A while back, I wrote about the Chinese consultations request in the U.S. - Tires Safeguards (DS399) case. I was intrigued by how China presented its claim. Here's what I said then: "instead of simply claiming a violation of the Protocol, China characterizes its claims as being under GATT Article I, and then says that no 'exceptions' have been met." I wondered what the impact of this approach would be, in particular on the burden of proof. (The panel request later expanded the scope of the complaint to cover GATT Article II as well.)
Now we are on to the submissions stage of the dispute. China's submissions are not publicly available as far as I know, but the U.S. first written submission is here. Thus, while we don't know exactly how China argued the point, we can see the U.S. response. Here's what the U.S. had to say about Article I and Article II:
E. The Additional Duties Imposed by the United States on Subject Tires from China Are Not Inconsistent with Article I:1 of the GATT 1994
358. China’s claim that the additional duties imposed by the United States on subject tires from China are inconsistent with U.S. obligations under Article I:1 of the GATT 1994 are dependent on a finding of inconsistency with U.S. obligations under the transitional mechanism.
359. China has failed to demonstrate that the United States has acted inconsistently with its obligations under the transitional mechanism of the Protocol of Accession. The transitional mechanism provides for the application of measures only against imports from China. Therefore this claim must be rejected.
F. The Additional Duties Imposed by the United States on Subject Tires from China Are Not Inconsistent with Article II:1(b) of the GATT 1994
360. China’s claim that the additional duties imposed by the United States on subject tires from China are inconsistent with U.S. obligations under Article II:1(b) of the GATT 1994 are dependent on a finding of inconsistency with U.S. obligations under the transitional mechanism.
361. China has failed to demonstrate that the United States has acted inconsistently with its obligations under the transitional mechanism of the Protocol of Accession. The transitional mechanism provides for the application of measures, including the limitation of imports through the imposition of additional duties on imports from China. Therefore this claim too must be rejected.
In the U.S. view, then, the GATT claims are "dependent" on the claims under the special safeguard provisions in the Protocol.
It will be interesting to see if the panel asks questions on this point. That could give some indication of whether the issue will have any impact.
