WT/DS582/16  
 
14 December 2023  
(23-8561) Page: 1/11 
  Original: English  
 
INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION AND 
COMMUNICATIONS TECHNOLOGY SECTOR  
NOTIFICATION OF AN APPEAL  BY INDIA  UNDER ARTICLE 16.4 AND  
ARTICLE  17.1 OF THE UNDERSTANDING ON RULES  AND PROCEDURES GOVERNING THE  
SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 2 0(1) OF THE  
WORKING PROCEDURES FOR APPELLATE REVIEW  
The following communication, dated 8 December 2023 , from the delegation of India, is being 
circulated to Members.  
 
_____________ __ 
 
 
1. Pursuant to Article 16.4 and Article 17.1 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes ("DSU"), India hereby notifies the Dispute Settlement Body 
("DSB") of its decision to appeal to the Appellate Body ("AB") regar ding certain issues of law covered 
in the Panel Report and certain legal interpretations developed by the Panel in the dispute India – 
Tariff Treatment on Certain Goods in the Information and Communications Technology Sector 
(WT/DS582/R).  
2. Pursuant to Rule  20(1) of the Working Procedures for Appellate Review, India simultaneously 
files this Notice of Appeal with the Appellate Body Secretariat.  
3. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures, this Notice of Appeal provides an 
indicative list of the  paragraphs of the Panel Report containing the alleged errors of law and legal 
interpretation by the Panel in its report, without prejudice to India's ability to rely on other 
paragraphs of the Panel Report in its appeal.  
4. India seeks review by the Appellat e Body of the errors of law and legal interpretation by the 
Panel in its Report and requests findings by the Appellate Body as noted below. Non -appeal of an 
issue does not signify agreement therewith.  
5. For the reasons to be further elaborated in its submis sions to the Appellate Body, India 
appeals, and requests the Appellate Body to reverse, modify, or declare moot and of no legal effect, 
the findings, conclusions, rulings and recommendations of the Panel, with respect to the following 
errors of law or lega l interpretations contained in the Panel Report:  
I. COMPOSITION OF THE PANEL  
6. The Panel has committed legal errors in Sections 2.2 and 3.2 of its Decision dated 7 July 2021. 
The Panel erred in its interpretation and application of Articles 8.6 and 8.7 of the DSU, in so far as 
the Panel found that its composition was not in violation  of the said Articles of the DSU. In particular, 
the Panel erred because, inter alia : 
a) the Panel did not afford an opportunity to India to adequately pursue its claims and 
establish the facts in the proceedings in the substantive meetings, thereby violating  
India's due process rights in the proceedings.  
b) Article 8 of the DSU contains a hierarchy of procedure, whereby a party can request 
the Director -General ("DG") to compose a Panel under Article 8.7 only when the WT/DS582/16  
 
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  parties to the dispute, having first followed the steps outlined in Article 8.6, are unable 
to agree on the composition of the Panel. As the Panel has noted, "the main 
responsibility for the composition of a panel rests with the parties and, in certain 
circumstances, with the Director -General".1 Such responsibility for composition of 
parties can only be fulfilled by the Parties via procedures under Article 8.6 of the DSU. 
It is only when the parties are unable to do so through Article 8.6, that recourse to 
the composition of the Panel through Article 8.7 may be taken.  
c) Article 8.6 places a "positi ve obligation" on the Secretariat to propose nominations for 
a panel to the parties, as reflected in the use of the term "shall" in that provision.2 
However, the Secretariat did not propose the names of potential panellists despite 
India's requests.  
d) Article 3.10 of the DSU provides that the "Members will engage in these proceedings 
in good faith in an effort to resolve the dispute". The EU has not acted in good faith 
by altogether bypassing any attempt at a mutual selection of the Panellists, and by 
direct ly approaching the DG for the composition of Panel.  
e) the Panel has erroneously concluded that it has no basis in Article  8.7 or generally in 
the DSU that would allow it, in this case, to review the propriety of the Panel's 
composition, as determined by the DG by virtue of the discretionary authority 
conferred by Article 8.7.3 Article 1.1 of the DSU provides that the DSU is applicable to 
disputes brought pursuant to dispute settlement provisions of the covered 
agreements. Appendix 1 of the DSU lists the DSU itself as a covered agreement. Article 
3.2 entrusts the Panel to "preserve the rights and obligations of Members under the 
covered agreements, and to clarify the existing provisions of those agreements in 
accordance with customary rules of interpretation o f public international law." Thus, 
Article 1.1 of the DSU read with Article 3.2 of the DSU provides the Panel with the 
basis to interpret Article 8.7 of the DSU.    
Further, the reports cited by the Panel in support of its position are not applicable to 
the facts of the case. The Panels were faced "with an objection to the propriety of their 
composition  – determined by the Director -General under Article 8.7…".4 As opposed 
to previous Panels, where the propriety of the Panel was challenged on grounds such 
as the nationality of Panelists, the objectivity and independence of the Panel, and the 
application of DSU provisions by the DG5 — all of which relate to how the discretion 
by the DG has been exercised. Rather, the issue in the case is whether the procedur e 
under the DSU has been followed before  the discretion was exercised by the DG. A 
ruling by the Panel regarding the procedural aspects of the dispute would be in 
consonance with Article 1.1 of the DSU.6 
f) the Panel has inherent powers to determine its j urisdiction. The principle of 
competence de la competence  is a well -established principle in the WTO.7 The Panel 
 
