10% of rare earths , which is a downstream product\n\n973 Prof. Jaime de Melo, Response to Expert Report by Prof. Winters, (Exhibit CHN-195).\n974 China's second written submission, para. 123, referring to Prof. Jaime de Melo, Selected Economic\nIssues Regarding Export Quotas and Production Quotas, (Exhibit CHN-157).\n975 Prof. Gene M. Grossman, \"Export Restrictions: Possible Effects of Under-Filled Quotas on Prices and\nConsumption\", (Exhibit JE-164).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nand which can effectively reduce the amount of allowed exports because its weight is potentially\nconsiderable, without taking this inclusion into account when fixing the annual export quota\namount (the latter remained virtually at the same level in 2011 and 2012). The Panel has doubts\nas to whether China really needs to use different denominations in its export quotas and in the\namount of rare earths destined to domestic consumption.\n7.6.3.1.5 The structure of the quota\n7.651. The Panel is also concerned about the uneven and unbalanced structure of China's export\nquota measures. As the complainants have noted throughout this dispute, the measures that\nChina alleges constitute \"restrictions on domest ic production on consumption,\" and especially\nChina's extraction and production quotas and its taxes on extraction, also restrict foreign\nconsumption of Chinese raw materials. In other words, every restriction on domestic consumption\nof Chinese raw materials applies also to foreign consumption. In contrast, China's export quotas\nimpact only on foreign users: there is no corresponding burden, such as a domestic consumption\nquota, imposed by China on Chinese consumers. Additionally, as the Panel noted above, the\ndifference in the scope of China's production and export quotas seems to favour domestic users\nwhile restricting foreign access to certain rare earths products, such as metals. Regardless of\nwhether such structural imbalance meets the \"even-handedness\" requirement under\nsubparagraph (g) of Article XX, the Panel believes that these features of the 2012 export quota\nsystem, which impose unique and special burdens on foreign consumers, are discriminatory in its\napplication.\n7.6.3.1.6 Other consideratio ns concerning the manner in which the export quota is\ndetermined\n7.652. The Panel notes that in 2012, China disclosed for the first time the criteria that informed\nits decision on the quantity of rare earths to be made available for export. In December 2012,\nChina for the first time published a declaration\n976 explaining – in very general terms and ex post\nfacto – how its export quotas were set. China relies on this declaration and on Several Opinions of\nthe State Council on Promoting Sustainable and Sound Development of the Rare Earth Industry 977,\nwhich was issued in May 2011, in alleging that the volumes that it makes available for export are\ndetermined taking into account the \"situations concerning domestic resources, production and\nconsumption, and the international markets\".\n978 China submits that its export quota assists in\nmanaging the supply of rare earths to domestic and foreign users, and suggests that its decision-\nmaking on annual quota volumes available is based on objective criteria and informed by pre-\nestablished conservation targets.\n7.653. The Panel notes, however, that China has disclosed no details about its mid-term or long-\nterm conservation targets and expected level of demand, and has only provided very general\ninformation about the criteria on the basis of which China allegedly sets its export quotas. It is not\nclear from the evidence that China presented to this Panel what relative weight is ascribed to each\nof the criteria taken into account in its yearly decisions. The 2012 Declaration states that Chinese\ndemand was determined based on \"industry forecasts based on discussions with industrial users of\nrare earths\".\n979 However, there is no evidence that China consulted foreign producers, and China\ndid not contest the complainants' allegation that it had consulted and taken into account the\ninterests of its domestic producers, consumers, and industries. China seems to argue that foreign\ndemand is sufficiently taken into account by looking at the level of actual exports in the previous\nyear (which, of course, were themselves limited by an export quota). In this respect, the Panel\nconsiders that China treats domestic interests more favourably than foreign interests.\n7.654. The Panel also finds discrimination in the criteria used for allocating the rare earth quota\nbetween domestic and foreign users. The export quota level is based on the level of actual\nconsumption in the preceding year, whereas the domestic level seems to be set on the basis of the\ndemand forecasted in China's Five Year Plan. The Panel is also concerned about the formula that\nChina uses to determine the annual allocation of the export quota. This formula is issued annually,\n\n976 Declaration On the Setting Of 2012 Export Quotas on Rare Earth Products, (Exhibit CHN-63).\n977 Several Opinions of the State Council on Promoting the Sustainable and Sound Development of the\nRare Earth Industry, (Exhibit CHN-13).\n978 China's opening statement at the first meeting of the Panel, para. 23.\n979 Declaration On the Setting Of 2012 Export Quotas on Rare Earth Products, pt. 13, (Exhibit CHN-63).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nas part of the annual export quota measure. As the Panel understands it, the formula could change\neach year, and there is no guarantee that the quota allocation formula will remain the same from\none year to the next. Moreover, as the allocation formula is liable to change annually, the Panel\nconsiders that exporters will always face uncertainty as to the weight or significance to be\naccorded to their export performance in the current year in the quota allocation formula for the\nfollowing year. This increases the already considerable uncertainty costs that the export quota\nimposes on foreign rare earth users.\n7.655. In the Panel's view, the above analysis su ggests that China's export quota on rare earths\nis applied in a manner that is discriminatory and that constitutes a disguised restriction on trade.\n7.656. Finally, the Panel recalls that the export quota system requires exporters to return\nunexported quantities of rare earths to Chinese authorities by 31 October,\n980 after which point they\nmay be sold into the domestic market, 981 but exporting firms are not entitled to exchange their\nexport quota shares inter se. In the Panel's opinion, this results in discrimination against foreign\nusers, since this functioning of the export quot a allows and perhaps even encourages domestic\nstockpiling of rare earths, while ensuring that exporters are never able to build up their own stocks\nof Chinese rare earths for export. To the Panel, this is discriminatory, insofar as it restricts the\naccess of foreign consumers far more than that of domestic consumers.\n7.657. The Panel recalls that the chapeau of Article XX allows for justifiable discrimination, which\nmeans that the rationale for such discrimination must relate to the policy invoked – in this case,\nconservation. Having concluded that several aspects of China's export quota on rare earths,\nincluding its structure, design, and operation, disfavour and discriminate against foreign users, the\nPanel now considers whether the rationale for this discrimination is based on conservation\nconsiderations.\n7.6.3.2 Whether the rationale for the discrimination or the disguised restriction on trade\ncreated by the application of China's export quota on rare earths is concerned with\nconservation\n7.658. In accordance with the Appellate Body Report in Brazil – Retreaded Tyres\n982, the Panel now\nproceeds to determine whether the discrimination that results from the application of China's rare\nearths export quota is nevertheless justified and rationally linked to conservation goals. In Brazil –\nRetreaded Tyres, the Appellate Body explained that arbitrary or unjustifiable discrimination exists\nwhen the reason(s) for discrimination bear(s) no rational connection to the Article XX objective on\nthe basis of which a Member claims to be regulating, or else contradicts or undermines that\nobjective. This is why the determination whether a measure is discriminatory in violation of the\nchapeau of Article XX should not depend exclusively on its quantitative impact, but must consider\nalso whether the rationale for the discrimination relates to the legitimate objective of the measure.\nTherefore, to determine whether China has demonstrated that its rare earths export quota does\nnot impose unjustifiable discrimination in violation of the chapeau of Article XX, the Panel will need\nto consider whether the rationale that China provides for the discrimination relates to the alleged\nconservation objective of the export quota.\n7.659. China submits that its export quota is an integral part of its comprehensive conservation\npolicy. According to China, export quotas are necessary to allow China to manage its resources in\na manner consistent with its economic development objectives. In the Panel's view, China has not\ndemonstrated that the distortion created by the application of its export quota system is incidental\nto its conservation considerations. Rather the discrimination seems to result from components of\nits export quota systems that reflect industrial policy considerations. For example, the fact that\nunused export quota volumes must be returned to Chinese authorities by 31 October\n983 and may\nsubsequently be sold into the domestic market 984 seems to point toward industrial policy\nconsiderations. Further, the Panel does not understand the link between exempting metals and\n\n980 Regulations on the Administration of the Import and Export of Goods, (Exhibit CHN-54), Article 42.\n981 China's response to Panel question No. 36.\n982 Appellate Body Report, Brazil – Retreaded Tyres, para. 226.\n983 Regulations on the Administration of the Import and Export of Goods, (Exhibits CHN-54, JE-50),\nArticle 42.\n984 China's response to Panel question No. 36.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\ndownstream rare earth products from the production quota but including those same products in\nthe export quota, and the goal of conserving exhaustible natural resources.\n7.660. The Panel recalls that more than 80% of rare earths extracted in China are consumed in\nChina. In our opinion, it is difficult to understand the function of an export quota in a situation\nwhere the first threat to conservation is domestic. For the Panel, this suggests that the main effect\nof the export quota on rare earths is to guarantee that domestic consumption benefits from a\nminimum amount of the extracted rare earths.\n7.661. In the Panel's view, although China main tains and enforces a comprehensive conservation\npolicy, the manner in which it operates its rare earths export quota system seems to indicate that\nits export quota does not relate to conservation considerations but is aimed rather at controlling\nthe amount of rare earths that leaves the co untry. Moreover, the level of the two-staged 2012\nexport quota casts doubt on China's alleged conservation objectives. As the Panel noted above\n985,\nChina issued the second batch of the export quota in August of 2012, despite the fact that the first\nbatch plus the supplementary batch were already above export needs, thus leading to a 2012\nexport quota that was never going to be filled and that was inevitably going to be returned to\nChinese authorities and possibly resold into the domestic market. The fact that China announced\nthat its first batch (including the supplementary batch) would constitute 80% of the export\nquota\n986, while the second batch amounted to 31% of the total export quota in 2012 987, is\ncertainly an indication that when China issued the first batch of the export quota, the final or total\namount of the export quota for 2012 had not yet been set. Finally, as noted earlier\n988, the fact that\nthe total extraction quota was not determined or known before 19 April 2012 and the second batch\nof the production quota was issued only on 8 June 2012, seems to indicate that China waited to be\ninformed of its domestic demand before fixing its level of production and its export quota\n(determined on 16 August 2012),and raises questions about whether what was ostensibly for\nexport (when there was no further foreign demand after the first batch of the export quota) was in\nfact designed for domestic consumption.\n7.662. The Panel also has difficulty understanding how China's decision to denominate its export\nquotas in gross weight rather than REO tonnes relates to conservation. The Panel accepts that all\nWTO Members have the sovereign right to choose to structure and apply their export quota\nsystems in a manner that advances their own conservation goals, but they must do so consistently\nwith their GATT/WTO obligations. In the present case, we are persuaded that China's decision to\ndenominate the export quota in gross weight while it uses REO for domestic consumption is not\nbased on conservation considerations. China argues that \"it is difficult and would be very costly for\ncustoms officials to inspect the exact REO-equivalent weight of each rare earth product is\npresented\".\n989 This may be true, but it suggests that China's export quotas are set with a view to\neasing the administrative burden of border enforcement and to facilitating trade, rather to\nconservation. The Panel does not mean to suggest that denominating in gross tonnes could not, as\na matter of principle, relate to conservation, but simply finds that China has not provided sufficient\ndetails to explain to the Panel how the denomination system adopted – and the discrimination\nresulting from that system – relates to conservation.\n7.663. In sum, China has not demonstrated that the market distortion or discrimination caused by\nthe operation of its rare earth export quota is based on conservation considerations.\n7.6.3.3 WTO-consistent alternatives\n7.664. It is well settled that discrimination can al so be arbitrary or unjustifiable where alternative\nmeasures exist that would have avoided or at least diminished the discriminatory treatment. In the\ncontext of conducting an analysis under the chapeau of Article XX of a measure provisionally\njustified under subparagraph (g), the Appellate Body has examined whether a WTO-consistent or\nless trade-restrictive alternative would be available and would enable the regulating Member to\n\n985 See the Panel's discussion at para. 7.579 above.\n986 2012 First Batch Rare Earth Export Quotas, (Exhibit CHN-56), para. II, p. 1.\n987 2012 Second Batch Rare Earth Export Quotas, (Exhibit CHN-58).\n988 See para. 7.507 above.\n989 China's second written submission, para. 176.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nachieve its legitimate policy goals with the same degree of efficiency and efficacy. 990 The Panel will\nreview first the arguments of the complainants in this respect and those of China, and will follow\nwith our own analysis.\n7.665. The complainants put forward various alte rnatives that, in their view, China could use\ninstead of export quotas. According to the comp lainants, these alternatives would provide China\nwith the same level of conservation effectivene ss while avoiding the discriminatory and distorting\neffects that its export quotas have on foreign rare earth users.\n7.666. The complainants submit that, to prevent the smuggling of rare earths produced beyond\nthe production targets, China could impose prec onditions on rare earth exports to ensure the\nlegality of the export consignments, such as checking VAT invoices. Unlike the export quotas, such\npreconditions would not be overly broad in their e ffect because they would not prohibit the export\nof legally produced rare earths.991 According to the European Union, if China wanted to prevent the\nsmuggling of rare earths produced beyond the production targets, China could conduct \"on-the-\nspot-checks\" at mines and processing facilities, inspect the records of the industries involved,\nand/or rely on or strengthen the licensing system that China has already put in place for rare\nearths. The European Union stresses that, by virtue of their economic effects, export quotas tend\nto create incentives for illegal trade, and argues that stopping illegal international trade is best\ndone in a plurilateral setting. For example, the European Union suggests that, through a\nmechanism for peer reviewing compliance with defined norms, an incentive would be created for\nboth importers and exporters to reduce or eliminate illegal trade, since internationally-traded\ngoods would be subject to double control at origin and destination. However, even when\nplurilateral action is not an (immediate) option , screening of exports and automatic procedures for\nchecking shipments are better ways to fight illegal trade than export quotas. In other words,\nargues the European Union, China has at its disposal a number of alternative measures that would\ndeal with illegal production by controlling producti on itself and/or controlling trade flows through\nexisting monitoring instruments (e.g. licensing, VAT declarations\n992) but without the use of\nquantitative restrictions.\n7.667. The complainants also suggest 993 that, if China were interested in having an even-handed\nconservation regime, it could enforce a domestic consumption restriction, such as a domestic sales\nquota. Such a regime would prevent the export quota from diverting rare earths from the foreign\nmarket into China and, in the process, undermining China's alleged conservation goals.\n7.668. To respond to China's need to enforce it s resource conservation policy, the complainants\nsuggest that China develop an export licensing s y s t e m , w h i c h , t h e y c l a i m , w o u l d b e j u s t a s\neffective as an export quota at preventing the ex portation of illegally produced or smuggled rare\nearths. China has actually started to implement a tracing system using VAT invoices. To prevent or\nreduce incentives for domestic producers to engage in illegal mining or production, China could\nadopt tougher domestic restrictions and strengthen the enforcement of those domestic\nrestrictions. China could also simply set and enforce a production or consumption limit on rare\nearth ores. If either of these measures were properly enforced, the pace of depletion of rare earth\nores could be brought under control. In this context, Japan notes that China has already adopted a\nform of consumption limit on rare earth ores by imposing an extraction quota on rare earth\nconcentrates.\n994 Japan notes that China's argument fails to explain why China cannot control the\npace of rare earth consumption given that, according to China's own assertion, China is regulating\nthe production of concentrates. This restriction on consumption could take the form of a sales\nquota covering both domestic sales and exports, but without mandating quantitative allocation\nbetween domestic and foreign users (i.e. a non-discriminatory sales quotas).\n\n990 Appellate Body Reports, US – Gasoline, pp. 25-29, DSR 1996:I, 3, pp. 23-27, and US – Shrimp,\npara. 171 (\"The Inter-American Convention thus provides convincing demonstration that an alternative course\nof action was reasonably open to the United States for securing the legitimate policy goal of its measure a\ncourse of action other than the unilateral and non-consensual procedures of the import prohibition under\nSection 609\".).\n991 Appellate Body Report, US – Shrimp, para. 141 (examining whether a measure is overbroad in\ndetermining if it relates to conservation).\n992 United States' opening statement at the second meeting of the Panel, para. 42.\n993 See, e.g. complainants' responses to Panel question No. 123.\n994 Ores becomes concentrates when transformed for consumption.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.669. With respect to the export quota's alleged signalling function, the complainants argue that\nChina could have sent the relevant conservation-related signals to both domestic and foreign users\nalike in a non-discriminatory manner by tightening its domestic restrictions on production. The\ncomplainants insist that such signalling is clearly feasible, since China can simply enforce existing\ndomestic production limits or adopt consumption li mits to convey such signals. Considering that\nusers in China are responsible for a large portion of total global rare earth use, such non-\ndiscriminatory signalling would be much more effective at controlling excessive production or\nconsumption of rare earths, tungsten, or molybdenum, and would create an undistorted market\nand therefore a climate for long-term investments.\n995 To the extent that the current system\nreserves the lion's share of Chinese production for domestic industries, this only reduces the\nincentive for domestic industrial users to take steps to conserve rare earths or to seek substitutes.\nThe European Union adds that a multilateral agr eement on developing new rare earths supplies,\nresearch initiatives, and/or cooperation projects at the international level could be reached. In this\nrespect, the European Union argues that even where concerted multilateral action is not\n(immediately) available, a credible public announcement that China is taking serious measures to\ncut and control rare earth production would induce trade partners to develop new supplies.\n7.670. China did not comment extensively on these various, allegedly non-discriminatory\nalternatives, except to say that it already uses an export licensing system in addition to its export\nquota system. China maintains that there is no alternative to export quotas for policing and\nreducing illegal mining and illegal production. It adds that export quotas also enhance the\nfunctioning of China's conservation policy through supply management. According to China,\nnothing is able to replace quotas because export quotas fulfil a number of additional functions.\nFirst, they ensure that not only Chinese users but also foreign users receive a signal that China's\nrare earth supply is not unlimited and that they should explore alternative sources of supply.\n996\nChina expresses concern that in the absence of an export quota, foreign users may consider that\nthey can purchase any share, or even all, of th e limited rare earths supply. Additionally, China\nargues that export quotas ensure stability in the rare earths market by signalling in a transparent\nmanner the volumes of rare earths that will be available to domestic and foreign users. This\nprovides a safeguard against the risk that a sp eculative demand surge or foreign government-\npromoted stockpiling could endanger sustainable economic development. Rare earths users know\nthat no such surges will be permitted, given the existence of the export quota.\n7.671. With respect to the argument that, to comply with the even-handedness requirement,\nChina should ensure that the unused export quot a volumes are not made available to domestic\nconsumers, China responds that it does respect the even-handedness requirement and so is not\nobliged to explore available alternatives. China insists that when an export quota is not filled, it\ncannot be the cause of any difference and discr imination between domestic and foreign prices. 997\nHence, the export quota, which was unfilled in 2012, cannot be causing or imposing any uneven-\nhanded impact on foreign users. In these circum stances, it would not further the achievement of\nthe even-handedness requirement to further restrict domestic consumption below the level\nobtained by deducting the actual export from th e production quota volume. For China, preventing\ndomestic users from having access to unused export quota volumes would impose an additional\nrestriction on domestic users and would not further China's conservation objective.\n7.672. With respect to the possible use of a domestic sales quota, China asserts without\nexplanation that it does not consider such sales quota to be an appropriate or necessary measure\nto achieve even-handedness. China adds that rest rictions on domestic consumption by industrial\nusers would involve an \"undue burden, such as prohibitive costs or substantial technical\ndifficulties\"\n998, and argues that implementing such measures would require China to \"bear\n\n995 European Union's closing statement at the second meeting of the Panel, para. 10.\n996 China's first written submission, paras. 139-145; China's second written submission, paras. 50-52\nChina's opening statement at the first meeting of the Panel, paras. 21-22; China's response to Panel question\nNo. 18; China's comments on the complainants' responses to Panel question No. 26; and China's opening\nstatement at the second meeting of the Panel, para. 21.\n997 Prof. Jaime de Melo, Selected Economic Issues Regarding Export Quotas and Production Quotas,\nApril 2013, para. 37, (Exhibit CHN-157).\n998 Appellate Body Report, US – Gambling, para. 308.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nadditional administrative costs\".999 However, China has failed to provide any details or evidence as\nto the administrative burdens or other costs of imposing a domestic sales quota.\n7.673. The Panel notes that China does not discuss the fact that all of the alternatives suggested\nby the complainants are claimed to be WTO-consistent, whereas the export quota it uses is\ninconsistent with Article XI:1 of the GATT 1994.\n7.674. With respect to the complainants' argument that China could send the necessary\nconservation signals to foreign and domestic rare earth users in a less trade-distorting way, China\ninsists that its conservation policy works and that it has provided evidence of the impact of China's\nconservation policy on China's rare earth users, including evidence of reduced domestic\nconsumption\n1000, evidence of significantly increased domestic prices for rare earths between\nJanuary 2011 and January 20131001, evidence of significant drops in sales by Chinese producers of\ndownstream rare earths-using products 1002, evidence of substitution by Chinese downstream\nusers1003, and evidence of rare earths recycling projects being researched, developed, and\nconducted by Chinese enterprises.1004\n7.675. The Panel recalls once again that it is not asked to assess the efficiency or effectiveness of\nChina's conservation policy, but only to determine whether the export quota China argues is part\nof its conservation programme are really about conservation rather than another policy reason,\nand whether any discrimination caused by that quota is justified on the basis of conservation. This\nrequires the Panel to consider whether China ha s explored the use of WTO-consistent or less\ntrade-restrictive alternatives that could achieve th e same conservation goal. In this regard, China\nhas not satisfied the Panel that it has fully explored and justifiably rejected the alternatives\nproposed by the complainants. In the Panel's opinion, China needed also to explain why such\nWTO-consistent or less trade-restrictive alternativ es are not available to China. In the Panel's\nview, China has not done so.\n7.676. China argues that the alternatives put forward by the complainants are not able to serve or\nreplicate all the functions of an export quota. Bu t the Panel is not convinced that export quotas\nserve the functions listed by China, or that all of the functions identified by China relate to\nconservation. In addition, one of the export quot a's functions mentioned by China – the possibility\nof controlling the supply of rare earths – is, as we have said, not contemplated by Article XX(g); as\nsuch, China cannot demand that the complainants come up with an alternative means to perform\nwhat is essentially an Article XX(g)-inconsistent function.\n7.677. The Panel considers that the alternatives proposed by the complainants are reasonably\navailable and appear to be capable of achieving China's desired level of conservation. In particular,\nthe Panel is not convinced that the discrimination caused by China's export quota is merely\nincidental to its conservation programme and could not have been avoided with WTO-consistent\nalternative means of policing and controlling illegal extraction, production, consumption, and\nexport of rare earths. Similarly, the Panel considers that the other goals invoked by China to\njustify the use of an export quota –signalling and safeguarding, can also be reached with WTO-\nconsistent measures. Therefore, for the Panel, th e discrimination and trade distortion engendered\nby China's export quota measures were not based on conservation considerations and were both\nforeseeable and avoidable, including through the us e of WTO-consistent alternative means. In the\nPanel's view the complainants have met their burden of proof in putting forward alternatives, and\nChina has not provided arguments to rebut them.\n7.678. In the Panel's view, China's has not met it s burden of demonstrating that its export quota\non rare earths is applied in a manner that does not result in unjustified or arbitrary discrimination\nor disguised restriction on trade against foreign users.\n\n999 China's second written submission, para. 100 and China's opening statement at the second meeting\nof the Panel, para. 33.\n1000 China's opening statement at the second meeting of the Panel, paras. 38, 39 and Figure 4.\n1001 China's opening statement at the first meeting of the Panel, Table 1.\n1002 \"Three Concerns Behind the Prosperity of Rare Earth Listed Companies\", 21st Century Business Herald,\n2 August 2011, (Exhibit CHN-132), pp. 2-3.\n1003 \"Three Concerns Behind the Prosperity of Rare Earth Listed Companies\", 21st Century Business\nHerald, 2 August 2011, (Exhibit CHN-132), pp. 2-3.\n1004 China's Answers of 8 July 2013, paras. 107-108 and (Exhibit CHN-214): Introduction of the Rare\nEarths Recycling in China, Association of China Rare Earth Industry, 3 July 2013.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.6.3.4 Conclusion\n7.679. In view of the above, the Panel concludes that China has not demonstrated that its 2012\nexport quota on rare earths was not applied in a manner that constitutes arbitrary or unjustifiable\ndiscrimination or a disguised restriction on international trade.\n1005\n7.6.4 Overall conclusion on China's export quota on rare earths\n7.680. For the reasons given above, the Panel concludes that China's export quota on rare earths\nis inconsistent with Article XI:1 of the GATT 1994 and Paragraphs 162 and 165 of China's Working\nParty Report. The Panel also concludes that China's export quota on rare earths is not justified\nunder either subparagraph (g) or the chapeau of Article XX of the GATT 1994.\n7.7 Application of Article XX(g) to China's export quota on tungsten\n7.7.1 Introduction\n7.681. The Panel will now apply the legal test discussed above to China's export quota on\ntungsten. The Panel will first assess whether the export quota complies with subparagraph (g),\nand will then proceed to consider whether the export quota is justified under the chapeau of\nArticle XX, before reaching an overall conclusion on the quota's WTO-consistency.\n7.7.2 Application of subparagraph (g) to China's export quota on tungsten\n7.7.2.1 First part: whether China's export quota on tungsten relates to the conservation\nof exhaustible natural resources\n7.682. The Panel now proceeds to consider whether China's export quota on tungsten \"relates to\nthe conservation of exhaustible natural resources\".\n7.683. Before proceeding, the Panel notes that the parties have focused less attention on\ntungsten than on rare earths. China's second written submission has only three pages on\ntungsten\n1006, and does not include any argumentation on whether the export quota on tungsten\n\"relates to the conservation of exhaustible natural resources\". 1007 Japan's second written\nsubmission does not address the quotas on tungsten in detail.\n7.684. Additionally, many of the parties' argume nts on tungsten draw on and incorporate their\narguments on rare earths. As such, the Panel's findings on China's export quota on tungsten are\nshorter than its findings on rare earths, and, wh ere appropriate, incorporate some of the analysis\nalready set forth above.\n7.7.2.1.1 \"exhaustible natural resources\"\n7.685. China submits that tungsten is being depl eted due to intense exploitation, and thus that\ntungsten resources are \"exhaustible natural resources\" within the scope of Article XX(g) of the\nGATT 1994.\n1008 China argues that it holds about 61% of the world's tungsten reserves, but bears a\ndisproportionately high burden of producing 83% of the world's tungsten supply.1009\n7.686. According to the United States, China's argument is based on a simplified assumption that\n\"tungsten\" in the abstract is an exhaustible natural resource; however, in terms of the tungsten\nexport quota, \"tungsten\" covers 14 tariff codes ranging from tungsten ores and concentrates to\n\n1005 In view of the nature of the export quota system described above, the Panel's finding is with respect\nto the series of measures comprising the relevant framework legislation, the implementing regulations, other\napplicable laws and the specific annual measures imposing the export quotas existing at the date of the Panel's\nestablishment.\n1006 China's second written submission, paras. 179–190.\n1007 These paragraphs are solely concerned with whether China's export quotas on tungsten result in a\nprice advantage for Chinese consumers.\n1008 China's first written submission, para. 297.\n1009 China's first written submission, para. 285 (referring to USGS Mineral Commodity Summaries 2012,\n\"Tungsten\", (Exhibit CHN-92), p. 177.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\ntungsten recyclables and intermediate tungsten products. 1010 The United States recalls that the\nforms of bauxite and fluorspar subject to the challenged export restrictions in China – Raw\nMaterials were clay and a mineral, which, like tungsten ores and concentrates, are basically in the\nform in which they are mined from the earth. 1011 The United States notes that, in contrast, in the\npresent dispute China's export quotas cover not ju st ores but also a number of products that\n\"might not themselves be considered 'exhaustible natural resources' because they are\nintermediately processed products\".\n1012\n7.687. The European Union does not dispute that tungsten is a natural resource. 1013 However, the\nEuropean Union stresses that the export quota that China imposes on tungsten is not imposed on\ntungsten ores, which are not even allocated a quot a, but is rather imposed on various forms of\ntungsten products which have undergone some degree of further processing.\n1014\n7.688. The Panel has explained above, in the context of rare earths, that measures can relate to\nthe conservation of exhaustible natural resources even if they do not act directly upon the\nresource sought to be conserved. Article XX(g) is not only available for measures that apply\ndirectly to the raw form of the resource in question, but to any measure that bears a \"close\",\n\"real\", or \"substantial\" relationship with the goal of conserving an exhaustible natural resources,\nregardless of the particular product which is the subject of the challenged measure.\n7.689. All the parties seem to agree that tungsten ores are exhaustible natural resources. As\nsuch, the Panel does not need to determine whether semi-processed tungsten products are\n\"exhaustible natural resources\", but will instead focus its attention on whether China's export\nquota on semi-processed tungsten products are \"closely\" or \"substantially\" related to the\nconservation of tungsten ores.\n7.7.2.1.2 \"conservation\"\n7.690. China points out that it has adopted a coherent policy to manage the use of its finite\ntungsten resources, and that the 2012 export quota on tungsten, challenged by the complainants,\nis an integral part of this policy and works together with several restrictions on the domestic\nproduction and consumption of tungsten resources.\n1015\n7.691. According to China, the Mineral Resources Law1016 and the Foreign Trade Law1017 provide a\ngeneral legal basis for Chinese measures that manage the use of exhaustible minerals, including\ntungsten. Article 16 of the Mineral Resources Law provides that for certain minerals \"protective\nmining is prescribed by the State\".\n1018 Additionally, Article 16(4) of the Foreign Trade Law provides\nthat the export of goods may be restricted \"in order to effectively conserve exhaustible natural\nresources\".\n7.692. China explains that on 15 January 1991, the State Council specified in the 1991\nCircular1019 that tungsten is to be considered as one of the \"special minerals under the national\nprotective mining\". This 1991 Circular continues in force today. It specifies the reasons for\nqualifying tungsten as a \"special mineral\":\nIn order to reasonably develop, utilize and protect the national precious resources and\npush forward the improvement and rectificat ion of the order of mining industry, the\nState Council decides, pursuant to Article 15 of Mineral Resources Law, to include\ntungsten, tin, antimony and ion-absorption-type rare earth minerals into the special\n\n1010 United States' second written submission, paras. 218-219.\n1011 United States' second written submission, para. 222.\n1012 United States' second written submission, para. 224.\n1013 European Union's second written submission, para. 234.\n1014 European Union's second written submission, para. 235.\n1015 China's first written submission, para. 288.\n1016 Mineral Resources Law, (Exhibit CHN-10).\n1017 Foreign Trade Law, (Exhibits CHN-11, JE-49).\n1018 Mineral Resources Law, (Exhibit CHN-10), Article 16(3).\n1019 Circular on Listing Tungsten, Tin, Antimony and Ionic Rare Earth Minerals as Specified Minerals\nunder National Protective Mining, (Exhibit CHN-12, JE-72).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nminerals under the national protective mining, and carry out the planned and unified\nmanagement of their mining, separation, processing, selling and export, etc.1020\n7.693. As a result of its designation as a \"special mineral\", exploration and processing of tungsten\nis subject to strict planning and management to protect the resources and use tungsten in a\nreasonable manner. The 1991 Circular mandates that a total production plan is set up for\ntungsten1021, and MOFCOM is responsible for developi ng any export plans for the resource. 1022\nChina submits that production control and export restrictions are thus integral parts of its\nconservation policy for tungsten.\n7.694. China explains that at present, China's tungsten conservation policy is implemented\nthrough the following categories of measures:\n Measures limiting and controlling access to the tungsten industry1023;\n Measures directly controlling the volume of the resources being extracted, produced and\nexported, consisting of an extraction quota (limiting the amount of tungsten\nconcentrates that can be extracted)\n1024, a production quota in a Directive Production\nPlan1025, and an export quota1026;\n A resource tax on tungsten producers to ensure that the price of the resources reflects\ntheir costs1027; and\n A measure requiring mines to make a deposit for ecological recovery.1028\n7.695. The complainants do not appear to contest that China has a conservation policy for\ntungsten. For instance, the European Union accepts that China has a tungsten conservation\npolicy\n1029, but argues that the export quota on tu ngsten does not \"relate to\" this policy. 1030 It\nconcludes that \"China's export quota on tungsten does not meet the conditions of\nsubparagraph (g) and of the chapeau of Article XX of the GATT 1994\". 1031 Similarly, while the\nUnited States expresses some uncertainty about whether China has a \"comprehensive\n\n1020 Circular on Listing Tungsten, Tin, Antimony and Ionic Rare Earth Minerals as Specified Minerals\nunder National Protective Mining, second introductory paragraph, (Exhibit CHN-12, JE-72). Note that this\nCircular, which dates from 1991, refers to Article 15 of the Mineral Resources Law, (Exhibit CHN-10). Article 15\nwas the provision in the 1986 version of the Mineral Resources Law that introduced the category of \"specified\nminerals of which protective mining is prescribed\". After amendment in 1996, the corresponding provision\nbecame Article 16 of the Law.\n1021 Circular on Listing Tungsten, Tin, Antimony and Ionic Rare Earth Minerals as Specified Minerals\nunder National Protective Mining, section 4, first subparagraph, (Exhibit CHN-12, JE-72).\n1022 Circular on Listing Tungsten, Tin, Antimony and Ionic Rare Earth Minerals as Specified Minerals\nunder National Protective Mining, section 5, fourth subparagraph, (Exhibit CHN-12, JE-72).\n1023 Mining enterprises must obtain a license for exploration and exploitation of mineral resources. See\nRules for Implementation of the Mineral Resources Law, (Exhibit CHN-14) and Administration of Registration of\nMining of Mineral Resources, (Exhibit CHN-15). The conditions for admission to the tungsten industry are\nspecified in Conditions for Admission to Tungsten Industry, (Exhibit CHN-93).\n1024 The procedures for administration of the extraction quotas are provided in Administration of\nExploration and Mining of the Specified Minerals, (Exhibit CHN-18). The 2012 extraction quotas are specified in\n2012 Total Extraction Controlling Quota of Tungsten, Antimony and Rare Earth Ores, (Exhibit CHN-19) and\n2012 Total Extraction Quotas of Tungsten, Antimony and Rare Earth Ores for 2012 (First Batch),\n(Exhibit CHN-20).\n1025 The 2012 Directive Production Plan for tungsten is issued in two batches, as specified in First Batch\nof the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-94) and Second Batch of the 2012 Directive\nProduction Plan of Rare Metals, (Exhibit CHN-95).\n1026 2012 Export Licensing Catalogue, Paragraph I(i), (Exhibits CHN-8, JE-48), indicating that tungsten\nis subject to an export quota. Export quotas are initiated pursuant to Regulations on the Administration of the\nImport and Export of Goods, (Exhibits CHN-54, JE-50) and Export Quota Administration Measures,\n(Exhibits CHN-96, JE-52).\n1027 Amendment of the Provisional Regulations on Resource Tax, (Exhibit CHN-26) and Implementation\nRules for the Provisional Regulations on Resource Tax, (Exhibit CHN-27).\n1028 Opinions on Enhancing the Ecological Protection and Restoration of Mines, Section IV,\n(Exhibit CHN-32).\n1029 European Union's comments on China's response to Panel question No. 108.\n1030 European Union's second written submission, paras. 234 – 243.\n1031 European Union's executive summary (part II), para. 55.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nenvironmental policy for all three groups of produc ts or whether it has distinct such policies\ntailored to each industry\", it does not argue that China has no policy in place for the conservation\nof tungsten.\n1032\n7.696. The Panel begins by noting that China's conservation policy for tungsten is similar in\nstructure to China's conservation policy for rare earths, except that that there are fewer measures.\nDespite this difference, the Panel believes that its analysis in the context of rare earths is largely\napplicable in the context of tungsten as well.\n7.697. The Panel accepts that China has a conservation policy for its exhaustible tungsten ore\nresources. As the Panel observed in the context of rare earths, it is certainly in China's own\ninterest to conserve its tungsten resources, and none of the parties have brought evidence to\nsuggest that China has no conservation policy for tungsten.\n7.698. The Panel's task is therefore to objectively assess China's export quota on tungsten for\ncompliance with the requirements of Article XX(g). Where the Panel looks at other measures that\nare also claimed to form part of China's tungsten conservation policy, it does so only for the light\nsuch measures throw on the challenged export quota.\n7.699. The Panel now proceeds to consider whether China's export quota on tungsten \"relates to\"\nthe conservation of tungsten ores.\n7.7.2.1.3 \"relating to\"\n7.700. As the Panel has observed, China's arguments about tungsten are significantly less\nextensive than its arguments with respect to rare earths. Whereas China has advanced a number\nof interrelated arguments as to why its export quota on rare earths \"relates to\" the conservation of\nrare earth ores, it seems only to have advanced two reasons why its export quota on tungsten\nbears a \"close\", \"real\", and \"substantial\" connection to the goal of conserving exhaustible tungsten\nores. First, China argues that the texts of its export quota measures include various references to\nthe conservation objective, demonstrating that these measures \"relate to\" conservation.\n1033\nSecond, China argues that its export quota on tungsten \"relates to\" conservation because it\n\"enhances the effectiveness of China's conservation policy\", specifically by \"signalling to foreign\nusers of tungsten of the need to develop and locate other sources of supply or develop\nsubstitutes.\" According to China,\" [e]xport quot as create a dis-incentive to domestic Chinese\nproducers to expand production (since the amount that can be sold to foreign consumers is\nlimited), while simultaneously creating an incentive for foreign tungsten producers to initiate and\nexpand production.\"\n1034\n7.701. The Panel now proceeds to examine these arguments.\n7.7.2.1.3.1 Text of the export quota measures\n7.702. According to China, a number of the meas ures that together constitute China's tungsten\nexport quota contain direct or indirect references to the goal of conserving exhaustible tungsten\nore resources.\n7.703. The first evidentiary basis that China puts forward as establishing a \"close and genuine\"\n1035\nrelationship between the export quota and conservation is the reference to conservation in the text\nof the P ublic Notice of the Qualification Standard s and Application Procedures of the 2012\nTungsten, Antimony and Silver State Trading Ex port Enterprises, and Tungsten and Antimony\nExport Supply Enterprises .\n1036 According to China, this Notice specifies the eligibility criteria for\nenterprises to participate in the 2012 quota allocation process for tungsten and indicates that\nthese measures are adopted \"[i]n order to protect the resources\".\n\n1032 United States' comments on China's response to Panel's question Nos. 100, 108.\n1033 China's first written submission, para. 299.\n1034 China's first written submission, para. 307.\n1035 China's first written submission, para. 298.\n1036 See also 2012 Application Qualifications and Application Procedures of Tungsten Export (or Supply)\nEnterprises, (Exhibits CHN-100, JE-62).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.704. The Public Notice also specifies that it is adopted on the basis of the Provisional Measures\non Administration of the Export Operations of Tungsten and Tungsten Products .1037 These\nmeasures state that their objective is to \"strengthen[] the management of the export operations of\ntungsten and tungsten products,\" and express the objective of \"conserving exhaustible non-\nrenewable resources\".\n1038 They also indicate that the export quota on tungsten is implemented\ntogether with \"total quantity control of the extraction, production and sale of tungsten and\ntungsten products\".\n1039 In light of these references, China su bmits that the tungsten export quota\naims to conserve exhaustible non-renewable resources and is an integral part of China's\nconservation policy, which also includes production restrictions on tungsten.\n7.705. According to China, the fact that the 2012 tungsten export quota was adopted on the basis\nof measures that refer to China's conservation objective provides further evidence that the quota\n\"relates to\" conservation. The legal basis for using export quotas to conserve tungsten resources is\ncontained in the following provisions:\n Article 16(4) of the Foreign Trade Law 1040 provides that the export of goods may be\nrestricted \"in order to effectively conserve exhaustible natural resources\".\n Article 35 of the Regulations on the Administration of the Import and Export of Goods\nindicates that the export of goods that are considered to be exhaustible natural\nresources in need of conservation, \"shall be restricted\".1041\n For tungsten, specific Measures for the Administration of Export Commodities Quotas\napply. These measures specify that export quotas, adopted on the basis of Article 35 of\nthe Regulations on the Administration of the Import and Export of Goods , and thus\npursuing a conservation objective, are administered.\n1042\n7.706. The 2012 Export Licensing Catalogue , which specifies the goods subject to export\nquotas1043, MOFCOM's Announcement publishing th e total 2012 export quota volume for\ntungsten1044, and the Notices publishing the list of enterprises applying for the export quota1045, as\nwell as the list of enterprises to which shares of the quota have been granted 1046, all refer to the\ninstruments mentioned above as the legal basis for export quotas to conserve resources.\n\n1037 2012 Application Qualifications and Application Procedures of Tungsten Export (or Supply)\nEnterprises, (Exhibits CHN-100, JE-62). See also Administration Measures of the Export Operations of Tungsten\nand Tungsten Products, (Exhibit CHN-101).\n1038 Administration Measures of the Export Operations of Tungsten and Tungsten Products, Article 1,\n(Exhibit CHN-101).\n1039 Administration Measures of the Export Operations of Tungsten and Tungsten Products, Article 3,\n(Exhibits CHN-101, JE-49).\n1040 Foreign Trade Law, (Exhibits CHN-11, JE-49) Article 16(4).\n1041 Regulations on the Administration of the Import and Export of Goods, Article 35, (Exhibits CHN-54,\nJE-50). Article 35 of the Regulations refers to Article 16(1), (2), (3) and (7) of the Foreign Trade Law,\n(Exhibits CHN-11, JE-49). Article 16(2) of the 1994 version of the Foreign Trade Law specifies that export\nrestrictions may be adopted to ensure the \"effective protection of exhaustible domestic resources\". The Foreign\nTrade Law was last amended in 2004, the corresponding provision dealing with conservation of exhaustible\nnatural resources is Article 16(4).\n1042 Export Quota Administration Measures, (Exhibits CHN-96, JE-52), Article 3.\n1043 2012 Export Licensing Catalogue, introductory paragraph, (Exhibits CHN-8, JE-48) (\"Pursuant to the\nForeign Trade Law of the People's Republic of China and the Regulations on the Administration of the Import\nand Export of Goods of the People's Republic of China, the 2012 Export Licensing Management Goods List is\nhereby promulgated\").\n1044 2012 Export Quota Amounts, (Exhibit CHN-97) (\"Pursuant to the Regulations of the People's\nRepublic of China on the Administration of the Import and Export of Goods and the Measures for the\nAdministration of Export Commodities Quotas, the 2012 total export quota quantity for Agricultural and\nindustrial products are hereby announced\".).\n1045 2012 List of Enterprises for the Export (or/and Supply) of Tungsten, and List of Enterprises for the\nExport of Molybdenum, (Exhibit CHN-98) (\"… in accordance with the Foreign Trade Law of the People's Republic\nof China and the Regulations on the Administration of Import and Export of Goods, the list publishing online\nthe State-Trading Exporting Enterprises of Tungsten, Antimony and Silver of 2012 … are hereby published.\").\n1046 2012 First Batch Export Quotas of Tungsten, Antimony and Other Non-Ferrous Metals,\n(Exhibits CHN-99, JE-59) (\"According to the Regulations on Administration of Import and Export of Goods and\nthe Measures for the Administration of Export Commodities Quotas, the list of export (supply) enterprises … is\nhereby announced and the first batch of the quota is hereby granted.\").\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.707. China argues that additional evidence of a \"close and genuine relationship\" between the\n2012 export quota and the conservation objective can be found in the \"context\" of these\nmeasures, namely in the general policy documents for the tungsten conservation policy. In the\n1991 Circular, tungsten was explicitly identified as be ing among the \"special minerals under the\nnational protective mining\". As China explains, in 1991, China subjected certain minerals, including\ntungsten, to \"protective mining\" with a view to \"reasonably develop, utilize and protect\"\n1047 these\nresources. Therefore, tungsten production is subject to a total production plan 1048, and MOFCOM\ndetermines export plans for this production1049 to conserve tungsten resources.\n7.708. The complainants dispute the probative value of these references to \"conservation\" in\nChina's export quota measures for several reasons. The complainants consider the references to\nthe goal of conservation in China's export quota measures to be passing references, and argue\nthat China fails to explain how the export quota makes a material contribution to that goal.\n1050 The\ncomplainants note moreover that China's export quota measures, which have been imposed for\nover a decade, have only made passing reference to the goal of conservation since the beginning\nof 2012.\n1051 The complainants also contend that cross-references to legal instruments such as the\nForeign Trade Law and regulations on the export quota measures are insufficient to meet China's\nburden under Article XX(g), since those instruments also list reasons other than conservation for\nwhich the export quotas could have been imposed. 1052 With respect to the 1991 Circular , the\ncomplainants note that this document contains no explanation of the relationship between the\nexport quota and the alleged conservation objective.\n1053\n7.709. The Panel begins by reiterating its finding above in the context of rare earths that, while a\nmere \"passing reference\" to conservation goals cannot by itself establish the existence of the\nrequired relationship between the challenged measure and the goal of conservation, references to\nconservation in the text of a challenged measure could in principle help to demonstrate that such\nmeasure \"relates to\" conservation. What matters is the nature of the reference(s) in question.\nMoreover, the Panel reaffirms that the mere fact that textual references to conservation were\nincluded for the first time in 2012 does not necessarily undermine their probative value. Again,\nwhat matters is the nature of the actual references themselves. As the Panel has noted, the\nAppellate Body has made clear that \"Members of the WTO should not be assumed, in any way, to\nhave continued previous protection or discrimination through the adoption of a new measure\",\nsince this \"would be close to a presumption of bad faith\".