Article 32 Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or(b) leads to a result which is manifestly absurd or unreasonable.
WT/DS103/AB/R, WT/DS113/AB/R:CANADA – MEASURES AFFECTING THE IMPORTATION OF MILK AND THE EXPORTATION OF DAIRY PRODUCTS(13 October 1999, Report of the Appellate Body).
原文：China asserts, to be a "public body", an entity must be authorized by the law of the state to exercise functions of a governmental or public character, and the acts in question must be performed in the exercise of such authority. Panel Report(379) , para. 8.5.
原文：In this context China, paraphrasing the Appellate Body in Canada – Dairy, argues that a "public body" should be defined as "an entity which exercises powers vested in it by a ''government'' for the purpose of performing functions of a ''governmental'' character". Panel Report(379) , para. 8.5.
《农业协定》AGREEMENT ON AGRICULTURE
Article 9 Export Subsidy Commitments
1. The following export subsidies are subject to reduction commitments under this Agreement:
(a) the provision by governments or their agencies of direct subsidies, including payments-in-kind, to a firm, to an industry, to producers of an agricultural product, to a cooperative or other association of such producers, or to a marketing board, contingent on export performance;
原文：According to China, what distinguishes the conduct of public bodies from that of private bodies is not the degree of government ownership – the government may have ownership interests in both – but the source and nature of the authority the entities possess and exercise. Panel Report(379) , para. 8.5. 本文在反复重复，该案争论的主题是“公共机构”的含义，不是“公共机构”和“私营机构”的区别，更不是如何对待“国有企业”的问题。就算争论也罢，事实上，在考察“公共机构”和“私营机构”的区别时，国家所有的程度是具有决定性的依据。政府在“公共机构”和“私营机构”两者中均保留所有权这一事实不能成为否定所有权法律功能的根据，正是国家所有权在决定实体的性质。“公共机构”的半数以上所有权一定是掌握在国家手中的。国家可以掌握部分私营机构的所有权，但其所有程度达不到控制实体的程度时，仍然是“私有机构”。换言之，同样是由国家掌握所有权的实体，因国家掌握的所有权是否超过半数为标准，性质可以或“公”或“私”，两者是完全不同的。
原文：China states therefore that in the investigations at issue in the present dispute, absent actual evidence establishing that the state-owned entities were vested with authority to exercise governmental authority in connection with the provision of the alleged financial contributions at issue, as a matter of law those entities'' actions must be deemed to be those of private entities. Panel Report(379) , para. 8.5.
原文：China relies on various dictionary definitions of the term "public" to argue that the ordinary meaning of the term "public body" requires the essential elements that such an entity acts for the welfare and best interests of a nation or community as a whole, and does so under the authority, or officially on behalf, of the nation or community as a whole. Panel Report(379) , para. 8.7.
原文：China argues further that the phrase in Article 1.1(a)(1), "a government or other public body" explicitly equates, and treats as "functional equivalents", the terms "government" and "public body". Panel Report(379) , para. 8.7.
原文：According to China, the Agreement differentiates between this type of entity and "private bodies" in Article 1.1(a)(1)(iv), the actions of which require "entrustment or direction" from a government to perform one of the functions enumerated in Article 1.1(a)(1)(i)-(iii) in order to be deemed financial contributions by a government. Panel Report(379) , para. 8.7.
原文：For China, the fact that entrustment or direction of the actions of private bodies brings those actions within the purview of "government financial contribution" demonstrates that in all cases, the sine qua non of a "financial contribution" is the exercise of some element of governmental authority in connection with performing functions of a governmental character. Panel Report(379) , para. 8.7.
原文：China also considers that the definitions of the corresponding French and Spanish terms "organisme public" and "organismo público" in Article 1.1 of the SCM Agreement support its argument concerning the ordinary meaning of the term "public body". Panel Report(379) , para. 8.8.
原文：China argues that all three terms are presumed to have the same meaning under Article 33(3) of the Vienna Convention, and that the Panel must examine this meaning. Panel Report(379) , para. 8.8.