1 Panel Report, India – Tariff Treatment of ICT Goods (European Union) , Annex E -2, Para. 3.17 
(hereinafter "Preliminary Ruling "); Panel  Report, Guatemala – Cement II, Para. 8.11.  
2 Panel  Report, Korea -Radionuclides, Paras. 7.426 -7.433; Appellate Body Report, United States – Anti-
Dumping Measures on Certain Hot -Rolled Steel Products from Japan ("US – Hot-Rolled Steel") , Paras. 57 
and 59. 
3 Preliminary  Ruling, Para. 3.14.  
4 Preliminary  Ruling, Para. 3.13.  
5 Panel  Reports of Guatemala — Cement II , Para. 8.10  (Guatemala challenged the composition of the 
Panel as it "consider[ed] that the presence on this Panel of a member who served on a previous panel relating 
to the same matter […] detracts from the objectivity and independen ce that a panel should have when 
reviewing a matter brought before it "; US — Upland Cotton (Article 21.5 — Brazil) , Para. 8.28 ( "The Panel 
considers that it is not within its authority under the DSU to make a "finding or ruling" on an issue that has not 
been raised by any of the parties to the dispute and which concerns the application by the WTO Director -
General of the DSU provisions regarding panel composition "); and US — Zeroing (EC) (Article 21.5 – EC), 
Paras. 8.10 -8.17 (EU challenged the propriety of t he Panel on the basis that the US cannot unilaterally revoke 
Article 8.3 of the DSU, and the Panel should have included Members of the original Panel, who included citizens 
of the Members who are parties to the dispute .). 
6 Panel  Report, Argentina — Poultr y Anti -Dumping Duties , Para. 7.12.  
7 Appellate Body Report, Mexico – Taxes on Soft Drinks, Para. 45; Appellate  Body Report, Mexico – Corn 
Syrup (Article 21.5 – US), Para. 53 ; Appellate  Body Report, US – 1916 Act , Para. 54.  WT/DS582/16  
 