\n1054 As such, the Panel cannot make any a\npriori judgments about the value and bona fides of such references, but instead must closely\nexamine them in their context.\n7.710. The Panel has examined the measures referred to by China. It accepts China's argument\nthat some of the export quota measures make reference to conservation-related objectives.\nH o w e v e r , t h e P a n e l a l s o o b s e r v e s t h a t s o m e o f t h e m e a s u r e s p o i n t e d t o b y C h i n a i n c l u d e\nreferences to other policies, including industrial policies. For instance, the Public Notice of the\nQualification Standards and Application Procedur es of the 2012 Tungsten, Antimony, Silver State\nTrading Export Enterprises and Tungsten , Antimony, Export Supply Enterprises\n1055 does, as China\nclaims, refer to the objective of \"protect[ing] th e resources and environment.\" However, the Panel\nnotes that the full sentence referred to by China reads as follows: \"In order to protect resources\nand environment, in coordination with industry policies of the nation , and further strengthen the\n\n1047 Circular on Listing Tungsten, Tin, Antimony and Ionic Rare Earth Minerals as Specified Minerals\nunder National Protective Mining, second introductory paragraph, (Exhibit CHN-12, JE-72).\n1048 Circular on Listing Tungsten, Tin, Antimony and Ionic Rare Earth Minerals as Specified Minerals\nunder National Protective Mining, section 4, first subparagraph, (Exhibit CHN-12, JE-72).\n1049 Circular on Listing Tungsten, Tin, Antimony and Ionic Rare Earth Minerals as Specified Minerals\nunder National Protective Mining, section 5, fourth subparagraph, (Exhibit CHN-12, JE-72).\n1050 United States' second written submission, para. 201; European Union's second written submission,\npara. 237.\n1051 United States' second written submission, para. 202; European Union's second written submission,\npara. 237.\n1052 United States' second written submission, para. 203; European Union's second written submission,\npara. 238.\n1053 United States' second written submission, para. 204; European Union's second written submission,\npara. 239.\n1054 Appellate Body Report, Chile – Alcoholic Beverages, para. 74.\n1055 2012 Application Qualifications and Application Procedures of Tungsten Export (or Supply)\nEnterprises, (Exhibits CHN-100, JE-62).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nexport administration of rare metal exports…\". 1056 In the Panel's opinion, the emphasized phrase is\nclearly a reference to industrial rather than conservation policy.\n7.711. As the Panel explained above in the co ntext of rare earths, it is true that the 1991 Circular\nplaces certain minerals under \"national protective mining\". However, as the Panel understands it,\nthe focus of the Circular is on preventing illegal mining to ensure that the comparative advantage\nChina enjoys in non-ferrous metals is not undercut and protecting the State from \"suffer[ing]\nsignificant losses\".\n1057 Although, as the Panel has said, maintaining a \"comparative advantage\" is\nnot necessarily an anathema to the goal of conservation, the Panel believes that it is primarily an\nindustrial policy objective.\n7.712. Finally, the Panel also recalls that the Foreign Trade Law, which China claims is referenced\nin a number of its tungsten export quota measures, lists a number of policy grounds for the\nimposition of export quotas, including \"national security\", \"shortage of domestic supply\" and \"other\ncircumstances\" as well as \"conservation\". As such, these cross-references do not provide strong\nevidence for China's position.\n7.713. The Panel notes additionally that, like the Foreign Trade Law , the Regulations on the\nAdministration of the Import and Export of G oods and the Measures for the Administration of\nExport Commodities Quotas establish that export quotas can be imposed for a number of reasons\nbesides conservation.\n7.714. For instance, the Measures for the Administration of Export Commodities Quotas provides\nfor the imposition of export quotas in connection with \"development plans, objectives and policies\nof the States in the relevant industries\".\n1058 Likewise, Article 35 of the Regulations on the\nAdministration of the Import and Export of Goods , to which China refers in its first written\nsubmission, provides that \"[t]he export of any goods falling into any of the circumstances set forth\nin subparagraphs (1), (2), (3), and (7) of Articl e 16 of the Foreign Trade Law shall be restricted\".\nBut the paragraphs referred to by China concern re strictions for the purposes of (1) safeguarding\nnational security, social and public interests, or public morals; (2) protecting human or animal\nhealth, or to protect the environment, (3) controlling the import and export of gold and silver; and\n(7) establishing or accelerating the establishment of specific domestic industries.\n1059\nSubparagraph 16(4) of the Foreign Trade Law, which refers to \"effectively conserv[ing] exhaustible\nnatural resources\", is not explicitly mentioned in Article 35.\n7.715. The Panel therefore has difficulty acce pting that the various references in China's\nmeasures to the Foreign Trade Law and the Regulations on the Administration of the Import and\nExport of Goods and the Measures for the Administration of Export Commodities Quotas provide\nany strong support for China's argument that the texts of the export quota measures demonstrate\nor manifest a \"close\" and \"substantial\" relationship with the objective of conserving exhaustible\ntungsten resources.\n7.716. Assessing the various references in China's measures holistically, the Panel considers that\nChina's tungsten export quota measures reference a range of policies and objectives, including\nconservation and industrial development. The refe rences thus seem to the Panel to send mixed\nmessages, and are ultimately ambiguous. The Panel therefore cannot find that China's export\nquota on tungsten \"relates to\" conservation on the basis of these references alone.\n7.717. Additionally, and perhaps more importantly, the Panel believes that the texts of China's\ntungsten export quotas, including their references to conservation, do not explain how export\nquotas relate to the goal of conserving exha ustible tungsten ores. For instance, while the Public\nNotice of the Qualification Standards and Applic ation Procedures of the 2012 Tungsten, Antimony,\nSilver State Trading Export Enterprises and Tungsten, Antimony, Export Supply Enterprises\n1060\nrefers to object of \"protect[ing] the resources\", the document contains no indication or explanation\n\n1056 Emphasis added.\n1057 Circular on Listing Tungsten, Tin, Antimony and Ionic Rare Earth Minerals as Specified Minerals\nunder National Protective Mining, second introductory paragraph, (Exhibit CHN-12, JE-72).\n1058 Export Quota Administration Measures, (Exhibits CHN-96, JE-52), Article 10(3).\n1059 Foreign Trade Law (Exhibit CHN-11, JE-49).\n1060 2012 Application Qualifications and Application Procedures of Tungsten Export (or Supply)\nEnterprises, (Exhibits CHN-100, JE-62).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nas to how the stated qualification conditions are closely or substantially related to conservation of\nexhaustible tungsten ores. The document states that the qualification conditions have been\nadopted \"in order\" to conserve exhaustible natura l resources, but the actual relationship between\nthose conditions and the conservation objective is nowhere explained.\n7.718. Similarly, while Article 1 of the Provisional Measures refers to the \"purpose of\nstrengthening the management of the export operations of tungsten and tungsten\nproducts…maintaining the order of export operations of tungsten and tungsten products … and\nconserving exhaustible natural resources\", the rela tionship between the export quota and the goal\nof conservation – and specifically how the ex port quota (as opposed to the extraction and\nproduction controls mentioned in Article 2) supports or furthers the conservation objective – is not\ndiscussed\n7.719. As the Panel has explained, references to \"conservation\" simply cannot substitute for a full\nand proper explanation of how the challenged measures were designed to promote conservation.\nWhile the references to conservation that China has pointed to do suggest that the export quota\nmeasures were imposed with conservation-related concerns in mind, the Panel's task is to\ndetermine whether the design and architecture of the measures \"relate to conservation\", and the\nreferences to which China has pointed do not, in the Panel's opinion, substantially illuminate this\ninquiry.\n7.720. In sum, it is the Panel's opinion that China cannot discharge its burden of proof simply by\nciting a number of references to conservation in the text of a challenged measure without\nexplaining how the challenged measure \"relates to\", supports, or furthers the goal of conserving\nexhaustible tungsten ores. Consequently, the Panel cannot conclude that China's export quota on\ntungsten \"relates to\" the conservation of tungsten ores on the basis of these references alone.\n7.7.2.1.3.2 Signalling\n7.721. As the Panel noted above, China argues that its export quota system enhances the\neffectiveness of its conservation policy by signalling to foreign tungsten users the need to locate\nand develop other sources of supply, and/or to deve lop substitutes. More specifically, according to\nChina export quotas create a disincentive to domestic Chinese tungsten producers to expand\nproduction (since the amount that can be sold to foreign consumers is limited), while\nsimultaneously creating an incentive for foreign tungsten producers to initiate and expand\nproduction in third countries. Thus, the demand for China's limited tungsten resources will lessen\nas the availability of foreign tungsten sources increases.\n1061\n7.722. According to China, by (i) limiting tota l domestic production and supplies available to\nChinese users (through its restrictions on domestic tungsten production), and (ii) limiting the total\nvolume of tungsten products available to foreign users, China is taking a significant step towards\nlimiting the demand for its tungsten resources. In effect, it is providing clear notice to China-based\ntungsten operators and potential investors in China that they should curb any inclination to expand\ntheir tungsten operations, while at the same time providing a green light signal to investors and\ntungsten producers outside of China to expand investment and production because China is\nserious about conserving its dwindling tungsten resources. China concludes this point by\nsubmitting that the overall effect of the tungsten export quota measures is to facilitate its\nconservation objective.\n1062\n7.723. According to the United States, China's argument is hypothetical since it is not reflected in\nthe government measures that establish the tung sten export quota. Moreover, the United Sates\nargues that China's export quotas create a two- tiered pricing structure in the tungsten market,\nand incentivize foreign users of tungsten to relocate to China. The United States points out that\nChina fails to explain how the export quota, as opposed to domestic production restrictions that\nactually limit production, creates an incentive for foreign tungsten producers to increase\nproduction.\n1063\n\n1061 China's first written submission, para. 307.\n1062 China's first written submission, para. 308.\n1063 United States' second written submission, paras. 205-208.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.724. The European Union recalls that it was China's price-depressing competitiveness in the\nglobal tungsten market that caused tungsten businesses in other countries to close from the 1970s\nonwards, and thus finds China's argument that the export quota on tungsten is a signalling tool\nironic.\n1064 The European Union further argues that an export quota on tungsten is not an effective\nsignalling tool, since substitutes for tungsten are not easily found.1065\n7.725. The Panel has dealt with the argument that export quotas send a \"signal\" to foreign users\nabove in its analysis of the export quota on rare earths, and considers that what was said there\napplies with equal force here. While the Panel accepts that export quotas do or at least can send\nconservation-related signals to foreign users, the Panel is concerned that such quotas can also\nsend perverse signals to domestic consumers, and can even stimulate domestic demand, contrary\nto China's stated conservation goals. Moreover, the Panel has explained above why the imposition\nof an extraction and/or a production quota may not suffice to counteract or offset such perverse\nincentives. As was the case in the context of rare earths, the Panel is not convinced that the\ndesign and architecture of China's export quotas , even taken together with the extraction and\nproduction caps, is such as to counteract the perverse signals which are generally sent by export\nquotas. As such, the Panel has difficulty concluding that the export quota on tungsten, which risks\nencouraging or stimulating domestic demand\n1066 and even leading, in the medium-long-term, to\nmore, rather than less, illegal extraction and production, can be said to \"relate to\" conservation for\nthe purposes of Article XX(g).\n7.726. The Panel notes additionally the European Union's argument that signalling is ineffective\nsince tungsten substitutes are not easily found. The European Union has not made this argument\nwith respect to the rare earths, and so the Panel turns to consider it now.\n7.727. The Panel has difficulty with the European Union's argument for a number of reasons.\n7.728. In the first place, the Panel notes that wh ile substitutes for tungsten may be difficult to\ncome by, the European Union has not argued that there are no natural reserves of tungsten\nanywhere outside of China. China states in its first written submission 1067 that China is estimated\nto hold about 61% of the world's tungsten reserves but bears a disproportionately high burden of\nproducing 83% of the world's tungsten supply. Moreover, as China has noted, a number of\nwestern countries used to mine tungsten and other minerals but stopped due to environmental\nand costs-related issues. This suggests that other countries do have tungsten reserves. China's\nquota could, therefore, be effective in signalling the need for foreign consumers to start (or re-\nstart) tungsten mining in other countries.\n7.729. Additionally, as a matter of principle, the fa ct that alternatives to tungsten are not easily\nfound does not mean that China's signalling argument is invalid. In the Panel's opinion, the ease or\ndifficulty with which alternative sources can be developed is not a factor that affects the right of a\nresource-endowed Member to encourage investment and research in alternatives or substitutes in\nthe interests of conservation – provided, of course, that such encouragement is consistent with\nWTO rules. The state of science and technology is in constant flux, and while alternatives to, or\nsubstitutes for, tungsten may be difficult to find today, further research and investment might very\nwell lead to the discovery of just such alternativ es or substitutes. Indeed, in the Panel's opinion,\nthe kind of signal China seeks to send to foreign tungsten consumers through its export quota\nmeasures may very well be the stimulus needed by consumers, investors, and scientists to\nconduct further research and exploration.\n7.730. At any rate, and more fundamentally, the Pa nel believes that the absence of substitutes in\nno way affects China's right to adopt measures for the conservation of exhaustible natural\nresources. As the Panel has explained in its anal ysis of the legal test under Article XX(g), the\nsovereignty of all States over their own natural resources allows them to decide whether and how\nmuch of a given resource to extract. While resource-endowed Members may take the needs of\nother States or the availability of alternative resources into account when deciding how much of an\nexhaustible natural resource to extract, they are under no obligation to do so, and the absence of\n\n1064 European Union's second written submission, para. 241.\n1065 European Union's second written submission, para. 242.\n1066 Panel Reports, China – Raw Materials, para. 7.586. See the Panel's analysis in the context of rare\nearths in section 7.6.2.1.3.5 above.\n1067 China's first written submission, para. 285.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nan alternative to, or substitute for, a particul ar resource does not deprive Members of that\nfundamental right to decide how much, if any, of the resource in question should be extracted for\nsale into the market. China is under no obligation to extract its tungsten resources simply because\nalternatives to tungsten are not easily found.\n7.731. As such, the Panel believes that the problem with China's export quota on tungsten is not\nthat alternatives to tungsten are difficult to come by, but that the export quota sends a perverse\nsignal to domestic consumers. For this reason, the Panel finds it difficult to accept China's\nargument that the challenged quota \"relates to\" the conservation of exhaustible tungsten ores.\n7.7.2.1.3.3 The possibility that unused expo rt quota volumes will be sold to domestic\nconsumers\n7.732. Finally, the Panel notes the European Unio n's argument that \"if China were serious about\nconserving its resources, it would conserve the material that has not been used up by exports,\ninstead of making it available to domestic producers\".\n1068 In the context of rare earths, China has\nresponded to this claim by arguing that the domestic availability of unused export quota volumes\ndoes not undermine the existence of a substantia l relationship between the export quota system\nand the goal of conserving tungsten since the conservation levels determined in the extraction and\nproduction quota for any given year constitutes the level of conservation that China considered\nappropriate for that year. According to this argument, there is no harm, from a conservation\nperspective in allowing domestic tungsten co nsumers to use whatever quantity of export-\ndesignated tungsten has not been used by foreign consumers.\n7.733. The Panel disagrees with the European Union on this point. In the Panel's opinion, the\nmere fact that unused volumes are allowed to be sold into the domestic market does not in itself\nmean that the export quota system does not \"relate to\" conservation. Assuming that the\nextraction and/or production caps were \"real\" restrictions, i.e. were set below the level of expected\ndemand for the relevant period (i.e. for 2012), then we believe the fact that China does not\nrequire unused export quotas to be preserved for use in future years does not necessarily cast\ndoubt on its conservation objectives, since China is still pursuing conservation through the\nimposition, on an annual basis, of limits on extrac tion and production. Within these limits, there is\nnothing illegal or even contradictory about China pursuing its own industrial or other goals (so long\nas these are pursued in a non-discriminatory manner).\n7.734. While taking into account the unused shar e of the export quota in the determination of\nextraction/production and export quotas for the foll owing year(s) may result in a higher degree of\nconservation, we believe that the Panel cannot find that China's measures as they stand do not\n\"relate\" to conservation merely because China has designed its export quota' system in such a way\nas to prohibit the stockpiling\n1069 or exchange of unused export quota shares among exporters 1070\nwhile allowing unused quota volumes to be sold into the domestic market. In our view, this is so\neven though taking into account such unused export quota's shares for future years'\ndeterminations would result in a higher level of conservation. China is entitled to identify and\npursue its own level of conservation, and once such level of extraction/conservation is determined,\nwhere products are eventually consumed (abroad or domestically) does not affect the relationship\nbetween the challenged measures and the goal of conservation.\n7.7.2.2 Second part: whether China's export quota on tungsten is made effective in\nconjunction with restrictions on domestic production or consumption\n7.735. The Panel now turns to examine whether China's export quota on tungsten is \"made\neffective in conjunction with restrictions on domestic production or consumption.\"\n\n1068 European Union's opening statement at the first meeting of the Panel, para. 49.\n1069 Given the unused export quota volumes are required to be handed back to Chinese authorities by\nOctober 31, it is evident that exporters are not able to stockpile such unused volumes. See Regulations on the\nAdministration of the Import and Export of Goods, (Exhibit CHN-54), Article 42.\n1070 China's responses to Panel's question Nos. 143 and 144 (\"China can confirm that it is illegal to sell\nor transfer the export quota\").\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.736. China submits it has a distinct conservation policy 1071 for tungsten that includes both\nexport and domestic restrictions. Specifically, China argues that its conservation plan consists of\nfour categories of domestic restrictions: access conditions; quotas on extraction, production and\nexport; resource taxes; and a deposit for ecological recovery.\n1072 China argues also that its\nrestrictions on domestic production and consumption of tungsten are substantial. China claims that\nit meets the even-handedness requirement in Article XX(g) as long as it ensures that the burden of\nits tungsten conservation policy is not solely imposed on foreign consumers, but also on domestic\nconsumers.\n1073 The complainants rebut the four parts of China's argument, and maintain that\nChina's conservation measures do not constitute \"restrictions on domestic production or\nconsumption\" within the meaning of Articl e XX(g) of the GATT 1994. According to the\ncomplainants, China's alleged conservation policy for tungsten does not include any domestic\nrestrictions that counter-balance the export quotas on tungsten products.\n1074 The complainants\nthus argue that China's system is not even-handed.\n7.737. The Panel now turns to consider whether: (i) China imposes \"restrictions on domestic\nproduction or consumption\" of tungsten; and (ii) whether the challenged export quota is \"made\neffective in conjunction with\" such restrictions on domestic production or consumption.\n7.7.2.2.1 Whether China has imposed rest rictions on domestic production or\nconsumption of tungsten\n7.738. In its first written submission, China identifies four categories of domestic measures that,\nit argues, restrict domestic production and consumption of tungsten in China. 1075 These are: (a)\naccess conditions; (b) resource taxes; (c) volume restrictions; and (d) a deposit for ecological\nrecovery. The Panel will assess each of these measures individually.\n7.739. In the following sections, the Panel will evaluate each legal instrument invoked by China as\na restriction on domestic production or consumption, and will assess whether those alleged\nrestrictions are real , i.e. restrictions that are capable of having a limiting effect. The Panel recalls\nthat a measure claimed to be a restriction is capable of having a limiting effect only if it is\naccompanied by actual enforcement. Therefore, the Panel will consider not only whether there are\nrestrictions in the text of the Chinese law, but also whether China has adopted measures to\nenforce its alleged restrictions. The Panel notes that, unlike in the context of its arguments on rare\nearths, China did not argue in its first written submission that it had measures to enforce its\nconservation policy on tungsten. However, China prov ided three exhibits in response to a question\nfrom the Panel after the second meeting, and claims that it has taken enforcement actions to\nensure compliance with the alleged restrictions on domestic production or consumption of\ntungsten. The Panel considers that \"enforcement measures\" are part of the design, structure, and\narchitecture of each of the four alleged restrictions, i.e. access conditions, resource taxes, volume\nrestrictions, deposit for ecological recovery, and that they should therefore be assessed together\nwith each of these four categories of measures. The Panel will also examine \"enforcement\nmeasures\" combating mining or production by illegal producers.\n7.7.2.2.1.1 Whether the access conditions are real and actual restrictions on domestic\nproduction or consumption of tungsten\n7.740. China argues that it strictly limits the right to mine and produce tungsten, and that it\nmoreover is seeking to create an industry that is organized in a rational and efficient manner.\n1076\nAccording to China, enterprises desiring to ex plore and exploit mineral resources in China are\nrequired to obtain a mining licence. 1077 China argues that the licensing requirements strictly\n\n1071 China's first written submission, section III. B and China's response to Panel question No. 108.\n1072 China's first written submission, paras. 292 and 311.\n1073 China's first written submission, para. 333.\n1074 United States' second written submission, paras. 247-249; European Union's second written\nsubmission, paras. 261-263; Japan does not rebut the \"conservation measures\" one by one in its second\nwritten submission, corresponding to the structure of China's first and second written submission. However,\nJapan does rebut certain legal instruments included in those three \"conservation policies\".\n1075 China's first written submission, para. 311.\n1076 China's first written submission, para. 313.\n1077 China's first written submission, para. 314 (referring to Rules for Implementation of the Mineral\nResources Law, (Exhibit CHN-14) and Administration of Registration of Mining of Mineral Resources,\n(Exhibit CHN-15)).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\ncontrol access to China's tungsten resources, reduce the number of mines and producers, and\nthereby facilitate adherence to volume restrictions.1078\n7.741. The measures invoked by China as access conditions to the tungsten industry are:\na. Opinions on the Integration of Exploitation of Mineral Resources1079 of 2006;\nb. Rules for Implementation of the Mineral Resources Law1080 of 1994\nc. Administration of Registration of Mining of Mineral Resources1081 of 1998;\nd. Circular on Admission to Tungsten Industry1082of 2006.\n7.742. The Opinions on the Integration of Exploitation of Mineral Resources is a joint legal\ninstrument of the Ministries of Land and Resources, the National Development and Reform\nCommission, and several other ministries, which together launched the integration of the mining\nindustries of \"key types of minerals\" (including tungsten\n1083). The Opinions on the Integration of\nExploitation of Mineral Resources provides that the integration work is to be carried forward in four\nstages, namely formulation of the overall plan, formulation of the implementation plan, actual\nimplementation of the plan, and examin ation and inspection. According to the Opinions, the\nintegration work was to be completed prior to th e end of 2008. China submits that an integrated\nexploitation of mineral resources is more efficient and more environmentally friendly.\n1084\n7.743. In the Panel's view, the initiation of integr ation of mining industries confirms the existence\nof governmental regulation and control over extr action of tungsten. The Panel also acknowledges\nChina's argument that a rational industry structure, which China seeks to implement through the\naccess conditions, facilitates the supervision of the Chinese tungsten enterprises' compliance with\nthe applicable conservation measures for tungst en. However, China has not provided the Panel\nwith further explanation about how integration affects the access of miners to the tungsten\nindustry, nor about the progress of the integration work, in particular regarding the tungsten\nmining industry. Neither has China demonstrated how an integrated tungsten industry could\nrestrict the mining or production of tungsten, or how an integration project that was supposed to\nbe completed prior to the end of 2008 could be a restriction on the mining or production of\ntungsten in 2012.\n7.744. The Rules for Implementation of the Mineral Resources Law\n1085 set out licensing\nrequirements for mining enterprises in general. The Administration of Registration of Mining of\nMineral Resources 1086sets out the conditions and procedures for obtaining a mining licence.\nHowever, these two legal instruments do not refer to restrictions on the extraction or production of\ntungsten.\n7.745. The Circular on Admission to Tungsten Industry 1087 specifies access conditions for all\ntungsten metallurgy and processing projects. The Circular addresses: (i) the establishment and\ncomposition of manufacturing enterprises, (ii) pr oduction scales for tungsten metallurgy, tungsten\nbillet and carbide alloy (iii) resource recycling and energy consumption (including minimum\nproduction scale), (iv) environmental protection, (v) product quality, (vi) safe production and\noccupational disease prevention, and (vii) labour insurance.\n\n1078 China's first written submission, para. 317.\n1079 2006 Opinions on the Integration of Exploitation of Mineral Resources, (Exhibit CHN-17).\n1080 Rules for Implementation of the Mineral Resources Law, (Exhibit CHN-14).\n1081 Administration of Registration of Mining of Mineral Resources, (Exhibit CHN-15).\n1082 Conditions for Admission to Tungsten Industry, (Exhibit CHN-93).\n1083 2006 Opinions on the Integration of Exploitation of Mineral Resources, (Exhibit CHN-17),\nArticle IV(a).\n1084 China's first written submission, para. 313.\n1085 Rules for Implementation of the Mineral Resources Law (Exhibit CHN-14).\n1086 Administration of Registration of Mining of Mineral Resources, (Exhibit CHN-15), Article 3(4) and\nAppendix.\n1087 Conditions for Admission to Tungsten Industry, (Exhibit CHN-93).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.746. The Panel doubts how these access conditions, which control the entry of \"new-comers\"\ninto the tungsten industry, could restrict the activity of tungsten producers who have already\nentered the tungsten industry, especially while th ere is no volume limit on the production of\nintermediate and finished tungsten products, such as tungsten metallurgy, tungsten billet and\ncarbide alloy. The Panel notes that China only claims that it imposes a production quota on\ntungsten concentrates. The Panel will discuss whether or not this alleged production quota is a\nrestriction on domestic production in the following section. Here it suffices to say that, while in the\nPanel's opinion access conditions make it hard er for new enterprises to enter the tungsten\nindustry, they do not control the amount of tungsten metallurgy, tungsten billet, and/or carbide\nalloy that enterprises already in the industry may produce. As such, they also cannot control the\namount of intermediate tungsten products that downstream industries in China will be able to\nobtain. The Panel therefore has difficulty finding that conditions such as a minimum production\nscale – which is designed to promote efficient production – are restrictions on domestic production.\n7.747. In the Panel's opinion, the Opinions on the Integration of Exploitation of Mineral Resources,\nthe Rules for Implementation of the Mineral Resources Law and the Administration of Registration\nof Mining of Mineral Resources are relevant to the tungsten mining industry; however, China has\nfailed to explain the access conditions for tungsten mining enterprises. The Circular on Admission\nto Tungsten Industry\n1088 is only relevant to tungsten metallurgy and processing. In sum, the Panel\nbelieves that China has failed to demonstrate that alleged access condition restrictions, which are\ndesigned to promote the efficiency of production, are real and actual restrictions.\n7.748. The Panel understands that the access conditions set the qualification miners or producers\nmust meet to enter the tungsten industry. The Panel also understands that the violation of access\nconditions will lead to a miner or producer losing its qualification to mine or produce, and therefore\nbecoming an illegal miner or producer if they continue to mine or produce. The Panel will address\nthe alleged actions against illegal mining and other violations of China's production requirements in\na separate section.\n7.7.2.2.1.2 Whether the volu me restrictions are capabl e of restricting domestic\nproduction or consumption of tungsten\n7.749. China argues that its 2012 conservation policy for tungsten includes volume restrictions on\ndomestic production in the form of quotas on the volume of tungsten products that can be\nextracted and smelted and separated.\n1089 China also posits that the collective effect of China's\nexport and production quotas for tungsten is to limit the available amount for domestic Chinese\nconsumption.1090\n7.750. First, the Panel recalls that it cannot conclude that measures are capable of restricting the\ndomestic production or consumption of tungsten solely on the basis of the existence of a volume\ncap on the extraction, production, or consumption of tungsten. In the first place, the level of the\nvolume cap must be capable of having a limiting effect on domestic production or consumption.\nAdditionally, the Panel also needs to determin e whether China has imposed measures that are\ncapable of actually enforcing these volume caps. In the context of its analysis under the second\nphrase of Article XX(g), the Panel will examine the legal framework of the domestic restrictions\nand whether they have been implemented and are capable of being enforced. Whether the alleged\nnon-enforcement of such restrictions constitutes disguised restrictions on trade or discrimination in\nthe application of China's conservation programme will be discussed in the context of the Panel's\nanalysis under the chapeau of Article XX.\nThe extraction quota system applicable to tungsten\n7.751. According to China, China's extraction quota determines how much tungsten concentrates\ncan be legally produced each year.\n1091 China invokes the following legal instruments and claims\nthat it imposed a restriction on the extraction of tungsten in 20121092:\n\n1088 Conditions for Admission to Tungsten Industry, (Exhibit CHN-93).\n1089 China's first written submission, para. 318.\n1090 China's first written submission, para. 326.\n1091 China's second written submission, para. 319; China's response to Panel question 100(c).\n1092 China's first written submission, paras. 292, 319, and 320.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\na. Administration of Exploration and Mining of the Specified Minerals1093;\nb. 2012 Total Extraction Controlling Quota of Tungsten, Antimony and Rare Earth Ores1094;\nc. Circular on Total Extraction Quotas of Tungsten, Antimony and Rare Earth Ores for\n2012.1095\n7.752. The Panel recalls that these legal instruments have been discussed above in the context of\nChina's alleged volume restriction on rare earths. In the present section of its report, the Panel\nonly addresses the tungsten-related aspects of the three instruments.\n7.753. The Panel notes that the Administration of Exploration and Mining of the Specified\nMinerals, referred to in Paragraph 5 of the Circular on Total Extraction Quotas of Tungsten,\nAntimony and Rare Earth Ores for 2012 provides for control of the amount of mining in general.\n7.754. In 2011, the Ministry of Land and Resources issued the Circular on Total Extraction Quotas\nof Tungsten, Antimony and Rare Earth Ores for 2012 . That document sets the first batch of the\nextraction quota at 42,440 tonnes, \"among which major quota accounts for 34,340 tonnes and\ncomprehensive utilization quota accounts for 8,100 tonnes\".\n1096 Article I of the Circular announces\nthat the total extraction quotas for tungsten, antimony, and rare earth ores for the whole year will\nbe issued at a proper time in the second quarter according to national policies and market\nchanges.\n1097\n7.755. On 19 April 2012, the Ministry of Land and Resources issued the 2012 Total Extraction\nControlling Quota of Tungsten, Antimony and Rare Earth Ores , which sets the total extraction\nquota of rare earths at 89,000 tonnes1098 and provides for allocation of the extraction quota at the\nregional level in 2012. The introductory paragraph of the 2 012 Total Extraction Controlling Quota\nof Tungsten, Antimony and Rare Earth Ores states that the amount of the total extraction quota\nincludes the amount of the first batch of the 2012 extraction quota. It appears to the Panel that\nChina did not determine the total amount of material that Chinese miners could extract at the\nbeginning of 2012, before mining enterprises made business plans. The second batch of the\ntungsten extraction quota, which was embodied in the 2012 Total Extraction Controlling Quota of\nTungsten, Antimony and Rare Earth Ores , was issued in April 2012, a few months after the\nissuance of the first batch of the extraction quota for 2012. The Panel considers that the two\nbatches of the extraction quota indicate the maximum amount that miners of tungsten could\nextract through the end of 2012.\n7.756. The Panel notes that, according to Exhibit CHN-223, the level of extraction set by China in\n2012 (89,000 tonnes) was lower than the actual amount of tungsten extracted in 2011\n(119,875 tonnes). However, as the Panel explained in its discussion of the legal test under\nArticle XX(g), the fact that a quantitative restriction on domestic production or consumption (here,\nthe tungsten extraction plan) is, in a given year, set at a level lower than that at which it was set\nin a previous year does not necessarily mean that it constitutes a \"restriction\" within the meaning\nof Article XX(g). What matters, in the Panel's view, is that the quantitative restriction be set below\nthe expected level of demand for the period in which the alleged restriction is intended to apply.\nSince expected demand may fluctuate from year to year, the mere fact that China's tungsten\nextraction was set in 2012 at a volume lower than the actual level of extraction in 2011 does not\nof itself establish that the extraction plan consti tuted a \"restriction\". Instead, the Panel needs to\ndetermine whether the 2012 extraction quota was set at a level below the expected demand for\n2012.\n\n1093 Administration of Exploration and Mining of the Specified Minerals, (Exhibit CHN-18).\n1094 2012 Total Extraction Controlling Quota of Tungsten, Antimony and Rare Earth Ores,\n(Exhibit CHN-19).\n1095 2012 Total Extraction Quotas of Tungsten, Antimony and Rare Earth Ores for 2012 (First Batch),\n(Exhibit CHN-20).\n1096 China's first written submission, paras. 24 and 175, footnote 32 (referring to 2012 Total Extraction\nControlling Quota of Tungsten, Antimony and Rare Earth Ores, (Exhibit CHN-19) and 2012 Total Extraction\nQuotas of Tungsten, Antimony and Rare Earth Ores for 2012 (First Batch), (Exhibit CHN-20)).\n1097 2012 Total Extraction Quotas of Tungsten, Antimony and Rare Earth Ores for 2012 (First Batch),\n(Exhibit CHN-20).\n1098 Tungsten Data (1999-2012) (Exhibit CHN-138 updated), (Exhibit CHN-223).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.757. Unfortunately, China has not provided any evidence as to the expected level of demand for\n2012 on the basis of which the Panel could assess whether the 2012 tungsten extraction plan\nconstituted a \"restriction\" for the purposes of Article XX(g). As such, the Panel is unable to\nconclude that the 2012 tungsten extraction plan, as established by Chinese law, constituted a\n\"restriction\" for the purposes of Article XX(g).\n7.758. With respect to enforcement, China has not explained in sufficient detail how it enforced\nthe 2012 extraction quota of tungsten. In that co ntext the complainants assert, and China does\nnot deny, that the actual extraction level of tungsten is almost 39% above the level set in China's\nextraction quota.\n1099 The Panel has examined the exhibits and observes that the Circular on Total\nExtraction Quotas of Tungsten, Antimony and Rare Earth Ores for 2012 , which refers to the\nAdministration of Exploration and Mining of the Specified Minerals 1100, provides that mining\nenterprises are required to sign a liability letter with the local MLR to confirm their obligation of\ncompliance and their liability in case of breach. The 2012 Total Extraction Controlling Quota of\nTungsten, Antimony and Rare Earth Ores 1101, which refers to the Administration of the Quota for\nthe Minerals Subject to the Total Extraction Quantity Control 1102, provides that the local\ndepartments of the MLR are subject to the superv ision of the central MLR, to which they are\nrequired to report quarterly on the implementation of the total extraction quota.\n7.759. The Panel doubts how the above-describ ed requirements were capable of actually\nenforcing the 2012 tungsten extraction quota. First, compared with the monthly reporting system\nfor the 2012 rare earth extraction quota, the 2012 tungsten extraction quota only required\nenterprises to report quarterly. Second, China has not provided any evidence that it sanctions\nover-quota extraction. The Panel notes that the Administration of the Quota for the Minerals\nSubject to the Total Extraction Quantity Control , which is referred to in the 2012 Total Extraction\nControlling Quota of Tungsten, Antimony and Rare Earth Ores , provides that over-extraction is a\nreason for reducing an enterprise's share of extrac tion quota at the provincial level. However, the\ntext of the 2012 tungsten extraction quota does not appear to reflect the availability of that\nsanction. In this connection, the Panel notes that although there was over-quota extraction in\n2011\n1103, the 2012 tungsten extraction quota does not indicate reductions for any enterprise. On\nthe contrary, the first batch of the 2012 tungsten extraction quota only mentions that any amount\nof the extraction quota that is not utilized cannot be used in the following year. In other words, the\ndocument concerns (or addresses situations of) under-extraction, but imposes no sanctions for\nover-extraction. In the case of tungsten however there was over-quota extraction in 2011. The\nPanel acknowledges that its task is to examine the domestic restrictions (if any) existing\nconcurrently with the 2012 tungsten export quota. However, the absence in the 2012 extraction\nquota of any indication or information about sanctions for over-extraction in 2011 casts doubt on\nwhether China really sanctions over-quota extraction of tungsten. The Panel also notes that actual\nextraction in 2012 reached 124,706 tonnes, which is 40% higher than the level set by the 2012\ntungsten extraction quota. In the Panel's view, su ch a high level of over-quota extraction in 2012\nconfirms that China has not imposed any en forcement measure capable of capturing and\nsanctioning over-quota extraction.\n7.760. With respect to measures for combating illegal mining\n1104, China points to the following\nlegal instruments and argues that China has measures to combat illegal mining of tungsten:\na. Opinions on the Rectification of Metal Mines and Non-Metal Mines according to Law1105;\nb. Circular of Hebei Province on Issuing the Program of the Rectification of Metal and\nNon-Metal Mines according to Law.1106\n\n1099 Tungsten Data (1999-2012), (Exhibit CHN-223). The extraction quota in 2012 was set at\n89,000 tonnes, whereas actual extraction reached 124,706 tonnes.\n1100 Administration of Exploration and Mining of the Specified Minerals, Article V, (Exhibit CHN-18).\n1101 2012 Total Extraction Controlling Quota of Tungsten, Antimony and Rare Earth Ores,\n(Exhibit CHN-19).\n1102 Administration of the Quota for the Minerals Subject to the Total Extraction Quantity Control,\n(Exhibit CHN-43).\n1103 According to Tungsten Data (1999-2012) (Exhibit CHN-138 updated), (Exhibit CHN-223), the 2011\nextraction quota was 87,000 tonnes, while the real extraction in 2011 reaches 119, 875 tonnes.\n1104 Panel question No. 109.\n1105 Opinions on the Rectification of Metal Mines and Non-Metal Mines according to Law,\n(Exhibit CHN-218).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.761. The Opinions on the Rectification of Metal Mines and Non-Metal Mines according to Law\nwas released by several ministries on 4 November 2012 1107 to organize and launch a mine\nrectification campaign from 2012 to 2015. The Opinions provides that: (i) mines which engage in\nillegal mining shall be identified and closed 1108; (ii) mines which do not satisfy the safe production\nconditions after being granted a time-limited production suspension to enable the rectification of\nthe situation shall be closed according to law 1109; and (iii) mines with outdated processes,\ntechnologies, and devices, and mines which do not comply with industrial development policy,\nshall be closed within a limited time.1110\n7.762. The Circular of Hebei Province on Issuing the Program of the Rectification of Metal and\nNon-Metal Mines according to Law (promulgated on 26 December 2012) is adduced by China as an\nexample of a provincial government formulating a rectification plan and launching rectification\naction according to the Opinions on the Rectification of Metal Mines and Non-Metal Mines.1111\n7.763. The Panel notes that in Exhibit CHN-219, China provides examples of enforcement action\ntaken against illegal mining of tungsten in 2012 and 2013.\n7.764. The Panel acknowledges that China has made efforts to combat illegal mining. However,\nthe Panel has difficulty seeing how the two above-mentioned legal instruments promulgated at the\nend of 2012 could have be enforced to combat illegal mining during 2012. Section I(II) of the\nOpinions sets the goal of combating illegal mining by the end of 2015.\n1112 Section III(C) of the\nCircular provides that rectification and clampdown in Hebei province would occur from 1 February\n2013 to 31 December 2014. 1113 The Panel considers that these two legal instruments provide for\nthe combating of illegal production in the future, but not in 2012. Recalling that the Panel's task is\nto examine the domestic restrictions (if any) existing concurrently with the export restriction, the\nPanel considers that China has failed to demonstrate that the above-mentioned instruments\nconstitute real restrictions on domestic mining of tungsten, at least within the relevant period.\n7.765. In the Panel's opinion, in 2012 China imposed a quota on how much tungsten concentrates\ncould be produced. However, it appears to the Panel that China did not have in place any\nenforcement mechanisms or measures capable of capturing and punishing over-extraction. As\nsuch, the Panel believes that the extraction quota did not constitute a real restriction on the\nextraction of tungsten concentrates.\nThe production quota system applicable to tungsten\n7.766. China also claims that its production quota is a domestic restriction imposed in conjunction\nwith its export quota. China explains that its production quota determines how much tungsten\nconcentrates can be produced each year.\n1114 China invokes the following legal instruments in\nsupport of the claim that it imposed a restriction on the production of tungsten in 20121115:\na. 2012 First Batch of the Directive Production Plan of Rare Metals1116;\nb. 2012 Second Batch of the Directive Production Plan of Rare Metals.1117\n\n1106 Program of the Rectification of Metal and Non-metal Mines in Hebei Province, (Exhibit CHN-220).\n1107 The Panel notes that the English version of the exhibit has a translation mistake on the date of\npromulgation of the document.\n1108 Opinions on the Rectification of Metal Mines and Non-Metal Mines according to Law,\n(Exhibit CHN-218), Section II(I).\n1109 Opinions on the Rectification of Metal Mines and Non-Metal Mines according to Law,\n(Exhibit CHN-218), Section II(II).\n1110 Opinions on the Rectification of Metal Mines and Non-Metal Mines according to Law,\n(Exhibit CHN-218), Section II(III).\n1111 China's response to Panel question No. 109.\n1112 Opinions on the Rectification of Metal Mines and Non-Metal Mines according to Law,\n(Exhibit CHN-218).\n1113 Program of the Rectification of Metal and Non-metal Mines in Hebei Province, (Exhibit CHN-220).\n1114 China's first written submission, para. 321.\n1115 China's first written submission, paras. 292 and 321.\n1116 First Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-94).\n1117 Second Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-95).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.767. The Panel notes that the MIIT issued the 2012 First Batch of the Directive Production Plan\nof Rare Metals on 13 January 2012. This document sets the first batch of the tungsten production\nquota at 42,440 tonnes. 1118 On 6 July 2012, the MIIT issued the 2012 Second Batch of the\nDirective Production Plan of Rare Metals , which sets the second batch of the tungsten production\nquota at 38,880 tonnes.1119 The annexes to these two instruments provide for the allocation of the\nproduction quota at the regional level. 1120 The Panel considers that the two batches of the\nproduction quota together indicate the maximum amount of tungsten concentrates that could\nlegally be produced through the end of 2012.\n7.768. According to the data in Exhibit CHN-223, the total 2012 production quota (81,320 tonnes)\nwas lower than the actual amount of tungsten concentrates consumed in 2011 (119,875 tonnes).\nHowever, as the Panel has explained, the fact that a quantitative restriction on domestic\nproduction or consumption (here, the tungsten production plan) is, in a given year, set at a level\nlower than the level of actual production in a previous year does not necessarily mean that it\nconstitutes a \"restriction\" within the meaning of Article XX(g). What matters, in the Panel's view, is\nthat the quantitative restriction be set below the expected level of demand for the period in which\nthe alleged restriction is intended to apply. Since expected demand may fluctuate from year to\nyear, the mere fact that China's tungsten production was set in 2012 at a volume lower than the\nactual level of production in 2011 does not of itself establish that the production plan constituted a\n\"restriction\". Instead, the Panel needs to determine whether the 2012 production quota was set at\na level below the expected demand for 2012.\n7.769. Unfortunately, China has not provided any evidence as to the expected level of demand for\n2012 on the basis of which the Panel could assess whether the 2012 tungsten production plan\nconstituted a \"restriction\" for the purposes of Article XX(g). As such, the Panel is unable to\nconclude that the 2012 tungsten production plan, as established by Chinese law, constituted a real\n\"restriction\" for the purposes of Article XX(g).\n7.770. With respect to enforcement, the Panel notes that China refers to the two\nabove-mentioned legal instruments (i.e. the first and second batches of the 2012 Directive\nProduction Plan of Rare Metals ) and describes the compliance requirements in two paragraphs in\nits first written submission. According to China, enterprises must report their use of and\ncompliance with the production quota to the MIIT on a monthly basis. If an enterprise produces\nwithout a share of the production quota or beyond its share, it will be ordered to stop producing\nimmediately and the source(s) of its ores products will be identified. Further enterprises\nconducting illegal purchases and sales of ore products are subject to punishment.\n1121 The two legal\ninstruments also indicate that enterprises that pr oduced beyond their share of the production plan\nin 2011, or that failed to comply with environmental requirements, will have their share of the\n2012 plan reduced or even cancelled. On the othe r hand, enterprises that strictly complied with\nthe 2011 plan and met the safe production requ irements could have their share of the quota\nincreased.1122\n7.771. In sum, the Panel understands that the texts of the two batches of the 2012 Directive\nProduction Plan of Rare Metals sets a quota on the production of tungsten concentrates, and\nprovides for sanctions for over-quota production. It also sets out various requirements that\nenterprises must comply with.\n7.772. However, for the following reasons, the Panel doubts whether or not the 2012 tungsten\nproduction quota was capable of being enforced.\n7.773. First, the Panel notes that, as China has admitted, the 2012 extraction quota and the 2012\nproduction quota were imposed on the same product, i.e. tungsten concentrates. 1123 However,\nChina has not provided a sufficiently detailed explanation as to why the extraction quota is\n89,000 tonnes, while the production quota is 81,320 tonnes. The Panel understands that, as a\n\n1118 First Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-94).\n1119 Second Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-95).\n1120 First Batch of the 2012 Directive Production Plan of Rare Metals, Annex, (Exhibit CHN-94) and\nSecond Batch of the 2012 Directive Production Plan of Rare Metals, Annex, (Exhibit CHN-95).\n1121 China's first written submission, para. 321.\n1122 China's first written submission, para. 322.\n1123 China's response to Panel question No. 100.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\ngeneral matter, the production plan is less than the extraction plan in order to account for\nmaterials lost during processing. But to fully appr eciate this point, the Panel would have needed\nmore detailed information about the precise amount of materials lost, and how this loss is\ntranslated into the level established by the production quota. As a result of the differences in the\ntwo quotas, each enterprise might be allocate d two kinds of quotas imposed on the same\nproducts, but at different levels. It is unclear to the Panel, for example, how the MIIT would\nsanction an enterprise that produced over its production quota, but below its share of the\nextraction quota level set by the MLR.\n7.774. Second, the Panel considers that the fact that the actual production of tungsten\nconcentrate reached 124,706 tonnes in 2012, which is about 40% higher than the production\nquota, confirms that the production quota was not well enforced. Although the Panel does not\nbelieve that the assessment under the second phrase of Article XX(g) involves an effects test, the\nPanel notes that China does not deny the existence of significant overproduction and has not\nattempted to explain it or to justify it. It is therefore difficult for the Panel to conclude that China's\nproduction quota on tungsten was capable of having a limiting effect.\n7.775. In the Panel's opinion, the 2012 tungsten production quota cannot be considered a\nrestriction on domestic production.