原文：According to China, the French term "public" and the Spanish term "público" connote "governmental", which is consistent with several dictionary definitions of the English term "public". China also points to the OECD Economics Glossary which it argues equates "organisme public" with the English term "government agency". Panel Report(379) , para. 8.8.
原文：China further argues that in the Agreement on Agriculture the Spanish term "organismo público" is expressly equated to the English term "government agency", and that the Appellate Body in Canada - Dairy established unequivocally that the same Spanish and French terms at issue in Article 1.1 of the SCM Agreement have the same meaning as the English term "government agency". Panel Report(379) , para. 8.8.
原文：According to China, Article 33 of the Vienna Convention requires the Panel to interpret the English term "public body" consistently with the fact that the French and Spanish versions of that term mean "government agency", and the only coherent way to do so is to interpret the English terms "public body" and "government agency" as functional equivalents, just as they are treated in the French and Spanish languages. Panel Report(379) , para. 8.8.
Article 33(Interpretation of treaties authenticted in tow or more languages):
4. Except where a particular text prevails in accordance with paragaph 1, when a comparison of the ahthentic text discloses a difference of meaning which the application of articles 31 and 32 dose not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adapted.
原文：China disagrees with the United States concerning the meaning of the conjunction "or" in Article 1.1(a)(1) between the terms "government" and "public body". Panel Report(379) , para. 8.9.
原文：In China''s view, this word does not suggest that the two terms must have wholly dissimilar and unrelated meanings, but only that the terms are not identical. Panel Report(379) , para. 8.9. 毕竟中国还在承认“公共机构”和“政府”之间存在区别。
WT/DS194/R: UNITED STATES - MEASURES TREATING EXPORTS RESTRAINTS AS SUBSIDIES (29 June 2001, Report of the Panel), para.8.32.
原文：China argues that "or" frequently connects words or phrases that are similar or functional equivalents, and cites the report of the US – Export Restraints panel''s reference to the word "or" between the phrases "a government makes payments to a funding mechanism" and "entrusts or directs a private body" in subparagraph (iv) of Article 1.1(a)(1) as meaning that the two phrases captured equivalent government actions. Panel Report(379) , para. 8.9.
WT/DS194/R: UNITED STATES - MEASURES TREATING EXPORTS RESTRAINTS AS SUBSIDIES (29 June 2001, Report of Panel).
原文：China also disagrees with the United States concerning the significance of the adjective "any" to modify "public body" in Article 1.1(a)(1) of the Agreement. Panel Report(379) , para. 8.10.
原文：According to China, the "any" only indicates that all entities that qualify as public bodies – however that term is defined – are captured within the scope of Article 1.1, but says nothing about the characteristics that define a public body, and offers no support for the United States'' per se majority government ownership test. Panel Report(379) , para. 8.10.
原文：China argues that its interpretation of the term "public body" also is supported contextually by the General Agreement on Trade in Services (the "GATS"). According to China, paragraph 5(c)(i) of the Annex on Financial Services to the GATS (the "GATS Financial Services Annex") defines the term "public entity" as an "entity owned or controlled by a Member, that is principally engaged in carrying out governmental functions or activities for governmental purposes ...". Panel Report(379) , para. 8.11.
原文：For China, this definition reflects a similar view of the functional equivalence between "government" and "public body" that, in China''s view, exists in Article 1.1 of the SCM Agreement. Panel Report(379) , para. 8.11.
原文：In addition, China argues, the GATS definition indicates that when an entity is "merely ''owned or controlled by a Member''", it will qualify as a public entity only if it is "carrying out governmental functions or activities for governmental purposes", that entities owned or controlled by governments may carry out both governmental and commercial functions, and that they are deemed to be "public" only when principally engaged in the former. Panel Report(379) , para. 8.11.
原文：According to China, Article I:3(a) of the GATS also provides relevant context by defining "measures by Members" to include measures by governmental actors ("central, regional or local governments or authorities") and non-governmental bodies "in the exercise of powers delegated by central, regional or local governments or authorities". Panel Report(379) , para. 8.11.