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  dismisses India's argument, stating that it cannot be assumed that deficiencies in the 
Panel composition process under Articles 8.6 or 8.7, wo uld bear on whether the Panel 
has "validly established jurisdiction".  
Further, the Panel has dismissed India's reliance on Mexico — Corn Syrup (Article 21.5 
– US) and US — 1916 Act , on the basis that the "need for panels to verify the validity 
of their ju risdiction were not made in the context of allegations of deficiencies in the 
panel composition process".8 The Panel erred because the competence/ability of the 
Panel to decide its jurisdiction encompasses the competence/ability of the Panel to 
decide whe ther its composition was valid.   
7.  India, therefore, requests the Appellate Body to reverse or set aside the Panel's conclusions 
as well as the Panel's legal interpretations contained in paragraphs 2.4 to 2.11 and 3.10 to 3.19 of 
its Decision dated 7 July 2021 enclosed as Annex E -2 to the Panel Report. Consequently, India also 
requests the Appellate Body to declare moot and of no legal effect the Panel's conclusions and 
findings contained in Section 8 of the Panel Report.  
II. THE ITA IS RELEVANT AND LIMITS/MODIFIES THE SCOPE OF THE TARIFF 
COMMITMENTS SET FORTH IN INDIA'S WTO SCHEDULE.  
8. The Panel has committed legal errors in Section 7.3.2.2.3, Paras. 7.13  and 7.61 of the Panel 
Report. The Panel erred in its interpretation of the relationship of the Information Technology 
Agreement ("ITA -1" or "the ITA") with India's WTO Schedule and/or failed to make an objective 
assessment pursuant to Article 11 of the DSU, because the Panel found that there is "no textual link 
in the GATT 1994 indicating that Members' legal obligations, for the purposes of applying Articles 
II:1(a) and (b), could be contained in the ITA".9 The Panel erred because the inscriptions in Columns 
G and H of the worksheet titled "Part I Section II" of India's Combined Tariff Schedule (CTS) explicitly 
refer to WT/Let/18110 through which India incorporated its commitment under the ITA -1 in its WTO 
Schedule and accordingly, WT/Let/181 must be interpreted according to the ITA.11 
9. The Panel has committed legal errors in Section 7.3.2.3.3 of the Panel Report. The Panel erred 
in its interpretation of the relationship of the ITA with India's WTO Schedule and/or failed to make 
an objective assessment pursuant to Article 11 of the DSU, in so far as the Panel found that the ITA 
does not limit the scope of tariff commitments set forth in  India's WTO Schedule. At the outset, it is 
submitted that the Panel has erred in Section 7.3.2.3.3 by applying the interpretative tools for 
interpretation of ITA to directly interpret India's WTO Schedule. The Panel overlooks the inscriptions 
in Columns G  and H of the worksheet titled "Part I Section II" of India's Combined Tariff Schedule 
(CTS) which explicitly refer to WT/Let/18112 through which India incorporated its commitment under 
the ITA -1 in its WTO Schedule. Further, the Panel erred because, inter alia: 
a) the Panel's interpretation in Para 7.68 is at odds with its interpretation in Para 7.45 as 
India's Combined Tariff Schedule (CTS) explicitly refer to WT/Let/181 through which 
India incorporated its commitment under the ITA -1 in its WTO Schedule.  
b) the Panel incorrectly noted, in Para. 7.69 of its Report, that India's interpretation is at 
odds with the multilateral principles of reciprocity and mutually advantageous 
arrangements underpinning the multilateral trading system.  
Contrary to the Panel's interpretation, it is precisely because of the principles of 
reciprocity and mutually advantageous arrangements that India's interpretation is 
correct. The ordinary meaning of the term "reciprocal" is "[o]f the nature of a return 
made for somet hing; given, felt, shown, etc., in return", and "[e]xisting on both sides; 
mutual; (of two or more things) done, made, etc., in exchange".13 The products which, 
as the EU alleges, should be given tariff -free treatment were never covered under the 
ITA and hence were not negotiated. Even if the products were covered under the ITA, 
 
8 Preliminary  Ruling , fn. 49.  
9 Panel Report, India – Tariff on ICT Goods , Para. 7.38 (hereinafter "Panel Report "). 
10 Combined Tariff Schedule of India, Part I Section II, Rows 5427, 5526 to 5541, 5554 and 5808.  
11 India Second Written Submissions, paras. 34 to 42.  
12 Combined Tariff Schedule of India, Part I Section II, Rows 5427, 5526 to 5541, 5554 and 5808.  
13 Panel Report, EU – Poultry (China) , para. 7.297.  WT/DS582/16  
 
