1. U.S. v. China Export Restrictions on Rare Earths
Sahar Ahmed, Hadeel Al-Tashi, Gabriella Beaumont-Smith
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2. POTUS on RARE EARTHS

3. What are rare earths? There are 17 rare earth elements
They are found in small concentrations amalgamated and buried in hard rock
Their extraction emits toxic waste, which poisons water, ruins farmlands,and can cause sickness
Used to make electronic parts, guided missiles, clean energy

4. What are rare earths used for?

5. History and Context 89% of rare earth materials are produced by China
In 2010, the Chinese government reduced its export quotas by 40%, which made the prices external to China of rare earths soar.
The export reduction caused disputes but China argued that the quotas were needed to protect the environment.
cnn.com

6. China’s Rare Earths Production compared to the US
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7. Consumption and production of rare earths

8. Consumption (in blue) and production (in red) of rare earths in tons

9. Prior Proceedings
In 2009, the U.S. began consultations with China with respect to China's restraints on exports from China of various forms of raw materials.
The U.S. cited 32 measures through which China allegedly imposed restraints on exports of various forms of bauxite, coke, fluorspar, magnesium, manganese, silicon carbide, silicon metal, yellow phosphorus and zinc and noted that there appeared to be additional unpublished restrictive measures.
The United States considered that China, through these measures as well as any amendments, replacements, related measures, and implementing measures, was in violation of:
Articles VIII, X, and XI of the GATT 1994; and Paragraphs 5.1, 5.2, 8.2, and 11.3 of Part I of the Protocol on the Accession of the People's Republic of China (“Accession Protocol”), as well as China's obligations under the provisions of paragraph 1.2 of Part I of the Accession Protocol (which incorporates commitments in paragraphs 83, 84, 162, and 165 of the Report of the Working Party on the Accession of China).
On 2 July 2009, the European Communities requested to join the consultations.
On 6 July 2009, Canada, Mexico and Turkey requested to join the consultations.
Subsequently, China informed the DSB that it had accepted the requests of Canada, the European Communities, Mexico and Turkey to join the consultations.
On 4 November 2009, the United States requested the establishment of a panel.
The complainants argued that the use of export restraints created scarcity and caused higher prices of the raw materials in global markets. They also provided the Chinese domestic industry with a significant advantage by way of a sufficient supply, and lower and more stable prices for the raw materials.

10. Top trade partners with the US: US imports most from China and exports most to Canada and Mexico

11. Business-political context
Upon its accession to the WTO, China undertook to eliminate all export duties (taxes) except for a number of products listed in an Annex to its Protocol of Accession.
China also committed not to apply export quotas
“Both the United States and China have been aggressive users of the WTO Dispute Resolution System. However, China has been brought before the WTO more often than it has brought cases” (U.S.-China Litigation in the World Trade Organization, Malawer).
Since President Obama entered office in 2009, his administration filed 20 WTO cases and won every one that was decided.
“At the time of this assertion, there were 11 filings against China. The cases filed against China that have been won by the US have concerned, among others: Chinese duties or restrictions on the US high-tech steel exports; violation of intellectual property rights; dumping of Chinese tires into the US marketplace; restrictions on imports of autos into China; and restricted use of electronic payment systems (credit cards) in China” (Obama’s China Policy, Malawer).
“It also involved Chinese restrictions on exports of rare Earth elements and other raw materials from China” (Obama’s China Policy, Malawer).
The US has filed more cases against China than any other country.
“China has tended to promptly implement all adverse decisions that the US has secured against it. The Obama administration has generally been very active in the WTO litigation and successful in those cases against China specifically. However, the US has also lost a number of cases brought against it by China... China has implemented the adverse decisions of the WTO. This should be noted more by the administration, since it shows a positive aspect of China’s engagement in the global trading system and its acceptance of and role in developing rules of the road (Obama’s China Policy, Malawer).

12. China Restricts the Export of Rare Earths
What is the Issue?
China Restricts the Export of Rare Earths
(Tungsten & Molybdenum)
Duties
(Taxes)
Export Quotas
Certain Limitations on the Enterprises Permitted to Export the Material

13. The main WTO issue, the position of the main parties, and the decision of the panel
On 13 March 2012, the United States requested consultations with China with respect to China’s restrictions on the export of various forms of rare earths, tungsten and molybdenum.
These restrictions included export duties, export quotas, minimum export price requirements, export licensing requirements and additional requirements and procedures in connection with the administration of the quantitative restrictions.
The United States claimed that these measures were inconsistent with:
Articles VII, VIII, X and XI of the GATT 1994; and paragraphs 2(A)2, 2(C)1, 5.1, 5.2, 7.2, 8.2 and 11.3 of Part I of China’s Protocol of Accession, as well as China’s obligations under paragraph 1.2 of Part I of the Protocol of Accession.
On 8 April 2014, the United States notified the DSB of its decision to appeal to the Appellate Body certain issues of law covered in the Panel Report and certain legal interpretations developed by the panel. On 17 April 2014, China filed another appeal in the same dispute.