原文：China argues that if the actions of non-governmental bodies may be attributed to a Member for purposes of the GATS only when they are exercising authority delegated to them by the government, it is difficult to envision any rational justification for applying any less demanding a standard for attributing the actions of a "public body" to a Member under Article 1.1 of the Agreement. Panel Report(379) , para. 8.11.
《服务贸易总协定》前言规定：“希望建立一个服务贸易原则和规则的多边框架，以期在透明和逐步自由化的条件下扩大此类贸易，并以此为手段促进所有贸易伙伴的经济增长和发展中国家的发展；期望在给予国家政策目标应有尊重的同时，通过连续回合的多边谈判，在互利基础上促进所有参加方的利益，并保证权利和义务的总体平衡，以便早日实现服务贸易自由化的逐步提高”。
拆除或减少阻挡商品流通的国境措施（贸易壁垒）是贸易自由化的首要工作。《WTO协定》规范的国境措施主要是指关税、数量限制、卫生检疫、产品的技术规格、海关估价、原产地规则等。
目前，《WTO协定》尚未做出有关减少或减轻国内管理措施以解放国内市场商品流通的法律规定，WTO成员只要不实施歧视进口产品的国内管理措施即可，即国民待遇原则的遵守。所以，《WTO协定》的绝大部分内容是规范国境措施的。
AGREEMENT ESTABLISHING THE WORLD TRADE ORGANIZATION Article III Functions of the WTO
1. The WTO shall facilitate the implementation, administration and operation, and further the objectives, of this Agreement and of the Multilateral Trade Agreements, and shall also provide the framework for the implementation, administration and operation of the Plurilateral Trade Agreements.
3. The WTO shall administer the Understanding on Rules and Procedures Governing the Settlement of Disputes (hereinafter referred to as the "Dispute Settlement Understanding" or "DSU") in Annex 2 to this Agreement.
4. The WTO shall administer the Trade Policy Review Mechanism (hereinafter referred to as the "TPRM") provided for in Annex 3 to this Agreement. 这里的AGREEMENT ESTABLISHING THE WORLD TRADE ORGANIZATION是指狭义《WTO协定》，其内容限于正文的16条，不包括附件在内。the Multilateral Trade Agreements是指附件1、2、3，the Plurilateral Trade Agreements是指附件4. 这些协定的共性可概括为“为实现贸易自由化对政府贸易管理措施的约束和规范”。
PART II: PROHIBITED SUBSIDIES
Article 3 Prohibition
3.1 Except as provided in the Agreement on Agriculture, the following subsidies, within the meaning of Article 1, shall be prohibited:
(a) subsidies contingent, in law or in fact , whether solely or as one of several other conditions, upon export performance, including those illustrated in Annex I.
(b) subsidies contingent, whether solely or as one of several other conditions, upon the use of domestic over imported goods.
《服务贸易总协定》Article XVI Market Access
2. In sectors where market-access commitments are undertaken, the measures which a Member shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;（以下省略）
如前所述，补贴定义以及反补贴税是以贸易自由化为前提的法律问题，如果没有贸易自由化，无论政府给本国企业提供多大的补贴并增强其竞争力，至少在国际层面上是不会成为问题的。
原文：China refers to the International Law Commission''s Draft Articles on Responsibility of States for Internationally Wrongful Acts (the "Draft Articles") as compelling its interpretation of the term "public body" in Article 1.1 of the SCM Agreement. Panel Report(379) , para. 8.12.
原文：According to China, as a general matter prior panels and the Appellate Body have considered the Draft Articles "relevant rules of international law applicable in the relations between the parties", in the sense of Article 31(3)(c) of the Vienna Convention, for purposes of interpreting the covered agreements. Panel Report(379) , para. 8.12.
原文：In this regard, concerning the interpretation of Article 1.1 of the SCM Agreement, China recalls that in US – Countervailing Duty Investigation on DRAMS the Appellate Body referred to the Draft Articles in the section of its report entitled "The meaning of the terms ''entrusts'' and ''directs''" in Article 1.1(a)(1)(iv). In particular, China notes the Commentary to Article 8 of the Draft Articles, to which the Appellate Body referred in a footnote in the US – Countervailing Duty Investigation on DRAMS report. Panel Report(379) , para. 8.13.