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  the ITA was a sui generis  agreement with broad and generalised coverage, as opposed 
to a request -offer negotiation. Further, the concessions under the ITA were available 
to all WTO  Members, and not only to the ITA participants. Accordingly, ITA does not 
follow the multilateral principles of reciprocity and mutually advantageous 
arrangements, and India has not received any reciprocal benefits in exchange for the 
alleged concessions.  
c) the Panel erred in its interpretation and application of the ITA and/or failed to make 
an objective assessment pursuant to Article 11 of the DSU, in Para. 7.70 -7.72 of its 
Report by mischaracterising India's arguments and incorrectly interpreting the p roduct 
scope of the ITA. It is not India's case that "products coming into existence after the 
conclusion of the ITA […] would be excluded from the coverage of Members' existing 
WTO commitments."14 India submits:  
• that the language in the Annex to the IT A15 providing for a meeting of the parties 
for modification of the product scope in light of technological development 
clearly shows that the product scope of the ITA is static.  
• that the parties to the ITA have given special meaning to the terms of the ITA 
(and consequent to WT/Let/181) under Article 31(4) of the VCLT, limiting the 
product scope to HS1996 and its explanatory notes.16  
• that for the purposes of Article 31(4), the universe of parties is limited to ITA 
participants. Therefore, HS 1996 and  its explanatory notes constitute special 
meaning given by "all parties to a treaty", i.e. all parties to the ITA.  
• that as communicated by India to the Panel, the term "new product" in India's 
submissions refers to products not covered by the HS1996 and its explanatory 
notes, and not to products which came into existence after the conclusion of the 
ITA as characterised by the Panel.17 
Accordingly, the meaning ascribed by the ITA and WT/Let/181 should continue to 
govern India's WTO Schedule.  
d) it erred i n its interpretation in Para. 7.75 of its Report and has mischaracterised India's 
arguments, as India has used the ITA Expansion to confirm the product scope of the 
ITA and WT/Let/181, and not India's WTO Schedule. Thus, ITA Expansion is a 
subsequent pract ice of some Members of the ITA -1, which confirms the product scope 
of the ITA -1 and WT/Let/181.18 
e) it erred in its interpretation in Para. 7.76 of its Report as ITA -1 and WT/Let/181 remain 
relevant to interpret India's WTO Schedule which is evident from the inscriptions in 
Columns G and H of the worksheet titled "Part I Section II" of India's Combined Tariff 
Schedule (CTS).19 Accordingly, the statements/practices cited by India20 are relevant 
as subsequent practice for the interpretation of  the ITA -1 and WT/Let/181 under 
Article 31(3)(b) of the VCLT.   
f) it erred in its interpretation and/or failed to make an objective assessment pursuant 
to Article 11 of the DSU, in Para 7.77 to 7.78 of its Report as none of the products at 
issue have been  identified in G/IT/SPEC/15 with a notation that such products at issue 
 
14 Panel  Report , Para. 7.70.  
15 Ministerial Declaration  on Trade in Information Technology Products (13 December 1996) WT/MIN 
(96)/16, Annex Para. 3 (hereinafter "ITA-1"). 
16 ITA-1, Para. 2(a).  
17 India's Response  to Panel's Question No. 62; India's Second Written Submissions, Paras. 57 to 59.   
18 M.E. Villig er, Commentary  on the 1969 Vienna Convention on the Law of Treaties  (Martinus Nijhoff, 
2009) Pages. 445 -446 
19 Combined Tariff Schedule of India, Part I Section II, Rows 5427, 5526 to 5541, 5554 and 5808.  
20 India's First Written Submissions, Paras. 103 to  123, 137 to 148; India's Second Written Submissions, 
Paras. 49 to 70.  WT/DS582/16  
 