\nWhether there are volume restrictions on domestic consumption of tungsten\n7.776. China submits that the collective effect of China's export and production quotas on\ntungsten is to limit the amount of tungsten available for domestic consumption.\n1124 China argues\nthat by deducting the export quota from the production quota, the amount of newly produced\ntungsten products available for domestic consumption in 2012 (26,400 metal content tonnes) was\nsignificantly lower than the volume available in 2011 (29,020 metal content tonnes).1125\n7.777. For several reasons, the Panel disagrees with China that China has imposed volume\nrestrictions on domestic consumption.\n7.778. First, China has not provided any evidence to demonstrate that it imposes a domestic\nconsumption quota or any other form of regulatory control on domestic consumption. The Panel\nconsiders that domestic consumption of tungsten concentrates in China can easily exceed the level\nthat China claims is set by the combined effect of its production and export quotas through over-\nquota production of tungsten concentrates. Tungsten concentrates produced over-quota would\nstay in the domestic market and remain available for China's domestic consumption.\n1126 In light of\nthis risk, the Panel considers that there is no limit on domestic consumption of tungsten. This is\nespecially so given that, on the evidence we have before us, China does not appear to criminalize\nor otherwise punish the consumption of illegally produced tungsten concentrates. As such, it\nseems to us that domestic users can consume any amount of the over-quota production without\nany risk of penalty.\n7.779. Secondly, the Panel also notes that China has established measures, inter alia VAT refunds\nfor downstream users of tungsten concentrate, which could stimulate domestic consumption of\ntungsten by value-added producers wh o export their finished products.\n1127 This sits uncomfortably\nwith China's claim to be restricting domestic consumption.\n7.780. In sum, the Panel does not accept that China has imposed volume restrictions on the\ndomestic consumption of tungsten.\n\n1124 China's first written submission, para. 326.\n1125 China's first written submission, para. 327.\n1126 China's first written submission, para. 337; China's response to Panel question No. 111.\n1127 Japan's second written submission, para. 261; United States' comments on China's response to\nPanel question No. 103; European Union's comments on China's response to Panel question No. 103; Japan's\ncomments on China's response to Panel question No. 103. See discussion in footnote 863 above.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.7.2.2.1.3 Whether China's resource tax is a restriction on domestic production or\nconsumption of tungsten\n7.781. China refers to the Decision of the State Council to Amend the Provisional Regulations on\nResources Tax1128and the Implementation of the Provisional Regulations on Resource Tax 1129, and\nsubmits that the resource tax imposed on tungsten miners is 9 RMB per tonne for 3rd class of ore,\n8 RMB per tonne for 4th class of ore, and 7 RMB per tonne for 5th class of ore. China claims that it\nincreases the cost of tungsten production by imposing this tax on tungsten producers.\n7.782. The Panel acknowledges that increased costs caused by the tax could, in the long run, lead\nto a reduction in demand and therefore limit production of tungsten ores. However, China has\nfailed to provide price data on the tungsten ores\n1130 that would have assisted the Panel in\nassessing whether or not the resource tax is capable of having a limiting effect. The Panel\nconsiders that China's argument on the resource tax, which consists of two sentences in its first\nwritten submission1131, is not sufficient to demonstrate that its resource tax on tungsten is a real\nrestriction on domestic production or consumption.\n7.7.2.2.1.4 Whether environmental requir ements are restrictions on domestic\nproduction or consumption\n7.783. China refers to the Opinions on Enhancing the Ecological Protection and Restoration of\nMines1132 in its first written submission and argues that this measure increases the costs of\ntungsten production by requiring miners that have obtained a share of the extraction quota to\nmake an ecological recovery de posit. However, the Panel notes that Exhibit CHN-32 is entitled\nOpinion on Strengthening Rare Earth Mine Ecological Protection and Governance and Recovery ,\nand that this legal instrument does not refer to tungsten.\n7.784. In response to Panel question No. 100, Ch ina invokes six exhibits and argues that it has\nlegal instruments that impose environmental protection requirements on the tungsten industry.\nThese instruments are:\na. Conditions for Admission to the Tungsten Industry\n1133;\nb. Circular of State Council Overall Rectification and Standardization of mineral Resources\nDevelopment Order1134;\nc. Guideline Suggestions on Gradual Establishment of Responsibility System for mine\nEnvironmental Management and Ecological Recovery1135;\nd. Circular on Environmental Protection Inspection of Tungsten and Molybdenum\nEnterprises1136;\ne. 2012 First Batch of the Directive Production Plan of Rare Metals1137;\nf. 2012 Second Batch of the Directive Production Plan of Rare Metals.1138\n\n1128 Exhibit CHN-26.\n1129 Exhibit CHN-27.\n1130 The Panel notes that in Tungsten: Price Data, (Exhibit CHN-167), China provides APT price data.\nHowever, there is no data available on tungsten ores.\n1131 China's first written submission, para. 329.\n1132 Opinions on Enhancing the Ecological Protection and Restoration of Mines, Section IV,\n(Exhibit CHN-32).\n1133 Conditions for Admission to Tungsten Industry, (Exhibit CHN-93).\n1134 Circular on Overall Rectification and Standardization of Mineral Resources Development Order,\n(Exhibit CHN-215).\n1135 Guideline on Gradual Establishment of Responsibility System for Mine Environmental Management\nand Ecological Recovery, (Exhibit CHN-216).\n1136 Circular on Environmental Protection Inspection of Tungsten and Molybdenum Enterprises, General\nOffice (Huan Ban Han [2013] No. 442), Ministry of Environmental Protection, 24 April 2013, (Exhibit CHN-217).\n1137 First Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-94).\n1138 Second Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-95).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.785. The Panel will examine each of those ex hibits and assess whether they constitute real\nrestrictions on domestic production or consumption.\n7.786. The Conditions for Admission to the Tungsten Industry 1139 elaborates Emissions Standards\nfor Pollutants from the Tungsten Industry , and establishes compliance with these emission\nstandards as one of the conditions for enterprises accessing the tungsten industry. The Panel notes\nthat it has discussed this legal instrument in the section on \"access conditions\" and has expressed\nits doubt about how access conditions, which apply to \"newcomers\" seeking entry into the\ntungsten industry, could restrict the activity of tungsten producers that have already entered the\ntungsten industry, especially given that there is no volume limit on the production of intermediate\nand finished tungsten products such as tungsten metallurgy, tungsten billet and carbide alloy.\n7.787. The Circular of State Council Overall Rectification and Standardization of Mineral Resources\nDevelopment Order\n1140 and the Guideline Suggestions on Gradual Establishment of Responsibility\nSystem for Mine Environmental Management and Ecological Recovery 1141 require enterprises to\nenhance ecological protection and restoration of mines, including tungsten mines. However, the\ntwo legal instruments do not purport to restrict extraction, production, or consumption of\ntungsten.\n7.788. The C ircular on Environmental Protection Inspection of Tungsten and Molybdenum\nEnterprises1142 provides for the inspection of tungsten companies' compliance with applicable\nenvironmental requirements and for the publication of a list of complying companies. However, the\nCircular was issued in April 2013. China fails to explain how an environmental protection\ninstrument issued in 2013 could have restricted extraction, production, or consumption of tungsten\nduring 2012.\n7.789. According to the two batches of the Directive Production Plan of Rare Metals\n1143, only\nenterprises on the list of enterprises that m eet the environmental protection requirements\npublished by the Ministry of En vironmental Protection are eligib le to apply for a share of the\nproduction quota. However, the Panel fails to see how this environmental requirement, which is\nreally a qualification requirement for entry into th e tungsten industry, could restrict the amount of\ntungsten produced by enterprises that have already obtained a share of the production quota.\n7.790. The Panel agrees with China that regulatory requirements will impose some compliance\ncosts on concerned enterprises. However, the issue before the Panel is whether China's\nenvironmental regulatory requirements contribute to the conservation of tungsten. In the Panel's\nview, environmental costs are ordinary costs imposed on enterprises to address market\nexternalities (e.g. environmental pollutions) caused by the production of tungsten.\n7.7.2.2.1.5 The cumulative effect of all domestic restrictions and even-handedness\n7.791. China claims that the net effect of the four categories of measures (i.e. access conditions,\nresource taxes, volume restrictions, and environmental requirements) is a lower rate of tungsten\nproduction in China than would otherwise have been the case.\n1144 In this connection, the Panel\nrecalls that subparagraph (g) does not call for an assessment of the effects of the concerned\ndomestic measures. At any rate, China has not explained in sufficient detail how the \"net effect\" of\nthe four categories of measures work together in the way China claims. As such, the Panel has\ndifficulty accepting China's claim.\n\n1139 Conditions for Admission to Tungsten Industry, Section IV, (Exhibit CHN-93).\n1140 Circular on Overall Rectification and Standardization of Mineral Resources Development Order,\n(Exhibit CHN-215).\n1141 Guideline on Gradual Establishment of Responsibility System for Mine Environmental Management\nand Ecological Recovery, (Exhibit CHN-216).\n1142 Circular on Environmental Protection Inspection of Tungsten and Molybdenum Enterprises, General\nOffice (Huan Ban Han [2013] No. 442), Ministry of Environmental Protection, 24 April 2013, (Exhibit CHN-217).\n1143 First Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-94) and Second Batch\nof the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-95) Article II.\n1144 China's first written submission, para. 361.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.7.2.2.2 Whether the 2012 export quotas of tungsten were \"made effective in\nconjunction with\" restrictions on domestic production or consumption\n7.792. The Panel recalls that subparagraph (g) of Article XX requires that the trade-restrictive\nmeasures work together with domestic restrictions to conserve exhaustible natural resources. 1145\nThe Panel considers that the phrase \"made effective in conjunction with\" requires the\nsimultaneous, or perhaps near-simultaneous, operation of the relevant foreign and domestic\nrestrictions through regulation by the concerned Member's law-making apparatus. As the panel\nstated in China – Raw Materials, \"to benefit from the justification permitted under\nsubparagraph (g), a Member cannot seek to rely on a future or potential domestic restriction; nor\nwill measures enacted concurrently but which only have effect or are foreseen to have effect only\nin the future respect the Article XX(g) criteria, for they must not only exist concurrently; they must\noperate concurrently.\" In the Panel's view, the phrase \"work together with\" also suggests a degree\nof substantive operative complementarity between the trade and domestic restrictions.\n7.793. China claims that its restrictions on domestic production and consumption of tungsten are\nsubstantial, and that domestic users, together with foreign consumers of tungsten, collectively\nbear the burden of China's conservation policy. However, in the opinion of the Panel, China's\nargument does not explain how the export quotas operate and work together with restrictions on\ndomestic production or consumption for conservation. On the contrary, for the following reasons,\nthe Panel finds that China's export quota and the restrictions on domestic users or producers of\ntungsten referred to by China do not seem to work together towards the goal of conservation.\n7.7.2.2.2.1 The different levels of the 2012 extraction quota and production quota on\ntungsten\n7.794. The Panel recalls that the 2012 tungst en extraction quota and the 2012 tungsten\nproduction quota are imposed on the same tungsten product, i.e. tungsten concentrates, by\ndifferent Ministries (the MLR and the MIIT) and at different levels. The 2012 tungsten extraction\nquota was 89,000 tonnes, and the 2012 production quota was 81,320 tonnes. Setting different\nextraction and production quotas in this manner could cause difficulties for producers. For\nexample, if a specific enterprise is allocated an amount of the extraction quota that is more than\nthe amount of the production quota to which that enterprise is entitled, the enterprise might be\npunished by the MIIT for producing more than its entitled production quota amount, even though it\nused less than its share of the extraction quota.\n7.795. Moreover, the Panel notes that China did not announce the total amount of its extraction\nor production quota before the beginning of 2012 . The first batch of the 2012 extraction quota\n(42,440 tonnes) was issued at the end of 2011. The second batch of the 2012 extraction quota\nwas issued on 19 April 2012. The first batch of the 2012 production quota (42,440 tonnes) was\nissued on 13 January 2012. The second batch of the 2012 production quota (38,880 tonnes) was\nissued on 4 July 2012. As an example, the Panel also notes that the first batch of the extraction\nquota allocated to Zhejiang province was 150 tonnes\n1146 and the second batch of the extraction\nquota allocated to Zhejiang province was 150 tonnes. 1147 However, the first batch of production\nquotas allocated to Zhejiang province was 175 tonnes 1148 and there was no second batch of the\nproduction quota allocated to Zhejiang province.1149\n7.796. The following table illustrates the different times at which China announced its extraction\nand production quotas on tungsten:\n7.797. Extraction quota and production quota allocation in 2012 for Zhejiang Province\n\n1145 Appellate Body Reports, China – Raw Materials, para. 356.\n1146 2012 Total Extraction Quotas of Tungsten, Antimony and Rare Earth Ores for 2012 (First Batch),\n(Exhibit CHN-20).\n1147 2012 Total Extraction Controlling Quota of Tungsten, Antimony and Rare Earth Ores,\n(Exhibit CHN-19).\n1148 First Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-94).\n1149 Second Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-95).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nEnd of 2011 January of 2012 April of 2012 July of 2012\nExtraction quota 150 tonnes (first\nbatch)\n 150 tonnes (second\nbatch)\n\nProduction quota 175 tonnes (first\nbatch)\n 0 tonnes (second\nbatch)\n\n7.798. From the above table, it seems that th e tungsten-producing enterprises in Zhejiang\nprovince might have been confused as to the exact amount of tungsten production allowed for\n2012. Prior to April 2012, enterprises in Zhejiang Province might have been at risk of being\nsanctioned by the MLR, if they acted consistently with the first batch of the production quota\nallocated by the MIIT and produced less than 1 75 tonnes, but more than 150 tonnes of tungsten\nconcentrates. In April 2012, those enterprises were informed that their share of the extraction\nquota was 300 tonnes in total for 2012. However, the fact that the MIIT did not allocate any\namount from the second batch of the production quota to tungsten concentrate producers in\nZhejiang Province in July 2012 would result in those enterprises that had followed the MLR's\nallocation of extraction quota during May and J une 2012 potentially being sanctioned by MIIT for\nover-quota production.\n7.799. As this example suggests, the uncertainty and instability caused by the differences in the\namounts of the extraction quota and production quota setting may not be helpful for tungsten\nusers, and might prevent them from rationally utili zing their tungsten resources. To the Panel, the\nsetting of the various quotas at different levels is a structural feature of China's quota system that\nseems to undermine China's claim that the timing of the 2012 tungsten extraction and production\nquotas work together with the 2012 export quot as on tungsten intermediate production for\nconservation. The Panel emphasizes that whether or not enterprises were in fact confused by this\nfeature of the quota system is not material to the Panel's analysis: there is no \"effects test\" under\nsubparagraph (g) of Article XX. Instead, what matters is whether, on the basis of their architecture\nand structure, the challenged export quota \"works together\" with China's extraction and\nproduction quotas for the goal of conservation. For the reasons given above, the Panel is not\nconvinced that the export quota and the extraction and production quotas on tungsten cooperate\nor complement each other's operation.\n7.7.2.2.2.2 The different product scopes of export quota, production quota and\nextraction quota\n7.800. The Panel notes that the volume restrictions in China's conservation policy on tungsten,\ni.e. China's extraction quota, production quota, and export quota, are imposed on products at\ndifferent stages of the tungsten industry value-added chain.\nMining products (tungsten\nconcentrates)\nUpstream intermediate products\n(such as APT)\nDownstream (such as cemented\ncarbides)\nExport Quotas\nProduction restrictions (extraction\nquota and production quota)\n\n7.801. As represented in the above table, Chin a imposes extraction and production quotas on\ntungsten concentrates, while China's export quota covers not only tungsten concentrate, but also\nammonium paratungstate (APT), tungstic acids and its salts, tungsten trioxide and blue tungsten\noxide, and tungsten powder.\n1150\n7.802. China argues that it must include tungsten intermediaries in its export quota to avoid the\npossibility of circumvention through exportation of the tungsten products after some basic\nprocessing.\n1151 China does not provide any further explanation on the rationale of setting the\nproduct scope of its 2012 export quota on tungsten.\n7.803. In the Panel's opinion, the inconsistent product scopes of the extraction, production, and\nexport quotas seem to highlight China's industrial policy, which encourages tungsten\nintermediaries being used as inputs in the national production of value-added goods often destined\n\n1150 China's response to Panel question No. 100.\n1151 China's responses to Panel question No. 132.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nfor export. The Panel does not see any connection between this inconsistency and the goal of\nconserving tungsten resources. Indeed, by restricting the export of certain tungsten products\n(such as APT) that are not included in the domestic production restriction, China seems to be\nreserving an amount of tungsten products for domestic consumption. This inconsistency therefore\nseems to encourage domestic use of the products Ch ina claims it is trying to conserve. As such,\nthe Panel has difficulty seeing how the 2012 export quota \"works together with\" the extraction and\nproduction quotas on tungsten concentrates for conservation.\n7.804. Indeed, in the Panel's view, China's 2012 export quota was designed to reserve a certain\namount of specific tungsten intermediaries for use by domestic downstream industries. In the\nPanel's opinion, this is industrial policy. Although the Panel has recognized that WTO Members\nhave legitimate rights to impose industrial policies, it reiterates that industrial policies cannot be\nimplemented under the guise of conservation. Ta king into account the design, structure, and\narchitecture of China's export quota and the extr action and production quotas, the Panel considers\nthat China has failed to explain how the product scope of its export quota works together with its\nextraction and production quotas on tungsten concentrates for the purpose of conservation. The\nPanel cannot identify any functional and operational complementarity between China's export\nquota and the domestic restrictions referred to by China for enhancing conservation.\n7.7.2.2.2.3 The different policies on domest ic consumption and foreign consumption of\ntungsten\n7.805. As the Panel has noted, China's allege d \"consumption cap\", which results from the\ncombined effect of the production and export qu otas, appears to function not as a consumption\ncap, but rather as a minimum supply guarantee for domestic consumption.\n7.806. The Panel also believes that the restrictions imposed on producers of tungsten\nconcentrates affect both domestic and foreign consumers, while the export quota on tungsten\naffects only foreign consumers. From a structural perspective, China's extraction and production\nrestrictions therefore do not counterbalance its export restrictions and do not appear therefore to\nwork well together. Moreover, the export quota is not the only restriction imposed by China on\nexports of intermediate tungsten products. China imposes export duties on intermediate tungsten\nproducts. The Panel will discuss the combined effe ct of the export quota and export duties on\ntungsten in its analysis under the chapeau of Article XX.\n7.807. Moreover, in contrast to its export restrictions on lower value-added products, China\nprovides tax and export incentives through, for example, refunds of the value-added tax (VAT)\nupon the exportation of higher value-added tungsten products.\n Such tax incentives can only\nstimulate production for export and act contrary to conservation goals and restrictions.\n7.7.2.3 Even-handedness\n7.808. The Panel recalls that subparagraph (g) of Article XX also requires even-handedness in the\nimposition of domestic restrictions for conservation. The Panel agrees with China that China's\ndomestic regulations are inherent to any conservation programme and may be argued to be\ncapable of imposing concurrent real restriction on consumption or production of tungsten.\nHowever, the Panel fails to see how such domestic actions can be said to be capable of imposing a\nburden even-handed with that resulting from its ex port quota on tungsten so that its export quota\nand its related domestic restrictions on tungsten work together for the conservation of tungsten\nconcentrates. The Panel believes that the restrictions imposed on producers of tungsten\nconcentrates affect both domestic and foreign consumers, while the export quota on tungsten\naffects only foreign consumers. From a structural perspective, China's production restrictions\ntherefore do not counterbalance its export restrict ions and do not appear therefore to work well\ntogether.\n7.809. Additionally, in the Panel's view the fact that any unused export quota volume must be\nreturned to Chinese authorities and is allowed to be consumed domestically, while there are no\nrestrictions on domestic consumers consuming the tungsten products designated for export in the\nexport quota, suggests that China has not impo sed even-handed restrictions on domestic and\nforeign consumption. Although, as the Panel has indicated, the mere fact that unused export quota\nvolumes can be sold into the domestic market does not, of itself, lead to the conclusion that\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nChina's export quota does not \"relate to\" conservation, it does seem to favour domestic over\nforeign users. The Panel considers that there is nothing in the design and the structure of the\nconservation policy imposed on domestic consumers to counter-balance the policy that allows\ndomestic consumption of the unused export quota of tungsten products. Therefore, there is no\neven-handedness in the imposition of export quot a and the domestic restrictions referred to by\nChina.\n7.7.2.4 Conclusion\n7.810. As explained above, the Panel is of the vi ew that all the elements of subparagraph (g) aim\nat ensuring that the challenged measure works with domestic restrictions for conservation and\nensures that its burden is distributed in an even-handed manner between foreign and domestic\nusers. The Panel has reviewed the design and ar chitecture of China's export quota system on\ntungsten, and has considered whether it works jointly with domestic restrictions for conservation\nand is therefore justified under Article XX(g).\n7.811. In the Panel's opinion, it is difficult to conclude that China's export quota relates to the\nconservation of tungsten, or that it is made effective in conjunction with restrictions on domestic\nproduction or consumption.\n7.812. With respect to the requirement that measures \"relate to\" conservation, the Panel is not\nconvinced by China's argument that the text s of its export quota measures themselves\ndemonstrate the existence of a \"close\" and \"real\" relationship with the goal of conserving\nexhaustible tungsten resources. As the Panel has ex plained, many of the references pointed to by\nChina are indirect, referring not to the goal of conservation but to the Foreign Trade Law , which\nlists a number of grounds other than conservation justifying the imposition of export quotas. As\nsuch, these references do not provide sufficient ev idence of the challenged measures' relationship\nwith the goal of conserving tungsten. Moreover, even those texts that do refer to conservation\nsimply refer to the \"goal\" of conserving exhaustible resources, but fail to explain how that goal is\nfurthered or promoted through the imposition of an export quota. As the Panel has explained, such\nreferences to the goal of conservation, without any further explanation as to how the measure is\ndesigned in such a way as to assist, support or enhance China's conservation programme, do not\nsuffice to establish the requisite relationship between the export quota measures and the\nconservation objective in Article XX(g).\n7.813. The Panel is also not convinced that Chin a's tungsten export quota is made effective in\nconjunction with restrictions on domestic production or consumption.\n7.814. First, the Panel recalls that it has been una ble, on the basis of the evidence presented, to\nfind that China's extraction and production caps on tungsten constitute \"restrictions\" within the\nmeaning of Article XX(g). China has not provided th e Panel with evidence of the expected demand\nfor tungsten during 2012, and as such the Panel cannot determine whether China's extraction and\nproduction caps were set at levels lower than the expected demand for the period of time over\nwhich the restriction was intended to apply (here, 2012).\n7.815. Second, the Panel has found that China did not have in place any enforcement\nmechanisms capable of capturing and punishing over-extraction during the relevant period. In this\ncontext, the Panel recalls that actual extraction in 2102 reached 124,706 tons, which is 40%\nhigher than the level set by the 2012 tungsten ex traction quota. As such, the Panel believes that\nthe extraction quota did not constitute a real restriction. Moreover, the fact that the actual\nproduction of tungsten concentrate reached 124,706 tonnes in 2012, which is about 40% higher\nthan the production quota, confirms for the Pane l that the production quota was not well enforced\nand, importantly, China does not deny the existence of significant over-production or attempt to\nexplain it or to justify it. It is therefore difficult for the Panel to conclude that China's production\nquota on tungsten was capable of having a limiting effect.\n7.816. The Panel considers that some of the domestic measures indicated by China, including the\nentry conditions, resource tax, and environmental regulations, could have had some limiting\neffect. Nevertheless, overall the Panel considers that China has not provided sufficient evidence to\nprove that such measures did have a limiting effect during the relevant period. Also, and\nimportantly, the Panel notes that some of the addi tional restrictions pointed to by China were not\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nin force at the same time as the challenged export quota, and as such cannot be said to have\n\"worked together\" with such quota.\n7.817. As the Panel has discussed in detail, the product scope of China's export quota is broader\nthan the scope of its production quota. China argues that it must include tungsten intermediaries\nin its export quota to avoid the possibility of circumvention through the exportation of tungsten\nproducts after some basic processing. 1152 In the Panel's opinion, this feature of China's export\nquota on tungsten seems geared towards promotin g China's industrial policy, which encourages\ntungsten intermediaries being used as inputs in the national production of value-added goods\noften destined for exports. The Panel does not see any connection with the conservation objective.\nThe Panel has difficulty seeing how the 2012 export quota, with the current product scope on\ntungsten intermediaries \"works together with\" the extraction and production quotas on tungsten\nconcentrates for conservation.\n7.818. The Panel also notes measures inconsistent with the goal of policies, such as VAT refunds\nfor downstream users of tungsten concentrate, which could stimulate domestic consumption of\ntungsten by value-added producers who export th eir finished products. This sits uncomfortably\nwith China's claim to be restricting domestic consumption.\n7.819. In sum, the Panel's view is that China's 2012 export quota was designed to reserve a\ncertain amount of specific tungsten intermediaries for use by domestic downstream industries. In\nthe Panel's opinion, this is industrial policy. Although the Panel has recognized that WTO Members\nhave legitimate rights to impose industrial policies, it reiterates that industrial policies cannot be\nimplemented under the guise of conservation. Ta king into account the design, structure, and\narchitecture of China's export quota and the extr action and production quotas, the Panel considers\nthat China has failed to explain how its export quota works together with its extraction and\nproduction quotas on tungsten concentrates for the purpose of conservation. The Panel cannot\nidentify any functional and operational complementarity between China's export quota and the\ndomestic restrictions referred to by China for enhancing conservation.\n7.820. Accordingly, the Panel concludes that China's export quota on tungsten does not relate to\nthe conservation of tungsten, and is not made effective in conjunction with restrictions on\ndomestic production or consumption.\n7.821. Nonetheless, in order to fully discharge its responsibility under Article 11 of the DSU, the\nPanel proceeds to consider whether the application of China's export quota on tungsten complies\nwith the requirements of the chapeau of Article XX.\n7.7.3 Application of the chapeau of Article XX to China's export quota on tungsten\n7.7.3.1 Whether China has demonstrated th at its export quota on tungsten was not\napplied in a manner that constitutes arbitr ary or unjustifiable discrimination or a\ndisguised restriction on international trade\n7.822. China argues that its 2012 export quota on tungsten makes no distinction in respect of the\ndestination of the exported tungsten products. Th erefore, China argues, the export quota is not\napplied \"in a manner which would constitute a means of arbitrary or unjustifiable discrimination\nbetween countries where the same conditions prevail\".\n1153\n7.823. China adds that the application of the 2012 export quota on tungsten does not constitute a\n\"disguised restriction on international trade\" because significant quantities of tungsten products\nwere imported into China during 2011 and 2012. According to China , this suggests that China's\nconservation policy is effective in restricting production and consumption of tungsten originating in\nChina, as Chinese consumers are importing significant quantities of tungsten from abroad. China\nadds that these imports of tungsten demonstrate that foreign consumers of tungsten were also\ncapable of securing supplies of tungsten outside of China. If Chinese users were able to secure\ntungsten on the world market, then this implies that foreign consumers of tungsten would have\n\n1152 China's response to Panel question No. 132.\n1153 China's first written submission, para. 336.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nbeen able to do the same. This demonstrates that the export quota does not constitute a disguised\nrestriction on international trade. 1154\n7.824. The European Union argues that if, quod non , China's export quota were to satisfy the\nrequirements of subparagraph (g), it nevertheless does not meet the test under the chapeau of\nArticle XX.1155 The European Union also notes that China's submission fails to provide an\nexplanation for the differential treatment that its export quota accords to China as compared to all\nother WTO Members.\n1156 Specifically, the European Union co ntends that the export quota on\ntungsten imposes an additional restriction on foreign consumption of Chinese tungsten which does\nnot exist with respect to domestic consumption.1157\n7.825. The European Union submits that China's line of defence oversimplifies and underestimates\nthe impact of China's tungsten ex port quota on the world market. 1158 China presently produces\n83% of the world's tungsten supply. Holding such an important share of the world market\nnecessarily means that any reduction in the quantity available will produce economic effects on the\nworld market for tungsten. The European Union adds that, in assessing the trade distortive impact\nof China's measure, it is also important to consider that China did not and continues not to disclose\nthe criteria on the basis of which the quotas are set for each year, making its yearly decisions\nentirely arbitrary and unpredictable and thereby accentuating their negative effects.\n1159 According\nto the European Union, China's export restrictions on tungsten do not pursue conservation goals,\nbut are rather motivated by protectionist objectives. 1160 The quota's objective of providing an\nadvantage to Chinese tungsten-consuming industries over their competitors in the territories of\nother WTO Members is apparent from its \"design, architecture and revealing structure\", as well as\nfrom its effects.\n7.826. The Panel recalls that, according to WTO jurisprudence, the same facts can lead to\nconclusion on unjustifiable or arbitrary discrimination, and/or disguised restrictions on trade, and\nthat often these concepts overlap. In the present dispute, China's own argumentation is\nintertwined between these two overlapping conc epts. The Panel considers that unjustified\ndiscrimination can constitute a disguised restriction on trade, but a disguised restriction on trade\nmay exist even if there is no discrimination. For ease of exposition, the Panel will examine China's\ntungsten export quota under both of these concepts together.\n7.827. All parties agree that the requirement that a measure not be \"applied in a manner which\nwould constitute arbitrary or unjustifiable discrimination between countries where the same\nconditions prevail\" is a requirement that the measure not discriminate among other Members, or\nbetween other Members and the Member maintaining the measure.\n1161\n7.828. The Panel now proceeds to examine whether China has demonstrated that the application\nof its export quota on tungsten does not cause arbitrary or unjustified discrimination or a disguised\nrestriction on international trade. The Panel will first determine whether there is discrimination\nand/or a disguised restriction on international trade. It will then consider whether such\ndiscrimination or disguised restriction is based on, or explained by, a conservation rationale.\nFinally, the Panel will assess whether one or more WTO-consistent alternative measures exist, and\nwill then reach a conclusion on China's compliance with the chapeau of Article XX.\n7.829. China asserts that its export quota on tungsten does not constitute a disguised restriction\non international trade because China imported significant quantities of tungsten during 2011 and\n2012.\n1162 The Panel accepts that China imported a significant amount of tungsten, and notes that\nthis seems to confirm the existence of a strong demand for tungsten among Chinese industries.\nThe Panel does not understand China's argument that, because Chinese domestic users can import\n\n1154 China's first written submission, para. 337.\n1155 European Union's second written submission, para. 269. See also United States' second written\nsubmission, para. 234.\n1156 European Union's second written submission, para. 272.\n1157 European Union's second written submission, para. 274.\n1158 European Union's second written submission, para. 275.\n1159 European Union's second written submission, para. 276.\n1160 European Union's second written submission, para. 277.\n1161 Appellate Body Report, US – Gasoline, pp. 23-24, DSR 1996:I, 3, pp 21-22; parties' responses to\nand comments on Panel question No. 47.\n1162 China's first written submission, para. 337.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\ntungsten, there is no problem with China's export restrictions on tungsten. In the Panel's view, the\nfact that China imports tungsten neither excuses nor justifies its export quota on tungsten, unless\nChina argues and demonstrates that the export quota and its imports of tungsten somehow work\ntogether for conservation, and unless China explains how its imports of tungsten are evidence that\nits tungsten export quota does not discriminate in favour of its domestic users. The Panel recalls\nthat the chapeau of Article XX is concerned with the way the challenged export quota is applied to\nother WTO Members. Clearly, if other WTO Members with tungsten reserves do not impose export\nrestrictions, other WTO Members, including China, will be able to import tungsten from them; but\nthis does not justify China's export restrictions on tungsten. In fact, the Panel considers that this\nsituation seems to confirm the complainants' argument that China reserves its tungsten raw\nmaterials for Chinese manufacturers of downstream products through, inter alia, export restraints\nthat create two markets (one domestic and one international) for the supply and demand of the\nraw materials, resulting in benefits to the development and export capacity of Chinese industries\ninvolved in tungsten processing and higher value-added manufacturing.\n1163 In the Panel's view, it\nseems that China imposes an export quota on tung sten to discourage the export of tungsten. The\nPanel notes that China is fully entitled to pursue industrial policies that favour the production and\nexport of value-added processed goods and discourage the export of raw materials. However, in\ndoing so it must act consistently with its WTO rights and obligations regarding, inter alia, export\nquotas.\n7.830. China also asserts that the relatively small size of the gap between foreign and domestic\nprices for tungsten in 2012 shows that its export quota was not targeted to provide a competitive\nadvantage to the Chinese downstream sector using tungsten. Price data presented in Figure 5 of\nChina's second written submission\n1164 show a gap between foreign and domestic prices ranging\napproximately between 5% and 20% during 2012. Si nce even a small price difference in tungsten\nmay provide a significant advantage to the downstream sector using tungsten, the evidence before\nthe Panel does not allow us to exclude that exis ting price differences have indeed provided a\ncompetitive advantage to Chinese producers of value-added products containing tungsten.\n7.831. Furthermore, when the Panel asked China for details on its pricing methodology for\ntungsten, the Panel understood China's response to mean that, for all three products including\ntungsten, Metal Pages (China's source of price data for tungsten)\n1165 uses estimated pricing that\nmay well not reflect actual pricing 1166, and that \"this practice could lead to both the over-\nestimation of the likely foreign price as well as the under-estimating of the foreign price.\"1167 Thus,\nthe Panel does not consider it appropriate to rely on this price data evidence to establish non-\ndiscrimination. In addition, as discussed in the context of rare earths, neither is the Panel\npersuaded by the methodology used by China to calculate the price gaps. China subtracts the\namount of the export duty from the f.o.b. price of tungsten before comparing it to domestic prices.\nHowever, export duties and quotas interact, and in the case of tungsten, China has failed to justify\nthe removal of the export duty from the f.o.b. pr ice on the ground that the removal of the export\nduty would not increase exports to the level necessary to fill the quota on tungsten.\n7.832. Given the above, the Panel is not convince d that China's evidence regarding the price gap\nis sufficient to demonstrate that China's export quota on tungsten was not applied in a manner\nthat would constitute arbitrary or unjustifiable discrimination or a disguised restriction on\ninternational trade.\n7.833. Moreover, even accepting quod non that, as China claims, the 2012 quota had no actual\ndiscriminatory impact in terms, for example, of price differences or other economic effects, the\nPanel is still of the view that the very structur e of the export quota system, which imposes unique\nand special burdens on foreign consumers on the basis of their being located outside of China, is\n\n1163 United States' comments on China's response to Panel question No. 25.\n1164 China's second written submission, figure 5 and para. 188.\n1165 China's responses to Panel question Nos. 40-42 and 85.\n1166 China's Second Written Submission, paragraph 126; China's response to Panel question No. 85.\n1167 China's answer to Panel question No. 85. The Panel recalls that, as explained in para. 6.21 of its\nReports, on 17 June 2013, it sent an email to the parties revising its question No. 85 and asking China to\nprovide more pricing information for tungsten and molybdenum as well as for rare earths. Even if China\nintended not to respond to the Panel's request for further pricing information on tungsten, the Panel is still\nentitled to raise the same doubts with respect to the reliability of the Metal Pages data on tungsten as it raises\nwith respect to the data on rare earths, since Metal Pages contains data on all three products at issue, and\nChina has relied on Metal Pages data in its arguments on all three products.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\ndiscriminatory in violation of the requirements of the chapeau of Article XX. The measures that\nChina alleges constitute \"restrictions on domestic production on consumption\", and especially\nChina's extraction and production quotas and its taxes on extraction, potentially restrict both\ndomestic and foreign consumption of Chinese raw materials, while the export quota applies only to\nforeign users: there is no corresponding burden, such as a domestic consumption quota, imposed\nby China on Chinese consumers. Regardless of whether such a structural imbalance meets the\n\"even-handedness\" requirement under subparagraph (g) of Article XX, the Panel believes that it is\ndiscriminatory, insofar as it imposes added burdens on foreign consumers simply on the basis of\ntheir being located outside China, and with no conservation-related justification.\n7.7.3.2 Whether the rationale for the discri mination or the disguised restriction on\ninternational trade created by the applicatio n of China's export quota on tungsten is\nconcerned with conservation\n7.834. In accordance with the Appellate Body report in Brazil – Retreaded Tyres\n1168, the Panel\nnow proceeds to determine whether the discrimination that results from the application of China's\nexport quota on tungsten is nevertheless justified and rationally linked to conservation goals. In\nBrazil – Retreaded Tyres, the Appellate Body explained that arbitrary or unjustifiable discrimination\nexists when the reason(s) for discrimination bear(s) no rational connection to the Article XX\nobjective on the basis of which a Member claims to be regulating, or else contradicts or\nundermines that objective. This is why the determination whether a measure is discriminatory in\nviolation of the chapeau of Article XX should not depend exclusively on its quantitative impact, but\nmust consider also whether the rationale for the discrimination relates to the legitimate objective\nthat the measure allegedly pursues (in this case, conservation of exhaustible tungsten resources).\nTherefore, to determine whether China has demons trated that its tungsten export quota is not\nunjustifiably discriminatory in violation of the chapeau of Article XX, the Panel needs to consider\nwhether the rationale that China provides for the discrimination relates to the alleged conservation\nobjective of the export quota.\n7.835. The Panel recalls that more than 60% of tungsten extracted in China is consumed in\nChina.\n1169 Moreover, the Panel notes that according to China's own data, the 2012 extraction quota\nwas exceeded by more than 40,000 tonnes. The Panel finds it difficult to understand the function\nof an export quota in such situation where, as the figures indicate, the main threat to the\nconservation of Chinese tungsten reserves, is domestic consumption. For the Panel, the export\nquota's main effect is to guarantee that domestic consumption benefits from a minimum amount\nof the extracted tungsten. The Panel recalls also that China has not suggested that price\ndiscrimination created by its export quota system is based on conservation considerations.\n7.836. In the Panel's view, China has not demo nstrated that the distortion created by the\napplication of its export quota system is merely incidental to conservation considerations. Indeed,\nChina denies the existence of any discrimination. On the contrary, in the Panel's opinion the\ndiscrimination seems to result from aspects of China's export quota system that reflect industrial\npolicy considerations. For example, the fact that the quota system requires unused export quota\nshares to be returned to Chinese authorities\n1170 and allows such returned volumes to be sold in the\ndomestic market 1171 seems to point towards industrial policy considerations, especially when\nexporting firms can only trade their non-used export quota shares for tungsten products higher in\nthe industrial chain (i.e. further-processed tungsten products). As we have noted previously,\nMembers are free to pursue their own industrial policies, but they must do so consistently with\ntheir WTO commitments.\n\n1168 Appellate Body Report, Brazil – Retreaded Tyres, para. 226.\n1169 China has not provided data on the level of domestic tungsten consumption in 2012. However, the\nPanel notes that, according to Exhibit CHN-223, the actual level of tungsten extraction in 2012 was 124,706,\nwhereas only 15,863 (measured in metal content) or 19,916 (measured in gross weight) tonnes were actually\nexported. The Panel considers that the actual level of domestic consumption can be approximated by\nsubtracting the level of actual exports from the level of actual extraction.\n1170 Regulations on the Administration of the Import and Export of Goods, (Exhibits CHN-54, JE-50),\nArticle 42.\n1171 China's response to Panel question No. 36.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.7.3.3 WTO-consistent alternatives\n7.837. In the context of conducting an analysis under the chapeau of Article XX of a measure\nprovisionally justified under subparagraph (g), the Appellate Body has examined whether a WTO-\nconsistent or less trade-restrictive alternative would be available and would enable the regulating\nMember to achieve its legitimate policy goals with the same degree of efficiency and efficacy. 1172\nAccording to the Appellate Body, discrimination can be considered arbitrary or unjustifiable where\nalternative measures exist which would have avoided or at least diminished the discriminatory\ntreatment. For this reason, the Panel now proceed s to examine alternative measures put forward\nby the complainants.\n7.838. The complainants put forward various alternatives that, they claim, China could use\ninstead of export quotas and which, they claim, would provide China with the same level of\nconservation effectiveness while avoiding the discriminatory and distorting effects that the export\nquota has on foreign users. The parties expanded on these alternatives in response to a Panel\nquestion and the complainants discussed alternative measures for China's rare earths, tungsten,\nand molybdenum export quotas together. The Panel therefore refers to its discussion and analysis\nof alternative measures in section 7.6.3.3 above of its findings on the rare earths export quota.\n7.839. China has not commented extensively on these various, allegedly non-discriminatory\nalternatives, except to say that it already uses an export licensing system in addition to its export\nquota system. As the Panel has noted in its discussion of rare earths, China argues that nothing is\nable to replace the quota because the export quot a also fulfils a number of additional functions.\nMost importantly, it ensures that not only Chinese users but also foreign users receive a signal\nthat China's tungsten supply is not unlimited and that they should explore alternative sources of\nsupply.\n7.840. With respect to the export quota's alleged signalling function, the complainants argue that\nChina could have sent the relevant conservation-related signals to both domestic and foreign users\nalike in a non-discriminatory manner by tightening its production restrictions. The complainants\ninsist that such signalling is clearly feasible, since China can simply enforce existing domestic\nproduction limits or adopt consumption limits to convey such signals. Such non-discriminatory\nsignalling would be much more effective at controlling excessive production or consumption of\ntungsten, and would create an undistorted market and therefore a climate for long-term\ninvestments.\n1173 To the extent that the current system reserves the lion's share of Chinese\nproduction for domestic industries, the export quota only reduces the incentive for domestic\nindustrial users to take steps to conserve tungsten or to seek substitutes.\n7.841. The Panel notes that China does not comment on the complainants' claim that all their\nsuggested alternatives are WTO-consistent, whereas the export quota China uses is inconsistent\nwith Article XI:1 of the GATT 1994. In the Panel's opinion, China needs to explain why such WTO-\nconsistent or less trade-restrictive alternatives are not available to China. In the Panel's view,\nChina has not done so.\n7.842. The Panel recalls again that it is not as ked to assess the efficiency or effectiveness of\nChina's conservation policy, but only to determine whether the export quotas it argues are part of\nits conservation programme are really about conservation rather than another policy reason, and\nwhether any discrimination caused is justified on the basis of conservation. This requires the Panel\nto consider whether China has explored the use of WTO-consistent or less trade-restrictive\nalternatives that could achieve the same conservation goal with the same efficiency and\neffectiveness. China has not satisfied the Panel that it has fully explored and justifiably rejected\nthe alternatives proposed by the complainants.\n7.843. The Panel therefore concludes that the di scrimination and trade distortions engendered by\nChina's export quota measures were both foreseeable and avoidable, including through the use of\n\n1172 Appellate Body Reports, US – Gasoline, pp. 25-29, DSR 1996:I, 3, pp. 23-27 and US – Shrimp,\npara. 171 (\"The Inter-American Convention thus provides convincing demonstration that an alternative course\nof action was reasonably open to the United States for securing the legitimate policy goal of its measure a\ncourse of action other than the unilateral and non-consensual procedures of the import prohibition under\nSection 609\".)\n1173 European Union's closing statement at the second meeting of the Panel, para. 10.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nWTO-consistent alternative means such as border controls and policing and/or by imposing\ndomestic taxes and consumption restrictions that would at least reduce the level of discrimination\nagainst foreign users.\n7.7.3.4 Conclusion\n7.844. In light of the above, the Panel concludes that China has not demonstrated that its 2012\nexport quota on tungsten was not applied in a manner that constitutes arbitrary or unjustifiable\ndiscrimination or a disguised restriction on international trade.\n1174\n7.7.4 Overall conclusion on China's export quota on tungsten\n7.845. For the reasons given above, the Panel concludes that China's export quota on tungsten is\ninconsistent with Article XI:1 of the GATT 1994 and Paragraphs 162 and 165 of China's Working\nParty Report. The Panel also concludes that China's export quota on tungsten is not justified under\neither subparagraph (g) or the chapeau of Article XX of the GATT 1994.\n7.8 Application of Article XX(g) to China's export quota on molybdenum\n7.8.1 Application of subparagraph (g) to China's export quota on molybdenum\n7.8.1.1 Introduction\n7.846. The Panel will now apply the legal test under Article XX(g) to China's export quota on\nmolybdenum. The Panel will first assess whether the export quota complies with subparagraph (g),\nand will then proceed to consider whether the export quota is justified under the chapeau of\nArticle XX, before reaching an overall conclusion on the quota's WTO-consistency.\n7.8.1.2 First part: Whether China's export quota on molybdenum \"relates to the\nconservation of exhaustible natural resources\"\n7.847. The Panel now turns to consider whether China's export quota on molybdenum \"relates to\nthe conservation of exhaustible natural resources\". The Panel will begin by considering whether the\nproducts subject to China's export quota are \"exhaustible natural resources\". It will then proceed\nto consider whether China's measures \"relate to\" the \"conservation\" of such exhaustible natural\nresources.