14. The WTO Agreement and specific provisions involved
GATT 1994
Article VII: Valuation for Customs Purposes
Article VIII: Fees and Formalities connected with Importation and Exportation
Article X: Publication and Administration of Trade Regulations
Article XI: General Elimination of Quantitative Restrictions
Article XX: General Exceptions
China’s Protocol of Accession
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15. Article VII: Valuation for Customs Purposes
“1. The contracting parties recognize the validity of the general principles of valuation set forth in the following paragraphs of this Article, and they undertake to give effect to such principles, in respect of all products subject to duties or other charges* or restrictions on importation and exportation based upon or regulated in any manner by value. Moreover, they shall, upon a request by another contracting party review the operation of any of their laws or regulations relating to value for customs purposes in the light of these principles. The CONTRACTING PARTIES may request from contracting parties reports on steps taken by them in pursuance of the provisions of this Article.” (GATT 1994)
“2. (a) The value for customs purposes of imported merchandise should be based on the actual value of the imported merchandise on which duty is assessed, or of like merchandise, and should not be based on the value of merchandise of national origin or on arbitrary or fictitious values.* (GATT 1994)
(b) “Actual value” should be the price at which, at a time and place determined by the legislation of the country of importation, such or like merchandise is sold or offered for sale in the ordinary course of trade under fully competitive conditions. To the extent to which the price of such or like merchandise is governed by the quantity in a particular transaction, the price to be considered should uniformly be related to either (i) comparable quantities, or (ii) quantities not less favourable to importers than those in which the greater volume of the merchandise is sold in the trade between the countries of exportation and importation.* (GATT 1994)
(c) When the actual value is not ascertainable in accordance with subparagraph (b) of this paragraph, the value for customs purposes should be based on the nearest ascertainable equivalent of such value.*” (GATT 1994)

16. Article VII: Valuation for Customs Purposes
“3. The value for customs purposes of any imported product should not include the amount of any internal tax, applicable within the country of origin or export, from which the imported product has been exempted or has been or will be relieved by means of refund.” (GATT 1994)
“ (a) Except as otherwise provided for in this paragraph, where it is necessary for the purposes of paragraph 2 of this Article for a contracting party to convert into its own currency a price expressed in the currency of another country, the conversion rate of exchange to be used shall be based, for each currency involved, on the par value as established pursuant to the Articles of Agreement of the International Monetary Fund or on the rate of exchange recognized by the Fund, or on the par value established in accordance with a special exchange agreement entered into pursuant to Article XV of this Agreement.
(b) Where no such established par value and no such recognized rate of exchange exist, the conversion rate shall reflect effectively the current value of such currency in commercial transactions.
(c) The CONTRACTING PARTIES, in agreement with the International Monetary Fund, shall formulate rules governing the conversion by contracting parties of any foreign currency in respect of which multiple rates of exchange are maintained consistently with the Articles of Agreement of the International Monetary Fund. Any contracting party may apply such rules in respect of such foreign currencies for the purposes of paragraph 2 of this Article as an alternative to the use of par values. Until such rules are adopted by the Contracting Parties, any contracting party may employ, in respect of any such foreign currency, rules of conversion for the purposes of paragraph 2 of this Article which are designed to reflect effectively the value of such foreign currency in commercial transactions.
(d) Nothing in this paragraph shall be construed to require any contracting party to alter the method of converting currencies for customs purposes which is applicable in its territory on the date of this Agreement, if such alteration would have the effect of increasing generally the amounts of duty payable.” (GATT 1994)
“5. The bases and methods for determining the value of products subject to duties or other charges or restrictions based upon or regulated in any manner by value should be stable and should be given sufficient publicity to enable traders to estimate, with a reasonable degree of certainty, the value for customs purposes.” (GATT 1994)