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  were part of the ITA -1.21 In addition, G/IT/SPEC/15 cannot be preparatory material of 
ITA Expansion because preparatory material is the material which was generated 
during the negotia ting process of ITA Expansion.  
10. India, therefore, requests the Appellate Body to reverse or set aside the Panel's conclusions 
and the Panel's legal interpretations contained in Paras. 7.36 to 7.46, 7.60 to 7.81, 7.253, 7.278, 
7.292, 7.319, 7.333 and 7.3 66, and complete the analysis regarding the applicability of Article 48 
of the VCLT. Consequently, India also requests the Appellate Body to declare moot and of no legal 
effect the Panel's conclusions and findings contained in Section 8, paragraphs 8.1(a)( i), 8.1(b), 8.2 
and 8.3 of the Panel Report.  
III. ORDER OF ANALYSIS OF ARTICLE 48 OF THE VIENNA CONVENTION ON LAW OF 
TREATIES ("VCLT").  
11. The Panel has committed legal errors in Section 7.3.3.1 of the Panel Report. The Panel erred 
in its interpretation a nd application of the legal standard for Article 48, in so far as the Panel found 
that "it would only be necessary for us to take a position on this issue if it is the case that the 
substantive requirements of Article 48 are indeed satisfied."22 In partic ular, the Panel erred because 
the order of analysis conducted by the Panel is not correct. The analysis does not support the 
"fundamental structure and logic"23 of the provision, as the analysis of the requirements of Article 
48 cannot be undertaken witho ut deciding the applicability of the provision. Specifically, the analysis 
by the Panel is not in accordance with the standard set by the Appellate Body in China – Publications 
and Audiovisual Products  and US – Large Civil Aircraft (2nd complaint) .24 Further, in the event that 
Appellate Body disagrees with the Panel's findings, and as requested by India, reverses the findings 
of the Panel with respect to substantive requirements of Article 48 of the VCLT, there would be no 
finding by the Panel on the appli cability of Article 48 in the present dispute.25 
12. India, therefore, requests the Appellate Body to reverse or set aside the Panel's conclusions 
and the Panel's legal interpretations contained in paragraph 7.89 and complete the analysis 
regarding the ap plicability of Article 48 of the VCLT. Consequently, India also requests the Appellate 
Body to declare moot and of no legal effect the Panel's conclusions and findings contained in 
paragraph 7.213 and Section 8, paragraphs 8.1(a)(ii), 8.1(b), 8.2 and 8.3 o f the Panel Report.  
IV. APPLICATION OF ARTICLE 48(1) OF VCLT.  
A. The Panel erred in its analysis on the requirement of existence of India's 
assumption that the scope of its WTO tariff commitments would not be expanded 
beyond the scope of its ITA undertaki ngs. 
13. The Panel has committed legal errors in Section 7.3.3.2.3.2 of the Panel Report. The Panel 
failed to make an objective assessment pursuant to Article 11 of the DSU, in so far as the Panel 
observed that India's statements do not indicate that India  assumed that the transposition of its 
Schedule would not expand the scope of its WTO tariff commitments beyond the scope of its ITA 
undertakings. Contrary to Panel's reasoning, the statements are unequivocal evidence of India's 
well-known position against  the expansion of the commitments under the ITA.  
14. India, therefore, requests the Appellate Body to reverse or set aside the Panel's conclusions 
contained in paragraphs 7.108 to 7.112.  
B. The Panel erred in its analysis of the requirement of India's Assumption forming 
an essential basis of India's consent to be bound by its WTO Schedule.  
15. The Panel has committed legal errors in Section 7.3.3.2.3.4 of the Panel Report. The Panel 
erred in its interpretation and application of Article 48(1) of  the VCLT and/or failed to make an 
objective assessment pursuant to Article 11 of the DSU, in so far as the Panel found that India's 
 
21 India's Second Written Submission, Paras. 80 to 82.  
22 Panel Report, Para. 7.89.  
23 Appellate Body Report, US – Shrimp , Para. 119; Appellate Body Report, Canada – Autos , Para. 151.  
24 Appellate  Body Report, China – Publications and Audiovisual Products , Para. 213; Appellate Body 
Report, US – Large Civil Aircraft (2nd Complaint) , Para. 739.  
25 Appellate  Body Report, US – Large Civil Aircraft (2nd Complaint) , Para. 741.  WT/DS582/16  
 