\n7.848. Before proceeding, the Panel notes that the parties have focused less attention on\nmolybdenum than on rare earths. China's second written submission has only four pages on\nmolybdenum\n1175, and does not include any argumentation on whether the export quota on\nmolybdenum relates to the conservation of exhaustible natural resources. 1176 Japan's second\nwritten submission does not specifically address the quota on molybdenum in detail.\n7.849. Additionally, many of the parties' ar guments on molybdenum draw on and incorporate\ntheir arguments on rare earths. As such, the Panel's findings on China's export quota on\nmolybdenum are shorter than its findings on rare earths, and, where appropriate, incorporate\nsome of the analysis already set forth above.\n7.8.1.2.1 \"exhaustible natural resources\"\n7.850. China submits that molybdenum is susceptible to depletion by intense exploitation, and\nthus is an \"exhaustible natural resource\" within the meaning of Article XX(g) of the GATT 1994.\n1177\n\n1174 In view of the nature of the export quota system described above, the Panel's finding is with respect\nto the series of measures comprising the relevant framework legislation, the implementing regulations, other\napplicable laws and the specific annual measures imposing the export quotas existing at the date of the Panel's\nestablishment.\n1175 China's second written submission, paras. 191-205.\n1176 These paragraphs are solely concerned with whether China's export quotas on molybdenum result in\na price advantage for Chinese consumers.\n1177 China's first written submission, para. 352.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nAccording to China, it has 43.9% of the worl d's known molybdenum reserves, and produces 38%\nof the world's molybdenum supply.1178\n7.851. The United States submits that China's argument is based on a simplified assumption that\n\"molybdenum\" in the abstract is an exhaustible natural resource; however, China's export quota\ncovers 14 tariff codes ranging from molybdenum ores and concentrates to molybdenum scrap and\nintermediate molybdenum products. 1179 The United States recalls that the forms of bauxite and\nfluorspar subject to the challenged export restrictions in China – Raw Materials were clay minerals\nwhich, like molybdenum ores and concentrates, are basically in the form in which they are mined\nfrom the earth. 1180 In contrast to Raw Materials , the United States notes that in the present\ndispute China's export quota covers not just ores but also a number of products that \"might not\nthemselves be considered 'exhaustible natural resources' because they are intermediately\nprocessed products\".\n1181\n7.852. The European Union does not contest the fa ct that \"molybdenum\" is a \"natural resource\".\nHowever, the European Union stresses that the export quota that China imposes on \"molybdenum\"\nis also imposed on various forms of \"molybde num\" products which have undergone some degree\nof further processing.1182\n7.853. As the Panel has explained above in the co ntext of China's export quotas on rare earths\nand tungsten, measures can \"relate to the conserva tion of exhaustible natural resources\" even if\nthey do not act directly upon the resource sought to be conserved. Article XX(g) is not only\navailable for measures that apply directly to the raw form of the resource in question, but to any\nmeasure that bears a \"close\", \"real\", or \"substantial\" relationship with the conservation of an\nexhaustible natural resource, regardless of the particular product that is the subject of the\nchallenged measure.\n7.854. All the parties seem to agree that molybdenum ores are exhaustible natural resources.\n1183\nAs such, the Panel does not need to determine whether semi-processed molybdenum products are\nthemselves \"exhaustible natural resources\", but will instead focus its attention on whether China's\nexport quota on semi-processed molybdenum products are \"closely\" or \"substantially\" related to\nthe conservation of molybdenum ores.\n7.8.1.2.2 \"conservation\"\n7.855. China argues that it has adopted a cons ervation policy for its exhaustible molybdenum\nresources, and argues that the 2012 export quota on molybdenum challenged by the complainants\nis both an integral part of this policy and works together with several other restrictions on the\ndomestic production and consumption of molybdenum resources.\n1184\n7.856. China explains that the legal basis of its conservation policy for molybdenum is found in\nthe Mineral Resources Law 1185, and the Foreign Trade Law .1186 China recalls that Article 16 of the\nMineral Resources Law 1187 provides that for certain minerals \"protective mining is prescribed by\nthe State\".1188 Further, Article 16(4) of the Foreign Trade Law1189 provides that the export of goods\nmay be restricted \"in order to effectively conserve exhaustible natural resources\".\n\n1178 China's first written submission, para. 352.\n1179 United States' second written submission, paras. 261-262.\n1180 United States' second written submission, para. 265.\n1181 United States' second written submission, para. 267.\n1182 European Union's second written submission, para. 283.\n1183 United States' second written submission, para. 265; European Union's second written submission,\n1184 China's first written submission, para. 342.\n1185 Mineral Resources Law, (Exhibit CHN-10).\n1186 Foreign Trade Law, (Exhibits CHN-11, JE-49).\n1187 Mineral Resources Law, (Exhibit CHN-10).\n1188 Mineral Resources Law, Article 16(3), (Exhibit CHN-10).\n1189 Foreign Trade Law, (Exhibits CHN-11, JE-49), Article 16(4).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.857. According to China 1190, China's conservation policy for molybdenum consists of the\nfollowing categories of measures:\n Measures limiting and controlling access to the molybdenum industry1191;\n Measures directly controlling the volume of resources being produced and exported,\nconsisting of a total production quota in a Directive Production Plan 1192 and an export\nquota1193;\n A resource tax on molybdenum producers to ensure that the price of the resources\nreflects their costs1194; and\n A measure requiring mines to make a deposit for ecological recovery.1195\n7.858. In response to questions from the Panel, China conceded that it does not have an\nextraction quota on molybdenum. 1196 Instead, China's arguments focus on the relationship\nbetween the challenged export quota and the goal of conserving exhaustible molybdenum ores.\n7.859. The Panel begins by noting that China's conservation policy for molybdenum is similar in\nstructure to China's conservation policy for rare earths, except that it contains fewer measures.\nDespite this difference, the Panel believes that its analysis in the context of rare earths is largely\napplicable in the context of molybdenum as well.\n7.860. The Panel accepts that China has a conservation policy for its exhaustible molybdenum ore\nresources. As the Panel observed in the context of rare earths, it is certainly in China's own\ninterests to conserve its molybdenum resources, and none of the parties have argued that China\nhas no conservation policy with respect to such materials.\n1197\n7.861. As such, the Panel's sole task is to objectively assess China's export quota on molybdenum\nfor compliance with the requirements of Article XX(g). Where the Panel looks at other measures\nthat are also claimed to form part of China's molybdenum conservation policy, it does so only for\nthe light such measures throw on the challenged export quota.\n7.862. The Panel now proceeds to consider whether China's export quota on molybdenum \"relates\nto\" the conservation of molybdenum ores.\n7.8.1.2.3 Does China's export quota on molybdenum \"relate to\" the conservation of\nexhaustible molybdenum resources?\n7.8.1.2.3.1 Text of the export quota measures\n7.863. China's export quota on molybdenum is embodied in the following measures\n1198:\n 2012 Export Licensing Management Commodities List1199;\n\n1190 China's first written submission, para. 346. The Panel notes that in paras. 342, 343, and 345 and in\nthe title of chapter B (page 115) of China's first written submission, the reference is to \"China's conservation\npolicy for molybdenum\".\n1191 Conditions for Admission to the Molybdenum Industry, (Exhibit CHN-108).\n1192 First Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-94) and Second Batch\nof the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-95).\n1193 2012 Export Licensing Catalogue, (Exhibits CHN-8, JE-48), Paragraph I(i), indicating that\nmolybdenum is subject to export quotas. The export quotas are administered on the basis of the Regulations\non the Administration of the Import and Export of Goods, (Exhibits CHN-54, JE-50) and Export Quota\nAdministration Measures, (Exhibits CHN-96, JE-52).\n1194 Amendment of the Provisional Regulations on Resource Tax, (Exhibit CHN-26) and Implementation\nRules for the Provisional Regulations on Resource Tax, (Exhibit CHN-27).\n1195 Opinions on Enhancing the Ecological Protection and Restoration of Mines, Section IV,\n(Exhibit CHN-32).\n1196 Panel question Nos. 114 and 141.\n1197 European Union's second written submission, para. 280.\n1198 China's first written submission, para. 347.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n Announcement of the Ministry of Commerce, No. 71 of 2011 Publishing the Total Export\nQuantity Quota for Agricultural and Industrial Products in 20121200;\n Public Notice of Application Conditions and Application Procedures for the 2012 Export\nQuotas of Indium, Molybdenum and Tin1201;\n Notice Publishing the List of the State Trading Export Enterprises of Tungsten, Antimony\nand Silver, the Enterprises Exporting and Supplying Tungsten and Antimony, and the\nEnterprises Applying for the Export Quotas for Indium and Molybdenum in 2012\n1202; and\n 2012 Notice on List of Export (Supply) Enterprises and First Batch Export Quota of\nTungsten, Antimony and Other Non-Ferrous Metals.1203\n7.864. China argues that the texts of the measures embodying the 2012 export quota for\nmolybdenum show a \"close and genuin e relationship of ends and means\" 1204 between China's\nmolybdenum export quota and the conservation objective.\n7.865. According to China, the first evidentiar y basis establishing such relationship is the\nreference to conservation in the Public Notice of Application Conditions and Application Procedures\nfor the 2012 Export Quotas of Indium, Molybdenum and Tin , which specifies the eligibility criteria\nfor enterprises to participate in the quota allocation process. It notes that this Notice states that it\nhas been adopted \"[i]n order to protect the resources\".1205\n7.866. China argues that further evidence of the \"real\" and \"substantial\" relationship between the\nexport quota and the objective of conserving moly bdenum is found in the fact that the measures\nembodying the 2012 molybdenum export quota were adopted on the basis of legal instruments\nthat refer to China's conservation objective. China explains that the legal basis for using an export\nquota to conserve resources is contained in the following provisions:\n Article 16(4) of the Foreign Trade Law 1206 provides that the export of goods may be\nrestricted \"in order to effectively conserve exhaustible natural resources\".\n Article 35 of the Regulations on the Administration of the Import and Export of Goods\nindicates that the export of goods that are considered to be exhaustible natural\nresources in need of conservation, \"shall be restricted\".1207\n\n1199 United States' Panel Request, page 3, third bullet; European Union's Panel Request, page 3, third\nbullet; Japan's Panel Request, page 3, third bullet. See also 2012 Export Licensing Catalogue, (Exhibits CHN-8,\nJE-48).\n1200 United States' Panel Request, page 3, fifth bullet; European Union's Panel Request, page 3, fifth\nbullet; Japan's Panel Request, page 3, fifth bullet. See also 2012 Export Quota Amounts, (Exhibits CHN-97,\nJE-58).\n1201 United States' Panel Request, page 3, twelfth bullet; European Union's Panel Request, page 3,\ntwelfth bullet; Japan's Panel Request, page 3, twelfth bullet. See also 2012 Application Qualifications and\nApplication Procedures for Molybdenum Export Quota, (Exhibits CHN-107, JE-63).\n1202 United States' Panel Request, page 3, seventh bullet; European Union's Panel Request, page 3,\nseventh bullet; Japan's Panel Request, page 3, seventh bullet. See also 2012 List of Enterprises for the Export\n(or/and Supply) of Tungsten, and List of Enterprises for the Export of Molybdenum, (Exhibits CHN-98, JE-65).\n1203 United States' Panel Request, page 3, ninth bullet; European Union's Panel Request, page 3, ninth\nbullet; Japan's Panel Request, page 3, ninth bullet. See also 2012 First Batch Export Quotas of Tungsten,\nAntimony and Other Non-Ferrous Metals, (Exhibits CHN-99, JE-59).\n1204 Appellate Body Reports, China – Raw Materials, para. 355 (citing Appellate Body Report, US –\nShrimp, para. 136).\n1205 2012 Application Qualifications and Application Procedures for Molybdenum Export Quota,\nIntroductory Paragraph, (Exhibits CHN-107, JE-63).\n1206 Foreign Trade Law, (Exhibits CHN-11, JE-49), Article 16(4).\n1207 Regulations on the Administration of the Import and Export of Goods (Exhibit CHN-54, JE-50),\nArticle 35. Article 35 of the Regulations refers to Article 16(1), (2), (3) and (7) of the Foreign Trade Law,\n(Exhibits CHN-11, JE-49). Article 16(2) of the 1994 version of the Foreign Trade Law, (Exhibit CHN-61)\nspecifies that export restrictions may be adopted to ensure the \"effective protection of exhaustible domestic\nresources\". The Foreign Trade Law was last amended in 2004, the corresponding provision dealing with\nconservation of exhaustible natural resources is Article 16(4).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n For molybdenum, specific Measures for the Administration of Export Commodities Quotas\napply as well. These Measures specify how export quotas, adopted on the basis of\nArticle 35 of the Regulations on the Administration of the Import and Export of Goods ,\nand thus pursuing a conservation objective, are to be administered.\n1208\n7.867. According to China, the 2012 Export Licensing Catalogue , which specifies the goods\nsubject to export quotas 1209, MOFCOM's Announcement publishing the total export quota volume\nfor molybdenum1210, the Public Notice of Application Conditions and Application Procedures for the\n2012 Export Quotas of Indium, Molybdenum and Tin 1211 specifying the eligibility criteria for\nenterprises to participate in the quota allocation process, the Notices publishing the list of\nenterprises applying for the export quota1212, and the list of enterprises to which part of the quota\nis granted 1213 all refer to the instruments above as the legal basis for the imposition of export\nquotas to conserve resources.\n7.868. The complainants dispute the probative value of these references to \"conservation\" in\nChina's export quota measures for several reasons. The complainants consider them to be passing\nreferences.1214 They note moreover that China's export quota measures, which have been imposed\nfor over a decade, have only made passing reference to the goal of conservation since the\nbeginning of 2012.\n1215 The complainants also contend that cross-references to legal instruments\nsuch as the Foreign Trade Law and Regulations in the export quota measures are insufficient to\nmeet China's burden under Article XX(g), since those instruments also list reasons other than\nconservation for which the export quota could have been imposed.\n1216\n7.869. The Panel begins by observing that it has discussed a number of the instruments invoked\nby China in its discussion above on rare earths and tungsten. Most importantly, the Panel has\nanalysed the Foreign Trade Law and the Regulations on the Administration of the Import and\nExport of Goods, and concluded that references to these documents in the texts of China's quota\nmeasures are insufficient to establish the required degree of correspondence between the\nchallenged measures and the goal of conserving exhaustible natural resources. The Panel will not\nrepeat what it has written above, but finds that the analysis given in the context of rare earths and\ntungsten is applicable also in the context of molybdenum.\n7.870. It appears to the Panel that the only new exhibit as regards molybdenum is the Public\nNotice of Application Conditions and Application Procedures for the 2012 Export Quotas of Indium,\nMolybdenum and Tin . The Panel has examined this document and takes note that, as China has\nargued, it refers in its preamble to the goal of \"protect[ing] the resources and environment\".\n\n1208 Export Quota Administration Measures, (Exhibits CHN-96, JE-52), Article 3.\n1209 2012 Export Licensing Catalogue, Introductory Paragraph, (Exhibits CHN-8, JE-48) (\"Pursuant to the\nForeign Trade Law of the People's Republic of China and the Regulations on the Administration of the Import\nand Export of Goods of the People's Republic of China, the 2012 Export Licensing Management Goods List is\nhereby promulgated\").\n1210 2012 Export Quota Amounts, Introductory Paragraph, (Exhibits CHN-97, JE-58) (\"Pursuant to the\nRegulations of the People's Republic of China on the Administration of the Import and Export of Goods and the\nMeasures for the Administration of Export Commodities Quotas, the 2012 total export quota quantity for\nagricultural and industrial products is hereby announced.\").\n1211 2012 Application Qualifications and Application Procedures for Molybdenum Export Quota,\nIntroductory Paragraph, (Exhibits CHN-107, JE-63) (\"… according to the relevant provisions of the Foreign\nTrade Law of the People's Republic of China and The People's Republic of China Regulation on the\nadministration on import and export of goods…\").\n1212 2012 List of Enterprises for the Export (or/and Supply) of Tungsten, and List of Enterprises for the\nExport of Molybdenum, (Exhibits CHN-98, JE-65), Introductory Paragraph (\"… in accordance with the Foreign\nTrade Law of the People's Republic of China and the Regulations on the Administration of Import and Export of\nGoods, … the list publishing online the enterprises applying for the export quota for indium and molybdenum\nare hereby published.\").\n1213 2012 2012 First Batch Export Quotas of Tungsten, Antimony and Other Non-Ferrous Metals,\n(Exhibits CHN-99, JE-59) (\"According to the Regulations on Administration of Import and Export of Goods and\nthe Measures for the Administration of Export Commodities Quotas, the list of export (supply) enterprises … is\nhereby announced and the first batch of the quota is hereby granted\".).\n1214 United States' second written submission, para. 201; European Union's second written submission,\npara. 237.\n1215 United States' second written submission, paras. 202; European Union's second written submission,\npara. 237.\n1216 United States' second written submission, para. 203; European Union's second written submission,\npara. 238.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nHowever, the Panel observes that the full sentence referred to by China reads as follows: \"In order\nto protect the resources and environment, in coordination with industry policies of the nation , and\nfurther strengthen the export administration of the rare metal exports…\". 1217 In the Panel's\nopinion, the italicized phrase is clearly a reference to industrial rather than conservation policy.\nAlthough, as the Panel has noted, conservation and industrial policies are not necessarily\nincompatible, the Panel considers that the juxtaposition of references to conservation and\nindustrial policies in the Public Notice sends mixed messages, and thus the Panel cannot conclude\non the basis of this document alone that China's export quota on molybdenum \"relates to\"\nconservation.\n7.871. Additionally, and perhaps more importantly, the Panel believes that the texts of China's\nmolybdenum export quota measures, including their references to conservation, do not explain\nhow the export quota relates to the goal of co nserving exhaustible molybdenum. For instance,\nwhile the Public Notice of Application Conditions and Application Procedures for the 2012 Export\nQuotas of Indium, Molybdenum, and Tin refers to the object of \"protect[ing] the resources\"\n1218, the\ndocument contains no indication or explanation as to how the stated qualification conditions are\nclosely or substantially related to the conservation of exhaustible molybdenum. The document\nstates that the qualification conditions have b een adopted \"in order\" to conserve exhaustible\nnatural resources, but the actual relationship between those conditions and the conservation\nobjective is nowhere explained.\n7.872. As the Panel has explained in the context of China's export quotas on rare earths and\ntungsten, references to \"conservation\" simply cannot substitute for a full and proper explanation of\nhow the export quota on molybdenum was designed to promote conservation. While the\nreferences to conservation that China has pointed to do suggest that the export quota measures\nwere imposed with conservation-related concerns in mind, the Panel's task is to determine\nwhether the design and architecture of the measur es \"relate to conservation\", and the references\nto which China has pointed do not, in the Panel's opinion, significantly illuminate this inquiry.\n7.873. In sum, it is the Panel's opinion that China cannot discharge its burden of proof simply by\nciting a number of references to \"conservation\" in the text of a challenged measure without\nexplaining how the challenged measure \"relates to\", supports, or furthers the goal of conserving\nexhaustible molybdenum ores. Consequently, the Panel cannot conclude that China's export quota\non molybdenum \"relates to\" the conservation of molybdenum ores on the basis of these\nreferences.\n7.874. The Panel notes that, unlike in the contex t of rare earths and tungsten, China has not\nprovided any further arguments explaining the relationship between its export quota on\nmolybdenum and the goal of conserving exhaustibl e natural resources. It has not, for instance,\nargued that the export quota on molybdenum sends a signal to foreign and/or domestic users that\nChina is serious about conserving its exhaustible natural resources.\n7.8.1.2.3.2 The possibility that unused ex port quota volumes will be sold to domestic\nconsumers\n7.875. The Panel notes that the European Union's argument that \"if China were serious about\nconserving its resources, it would conserve the material that has not been used up by exports,\ninstead of making it available to domestic producers\".\n1219 In the context of its arguments on rare\nearths, China has responded to this claim by arguing that the domestic availability of unused\nexport quota volumes does not undermine the existence of a substantial relationship between the\nexport quota system and the goal of conserving molybdenum, since the conservation levels\ndetermined in the production quota for any given year constitutes the level of conservation that\nChina considers appropriate for that year.\n1220 On this argument, there is no harm, from a\nconservation perspective, in allowing domestic molybdenum consumers to use whatever quantity\nof export-designated molybdenum has not been used by foreign consumers.\n\n1217 Emphasis added.\n1218 2012 Application Qualifications and Application Procedures for Molybdenum Export Quota,\n(Exhibits CHN-107, JE-63).\n1219 European Union's opening statement at the first meeting of the Panel, para. 49.\n1220 China's response to Panel question No. 36.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.876. The Panel disagrees with the European Union on this point. In the Panel's opinion, the\nmere fact that unused volumes are allowed to be sold into the domestic market does not in itself\nmean that the export quota system does not \"relate to\" conservation. Assuming that the\nextraction and/or production cap was a \"real\" restri ction, i.e. were set below the level of expected\ndemand for the relevant period (i.e. for 2012), then we believe that the fact that China does not\nrequire unused export quotas to be preserved for use in future years does not necessarily cast\ndoubt on its conservation objectives, since China is still pursuing conservation through the\nimposition, on an annual basis, of limits on produc tion. Within these limits, there is nothing illegal\nor even contradictory about China pursuing its own industrial or other goals (so long as these are\npursued in a non-discriminatory manner).\n7.877. While taking into account the unused shar e of the export quota in the determination of\nproduction and export quotas for the following year(s) may result in a higher degree of\nconservation, we believe that the Panel cannot find that China's measures as they stand do not\n\"relate\" to conservation merely because China has designed its export quota system in such a way\nas to prohibit the stockpiling or exchange of unused export quota shares among exporters while\nselling unused export quota volumes into the domestic market. In our view, this is so even though\ntaking into account such unused export quota shares for future years' determinations would result\nin a higher level of conservation. China is entitled to identify and pursue its own level of\nconservation, and once such level of conservation is determined, where products are eventually\nconsumed (abroad or domestically) does not affect the relationship between the challenged\nmeasures and the goal of conserving exhaustible natural resources.\n7.8.1.3 Second part: whether China's export quota on molybdenum is made effective in\nconjunction with restrictions on domestic production or consumption\n7.878. The Panel now turns to examine whether China's export quota on molybdenum is \"made\neffective in conjunction with restrictions on domestic production or consumption.\"\n7.879. China submits that it has a distinct conservation policy\n1221 for molybdenum, including both\nexport and domestic restrictions. Specifically, China argues that its conservation plan consists of\nfour categories of domestic restriction: access conditions; quotas on extraction, production and\nexport; resource taxes; and deposit for ecological recovery. 1222 China also argues that its\nrestrictions on domestic production and consumption of molybdenum are substantial. China argues\nthat it meets the even-handedness requirement in A r t i c l e X X ( g ) a s l o n g a s i t e n s u r e s t h a t t h e\nburden of its molybdenum conservation policy is not imposed solely on foreign consumers, but also\non domestic consumers.\n1223 The complainants rebut the four lines of China's argument, and\nmaintain that China's conservation measures do not constitute \"restrictions on domestic production\nor consumption\" within the meaning of Arti cle XX(g) of the GATT 1994. According to the\ncomplainants, China's alleged conservation policy for molybdenum contains no domestic measure\nthat counterbalances the export quota on moly bdenum products, and is therefore not even-\nhanded.\n1224\n7.880. The Panel now has to determine whether (i) China imposes restrictions on domestic\nproduction or consumption of molybdenum; (ii) whether China's export quota is \"made effective in\nconjunction with\" such restrictions on domestic production or consumption; and (iii) whether\nChina's domestic and foreign restrictions are \"even-handed\".\n7.8.1.3.1 Whether China has imposed rest rictions on domestic production or\nconsumption of molybdenum\n7.881. In its first written submission, China identifies four categories of measures that it argues\nrestrict the domestic production or consumption of Chinese molybdenum resources.\n1225 As noted,\nthese categories are (a) access conditions; (b) resource taxes; (c) volume restrictions; and (d)\n\n1221 China's first written submission, section IV.B; China's response to Panel question No. 108.\n1222 China's first written submission, paras. 346 and 360.\n1223 China's first written submission, para. 333.\n1224 United States' second written submission, paras. 275-290; European Union's second written\nsubmission, paras. 287-306.\n1225 China's first written submission, para. 311.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\ndeposit for ecological recovery. The Panel will assess each of China's domestic measures\nindividually.\n7.882. In the following sections, the Panel will evaluate each legal instrument invoked by China as\na restriction on domestic production or consumption, and assess whether these alleged restrictions\nare capable of having a limiting effect. The Panel recalls that a measure claimed to be a restriction\nis capable of having a limiting effect only if it is accompanied by actual enforcement. The Panel will\ntherefore consider not only whether there are restrictions in the text of Chinese law, but also\nwhether there China has adopted measures to enforce these alleged restrictions.\n7.883. The Panel notes that, unlike in the context of its arguments on rare earths, China has not\nargued that it has measures to enforce its conservation policy on molybdenum. In response to a\nquestion from the Panel after the second meeting of the Panel with the parties, China provided\nthree exhibits and claimed it has taken enforcement actions to ensure compliance with the alleged\nrestrictions on domestic production or consumption of molybdenum. The Panel will assess these\n\"enforcement actions\". The Panel considers that \"enforcement measures\" are part of the design,\nstructure, and architecture of each of the four alleged categories of restriction, and should be\nassessed together with each of those four categories. The Panel will also examine \"enforcement\nmeasures\" combating mining or production by illegal producers. The Panel recalls that domestic\nrestrictions must be real and actual, which means that they must be in force, implemented and\nenforced. Accordingly, the Panel will consider the respective enforcement of each domestic legal\ninstruments invoked by China pursuant to the second phrase of subparagraph (g).\n7.8.1.3.1.1 Whether the access conditions ar e restrictions on domestic production or\nconsumption of molybdenum\n7.884. China argues that it strictly limits access to the molybdenum industry, and that, moreover,\nit is seeking to create a molybdenum industry that is organized in a rational and efficient\nmanner.\n1226 According to China, a rational industry structure facilitates supervision of the\nenterprises' compliance with the applicable conservation measures for molybdenum (including\nvolume restrictions). China explains that strictly controlling access to the molybdenum industry\nalso reduces the number of mines and producers, thus restricting total production.\n1227\n7.885. The measures invoked by China as access conditions to the molybdenum industry are:\na. Opinions on the Integration of Exploitation of Mineral Resources1228 of 2006;\nb. Announcement on Admission to Molybdenum Industry1229of 2012.\n7.886. The Panel has addressed the Opinions on the Integration of Exploitation of Mineral\nResources in its discussion of China's conditions on access to the tungsten industry. The same\nprovisions of the legal instrument regarding the integration of the mining industries of \"key types\nof minerals\" (including molybdenum 1230) are also applicable to the molybdenum industry. As we\nsaid in the context of tungsten, the Panel acknowledges China's argument that a rational industry\nstructure facilitates the supervision of the enterprises' compliance with the applicable conservation\nmeasures for molybdenum (including the production quota). According to China, strictly controlling\nthe access to the industry also reduces the number of mines and producers, and thus restricts\ntotal production. However, the Panel considers that China has not provided any explanation about\nhow the integration work would affect the access of miners to the molybdenum industry, or on the\nprogress of the integration work, in particular regarding the molybdenum mining industry. In the\nPanel's opinion, China has not demonstrated how an integrated molybdenum industry would\nnecessarily restrict the mining or production of molybdenum. While access conditions may prevent\nnew enterprises from entering the molybdenum industry, the Panel is not convinced that they\ncould limit the amount of molybdenum produced by enterprises already in the market. Moreover,\naccess conditions do not appear to control the amount of molybdenum produced by newly\n\n1226 China's first written submission, para. 362.\n1227 China's first written submission, para. 365.\n1228 2006 Opinions on the Integration of Exploitation of Mineral Resources, (Exhibit CHN-17).\n1229 Conditions for Admission to the Molybdenum Industry, (Exhibit CHN-108).\n1230 2006 Opinions on the Integration of Exploitation of Mineral Resources, (Exhibit CHN-17),\nArticle IV(a).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nqualifying enterprises once they have met the conditions. Moreover, the Panel acknowledges that\nits task is to examine the domestic restriction existing concurrently with the 2012 molybdenum\nexport quota. China has failed to explain how an integration project that was supposed to be\ncompleted prior to the end of 2008 could be a restriction on the mining or production of\nmolybdenum in 2012.\n7.887. The Announcement on Admission to Molybdenum Industry\n1231 specifies access conditions\nfor mining and production enterprises seek ing entry into the molybdenum industry. The Circular\naddresses: (a) the establishment and layout of production enterprises; (b) production scale and\nequipment; (c) recovery of resources and ener gy consumption (minimum recovery rate); (d)\nenvironmental protection; (e) product quality; (f) safe production and occupational disease\nprevention and control; and (g) labour insurance.\n7.888. The Panel notes that the Announcement on Admission to Molybdenum Industry was made\neffective only in July 2012. The Panel doubts how this legal instrument could contribute to\nrestricting production of molybdenum prior to July 2012 (including in the period\nJanuary-June 2012).\n7.889. The Panel also doubts how the access conditions described above, which restrict the entry\nof newcomers into the molybdenum industry, co uld restrict the activity of intermediate\nmolybdenum producers who have already entered the molybdenum industry when there are no\nvolume limits on the production of intermediate molybdenum. The Panel considers that the access\nconditions make it harder for new enterprises to enter the molybdenum industry, but considers\nthat they do not control the amount of molybdenum that enterprises already in the industry may\nproduce. The Panel therefore has difficulty finding that conditions such as a minimum production\nscale – which was designed to promote the efficiency of production after July 2012 – really restrict\ndomestic production.\n7.890. The Panel understands that China's access conditions set the qualifications for miners\nand/or producers to enter the molybdenum industry. Violation of the access conditions will lead to\na miner or producer losing its licence to produce, and therefore becoming an illegal producer if\nthey continue to mine or produce. The Panel will address the alleged actions against mining\nwithout a licence and violations of other production requirements in a separate section of its\nreport.\n7.8.1.3.1.2 Whether the volume restriction (production quota) is capable of restricting\ndomestic production of molybdenum\n7.891. China argues that its 2012 conservation policy for molybdenum includes volume\nrestrictions on domestic production, in the form of quotas set by the MIIT on the volume of\nmolybdenum concentrates that can be produced from molybdenum ores.\n1232 In response to a\nquestion from the Panel, China explains that it has not yet imposed an extraction quota on\nmolybdenum as it does for rare earths and tungsten. According to China, this is attributable to the\nfact that molybdenum was not included in the 1991 \"Circular on Including Tungsten, Tin, Antimony\nIon-Absorption-Type Rare Earth Minerals into Special Minerals under the National Protective\nMining.\" As a result, the Ministry of Land and Resources (MLR) does not have the competence to\nset an extraction quota on molybdenum.\n1233\n7.892. China invokes the following legal instruments in support of its claim that it has imposed a\nrestriction on the production of molybdenum concentrates in 20121234:\na. 2012 First Batch of the Directive Production Plan of Rare Metals1235; and\nb. 2012 Second Batch of the Directive Production Plan of Rare Metals1236\n\n1231 Conditions for Admission to the Molybdenum Industry, (Exhibit CHN-108).\n1232 China's first written submission, para. 366.\n1233 China's response to Panel question No. 114.\n1234 China's first written submission, paras. 346 and 366.\n1235 First Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-94).\n1236 Second Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-95).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.893. The Panel notes that the MIIT issued the 2012 First Batch of the Directive Production Plan\nof Rare Metals on 13 January 2012, which specified the fi rst batch of the production quota of\nmolybdenum (100,000 tonnes).1237 On 6 July 2012, the MIIT issued the 2 012 Second Batch of the\nDirective Production Plan of Rare Metals, which specified the second batch of the production quota\nof molybdenum (94,520 tonnes). 1238 The annexes to these two instruments specify the allocation\nof the production quota at the regional level. 1239 The Panel considers that these two batches of\nproduction quota together indicate the maximum amount of molybdenum concentrates that could\nbe produced by the end of 2012. According to the data in Exhibit CHN-224, the total 2012\nproduction quota (194,520 tonnes) was lower than the actual amount of molybdenum\nconcentrates (229,600 tonnes) produced in 2011.\n7.894. However, as the Panel explained above in its discussion of the legal test under\nArticle XX(g), the fact that a quantitative restriction on domestic production or consumption (here,\nthe molybdenum production plan) is, in a given year, set at a level lower than that at which it was\nset in a previous year does not necessarily mean that it constitutes a \"restriction\" within the\nmeaning of Article XX(g). What matters, in the Panel's view, is that the quantitative restriction be\nset below the expected level of demand for the period in which the alleged restriction is intended\nto apply. Since expected demand may fluctuate fr om year to year, the mere fact that China's\nmolybdenum production was set in 2012 at a volume lower than the actual level of production in\n2011 does not of itself establish that the production quota constituted a \"restriction\". Instead, the\nPanel needs to determine whether the 2012 production quota was set at a level below the\nexpected demand for 2012.\n7.895. Unfortunately, China has not provided any evidence as to the expected level of demand for\n2012 on the basis of which the Panel could assess whether the 2012 molybdenum production plan\nconstituted a \"restriction\" for the purposes of Article XX(g). As such, the Panel is unable to\nconclude that the 2012 molybdenum production quot a, as established by Chinese law, constituted\na real \"restriction\" for the purposes of Article XX(g).\n7.896. With respect to enforcement, the complainants note that China has not argued that the\nproduction target actually restricted production of molybdenum in 2012.\n1240 Moreover, according to\nthe complainants, the fact that extraction exceeded the production quota in 2012 shows that China\ndoes not have restrictions or limitations on domestic production.\n1241 Indeed, the complainants refer\nto the data provided by China, and note that the volume of molybdenum extraction and domestic\nconsumption has increased dramatically in the last decade.1242\n7.897. China refers to the first and second batches of the Directive Production Plan of Rare\nMetals and describes the compliance requirements in two paragraphs in its first written\nsubmission. According to China, utilization of an d compliance with the production quota must be\nreported on a monthly basis to the MIIT. In case an enterprise produces without a share of the\nexport quota or beyond its share of the quota, \"it will be ordered to stop producing immediately\nand the sources of ore products will be traced\". Further, \"punishments are imposed on enterprises\nconducting illegal purchases and sales of…ore products\".\n1243 The two legal instruments also\nindicate that \"[f]or those enterprises that produced beyond the plan in 2011 and that with\nenvironmental pollution and safety risk, the plan quota shall be reduced or even cancelled\". On the\nother hand, \"for those enterprises that strictly followed the plan, and meet the requirement of safe\nproduction, the quota may be properly increased\".1244\n7.898. In the Panel's view, the texts of the two batches of the 2012 Directive Production Plan of\nRare Metals appear to set a quota on the production of molybdenum concentrates, and entail\n\n1237 First Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-94).\n1238 Second Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-95).\n1239 First Batch of the 2012 Directive Production Plan of Rare Metals, Annex, (Exhibit CHN-94) and\nSecond Batch of the 2012 Directive Production Plan of Rare Metals, Annex, (Exhibit CHN-95).\n1240 United States' second written submission, para. 278; European Union's second written submission,\npara. 295.\n1241 United States' second written submission, para. 280; European Union's second written submission,\npara. 293.\n1242 European Union's second written submission, paras. 293-294.\n1243 China's first written submission, para. 369; First Batch of the 2012 Directive Production Plan of Rare\nMetals, paras. III, IV and V, (Exhibit CHN-94).\n1244 China's first written submission, para. 368.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\ncompliance requirements as well as sanctions on over-quota production. However, China has not\nput forward any evidence regarding enforcement or sanctions against over-quota production of\nmolybdenum concentrates in 2012. The Panel notes that the text of the 2012 production quota\nmeasures mention sanctions for over-quota production and for violations of the safe production\nrequirements that occurred in 2011. The Pane l considers that China needed to put forward\nevidence, e.g. the text of 2013 production quota, which might have mentioned sanctions for over-\nquota production and for violations of the safe production requirements that occurred in 2012. As\nit stands, the Panel considers that China has not adduced evidence indicating the number of\nenterprises fined for the over production in 2012, and whether and by how much their share of the\nproduction quota was reduced or even cancelled.\n7.899. Moreover, the Panel notes that China has not demonstrated how exactly over-quota\nproducers are sanctioned. For instance, at the Panel's second meeting with the parties in June\n2013, by which time the 2013 annual production qu ota for molybdenum should have been issued\nand allocated to each molybdenum concentrate producer, China had still not indicated whether this\nquota had actually been implemented and if any sanctions had been imposed on those enterprises\nthat produced over their quota limit.\n7.900. The Panel notes that, according to China's own statistics, actual production of molybdenum\nconcentrate reached 267,947 tonnes in 2012, which is approximately 38% higher than the\nproduction quota. In the Panel's opinion, this suggests that the quota was not sufficiently enforced.\nAlthough the Panel has stated earlier that it does not consider that there is an effects test under\nthe second part of Article XX(g), the Panel notes that China does not deny this over production and\nhas not attempted to explain or justify it.\n7.901. In sum, the Panel is not convinced that China imposed enforcement actions capable of\neffectively capturing and sanctioning any violatio n of the production quota. As such, the Panel\nbelieves that the production quota was not a restriction on domestic production as required under\nArticle XX(g).\n7.8.1.3.1.3 Whether China's resource tax is a restriction on domestic production or\nconsumption of molybdenum\n7.902. China refers to the Decision of the State Council to Amend the Provisional Regulations on\nResources Tax\n1245, Implementation of the Provisional Regulations on Resource Tax 1246 and Circular\non Taxation on Adjusting the Applicable Tax Rate of Resource Tax for Tin and Other Ores 1247, and\nindicates that it increased the resource tax imposed on molybdenum miners in February 2012. The\ntax rate after adjustment is 12 RMB per tonne for 1 st class of ore, 11 RMB per ton for 2 nd class,\n10RMB per tonne for 3 rd class, 9 RMB per tonne for 4 th class and 8 RMB per tonne for 5 th class of\nore.1248\n7.903. To support its argument, China provides the following data from a \"major molybdenum\nsupplier\", Jinmu Group, and argues that, faced wi th significantly increased costs for operating\nmolybdenum mines, these mines will want to pass on part, it not all, of these costs to downstream\nconsumers. According to China, the increased resource tax will lead to higher molybdenum prices\nand thus limit domestic consumption.\n1249\nMine Ore grade Extraction in\n2011\nOriginal\nresource tax\nAdjusted\nresource tax\nIncrease in\ncost (RMB)\nJinduicheng Mine 0.099% 10,000,000 6 RMB/ton 10 RMB/ton 40,000,000\nRuyang Mine 0.12% 1,650,000 8 RMB/ton 12 RMB/ton 6,600,000\n\n7.904. The Panel acknowledges that increased costs caused by the tax could, in the long run, lead\nto a reduction in demand and therefore limit pr oduction of molybdenum ores. However, China did\n\n1245 Amendment of the Provisional Regulations on Resource Tax, (Exhibit CHN-26).\n1246 Implementation Rules for the Provisional Regulations on Resource Tax, (Exhibit CHN-27).\n1247 Circular on Adjusting the Applicable Tax Rate of Resource Tax for Tin and Other Ores,\n(Exhibit CHN-112).\n1248 China's first written submission, footnote 547.\n1249 China's first written submission, paras. 372-373 (referring to Zhang Fang, Guo Xiaolu, \"An Analysis\non Resource Tax Adjustment\", China Securities Research, 22 February 2012, (Exhibit CHN-109).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nnot submit any evidence about either the percenta ge of such tax on producers or the price of\nmolybdenum ores 1250 that could have enabled the Panel to assess whether the resource tax is\ncapable of limiting the production or consumption of molybdenum. In other words, the evidence\npresented by China does not explain, on a percen tage basis, how much of the overall cost of\nproduction is attributable to the tax, and how much is due to the companies' scale of production.\nThe Panel considers that evidence from two particular enterprises\n1251 is not sufficient to\ndemonstrate that the resource tax on molybdenum is a real and actual restriction on domestic\nproduction or consumption.\n7.8.1.3.1.4 Whether environmental requir ements are restrictions on domestic\nproduction or consumption\n7.905. China refers to the Opinions on Enhancing the Ecological Protection and Restoration of\nMines1252 in its first written submission and argues that this measure increases the costs of\nmolybdenum production by requiring that, once a mi ning company obtains an extraction right, it\nmust make an ecological recovery deposit. Howeve r, the Panel notes that Exhibit CHN-32, entitled\nOpinion on Strengthening Rare Earth Mine Ecological Protection and Governance and Recovery ,\ndoes not refer to molybdenum.\n7.906. In response to a question from the Panel 1253, China submits that it has four relevant legal\ninstruments applicable to the molybdenum industry relating to emission standards, ecological\nprotection, restoration of mines, and inspection of compliance. These are:\na. Announcement on Admission to Molybdenum Industry of 2012;\nb. Circular on Environmental Protection Inspection of Tungsten and Molybdenum\nEnterprises;\nc. 2012 First Batch of the Directive Production Plan of Rare Metals ;\nd. 2012 Second Batch of the Directive Production Plan of Rare Metals.\n7.907. China claims that these legal instruments contain a link to the Directive Production Plan .\nThe Panel will examine each instrument and assess whether the environmental requirements\ncontained therein are real restrictions on domestic production or consumption.\n7.908. The Announcement on Admission to Molybdenum Industry 1254 elaborates emission\nstandards for pollutants from the molybdenum industry, and establishes compliance with the\nemission standards as one of the conditions for enterprises accessing the molybdenum industry.\nThe Panel notes that it has discussed this legal instrument in the section on \"access conditions\"\nand has expressed doubt about how the access conditions, which apply to newcomers seeking\naccess to the industry, could restrict the activity of molybdenum producers who have already\nentered the molybdenum industry.\n7.909. The Circular on Environmental Protection Inspection of Tungsten and Molybdenum\nEnterprises\n1255 provides for the inspection of molybdenum companies' compliance with applicable\nenvironmental requirements and for the publication of a list of complying companies. However, the\nCircular was issued in April 2013. China has not explained how a legal instrument put in place in\n2013 could restrict extraction, production, or consumption of molybdenum in 2012. This measure\nis not concurrent and is therefore not relevant to the disputed 2012 molybdenum export quota.\n\n1250 The Panel notes that in Molybdenum roasted concentrates: Price Data, (Exhibit CHN-169), China\nprovides molybdenum roasted concentrates price data. However, there is no data available on molybdenum\nores.\n1251 China's first written submission, para. 372.\n1252 Opinions on Enhancing the Ecological Protection and Restoration of Mines, Section IV,\n(Exhibit CHN-32).\n1253 Panel question No. 100.\n1254 Conditions for Admission to the Molybdenum Industry, (Exhibit CHN-108).\n1255 Circular on Environmental Protection Inspection of Tungsten and Molybdenum Enterprises , General\nOffice (Huan Ban Han [2013] No. 442), Ministry of Environmental Protection, 24 April 2013, (Exhibit CHN-217).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.910. Additionally, according to the two batches of the Directive Production Plan of Rare\nMetals1256, only enterprises on the list of enterpri ses that meet the environmental protection\nrequirements published by the Ministry of Environmental Protection are eligible to apply for a share\nof the production quota. However, the Panel fa ils to see how this environmental requirement,\nacting as a qualification requirement, could restrict the amount of molybdenum produced by\nenterprises that have already obtained a share of the production quota.\n7.911. The Panel is aware that any regulatory requirement will impose compliance costs on the\nconcerned enterprises. However, the issue before the Panel is whether China's environmental\nregulatory requirements restrict domestic production or consumption so as to conserve\nmolybdenum.\n7.912. In the Panel's view, China has not addu ced detailed evidence to establish that the\nenvironmental costs it invokes would have any price pass-through effect on consumers such that\nproduction of molybdenum would be restricted. In the Panel's view, environmental costs are\nordinary production costs imposed on enterprises to address market externalities (in the present\ncontext, environmental pollution caused by the production of molybdenum).\n7.8.1.3.1.5 Whether measures for combating illegal mining ar e restrictions on domestic\nproduction or consumption\n7.913. In response to a question from the Panel\n1257, China referred to the following legal\ninstruments and submitted that China has measures in place to combat the illegal mining of\nmolybdenum:\na. Opinions on the Rectification of Metal Mines and Non-Metal Mines according to Law\n1258;\nb. Circular of Hebei Province on Issuing the Pr ogram of the Rectification of Metal and Non-\nMetal Mines according to Law.1259\n7.914. The Panel has addressed these legal inst ruments when considering enforcement action\nagainst the illegal mining of tungsten. The same provisions of the legal instruments are applicable\nto the molybdenum industry. They address illegal mining, violation of safe production conditions,\nand mines with outdated processes, technologies and devices.\n1260\n7.915. The Panel notes that in Exhibit CHN-219, Ch ina provides examples of ways in which it has\ncracked down on illegal molybdenum mining in 2012.\n7.916. The Panel acknowledges that China has made efforts to combat illegal mining. However,\nthe Panel has difficulties seeing how the two above-mentioned legal instruments promulgated at\nthe end of 2012 could be used to combat illegal mining during 2012. Section I(II) of the Opinions\nsets the goal of combating ill egal mining by the end of 2015. 1261 Section III(C) of the Circular\nprovides that the period of rectification and clampdown in Hebei province would be from\n1 February 2013 to 31 December 2014. 1262 Therefore, the Panel considers that while the two legal\ninstruments provide for the future combating of illegal production, they do not establish a\nmechanism applicable or operative in 2012. Reca lling that our task is to examine whether\ndomestic restrictions exist concurrently with the challenged export restrictions, the Panel considers\nthat China has failed to demonstrate that the above-mentioned instruments were capable of\nhaving a \"limiting effect\".\n\n1256 First Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-94), Article II and\nSecond Batch of the 2012 Directive Production Plan of Rare Metals, (Exhibit CHN-95), Article II.\n1257 Panel question No. 109.\n1258 Opinions on the Rectification of Metal Mines and Non-Metal Mines according to Law,\n(Exhibit CHN-218).\n1259 Program of the Rectification of Metal and Non-metal Mines in Hebei Province, (Exhibit CHN-220).\n1260 Opinions on the Rectification of Metal Mines and Non-Metal Mines according to Law, Section II,\n(Exhibit CHN-218) and Program of the Rectification of Metal and Non-metal Mines in Hebei Province, Section II,\n(Exhibit CHN-220).\n1261 Opinions on the Rectification of Metal Mines and Non-Metal Mines according to Law,\n(Exhibit CHN-218).\n1262 Program of the Rectification of Metal and Non-metal Mines in Hebei Province, (Exhibit CHN-220).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.8.1.3.1.6 The cumulative effect of all domestic restrictions and even-handedness\n7.917. China claims that the net effect of the four categories of measures (i.e. access conditions,\nresource taxes, volume restrictions, and environmental requirements) is a lower rate of\nmolybdenum production in China than would otherwise have been the case.