Australia – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES
ON CERTAIN PRODUCTS FROM CHINA

Understanding between Australia and China Regarding
Procedures under Articles 21 and 22 of the DSU

The following communication, received on 15 July 2024, from the delegation of Australia and the delegation of China to the Chairperson of the Dispute Settlement Body, is circulated at the request of these delegations.

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On 26 April 2024, the Dispute Settlement Body ("DSB") adopted its recommendations and rulings in the dispute Australia — AD/CVD on Certain Products (China) (WT/DS603). Pursuant to Article 21.3(b) of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"), China and Australia agreed that the reasonable period of time to implement the recommendations and rulings of the DSB in this dispute would be 7 months and 14 days, expiring on 10 December 2024, with an extension of one month until 10 January 2025 if Australia considers that further time is required due to an unavoidable delay (WT/DS603/8).

China and Australia (each a "Party" and collectively, "the Parties") have agreed on the following procedures for the exclusive purposes of this dispute. These are designed to facilitate the resolution of the dispute and reduce the scope for procedural disputes and are without prejudice to either Party's views on the correct interpretation of the DSU:

1._      Should China consider that the situation described in Article 21.5 of the DSU exists, China will request that Australia enter into consultations with China. The Parties agree to hold such consultations within 15 days from the date of receipt of the request. After this 15-day period has elapsed, China may request the establishment of a panel pursuant to Article 21.5 of the DSU at any time.

2._      At the first DSB meeting at which China's request for the establishment of an Article 21.5 panel appears on the agenda, Australia shall accept the establishment of that panel.

3._      The Parties shall cooperate to enable the Article 21.5 panel to circulate its report within 90 days of the panel's establishment, excluding such time during which the panel's work may be suspended pursuant to Article 12.12 of the DSU.

4._      Either Party to the dispute may request the DSB to adopt the report of the Article 21.5 panel at a DSB meeting held at least 20 days but within 60 days after the circulation of the report to the Members, unless either Party appeals the report.

5._      Regarding a potential appeal by either Party, the Parties recall that the Agreed Procedures for Arbitration under Article 25 of the DSU (WT/DS603/4) apply with respect to any final panel report issued in this dispute, including in compliance proceedings pursuant to Article 21.5 of the DSU.

6._      China may request authorization to suspend concessions or other obligations pursuant to Article 22.2 of the DSU only in the event that the DSB rules as a result of a proceeding under Article 21.5 of the DSU that a measure taken to comply does not exist or is inconsistent with a covered agreement. Australia shall not assert that China is precluded from obtaining such DSB authorization because its request was made outside the time period specified in the first sentence of Article 22.6 of the DSU. This is without prejudice to Australia's right to have the matter referred to arbitration in accordance with Article 22.6 of the DSU.

7._      If China requests authorization to suspend concessions or other obligations pursuant to Article 22.2 of the DSU, Australia shall have the right to object under Article 22.6 of the DSU to the level of suspension of concessions or other obligations and/or claim that the principles and procedures set forth in Article 22.3 of the DSU have not been followed. In the event of such objection, the matter will be referred to arbitration pursuant to Article 22.6 of the DSU.

8._      The Parties will cooperate to enable the arbitrator under Article 22.6 of the DSU to circulate its decision within 60 days of the referral to arbitration.

9._      If any of the original panelists is not available for either the Article 21.5 compliance panel or the Article 22.6 arbitration (or both), or any person serving in such proceeding becomes unavailable to serve, the Parties will promptly consult on a replacement, and either Party may request the Director‑General of the WTO to appoint, within ten days of being so requested, a replacement for the proceeding or proceedings in which a replacement is required. If an original panelist is unavailable to serve in either of the proceedings, or a person serving in such proceeding becomes unavailable to serve, the Parties will further request that, in making this appointment, the Director‑General seek a person who will be available to act in both proceedings.

10._   The Parties will continue to cooperate in all matters related to these agreed procedures and agree not to raise any procedural objection to any of the steps set out herein. If, during the application of these procedures, the Parties consider that a procedural aspect has not been properly addressed in these procedures, they will endeavour to find a solution within the shortest time possible that will not affect the other aspects and steps agreed herein.

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