of why it was that USDOC did not do so. It does not call into question the conclusion – and if anything, actually reinforces the conclusion – that USDOC did not discharge its "affirmative obligation" to conduct "a sufficiently diligent 'investigation' into, and solicitation of, relevant facts, and to base its determination on positive evidence in the record."644
7.391.
We now turn to the United States' second main rebuttal argument. The United States argues that in all of the investigations and reviews at issue, Chinese respondents had the opportunity to present USDOC with evidence and arguments demonstrating the existence of overlapping remedies, and USDOC fully addressed any such evidence, or lack thereof.645 We accept the United States' assertion as far as it goes. However, we do not consider that this demonstrates that USDOC properly discharged its "affirmative obligation" under Article 19.3 to "investigate" the issue of double remedies. The reason is that the manner in which USDOC "addressed" the issue of double remedies in the determinations at issue was by taking the position that the burden was on Chinese respondents to provide positive evidence demonstrating the existence of double remedies. As we have found, this was inconsistent with the obligation on USDOC, under Article 19.3, to conduct "a sufficiently diligent 'investigation' into, and solicitation of, relevant facts, and to base its determination on positive evidence in the record".646
7.392.
Based on the foregoing, the Panel concludes that in proceedings 1 through 25, the USDOC imposed anti-dumping duties calculated on the basis of an NME methodology, and concurrently imposed CVDs on the same products, without having investigated, on the basis of positive evidence, whether double remedies arose. Accordingly, the Panel finds that in proceedings 1 through 25, the United States acted inconsistently with its obligation under Article 19.3 to investigate whether, on the basis of positive evidence, double remedies arose from the imposition of such concurrent duties.

7.7.4 Claims under Articles 10 and 32.1

7.393.
In DS379, the Appellate Body found that the United States acted inconsistently with its obligations under Articles 10 and 32.1 of the SCM Agreement as a consequence of its acting inconsistently with Article 19.3:

We have already explained that when a Member's measures do not satisfy the express conditions for the imposition of a countervailing duty set out in relevant provisions of the SCM Agreement, this means that the right to impose a countervailing duty has not been established and, as a consequence, such measures are also inconsistent with Articles 10 and 32.1 of the SCM Agreement.647 Accordingly, we are of the view that China was not required to advance further arguments to establish a consequential violation of Articles 10 and 32.1. Having found that the USDOC's concurrent imposition of anti-dumping duties calculated on the basis of its NME methodology, and countervailing duties on the same products in the four countervailing duty determinations at issue is inconsistent with Article 19.3 of the SCM Agreement,we find that this is also inconsistent with Articles 10 and 32.1 of the SCM Agreement.648

7.394.
In the present dispute, China argues on this basis that a violation of Article 19.3 would establish, by itself, a consequential violation of Articles 10 and 32.1.649 The United States does not challenge this argument.650
7.395.
Having reviewed the evidence related to proceedings 1 through 25, the Panel has found that USDOC's concurrent imposition of anti-dumping duties calculated on the basis of its NME methodology and CVDs on the same products is inconsistent with Article 19.3. Accordingly, the Panel finds, and concludes in addition, that the violation of Article 19.3 gives rise to a consequential violation of Articles 10 and 32.1 in each of these proceedings. Having found no violation of Article 19.3 in respect of Drawn Stainless Steel Sinks, we consequently reject China's claims under Articles 10 and 32.1 in respect of that particular investigation.

7.7.5 Overall conclusion

7.396.
For the reasons set forth above, the Panel finds that in proceedings 1 through 25651, USDOC imposed anti-dumping duties calculated on the basis of an NME methodology, and concurrently imposed CVDs on the same products, without having investigated, on the basis of positive evidence, whether double remedies arose. As a consequence of that finding, the Panel finds that in respect of proceedings 1 through 25, the United States acted inconsistently with Articles 19.3, 10, and 32.1 of the SCM Agreement. For the reasons set forth above, the Panel rejects China's claims in respect of proceeding 26.

8 CONCLUSIONS AND RECOMMENDATION

8.1.
For the reasons set forth in this Report, the Panel concludes as follows:

a. In respect of China's panel request652:

i. in the light of China's representation that it would not pursue certain claims653, the Panel declines to rule on whether the panel request is consistent with Article 6.2 of the DSU insofar as it relates to those claims; and

ii. the Panel finds that the general references to Articles 10, 19, and 32 of the SCM Agreement contained in Part D of the panel request are consistent with the requirements of Article 6.2 of the DSU, on the basis that the general references warrant the inference that the obligations at issue are those contained in Articles 10, 19.3, and 32.1 of the SCM Agreement, and the United States has not established that Part D of the panel request fails to "plainly connect" the challenged measures with those obligations.

b. In respect of China's claims under Article X654 of the GATT 1994 concerning Section 1 of PL 112-99:

i. the Panel finds that the United States has not acted inconsistently with Article X:1 of the GATT 1994, as Section 1 was "made effective" by the United States on 13 March 2012 (and not on 20 November 2006), and published on the same day;

ii. the Panel finds that although, through Section 1(b) and relevant determinations or actions made or taken by the United States between 20 November 2006 and 13 March 2012 in respect of imports from China, the United States has enforced Section 1 before it has been officially published, the United States has not acted inconsistently with Article X:2 of the GATT 1994, as Section 1 does not "effect[] an advance in a rate of duty or other charge on imports under an established and uniform practice, or impos[e] a new or more burdensome requirement, restriction, or prohibition on imports"; and

iii. the Panel finds that the United States has not acted inconsistently with Article X:3(b) of the GATT 1994, as Article X:3(b), which requires that administrative agencies implement and be governed by decisions of the tribunals maintained to review their administrative action relating to customs matters, does not prohibit a Member from taking legislative action in the nature of Section 1 of PL 112-99.

c. In respect of China's claims under the SCM Agreement concerning the United States' alleged failure to investigate and avoid double remedies in certain investigations and reviews initiated between 20 November 2006 and 13 March 2012:

i. the Panel finds that in respect of one proceeding (Drawn Stainless Steel Sinks From the People's Republic of China, C-570-984, initiated on 27 March 2012), China has failed to demonstrate that the measure falls within the description of its claim as set out in its panel request, and has in any event failed to demonstrate that the United States has acted inconsistently with Article 19.3 of the SCM Agreement, or, consequently, Articles 10 or 32.1 of the SCM Agreement; and

ii. the Panel finds that in the other 25 proceedings655, the United States has acted inconsistently with Article 19.3 of the SCM Agreement, and, consequently, Articles 10 and 32.1 of the SCM Agreement, by virtue of the USDOC's concurrent imposition of countervailing duties and anti-dumping duties calculated on the basis of an NME methodology on the same products, without having investigated, either in the CVD investigations and reviews or in the parallel anti-dumping investigations and reviews, whether double remedies arose from such concurrent duties.

8.2.
Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. We conclude that, to the extent that the measures at issue are inconsistent with the SCM Agreement, they have nullified or impaired benefits accruing to China under that agreement.
8.3.
Pursuant to Article 19.1 of the DSU, we recommend that the United States bring the investigations and reviews identified in paragraph 7,355, excluding the investigation of Drawn Stainless Steel Sinks from the People's Republic of China, into conformity with its obligations under the SCM Agreement.
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