\n1263 The Panel recalls\nfirst that subparagraph (g) does not call for an assessment of the effects of the concerned\ndomestic measures. However, even if the Panel wanted to consider this argument, China has not\nexplained in sufficient detail how the net effect of the four categories of measures work together in\nthe way China claims. As such, the Panel has difficulty accepting China's claim.\n7.918. In sum, the Panel does not understand how China's production restrictions on molybdenum\ncan be considered as working together coherently for the purpose of conservation.\n7.8.1.3.2 Whether the 2012 export quota on molybdenum was \"made effective in\nconjunction with\" restrictions on domestic production or consumption\n7.919. The Panel recalls that subparagraph (g) requires that GATT-inconsistent trade measures\nwork together with domestic restrictions to conserve exhaustible natural resources.\n1264 The Panel\nconsiders that the phrase \"made effective in co njunction with\" requires the simultaneous or\nperhaps near-simultaneous operation of the relevant foreign and domestic restrictions. As the\npanel stated in China – Raw Materials , \"to benefit from the justification permitted under\nsubparagraph (g), a Member cannot seek to rely on a future or potential domestic restriction; nor\nwill measures enacted concurrently but which only have effect or are foreseen to have effect only\nin the future respect the Article XX(g) criteria, for they must not only exist concurrently; they must\noperate concurrently.1265\" In the Panel's view, the phrase \"work together with\" also suggests a\ndegree of substantive operative complementarity between the trade and domestic restrictions.\n7.920. China claims that its restrictions on domestic production and consumption of molybdenum\nare substantial, and that domestic users, together with foreign consumers of molybdenum,\ncollectively bear the burden of China's conservation policy. In the Panel's view, China's argument\ndoes not explain how the export quota works together with restrictions on domestic production or\nconsumption for conservation. On the contrary, for the following reasons, the Panel finds that\nChina's export quota and the restrictions on domestic users or producers of molybdenum referred\nto by China do not appear to always work coherently towards the goal of conservation.\n7.8.1.3.2.1 The different product scopes of China's export quota and production quota\n7.921. The Panel notes that the volume restrictions in China's conservation policy on\nmolybdenum, i.e. China's production and export quotas, are imposed on products at different\nstages of the molybdenum industry value-added chain.\nMining products (molybdenum ores\nand concentrates)\nUpstream intermediate products\n(such as molybdenum oxide)\nDownstream (such as finished\nstainless steel products)\nExport quota\nProduction restrictions\n\n7.922. As represented in the above table, Ch ina imposes a production quota on molybdenum\nconcentrates, while China's export quota covers not only molybdenum concentrates but also semi-\nprocessed molybdenum products such as molybdenum oxides and hydroxides, ammonium\nmolybdates, other molybdates, ferro-molybdenum, molybdenum powders, and unwrought\nmolybdenum, including bars and rods obtained simply by sintering, etc.\n1266\n7.923. China argues that it must include molybde num intermediaries in its export quota to avoid\nthe possibility of circumvention through export ation of molybdenum products after some basic\nprocessing.1267 China does not provide any further explanation of the rationale for setting the\n\n1263 China's first written submission, para. 361.\n1264 Appellate Body Reports, China – Raw Materials, para. 356.\n1265 Panel Reports, China – Raw Materials, para. 7.455 (emphasis original).\n1266 China's response to Panel question No. 100.\n1267 China's response to Panel question No. 132.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nproduct scope of its 2012 export quota on molybdenum differently from that of its domestic\nproduction restriction.\n7.924. The Panel also notes that in announcing the second batch of the export quota for 2012,\nChina indicated that as of 1 August 2012, export companies allocated quota shares for specific\nmolybdenum products would be allowed to adjust their export quota allowances to apply to\nmolybdenum products higher up in the industrial chain, without first seeking authorization from\nMOFCOM.\n1268 These quota shares may be freely allocated to molybdenum products higher in the\nindustrial chain, but may not be reallocated to molybdenum products with a lesser degree of\nprocessing.\n7.925. In the Panel's opinion, this inconsistency appears to be linked to China's industrial policy,\nwhich requires molybdenum intermediaries for use as inputs in the national production of value-\nadded goods often destined for exports. The Panel does not see any connection with conservation\nconsiderations. The Panel has difficulty seeing how the 2012 export quota, with the current\nproduct scope on molybdenum intermediaries, \"work[s] together with\" the production quota on\nmolybdenum for conservation.\n7.926. In the Panel's view, China's 2012 export quota was designed to reserve a certain amount\nof specific molybdenum intermediaries for use by domestic downstream industries. In the Panel's\nopinion, this is industrial policy. Although the Panel recognizes that WTO Members have the right\nto pursue industrial policies, industrial poli cies cannot be implemented under the guise of\nconservation. Taking into account the design, stru cture, and architecture of China's export quota\nand the production quota, the Panel considers th at China has failed to explain how the product\nscope of its export quota works together with its production quota on molybdenum concentrates\nfor the purpose of conservation. The Panel cannot identify any functional and operational\ncomplementarity between China's export quota and its alleged domestic restrictions for enhancing\nconservation.\n7.8.1.3.2.2 A global quota while demand may be product specific\n7.927. The Panel recalls that China imposes a global export quota (in addition to export duties) on\nexports of molybdenum. The export quota for molybdenum is further allocated among the\nfollowing three molybdenum product categories: (1) primary raw molybdenum; (2) chemical\nmolybdenum products; and (3) molybdenum products.\n1269 One aspect of the operation and\napplication of China's export quota system the Panel finds troubling is the fact that molybdenum\nexport quota shares cannot be exchanged amongst exporters or reallocated to different exporters\nif unused. Under China's Regulations on the Administration of the Import and Export of Goods , the\nholder of an export quota is required to return any unused quota volume by 31 October of the year\nfor which the export quotas have been issued.1270 Exporting enterprises may be subject to sanction\nif they fail to do so and also fail to fully use their quota by the end of the year.1271 Enterprises may\nalso face sanctions for exporting without permissi on, exceeding the quantitative limitations, or\nbuying or selling quota certificates or other documents without approval. Thus, unused export\nquota shares can only be handed back to the Ch inese authorities, from which point they may be\nsold domestically.1272 However, as noted above, the notice announcing the \"second batch\" export\nquota clarified that, as of 1 August 2012, the export companies allocated quota allowances for\nspecific molybdenum products may adjust the export quota allowances to apply to molybdenum\nproducts higher in the industrial chain, wi thout first seeking authorization from MOFCOM. 1273\n\n1268 The Notice indicates the industrial chain for molybdenum proceeds as follows: molybdenum furnace\nmaterials (primary raw molybdenum) molybdenum chemical products molybdenum products. See 2012\nSecond Batch Export Quotas of Tungsten, Antimony and Other Non-Ferrous Metals, (Exhibits CHN-165, JE-60).\n1269 2012 First Batch Export Quotas of Tungsten, Antimony and Other Non-Ferrous Metals\n(Exhibits CHN-99, JE-59); 2012 Second Batch Export Quotas of Tungsten, Antimony and Other Non-Ferrous\nMetals (Exhibits CHN-165, JE-60).\n1270 Regulations on the Administration of the Import and Export of Goods, (Exhibits CHN-54, JE-50),\nArticle 42.\n1271 Regulations on the Administration of the Import and Export of Goods, (Exhibits CHN-54, JE-50),\nArticle 42.\n1272 China's response to Panel question No. 36.\n1273 The Notice indicates the industrial chain for molybdenum proceeds as follows: molybdenum furnace\nmaterials (primary raw molybdenum) molybdenum chemical products molybdenum products. See 2012\nSecond Batch Export Quotas of Tungsten, Antimony and Other Non-Ferrous Metals, (Exhibits CHN-165, JE-60).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nAccording to the notice, these quota shares may be freely allocated to molybdenum products\nhigher in the industrial chain, but may not be reallocated to molybdenum products with a lesser\ndegree of processing.\n7.928. In the Panel's opinion, this is problematic for two reasons. First, the \"first batch\" export\nquota shares for molybdenum, which indicates the specific amount of specific categories of\nmolybdenum allocated to specific enterprises\n1274, provides no flexibility for exporters to fulfil the\ndemand for any specific form of molybdenum product other than the amount allocated to specific\nenterprises.1275 Second, the \"second batch\" allows only reallocation of export quota shares to\nmolybdenum products higher in the industrial chain. The result of allocating specific products to\nspecific enterprises is that the overall export quota volume may be unused, and thus partly\navailable for domestic consumption, while foreign demand may still be unsatisfied for one or more\nspecific molybdenum products. It is therefore possible that the export quota for molybdenum\nmight go unfilled even though demand for one or more molybdenum products remains unsatisfied.\n7.929. In the Panel's opinion, this inconsistency appears to be linked to China's industrial policy,\nwhich requires molybdenum intermediaries for use as inputs in the national production of value-\nadded goods often destined for exports. The Panel does not see any connection with conservation\nconsiderations. The Panel has difficulty seeing how the 2012 export quota, with the current\nproduct scope on molybdenum intermediaries, work together with\" the production quota on\nmolybdenum for the purpose of conservation.\n7.930. In the Panel's view, China's 2012 export qu ota seems rather designed to reserve a certain\namount of specific molybdenum intermediaries for use by domestic downstream industries. In the\nPanel's opinion, this is industrial policy. Although the Panel has recognized that WTO members\nhave the right to pursue industrial policies, in dustrial policies cannot be implemented under the\nguise of conservation. Taking into account the design, structure, and architecture of China's export\nand production quotas, the Panel considers that China has failed to explain how the product scope\nof its export quota works together with its prod uction quota on molybdenum concentrates for the\npurpose of conservation. The Panel cannot identify any functional and operational complementarity\nbetween China's export quota and the domestic restrictions referred to by China for enhancing\nconservation.\n7.8.1.3.2.3 Policies on domestic consumption and foreign consumption of molybdenum\n7.931. In the Panel's view, the fact that unused export quota volumes are allowed to be\nconsumed domestically, while there are no measures restricting domestic consumers from\nconsuming some or even all of the volume of molybdenum products that were designated for\nexport, suggests that China has not been ev en-handed in imposing foreign and domestic\nrestrictions. Although, as the Panel has explained above, the mere fact that unused export quota\nvolumes can be sold into the domestic market does not, of itself, indicate that China's export\nquota does not \"relate to\" conservation, it does s eem to favour domestic over foreign users. The\nPanel considers that there is nothing in the design and structure of the conservation policy\nimposed on domestic consumers to counterbalance the policy that allows domestic consumption of\nthe unused export quota of molybdenum products. Th erefore, there is no even-handedness in the\nimposition of export quota and the domestic restrictions referred to by China.\n7.932. The Panel also observes that there was no limitation on the production of molybdenum\nconcentrates prior to 2010, although there has been an export quota on molybdenum products\nsince 2007. China does not argue that it has imposed any restriction on the domestic consumption\nof molybdenum. The Panel notes that prior to 2010, China's domestic molybdenum downstream\nusers (such as finished stainless steel producers) could consume an unlimited amount of\nmolybdenum products. After 2010, the available amount of molybdenum was maintained at a level\nat least twice that of the yearly molybdenum export quota.\n1276 In the Panel's view, this makes it is\ndifficult to understand how China's export quota and domestic restrictions work together to\nenhance conservation.\n\n1274 Annex 2 of 2012 First Batch Export Quotas of Tungsten, Antimony and Other Non-Ferrous Metals\n(Exhibits CHN-99, JE-59).\n1275 Annex 2 of 2012 First Batch Export Quotas of Tungsten, Antimony and Other Non-Ferrous Metals\n(Exhibits CHN-99, JE-59).\n1276 Molybdenum Data (1999-2012) (Exhibit CHN-139 updated), (Exhibit CHN-224).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.933. In the Panel's opinion, restrictions im posed on producers of molybdenum concentrates\naffect both domestic and foreign consumers, wh ile the export quota on molybdenum affects only\nforeign consumers. From a structural perspective, China's production restrictions therefore do not\ncounterbalance its export restrictions, and so do not appear to work well together for the purpose\nof conserving exhaustible molybdenum resources. Moreover, export quotas are not the only\nrestrictions imposed by China on exports of intermediate molybdenum products. China also\nimposes export duties on intermediate molybdenum products. The Panel will discuss the combined\neffect of export quotas and export duties on molybdenum in its analysis under the chapeau of\nArticle XX. Additionally, in contrast to its export restrictions on lower value-added products, China\nprovides tax and export incentives through, for example, refunds of the VAT upon the exportation\nof higher value-added molybdenum products.\n1277 Such tax incentives can only stimulate production\nfor export, and seem to act contrary to conservation goals and restrictions.\n7.8.1.4 Even-handedness\n7.934. The Panel recalls that subparagraph (g) of Article XX also requires even-handedness in the\nimposition of domestic restrictions for conservation. The Panel agrees with China that China's\ndomestic regulations are inherent to any conservation programme and may be argued to be\ncapable of imposing concurrent real restriction on consumption or production of molybdenum.\nHowever, the Panel fails to see how such domestic actions can be said to be capable of imposing a\nburden even-handed with that resulting from its export quotas on molybdenum so that the export\nquota and its related domestic restrictions on molybdenum work together for conservation. The\nPanel believes that the restrictions imposed on producers of molybdenum affect both domestic and\nforeign consumers, while the export quota on molybdenum affects only foreign consumers. From a\nstructural perspective, China's production restrictions therefore do not counterbalance its export\nrestrictions and do not appear therefore to work well together.\n7.935. Additionally, in the Panel's view the fact that any unused export quota volume is allowed to\nbe consumed domestically, while there are no restrictions on domestic consumers consuming the\nmolybdenum products designated for export in the export quota, suggests that China has not\nimposed even-handed restrictions on domestic an d foreign consumption. Although, the mere fact\nthat unused export quota volumes can be sold into the domestic market does not, of itself,\nindicate that China's export quota does not \"rel ate to\" conservation, it does seem to favour\ndomestic over foreign users. The Panel considers that there is nothing in the design and the\nstructure of the conservation policy imposed on domestic consumers to counter-balance the policy\nthat allows domestic consumption of the unused export quota of molybdenum products. Therefore,\nthere is no even-handedness in the imposition of export quota and the domestic restrictions\nreferred to by China.\n7.8.1.5 Conclusion\n7.936. As explained above, the Panel is of the vi ew that all the elements of subparagraph (g) aim\nat ensuring that the challenged measure works with domestic restrictions for conservation and\nensures that its burden is distributed in an even-handed manner between foreign and domestic\nusers. The Panel has reviewed the design and ar chitecture of China's export quota system on\nmolybdenum, and has considered whether the export quota relates to conservation and whether it\nworks jointly with domestic restrictions for conservation, and is therefore justified under\nArticle XX(g).\n7.937. In the Panel's opinion, it is difficult to conclude that China's export quota relates to the\nconservation of molybdenum, or that it is made effective in conjunction with restrictions on\ndomestic production or consumption.\n7.938. With respect to the requirement that measures \"relate to\" conservation, the Panel is not\nconvinced by China's claim that the texts of its export quota measures themselves demonstrate\nthe existence of a \"substantial\", \"close\" and \"ge nuine\" relationship with the goal of conserving\nexhaustible molybdenum resources. As the Panel has explained, many of the references pointed to\nby China are indirect, referring not to the goal of conservation but to the Foreign Trade Law, which\nlists a number of grounds justifying the imposition of an export quota. As such, these references\n\n1277 Japan's second written submission, paras. 261 and 294; United States' comments on China's\nresponse to Panel's question No. 103.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\ndo not provide sufficient evidence of the challe nged measures' relationship with the goal of\nconserving molybdenum. Moreover, even those texts that do refer to conservation simply refer to\nthe \"goal\" of conserving exhaustible resources, but fail to explain how that goal is furthered or\npromoted through the imposition of an export quot a. As the Panel has explained, such references\nto the goal of conservation, without any further explanation or demonstration as to how the export\nquota is designed in such a way as to assist, support, or enhance China's conservation\nprogramme, do not suffice to establish the requisite relationship between the export quota\nmeasures and the conservation objective in Article XX(g).\n7.939. The Panel is also not convinced that China's molybdenum export quota is made effective in\nconjunction with restrictions on domestic production or consumption.\n7.940. First, the Panel recalls that there was no extraction limit imposed on molybdenum in 2012.\nAlthough China did impose a production cap in 2012, the Panel recalls that it has been unable, on\nthe basis of the evidence presented, to find that this cap constituted a \"restriction\" within the\nmeaning of Article XX(g). China has not provided th e Panel with evidence of expected demand for\nmolybdenum during 2012, and as such the Panel cannot determine whether the production\nrestriction China imposed on molybdenum was set at a level lower than the expected demand for\nthe period of time over which the restriction was intended to apply (here, 2012).\n7.941. Second, the Panel believes that by setting the level of the export quota significantly below\nthe level of its production cap, China has effectively set aside specific quantities of molybdenum\nproducts for domestic consumption. Far from rese rving specific quantities for export, the export\nquota scheme seems to the Panel to allow domestic users to purchase molybdenum that might\notherwise be exported. Adding to this the fact that unexported molybdenum products are sold into\nthe domestic market, it appears to the Panel that the design and structure of China's molybdenum\nexport quota system tends to support and stimulate rather than restrict domestic demand and\nconsumption.\n7.942. Third, the Panel is not convinced that the various categories of alleged restrictions on\ndomestic consumption, including the entry conditions, resource tax, and environmental\nregulations, are capable of restricting domestic production or consumption in an even-handed\nmanner. In the first place, some of the measures pointed to by China were not in force at the\nsame time as the challenged export quota, and as such cannot be said to have \"worked together\"\nwith such quota. Additionally, as the Panel has explained, entry requirements may be effective at\ncontrolling the number of participants in the mo lybdenum industry, but they do not appear to\nrestrict in any way the amount of molybdenum products that enterprises already operating in the\nmolybdenum industry can extract and/or produce. Finally, with respect to China's resource tax, the\nPanel has explained that regulatory costs are a no rmal part of doing business. In any case, China\nhas not established the effective level (and thus the potential restrictive impact) of this tax, and\nhas put forward as evidence only one example rela ting to one company. In the Panel's opinion,\nsuch limited evidence is insufficient to meet China's burden of proof. At any rate, as the Panel has\nexplained above, the evidence provided by Chin a does not allow a clear assessment of the tax's\nrestrictive effect. Without details about the price of the tax on a percentage basis, the Panel is\nunable to determine to what extent the tax increa sed the costs borne by the Jinmu Group, and to\nwhat extent that company's increased costs are attributable to other factors, including expanded\nproduction. As such, the Panel has insufficient evidence to conclude that the tax represents a\nrestriction on domestic production or consumption.\n7.943. Finally, as the Panel has discussed in deta il, the product scope of China's export quota,\nwhich is more extensive than the scope of its production quota, and in particular the fact that\nmolybdenum intermediates are not covered by the production quota but are covered by the export\nquota suggests to the Panel that the real goal of China's molybdenum quota system is to promote\nChinese economic development. At the very least, the different product scopes of the export and\nproduction quotas prevent the Panel from concluding that the two caps work together well for the\npurpose of conserving molybdenum. WTO-consistent alternative measures could provide China\nwith equivalent conservation benefits.\n7.944. In sum, the Panel concludes that China's export quota on molybdenum does not \"relate to\"\nthe conservation of molybdenum, and is not made effective in conjunction with restrictions on\ndomestic production or consumption. Nevertheless, in order to fulfil its obligation under Article 11\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nof the DSU, the Panel will now proceed to consider whether, if China's export quota were justified\nunder Article XX(g), it also satisfies the requirements of the chapeau of Article XX.\n7.8.2 Application of the chapeau of Articl e XX of the GATT 1994 to China's export quota\non molybdenum\n7.8.2.1 Whether China has demonstrated th at its export quota on molybdenum was not\napplied in a manner that constitutes arbitr ary or unjustifiable discrimination or a\ndisguised restriction on international trade\n7.945. The Panel begins by noting that China has not developed its arguments on molybdenum to\nthe same extent as those on rare earths. Nevertheless, just as in the context of rare earths, China\nneeds to show that its export quota on molybdenum is not applied in a manner that would\nconstitute arbitrary or unjustifiable discrimination between countries where the same conditions\nprevail or a disguised restriction on international trade.\n7.946. China argues that in 2011, its molybdenum export quota was not completely used;\ninformation from China Customs on actual exports in 2011 shows that actual exports reached only\n54.6% of the 2011 quota. According to China, th is is evidence that the volume of molybdenum\nexports set in the 2011 molybdenum export quota was more than sufficient to meet foreign\ndemand, and this demonstrates the absence of any disguised restriction on trade in the application\nof the 2012 molybdenum export quota.\n1278\n7.947. China submits that the absence of a disgui sed restriction on trade is further evidenced by\nthe fact that enterprises that wanted to obta in a share of the 2012 molybdenum quota had to\napply for a share of the quota, and that MOFCOM allocated the quota taking into account the\n\"export performance, the quota utilization rate, the operation capacity, the production scale and\nthe resource status … of that commodity\". A ccording to China, by requiring exporters to\ndemonstrate proven export performance, the quot a system sought to select exporters in China\nthat were capable of supplying the export quota share allocated to them.1279\n7.948. In its second written submission 1280, China provides information regarding the price of\nmolybdenum, and argues that domestic molybdenum pr ices are consistently higher than prices of\nChinese and non-Chinese molybdenum available on the European market. China argues that this\ndemonstrates the absence of any causal connection between its molybdenum export quota and\nany commercial advantage enjoyed by downstream Chinese consumers of molybdenum.\n1281\n7.949. The Panel notes also that only the European Union has developed separate arguments\nunder the chapeau of Article XX for China's molybdenum export quota. The United States and\nJapan rebut China's arguments under the chapeau of Article XX for all three products in the same\ndiscussion, although Japan tends to focus its discussion on China's export quota on rare earths.\n7.950. The European Union argues that China has failed to meet its burden of showing that the\nexport quota on molybdenum satisfies the conditions of the chapeau, notably with respect to the\nrequirement that GATT-inconsistent measures not be applied in a manner which would constitute\narbitrary or unjustifiable discrimination. In assessing the trade-distortive impact of China's\nmolybdenum export quota, the European Union insists that China did not, and continues not to,\ndisclose the criteria on the basis of which the molybdenum quota is set each year, thus making its\nyearly decisions entirely arbitrary and unpredictable and thereby accentuating their negative\neffects.\n7.951. With respect to the requirement that GATT-inconsistent measures not constitute a\ndisguised restriction on international trade, the complainants note that China relies on the\narguments it made with respect to the non-utilization of the rare earths export quota, i.e. that its\nexport quota on molybdenum has not been fully utilized in 2011 and 2012, and hence cannot be\nconsidered as a disguised restriction.\n1282 The complainants submit that, for the reasons they\n\n1278 China's first written submission, para. 378.\n1279 China's first written submission, para. 379.\n1280 Response to Panel question No. 42.\n1281 China's second written submission, para. 191.\n1282 European Union's second written submission, para. 310.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nadvanced in the context of rare earths, China's arguments concerning the relevance of actual\nquota consumption rate should be rejected.1283\n7.952. As noted in our discussion on the legal test under Article XX(g) above, WTO jurisprudence\nrecognizes that in a dispute the same facts can lead to a conclusion on both unjustifiable or\narbitrary discrimination and/or disguised restrict ions on trade, and that often these concepts\noverlap. In the present dispute, China's own argumentation intertwines these two overlapping\nconcepts. The Panel considers that unjustified discrimination can constitute a disguised restriction\non trade, but a disguised restriction on trade may ex ist even if there is no discrimination. For ease\nof exposition, the Panel will examine China's molybdenum export quota under both of these\nconcepts together.\n7.953. All parties agree that the requirement that a measure not be \"applied in a manner which\nwould constitute arbitrary or unjustifiable discrimination between countries where the same\nconditions prevail\" is a requirement that the measure not discriminate among other Members, or\nbetween other Members and the Member maintaining the measure.\n1284 In light of the legal test\ndiscussed earlier, the Panel will examine whether China has demonstrated that the application of\nits export quota on molybdenum does not cause arbitrary or unjustified discrimination or a\ndisguised restriction on international trade. The Panel will first determine whether there is\ndiscrimination and/or a disguised restriction on international trade, then whether such\ndiscrimination or disguised restriction is based on, or explained by, a conservation rationale, and\nfinally whether WTO-consistent alternative measures exist, before concluding on China's\ncompliance with the chapeau of Article XX.\n7.954. The Panel concluded above, in the context of analysing the export quota on rare earths,\nthat the evidence submitted by China on the non- use of the quota and price differences does not\nsuffice to enable the Panel to conclude that the design and architecture of China's export quota do\nnot lead to discrimination; this is also the case with respect to China's export quota on\nmolybdenum.\n7.955. China asserts that its export quota is no t a disguised restriction on international trade\nbecause it was not filled. According to China, it follows from this fact that the quota cannot have\nhad any effect on access to supplies by foreign purchasers of Chinese molybdenum.\n1285 As\ndiscussed in the context of the rare earths export quota, the Panel is not convinced that an unfilled\nquota is sufficient evidence of non-discrimination and/or the absence of trade restrictiveness in the\ncircumstances of this case. Export quotas (and duties) on molybdenum have been in place since\n2007. It is highly likely that these measures have altered normal conditions of competition and\nhave imposed a disproportionate cost on foreign consumers of molybdenum over time, including\nthrough higher uncertainty costs for foreign consumers than domestic, thereby depressing foreign\ndemand and resulting in the unfilled quota. The circumstances of this case lead the Panel to\nconclude that, at least in part, China's export quota is unfilled because of the cumulative effects of\nChina's export restrictions.\n7.956. In addition, China asserts that, since January 2007, domestic prices of roasted\nmolybdenum concentrate have been \" consistently higher than prices paid by European\npurchasers\".\n1286 The conclusion drawn by China is that \"[t]he price comparison … refutes the\nnotion that China's export quota for molybdenum provided Chinese domestic users with any\npricing advantage vis-à-vis their European competitors\". When the Panel asked China for details\non its pricing methodology for molybdenum, the Pa nel understood China's response to mean that,\nfor all three products including molybdenum, Metal Pages (China's source of price data for\nmolybdenum)\n1287 uses estimated pricing that may well not reflect actual pricing 1288, and that \"this\npractice could lead to both the over-estimation of the likely foreign price as well as the under-\n\n1283 European Union's second written submission, para. 312.\n1284 Appellate Body Report, US – Gasoline, pp. 23-24, DSR 1996:I, 3, pp. 21-22; parties' responses to\nand comments on Panel question No. 47.\n1285 China's second written submission, para. 203.\n1286 China's second written submission para. 191.\n1287 China's responses to Panel question No. 85.\n1288 China's Second Written Submission, paragraph 126; China's response to Panel question Nos. 40-42\nand 85.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nestimating of the foreign price.\"1289 Thus, the Panel does not consider it appropriate to rely on this\nprice data evidence to establish non-discrimination.\n7.957. The Panel recalls that the export quota system requires exporters to return unexported\nquantities of molybdenum to Chinese authorities by 31 October, 1290 after which point they may be\nsold into the domestic market, 1291 but exporting firms are not entitled to exchange their export\nquota shares with other exporting firms. In the Panel's opinion, this results in discrimination\nagainst foreign users, since this functioning of the export quota allows and perhaps even\nencourages domestic stockpiling of molybdenum, while ensuring that exporters are never able to\nbuild up their own stocks of Chinese molybdenum for export. To the Panel, this is clearly\ndiscriminatory, insofar as it restricts the access of foreign consumers far more than that of\ndomestic consumers.\n7.958. The Panel also observes that China im posed no limitation on the production of\nmolybdenum concentrates prior to 2010, and so prior to 2010 China's domestic molybdenum\ndownstream users (such as finished stainless steel producers) could consume unlimited amounts\nof molybdenum products. After 2010, the available amount of molybdenum – that is, the amount\nallowed to be produced under the production plan – measured in metal content – has been\nmaintained at a level approximately four times higher that of the molybdenum export quota.\n1292\nThe Panel notes as well that China has been maintaining an export quota on molybdenum products\nsince 2007. For all of these reasons, it is difficult for the Panel to accept China's argument that the\nmain goal of its export quota is to enforce its production quota. Rather, in the Panel's view, China's\nexport quota system seems designed and operated i n s u c h a w a y t h a t i t w i l l a l w a y s f a v o u r\ndomestic producers.\n7.959. Finally, the Panel is concerned about the uneven and unbalanced structure of China's\nexport quota measures. As the complainants have noted throughout this dispute, the measures\nthat China alleges constitute \"restrictions on dome stic production on consumption,\" and especially\nChina's extraction and production quotas and its taxes on extraction, also restrict foreign\nconsumption of Chinese raw materials. In other words, every restriction on domestic consumption\nof Chinese raw materials also applies to foreign consumption. On the other hand, China's export\nquotas impact only on foreign users: there is no corresponding burden, such as a domestic\nconsumption quota, imposed by China on Chin ese consumers. Regardless of whether such\nstructural imbalance meets the \"even-handedness\" requirement under subparagraph (g) of\nArticle XX, the Panel believes that it is clearly discriminatory, insofar as it imposes added burdens\non foreign consumers simply on the basis of thei r being located outside of China. Moreover, even\naccepting quod non that, as China alleges, the quota in 2012 had no actual discriminatory impact,\nthe Panel is still of the view that the very st ructure of the export quota system, which imposes\nunique and special burdens on foreign consumers on the basis of their being located outside of\nChina, is discriminatory, in violation of the requirements of the chapeau of Article XX.\n7.8.2.2 Whether the rationale for the discrimination or the disguised restriction on trade\ncreated by the application of China's expo rt quota on molybdenum is concerned with\nconservation\n7.960. The Panel now proceeds to determine whether the discrimination that results from the\napplication of China's export quota on molybdenum is nevertheless justified and rationally linked\nto the goal of conserving exhaustible molybdenum resources. In Brazil – Retreaded Tyres , the\nAppellate Body explained that arbitrary or unjusti fiable discrimination exists when the reason(s)\n\n1289 China's answer to Panel question No. 85. The Panel recalls that, as explained in para. 6.21 of its\nReports, on 17 June 2013, it sent an email to the parties revising its question No. 85 and asking China to\nprovide more pricing information for tungsten and molybdenum as well as for rare earths. Even if China\nintended not to respond to the Panel's request for further pricing information on molybdenum, the Panel is still\nentitled to raise the same doubts with respect to the reliability of the Metal Pages data on molybdenum as it\nraises with respect to the data on rare earths, since Metal Pages contains data on all three products at issue,\nand China has relied on Metal Pages data in its arguments on all three products.\n1290 Regulations on the Administration of the Import and Export of Goods, (Exhibits CHN-54, JE-50),\nArticle 42.\n1291 China's response to Panel question No. 36.\n1292 Molybdenum Data (1999-2012) (Exhibit CHN-139 updated), (Exhibit CHN-224). When measured by\ngross weight, the production plan has been maintained at a level a little less than twice that of the export\nquota.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nfor discrimination bear(s) no rational connection to the Article XX objective on the basis of which a\nMember claims to be regulating, or contradicts or undermines that objective. 1293 This is why the\ndetermination whether a measure is discriminatory in violation of the chapeau of Article XX should\nnot depend exclusively on its quantitative impact, but must consider also whether the rationale for\nthe discrimination relates to the legitimate objective that the measure allegedly pursues (in this\ncase, the conservation of exhaustible natural resources). To determine whether China has\ndemonstrated that its export quota on molybdenum does not impose unjustifiable discrimination in\nviolation of the chapeau of Article XX, the Panel needs to consider whether the rationale that China\nprovides for the discrimination relates to the alleged conservation objective of the export quota.\n7.961. In the Panel's view, China has not demo nstrated that the distortion created by the\napplication of its export quota system is merely incidental to its conservation policy considerations.\nRather, the discrimination seems to result from aspects of the export quota systems that reflect\nindustrial policy considerations. For example the fact that the quota system requires unused export\nquotas to be returned to Chinese authorities\n1294 and allows such returned volumes to be sold in the\ndomestic market 1295 seems to point towards industrial policy considerations, especially when\nexporting firms can only trade their unused export quota share in favour of molybdenum products\nhigher in the industrial chain (i.e. further-processed molybdenum products).\n7.962. Although China has since 2010 imposed a production quota on molybdenum, China's own\ndata shows that the actual level of extraction, measured in tonnes, has consistently exceeded the\nproduction plan. In 2012, the production plan was set at 194,520 tonnes, but the actual level of\nextraction was 267,947 tonnes.\n1296 This raises the question what is being done with extracted\nmolybdenum ores that cannot legally be produced (i.e. further processed). Since they cannot\nlegally be exported, the Panel presumes that they are being stockpiled in China for later use by\ndomestic value-added industries. All of this suggests to the Panel that very significant quantities of\nmolybdenum ores are being extracted and stockpiled in China, and thus that the first threat to the\nconservation of Chinese molybdenum reserves is domestic. In these circumstances, it is difficult to\nunderstand the function of an export quota, sinc e the most serious conservation risk does not\ncome from foreign demand but domestic activity inside China. For the Panel, the main effect of\nChina's export quota is to guarantee a minimum amount for domestic consumption from the\nlimited amount of the extracted molybdenum. The Panel fails to see any conservation\nconsiderations in this aspect of China's export quota system.\n7.8.2.3 WTO-consistent alternatives\n7.963. As noted earlier, in the Panel's view, discrimination can also be arbitrary or unjustifiable\nwhere alternative measures exist which would have avoided or at least diminished the\ndiscriminatory treatment. In the context of conducting an analysis under the chapeau of Article XX\nof a measure provisionally justified under subparagraph (g), the Appellate Body has examined\nwhether a WTO-consistent or less trade-restrictive alternative is available that would enable the\nregulating Member to achieve its legitimate poli cy goals with the same degree of efficiency and\nefficacy.\n1297\n7.964. The complainants put forward various altern atives that China could use instead of export\nquotas which, they claim, would provide China with the same level of conservation effectiveness\nwhile avoiding the discriminatory and distorting e ffects that its export quotas have on foreign\nusers. The parties have expanded on these alternatives, which include tracing, export licensing,\nand the imposition of a domestic consumption limit, in response to a Panel question\n1298, and the\ncomplainants discussed alternative measures for China's rare earths, tungsten, and molybdenum\n\n1293 Appellate Body Report, Brazil – Retreaded Tyres, para. 226.\n1294 Regulations on the Administration of the Import and Export of Goods, (Exhibits CHN-54, JE-50),\nArticle 42.\n1295 China's response to Panel question No. 36.\n1296 Molybdenum Data (1999-2012), (Exhibit CHN-224).\n1297 Appellate Body Reports, US – Gasoline, pp. 25-29, DSR 1996:I, 3, pp. 23-27 and US – Shrimp,\npara. 171 (\"The Inter-American Convention thus provides convincing demonstration that an alternative course\nof action was reasonably open to the United States for securing the legitimate policy goal of its measure a\ncourse of action other than the unilateral and non-consensual procedures of the import prohibition under\nSection 609\".).\n1298 Panel question No. 123.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nexport quotas together. The Panel therefore refers to its discussion and analysis of alternative\nmeasures in section 7.6.3.3 above of its findings on the rare earths export quotas.\n7.965. China did not comment extensively on these various, allegedly non-discriminatory\nalternatives, except to say that it already uses an export licensing system in addition to its export\nquota system. China also argues that export quotas enhance the functioning of China's\nconservation policy through supply management. A ccording to China, nothing is able to replace\nquotas because export quotas fulfil a number of additional functions.1299\n7.966. The Panel notes that China has not commented on the complainants' claim that all their\nsuggested alternatives are WTO-consistent, whereas the export quota China uses is inconsistent\nwith Article XI:1 of the GATT 1994. In the Panel's opinion, even if China's export quotas were as\neffective as the alternatives suggested by the complainants, China would nonetheless need to\nexplain why such WTO-consistent or less trade-restrictive alternatives are not available to China.\n7.967. The Panel recalls again that it is not as ked to assess the efficiency or effectiveness of\nChina's conservation policy, but only to determine whether the export quotas it argues are part of\nits conservation programme are really about conservation rather than another policy reason, and\nwhether any discrimination caused is justified on the basis of conservation. This requires the Panel\nto consider whether China has explored the use of WTO-consistent or less trade-restrictive\nalternatives that could achieve the same conservation goal with the same efficiency and\neffectiveness. In the Panel's view, China has not fully explored and justifiably rejected the\nalternatives proposed by the complainants.\n7.968. In the Panel's view, China has not demo nstrated that the distortion caused by the\noperation of its export quota or its discriminatory treatment of foreign users of molybdenum\nextracted in China is based on conservation considerations. For the Panel, such trade distortion\ncaused by the export quota was both foreseeabl e and avoidable, including through the use of\nWTO-consistent alternative means of licensing, borders control, and policing, and/or through the\nimposition of domestic taxes and consumption restrictions that would at least reduce the level of\ndiscrimination against foreign users.\n\n7.8.2.4 Conclusion\n7.969. In view of the above, the Panel concludes that China has not demonstrated that its 2012\nexport quota on molybdenum was not applied in a manner that constituted arbitrary or\nunjustifiable discrimination or a disguised restriction on international trade.\n1300\n7.8.3 Overall conclusion on China's export quota on molybdenum\n7.970. For the reasons given above, the Panel concludes that China's export quota on\nmolybdenum is inconsistent with Article XI:1 of the GATT 1994 and Paragraphs 162 and 165 of\nChina's Working Party Report. The Panel also concludes that China's export quota on molybdenum\nis not justified under either subparagraph (g) or the chapeau of Article XX of the GATT 1994.\n7.9 Trading rights\n7.9.1 Introduction\n7.971. In addition to their claims concerning the imposition of export quotas on rare earths,\ntungsten, and molybdenum, the complainants claim that particular aspects of China's\nadministration of certain of the export quotas breach China's \"trading rights commitments\".\n7.972. The complainants argue that requirements to demonstrate export performance, to\ndemonstrate prior export experience, and to comply with a minimum capital requirement, so as to\n\n1299 See the Panel's discussion on the application of the chapeau to China's export quota on rare earths,\nabove section 7.6.3.\n1300 In view of the nature of the export quota system described above, the Panel's finding is with respect\nto the series of measures comprising the relevant framework legislation, the implementing regulations, other\napplicable laws and the specific annual measures imposing the export quotas existing at the date of the Panel's\nestablishment.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nbe eligible to participate in the quota allocation process for rare earths and molybdenum quotas,\nare inconsistent with Paragraph 5.1 of China's Accession Protocol and Paragraphs 83 and 84 of\nChina's Working Party Report, as incorporated in to Paragraph 1.2 of China's Accession Protocol.\nThe complainants submit that China expressly undertook in its Accession Protocol and Working\nParty Report to eliminate these specific requirements, and they maintain that China is obliged to\naccord to all foreign enterprises and individuals, as well as to all enterprises in China, the right to\nexport goods except those listed in Annex 2A of the Accession Protocol. The complainants' claims\nare made in respect of rare earths and molybdenum. These products are not listed in Annex 2A.\nThe claims do not extend to tungsten, which is listed in Annex 2A.\n1301\n7.973. The European Union makes an addition al claim that the prior export performance\nconditions that China imposes on applicants for the molybdenum export quota violate China's\ncommitments in Paragraph 84(b) of China's Work ing Party Report. According to the European\nU n i o n , b y v i r t u e o f 2012 Application Qualifications and Application Procedures for Molybdenum\nExport Quota , China fails to \"grant trading rights to foreign enterprises in a non-discretionary\nway\".1302\n7.974. China responds that its trading rights commitments do not mean that China can no longer\nregulate trade, including by means of export qu otas to conserve exhaustible natural resources.\nChina refers to the Appellate Body finding in China – Publications and Audiovisual Products that\nChina's obligations in Paragraph 5.1 are qualified by the opening clause of this Paragraph, which\nspecifies that China's trading rights commitments are \"[w]ithout prejudice to China's right to\nregulate trade in a manner consistent with the WTO Agreement\".\n1303\n7.975. The Panel has concluded above that China's export quotas are inconsistent with its\nobligations under Article XI:1 of the GATT 19 94 and Paragraphs 162 and 165 of China's Working\nParty Report and cannot be justified pursuant to Article XX(g) of the GATT 1994. Thus, the quotas\nbeing administered are not \"WTO-consistent\". Consequently, the Panel must decide whether this\nleads necessarily to a finding that China has also breached its trading rights commitments by\nmaintaining its export quotas. This question arises because China argues that when China\nregulates trade in rare earth products using export quotas that are justified under Article XX(g),\nthe prior export performance and minimum registered capital criteria are also justified under\nArticle XX(g) as an integral part of the export quota system. We do not agree with China. In our\nview, it is possible for the eligibility criteria that quota applicants have to comply with to be\nconsistent with China's trading rights commitments even if Chinas' export quotas are WTO-\ninconsistent, and vice versa.\n7.976. Having determined that our finding under Article XI:1 of the GATT 1994 is not\ndeterminative of the issues regarding the eligibility criteria and trading rights, the Panel will turn\nnow to consider whether the measures at issue are inconsistent with Paragraph 5.1 of China's\nAccession Protocol and Paragraphs 83 and 84 of Chin a's Working Party Report. In this context, the\nPanel will also consider whether it should examine claims made under Paragraphs 83 and 84 of\nChina's Working Party Report before or after th ose made under Paragraph 5.1 of its Accession\nProtocol. It will then turn to China's defence under Article XX(g) of the GATT 1994. The Panel will\nthen examine the European Union's separate claim.\n7.9.2 Claims under Paragraph 5.1 of China' s Accession Protocol and Paragraphs 83 and\n84 of China's Working Party Report\n7.977. The Panel will begin its analysis with a review of the obligations contained in Paragraph 5.1\nof China's Accession Protocol and Paragraphs 83 and 84 of China's Working Party Report. The\nPanel will then review the evidence provided by the complainants in support of their claim that\nChina maintains eligibility criteria in violation of these obligations.\n\n1301 Tungsten is listed in Annex 2A, see, United States' first written submission, para. 127. See also\nEuropean Union's first written submission, para. 149, and Japan's first written submission, para. 175.\n1302 European Union's first written submission, para. 158.\n1303 China's first written submission, para. 270.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.9.2.1 The obligations in Paragraph 5.1 of China's Accession Protocol and\nParagraphs 83 and 84 of China's Working Party Report\n7.978. Prior to China's accession to the WTO, only specialized enterprises had the right to import\ninto or export from China. These foreign trade operators had to meet certain conditions and obtain\npermission to import or export goods. Different requirements applied to foreign-invested\nenterprises. During China's accession negotiations, some WTO Members expressed concern that\nthe right to import and export goods from China was available only to some Chinese enterprises,\nand that foreign-invested enterprises could only import or export after meeting certain\nconditions.\n1304\n7.979. In response to these concerns, China made a commitment to \"progressively liberalize the\navailability and scope of the right to trade\". China further committed that within three years of its\nWTO accession, all enterprises would have the right to trade in all goods throughout the customs\nterritory of China. These legal obligations were included in Paragraph 5.1 of China's Accession\nProtocol.\n7.980. Article 5.1 of China's Accession Protocol provides:\nWithout prejudice to China's right to regulate trade in a manner consistent with the\nWTO Agreement, China shall progressively liberalize the availability and scope of the\nright to trade, so that, within three years after accession, all enterprises in China shall\nhave the right to trade in all goods throughout the customs territory of China, except\nfor those goods listed in Annex 2A which continue to be subject to state trading in\naccordance with this Protocol. Such right to trade shall be the right to import and\nexport goods ... For those goods listed in Annex 2B, China shall phase out limitation\non the grant of trading rights pursuant to the schedule in that Annex. China shall\ncomplete all necessary legislative procedures to implement these provisions during the\ntransition period\n7.981. Paragraph 1.2 of the Accession Protocol provides :\nThe WTO Agreement to which China accedes shall be the WTO Agreement as rectified,\namended or otherwise modified by such legal instruments as may have entered into\nforce before the date of accession. This Protocol, which shall include the commitments\nreferred to in paragraph 342 of the Working Pa rty Report, shall be an integral part of\nthe WTO Agreement.\n7.982. Paragraph 342 of the Working Party Report provides (underlining added):\nThe Working Party took note of the explanat ions and statements of China concerning\nits foreign trade regime, as reflected in this Report. The Working Party took note of\nthe commitments given by China in relation to certain specific matters which are\nreproduced in paragraphs … 83-84, … and noted that these commitments are\nincorporated in paragraph 1.2 of the Draft Protocol.\n7.983. The complainants make claims under Paragraphs 83(a), 83(b), 83(d), 84(a), and 84(b) of\nChina's Working Party Report. These provisions are reproduced below:\n83(a) The representative of China confirmed that, upon accession, China would\neliminate for both Chinese and foreign-invested enterprises any export performance,\ntrade balancing, foreign exchange balancin g and prior experience requirements, such\nas in importing and exporting, as criteria for obtaining or maintaining the right to\nimport and export.\n(b) With respect to wholly Chinese-invested enterprises, the representative of China\nstated that although foreign-invested enterprises obtained limited trading rights based\non their approved scope of business, whol ly Chinese-invested enterprises were now\nrequired to apply for such rights and the relevant authorities applied a threshold in\n\n1304 China's Working Party Report, para. 82.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\napproving such applications. In order to accelerate this approval process and increase\nthe availability of trading rights, the repr esentative of China confirmed that China\nwould reduce the minimum registered capital requirement (which applied only to\nwholly Chinese-invested enterprises) to obtain trading rights to RMB 5,000,000 for\nyear one, RMB 3,000,000 for year two, RMB 1,000,000 for year three and would\neliminate the examination and approval system at the end of the phase-in period for\ntrading rights.