As everyone has no doubt heard by now, the U.S., Japan and the EU recently won a big victory over China in the Rare Earths case at the WTO. The WTO panel ruled that various Chinese export duties and quotas violated WTO obligations and were not justified by any exceptions. Here is the USTR press release celebrating the victory:
“Time and again, the Obama Administration has made clear that we are willing to go to the mat for American workers and businesses to make sure that the playing field is fair and level,” said Ambassador Froman. “The United States is committed to ensuring that our trading partners are playing by the rules. We will continue to defend American manufacturers and workers, especially when it comes to leveling the playing field and ensuring that American manufacturers can get the materials they need at a fair market price.”
“China’s decision to promote its own industry and discriminate against U.S. companies has caused U.S. manufacturers to pay as much as three times more than what their Chinese competitors pay for the exact same rare earths. WTO rules prohibit this kind of discriminatory export restraint and this win today, along with our win 2 years ago in an earlier case, demonstrates that clearly.”
“We hope this will discourage further breaches of WTO rules that hurt American manufacturers. This victory shows that we stand prepared to take action whenever necessary to protect the high-quality middle class American jobs that trade supports.”
So, I guess all that's left to do is wait for the invevitable appeal by China, probably toward the end of the 60 day deadline to delay the implementation for as long as possible.
But wait -- the U.S. just appealed! Given the big victory, what was there to appeal? Here is the appeal notice:
1. The United States seeks review by the Appellate Body of the Panel's legal conclusion that it should reject exhibits submitted by the complainants with their comments on China's responses to the Panel's questions after the second meeting pursuant to Article 3.3 of the DSU and paragraph 7 of the Panel's Working Procedures.This finding is in error and is based on erroneous findings on issues of law and legal interpretations, including, for example: the Panel's conclusion that acceptance of such evidence would have presented "due process" concerns for China; the Panel's conclusion that "the submission of new expert reports" would have interfered with the prompt settlement of the dispute; and the Panel's conclusion that to be accepted as rebuttal evidence an exhibit must "rise to the required level of necessity." In reaching these conclusions, the Panel erroneously applied DSU Article 3.3 and failed to provide sufficient time to the United States to prepare its submissions pursuant to DSU Article 12.4.
2. The United States also requests the Appellate Body to find that the Panel acted inconsistently with Article 11 of the DSU by failing to make an objective assessment of the facts by excluding exhibits submitted by the complainants with their comments on China's responses to the Panel's questions after the second meeting; by finding that "the evidence [in question] could and should have been submitted at an earlier date;" and by finding that the evidence in question does not rebut arguments made by China at the second meeting of the Panel.
Basically, the appeal focuses on some pretty minor evidentiary issues that didn't have much impact on the case.
Certainly either party has the right to appeal. And the defending party has the right to take all the time it wants up to the 60 days to make its appeal, in order to delay the process, so shouldn't the complainant have the right to appeal minor issues to speed up the process?
It might be interesting, if you're into that sort of thing, to look at the details on the timing of appeals, and see if there are any insights about how parties are behaving in this regard. We have the data at WorldTradeLaw.net, but I've never looked at it closely.