原文：According to China, this passage of the Commentary makes clear that state ownership is not sufficient to attribute the conduct of a state-owned corporate entity to a state, and by extension to a Member for purposes of Article 1.1 of the SCM Agreement, and that instead it supports China''s view of the term "public body". Panel Report(379) , para. 8.13.
原文：Furthermore, in China''s view, the Appellate Body''s citation of this passage demonstrates that the Draft Articles are "relevant rules of international law" for purposes of interpreting the WTO Agreement, and thus must be relied upon in the present dispute in determining whether the USDOC''s determination that the SOEs and SOCBs were public bodies was consistent with the SCM Agreement. Panel Report(379) , para. 8.13.
该案未进入上诉级阶段就解决了争端。“韩国影响商用船舶贸易案”专家组报告：WT/DS273/R: KOREA – MEASURES AFFECTING TRADE IN COMMERCIAL VESSELS(7 March 2005, Report of the Panel).
原文：China further argues that to the extent that the panel in Korea – Commercial Vessels can be read as endorsing a test for determining whether an entity is a public body solely by reference to government ownership or control, its reasoning is not persuasive and should not be followed. Panel Report(379) , para. 8.14.
原文：China argues in this regard that among other errors, that panel failed to acknowledge the mandatory nature of recourse to customary principles of international law under Article 31(3)(c) of the Vienna Convention, an oversight that in China''s view cannot be reconciled with what it considers the Appellate Body''s express reliance on the Draft Articles in interpreting Article 1.1(a)(1)(iv) of the SCM Agreement. Panel Report(379) , para. 8.14.
原文：According to China, defining "public body" solely by reference to government ownership or control cannot be reconciled with the Appellate Body''s recognition in US – Countervailing Duty Investigation on DRAMS, consistent with customary international law, that the conduct of a state-owned corporate entity presumptively is not attributable to a government unless that entity is exercising governmental authority within the meaning of Article 5, or determined to be under the direction or control of the State within the meaning of Article 8, of the Draft Articles. Panel Report(379) , para. 8.14.
原文：Here, China disagrees with the argument advanced by the United States that a majority ownership rule is necessary to "prevent circumvention of the SCM Agreement so that subsidizing governments cannot hide behind their ownership interests in enterprises to avoid the reach of the SCM Agreement." Panel Report(379) , para. 8.15 .
原文：Concerning the object and purpose of the SCM Agreement, China considers that the United States'' interpretation, if accepted, would have far-reaching and troubling implications for the proper application of the SCM Agreement. Panel Report(379) , para. 8.15.
原文：China considers this to be a baseless concern, because subparagraph (iv) of Article 1.1 is an acknowledged anti-circumvention provision that squarely addresses it. Panel Report(379) , para. 8.15
China also disagrees with what it views as the United States'' argument that the entrustment or direction standard is too burdensome and might be evaded when government-owned entities are involved. Panel Report(379) , para. 8.15.
原文 China is concerned that if the position of the United States is accepted, subparagraph (iv) would become a dead letter for entities with majority government ownership – a category of entities to which, in China''s view, subparagraph (iv) was previously considered applicable by both panels and WTO Members alike. Panel Report(379) , para. 8.15.
原文：China considers that the interpretation advocated by the United States, which in its view is not based on the actual treaty standards, would flout the object and purpose of the SCM Agreement. Panel Report(379) , para. 8.16.
原文：In particular, China argues, the SCM Agreement "reflects a delicate balance between the Members that sought to impose more disciplines on the use of subsidies and those that sought to impose more disciplines on the application of countervailing measures". Both aspects of this "balance" are evident in Article 1.1, including the "discipline" imposed by the entrustment or direction standard. Panel Report(379) , para. 8.16.