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  assumption (i.e. that the scope of its WTO tariff commitments would not be expanded beyond the 
scope of its ITA undertaking s) did not constitute an essential basis for its consent to be bound by its 
HS2007 Schedule. In particular, the Panel erred because, inter alia :  
a) it failed to make an objective assessment of the matter before it in Paras. 7.131 and 
7.132 by failing to e valuate the correct meaning of India's statements and observed 
that India was on notice that there was a difference of opinion among ITA participants 
regarding certain classification issues. Contrary to Panel's reasoning, the statements 
are unequivocal evi dence of India's well -known position against the expansion of the 
commitments under the ITA. The statements do not demonstrate that India was aware 
that the transposition could have led to an expansion of tariff commitments beyond 
obligations under the ITA . 
b) it incorrectly interpreted and applied Article 48(1) of the VCLT in Para. 7.134, in finding 
that India should have made it obvious that it would not be willing to be bound by its 
Schedule if it was broader than the scope of its obligations in the ITA.  Article 48(1) 
only requires that the mistakenly assumed fact or situation form an essential basis of 
consent to be bound by the treaty. This assessment needs to be undertaken from the 
perspective of the erring State.26 Since the requirement cannot be bas ed on a 
subjective appreciation of the concerned State, assessment of the same must be 
tested against an objective yardstick – whether a third State in a similar situation 
would also have refrained from giving its consent had it known the real fact or 
situation.27 There can be no doubt that no State would agree to a transposition which 
adds unnegotiated concessions to its schedule of concession, with no reciprocal 
benefit.  
c) the application by the Panel of the legal standard under Article 48(1) in Para. 7.134 of 
its Report is inherently contradictory, and not based in law. India submitted that it 
had assumed that "the HS2007 transposition did not expand India's tariff 
commitments beyond India's obligations under the ITA",28 which was accepted by the 
Panel in Parag raph 7.116 of its Report. The Panel while assessing the condition of 
whether this assumption formed an essential basis of the State's consent to be bound 
by the treaty, noted in Paragraph 7.134 of its report that India should have made it 
obvious that it w ould not be willing to be bound by its Schedule if it's broader than the 
scope of its obligations in the ITA. If India had known of the fact that the HS 2007 
transposition would make the Schedule broader than the static commitments under 
the ITA, it would not have agreed to certify  it. Essentially, while the Panel accepts 
India's assumption of error on one hand, the legal standard adopted by the Panel 
expects India to have made this assumption obvious to the Member States before  the 
error even occurred.  
d) the application by the Panel of the legal standard under Article 48(1) is erroneous 
because Article 48(1) of the VCLT does not require that "assumption" must be 
precisely communicated to the Parties to the treaty before such error relating to the 
said ass umption has occurred . The Panel has inserted this additional criterion, not 
supported in text or the State practice.  
16. India, therefore, requests the Appellate Body to reverse or set aside the Panel's conclusions 
and the Panel's legal interpretations co ntained in paragraphs 7.123 to 7.137. Consequently, India 
also requests the Appellate Body to declare moot and of no legal effect the Panel's conclusions and 
findings contained in Paras. 7.155 to 7.156, 7.212 to 7.213, 7.206, 7.253, 7.278, 7.319, 7.333 and  
7.366 and Section 8, paragraphs 8.1(a)(i), (ii), 8.1(b), 8.2 and 8.3 of the Panel Report.  
C. The Panel erred in its analysis of requirement of India's Assumption being in error.  
17. The Panel has committed legal errors in Section 7.3.3.2.3.5 of the Panel  Report. The Panel 
erred in its interpretation and application of Article 48(1) of the VCLT and/or failed to make an 
 
26 Rensmann, 'Article 48' in Oliver Dörr, Kirsten Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties (2nd edn., Springer, 2018), Page 892. 
27 Id. 
28 India's First Written Submission, Para. 27, Panel Report, Para. 7.105.  WT/DS582/16  
 
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  objective assessment pursuant to Article 11 of the DSU, in so far as the Panel found that India's 
assumption (i.e. that the scope of its WT O tariff commitments would not be expanded beyond the 
scope of its ITA undertakings) was not in error. In particular, the Panel erred because, inter alia :  
a) it erred in its interpretation of the relevance of the ITA in Para. 7.141. While the 
implication of the statement "[w]e recall that the ITA is not a covered agreement"29 is 
ambiguous, it seems that the Panel has implied that it cannot interpret the ITA for 
assessing whether India's assumption is in error. The Panel has erred in making such 
an inferen ce as the defence in a dispute does not need to be limited to a covered 
agreement. The limitations of Article 1.1 of the DSU are applicable only upon the 
"disputes pursuant to the consultation and dispute settlement provisions of the 
[covered agreements]".  India is relying on the ITA as a defence, and thus the Panel 
may not refuse to interpret the ITA for the sole reason of it not being a covered 
Agreement.30  
b) the Panel erred in its interpretation of and/or failed to make an objective assessment 
of the transposition process in Para. 7.142 of its report. Whether the correlation tables 
were followed in the transposition process is immaterial to the question of India's 
error. What is relevant is whether the complex technical transposition was flagged in 
accordance with the transposition procedure.31 
c) the Panel erred in the legal standard applied by it in Paras. 7.142 -7.143 of its report. 
The Panel has stated that since India has not argued that the transpositions conducted 
by the WTO Secretariat were inco nsistent with the correlation tables communicated 
by the WCO. While the Panel does not form a definitive conclusion on the fourth 
element,32 the Panel's 'observations' seem to imply that the requirements for this 
element have not been met. The Panel seem to imply that since the correlation tables 
have been followed, there is no error in the treaty. However, the WCO corelation tables 
do not ascribe  bound rate of "Nil" to a particular heading or sub -heading whose 
definition itself has undergone a change. In  addition, the fact or situation which is 
sufficiently proximate to the subject matter of the treaty33 need not be explicit in the 
treaty. An error in terms of Article 48, is an assumed fact or situation, which is 
subsequently found to have no existence.34 India's consent was based on the 
assumption that the HS2007 transposition would not expand India's obligations under 
India's WTO Schedule, beyond the ITA. This error is an assumed fact, which is 
subsequently found to have no existence and has been the b asis of India's consent.  
d) it has summarily dismissed India's nuanced arguments on error committed in the 
transposition of its 2007 Schedule. In Para. 7.143, the Panel has simply stated that 
the Panel "ha[s] already concluded above that India is mistaken with respect to the 
relationship between the ITA and its WTO schedule". India in its submissions to the 
Panel, has stated multiple times that the relevance of the ITA is twofold: as a 
comparative benchmark for determination of the error in the 2007 Schedul e, and as 
context to India's WTO Schedule.35 By making reference to the earlier Section on 
"[w]hether the ITA limits or modifies the scope of the tariff commitments set forth in 
India's WTO Schedule", the Panel has committed a grave error in conflating th e two 
grounds. Further, the Panel has misconstrued India's argument on error, by assuming 
that India requests the Panel to interpret its Schedule differently. Rather, India has 
argued that a comparison of India's 2007 Schedule with the ITA would make its e rror 
apparent. Accordingly, the erred tariff lines should be rendered unbound.  
e) it did not use the ITA as a benchmark for determination of the error in transposition 
of its Schedule to HS2007. India's submission in this regard is two -pronged: that the 
obligations under the ITA are static, and that the transposition cannot add new 
 