17. Article VIII: Fees and Formalities connected with Importation and Exportation
“1. (a) All fees and charges of whatever character (other than import and export duties and other than taxes within the purview of Article III) imposed by contracting parties on or in connection with importation or exportation shall be limited in amount to the approximate cost of services rendered and shall not represent an indirect protection to domestic products or a taxation of imports or exports for fiscal purposes.
(b) The contracting parties recognize the need for reducing the number and diversity of fees and charges referred to in subparagraph (a)
(c) The contracting parties also recognize the need for minimizing the incidence and complexity of import and export formalities and for decreasing and simplifying import and export documentation requirements.*” (GATT 1994)
“2. A contracting party shall, upon request by another contracting party or by the CONTRACTING PARTIES, review the operation of its laws and regulations in the light of the provisions of this Article.” (GATT 1994)
“3. No contracting party shall impose substantial penalties for minor breaches of customs regulations or procedural requirements. In particular, no penalty in respect of any omission or mistake in customs documentation which is easily rectifiable and obviously made without fraudulent intent or gross negligence shall be greater than necessary to serve merely as a warning.” (GATT 1994)
4. The provisions of this Article shall extend to fees, charges, formalities and requirements imposed by governmental authorities in connection with importation and exportation, including those relating to:(a) consular transactions, such as consular invoices and certificates;(b) quantitative restrictions;(c) licensing; (d) exchange control;(e) statistical services; (f) documents, documentation and certification;(g) analysis and inspection; and (h) quarantine, sanitation and fumigation.” (GATT 1994)

18. Article X: Publication and Administration of Trade Regulations
“1. Laws, regulations, judicial decisions and administrative rulings of general application, made effective by any contracting party, pertaining to the classification or the valuation of products for customs purposes, or to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports or on the transfer of payments therefor, or affecting their sale, distribution, transportation, insurance, warehousing inspection, exhibition, processing, mixing or other use, shall be published promptly in such a manner as to enable governments and traders to become acquainted with them. Agreements affecting international trade policy which are in force between the government or a governmental agency of any contracting party and the government or governmental agency of any other contracting party shall also be published. The provisions of this paragraph shall not require any contracting party to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.” (GATT 1994)
“2. No measure of general application taken by any contracting party effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor, shall be enforced before such measure has been officially published.” (GATT 1994)

19. Article X: Publication and Administration of Trade Regulations
“3. (a) Each contracting party shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind described in paragraph 1 of this Article.
(b) Each contracting party shall maintain, or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action relating to customs matters. Such tribunals or procedures shall be independent of the agencies entrusted with administrative enforcement and their decisions shall be implemented by, and shall govern the practice of, such agencies unless an appeal is lodged with a court or tribunal of superior jurisdiction within the time prescribed for appeals to be lodged by importers; Provided that the central administration of such agency may take steps to obtain a review of the matter in another proceeding if there is good cause to believe that the decision is inconsistent with established principles of law or the actual facts.
(c) The provisions of subparagraph (b) of this paragraph shall not require the elimination or substitution of procedures in force in the territory of a contracting party on the date of this Agreement which in fact provide for an objective and impartial review of administrative action even though such procedures are not fully or formally independent of the agencies entrusted with administrative enforcement. Any contracting party employing such procedures shall, upon request, furnish the CONTRACTING PARTIES with full information thereon in order that they may determine whether such procedures conform to the requirements of this subparagraph.” (GATT 1994)

20. Article XI: General Elimination of Quantitative Restrictions
“1. No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party. “(GATT 1994)
“2. The provisions of paragraph 1 of this Article shall not extend to the following:
(a) Export prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of foodstuffs or other products essential to the exporting contracting party;
(b) Import and export prohibitions or restrictions necessary to the application of standards or regulations for the classification, grading or marketing of commodities in international trade;
(c) Import restrictions on any agricultural or fisheries product, imported in any form,* necessary to the enforcement of governmental measures which operate:
(i) to restrict the quantities of the like domestic product permitted to be marketed or produced, or, if there is no substantial domestic production of the like product, of a domestic product for which the imported product can be directly substituted; or
(ii) to remove a temporary surplus of the like domestic product, or, if there is no substantial domestic production of the like product, of a domestic product for which the imported product can be directly substituted, by making the surplus available to certain groups of domestic consumers free of charge or at prices below the current market level; or
(iii) to restrict the quantities permitted to be produced of any animal product the production of which is directly dependent, wholly or mainly, on the imported commodity, if the domestic production of that commodity is relatively negligible.“ (GATT 1994)

21. ARTICLE XX: General Exception
“Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
(a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health; (c) relating to the importations or exportations of gold or silver; (d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices; (e) relating to the products of prison labour; (f) imposed for the protection of national treasures of artistic, historic or archaeological value; (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; (h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the CONTRACTING PARTIES and not disapproved by them or which is itself so submitted and not so disapproved; (i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry, and shall not depart from the provisions of this Agreement relating to nondiscrimination; (j) essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of the Agreement shall be discontinued as soon as the conditions giving rise to them have ceased to exist. The CONTRACTING PARTIES shall review the need for this sub-paragraph not later than 30 June 1960.” (GATT 1994)

