DISPUTE SETTLEMENT

DS: United States — Safeguard Measure on Imports of Crystalline Silicon Photovoltaic Products

This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.

  

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Summary of the dispute to date

The summary below was up-to-date at

Consultations

Complaint by China

On 14 August 2018, China requested consultations with the United States concerning the definitive safeguard measure imposed by the United States on imports of certain crystalline silicon photovoltaic products.

China claimed that the measures appear to be inconsistent with:

  • Articles 2.1, 2.2, 3.1, 3.2, 4.1, 4.2, 5.1, 7.1, 7.4, 8.1, 12.1, 12.2 and 12.3 of the Agreement on Safeguards; and
     
  • Articles X:3, XIII, XIX:1(a) and XIX:2 of the GATT 1994.

On 24 August 2018, the United States requested the Chair of the DSB to circulate to Members a communication where it indicated that the United States was willing to enter into consultations with China, without prejudice to the US view that China's letter of 14 August 2018 did not satisfy the requirements of Article 4 of the DSU.

On 24 August 2018, the European Union requested to join the consultations. On 27 August 2018, Thailand requested to join the consultations. On 22 October 2018, the United States informed the DSB that it had accepted both requests to join the consultations.

 

Panel and Appellate Body proceedings

On 11 July 2019, China requested the establishment of a Panel. At its meeting on 22 July 2019, the DSB deferred the establishment of a panel.

At its meeting on 15 August 2019, the DSB established a panel. Brazil, Canada, the European Union, India, Japan, Korea, Malaysia, the Philippines, the Russian Federation and Chinese Taipei reserved their third-party rights.

On 14 October 2019, China requested the Director-General to compose the panel. On 24 October 2019, the Director-General composed the panel.

On 24 April 2020, the Chair of the panel informed the DSB that, due to a delay in the beginning of the panel’s work resulting from the lack of available experienced lawyers in the Secretariat and delays caused by the global COVID-19 pandemic, the panel did not expect to issue its final report to the parties before the end of 2020. On 21 December 2020, the Chair of the panel informed the DSB that in light of further delays in the proceedings caused by the global COVID-19 pandemic, the panel expected to issue its final report to the parties around the middle of 2021. The Chair of the panel apprised the DSB that the report would be available to the public once it was circulated to the Members in all three official languages, and that the date of circulation depends on completion of translation.

On 2 September 2021, the panel report was circulated to Members.

This dispute between China and the United States concerned a safeguard measure imposed by United States on imports of certain crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products (CSPV products). China claimed that the safeguard measure on CSPV products was inconsistent with various provisions of the GATT 1994 and the Agreement on Safeguards.

China's challenge focused on different aspects of the determinations published by the United States International Trade Commission (USITC) that resulted in the imposition of the safeguard measure. Specifically, China challenged the USITC's determinations with respect to “unforeseen developments” and the effect of obligations incurred; the “causal link” between increased imports and the serious injury to the domestic industry; and “other” factors allegedly causing injury to the domestic industry simultaneously with increased imports. China also challenged the USITC's procedural and substantive treatment of confidential information during the safeguard investigation.

The Panel rejected all of China's claims, finding that:

  • China did not establish that the United States' safeguard measure on CSPV products failed to comply with the requirement in Article XIX:1(a) of the GATT 1994 that imports increased “as a result of unforeseen developments and of the effect of the obligations incurred”.
  • China did not establish that the United States acted inconsistently with Articles 2.1, 3.1, and 4.2(b) of the Agreement on Safeguards by failing to demonstrate the required “causal link” between the increased imports and the serious injury found to exist.
  • China did not establish that the United States acted inconsistently with Articles 2.1, 3.1, and 4.2(b) of the Agreement on Safeguards by failing to ensure that injury caused by “other” factors was not attributed to increased imports.
  • China did not establish that the United States acted inconsistently with Articles 3.1 and 3.2 of the Agreement on Safeguards as a result of the procedural and substantive treatment of confidential information during the safeguard investigation.

In light of its rejection of China's claims, the Panel made no recommendation to the DSB pursuant to Article 19.1 of the DSU.

On 16 September 2021, China notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations in the panel report.

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