29 Panel Report , Para. 7.141 . 
30 India's Response to Panel Question Nos. 2 and 16; India's Opening Statement FSM, Para. 31.  
31 See Para. 19. 
32 Panel  Report, Para. 7.154.  
33 Rensmann, 'Article 48' in Oliver Dörr, Kirsten Schmalenbach  (eds.), Vienna Convention on the Law of 
Treaties (2nd edn., Springer, 2018), p. 884.  
34 Id., at 33.  
35 India's Opening Statement FSM, Para. 28, India's Response to Panel Question No. 65.  WT/DS582/16  
 
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  obligations for India. In wrongfully and summarily rejecting India's submissions, the 
Panel has not made an analysis of various interpretative aids used by India for the 
interpr etation of the ITA, which the Panel had rejected in Section 7.3.2.3., on the 
ground that the interpretative aids relying on some  Members is being used for 
interpretation of treaty applicable to all Members. In the present section, the 
interpretative aids a re unequivocally being used for the interpretation of the ITA as a 
comparative benchmark, and hence cannot be rejected on the earlier ground.  
f) it erred in its interpretation and/or failed to make an objective assessment pursuant 
to Article 11 of the DSU,  in Para 7.150 to 7.154 of its Report as the definition of 
"transmission apparatus" falling under tariff item/sub -heading 8525.20 under HS1996 
Explanatory Notes is not an inclusive but an exhaustive definition. The HS1996 
Explanatory Notes use the phrase " transmission of signals representing  speech, 
messages or still pictures" as opposed to providing an indicative or inclusive definition 
of signals.  
g) it erred in its interpretation and/or failed to make an objective assessment pursuant 
to Article 11 of the  DSU, in Paras. 7.151, 7.153 to 7.154 of its Report as the 
amendments in HS1996 Explanatory Notes occurred subsequent to the ITA -1 or 
WT/Let/181 and even if Panel 's interpretation is accepted, only those mobile phones 
which were transmitting signals ( repre senting  speech, messages or still pictures) could 
be covered in tariff item/sub -heading 8525.20.  
18. India, therefore, requests the Appellate Body to reverse or set aside the Panel's conclusions 
and the Panel's legal interpretations contained in paragraphs  7.138 to 7.154. Consequently, India 
also requests the Appellate Body to declare moot and of no legal effect the Panel's conclusions and 
findings contained in paragraphs 7.155 to 7.156, 7.212 to 7.213, 7.253, 7.278, 7.319, 7.333 and 
7.366 and Section 8, pa ragraphs 8.1(a)(i), (ii), 8.1(b), 8.2 and 8.3 of the Panel Report.  
V. APPLICATION OF ARTICLE 48(2) OF THE VCLT.  
19. The Panel has committed legal errors in Section 7.3.3.3.3.2 of the Panel Report. The Panel 
erred in its interpretation and application of A rticle 48(2) of the VCLT and/or failed to make an 
objective assessment pursuant to Article 11 of the DSU, in so far as the Panel found that India was 
put on notice of the possibility of an "error", as India defines its error, within the meaning of 
Article  48(2). In particular, the Panel erred because  
a) the legal standard formulated and applied by it in Paras. 7.194 to 7.197 regarding 
India, being on notice of the possibility that such an error could occur, is unfounded 
and not supported by the text of Arti cle 48(2) of VCLT. India interprets the legal 
standard under Article 48(2) of VCLT, based on the decisions in the Case Concerning 
the Temple of Preah Vihear (Cambodia v. Thailand) , and Case Concerning Sovereignty 
over Certain Frontier Land (Belgium v. Neth erlands) . According to India, the 
appropriate legal standard based on the ICJ cases is that "for a state to be put on 
notice of a possible error, the circumstances should be such that no interested party 
should fail to notice the error or be under a misapp rehension about it."36  
Concerning the basis of the legal standard, the Panel notes that neither of the cases 
cited by India pertain to the application of Article 48 of the Vienna Convention.37 This 
is one of the two central reasons for the Panel to disregard India 's suggested legal 
standard. However, the Panel ignores that the two ICJ cases referred above influenced 
the formation of Article 48 of the VCLT38 and are crucial to recognition of 'error' as a 
ground for invalidating consent.39 As such, the Panel 's reasoning to disregard the ICJ 
 
