On April 17, the WTO Secretariat received a communication from China to appeal on the dispute regarding the export of rare earths, tungsten and molybdenum.

First, China seeks review by the Appellate Body over the Panel’s interpretation of Article XII:1 of the Marrakesh Agreement which was read in conjunction with the second sentence of paragraph 1.2 of China’s Accession Protocol. Amongst its arguments, China argues that the Panel failed to correctly interpret Article XII:1 of the Marrakesh Agreement with the second sentence of paragraph 1.2 of China’s Accession Protocol – which lead to the Panel making an error in its finding.

Second, China requests that the Appellate Body reverse the Panel’s finding with regards to interpretation of Article XX(g) of GATT. China argues that the Panel erred in its finding that export quotas for rare earths and tungsten do not relate to the conservation of exhaustible resources, especially on the element of “relating to” within the meaning of Article XX(g) of GATT.

Moreover, China also asks the Appellate Body to review the Panel’s interpretation over the element of “made effective in conjunction with” domestic restrictions within the meaning of Article XX(g) of GATT. Thus, China argues that the Panel failed to make an objective assessment of the matter, which includes making an objective assessment of the facts within the meaning of Article 11 DSU, when reading and applying Article XX(g) of GATT.

On the same day, the WTO Secretariat also received a communication by the US to appeal to the Appellate Body over the same dispute. The US decided to cross appeal on the same dispute over certain issues of law and interpretation over the Panel’s ruling.

The US essentially wants to challenge the Panel’s finding that Section D’s of China’s panel request was not consistent with Article 6.2 of the DSU. The US requests that the Appellate Body review issues of law and related legal interpretations, which focuses on China’s claims that are beyond the terms of reference of the dispute. In particular, the US wishes review on the inconsistency of Article 10, 19.3 and 32.1 of the SCM Agreement as the US contends that it falls beyond the jurisdiction of the Panel to review such issues of law.