\n(d) The representative of China also confirmed that within three years after\naccession, all enterprises in China would be granted the right to trade. Foreign-\ninvested enterprises would not be required to establish in a particular form or as a\nseparate entity to engage in importing an d exporting nor would new business licence\nencompassing distribution be required to engage in importing and exporting.\n84(a) The representative of China reconfirmed that China would eliminate its system\nof examination and approval of trading righ ts within three years after accession. At\nthat time, China would permit all enterprises in China and foreign enterprises and\nindividuals, including sole proprietorships of other WTO Members, to export and\nimport all goods (except for the share of pr oducts listed in Annex 2A to the Draft\nProtocol reserved for importation and exportation by state trading enterprises)\nthroughout the customs territory of China. Such right, however, did not permit\nimporters to distribute goods within China. Providing distribution services would be\ndone in accordance with China's Schedule of Specific Commitments under the GATS.\n(b) With respect to the grant of trading rights to foreign enterprises and individuals,\nincluding sole proprietorships of other WTO members, the representative of China\nconfirmed that such rights would be granted in a non-discriminatory and non-\ndiscretionary way. He further confirmed that any requirements for obtaining trading\nrights would be for customs and fiscal purposes only and would not constitute a\nbarrier to trade. The representative of Ch ina emphasized that foreign enterprises and\nindividuals with trading rights had to comply with all WTO-consistent requirements\nrelated to importing and exporting, such as those concerning import licensing, TBT\nand SPS, but confirmed that requirements relating to minimum capital and prior\nexperience would not apply.\n7.984. In China – Publications and Audiovisual Products\n1305, the Appellate Body used the term\n\"trading rights commitments\" to refer to the obligations of China in respect of the right to trade\nthat are contained in Paragraph 5.1 of China's Accession Protocol, as well as Paragraphs 83(d) and\n84(a) of China's Working Party Report, which conf irm China's obligation to grant the right to\ntrade.\n1306 Paragraphs 83 and 84 also provide additional restrictions on China's right to regulate\ntrade. In particular, Paragraph 83(a) directs Ch ina to eliminate export performance and prior\nexperience requirements for both Chinese and foreign-invested enterprises, while Paragraph 83(b)\ndirects China to eliminate any \"examination and approval system\", within three years of accession,\nincluding the minimum registered capital requirements. Paragraph 84(b) states that \"trading rights\nwould be granted in a non-discriminatory way\" and, in granting trading rights to foreign\nenterprises in China, China explicitly committed to eliminate prior experience and minimum\nregistered capital requirements. 1307 We recall that the Appellate Body concluded in China –\nPublications and Audiovisual Products that \"the applicability of China's trading rights commitments\nto a measure is triggered when that measure concerns who may import a good\". 1308 In the same\nvein, we consider that China's trading rights commitments are also triggered when the measure at\nissue concerns who may export a good. Neither China nor any other party has suggested\notherwise.\n\n1305 Appellate Body Report, China – Publications and Audiovisual Products, para. 133.\n1306 Appellate Body Report, China – Publications and Audiovisual Products, para. 167. See also Panel\n1307 Panel Reports, China – Raw Materials, para. 7.666.\n1308 Appellate Body Report, China – Audiovisual Products, para. 196.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.9.2.2 The measures at issue\n7.985. The complainants submit that there are five measures that contain eligibility criteria with\nwhich export quota applicants must comply so as to be eligible to apply for part of the rare earths\nand molybdenum quota allocation. The Panel provided a description of the eligibility criteria in the\nchallenged measures in section 7.4.1.3 above. The following is thus confined to a brief description\nof the challenged measures.\n7.986. The complainants submit that, under the Export Quota Administration Measures which\napplies to the administration and allocation of, inter alia, the molybdenum export quota, MOFCOM\nis directed to take into account (i) the export pe rformance of the good; (ii) the utilization rate of\nthe export quota; (iii) the \"operation capacity\" of the applicant; and (iv) the \"production scale and\nresources status, etc., of the applicant enterprise s or regions\" during the previous three years\nwhen distributing quotas.\n1309 The 2012 Application Qualifications and Procedures for Rare Earth\nExport Quotas requires applicants to have had actual export performance and prior export\nexperience in a given time period and have a minimum registered capital that is above a certain\namount, though the precise nature of these requ irements may vary depending on the type or\nnature of enterprise. 1310 The 2012 Application Qualifications and Application Procedures for\nMolybdenum Export Quota specifies that, to apply for the molybdenum export quota, the\nenterprise must have exported the requisite amount of molybdenum in the previous three-year\nperiod, or have supplied for export the requisite amount of molybdenum in the previous three-year\nperiod. In addition, trading companies are also required to have a minimum registered capital that\nis above a certain amount.\n1311 The allocation equations found in the 2012 First Batch Rare Earth\nExport Quotas (Supplement) and the 2012 First Batch Export Quotas of Tungsten, Antimony and\nOther Non-Ferrous Metals rely on the prior export experien ce and export performance of the\napplicant in allocating the quota.1312\n7.987. As noted above, the complainants argu e that requirements to demonstrate export\nperformance and prior export experience and to comply with a minimum capital requirement so as\nto be eligible to participate in the quota allocation process for rare earths and molybdenum quotas\nare inconsistent with Paragraph 5.1 of China's Accession Protocol and Paragraphs 83 and 84 of\nChina's Working Party Report. The complainants submit that China expressly undertook in its\nAccession Protocol and Working Party Report to el iminate these specific requirements and to give\nall foreign enterprises and individuals, as well as all enterprises in China, the right to export goods,\nother than those listed in Annex 2A of the Accession Protocol.\n7.988. China responds that these three criteria are WTO-consistent because they are an integral\npart of China's export quota system, which, it argues, is itself WTO-consistent because it complies\nwith Article XX(g) of the GATT 1994. Therefore, a ccording to China, the criteria are necessarily\nWTO-consistent.\n1313 The complainants disagree, and argue that the export performance, prior\nexperience, and minimum registered capital criteria must comply with the relevant provisions of\nChina's Protocol of Accession and Working Part y Report. The Panel will examine this argument\nbelow.\n7.989. China also maintains that its trading rights obligations under Paragraph 5.1 of the\nAccession Protocol are not absolute, but are instea d qualified by the opening clause of the first\nsentence of that provision, which reads as follows: \"[w]ithout prejudice to China's right to regulate\ntrade in a manner consistent with the WTO Agreement…\". Further, this was confirmed by the\nAppellate Body in China – Publications and Audiovisual Products , which stressed that this\nintroductory phrase means that China's trading rights obligations cannot \"affect, encroach upon, or\nimpair\" China's right to regulate trade in a WTO-consistent manner. China states that this finding\n\n1309 Export Quota Administration Measures, (Exhibits CHN-96, JE-52), Article 19. China confirms that\nthis Article requires exporters to demonstrate proven export performance, see para. 379 of China's first written\nsubmission.\n1310 2012 Application Qualifications and Procedures for Rare Earth Export Quotas, (Exhibits CHN-38,\nJE-61) Sections 1(1) and 1(2)).\n1311 2012 Application Qualifications and Application Procedures for Molybdenum Export Quota,\n(Exhibits CHN-107, JE-63) paras. II(ii)2 and II(ii)3.\n1312 2012 First Batch Rare Earth Export Quotas (Supplement) (Exhibits CHN-57, JE-56), Annex 1 and\n2012 First Batch Export Quotas of Tungsten, Antimony and Other Non-Ferrous Metals, (Exhibits CHN-99,\nJE-59), Annex 2.\n1313 See, e.g., China's response to Panel question No. 11, para. 24.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nconfirms that Paragraph 5.1 entitles China to adopt export quotas that are contrary to Article XI:1\nof the GATT 1994, provided that they are justified under an exception, e.g. Article XX(g) of the\nGATT 1994.1314 In addition, China argues that Paragraph 5.1 entitles China to administer these\nquotas through an examination and approval system, including through quota allocation criteria\nthat are consistent with China's WTO obligations or, even if individual elements in this quota\nsystem were to violate China's WTO obligations, are justified under, e.g. Article XX(g) of the\nGATT 1994. China submits that, as a consequence, when it regulates trade in rare earth products\nthrough WTO-consistent export quotas it can use eligibility criteria, including prior export\nperformance and minimum registered capital requir ements, to ensure the effectiveness of these\nquotas. In this context, China stresses that the Panel should find that the obligations in\nParagraphs 83 and 84, as elaborations of the general commitments reflected in Paragraph 5.1 of\nthe Accession Protocol, must be read together.\n1315\n7.990. China also adds that in response to concerns by some WTO Members, China made a\ncommitment in Paragraph 5.1 of its Accession Protocol to \"progressively liberalize the availability\nand scope of the right to trade\". This commitment was further elaborated in Paragraphs 83 and 84\nof the Working Party Report. Today, after amendment of the Foreign Trade Law, China no longer\napplies such pre-conditions to foreign trade operators. 1316 Hence, in 2012, all enterprises in China\nhave the right to trade in all goods. China submits that the Foreign Trade Law no longer applies\nqualification conditions to enterprises that intend to engage in the import and export of goods.\nForeign trade operators only have to register with MOFCOM, unless it is provided that no such\nregistration is necessary.\n7.9.2.2.1 Whether the Panel should consid er claims under Paragraphs 83 and 84 prior\nto claims under Paragraph 5.1\n7.991. The Panel, noting that the complainants had made claims under Paragraphs 83 and 84 of\nthe Working Party Report as well as under Paragraph 5.1 of the Accession Protocol, asked the\nparties for their views regarding the order in which the Panel should analyse these claims. The\nPanel also asked whether, assuming it examined the complainants' claims under Paragraphs 83\nand 84 first, it would also be necessary to make additional findings under Paragraph 5.1.\n1317 The\ncomplainants responded that the Panel should analyse the more specific obligations first, i.e. those\nunder Paragraphs 83 and 84, and that a violation of these paragraphs would necessarily mean a\nviolation of the more general obligation in Paragraph 5.1.\n1318 While China stressed the importance\nof applying Paragraphs 83 and 84 together with Paragraph 5.1, it also stated that it did not\nconsider it \"relevant\" whether or not the Panel examines Paragraph 83 and 84 prior to examining\nParagraph 5.1, \"since the commitments in all these Paragraphs are without prejudice to China's\nright to regulate trade in goods by means of WTO-consistent export quotas and quota allocation\ncriteria\".\n1319\n7.992. Taking note that the complainants all agree on the order of analysis and that China does\nnot consider the order of examination \"relevant\" , the Panel has decided to proceed by examining\nfirst whether China has breached the commitments it undertook in Paragraphs 83 and 84 of its\nWorking Party Report.\n7.9.2.2.2 Whether China's measures are in consistent with Paragraphs 83 and 84 of\nChina's Working Party Report\n7.993. At this point, and before considering the parties' claims regarding Paragraphs 83 and 84,\nwe consider it useful to comment on a discrepancy in how the United States and the European\nUnion referred to the eligibility criteria in their first submissions compared with their second\n\n1314 China's first written submission, paras. 270-271.\n1315 China's first written submission, paras. 275, 276, 399, and footnote 565; China's response to Panel\nquestion No. 12, paras. 55 and 59; China's comments on the complainants' response to Panel question No. 8,\npara. 18.\n1316 China's first written submission, para. 266; footnote 399 of China's first written submission states:\n\"See the current version of the Foreign Trade Law: (Exhibit CHN-11)…\".\n1317 Panel question No. 12.\n1318 Responses to Panel question No. 12, United States , para. 26; European Union, para. 13; and Japan,\npara. 13.\n1319 China's comment on complainants' responses to Panel question No. 12, para. 26.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nsubmissions. There was also a difference in how China referred to these criteria compared with\nhow the complainants referred to them, as the Panel explains below.\n7.9.2.2.2.1 Parties' description of the challenged criteria\n7.994. In their requests for establishment of a panel, the complainants asserted that \"China\nimposes restrictions on the trading rights of enterprises seeking to export various forms of rare\nearths and molybdenum, such as prior export performance and minimum registered capital\nrequirements\".1320 In their first submissions, the complainants all described the eligibility criteria as\nexport performance, prior export experience, and minimum registered capital requirements, but in\ntheir second submissions, the United States and the European Union no longer referred to the\nexperience criterion.1321 Throughout these proceedings, China referred to prior export performance\nand minimum registered capital requirements.\n7.995. In response to Panel questions on this , the three complainants confirmed they were\nchallenging the three criteria described in the preceding paragraph. 1322 The complainants submit\nthat export performance is a subset of prior export experience; that is, by requiring an exporter to\nsatisfy specific prior export performance requirements for rare earths and molybdenum and by\nbasing the quota allocation on prior export amount s, China also requires exporters to demonstrate\nprior export experience.1323\n7.996. China did not take issue with or in any way challenge the complainants' assertion that prior\nexport performance is a subset of prior export experience. In its comments on this question, China\nfocused on the argument that there was no prescrib ed level of required prior export performance:\n\"no matter the difference between the terms \"prior export performance\" and \"export experience\",\nany level of prior export performance during the mentioned time period is sufficient to meet the\ncriterion. Indeed, the measures do not specify a minimum level of prior export performance that is\nrequired.\"\n1324\n7.997. The Panel agrees with the complainants that the prior export performance and export\nexperience criteria are related. For an entity to comply with the prior export performance criterion\nimplies that that entity has export experience, as export performance would confer experience in\nexporting activities. Conversely, an entity cannot ha ve acquired export experience if it has never\npreviously exported anything, i.e. if it is unable to comply with the export performance criterion, it\ncannot comply with the prior export experience criterion either.\n1325 Therefore, the Panel agrees\nwith the complainants that satisfying an export performance requirement necessarily requires a\ndemonstration of prior export experience. The Panel therefore concludes that all complainants\nhave challenged and continue to challenge the ex port performance, prior export experience, and\nminimum registered capital criteria.\n7.9.2.2.2.2 The three challenged eligibility criteria\n7.998. China does not deny that it imposes prior export performance and minimum registered\ncapital requirements. To the contrary, it assert s that Paragraphs 1.2 and 5.1 of the Accession\nProtocol, read in combination with Paragraphs 83 and 84 of the Working Party Report, permit\nChina to regulate export trade through these criteria \"in a manner consistent with the\nWTO Agreement\". China also argues that the complainants' challenge to the Foreign Trade Law is\nwithout merit because that Law no longer contains eligibility criteria.\n1326\n\n1320 WT/DS431/6, WT/DS432/6, and WT/DS433/6.\n1321 See, for example, para.152 of the United States' first written submission, para. 137 of the European\nUnion's first written submission; para. 330 of the United States' second written submission, and heading 5.1.1\nof the European Union's second written submission.\n1322 United States' response to Panel question No. 135, para. 78; and the European Union's response to\nPanel question No. 135, para. 117. See also Japan's response to Panel question No. 138.\n1323 Complainants' responses to Panel question No. 133.\n1324 China's comments on parties' responses to question No. 133.\n1325 The Panel also notes that in their oral responses to this question at the second meeting, the\nEuropean Union and the United States stated that they had adopted the terminology used by China in its first\nwritten submission.\n1326 China's first written submission, para. 266.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.999. Turning first to China's argument that there are no longer any eligibility criteria in the\nForeign Trade Law , the Panel acknowledges that China has removed certain pre-conditions for\nobtaining the right to trade that we re found in the 1994 version of the Foreign Trade Law .\nHowever, these restrictions and pre-conditions on trading rights are still found in instruments\nother than the Foreign Trade Law.1327\n7.1000. The Panel thus agrees with China's argument that the Foreign Trade Law does not contain\nany pre-conditions that apply in respect of obtaining the right to trade.\n7.1001. The Panel turns next to the complainants ' challenge of the minimum registered capital,\nexport performance, and prior export experience requirements found in 2012 Application\nQualifications and Procedures for Rare Earth Export Quotas Application Procedures , the 2012\nApplication Qualifications and Application Procedures for Molybdenum Export Quota , the 2012 First\nBatch Rare Earth Export Quotas (Supplement) , and the 2012 First Batch Export Quotas of\nTungsten, Antimony and Other Non-Ferrous Metals . The Panel observes that China does not deny\nthat it uses eligibility criteria in determining successful quota applicants. In fact, to the contrary,\nChina asserts that it is entitled to use such eligibility criteria to administer its export quotas.\n7.1002. The Panel recalls that in Paragraph 83(a) of its Working Party Report, China undertook to\neliminate upon accession any export performanc e and prior experience requirements for both\nChinese and foreign-invested companies. Paragraph 83(b) confirms China's commitment to\neliminate the \"examination and approval\" system for enterprises to be granted trading rights,\nincluding by eliminating any minimum registered capital requirements. Paragraph 83(d) of the\nWorking Party Report confirms the obligation contained in Paragraph 5.1 of the Accession Protocol,\nviz. China's commitment to provide trading rights to all enterprises in China by 11 December\n2004. Likewise, Paragraph 84(a) of the Working Party Report confirms China's obligations with\nrespect to trading rights, as set out in Paragraph 5.1 of the Accession Protocol. Paragraph 84(b)\nconfirms that no minimum capital or prior experience related-requirements will be imposed on\nforeign companies for obtaining trading rights and that \"trading rights [will] be granted in a non-\ndiscriminatory way\".\n7.1003. However, as the Panel outlined above and briefly recalls here, the Export Quota\nAdministration Measures, relevant for the administration and allocation of the molybdenum (and\ntungsten) export quotas, specifically require MOFCOM to take into account certain performance\nindicators when distributing quotas. The 2012 Application Qualifications and Procedures for Rare\nEarth Export Quotas and 2012 Molybdenum Export Quota\n1328 prescribes the application process for\nthe allocation of export quotas for rare eart hs and molybdenum in 2012. These measures detail\nthe requirements applicants must satisfy in order to be eligible to export under the 2012 quotas.\nTwo of these requirements are that, first, an ente rprise must have had actual export performance\nand prior export experience in a given time period, and secondly, a trading enterprise must have\nregistered capital that is above a certain minimum amount.\n1329 In addition, the allocation\nequations found in the 2012 First Batch Rare Earth Export Quotas (Supplement) and the 2012 First\nBatch Export Quotas of Tungsten, Antimony and Other Non-Ferrous Metals rely on the prior export\nexperience and export performance of the applicant in allocating the quota.\n7.1004. In our view, requiring an enterprise to have achieved a certain level of export\nperformance to qualify for a share of the export qu ota, or to have prior experience, are precisely\nthe type of requirements that China explicitly committed to eliminate in Paragraph 83(a) of its\nWorking Party Report. Similarly, China imposes a minimum registered capital requirement; the\nPanel finds that this is the type of requirement that China committed, pursuant to Paragraph 83(b)\n\n1327 The Foreign Trade Law (Exhibits CHN-11, JE-49) sets out the underlying legal framework for the\nimposition and administration of export quotas. Article 16 of the Foreign Trade Law authorizes the imposition of\nrestrictions on the importation or exportation of goods. Article 18 of the Foreign Trade Law authorizes MOFCOM\nto issue catalogues of goods restricted or prohibited from export or import. Article 19 authorizes the use of\nquotas on goods that are subject to export restrictions, and Article 20 gives MOFCOM and other ministries the\nauthority to allocate quota rights.\n1328 2012 Application Qualifications and Procedures for Rare Earth Export Quotas, (Exhibits CHN-38,\nJE-61); Export Quota Administration Measures, (Exhibits CHN-96, JE-52), 2012 Application Qualifications and\nApplication Procedures for Molybdenum Export Quota (Exhibits CHN-107, JE-63), 2012 First Batch Export\nQuotas of Tungsten, Antimony and Other Non-Ferrous Metals (Exhibits CHN-99, JE-59).\n1329 2012 Application Qualifications and Procedures for Rare Earth Export Quotas, (Exhibits CHN-38,\nJE-61).\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nof the Working Party Report, to abolish completely by 11 December 2004. The Panel also notes\nthat China repeated its commitment not to impose either type of requirement, namely\n\"requirements relating to minimum capital and prior experience,\" in the third sentence of\nparagraph 84(b) of its Working Party Report. These eligibility criteria mean that not all enterprises\nin China have the right to trade rare earths and molybdenum, contrary to commitments China\nundertook in Paragraphs 83(d) and 84(a) of the Working Party Report.\n7.1005. The Panel therefore concludes that the Export Quota Administration Measures, 2012\nApplication Qualifications and Procedures for Rare Earth Export Quotas, the 2012 First Batch Rare\nEarth Export Quotas (Supplement) , as well as the 2012 Application Qualifications and Application\nProcedures for Molybdenum Export Quota , and the 2012 First Batch Export Quotas of Tungsten,\nAntimony and Other Non-Ferrous Metals , contain eligibility criteria. Therefore, these measures\nbreach the commitments that China undertook in Paragraphs 83(a), 83(b), 83(d), 84(a), and\n84(b) of its Working Party Report, as incorporated into its Accession Protocol by virtue of\nParagraph 1.2.\n7.9.2.2.3 Whether China's measures are also inconsistent with Paragraph 5.1 of China's\nAccession Protocol\n7.1006. As requested by the complainants, the Pa nel will now consider whether China has also\nviolated the obligation it undertook in Paragraph 5.1 of the Accession Protocol.\n7.1007. There are three elements in the obligation found in Paragraph 5.1 of China's WTO\nAccession Protocol: China shall (a) grant the \"right to trade\" to \"all enterprises in China\"; (b) grant\nthe right to trade with respect to \"all goods,\" except for those listed in Annexes 2A and 2B; and (c)\n\"complete all necessary legislative procedures to implement\" its trading rights commitments\n\"within three years after accession\". The Panel will address each of these in turn.\n7.1008. The first element, the \"right to trade\", is defined in the second sentence of Paragraph 5.1\nas the \"right to import and export goods\" into or from the entire customs territory of China. The\nfirst element of Paragraph 5.1 also notes that Ch ina has committed to grant the right to trade to\n\"all enterprises in China\". There are no additional conditions or restrictions on which enterprises\nshall have the right to trade in this Paragraph.\n7.1009. The second element of the obligation cont ained in paragraph 5.1 provides that the right\nto trade applies to “all goods” except those listed in Annexes 2A and 2B. Annex 2A consists of two\nparts – Annex 2A1 entitled “Products Subject to State Trading (Import)” and Annex 2A2 entitled\n“Products Subject to State Trading (Export).” As the U.S. claim of inconsistency regarding China’s\nobligations contained in paragraph 5.1 concerns the right to export, only Annex 2A2 is relevant\nhere.\n1330 Rare earths and molybdenum are not covered by Annex 2A2\n7.1010. The third element of Paragraph 5.1 estab lishes that within three years of its accession,\nChina is required to complete all necessary legislative procedures to implement its obligations with\nrespect to the right to trade. This three-year period expired on 11 December 2004.\n7.1011. Accordingly, the Panel finds that by vi rtue of the three elements of Paragraph 5.1\ndescribed above, China is obliged to ensure that all enterprises in China have the right to export\nrare earths and molybdenum.\n7.1012. The Panel concluded in the preceding section, and indeed China does not deny, that\nChina applies eligibility criteria in selecting enterprises to receive a share of the export quota on\nrare earths and molybdenum. Thus, contrary to the obligation in Paragraph 5.1, there are\nconditions or restrictions imposed on enterprises in China, meaning that not all enterprises in\nChina have the right to trade rare earths and molybdenum. Consequently, the Panel finds that\nChina is in breach of its obligation in Paragraph 5.1 of its Accession Protocol to grant all\nenterprises in China the right to trade rare earths and molybdenum.\n\n1330 Annex 2A comprises two parts: Annex 2A1 entitled \"Products Subject to State Trading (Import)\" and\nAnnex 2A2 entitled \"Products Subject to State Trading (Export)\".\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.9.2.3 Conclusion\n7.1013. The Panel finds that China is in breach of its trading rights commitments in Paragraph 5.1\nof China's Accession Protocol and in Paragraphs 83(a), 83(b), 83(d), 84(a), and 84(b) of China's\nWorking Party Report.\n7.1014. The Panel turns now to consider whether China's WTO-inconsistent measures are\njustifiable under Article XX(g) of the GATT 1994.\n7.9.3 Defence under Article XX(g) of the GATT 1994\n7.1015. The Panel has found that the eligibility criteria in the 2012 Application Qualifications and\nProcedures for Rare Earth Export Quotas , the 2012 Application Qualifications and Application\nProcedures for Molybdenum Export Quota , the 2012 First Batch Rare Earth Export Quotas\n(Supplement), the 2012 First Batch Export Quotas of Tungsten, Antimony and Other Non-Ferrous\nMetals, and the Export Quota Administration Measures breach China's commitments in\nParagraphs 83(a), 83(b), 83(d), 84(a), and 84(b) of China's Working Party Report and\nParagraph 5.1 of China's Accession Protocol.\n7.9.3.1 Whether China's commitments in Paragraphs 83 and 84 are subject to the\ngeneral exceptions in Article XX because these commitments like those in Paragraph 5.1\nare qualified by China's right to regulate trade\n7.1016. China acknowledges that it is required to grant the right to trade to all enterprises, and\nthat it must eliminate minimum registered capital and prior export performance requirements as\nconditions on the availability of the right to trade generally.\n1331 However, China submits that there\nare situations where it is entitled to maintain an export quota for various forms of rare earths and\nmolybdenum and that, in such situations, it may establish quota allocation rules that restrict the\nright to trade. China submits that such rules may include minimum registered capital and prior\nexport performance requirements.1332 China also argues that, in any event, the criteria at issue in\nthis dispute concern the administration of WTO-consistent export quotas and are not limitations on\nthe right to trade. Consequently, argues China, it s use of these quota allocation criteria is not\nprevented by the commitments in Paragraphs 83 and 84. China argues further that the\ncommitments in Paragraphs 83 and 84 are subject to the general exceptions in Article XX because\nthey are qualified by China's right to regulate trade through WTO-consistent measures, including\nexport quotas justified under Article XX(g). China ex plains that this is so because its obligations in\nrespect of trading rights under Paragraph 5.1 of the Accession Protocol are not absolute and\ntherefore its obligations in Paragraphs 83 and 84 of the Working Party Report are also qualified in\nlight of China's right to regulate trade.\n1333 In this regard, China emphasizes that the obligations in\nParagraphs 83 and 84, as elaborations of the general commitments reflected in Paragraph 5.1,\nmust be read together with Paragraph 5.1. 1334 China further argues that the prior export\nperformance and minimum registered capital criter ia are an integral part of the export quota\nsystem, which is itself justified under Article XX(g).1335\n7.1017. The complainants state that China expressly committed not to use export performance,\nprior export experience, and minimum registered capital criteria, and that Article XX(g) is not\navailable for these criteria. 1336 Japan asserts that, in the absence of a reference in Paragraph 1.2\nof the Accession Protocol or in Paragraphs 83 or 84 of the Working Party Report to the language\nthat appears in Paragraph 5.1, namely, \"Without pr ejudice to China's right to regulate trade in a\nmanner consistent with the WTO Agreement \", Paragraphs 83 and 84 are not qualified by China's\nright to regulate trade in a WTO-consistent manner.\n1337 The United States, noting the absence in\nParagraphs 83 and 84 of the language reproduced above, states that although minimum capital\n\n1331 See, for example, China's first written submission, para. 284.\n1332 China's first written submission, para. 284.\n1333 China's first written submission, para. 270, 398; China's response to Panel question No. 11,\npara. 47, China's comments on the United States and Japan's responses to Panel question No. 8, para. 16.\n1334 China's first written submission, paras. 275, 399; China's response to Panel question No. 12.\n1335 See, for example, China's first written submission, paras. 11, 261, 280, and 389 and China's\nresponse to Panel question No. 11.\n1336 Complainants' responses to Panel question No. 8.\n1337 Japan's response to Panel question No. 8, para. 9.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nand prior experience requirements might in prin ciple be WTO-consistent, in the sense of being\nconsistent under, for example, the GATT 1994, China agreed in its Accession Protocol not to use\nthose requirements.\n1338 The European Union considers that while Article XX of the GATT 1994 is\napplicable to the trading rights commitments that China undertook pursuant to Paragraph 5.1 of\nthe Accession Protocol and Paragraphs 83 and 84 of the Working Party Report, it is not applicable\nto minimum capital and prior experience requirem ents, which China expressly excluded from what\ncan be considered as WTO-consistent regulation of trade.1339\n7.1018. More particularly, the complainants em phasize that China explicitly confirmed in\nParagraph 84(b) that minimum capital and prior export experience criteria would not apply, and\ntherefore, these are excluded from what can be co nsidered as WTO-consistent regulation of trade.\nIt will be recalled that Paragraph 84(b) provides as follows:\nWith respect to the grant of trading rights to foreign enterprises and individuals,\nincluding sole proprietorships of other WTO members, the representative of China\nconfirmed that such rights would be granted in a non-discriminatory and non-\ndiscretionary way. He further confirmed that any requirements for obtaining trading\nrights would be for customs and fiscal purposes only and would not constitute a\nbarrier to trade. The representative of Ch ina emphasized that foreign enterprises and\nindividuals with trading rights had to comply with all WTO-consistent requirements\nrelated to importing and exporting, such as those concerning import licensing, TBT\nand SPS, but confirmed that requirements relating to minimum capital and prior\nexperience would not apply.\n7.1019. According to the European Union, China is wrong to allege that the Appellate Body\nconfirmed that the subset of governmental regulati on that constitutes an exercise of regulatory\npowers that the covered agreements affirmativel y recognize includes minimum capital and prior\nexperience requirements.\n1340 The United States points to the use of the disjunctive \"but\" in the last\nsentence to distinguish between prior export pe rformance and minimum capital requirements and\nthose types of regulatory activity that might, by virtue of the qualifying language in Paragraph 5.1,\nbe permitted. According to the United States, Chin a relies on the first part of the phrase in the\nthird sentence of Paragraph 84(b) to argue that it is permitted to impose prior export performance\nand minimum capital requirements, but ignores the disjunctive \"but\". 1341 Japan makes a similar\nobservation.1342\n7.1020. The Panel notes that the Appellate Body in China – Publications and Audiovisual Products,\nin its consideration of the phrase \"right to regulate trade\" in Paragraph 5.1 of China's Accession\nProtocol, held that when China regulates trade, it must do so \"in a manner consistent with the\nWTO Agreement\". The Appellate Body explained that:\nWTO Members' regulatory requirements may be WTO-consistent in one of two ways.\nFirst, they may simply not contravene any WTO obligation. Secondly, even if they\ncontravene a WTO obligation, they may be justified under an applicable exception.\n1343\n7.1021. The Appellate Body went on to comment that Paragraph 84(b) of China's Working Party\nReport:\n[ I ] n p a r t i c u l a r , s e e m s t o u s t o i d e n t i f y a s u b s e t o f g o v e r n m e n t a l r e g u l a t i o n t h a t\nconstitutes an exercise of regulatory powers that the covered agreements\naffirmatively recognize as accruing to WTO Members. … We read this as a\nconfirmation that China's obligation to grant the right to trade cannot impair China's\npower to impose WTO-consistent import licensing, TBT, and SPS measures, [as well as\n\n1338 United States' response to Panel question No. 8, para. 16.\n1339 European Union's response to Panel question No. 8, para. 11.\n1340 European Union's response to Panel question No. 8.\n1341 United States' second written submission, para. 317.\n1342 Japan's second written submission, para. 212.\n1343 Appellate Body Report, China – Publications and Audiovisual Products, para. 223.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nother] types of regulatory measures in respect of trade in goods that the covered\nagreements affirmatively recognize that China may take.1344\n7.1022. The Panel will now consider whether China specifically committed to exclude prior export\nperformance and minimum capital requirements in Paragraph 84(b) of its Working Party Report\nfrom what could be considered as WTO-consistent regulation of trade, as the complainants allege.\n7.1023. In our view, the complainants have misconstrued Paragraph 84(b) because they have\nfailed to read the third sentence as a whole. The Panel recalls that the two criteria mentioned in\nParagraph 84(b) – minimum capital and prior experience – were not at issue in the China –\nPublications and Audiovisual Products dispute and thus were not referred to by the Appellate Body\nin its consideration of this paragraph. In the Panel's view, a proper reading of the third sentence\nentails reading the sentence as a whole and then applying the Appellate Body's findings to the\nentire sentence. The complainants rather focus on the first part of the sentence and consider the\napplicability of the Appellate Body's discussion of the term \"WTO-consistent\" to this part of the\nsentence only, while excluding the second part of the sentence, which they consequently consider\nto be an absolute commitment incapable of justification under an applicable exception and hence\nincapable of being WTO-consistent. In our view, the third sentence cannot be parsed into two\nseparate and unrelated obligations, either legall y or grammatically. Accordingly, the Appellate\nBody's guidance cannot be applied only to part of the sentence. The Panel understands the third\nsentence of Paragraph 84(b) in the context of this dispute as follows: foreign enterprises and\nindividuals with trading rights have to comply with all WTO-consistent requirements related to\nexporting, but requirements relating to minimu m capital and prior experience cannot be used,\neven if the export quotas were to be WTO-consistent. The only way China would be able to use\nminimum capital and prior experience as eligibility criteria for WTO-consistent quota allocation is if\nthese criteria in and of themselves can be justified under an applicable exception. To put it another\nway, and to borrow the Appellate Body's language cited in paragraph 7.1020 above, if \"they\"\n(minimum capital, export performance and prior experience regulatory requirements) \"contravene\na WTO obligation\" (i.e. Paragraphs 83 and 84 of China's Working Party Report), \"they may be\njustified under an applicable exception\" (e.g. Article XX(g) of the GATT 1994).\n7.1024. In sum, we understand that China's right to regulate trade under Paragraph 5.1 of its\nAccession Protocol is not impaired by its trading rights commitments as long as the eligibility\ncriteria imposed on such trade can be justified under an applicable exception. The question is\nwhether this qualified obligation regarding trading rights in Paragraph 5.1 of the Accession Protocol\ncan also be found in Paragraphs 83 and 84 of China's Working Party Report, such that China could\nseek to establish that the breaches of its tradin g rights commitments found by the Panel are both\njustifiable and justified under Article XX(g).\n7.1025. In deciding this issue, the Panel notes that Paragraphs 83 and 84 do not contain the\nsame introductory language as Paragraph 5.1, i.e. \"without prejudice to China's right to regulate\ntrade in a manner consistent with the WTO Agreement …\", which permits China to rely upon\nArticle XX of the GATT 1994 to seek to justify breaches of its WTO obligations. Consequently, in\nthe absence of this explicit textual link to the GATT 1994, whether China's commitments in\nParagraphs 83 and 84 are qualified in the same manner will depend on whether there is some\nother basis, textual or otherwise, for such qualification. We have found three such bases, which we\nexplain below.\n7.1026. First, the Panel observes that Paragr aph 5.1 and Paragraphs 83 and 84 deal with the\nsame subject-matter; indeed they fall under sections with similar titles: \"Right to Trade\" and\n\"Trading Rights\". Further, it is accepted by all parties to this dispute, and the Panel agrees, that\nthe trading rights commitments in Paragraphs 83 and 84 are elaborations of the general obligation\nto grant the right to trade under Paragraph 5.1 of the Accession Protocol. As part of its analysis of\nthe introductory clause of Paragraph 5.1, the Ap pellate Body noted that certain paragraphs of\nChina's Working Party Report, which elaborate China's trading rights commitments, may \"provide\ncontext for and inform the scope of the WTO-consistent governmental regulation that may not be\nimpaired by China's obligation to grant the right to trade.\"\n1345 In particular, the Appellate Body\nnoted that \"Paragraph 84(b), in particular, seem s to us to identify a subset of government\n\n1344 Appellate Body Report, China – Publications and Audiovisual Products, paras. 224-225.\n1345 Appellate Body Report, China – Publications and Audiovisual Products, para. 224.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nregulation that constitutes an exercise of regulatory power\".1346 Thus, the Appellate Body itself has\nshed some light on the relationship between Paragraphs 83 and 84 and Paragraph 5.1. The\nAppellate Body also stated that it \"s[aw] the obligations assumed by China in respect of trading\nrights, which relate to traders, and the obligations imposed on all WTO Members in respect of their\nregulation of trade in goods [as] closely intert wined,\" and explained that this \"interlinkage was\nreflected in paragraph 5.1 itself\".\n1347 The Panel finds that this interlinkage is also reflected in\nParagraphs 83 and 84; for example, Paragraph 84(b) refers to WTO-consistent requirements\nrelated to importing and exporting, such as th ose concerning import licensing, TBT, and SPS\nmeasures. Further and as already noted above, Paragraphs 83(d) and 84(a) of China's Working\nParty Report confirm China's obligation to grant th e right to trade. The Panel considers that it\nwould be anomalous and legally incoherent if China's obligation to grant the right to trade was\nqualified under Paragraph 5.1 of China's Accession Protocol but not under Paragraphs 83 and 84.\n7.1027. This brings the Panel to its second basis for concluding that China's commitments in\nParagraphs 83 and 84 are qualified similarly to the commitments under Paragraph 5.1. The panel\nin China – Publications and Audiovisual Products found that the obligations in Paragraph 83(d)\n\"should be interpreted so as to be consistent with those of paragraph 5.1\":\n[W]e note that, unlike paragraph 5.1, paragraph 83(d) does not explicitly\nstate that the obligation to grant the right to trade to all enterprises in\nChina is without prejudice to China's right to regulate trade in a WTO-\nconsistent manner. We do not consider that one can logically infer from\nthis that the commitment set out in paragraph 83(d) is intended to\ndeprive China of the right to regula te trade. We think the purpose of\nparagraph 83(d) is to \"confirm\" the obligation to grant the right to trade\nto enterprises in China. If that is the case, it was not essential to provide\nspecific clarification whether this obligation detrimentally affects China's\nright to regulate trade. Furthermore, we recall that paragraph 5.1 is part\nof the context of paragraph 83(d). In view of the close substantive\nsimilarity between the first sentence of paragraph 5.1 and\nparagraph 83(d), we believe the provisions of paragraph 83(d) should be\ninterpreted so as to be consistent with those of paragraph 5.1. For these\nreasons, we conclude that the obligation stipulated in paragraph 83(d)\nshould be understood as being without prejudice to China's right to\nregulate trade in a WTO-consistent manner.\n1348\n7.1028. The panel in China – Publications and Audiovisual Products also made a similar finding in\nrespect of Paragraph 84(a).1349\n7.1029. The Panel finds this reasoning by the panel in China – Publications and Audiovisual\nProducts equally apt here, and considers that it should also interpret the obligations in\nParagraphs 83(d) and 84(a) so as to be consistent with Paragraph 5.1. Consequently, the Panel\nfinds that the obligations in those paragraphs to grant the right to trade should be understood as\nbeing without prejudice to China's right to regulate trade in a WTO-consistent manner.\nParagraphs 83(d) and 84(a) do not explicitly state that the obligation to grant the right to trade to\nall enterprises in China is \"without prejudice to China's right to regulate trade in a WTO-consistent\nmanner\". However, in the Panel's opinion, it does not necessarily follow from this that Members\nintended to deprive China of the right to regulate trade.\n1350\n7.1030. The third reason for the Panel's conclusion that China is entitled to seek to justify\nbreaches of its commitments in Paragraphs 83 and 84 is also found in the Appellate Body report in\nChina – Publications and Audiovisual Products. In this report, the Appellate Body found that:\n[T]he introductory clause of paragraph 5.1 cannot be interpreted in a way that would\nallow a complainant to deny China access to a defence merely by asserting a claim\nunder paragraph 5.1 and by refraining from asserting a claim under other provisions\n\n1346 Ibid.\n1347 Appellate Body Report, China – Publications and Audiovisual Products, para. 226.\n1348 Panel Report, China – Publications and Audiovisual Products, para. 7.310.\n1349 Panel Report, China – Publications and Audiovisual Products, para. 7.315.\n1350 Panel Report, China – Publications and Audiovisual Products, paras. 7.310 and 7.315.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nof the covered agreements relating to trade in goods that apply to the same or closely\nlinked measures, and which set out obligations that are closely linked to China's\ntrading rights commitments.\n1351\n7.1031. The Panel considers that this finding is particularly relevant in the current proceedings. If\nthe Panel were to find that China could not invoke Article XX(g) under Paragraphs 83 and 84 in\norder to seek to justify its WTO-inconsistent measures, a complainant could simply assert a claim\nregarding China's trading rights commitments under those provisions only without making a claim\n\"under other provisions of the covered agreements relating to trade in goods that apply to the\nsame or closely linked measures\", in this case Paragraph 5.1 of China's Accession Protocol,\nthereby denying China access to a defence under the introductory clause of Paragraph 5.1.\n In this\nway, a complainant could too easily circumvent the defence offered by Paragraph 5.1 and assert\nits claims only under Paragraphs 83 and 84 of China's Working Party Report.\n7.1032. Having found that China can seek to justify violations of its trading rights commitments,\nwe observe that the Appellate Body has cautioned that not every measure that breaches China's\ntrading rights commitments can be justified under Article XX of the GATT 1994:\n[W]hether China may, in the absence of a specific claim of inconsistency with the\nGATT 1994, justify its measure under Article XX of the GATT 1994 must in each case\ndepend on the relationship between the measure found to be inconsistent with China's\ntrading rights commitments, on the one hand, and China's regulation of trade in\ngoods, on the other hand.\n1352\n7.1033. Thus, to sum up, the Panel concludes that breaches of China's trading rights\ncommitments in Paragraphs 83 and 84 can be justified under an applicable exception of the GATT.\nHowever, to establish that its measures are actually justifiable, China has to show, in the words of\nthe Appellate Body, that they have a \"clearly discernible, objective link to the regulation of trade\"\nin rare earths and molybdenum.\n1353\n7.9.3.2 Whether the breaches of China's trading rights commitments are justified\npursuant to Article XX(g) of the GATT 1994\n7.1034. The Panel has concluded that the commitments in Paragraphs 83 and 84 are subject to\nthe general exceptions of Article XX of the GATT 1994 insofar as measures regulating trade in\ngoods are concerned. We note that the Appellate Body has held that in certain circumstances,\n\"[a]ny exercise of China's right to regulate trade will be protected under the introductory clause of\nparagraph 5.1 … and that China may seek to show that, because its measure complies with the\nconditions of a GATT 1994 exception, the measure represents an exercise of China's power to\nregulate trade in a manner consistent with the WTO Agreement and, as such, may not be impaired\nby China's trading rights commitments\".\n1354 The Appellate Body has also held that \"successful\njustification of these provisions, however, requires China to have demonstrated that they comply\nwith the requirements of Article XX of the GATT 1994\".\n1355\n7.1035. The complainants have requested the Panel to find, in the event that it concludes that\nChina is entitled to invoke a WTO exception, that China has conflated the issues of whether the\nexport quotas are justified by Article XX(g) and wh ether the trading rights restrictions are justified\nby Article XX(g). The complainants assert that these are two separate issues to be addressed\nindependently, and that China has failed to demo nstrate that its requirements for prior export\nperformance, prior export experience, and mi nimum registered capital are justified by\nArticle XX(g).\n1356\n\n1351 Appellate Body Report, China – Publications and Audiovisual Products, para. 229.\n1352 Appellate Body Report, China – Publications and Audiovisual Products, para. 229.\n1353 Appellate Body Report, China – Publications and Audiovisual Products, para. 230.\n1354 Appellate Body Report, China – Publications and Audiovisual Products, para. 230.\n1355 Appellate Body Report, China – Publications and Audiovisual Products, para. 233.\n1356 United States' response to Panel question No. 11, para. 22; United States' second written\nsubmission, para. 321; European Union's second written submission, para. 321; Japan's response to Panel\nquestion No. 11. and Japan's second written submission, para. 217.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.1036. As noted in the preceding section, according to China, it is not necessary for China to\njustify separately the prior export performance and minimum capital requirements under Article XX\nof the GATT 1994. China argues that the criteria at issue are not limitations on trading rights.\nRather, the prior export performance and minimu m capital requirements are quota allocation\ncriteria that constitute an integral part of China's export quota system. China submits that if the\ncomplainants wanted to challenge separately China's quota allocation criteria, they should have\nchallenged these measures under the specific WTO obligations applicable to quota allocation rules,\nincluding the following: Article X:1 of the GA TT 1994 requiring that quota allocation rules be\npublished; Article X:3(a) imposing disciplines on the manner in which quota administration rules\nare administered; and Article XIII of the GATT 1994 imposing a series of disciplines specifically on\nquota administration. As the complainants did not invoke any of these provisions in respect of\nChina's administration of its 2012 export quotas, there is no need for China to justify separately\nthe consistency of these export quota eligibility criteria.\n1357\n7.1037. The Panel notes that throughout these proceedings China has emphasized that the\ncriteria at issue relate to the administration of WTO-consistent export quotas and are not\nlimitations on the right to trade. 1358 While the Panel acknowledges that China characterizes its\nminimum capital, export performance, and prior experience requirements as quota allocation\ncriteria – and at the same time notes that China often refers to them as eligibility criteria 1359 –\nrelating to the administration of its export quotas, it nonetheless has already found that the\ndisputed measures contain exactly the type of restrictions that China expressly committed to\neliminate. The Panel has concluded that in Paragraphs 83 and 84 of its Working Party Report,\nChina expressly committed to eliminating export pe rformance or prior experience requirements as\ncriteria for obtaining or maintaining the right to export, and to phase out completely its minimum\nregistered capital requirements.\n7.1038. The Panel recognizes that China did seek to provide justification for its eligibility criteria,\nbut only as part as of its export quota system.\n1360 For example, in the case of rare earths, China\nstates that requiring an applicant to demons trate export performance enables the Chinese\nauthorities to ensure that the exporter has the commercial expertise necessary to participate in\ncomplex international transactions and that \"this application requirement ensures that enterprises\nto which part of the export quota is allocated ar e capable of supplying the export volumes that are\nallocated to them\".\n1361 China asserts that trading enterprises must also have registered capital\nover 50 million RMB in the case of rare earths 1362, and submits that imposing minimum registered\ncapital requirements ensures the exporter's fi nancial soundness, the absence of which might\nhamper its ability to source the materials and comply with international contracts.\n7.1039. However, as we observed above, China explains that the export performance and\nminimum registered capital criteria eligibility requirements are an integral part of China's 2012\nexport quota system as they serve to ensure the effectiveness of its quota system and as such are\nalso justified under Article XX(g).\n1363\n7.1040. The Panel considers that the imposition of export quotas in breach of the commitment set\nforth in Article XI:1 of the GATT 1994 not to impose quantitative restrictions on the one hand, and\nthe imposition of prior export performance, prior export experience, and minimum capital\nrequirements in breach of the commitments in China's Accession Protocol not to impose prior\nexport performance, export experience, and minimum capital requirements on the other hand, are\ndistinct breaches of distinct commitments. As such, these breaches must be justified separately.\nTherefore, we must examine each invoked exception individually to determine if the conditions of\nthe exceptions asserted have been met.