US — Countervailing and Anti-Dumping Measures (China), Report of the Panel, 27 Mar 2014

Short Title	Full 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

Abbreviation	Description
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

1.1.

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.

1.3.

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.

1.7.

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.

1.9.

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.

2.1.

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.

3.1.

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.

4.1.

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).

5.1.

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.

6.1.

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.

6.5.

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.

6.7.

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.

6.11.

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".

6.25.

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.

6.71.

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.

6.79.

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.

6.91.

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.

7.1.

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.

7.6.

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.

7.10.

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

7.13.

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/DS449/2	Exhibit CHI-24	OFFICIAL NAME	CVD	AD
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

7.16.

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.

7.21.

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.

7.25.

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.

7.29.

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.

7.49.

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.

7.57.

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".

7.58.

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.

7.79.

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

7.88.

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.

7.90.

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.

7.95.

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.

7.128.

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

7.131.

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.

7.140.

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.

7.141.

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

China submitted a letter of 18 January 2012 from the US Secretary of Commerce and the US Trade Representative (USTR) to a Ranking Member of the House Ways and Means Committee wherein USDOC and USTR offered to "work with the Congress to enact specific legislation that would remedy the court's flawed ruling [in GPX V]". (Exhibit CHI‑12). China suggested that the letter indicates that, absent corrective legislative action, "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". (Exhibit CHI‑12). However, what the letter actually says is that "absent legislation, should the decision of the court [in GPX V] become final", Commerce would be required to revoke the relevant orders. In our view, the letter does not permit the inference that the United States' Government was of the view that a further appeal – before the CAFC in the form of a rehearing, or the United States Supreme Court – was highly unlikely to be granted or, even if a further appeal were granted, was virtually certain to be unsuccessful, and that the only option to prevent the decision in GPX V from becoming binding was a legislative override. In fact, the letter states, to the contrary, that judicial options were among those being reviewed because "we believe the court's decision misreads the CVD statute, precedent, and Congressional intent and historic bipartisan support of strong CVD laws. Notwithstanding the strength of our legal position, prompt legislative action is necessary to clarify the law and avoid harm from injurious, subsidized goods". (Exhibit CHI‑12). We further recall that a petition for rehearing en banc was, of course, filed with the CAFC. China submitted another letter, dated 5 March 2012, from the Director of the Congressional Budget Office to the Chairman of the House Ways and Means Committee. In it, the CBO explained that, "[a]s a result of the Federal Circuit's decision [in GPX V], CBO updated its projections of revenues under current law to reflect the expectation that the Department of Commerce will stop imposing countervailing duties on goods imported from nonmarket economies." (Exhibit CHI‑13). It is sufficient to note in this respect that the United States' Government filed a petition for rehearing with the CAFC on the same day. (Exhibit USA-43). It may be inferred from this that the competent services of the United States' Government were not of the view that it was inevitable that revenues from the imposition of countervailing duties on imports from NME countries would decrease as a result of the decision in GPX V.

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.

Arie Reich	Member
Donald Greenfield	Member
José Alfredo Graça Lima	President

US — Countervailing and Anti-Dumping Measures (China)

Documents of the case

Report of the Panel

WTO AND GATT CASES CITED IN THIS REPORT

ABBREVIATIONS

1 INTRODUCTION

1.1 COMPLAINT BY CHINA

1.2 PANEL ESTABLISHMENT AND COMPOSITION

1.3 PANEL PROCEEDINGS

1.3.1 General

1.3.2 Preliminary ruling under Article 6.2 of the DSU

2 FACTUAL ASPECTS

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

4 ARGUMENTS OF THE PARTIES

5 ARGUMENTS OF THE THIRD PARTIES

6 INTERIM REVIEW

6.1 PRELIMINARY RULING UNDER ARTICLE 6.2 OF THE DSU

6.2 MEASURES AT ISSUE

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

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

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

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

6.7 CONCLUSIONS AND RECOMMENDATION

7 FINDINGS

7.1 PRELIMINARY RULING UNDER ARTICLE 6.2 OF THE DSU

7.2 CLAIMS ON WHICH FINDINGS HAVE BEEN REQUESTED

7.3 MEASURES AT ISSUE

7.3.1 Section 1 of PL 112-99

7.3.2 CVD investigations and administrative reviews

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

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"?

7.4.1.1 Law

7.4.1.2 Law of general application

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

7.4.1.4 Conclusion

7.4.2 When was Section 1 "made effective"?

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

7.4.4 Overall conclusion

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

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

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 "?

7.5.2.1 Measure of general application taken by a WTO Member

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

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