22. CHINA’S PROTOCOL OF ACCESSION
Part 1 Paragraph 1.2: General
“The WTO Agreement to which China accedes shall be the WTO Agreement as rectified, amended or otherwise modified by such legal instruments as may have entered into force before the date of accession. This Protocol, which shall include the commitments referred to in paragraph 342 of the Working Party Report, shall be an integral part of the WTO Agreement.” (Protocol of Accession)
Part 1 Paragraph 5.1: Right to Trade
“Without bias to China's right to regulate trade in a manner consistent with the WTO Agreement, China shall progressively loosen the availability and scope of the right to trade, so that, within three years after accession, all enterprises in China shall have the right to trade in all goods throughout the customs territory of China, except for those goods listed in Annex 2A which continue to be subject to state trading in accordance with this Protocol. Such right to trade shall be the right to import and export goods. All such goods shall be accorded national treatment under Article III of the GATT 1994, especially paragraph 4 thereof, in respect of their internal sale, offering for sale, purchase, transportation, distribution or use, including their direct access to end-users. For those goods listed in Annex 2B, China shall phase out limitation on the grant of trading rights pursuant to the schedule in that Annex. China shall complete all necessary legislative procedures to implement these provisions during the transition period.” (Protocol of Accession)

23. CHINA’S PROTOCOL OF ACCESSION
Part 1 Paragraph 5.2: Right to trade
“Except as otherwise provided for in this Protocol, all foreign individuals and enterprises, including those not invested or registered in China, shall be accorded treatment no less favourable than that accorded to enterprises in China with respect to the right to trade.” (Protocol of Accession)
Part 1 Paragraph 7.2: Non-Tariff Measures
“In implementing the provisions of Articles III and XI of the GATT 1994 and the Agreement on Agriculture, China shall eliminate and shall not introduce, re-introduce or apply non-tariff measures that cannot be justified under the provisions of the WTO Agreement. For all non-tariff measures, whether or not referred to in Annex 3, that are applied after the date of accession, consistent with the WTO Agreement or this Protocol, China shall allocate and otherwise administer such measures in strict conformity with the provisions of the WTO Agreement, including GATT 1994 and Article XIII thereof, and the Agreement on Import Licensing Procedures, including notification requirements.” (Protocol of Accession)

24. CHINA’S PROTOCOL OF ACCESSION
Part 1 Paragraph 8.2: Import and Exporting License
“Except as otherwise provided for in this Protocol, foreign individuals and enterprises and foreign-funded enterprises shall be accorded treatment no less favourable than that accorded to other individuals and enterprises in respect of the distribution of import and export licences and quotas.” (Protocol of Accession)
Part 1 Paragraph 11.3: Taxes and Charges Levied on Imports and Exports
“China shall eliminate all taxes and charges applied to exports unless specifically provided for, in Annex 6 of this Protocol or applied in conformity with the provisions of Article VIII of the GATT 1994.” (Protocol of Accession)

25. The WTO Dispute Settlement Body (DSB) Recommendations and Rulings
The panel and Appellate Body reports found that China's export restrictions on rare earths, tungsten and molybdenum were in breach of China's WTO obligations and not justified under the GATT exceptions
China's implementation of the recommendations and rulings of the DSB in these disputes would benefit all members and would contribute to global growth and prosperity

26. Implementation of Adopted Reports
On 8 December 2014, China has 8 months and 3 days to implement the DSB recommendations and rulings
On 20 May 2015, The Ministry of Commerce and the General Administration of Customs of China removed export duties and export quotas to rare earths, tungsten and molybdenum as well as other restriction that were inconsistent with WTO rules
On 21 May 2015, China and the United States informed the DSB of Agreed Procedures under Articles 21 and 22 of the DSU

27. Observation: Environmental Conservation or Trade Discrimination?
Reports show that during the time of China’s export restraints on rare earths, China dramatically increased its production and consumption of rare earth goods
While production of rare earth magnets in other countries at best increased only modestly (and often stagnated or declined) China’s Production Skyrocketed by a factor of ten
Mid 2010, there was a dramatic price difference what Chinese consumers and non-Chinese consumers paid for rare earths
According to a WTO study, the export restrictions have given a competitive advantage to manufacturers in China that use rare earths to make their products, while putting foreign rivals at a disadvantage

28. Observation: Resource Weapons?
Arab States used restrictions on oil exports as a political weapon in 1956, 1967 and 1973, China tried using its near monopoly on rare earth elements as a form of leverage on other governments
WTO can contribute to the stabilization of global trade in natural resources and restrain the proliferation of protectionism in some source- endowed countries

29. References http://www.austlii.edu.au/au/journals/MelbJIL/2015/14.html
ttp://foreignpolicy.com/2016/07/12/decoder-rare-earth-market-tech-defense-clean-energy-china-trade/