\n\n1357 China's comments on the United States' and Japan's responses to Panel question No. 11.\n1358 See, for example, China's comments on the United States' and Japan's responses to Panel question\n1359 See, for example, China's first written submission, paras. 272, 279, and 280.\n1360 See, for example, China's first written submission, paras. 241, 244, and 280 and China's opening\noral statement at the first meeting of the Panel, para. 53.\n1361 China's first written submission, paras. 239 and 385.\n1362 China's first written submission, para. 240 referring to 2012 Application Qualifications and\nProcedures for Rare Earth Export Quotas, (Exhibits CHN-38, JE-61), Article I.2.2, and para. 395, referring to\n2012 Application Qualifications and Application Procedures for Molybdenum Export Quota (Exhibits CHN-107,\nJE-63).\n1363 China's first written submission, para. 280.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.1041. China acknowledges that specific WTO obligations applicable to quota allocation rules are\nsubject to obligations that include Articles X:1, X:3(a) and XIII of the GATT 1994. It is not clear to\nthe Panel, however, why China recognizes that it would have to justify separately the consistency\nof the eligibility criteria if these provisions had been invoked, but maintains that it is not required\nto do so for claims made under Paragraph 5.1 of the Accession Protocol and Paragraphs 83 and 84\nof the Working Party Report. According to China's line of argument, its quota allocation rules could\nbe classified, and accordingly justified, as integral parts of China's export quota system. However,\nas we explained above, in our view, the justifications must be made separately for each of China's\nobligations.\n7.1042. The Panel now turns to the analysis of the justification itself. As the Panel has already\ndiscussed extensively elsewhere what China, as the party invoking the exception, needs to\nestablish to justify its WTO-inconsistent measures pursuant to Article XX(g), we will only make\nbrief reference to those requirements here. Purs uant to the two-tier test established by the\nAppellate Body in US – Gasoline , the application of Article XX(g) requires \"first, provisional\njustification by reason of characterization of the measure under XX(g); and second, further\nappraisal of the same measure under the intr oductory clauses of Article XX\" i.e. the chapeau.\nThus, specifically under the first part of the two-tier test, China must demonstrate that its\nmeasures (i) \"relate to conservation of exhaustible natural resources\", and (ii) are \"made effective\nin conjunction with restrictions on domestic production or consumption\".\n7.1043. The Panel has already found that the impo sition of export quot as in breach of the\ncommitment set forth in Article XI:1 of the GA TT 1994, and the imposition of prior export\nperformance, export experience, and minimum re gistered capital requirements in breach of\nAccession Protocol commitments, are separate and distinct breaches, and must be justified\nseparately. However, contrary to its Article XX(g) defence of export quotas, China has not\nprovided specific arguments explaining why the eligibility criteria contained in the measures at\nissue relate to \"conservation of exhaustible natural resources\".\n7.1044. Even in its defence of its export quotas, where China makes reference to the eligibility\ncriteria and offers some reasons therefor, the reasons provided are not offered within the\nframework of the requirements of an Article XX(g) defence as set out in this paragraph. The Panel\nnotes that this is consistent with China's assertion that \"as an integral part of the export quota\nsystem, the prior export performance and minimum registered capital criteria are also justified\nunder Article XX(g)\"\n1364, and hence China does not separately justify these criteria.1365 Specifically,\nand with reference to the examples noted in para graph 7.1038 above, China states that requiring\nan applicant to demonstrate prior export performance enables the Chinese authorities to ensure\nthat the exporter has the commercial expertise necessary to participate in complex international\ntransactions. China also states that it sets minimum capital requirements to \"ensure the exporter's\nfinancial soundness, the absence of which might hamper its ability to source the materials and\ncomply with international contracts.\"\n1366 In the Panel's opinion, these are not conservation-related\nconcerns.\n7.1045. In the light of the foregoing, and bearing in mind that the burden of establishing that the\nrequirements set out in an exception have been met lies with China as the party seeking to rely on\nit, the Panel concludes that China has not established that its violations of its trading rights\ncommitments can be justified pursuant to Article XX(g).\n7.9.3.3 Conclusion\n7.1046. The Panel finds that China is entitled to invoke Article XX(g) of the GATT 1994 to seek to\ndefend violations of its trading rights commitmen ts in Paragraphs 83(a), 83(b), 83(d), 84(a), and\n84(b) of China's Working Party Report. Furtherm ore, the Panel finds that these are distinct\nbreaches of distinct commitments and that they must be justified separately to establish that they\nmeet the conditions of the exception asserted. The Panel also finds that China has failed to make a\n\n1364 China's first written submission, paras. 261 and 280.\n1365 China's comments on the complainants' responses to Panel question No. 11, para. 25.\n1366 China's first written submission, para. 239.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\nprima facie case that the violations of its trading rights commitments are justified pursuant to\nArticle XX(g).1367\n7.9.4 The European Union's additional clai m under Paragraph 84(b) of China's Working\nParty Report\n7.9.4.1 Introduction\n7.1047. The European Union claims that, by virtue of the 2012 Application Qualifications and\nApplication Procedures for Molybdenum Export Quota , China is in breach of its obligation to grant\ntrading rights to foreign enterprises wanting to export molybdenum products in a non-\ndiscretionary way.1368\n7.9.4.2 Obligation under Paragraph 84(b) of China's Working Party Report\n7.1048. In Paragraph 84(b) of the Working Party Report, China confirmed that:\nWith respect to the grant of trading rights to foreign enterprises and individuals,\nincluding sole proprietorships of other WTO members, the representative of China\nconfirmed that such rights would be granted in a non-discriminatory and non-\ndiscretionary way.\n7.9.4.3 The measure at issue\n7.1049. According to the European Union, the prio r export performance requirement applies to all\nenterprises that have previously acquired export quotas, including foreign enterprises. The 2012\nApplication Qualifications and Application Procedures for Molybdenum Export Quota does not\nquantify the export performance required to qua lify for a quota – the European Union refers to a\nbenchmark\n1369 – thus allowing China freedom to choose, based essentially on its own preference\nand considerations, how much a company has to have exported in order to meet the export\nperformance criterion and qualify for a quota share. As a result, China does not grant trading\nrights to foreign enterprises in a non-discretionary way, and for this reason breaches its obligation\nunder paragraph 84(b) of the Working Party Report and thus paragraph 1.2 of the Accession\nProtocol.\n1370\n7.1050. China responds that the European Union does not provide any evidence to support its\nallegation that trading rights to foreign enterprises would be granted in a discretionary manner.\nChina also states that \"[s]howing any level of past export performance would satisfy this\nrequirement\".1371\n7.1051. In the course of answering Panel question s on the European Union's additional claim, an\nissue arose regarding the translation of a certain term in Chinese found in Article II.1.2 of the\n2012 Application Qualifications and Application Procedures for Molybdenum Export Quota .\nSpecifically, the issue is whether the term should be understood as \"reached actual export\nperformance\", as the European Union argued, or whether it should be understood as \"have export\nperformance\", as China stated, meaning the existence of prior exports (at any level). China also\nstates that it is irrelevant whether the term is translated as \"actual export performance\" or just\n\"export performance\". For China, the sentence should be read as a whole, and even if one were to\nadd the word \"actual\" to \"export performance\", it would not add any additional elements, as all\n\"export performance\" after verification is \"actual\".\n1372\n\n1367 In view of the nature of the export quota system described above, the Panel's finding is with respect\nto the series of measures comprising the relevant framework legislation, the implementing regulations, other\napplicable laws and the specific annual measures imposing the export quotas existing at the date of the Panel's\nestablishment.\n1368 European Union's first written submission, paras. 157-158.\n1369 European Union's response to Panel question No. 17, para. 29.\n1370 European Union's first written submission, para. 158.\n1371 China's first written submission, para. 405.\n1372 China's comments on European Union's response to Panel question No. 136, para. 125.\nWT/DS431/R • WT/DS432/R • WT/DS433/R\n\n7.1052. The Panel has taken note of the translation issues raised by China and the European\nUnion. However, we do not consider that the translation of the relevant Chinese characters has\nany particular bearing in resolving this issue. To recall, the European Union claimed that the 2012\nApplication Qualifications and Application Procedures for Molybdenum Export Quota does not\nquantify the export performance required to qu alify for a quota, meaning that China does not\ngrant trading rights to foreign enterprises in a non-discretionary way. In the course of these\nproceedings, China asserted that \"showing any level of past export performance would satisfy this\nrequirement\". The Panel has taken note of this undertaking by China and has no reason to\nquestion this statement.\n1373\n7.9.4.4 Conclusion\n7.1053. Having taken note of China's statement referred to in paragraph 7.1052 above, the Panel\nconcludes that the European Union has not met its burden to prove that the prior export\nperformance criterion in the 2012 Application Qualifications and Application Procedures for\nMolybdenum Export Quota breaches the commitment in Paragraph 84(b) of China's Working Party\nReport that trading rights to foreign enterprises will be granted in a non-discriminatory and non-\ndiscretionary way.\n1374\n\n1373 See also Panel Reports, China – Raw Materials, para. 7.944.\n1374 In view of the nature of the export quota system described above, the Panel's finding is with respect\nto the series of measures comprising the relevant framework legislation, the implementing regulations, other\napplicable laws and the specific annual measures imposing the export quota existing at the date of the Panel's\nestablishment.\n\n- US-252 -\n\n8 CONCLUSIONS AND RECOMMENDATIONS\n8.1 Complaint by the United States (DS431)\n8.1.1 Conclusions\n8.1. In respect of claims concerning export duties\n1375:\na. The Panel finds that the export duties that China applies to various forms of rare earths,\ntungsten, and molybdenum by virtue of the series of measures at issue 1376 are\ninconsistent with Paragraph 11.3 of China's Accession Protocol;\nb. The Panel finds that China may not seek to justify the export duties it applies to various\nforms of rare earths, tungsten, and molybdenum pursuant to Article XX(b) of the\nGATT 1994. Even assuming arguendo that China could seek to justify the application of\nexport duties under Article XX(b), the Panel finds that China has not demonstrated that\nthe export duties it applies to various forms of rare earths, tungsten, and molybdenum\nare justified pursuant to subparagraph (b) of Article XX of the GATT 1994. In addition,\nthe Panel finds that China has not demonstrated that the measures are applied in a\nmanner that satisfies the chapeau of Article XX.\n8.2. In respect of claims concerning export quotas\n1377:\na. The Panel finds that the export quotas that China applies to various forms of rare earths,\ntungsten, and molybdenum by virtue of the series of measures at issue 1378 are\ninconsistent with Article XI:1 of the GATT 1994;\nb. The Panel finds that the export quotas that China applies to various forms of rare earths,\ntungsten, and molybdenum by virtue of the series of measures at issue are inconsistent\nwith Paragraphs 162 and 165 of China's Working Party Report as incorporated into\nChina's Accession Protocol by virtue of Paragraph 1.2;\nc. The Panel finds that China has not demonstrated that the export quotas that China\napplies to various forms of rare earths, tungsten, and molybdenum are justified pursuant\nto subparagraph (g) of Article XX of the GATT 1994. In addition, the Panel finds that\nChina has not demonstrated that the measures are applied in a manner that satisfies the\nchapeau of Article XX.\n8.3. In respect of claims concerning export quota administration and allocation\n1379:\na. The Panel finds that the restrictions on the trading rights of enterprises exporting rare\nearths and molybdenum (i.e. the prior expo rt experience requirement, the export\nperformance requirement, and the minimum re gistered capital requirement) that China\napplies by virtue of the series of measures at issue 1380 are inconsistent with\nParagraphs 83(a), 83(b), 83(d), 84(a), and 84(b) of China's Working Party Report, as\nincorporated into China's Accession Protocol by virtue of Paragraph 1.2;\nb. The Panel finds that the restrictions on the trading rights of enterprises exporting rare\nearths and molybdenum (i.e. the prior expo rt experience requirement, the export\nperformance requirement, and the minimum re gistered capital requirement) that China\n\n1375 The specific forms of the raw materials subject to the United States' claims are identified in\nExhibit JE-3 and para. 2.16 of these Reports.\n1376 See section 7.3.1.2 above.\n1377 The specific forms of the raw materials subject to the United States' claims are identified in\nExhibit JE-3 and para. 2.16 of these Reports.\n1378 See discussion in sections 7.4.1.2-7.4.1.3 above.\n1379 The specific forms of the raw materials subject to the United States' claims are identified in\nExhibit JE-3 and para. 2.16 of these Reports.\n1380 See discussion in sections 7.4.1.2-7.4.1.3 above.\n\n- US-253 -\n\napplies by virtue of the series of measures at issue 1381 are inconsistent with\nParagraph 5.1 of China's Accession Protocol;\nc. The Panel finds that China is entitled to seek to justify the restrictions on the trading\nrights of enterprises exporting rare earths and molybdenum referred to in paragraph 8.3\npursuant to Article XX(g) of the GATT 1994;\nd. The Panel finds that China has failed to make a prima facie case that the violations of its\ntrading rights commitments are justified pursuant to Article XX(g).\n8.1.2 Nullification and impairment\n8.4. Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed\nunder a covered agreement, the action is considered prima facie to constitute a case of\nnullification or impairment of benefits under that agreement. Accordingly, we conclude that where\nChina has acted inconsistently with Article XI:1 of the GATT 1994; Paragraphs 1.2, 5.1 and 11.3 of\nChina's Accession Protocol; and Paragraphs 83, 84, 162, and 165 of China's Working Party Report\nas incorporated into its Accession Protocol by virt ue of Paragraph 1.2, it has nullified or impaired\nbenefits accruing to the United States under the WTO Agreement.\n8.1.3 Recommendations\n8.5. Pursuant to Article 19.1 of the DSU, having found that China has acted inconsistently with\nArticle XI:1 of the GATT 1994; Paragraphs 1.2, 5.1 and 11.3 of China's Accession Protocol; and\nParagraphs 83, 84, 162 and 165 of China's Working Party Report, the Panel recommends that the\nDispute Settlement Body requests China to bring th e existing measures at issue into conformity\nwith its obligations under the GATT 1994, China's Accession Protocol and China's Working Party\nReport. In respect of findings concerning export duties and export quotas on various forms of rare\nearths, tungsten, and molybdenum, and restrictions on the trading rights of enterprises exporting\nrare earths and molybdenum, the Panel has found that the series of measures have operated to\nimpose export duties and export quotas on various forms of rare earths, tungsten, and\nmolybdenum, and restrictions on the trading rights of enterprises exporting rare earths and\nmolybdenum (i.e. the prior export experience requ irement, the export performance requirement,\nand the minimum registered capital requirement), that are inconsistent with China's WTO\nobligations. The Panel, therefore, recommends that the Dispute Settlement Body requests China to\nbring its measures into conformity with its WTO obligations such that the series of measures does\nnot operate to bring about a WTO-inconsistent result.\n\n1381 See discussion in sections 7.4.1.2-7.4.1.3 above.\n\n- EU-254 -\n\n8.2 Complaint by the European Union (DS432)\n8.2.1 Conclusions\n8.6. In respect of claims concerning export duties\n1382:\na. The Panel finds that the export duties that China applies to various forms of rare earths,\ntungsten, and molybdenum by virtue of the series of measures at issue 1383 are\ninconsistent with Paragraph 11.3 of China's Accession Protocol;\nb. The Panel finds that China may not seek to justify the export duties it applies to various\nforms of rare earths, tungsten, and molybdenum pursuant to Article XX(b) of the\nGATT 1994. Even assuming arguendo that China could seek to justify the application of\nexport duties under Article XX(b), the Panel finds that China has not demonstrated that\nthe export duties it applies to various forms of rare earths, tungsten, and molybdenum\nare justified pursuant to subparagraph (b) of Article XX of the GATT 1994. In addition,\nthe Panel finds that China has not demonstrated that the measures are applied in a\nmanner that satisfies the chapeau of Article XX.\n8.7. In respect of claims concerning export quotas\n1384:\na. The Panel finds that the export quotas that China applies to various forms of rare earths,\ntungsten, and molybdenum by virtue of the series of measures at issue 1385 are\ninconsistent with Article XI:1 of the GATT 1994;\nb. The Panel finds that the export quotas that China applies to various forms of rare earths,\ntungsten, and molybdenum by virtue of the series of measures at issue are inconsistent\nwith Paragraphs 162 and 165 of China's Working Party Report as incorporated into\nChina's Accession Protocol by virtue of Paragraph 1.2;\nc. The Panel finds that China has not demonstrated that the export quotas that China\napplies to various forms of rare earths, tungsten, and molybdenum are justified pursuant\nto subparagraph (g) of Article XX of the GATT 1994. In addition, the Panel finds that\nChina has not demonstrated that the measures are applied in a manner that satisfies the\nchapeau of Article XX.\n8.8. In respect of claims concerning export quota administration and allocation\n1386:\na. The Panel finds that the restrictions on the trading rights of enterprises exporting rare\nearths and molybdenum (i.e. the prior expo rt experience requirement, the export\nperformance requirement, and the minimum re gistered capital requirement) that China\napplies by virtue of the series of measures at issue 1387 are inconsistent with\nParagraphs 83(a), 83(b), 83(d), 84(a), and 84(b) of China's Working Party Report, as\nincorporated into China's Accession Protocol by virtue of Paragraph 1.2;\nb. The Panel finds that the restrictions on the trading rights of enterprises exporting rare\nearths and molybdenum (i.e. the prior expo rt experience requirement, the export\nperformance requirement, and the minimum re gistered capital requirement) that China\n\n1382 The specific forms of the raw materials subject to the European Union's claims are identified in\nExhibit JE-3 and para. 2.16 of these Reports.\n1383 See section 7.3.1.2 above.\n1384 The specific forms of the raw materials subject to the European Union's claims are identified in\nExhibit JE-3 and para. 2.16 of these Reports.\n1385 See discussion in sections 7.4.1.2-7.4.1.3 above.\n1386 The specific forms of the raw materials subject to the European Union's claims are identified in\nExhibit JE-3 and para. 2.16 of these Reports.\n1387 See discussion in sections 7.4.1.2-7.4.1.3 above.\n\n- EU-255 -\n\napplies by virtue of the series of measures at issue 1388 are inconsistent with\nParagraph 5.1 of China's Accession Protocol;\nc. The Panel finds that China is entitled to seek to justify the restrictions on the trading\nrights of enterprises exporting rare earths and molybdenum referred to in paragraph 8.8\npursuant to Article XX(g) of the GATT 1994;\nd. The Panel finds that China has failed to make a prima facie case that the violations of its\ntrading rights commitments are justified pursuant to Article XX(g); and\ne. The Panel finds that the European Union has not established that the prior export\nperformance criterion in the 2012 Application Qualifications and Application Procedures\nfor Molybdenum Export Quota is inconsistent with the commitment in Paragraph 84(b) of\nChina's Working Party Report as incorporated into China's Accession Protocol by virtue of\nParagraph 1.2.\n8.2.2 Nullification and impairment\n8.9. Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed\nunder a covered agreement, the action is considered prima facie to constitute a case of\nnullification or impairment of benefits under that agreement. Accordingly, we conclude that where\nChina has acted inconsistently with Article XI:1 of the GATT 1994; Paragraphs 1.2, 5.1 and 11.3 of\nChina's Accession Protocol; and Paragraphs 83, 84, 162, and 165 of China's Working Party Report,\nit has nullified or impaired benefits accruing to the European Union under the WTO Agreement.\n8.2.3 Recommendations\n8.10. Pursuant to Article 19.1 of the DSU, having found that China has acted inconsistently with\nArticle XI:1 of the GATT 1994; Paragraphs 1.2, 5.1 and 11.3 of China's Accession Protocol; and\nParagraphs 83, 84, 162, and 165 of China's Working Party Report, the Panel recommends that the\nDispute Settlement Body requests China to bring th e existing measures at issue into conformity\nwith its obligations under the GATT 1994, China's Accession Protocol and China's Working Party\nReport. In respect of findings concerning export duties and export quotas on various forms of rare\nearths, tungsten, and molybdenum, and restrictions on the trading rights of enterprises exporting\nrare earths and molybdenum, the Panel has found that the series of measures have operated to\nimpose export duties, and export quotas on various forms of rare earths, tungsten, and\nmolybdenum, and restrictions on the trading rights of enterprises exporting rare earths and\nmolybdenum (i.e. the prior export experience requ irement, the export performance requirement,\nand the minimum registered capital requirement), that are inconsistent with China's WTO\nobligations. The Panel, therefore, recommends that the Dispute Settlement Body requests China to\nbring its measures into conformity with its WTO obligations such that the series of measures does\nnot operate to bring about a WTO-inconsistent result.\n\n1388 See discussion in sections 7.4.1.2-7.4.1.3 above.\n\n- JPN-256 -\n\n8.3 Complaint by Japan (DS433)\n8.3.1 Conclusions\n8.11. In respect of claims concerning export duties\n1389:\na. The Panel finds that the export duties that China applies to various forms of rare earths,\ntungsten, and molybdenum by virtue of the series of measures at issue 1390 are\ninconsistent with Paragraph 11.3 of China's Accession Protocol;\nb. The Panel finds that China may not seek to justify the export duties it applies to various\nforms of rare earths, tungsten, and molybdenum pursuant to Article XX(b) of the\nGATT 1994. Even assuming arguendo that China could seek to justify the application of\nexport duties under Article XX(b), the Panel finds that China has not demonstrated that\nthe export duties it applies to various forms of rare earths, tungsten, and molybdenum\nare justified pursuant to subparagraph (b) of Article XX of the GATT 1994. In addition,\nthe Panel finds that China has not demonstrated that the measures are applied in a\nmanner that satisfies the chapeau of Article XX.\n8.12. In respect of claims concerning export quotas\n1391:\na. The Panel finds that the export quotas that China applies to various forms of rare earths,\ntungsten, and molybdenum by virtue of the series of measures at issue 1392 are\ninconsistent with Article XI:1 of the GATT 1994;\nb. The Panel finds that the export quotas that China applies to various forms of rare earths,\ntungsten, and molybdenum by virtue of the series of measures at issue are inconsistent\nwith Paragraphs 162 and 165 of China's Working Party Report as incorporated into\nChina's Accession Protocol by virtue of Paragraph 1.2;\nc. The Panel finds that China has not demonstrated that the export quotas that China\napplies to various forms of rare earths, tungsten, and molybdenum are justified pursuant\nto subparagraph (g) of Article XX of the GATT 1994. In addition, the Panel finds that\nChina has not demonstrated that the measures are applied in a manner that satisfies the\nchapeau of Article XX.\n8.13. In respect of claims concerning export quota administration and allocation\n1393:\na. The Panel finds that the restrictions on the trading rights of enterprises exporting rare\nearths and molybdenum (i.e. the prior expo rt experience requirement, the export\nperformance requirement, and the minimum re gistered capital requirement) that China\na p p l i e s b y v i r t u e o f t h e s e r i e s o f m e a s u r e s a t i s s u e1394, are inconsistent with\nParagraphs 83(a), 83(b), 83(d), 84(a), and 84(b) of China's Working Party Report, as\nincorporated into China's Accession Protocol by virtue of Paragraph 1.2;\nb. The Panel finds that the restrictions on the trading rights of enterprises exporting rare\nearths and molybdenum (i.e. the prior expo rt experience requirement, the export\nperformance requirement, and the minimum re gistered capital requirement) that China\n\n1389 The specific forms of the raw materials subject to Japan's claims are identified in Exhibit JE-3 and\npara. 2.16 of these Reports.\n1390 See section 7.3.1.2 above.\n1391 The specific forms of the raw materials subject to Japan's claims are identified in Exhibit JE-3 and\npara. 2.16 of these Reports.\n1392 See discussion in sections 7.4.1.2-7.4.1.3 above.\n1393 The specific forms of the raw materials subject to Japan's claims are identified in Exhibit JE-3 and\npara. 2.16 of these Reports.\n1394 See discussion in sections 7.4.1.2-7.4.1.3 above.\n\n- JPN-257 -\n\napplies by virtue of the series of measures at issue 1395 are inconsistent with\nParagraph 5.1 of China's Accession Protocol;\nc. The Panel finds that China is entitled to seek to justify the restrictions on the trading\nrights of enterprises exporting rare earths and molybdenum referred to in paragraph\n8.13 pursuant to Article XX(g) of the GATT 1994;\nd. The Panel finds that China has failed to make a prima facie case that the violations of its\ntrading rights commitments are justified pursuant to Article XX(g).\n8.3.2 Nullification and impairment\n8.14. Under Article 3.8 of the DSU, in cases where there is infringement of the obligations\nassumed under a covered agreement, the action is considered prima facie to constitute a case of\nnullification or impairment of benefits under that agreement. Accordingly, we conclude that where\nChina has acted inconsistently with Article XI:1 of the GATT 1994; Paragraphs 1.2, 5.1 and 11.3 of\nChina's Accession Protocol; and Paragraphs 83, 84, 162, and 165 of China's Working Party Report,\nit has nullified or impaired benefits accruing to Japan under the WTO Agreement.\n8.3.3 Recommendations\n8.15. Pursuant to Article 19.1 of the DSU, having found that China has acted inconsistently with\nArticle XI:1 of the GATT 1994; Paragraphs 1.2, 5.1 and 11.3 of China's Accession Protocol; and\nParagraphs 83, 84, 162 and 165 of China's Working Party Report, the Panel recommends that the\nDispute Settlement Body requests China to bring th e existing measures at issue into conformity\nwith its obligations under the GATT 1994, China's Accession Protocol and China's Working Party\nReport. In respect of findings concerning export duties and export quotas on various forms of rare\nearths, tungsten, and molybdenum, and restrictions on the trading rights of enterprises exporting\nrare earths and molybdenum, the Panel has found that the series of measures have operated to\nimpose export duties and export quotas on various forms of rare earths, tungsten, and\nmolybdenum, and restrictions on the trading rights of enterprises exporting rare earths and\nmolybdenum (i.e. the prior export experience requ irement, the export performance requirement,\nand the minimum registered capital requirement), that are inconsistent with China's WTO\nobligations. The Panel, therefore, recommends that the Dispute Settlement Body requests China to\nbring its measures into conformity with its WTO obligations such that the series of measures does\nnot operate to bring about a WTO-inconsistent result.\n\n1395 See discussion in sections 7.4.1.2-7.4.1.3 above."},"processing_date":{"kind":"string","value":"2026-03-15T15:55:49.177509"}}},{"rowIdx":7099,"cells":{"folder_number":{"kind":"string","value":"433"},"case_number":{"kind":"string","value":"431"},"original_filename":{"kind":"string","value":"DS431_SEQ06_Report_Of_Appellate_Body_00.pdf"},"new_filename":{"kind":"string","value":"DS431_SEQ06_Report_Of_Appellate_Body_00.pdf"},"doc_sequence":{"kind":"number","value":6,"string":"6"},"doc_type":{"kind":"string","value":"Report_Of_Appellate_Body"},"doc_type_raw":{"kind":"string","value":"APPELLATE BODY REPORT"},"doc_class":{"kind":"string","value":"AB_REPORT"},"variant":{"kind":"null"},"part_number":{"kind":"number","value":0,"string":"0"},"case_title":{"kind":"string","value":"CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM APPELLATE BODY REPORTS AND PANEL REPORTS ACTION BY THE DISPUTE SETTLEMENT BODY"},"date":{"kind":"string","value":"2 September 2014"},"header_codes":{"kind":"string","value":"WT/DS431/14; WT/DS432/12; WT/DS433/12; WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R; WT/DS431/R; WT/DS432/R; WT/DS433/R; WT/DS431/R/Add.1; WT/DS432/R/Add.1; WT/DS433/R/Add.1"},"agreement_indicators":{"kind":"string","value":""},"complainant":{"kind":"string","value":"['U.S.']"},"respondent":{"kind":"string","value":"['China']"},"third_parties":{"kind":"string","value":"['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia']"},"dispute_stage":{"kind":"string","value":"Appellate Body"},"agreements_cited":{"kind":"string","value":"Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession"},"case_summary":{"kind":"string","value":"The summary below was up-to-date at \n 3 December 2015\n\t\t\n\t\tSee also: One-page summary of key findings of this dispute\nConsultations\nComplaint by the United States. (See also DS432 and DS433)\nOn 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the export of various forms of rare earths, tungsten and molybdenum. The request refers to materials falling under but not limited to 212 eight-digit Chinese Customs Commodity Codes and over 30 measures. The request also refers to a number of Chinese published as well as unpublished measures that, operating separately or collectively, allegedly impose and administer export restrictions. These restrictions include export duties, export quotas, minimum export price requirements, export licensing requirements and additional requirements and procedures in connection with the administration of the quantitative restrictions.\nThe United States claims that these measures are inconsistent with:\nOn 22 March 2012, the European Union and Japan requested to join the consultations. On 26 March 2012, Canada requested to join the consultations. Subsequently, China informed the DSB that it had accepted the requests of Canada, the European Union and Japan to join the consultations.\nOn 27 June 2012, the United States requested the establishment of a panel. At its meeting on 10 July 2012, the DSB deferred the establishment of a panel.\n\nPanel and Appellate Body proceedings\nAt its meeting on 23 July 2012, the DSB established a single panel pursuant to Article 9.1 of the DSU to examine this dispute, DS432 and DS433. Brazil, Canada, Colombia, the European Union, India, Japan, Korea, Norway, Oman, Saudi Arabia, Chinese Taipei and Viet Nam reserved their third party rights. Subsequently, Argentina, Australia, Indonesia, Peru, the Russian Federation and Turkey reserved their third party rights. On 12 September 2012, the United States, the European Union and Japan requested the Director-General to compose the panel. On 24 September 2012, the Director-General composed the panel. On 22 March 2013, the Chair of the panel informed the DSB that the panel expects to issue its final report to the parties by 21 November 2013, in accordance with the timetable adopted after consultation with the parties.\nOn 26 March 2014, the panel report was circulated to Members.\nOn 8 April 2014, the United States notified the DSB of its decision to appeal to the Appellate Body certain issues of law covered in the Panel Report and certain legal interpretations developed by the panel. On 17 April 2014, China filed an other appeal in the same dispute.\nOn 25 April 2014, China appealed the panel reports in the other two disputes, DS432 and DS433, brought by the European Union and Japan, respectively. The Appellate Body consolidated the appellate proceedings in DS431, DS432, and DS433 before a single Appellate Body Division, harmonized the timetable of the three appellate proceedings, and held one oral hearing for all three proceedings. On 24 June 2014, upon expiry of the 60-day period specified in Article 17.5 of the DSU for DS432 and DS433, the Appellate Body informed the DSB that the Appellate Body Reports in all three consolidated appeals will be circulated to WTO Members no later than Thursday, 7 August 2014. The Appellate Body issued three Appellate Body Reports in one single document on 7 August 2014.\nAt its meeting on 29 August 2014, the DSB adopted the Appellate Body report and the panel report, as upheld by the Appellate Body report.\n\nReasonable period of time\nAt the DSB meeting on 26 September 2014, China stated that it intended to implement the DSB's recommendations and ruling in a manner that respects its WTO obligations. China added that it would need a reasonable period of time to do so. On 8 December 2014, China and the United States informed the DSB that they had agreed that the reasonable period of time for China to implement the DSB recommendations and rulings shall be 8 months and 3 days from the date of adoption of the Appellate Body and panel reports. Accordingly, the reasonable period of time expired on 2 May 2015.\n\nImplementation of adopted reports\nAt the DSB meeting on 20 May 2015, China informed the DSB that, according to notices by the Ministry of Commerce and the General Administration of Customs of China, the application of export duties and export quotas to rare earths, tungsten and molybdenum as well as restriction on trading rights of enterprises exporting rare earths and molybdenum which were found to be inconsistent with WTO rules, had been removed. In that regard, China had fully implemented the DSB's recommendations and rulings. However, the United States could not share China's assessment that it had fully complied with the DSB's recommendations and rulings.\nOn 21 May 2015, China and the United States informed the DSB of Agreed Procedures under Articles 21 and 22 of the DSU."},"page_count":{"kind":"number","value":1,"string":"1"},"clean_text":{"kind":"string","value":"CHINA – MEASURES RELATED TO THE EXPORTATION OF\nRARE EARTHS, TUNGSTEN, AND MOLYBDENUM\nAPPELLATE BODY REPORTS AND PANEL REPORTS\nACTION BY THE DISPUTE SETTLEMENT BODY\nAt its meeting on 29 August 2014, the Disput e Settlement Body adopted the Appellate Body\nreports on China – Measures Related to the Exportation of Rare Earths, Tungsten, and\nMolybdenum (, and ) and the Panel reports\n(, and and , and\n), as upheld by the Appellate Body reports. The Panel reports should be read\nin conjunction with the Appellate Body reports.\n\nCHINE – MESURES RELATIVES À L'EXPORTATION DE TERRES RARES,\nDE TUNGSTÈNE ET DE MOLYBDÈNE\nRAPPORTS DE L'ORGANE D'APPEL ET RAPPORTS DU GROUPE SPÉCIAL\nÀ sa réunion du 29 août 2014, l'Organe de règlement des différends a adopté les rapports de\nl'Organe d'appel sur l'affaire Chine – Mesures relatives à l'ex portation de terres rares, de\ntungstène et de molybdène (, et ) et les\nrapports du Groupe spécial (, et , et ,\nrapports du Groupe spécial doivent être lus conjointement avec ceux de l'Organe d'appel.\n\nRARAS, VOLFRAMIO (TUNGSTENO) Y MOLIBDENO\nACTUACIÓN DEL ÓRGANO DE SOLUCIÓN DE DIFERENCIAS\nEn su reunión de 29 de agosto de 2014, el Órgano de Solución de Diferencias adoptó los informes\ntierras raras, volframio (tungsteno) y molibdeno (, y\nWT/DS433/AB/R) y los informes del Grupo Especial (WT/DS431/R, WT/DS432/R y WT/DS433/R, y"},"processing_date":{"kind":"string","value":"2026-03-15T15:55:49.178127"}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":70,"numItemsPerPage":100,"numTotalItems":9414,"offset":7000,"length":100}},"jwt":"eyJhbGciOiJFZERTQSJ9.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc3OTU3NzYyNywic3ViIjoiL2RhdGFzZXRzL2RlYW4yMjAyOS9XVE9fRG9jcyIsImV4cCI6MTc3OTU4MTIyNywiaXNzIjoiaHR0cHM6Ly9odWdnaW5nZmFjZS5jbyJ9.h004H0-iLJVZTT9QFGpbgbtD1UlzaxPW19sxBzDEGY56kx3H08hXXctC1JAcFV0uf_nzOlDWRH0JtlVG8LElDw","displayUrls":true,"splitSizeSummaries":[{"config":"default","split":"train","numRows":9414,"numBytesParquet":235278256}]},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false,"savedQueries":{"community":[],"user":[]}}">
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|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
430 | 430 | DS430_SEQ10_Agreement_Art_21_3.pdf | DS430_SEQ10_Agreement_Art_21_3.pdf | 10 | Agreement_Art_21_3 | AGREEMENT UNDER ARTICLE 21.3 | NUMBERED | null | null | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS AGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU | 11 December 2015 | WT/DS430/14 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
AGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU
The following communication, dated 8 December 2015, from the delegation of India and the
delegation of the United States to the Chairperso n of the Dispute Settlement Body, is circulated in
accordance... | 2026-03-15T15:55:29.094934 | |
430 | 430 | DS430_SEQ11_Status_Report.pdf | DS430_SEQ11_Status_Report.pdf | 11 | Status_Report | STATUS REPORT | NUMBERED | null | null | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS STATUS REPORT BY INDIA | 10 June 2016 | WT/DS430/15 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
STATUS REPORT BY INDIA
The following communication, dated 8 June 2016, from the delegation of India to the Chairperson
of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of the DSU.
Status Report Regarding Implementation o... | 2026-03-15T15:55:29.095855 | |
430 | 430 | DS430_SEQ12_Communication_04.pdf | DS430_SEQ12_Communication_04.pdf | 12 | Communication | COMMUNICATION FROM | NUMBERED | null | 4 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS COMMUNICATION FROM INDIA | 19 July 2016 | WT/DS430/18 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
COMMUNICATION FROM INDIA
The following communication, dated 18 July 2016, wa s received from the delegation of India with
the request that it be circulated to the Dispute Settlement Body (DSB).
On 19 June 2015, the Dispute Settlement Body ("D... | 2026-03-15T15:55:29.096733 | |
430 | 430 | DS430_SEQ13_Communication_05.pdf | DS430_SEQ13_Communication_05.pdf | 13 | Communication | COMMUNICATION FROM | NUMBERED | null | 5 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS COMMUNICATION FROM INDIA | 23 September 2016 | WT/DS430/19 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
COMMUNICATION FROM INDIA
The following communication, dated 22 September 2016 , was received from the delegation of
India with the request that it be circulated to the Dispute Settlement Body (DSB).
On 19 June 2015, the Dispute Settlement Bod... | 2026-03-15T15:55:29.097994 | |
430 | 430 | DS430_SEQ14_Communication_06.pdf | DS430_SEQ14_Communication_06.pdf | 14 | Communication | COMMUNICATION FROM | NUMBERED | null | 6 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS COMMUNICATION FROM INDIA | 3 March 2017 | WT/DS430/20 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
COMMUNICATION FROM INDIA
The following communication, dated 2 March 2017, from the delegation of India to the Chairperson
of the Dispute Settlement Body, is circulated at the request of that delegation.
On 19 June 2015, the Dispute Settlement... | 2026-03-15T15:55:29.099334 | |
430 | 430 | DS430_SEQ15_Note_By_Secretariat_01.pdf | DS430_SEQ15_Note_By_Secretariat_01.pdf | 15 | Note_By_Secretariat | RECOURSE TO ARTICLE 21.5 CONSTITUTION OF THE PANEL ESTABLISHED AT THE REQUEST OF INDIA NOTE BY THE SECRETARIAT | NUMBERED | null | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS | 29 June 2017 | WT/DS430/22; WT/DS430/21.; WT/DS430/21 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5
CONSTITUTION OF THE PANEL ESTABLISHED AT THE REQUEST OF INDIA
NOTE BY THE SECRETARIAT
1. At its meeting on 22 May 2017, the Dispute Settlement Body (DSB) decided, in accordance
with Article 21.5 of the Dispute Settlem... | 2026-03-15T15:55:29.099760 | |
430 | 430 | DS430_SEQ16_Note_By_Secretariat_02.pdf | DS430_SEQ16_Note_By_Secretariat_02.pdf | 16 | Note_By_Secretariat | Note by the Secretariat | NUMBERED | null | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA CONSTITUTION OF THE ARBITRATOR | 29 June 2017 | WT/DS430/23; WT/DS430/17 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
CONSTITUTION OF THE ARBITRATOR
Note by the Secretariat
1. At the meeting of the Dispute Settlement Body (DSB) on 19 July 2016 , the D SB took note
that the matter raised by India in document has be... | 2026-03-15T15:55:29.100389 | |
430 | 430 | DS430_SEQ17_Communication_07.pdf | DS430_SEQ17_Communication_07.pdf | 17 | Communication | COMMUNICATION FROM | NUMBERED | null | 7 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 24 November 2017 | WT/DS430/24 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 23 November 2017, addressed to the Chairperson of the
Dispute Settlement Body (DSB), is circulated in accordance with Article 12.9 of ... | 2026-03-15T15:55:29.101071 | |
430 | 430 | DS430_SEQ18_Corrigendum_Corr.pdf | DS430_SEQ18_Corrigendum_Corr.pdf | 18 | Corrigendum | Corrigendum The date i n t he fourth paragraph of document WT/DS430/24, should read " end of May 2018 " instead of "end of March 2018". INDE – MESURES CONCERNANT L'IMPORTATION DE CERTAINS PRODUITS AGRICOLES RECOURS DE L'INDE À L'ARTICLE 21:5 DU MÉMORANDUM D'ACCORD COMMUNICATION DU GROUPE SPÉCIAL Corrigendum La date i... | NUMBERED | Corr | null | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 30 November 2017 | WT/DS430/24/Corr.1; WT/DS430/24; WT/DS430/24 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
Corrigendum
The date i n t he fourth paragraph of document , should read " end of May 2018 "
instead of "end of March 2018".
INDE – MESURES CONCERNANT L'IMPORTATION DE
... | 2026-03-15T15:55:29.101403 | |
430 | 430 | DS430_SEQ19_Communication_08.pdf | DS430_SEQ19_Communication_08.pdf | 19 | Communication | COMMUNICATION FROM | NUMBERED | null | 8 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 24 May 2018 | WT/DS430/25 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 22 May 2018, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 12.9 of the D... | 2026-03-15T15:55:29.101983 | |
430 | 430 | DS430_SEQ20_Communication_09.pdf | DS430_SEQ20_Communication_09.pdf | 20 | Communication | COMMUNICATION FROM | NUMBERED | null | 9 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 21 August 2018 | WT/DS430/26 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 20 August 2018, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrator... | 2026-03-15T15:55:29.102756 | |
430 | 430 | DS430_SEQ21_Communication_10.pdf | DS430_SEQ21_Communication_10.pdf | 21 | Communication | COMMUNICATION FROM | NUMBERED | null | 10 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 21 August 2018 | WT/DS430/27 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 2 0 August 2018, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of t... | 2026-03-15T15:55:29.103432 | |
430 | 430 | DS430_SEQ22_Communication_11.pdf | DS430_SEQ22_Communication_11.pdf | 22 | Communication | COMMUNICATION FROM | NUMBERED | null | 11 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 24 October 2018 | WT/DS430/28 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 22 October 2018, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrato... | 2026-03-15T15:55:29.104277 | |
430 | 430 | DS430_SEQ23_Communication_12.pdf | DS430_SEQ23_Communication_12.pdf | 23 | Communication | COMMUNICATION FROM | NUMBERED | null | 12 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 29 October 2018 | WT/DS430/29 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 26 October 2018, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of t... | 2026-03-15T15:55:29.104979 | |
430 | 430 | DS430_SEQ24_Communication_13.pdf | DS430_SEQ24_Communication_13.pdf | 24 | Communication | COMMUNICATION FROM | NUMBERED | null | 13 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 23 January 2019 | WT/DS430/30 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 23 January 2019, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrato... | 2026-03-15T15:55:29.105631 | |
430 | 430 | DS430_SEQ25_Communication_14.pdf | DS430_SEQ25_Communication_14.pdf | 25 | Communication | COMMUNICATION FROM | NUMBERED | null | 14 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 12 February 2019 | WT/DS430/31 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 11 February 2019, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of ... | 2026-03-15T15:55:29.106311 | |
430 | 430 | DS430_SEQ26_Communication_15.pdf | DS430_SEQ26_Communication_15.pdf | 26 | Communication | COMMUNICATION FROM | NUMBERED | null | 15 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 3 May 2019 | WT/DS430/32 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 2 May 2019, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrator.
A... | 2026-03-15T15:55:29.106963 | |
430 | 430 | DS430_SEQ27_Communication_16.pdf | DS430_SEQ27_Communication_16.pdf | 27 | Communication | COMMUNICATION FROM | NUMBERED | null | 16 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 23 May 2019 | WT/DS430/33 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 22 May 2019, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of the D... | 2026-03-15T15:55:29.107638 | |
430 | 430 | DS430_SEQ28_Communication_17.pdf | DS430_SEQ28_Communication_17.pdf | 28 | Communication | COMMUNICATION FROM | NUMBERED | null | 17 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 29 July 2019 | WT/DS430/34 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 2 6 July 2019, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrator.... | 2026-03-15T15:55:29.108293 | |
430 | 430 | DS430_SEQ29_Communication_18.pdf | DS430_SEQ29_Communication_18.pdf | 29 | Communication | COMMUNICATION FROM | NUMBERED | null | 18 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 29 July 2019 | WT/DS430/35 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 26 July 2019, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of the ... | 2026-03-15T15:55:29.109022 | |
430 | 430 | DS430_SEQ30_Communication_19.pdf | DS430_SEQ30_Communication_19.pdf | 30 | Communication | COMMUNICATION FROM | NUMBERED | null | 19 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 6 November 2019 | WT/DS430/36 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 1 November 2019, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrato... | 2026-03-15T15:55:29.109640 | |
430 | 430 | DS430_SEQ31_Communication_20.pdf | DS430_SEQ31_Communication_20.pdf | 31 | Communication | COMMUNICATION FROM | NUMBERED | null | 20 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 6 November 2019 | WT/DS430/37 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 4 November 2019, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of t... | 2026-03-15T15:55:29.110375 | |
430 | 430 | DS430_SEQ32_Communication_21.pdf | DS430_SEQ32_Communication_21.pdf | 32 | Communication | COMMUNICATION FROM | NUMBERED | null | 21 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 5 February 2020 | WT/DS430/38 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 3 February 2020, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrato... | 2026-03-15T15:55:29.111011 | |
430 | 430 | DS430_SEQ33_Communication_22.pdf | DS430_SEQ33_Communication_22.pdf | 33 | Communication | COMMUNICATION FROM | NUMBERED | null | 22 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 5 February 2020 | WT/DS430/39 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 3 February 2020, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of t... | 2026-03-15T15:55:29.111727 | |
430 | 430 | DS430_SEQ34_Communication_23.pdf | DS430_SEQ34_Communication_23.pdf | 34 | Communication | COMMUNICATION FROM | NUMBERED | null | 23 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 27 April 2020 | WT/DS430/40 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 23 April 2020, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrator.... | 2026-03-15T15:55:29.112396 | |
430 | 430 | DS430_SEQ35_Communication_24.pdf | DS430_SEQ35_Communication_24.pdf | 35 | Communication | COMMUNICATION FROM | NUMBERED | null | 24 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 29 May 2020 | WT/DS430/41 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 26 May 2020, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of the D... | 2026-03-15T15:55:29.113186 | |
430 | 430 | DS430_SEQ36_Communication_25.pdf | DS430_SEQ36_Communication_25.pdf | 36 | Communication | COMMUNICATION FROM | NUMBERED | null | 25 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 27 July 2020 | WT/DS430/42 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 22 July 2020 , addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrator.... | 2026-03-15T15:55:29.113802 | |
430 | 430 | DS430_SEQ37_Communication_26.pdf | DS430_SEQ37_Communication_26.pdf | 37 | Communication | COMMUNICATION FROM | NUMBERED | null | 26 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 25 August 2020 | WT/DS430/43 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 24 August 2020, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of th... | 2026-03-15T15:55:29.114607 | |
430 | 430 | DS430_SEQ38_Communication_27.pdf | DS430_SEQ38_Communication_27.pdf | 38 | Communication | COMMUNICATION FROM | NUMBERED | null | 27 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 21 January 2021 | WT/DS430/44 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 19 January 2021, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrato... | 2026-03-15T15:55:29.115191 | |
430 | 430 | DS430_SEQ39_Communication_28.pdf | DS430_SEQ39_Communication_28.pdf | 39 | Communication | COMMUNICATION FROM | NUMBERED | null | 28 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 13 April 2021 | WT/DS430/45 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 12 April 2021, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of the... | 2026-03-15T15:55:29.116003 | |
430 | 430 | DS430_SEQ40_Communication_29.pdf | DS430_SEQ40_Communication_29.pdf | 40 | Communication | COMMUNICATION FROM | NUMBERED | null | 29 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 1 September 2021 | WT/DS430/46 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 31 August 2021, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrator... | 2026-03-15T15:55:29.116602 | |
430 | 430 | DS430_SEQ41_Communication_30.pdf | DS430_SEQ41_Communication_30.pdf | 41 | Communication | COMMUNICATION FROM | NUMBERED | null | 30 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 1 September 2021 | WT/DS430/47 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 31 August 2021, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of th... | 2026-03-15T15:55:29.117454 | |
430 | 430 | DS430_SEQ42_Communication_31.pdf | DS430_SEQ42_Communication_31.pdf | 42 | Communication | COMMUNICATION FROM | NUMBERED | null | 31 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 20 September 2021 | WT/DS430/48 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, date d 17 September 2021 , addressed to the Chairperson of the
Dispute Settlement Body (DSB), is circulated in accordance with Article 21.5 ... | 2026-03-15T15:55:29.118333 | |
430 | 430 | DS430_SEQ43_Communication_32.pdf | DS430_SEQ43_Communication_32.pdf | 43 | Communication | COMMUNICATION FROM | NUMBERED | null | 32 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 20 September 2021 | WT/DS430/49 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 17 September 2021 , addressed to the Chairperson of the
Dispute Settlement Body (DSB), is circulated at the request of the Arbitr... | 2026-03-15T15:55:29.118936 | |
430 | 430 | DS430_SEQ44_Communication_33.pdf | DS430_SEQ44_Communication_33.pdf | 44 | Communication | COMMUNICATION FROM | NUMBERED | null | 33 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 11 November 2021 | WT/DS430/50 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 10 November 2021, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrat... | 2026-03-15T15:55:29.119536 | |
430 | 430 | DS430_SEQ45_Communication_34.pdf | DS430_SEQ45_Communication_34.pdf | 45 | Communication | COMMUNICATION FROM | NUMBERED | null | 34 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 12 January 2022 | WT/DS430/51 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 7 January 202 2, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of t... | 2026-03-15T15:55:29.120488 | |
430 | 430 | DS430_SEQ46_Communication_35.pdf | DS430_SEQ46_Communication_35.pdf | 46 | Communication | COMMUNICATION FROM | NUMBERED | null | 35 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 12 January 2022 | WT/DS430/52 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 7 January 2022, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrator... | 2026-03-15T15:55:29.121090 | |
430 | 430 | DS430_SEQ47_Communication_36.pdf | DS430_SEQ47_Communication_36.pdf | 47 | Communication | COMMUNICATION FROM | NUMBERED | null | 36 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 10 March 2022 | WT/DS430/53 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 9 March 2022, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrator.