原文：For China, the possibility that it may not be easy, as a practical matter, to meet the standards of a covered agreement has never dissuaded the Appellate Body from strictly enforcing those standards, and it urges the Panel to be guided by the same approach here. Panel Report(379) , para. 8.16.
《维也纳条约法公约》相关规定：Article 31 General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
Article 5 Adverse Effects
No Member should cause, through the use of any subsidy referred to in paragraphs 1 and 2 of Article 1, adverse effects to the interests of other Members, i.e.:
(a) injury to the domestic industry of another Member;
(b) nullification or impairment of benefits accruing directly or indirectly to other Members under GATT 1994 in particular the benefits of concessions bound under Article II of GATT1994;
(c) serious prejudice to the interests of another Member.
原文：China criticizes the USDOC for not applying the five-factor test that it had applied in certain prior cases. Panel Report(379) , para. 8.18.
原文：(i) government ownership; (ii) the government''s presence on the entity''s board of directors; (iii) the government''s control over the entity''s activities; (iv) the entity''s pursuit of governmental policies or interests; and (v) whether the entity is created by statute. Panel Report(379) , para. 8.18.
原文：China argues that in some prior cases where this test was applied, the USDOC had found that even 100 per cent government-owned entities were not public bodies under U.S. law, and thus could not convey financial contributions unless they were "entrusted or directed" to do so. Panel Report(379) , para. 8.18.
原文：According to the United States, these past cases indicate that the USDOC approaches public body issues on a case-by-case basis, with the five-factor test usually arising where there is not clear evidence of government ownership or control. For the United States, this makes sense as most of the five factors relate to ownership or control of an entity. Panel Report(379) , para. 8.38.
原文：The United States thus considers that these past decisions do not indicate a USDOC interpretation of the "public body" language in the SCM Agreement. Concerning the DRAMS from Korea investigation, the United States recalls that the USDOC analyzed five factors and, as China notes, concluded that certain 100 per cent government-owned banks in that case were not public bodies. The United States submits that the critical factor public bodies was that, as the USDOC stated in that investigation, "temporary explaining this determination that 100 per cent government-owned banks were not necessarily ownership of the banks due to the financial crisis is not, by itself, indicative that these banks are authorities". Then, in the DRAMS from Korea investigation, an analysis of more than ownership, and even of entrustment or direction for some banks, was necessary due to the fact that the Korean government had assumed many temporary ownership stakes as a result of the Korean financial crisis. Panel Report(379) , para. 8.39.
原文：The United States further notes that in a subsequent countervailing duty administrative review of Hot-Rolled Carbon Steel Flat Products from India, the USDOC found that a 98 per cent government-owned mining company governed by the Ministry of Steel was a public body, without reference to any more factors. Panel Report(379) , para. 8.39.
原文：While China asserts that it is not raising before the Panel the consistency with Article 1.1 of the SCM Agreement of the five-factor test, China also takes issue with the USDOC''s statements in three of the investigations in the present dispute that there was insufficient record evidence to apply the five-factor test as, beyond the levels of government ownership for some companies, the Government of China had not provided the information needed to apply the test. Panel Report(379) , para. 8.18.
原文：China argues that this statement indicates that for the USDOC any provision of goods by a state-owned entity may be presumed to be a financial contribution unless there is evidence establishing that the entity is not a public body. Panel Report(379) , para. 8.18.
原文：China states that the five-factor test is relevant for this dispute to establish that prior to the investigations at issue, the USDOC had recognized that determining whether a state-owned entity qualified as a public entity was a multi-factor, fact-intensive inquiry even under U.S. law. Panel Report(379) , para. 8.18.
原文：China considers that the USDOC improperly shifted the burden to the Government of China to disprove the presumption that all SOEs are public bodies, thereby abrogating its responsibilities as an investigating authority. Panel Report(379) , para. 8.18.
原文：In this context, China cites a statement by the Appellate Body that "the investigating authority has a duty to seek out information on relevant factors and evaluate their probative value in order to ensure that its determination is based not on presumptions, but on a sufficient factual basis". Panel Report(379) , para. 8.18.