... | 2026-03-15T15:55:29.121685 | |
430 | 430 | DS430_SEQ48_Communication_37.pdf | DS430_SEQ48_Communication_37.pdf | 48 | Communication | COMMUNICATION FROM | NUMBERED | null | 37 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 10 March 2022 | WT/DS430/54 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 9 March 2022, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of the ... | 2026-03-15T15:55:29.122645 | |
430 | 430 | DS430_SEQ49_Communication_38.pdf | DS430_SEQ49_Communication_38.pdf | 49 | Communication | COMMUNICATION FROM | NUMBERED | null | 38 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 12 July 2022 | WT/DS430/55 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 8 July 2022 , addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrator.
... | 2026-03-15T15:55:29.123236 | |
430 | 430 | DS430_SEQ50_Communication_39.pdf | DS430_SEQ50_Communication_39.pdf | 50 | Communication | COMMUNICATION FROM | NUMBERED | null | 39 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 12 July 2022 | WT/DS430/56 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 8 July 2022, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of the D... | 2026-03-15T15:55:29.124203 | |
430 | 430 | DS430_SEQ51_Communication_40.pdf | DS430_SEQ51_Communication_40.pdf | 51 | Communication | COMMUNICATION FROM | NUMBERED | null | 40 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 25 November 2022 | WT/DS430/57 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 24 October 2022, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrato... | 2026-03-15T15:55:29.124789 | |
430 | 430 | DS430_SEQ52_Communication_41.pdf | DS430_SEQ52_Communication_41.pdf | 52 | Communication | COMMUNICATION FROM | NUMBERED | null | 41 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA COMMUNICATION FROM THE PANEL | 5 December 2022 | WT/DS430/58 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
COMMUNICATION FROM THE PANEL
The following communication, dated 2 December 2022, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated in accordance with Article 21.5 of t... | 2026-03-15T15:55:29.125803 | |
430 | 430 | DS430_SEQ53_Communication_42.pdf | DS430_SEQ53_Communication_42.pdf | 53 | Communication | COMMUNICATION FROM | NUMBERED | null | 42 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA COMMUNICATION FROM THE ARBITRATOR | 16 February 2023 | WT/DS430/59 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
COMMUNICATION FROM THE ARBITRATOR
The following communication, dated 14 February 2023, addressed to the Chairperson of the Dispute
Settlement Body (DSB), is circulated at the request of the Arbitrat... | 2026-03-15T15:55:29.126402 | |
430 | 430 | DS430_SEQ54_Notification_Of_Mutually_Agreed_Solution.pdf | DS430_SEQ54_Notification_Of_Mutually_Agreed_Solution.pdf | 54 | Notification_Of_Mutually_Agreed_Solution | NOTIFICATION OF A MUTUALLY AGREED SOLUTION | NUMBERED | null | null | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS NOTIFICATION OF A MUTUALLY AGREED SOLUTION | 21 March 2024 | WT/DS430/60; G/SPS/GEN/1138/Add.1; G/L/981/Add.1 | General Council; Sanitary and Phytosanitary Measures (SPS) | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
NOTIFICATION OF A MUTUALLY AGREED SOLUTION
The following communication, dated 15 March 2024, from the delegation of India and the delegation
of the United States to the Chairperson of the Dispute Settlement Body, is circulated pursuant to
Arti... | 2026-03-15T15:55:29.126980 |
430 | 430 | DS430_SEQ55_Request_For_Consultations.pdf | DS430_SEQ55_Request_For_Consultations.pdf | 55 | Request_For_Consultations | Request for Consultations by the United States | NUMBERED | null | null | INDIA –MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS | 8 March 2012 | WT/DS430/1; G/SPS/GEN/1138; G/L/981 | General Council; Sanitary and Phytosanitary Measures (SPS) | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 2 | INDIA –MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
Request for Consultations by the United States
The following communication, dated 6 March 2012, from the delegation of the United States
to the delegation of India and to the Chairperson of the Dispute Settlement Body, is circulated in
accor... | 2026-03-15T15:55:29.127717 |
430 | 430 | DS430_SEQ56_Addendum_Add.pdf | DS430_SEQ56_Addendum_Add.pdf | 56 | Addendum | Addendum | NUMBERED | Add | null | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS REPORT OF THE PANEL | 14 October 2014 | WT/DS430/R/Add.1; WT/DS430/R. | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 81 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
REPORT OF THE PANEL
Addendum
This addendum contains Annexes A to C to the Report of the Panel to be found in document
LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel A-2
Annex A-... | 2026-03-15T15:55:29.177422 | |
430 | 430 | DS430_SEQ57_Report_Of_Panel_00.pdf | DS430_SEQ57_Report_Of_Panel_00.pdf | 57 | Report_Of_Panel | panel report | PANEL_REPORT | null | 0 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS JOINT REQUEST BY INDIA AND THE UNITED STATES FOR A DECISION BY THE DSB | 7 November 2014 | WT/DS430/7 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
JOINT REQUEST BY INDIA AND THE UNITED STATES
FOR A DECISION BY THE DSB
The following communication, dated 6 November 2014, from the delegation of India and the
delegation of the United States to the Chairperson of the Dispute Settlement Body (... | 2026-03-15T15:55:29.178106 | |
430 | 430 | DS430_SEQ58_Report_Of_Panel_01.pdf | DS430_SEQ58_Report_Of_Panel_01.pdf | 58 | Report_Of_Panel | REPORT OF THE PANEL | PANEL_REPORT | null | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS REPORT OF THE PANEL | 14 October 2014 | WT/DS430/R | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 212 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
REPORT OF THE PANEL
LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel A-2
Annex A-2 Additional Working Procedures for the protection of strictly confidential
information
A-9
ANNEX ... | 2026-03-15T15:55:29.343704 | |
430 | 430 | DS430_SEQ59_Report_Of_Appellate_Body_00.pdf | DS430_SEQ59_Report_Of_Appellate_Body_00.pdf | 59 | Report_Of_Appellate_Body | Report of the Appellate Body | AB_REPORT | null | 0 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS COMMUNICATION FROM THE APPELLATE BODY | 9 June 2015 | WT/DS430/10; WT/DS430/AB/R | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 4 June 2015, from the Chair of the Appellate Body addressed to
the Chair of the Dispute Settlement Body, is circul ated to Members in accordance with Article 17.5
of the U... | 2026-03-15T15:55:29.344114 | |
430 | 430 | DS430_SEQ60_Report_Of_Appellate_Body_01.pdf | DS430_SEQ60_Report_Of_Appellate_Body_01.pdf | 60 | Report_Of_Appellate_Body | Appellate Body report | AB_REPORT | null | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS APPELATE BODY REPORT AND PANEL REPORT ACTION BY THE DISPUTE SETTLEMENT BODY | 22 June 2015 | WT/DS430/11; WT/DS430/AB/R; WT/DS430/R; WT/DS430/R/Add.1 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
APPELATE BODY REPORT AND PANEL REPORT
ACTION BY THE DISPUTE SETTLEMENT BODY
At its meeting on 19 June 2015, the Dispute Settlement Body adopted the Appellate Body report
on India – Measures Concerning the Importation of Certain Agricultural Pr... | 2026-03-15T15:55:29.344789 | |
430 | 430 | DS430_SEQ61_Report_Of_Appellate_Body_02.pdf | DS430_SEQ61_Report_Of_Appellate_Body_02.pdf | 61 | Report_Of_Appellate_Body | Appellate Body Report | AB_REPORT | null | 2 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA REQUEST FOR THE ESTABLISHMENT OF A PANEL | 12 April 2017 | WT/DS430/21 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 5 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
REQUEST FOR THE ESTABLISHMENT OF A PANEL
The following communication, dated 6 April 2017, from the delegation of India to the Chairperson
of the Dispute Settlement Body, is circulated pursuant to Ar... | 2026-03-15T15:55:29.348815 | |
430 | 430 | DS430_SEQ62_Report_Of_Appellate_Body_03.pdf | DS430_SEQ62_Report_Of_Appellate_Body_03.pdf | 62 | Report_Of_Appellate_Body | Report of the Appellate Body | AB_REPORT | null | 3 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS AB-2015-2 | 4 June 2015 | WT/DS430/AB/R | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 135 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN
AGRICULTURAL PRODUCTS
AB-2015-2
Report of the Appellate Body
ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
AI avian influenza
ALOP appropriate level of protection
DAHD India's Department of Animal Husbandry, Dairying and Fisheries
DSB Dispute Settleme... | 2026-03-15T15:55:29.458072 | |
430 | 430 | DS430_SEQ63_Recourse_00.pdf | DS430_SEQ63_Recourse_00.pdf | 63 | Recourse | RECOURSE TO ARTICLE 22.2 OF THE DSU BY THE UNITED STATES | RECOURSE | null | 0 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS | 8 July 2016 | WT/DS430/16 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.2 OF THE DSU BY THE UNITED STATES
The following communication, dated 7 July 2016, from the delegation of the United States to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 22.2 of the... | 2026-03-15T15:55:29.458795 | |
430 | 430 | DS430_SEQ64_Recourse_01.pdf | DS430_SEQ64_Recourse_01.pdf | 64 | Recourse | RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA | RECOURSE | null | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS | 19 July 2016 | WT/DS430/17 | ['U.S.'] | ['India'] | ['China', 'Colombia', 'Ecuador', 'EU', 'Guatemala', 'Japan', 'Vietnam', 'Argentina', 'Australia', 'Brazil'] | Mutually Agreed Solution | Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B Sanitary and Phytosanitary Measures (SPS)Art. XI GATT 1994 | The summary below was up-to-date at
17 April 2024
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of vari... | 1 | INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
RECOURSE TO ARTICLE 22.6 OF THE DSU BY INDIA
The following communication, dated 18 July 2016, fr om the delegation of India to the Chairperson
of the Dispute Settlement Body, is circulated pursuant to Article 22.6 of the DSU.
Regarding the U... | 2026-03-15T15:55:29.459456 | |
431 | 431 | DS431_SEQ01_Request_To_Join_Consultations_00.pdf | DS431_SEQ01_Request_To_Join_Consultations_00.pdf | 1 | Request_To_Join_Consultations | Request to Join Consultations Communication from the European Union | NUMBERED | null | 0 | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 26 March 2012 | WT/DS431/2 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Request to Join Consultations
Communication from the European Union
The following communication, dated 22 March 2012, from the delegation of the
European Union to the delegation of China, the delegation of the United States and to t... | 2026-03-15T15:55:35.776419 | |
431 | 431 | DS431_SEQ02_Request_To_Join_Consultations_01.pdf | DS431_SEQ02_Request_To_Join_Consultations_01.pdf | 2 | Request_To_Join_Consultations | Request to Join Consultations Communication from Japan | NUMBERED | null | 1 | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 26 March 2012 | WT/DS431/3 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Request to Join Consultations
Communication from Japan
The following communication, dated 22 March 2012, from the delegation of Japan to the
delegation of China, the delegation of the Unite d States and to the Chairperson of the Dis... | 2026-03-15T15:55:35.776984 | |
431 | 431 | DS431_SEQ03_Request_To_Join_Consultations_02.pdf | DS431_SEQ03_Request_To_Join_Consultations_02.pdf | 3 | Request_To_Join_Consultations | Acceptance by China of the Requests to Join Consultations Canada, the European Union and Japan notifie d the Dispute Settlement Body (DSB) of their desire to be joined in the consultations requested by the United States, pursuant to Article 4.11 of the DSU. The delegation of China informed the DSB th at it had accepted... | NUMBERED | null | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 16 April 2012 | WT/DS431/5 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Acceptance by China of the Requests to Join Consultations
Canada, the European Union and Japan notifie d the Dispute Settlement Body (DSB) of their
desire to be joined in the consultations requested by the United States, pursuant to ... | 2026-03-15T15:55:35.777698 | |
431 | 431 | DS431_SEQ04_Request_For_Establishment_Of_Panel.pdf | DS431_SEQ04_Request_For_Establishment_Of_Panel.pdf | 4 | Request_For_Establishment_Of_Panel | Request for the Establishment of a Panel by the United States | NUMBERED | null | null | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 29 June 2012 | WT/DS431/6 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 10 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Request for the Establishment of a Panel by the United States
The following communication, dated 27 June 2012, from the delegation of the United States
to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Arti... | 2026-03-15T15:55:35.782238 | |
431 | 431 | DS431_SEQ05_Communication_00.pdf | DS431_SEQ05_Communication_00.pdf | 5 | Communication | COMMUNICATION FROM | NUMBERED | null | 0 | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM COMMUNICATION FROM THE CHAIRPERSON OF THE PANEL | 26 March 2013 | WT/DS431/8; WT/DS432/8; WT/DS433/8 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
COMMUNICATION FROM THE CHAIRPERSON OF THE PANEL
The following communication, dated 22 March 2013, addressed to the Chairperson of the
Dispute Settlement Body (DSB), is circulated in accordance with Article 12.9 of the Dispute
Settlemen... | 2026-03-15T15:55:35.782803 | |
431 | 431 | DS431_SEQ06_Working_Procedures_00.pdf | DS431_SEQ06_Working_Procedures_00.pdf | 6 | Working_Procedures | AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW | NUMBERED | null | 0 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM NOTIFICATION OF AN APPEAL BY THE UNITED STATES UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVI... | 11 April 2014 | WT/DS431/9 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
NOTIFICATION OF AN APPEAL BY THE UNITED STATES
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVI... | 2026-03-15T15:55:35.783941 | |
431 | 431 | DS431_SEQ07_Working_Procedures_01.pdf | DS431_SEQ07_Working_Procedures_01.pdf | 7 | Working_Procedures | AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW | NUMBERED | null | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM NOTIFICATION OF AN OTHER APPEAL BY CHINA UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW | 24 April 2014 | WT/DS431/10 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 3 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
NOTIFICATION OF AN OTHER APPEAL BY CHINA
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Th... | 2026-03-15T15:55:35.786213 | |
431 | 431 | DS431_SEQ08_Communication_01.pdf | DS431_SEQ08_Communication_01.pdf | 8 | Communication | COMMUNICATION FROM | NUMBERED | null | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM COMMUNICATION FROM THE APPELLATE BODY | 19 June 2014 | WT/DS431/11 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 17 June 2014, from the Chair of the Appellate Body addressed to
the Chair of the Dispute Settlement Body, is circul ated to Members in accordance with Article 17.5... | 2026-03-15T15:55:35.787215 | |
431 | 431 | DS431_SEQ09_Communication_02.pdf | DS431_SEQ09_Communication_02.pdf | 9 | Communication | COMMUNICATION FROM | NUMBERED | null | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM COMMUNICATION FROM THE APPELLATE BODY | 27 June 2014 | WT/DS431/12; WT/DS432/10; WT/DS433/10 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 23 June 2014, from the Chair of the Appellate Body addressed to
the Chair of the Dispute Settlement Body, is circul ated to Members in accordance with Article 17.5... | 2026-03-15T15:55:35.787820 | |
431 | 431 | DS431_SEQ10_Communication_03.pdf | DS431_SEQ10_Communication_03.pdf | 10 | Communication | COMMUNICATION FROM | NUMBERED | null | 3 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM COMMUNICATION FROM THE APPELLATE BODY | 11 August 2014 | WT/DS431/13; WT/DS432/11; WT/DS433/11; WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R. | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 7 August 2014, from the Chair of the Appellate Body addressed to
the Chair of the Dispute Settlement Body, is circul ated to Members in accordance with Article 17.... | 2026-03-15T15:55:35.788140 | |
431 | 431 | DS431_SEQ11_Communication_04.pdf | DS431_SEQ11_Communication_04.pdf | 11 | Communication | COMMUNICATION FROM | NUMBERED | null | 4 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM COMMUNICATION FROM THE UNITED STATES AND CHINA CONCERNING ARTICLE 21.3(C) OF THE DSU | 23 October 2014 | WT/DS431/15 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
COMMUNICATION FROM THE UNITED STATES AND CHINA CONCERNING
ARTICLE 21.3(C) OF THE DSU
The following communication, dated 20 October 2014, from the delegation of the United States
and the delegation of China to the Chairperson of the Dis... | 2026-03-15T15:55:35.788856 | |
431 | 431 | DS431_SEQ12_Agreement_Art_21_3.pdf | DS431_SEQ12_Agreement_Art_21_3.pdf | 12 | Agreement_Art_21_3 | AGREEMENT UNDER ARTICLE 21.3 | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM AGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU | 10 December 2014 | WT/DS431/16 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
AGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU
The following communication, dated 8 December 2014, from the delegation of China and the
delegation of the United States to the Chairperso n of the Dispute Settlement Body, is circulated in
ac... | 2026-03-15T15:55:35.789447 | |
431 | 431 | DS431_SEQ13_Agreed_Procedures.pdf | DS431_SEQ13_Agreed_Procedures.pdf | 13 | Agreed_Procedures | Agreed Procedures | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM UNDERSTANDING BETWEEN CHINA AND THE UNITED STATES REGARDING PROCEDURES UNDER ARTICLES 21 AND 22 OF THE DSU | 26 May 2015 | WT/DS431/17 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 3 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
UNDERSTANDING BETWEEN CHINA AND THE UNITED STATES
REGARDING PROCEDURES UNDER ARTICLES 21 AND 22 OF THE DSU
The following communication, dated 21 May 2015, from the delegation of China and the delegation
of the United States to the Chair... | 2026-03-15T15:55:35.791023 | |
431 | 431 | DS431_SEQ14_Request_For_Consultations.pdf | DS431_SEQ14_Request_For_Consultations.pdf | 14 | Request_For_Consultations | Request for Consultations by the United States | NUMBERED | null | null | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 15 March 2012 | WT/DS431/1; G/L/982 | General Council | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 5 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Request for Consultations by the United States
The following communication, dated 13 Marc h 2012, from the delegation of the United States
to the delegation of China and to the Chairperson of the Dispute Settlement Body, is circulate... | 2026-03-15T15:55:35.794767 |
431 | 431 | DS431_SEQ15_Addendum_Add.pdf | DS431_SEQ15_Addendum_Add.pdf | 15 | Addendum | Addendum | NUMBERED | Add | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM REPORTS OF THE PANEL | 26 March 2014 | WT/DS431/R/Add.1; WT/DS432/R/Add.1; WT/DS433/R/Add.1; WT/DS431/R; WT/DS432/R; WT/DS433/R. | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 120 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
REPORTS OF THE PANEL
Addendum
This addendum contains Annexes A to C to the Reports of the Panel to be found in
documents , and
• •
LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures o... | 2026-03-15T15:55:35.876752 | |
431 | 431 | DS431_SEQ16_Report_Of_Panel.pdf | DS431_SEQ16_Report_Of_Panel.pdf | 16 | Report_Of_Panel | Panel Report | PANEL_REPORT | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM REPORTS OF THE PANEL | 26 March 2014 | WT/DS431/R; WT/DS432/R; WT/DS433/R; WT/DS431/R; WT/DS432/R; WT/DS433/R.; WT/DS431/R; WT/DS432/R; WT/DS433/R | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 257 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
REPORTS OF THE PANEL
Note by the Secretariat:
These Panel Reports are in the form of a single document constituting three separate Panel
Reports: , and The cover page, preliminary pages,
sections 1 through 7 are common to the three R... | 2026-03-15T15:55:36.079023 | |
431 | 431 | DS431_SEQ17_Report_Of_Appellate_Body_00.pdf | DS431_SEQ17_Report_Of_Appellate_Body_00.pdf | 17 | Report_Of_Appellate_Body | APPELLATE BODY REPORT | AB_REPORT | null | 0 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM APPELLATE BODY REPORTS AND PANEL REPORTS ACTION BY THE DISPUTE SETTLEMENT BODY | 2 September 2014 | WT/DS431/14; WT/DS432/12; WT/DS433/12; WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R; WT/DS431/R; WT/DS432/R; WT/DS433/R; WT/DS431/R/Add.1; WT/DS432/R/Add.1; WT/DS433/R/Add.1 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
APPELLATE BODY REPORTS AND PANEL REPORTS
ACTION BY THE DISPUTE SETTLEMENT BODY
At its meeting on 29 August 2014, the Disput e Settlement Body adopted the Appellate Body
reports on China – Measures Related to the Exportation of Rare Ear... | 2026-03-15T15:55:36.079838 | |
431 | 431 | DS431_SEQ18_Report_Of_Appellate_Body_01.pdf | DS431_SEQ18_Report_Of_Appellate_Body_01.pdf | 18 | Report_Of_Appellate_Body | AB-2014-6 Reports of the Appellate Body Note: The Appellate Body is issuing these Reports in the form of a single document constituting three separate Appellate Body Reports: WT/DS431/ABR; WT/DS432/AB/R; and WT/DS433/AB/R. The cover page, preliminary pages, sections 1 through 5, and the annexes are common to all three ... | AB_REPORT | null | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM AB-2014-3 AB-2014-5 AB-2014-6 | 7 August 2014 | WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R; WT/DS431/ABR; WT/DS432/AB/R; WT/DS433/AB/R.; WT/DS431/ABR; WT/DS432/AB/R; WT/DS433/AB/R | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 177 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
AB-2014-3
AB-2014-5
AB-2014-6
Reports of the Appellate Body
Note:
The Appellate Body is issuing these Reports in the form of a single document constituting three
separate Appellate Body Reports: ; ; and The
cover page, preliminary pag... | 2026-03-15T15:55:36.215580 | |
431 | 433 | DS433_SEQ01_Request_To_Join_Consultations.pdf | DS433_SEQ01_Request_To_Join_Consultations.pdf | 1 | Request_To_Join_Consultations | Request to Join Consultations Communication from Canada | NUMBERED | null | null | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 28 March 2012 | WT/DS431/4; WT/DS432/4; WT/DS433/4 | ['Japan'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1 GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of AccessionArt. X:3(a) GATT 1994 | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Japan. (See also DS431 and DS432)
On 13 March 2012, Japan requested consultations with China with respect to China's restrictions on the export of various forms of... | 1 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Request to Join Consultations
Communication from Canada
The following communication, dated 26 March 2012, from the delegation of Canada to the
delegations of China, the United States, the Europ ean Union and Japan and to the Chairpe... | 2026-03-15T15:55:36.230245 | |
431 | 433 | DS433_SEQ02_Note_By_Secretariat.pdf | DS433_SEQ02_Note_By_Secretariat.pdf | 2 | Note_By_Secretariat | Constitution of the Panel Established at the Requests of the United States, the European Union and Japan Note by the Secretariat1 | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 25 September 2012 | WT/DS431/7; WT/DS432/7; WT/DS433/7; WT/DS431/6; WT/DS432/6 | ['Japan'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1 GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of AccessionArt. X:3(a) GATT 1994 | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Japan. (See also DS431 and DS432)
On 13 March 2012, Japan requested consultations with China with respect to China's restrictions on the export of various forms of... | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Constitution of the Panel Established at the Requests of the United States,
the European Union and Japan
Note by the Secretariat1
1. At its meeting on 23 July 2012, the Dispute Settlement Body (DSB) established a single panel
pursuan... | 2026-03-15T15:55:36.231385 | |
432 | 431 | DS431_SEQ01_Communication_00.pdf | DS431_SEQ01_Communication_00.pdf | 1 | Communication | COMMUNICATION FROM | NUMBERED | null | 0 | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM COMMUNICATION FROM THE CHAIRPERSON OF THE PANEL | 26 March 2013 | WT/DS431/8; WT/DS432/8; WT/DS433/8 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
COMMUNICATION FROM THE CHAIRPERSON OF THE PANEL
The following communication, dated 22 March 2013, addressed to the Chairperson of the
Dispute Settlement Body (DSB), is circulated in accordance with Article 12.9 of the Dispute
Settlemen... | 2026-03-15T15:55:42.250502 | |
432 | 431 | DS431_SEQ02_Communication_01.pdf | DS431_SEQ02_Communication_01.pdf | 2 | Communication | COMMUNICATION FROM | NUMBERED | null | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM COMMUNICATION FROM THE APPELLATE BODY | 27 June 2014 | WT/DS431/12; WT/DS432/10; WT/DS433/10 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 23 June 2014, from the Chair of the Appellate Body addressed to
the Chair of the Dispute Settlement Body, is circul ated to Members in accordance with Article 17.5... | 2026-03-15T15:55:42.251159 | |
432 | 431 | DS431_SEQ03_Communication_02.pdf | DS431_SEQ03_Communication_02.pdf | 3 | Communication | COMMUNICATION FROM | NUMBERED | null | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM COMMUNICATION FROM THE APPELLATE BODY | 11 August 2014 | WT/DS431/13; WT/DS432/11; WT/DS433/11; WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R. | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 7 August 2014, from the Chair of the Appellate Body addressed to
the Chair of the Dispute Settlement Body, is circul ated to Members in accordance with Article 17.... | 2026-03-15T15:55:42.251491 | |
432 | 431 | DS431_SEQ04_Addendum_Add.pdf | DS431_SEQ04_Addendum_Add.pdf | 4 | Addendum | Addendum | NUMBERED | Add | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM REPORTS OF THE PANEL | 26 March 2014 | WT/DS431/R/Add.1; WT/DS432/R/Add.1; WT/DS433/R/Add.1; WT/DS431/R; WT/DS432/R; WT/DS433/R. | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 120 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
REPORTS OF THE PANEL
Addendum
This addendum contains Annexes A to C to the Reports of the Panel to be found in
documents , and
• •
LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures o... | 2026-03-15T15:55:42.335230 | |
432 | 431 | DS431_SEQ05_Report_Of_Panel.pdf | DS431_SEQ05_Report_Of_Panel.pdf | 5 | Report_Of_Panel | Panel Report | PANEL_REPORT | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM REPORTS OF THE PANEL | 26 March 2014 | WT/DS431/R; WT/DS432/R; WT/DS433/R; WT/DS431/R; WT/DS432/R; WT/DS433/R.; WT/DS431/R; WT/DS432/R; WT/DS433/R | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 257 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
REPORTS OF THE PANEL
Note by the Secretariat:
These Panel Reports are in the form of a single document constituting three separate Panel
Reports: , and The cover page, preliminary pages,
sections 1 through 7 are common to the three R... | 2026-03-15T15:55:42.536272 | |
432 | 431 | DS431_SEQ06_Report_Of_Appellate_Body_00.pdf | DS431_SEQ06_Report_Of_Appellate_Body_00.pdf | 6 | Report_Of_Appellate_Body | APPELLATE BODY REPORT | AB_REPORT | null | 0 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM APPELLATE BODY REPORTS AND PANEL REPORTS ACTION BY THE DISPUTE SETTLEMENT BODY | 2 September 2014 | WT/DS431/14; WT/DS432/12; WT/DS433/12; WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R; WT/DS431/R; WT/DS432/R; WT/DS433/R; WT/DS431/R/Add.1; WT/DS432/R/Add.1; WT/DS433/R/Add.1 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
APPELLATE BODY REPORTS AND PANEL REPORTS
ACTION BY THE DISPUTE SETTLEMENT BODY
At its meeting on 29 August 2014, the Disput e Settlement Body adopted the Appellate Body
reports on China – Measures Related to the Exportation of Rare Ear... | 2026-03-15T15:55:42.536953 | |
432 | 431 | DS431_SEQ07_Report_Of_Appellate_Body_01.pdf | DS431_SEQ07_Report_Of_Appellate_Body_01.pdf | 7 | Report_Of_Appellate_Body | AB-2014-6 Reports of the Appellate Body Note: The Appellate Body is issuing these Reports in the form of a single document constituting three separate Appellate Body Reports: WT/DS431/ABR; WT/DS432/AB/R; and WT/DS433/AB/R. The cover page, preliminary pages, sections 1 through 5, and the annexes are common to all three ... | AB_REPORT | null | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM AB-2014-3 AB-2014-5 AB-2014-6 | 7 August 2014 | WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R; WT/DS431/ABR; WT/DS432/AB/R; WT/DS433/AB/R.; WT/DS431/ABR; WT/DS432/AB/R; WT/DS433/AB/R | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 177 | CHINA – MEASURES RELATED TO THE EXPORTATION
OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
AB-2014-3
AB-2014-5
AB-2014-6
Reports of the Appellate Body
Note:
The Appellate Body is issuing these Reports in the form of a single document constituting three
separate Appellate Body Reports: ; ; and The
cover page, preliminary pag... | 2026-03-15T15:55:42.671180 | |
432 | 432 | DS432_SEQ01_Request_To_Join_Consultations_00.pdf | DS432_SEQ01_Request_To_Join_Consultations_00.pdf | 1 | Request_To_Join_Consultations | Request to Join Consultations Communication from Japan | NUMBERED | null | 0 | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 26 March 2012 | WT/DS432/2 | ['EU'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the European Union. (See also DS431 and DS433)
On 13 March 2012, the European Union requested consultations with China with respect to China's restrictions on the... | 1 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Request to Join Consultations
Communication from Japan
The following communication, dated 22 March 2012, from the delegation of Japan to the
delegation of China, the delegation of the Europe an Union and to the Chairperson of the Di... | 2026-03-15T15:55:42.831211 | |
432 | 432 | DS432_SEQ02_Request_To_Join_Consultations_01.pdf | DS432_SEQ02_Request_To_Join_Consultations_01.pdf | 2 | Request_To_Join_Consultations | Request to Join Consultations Communication from the United States | NUMBERED | null | 1 | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 26 March 2012 | WT/DS432/3; WT/DS432/1 | ['EU'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the European Union. (See also DS431 and DS433)
On 13 March 2012, the European Union requested consultations with China with respect to China's restrictions on the... | 1 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Request to Join Consultations
Communication from the United States
The following communication, dated 22 Marc h 2012, from the delegation of the United States
to the delegation of China, the delegation of the European Union and to t... | 2026-03-15T15:55:42.831715 | |
432 | 432 | DS432_SEQ03_Request_To_Join_Consultations_02.pdf | DS432_SEQ03_Request_To_Join_Consultations_02.pdf | 3 | Request_To_Join_Consultations | Acceptance by China of the Requests to Join Consultations Canada, Japan and the United States notified the Dispute Settlement Body (DSB) of their desire to be joined in the consultations requested by the United States, pursuant to Article 4.11 of the DSU. The delegation of China informed the DSB that it had accepted t... | NUMBERED | null | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 16 April 2012 | WT/DS432/5 | ['EU'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the European Union. (See also DS431 and DS433)
On 13 March 2012, the European Union requested consultations with China with respect to China's restrictions on the... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Acceptance by China of the Requests to Join Consultations
Canada, Japan and the United States notified the Dispute Settlement Body (DSB) of their
desire to be joined in the consultations requested by the United States, pursuant to Ar... | 2026-03-15T15:55:42.832272 | |
432 | 432 | DS432_SEQ04_Request_To_Join_Consultations_Rev.pdf | DS432_SEQ04_Request_To_Join_Consultations_Rev.pdf | 4 | Request_To_Join_Consultations | Acceptance by China of the Requests to Join Consultations Revision Canada, Japan and the United States notified the Dispute Settlement Body (DSB) of their desire to be joined in the consultations requested by the European Union, pursuant to Article 4.11 of the DSU. The delegation of China informed the DSB that it had ... | NUMBERED | Rev | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 18 April 2012 | WT/DS432/5/Rev.1 | ['EU'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the European Union. (See also DS431 and DS433)
On 13 March 2012, the European Union requested consultations with China with respect to China's restrictions on the... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Acceptance by China of the Requests to Join Consultations
Revision
Canada, Japan and the United States notified the Dispute Settlement Body (DSB) of their
desire to be joined in the consultations requested by the European Union, pur... | 2026-03-15T15:55:42.832807 | |
432 | 432 | DS432_SEQ05_Request_For_Establishment_Of_Panel.pdf | DS432_SEQ05_Request_For_Establishment_Of_Panel.pdf | 5 | Request_For_Establishment_Of_Panel | Request for the Establishment of a Panel by the European Union | NUMBERED | null | null | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 29 June 2012 | WT/DS432/6 | ['EU'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the European Union. (See also DS431 and DS433)
On 13 March 2012, the European Union requested consultations with China with respect to China's restrictions on the... | 10 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Request for the Establishment of a Panel by the European Union
The following communication, dated 27 June 2012, from the delegation of the
European Union to the Chairperson of the Dis pute Settlement Body, is circulated pursuant to
A... | 2026-03-15T15:55:42.837684 | |
432 | 432 | DS432_SEQ06_Working_Procedures.pdf | DS432_SEQ06_Working_Procedures.pdf | 6 | Working_Procedures | AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM NOTIFICATION OF AN APPEAL BY CHINA UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW | 30 April 2014 | WT/DS432/9; WT/DS433/9 | ['EU'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the European Union. (See also DS431 and DS433)
On 13 March 2012, the European Union requested consultations with China with respect to China's restrictions on the... | 3 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
NOTIFICATION OF AN APPEAL BY CHINA
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
The follo... | 2026-03-15T15:55:42.839788 | |
432 | 432 | DS432_SEQ07_Communication.pdf | DS432_SEQ07_Communication.pdf | 7 | Communication | COMMUNICATION FROM | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM COMMUNICATION FROM THE EUROPEAN UNION AND CHINA CONCERNING ARTICLE 21.3(C) OF THE DSU | 23 October 2014 | WT/DS432/13 | ['EU'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the European Union. (See also DS431 and DS433)
On 13 March 2012, the European Union requested consultations with China with respect to China's restrictions on the... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
COMMUNICATION FROM THE EUROPEAN UNION AND CHINA CONCERNING
ARTICLE 21.3(C) OF THE DSU
The following communication, dated 20 October 2014, from the delegation of the European Union
and the delegation of China to the Chairperson of the D... | 2026-03-15T15:55:42.840542 | |
432 | 432 | DS432_SEQ08_Agreement_Art_21_3.pdf | DS432_SEQ08_Agreement_Art_21_3.pdf | 8 | Agreement_Art_21_3 | AGREEMENT UNDER ARTICLE 21.3 | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM AGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU | 10 December 2014 | WT/DS432/14 | ['EU'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the European Union. (See also DS431 and DS433)
On 13 March 2012, the European Union requested consultations with China with respect to China's restrictions on the... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
AGREEMENT UNDER ARTICLE 21.3(B) OF THE DSU
The following communication, dated 8 December 2014, from the delegation of China and the
delegation of the European Union to the Chairper son of the Dispute Settlement Body, is circulated
in a... | 2026-03-15T15:55:42.841009 | |
432 | 432 | DS432_SEQ09_Understanding.pdf | DS432_SEQ09_Understanding.pdf | 9 | Understanding | UNDERSTANDING BETWEEN | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM UNDERSTANDING BETWEEN CHINA AND THE EUROPEAN UNION REGARDING PROCEDURES UNDER ARTICLES 21 AND 22 OF THE DSU | 26 May 2015 | WT/DS432/15 | ['EU'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the European Union. (See also DS431 and DS433)
On 13 March 2012, the European Union requested consultations with China with respect to China's restrictions on the... | 3 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
UNDERSTANDING BETWEEN CHINA AND THE EUROPEAN UNION
REGARDING PROCEDURES UNDER ARTICLES 21 AND 22 OF THE DSU
The following communication, dated 21 May 2015, from the delegation of China and the delegation
of the European Union to the Cha... | 2026-03-15T15:55:42.842496 | |
432 | 432 | DS432_SEQ10_Request_For_Consultations.pdf | DS432_SEQ10_Request_For_Consultations.pdf | 10 | Request_For_Consultations | Request for Consultations by the European Union | NUMBERED | null | null | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 15 March 2012 | WT/DS432/1; G/L/983 | General Council | ['EU'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the European Union. (See also DS431 and DS433)
On 13 March 2012, the European Union requested consultations with China with respect to China's restrictions on the... | 5 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Request for Consultations by the European Union
The following communication, dated 13 March 2012, from the delegation of the
European Union to the delegation of China and to the Chairperson of the Dispute Settlement Body, is
circulat... | 2026-03-15T15:55:42.845780 |
432 | 433 | DS433_SEQ01_Request_To_Join_Consultations.pdf | DS433_SEQ01_Request_To_Join_Consultations.pdf | 1 | Request_To_Join_Consultations | Request to Join Consultations Communication from Canada | NUMBERED | null | null | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 28 March 2012 | WT/DS431/4; WT/DS432/4; WT/DS433/4 | ['Japan'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1 GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of AccessionArt. X:3(a) GATT 1994 | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Japan. (See also DS431 and DS432)
On 13 March 2012, Japan requested consultations with China with respect to China's restrictions on the export of various forms of... | 1 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Request to Join Consultations
Communication from Canada
The following communication, dated 26 March 2012, from the delegation of Canada to the
delegations of China, the United States, the Europ ean Union and Japan and to the Chairpe... | 2026-03-15T15:55:42.858782 | |
432 | 433 | DS433_SEQ02_Note_By_Secretariat.pdf | DS433_SEQ02_Note_By_Secretariat.pdf | 2 | Note_By_Secretariat | Constitution of the Panel Established at the Requests of the United States, the European Union and Japan Note by the Secretariat1 | NUMBERED | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM | 25 September 2012 | WT/DS431/7; WT/DS432/7; WT/DS433/7; WT/DS431/6; WT/DS432/6 | ['Japan'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'U.S.', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1 GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of AccessionArt. X:3(a) GATT 1994 | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Japan. (See also DS431 and DS432)
On 13 March 2012, Japan requested consultations with China with respect to China's restrictions on the export of various forms of... | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
Constitution of the Panel Established at the Requests of the United States,
the European Union and Japan
Note by the Secretariat1
1. At its meeting on 23 July 2012, the Dispute Settlement Body (DSB) established a single panel
pursuan... | 2026-03-15T15:55:42.859923 | |
433 | 431 | DS431_SEQ01_Communication_00.pdf | DS431_SEQ01_Communication_00.pdf | 1 | Communication | COMMUNICATION FROM | NUMBERED | null | 0 | CHINA - MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN AND MOLYBDENUM COMMUNICATION FROM THE CHAIRPERSON OF THE PANEL | 26 March 2013 | WT/DS431/8; WT/DS432/8; WT/DS433/8 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA - MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN AND MOLYBDENUM
COMMUNICATION FROM THE CHAIRPERSON OF THE PANEL
The following communication, dated 22 March 2013, addressed to the Chairperson of the
Dispute Settlement Body (DSB), is circulated in accordance with Article 12.9 of the Dispute
Settlemen... | 2026-03-15T15:55:48.896035 | |
433 | 431 | DS431_SEQ02_Communication_01.pdf | DS431_SEQ02_Communication_01.pdf | 2 | Communication | COMMUNICATION FROM | NUMBERED | null | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM COMMUNICATION FROM THE APPELLATE BODY | 27 June 2014 | WT/DS431/12; WT/DS432/10; WT/DS433/10 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 23 June 2014, from the Chair of the Appellate Body addressed to
the Chair of the Dispute Settlement Body, is circul ated to Members in accordance with Article 17.5... | 2026-03-15T15:55:48.896693 | |
433 | 431 | DS431_SEQ03_Communication_02.pdf | DS431_SEQ03_Communication_02.pdf | 3 | Communication | COMMUNICATION FROM | NUMBERED | null | 2 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM COMMUNICATION FROM THE APPELLATE BODY | 11 August 2014 | WT/DS431/13; WT/DS432/11; WT/DS433/11; WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R. | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
COMMUNICATION FROM THE APPELLATE BODY
The following notification, dated 7 August 2014, from the Chair of the Appellate Body addressed to
the Chair of the Dispute Settlement Body, is circul ated to Members in accordance with Article 17.... | 2026-03-15T15:55:48.897031 | |
433 | 431 | DS431_SEQ04_Addendum_Add.pdf | DS431_SEQ04_Addendum_Add.pdf | 4 | Addendum | Addendum | NUMBERED | Add | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM REPORTS OF THE PANEL | 26 March 2014 | WT/DS431/R/Add.1; WT/DS432/R/Add.1; WT/DS433/R/Add.1; WT/DS431/R; WT/DS432/R; WT/DS433/R. | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 120 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
REPORTS OF THE PANEL
Addendum
This addendum contains Annexes A to C to the Reports of the Panel to be found in
documents , and
• •
LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures o... | 2026-03-15T15:55:48.978754 | |
433 | 431 | DS431_SEQ05_Report_Of_Panel.pdf | DS431_SEQ05_Report_Of_Panel.pdf | 5 | Report_Of_Panel | Panel Report | PANEL_REPORT | null | null | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM REPORTS OF THE PANEL | 26 March 2014 | WT/DS431/R; WT/DS432/R; WT/DS433/R; WT/DS431/R; WT/DS432/R; WT/DS433/R.; WT/DS431/R; WT/DS432/R; WT/DS433/R | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 257 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
REPORTS OF THE PANEL
Note by the Secretariat:
These Panel Reports are in the form of a single document constituting three separate Panel
Reports: , and The cover page, preliminary pages,
sections 1 through 7 are common to the three R... | 2026-03-15T15:55:49.177509 | |
433 | 431 | DS431_SEQ06_Report_Of_Appellate_Body_00.pdf | DS431_SEQ06_Report_Of_Appellate_Body_00.pdf | 6 | Report_Of_Appellate_Body | APPELLATE BODY REPORT | AB_REPORT | null | 0 | CHINA – MEASURES RELATED TO THE EXPORTATION OF RARE EARTHS, TUNGSTEN, AND MOLYBDENUM APPELLATE BODY REPORTS AND PANEL REPORTS ACTION BY THE DISPUTE SETTLEMENT BODY | 2 September 2014 | WT/DS431/14; WT/DS432/12; WT/DS433/12; WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R; WT/DS431/R; WT/DS432/R; WT/DS433/R; WT/DS431/R/Add.1; WT/DS432/R/Add.1; WT/DS433/R/Add.1 | ['U.S.'] | ['China'] | ['Brazil', 'Canada', 'Colombia', 'EU', 'India', 'Japan', 'South Korea', 'Norway', 'Oman', 'Saudi Arabia', 'Taiwan', 'Vietnam', 'Argentina', 'Australia', 'Indonesia', 'Turkey', 'Peru', 'Russia'] | Appellate Body | Art. XI:1, X:3(a) GATT 1994Part I, para. 1.2, Part I, para. 11.3, Part I, para. 5.1, Protocol of Accession | The summary below was up-to-date at
3 December 2015
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the United States. (See also DS432 and DS433)
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the e... | 1 | CHINA – MEASURES RELATED TO THE EXPORTATION OF
RARE EARTHS, TUNGSTEN, AND MOLYBDENUM
APPELLATE BODY REPORTS AND PANEL REPORTS
ACTION BY THE DISPUTE SETTLEMENT BODY
At its meeting on 29 August 2014, the Disput e Settlement Body adopted the Appellate Body
reports on China – Measures Related to the Exportation of Rare Ear... | 2026-03-15T15:55:49.178127 |
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