36 Panel Report, Para. 7.194; India's Response to Panel question No. 90(a), Para. 11; See also India's 
Second Written Submission , Para. 29.  
37 Panel Report, Para. 7.196.  
38 India's  Second Written Submission, Exhibit IND -79, at 49.  
39 Rensmann, 'Article 48' in Oliver Dörr, Kirsten Schma lenbach (eds.), Vienna Convention on the Law of 
Treaties (2nd edn., Springer, 2018), p. 881, 7.  WT/DS582/16  
 
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  cases is literal and based only on the fact that the cases pre -date formulation of the 
VCLT.  
Further, the interpretatio n suggested by India is in consonance with the overall 
objective of Article 48 of the VCLT. The drafters of the VCLT had expressly rejected 
the 'strict standard of care ' which requires a State to exercise due diligence in avoiding 
an error.40 The provisio n does not prescribe any duty of care on the State. In the same 
breath, the State cannot be deprived of relying on the exception of error in consenting 
to a treaty simply because it was on notice of 'possibility ' that such an error could 
occur. This standa rd, as proposed by the Panel, is strict and all States are likelier to 
be on notice of 'possibility ' of an error.  
b) it proceeded to examine the contents of document G/MA/283 and the Secretariat's 
Transposition Note despite agreement between the parties th at the WTO Secretariat 
did not flag the relevant tariff items.  
Specifically, the complainant in this and parallel proceedings (WT/DS584 and 
WT/DS588) unequivocally agreed with India 's position that the contested sub -
headings were not flagged.41 As such, i t is undisputed between Parties that all tariff 
lines that faced a change in scope of a concession were not clearly flagged. Indeed, 
the Panel itself notes the European Union 's submission that "[t]herefore, there was 
nothing to be 'flagged' by the Secretar iat".42 As such, the Secretariat 's Transposition 
Note and document G/MA/283 did not notify India by clearly flagging all structural 
changes to India 's Schedule as it 'held the pen ' over the drafting of the HS2007 file 
for India43 and must have been irrel evant to the Panel 's determination.  
Yet, the panel incorrectly examined otherwise irrelevant documents i.e. the 
Secretariat 's Transposition Note and the document G/MA/283 towards deciding that 
"India was on notice, prior to and during the transposition pro cess, that the HS2007 
transposition process could have substantial implications for the classification 
differences among ITA participants regarding their ITA undertakings ".44  
c) it failed to make an objective assessment of the contents of the Secretariat 's 
Transposition Note which was exhaustive in relation to entries that were sought to be 
'clearly flagged' for the exercise of transposition, in Paras. 7.178 to 7.191.  
The Panel 's understanding that the Secretariat 's Transposition Note was not 
exhaustive is incorrect. In believing and deciding so, the Panel ignored the clear terms 
of the Methodology Note which states " [i]n preparing the HS2007 transposition, to the 
extent possible, the scope of the concessions and other commitments shall remain 
unchanged. Any tariff line for which a change in the scope of a concession may have 
occurred due to the complex technical nature of the transposition shall be clearly 
flagged "45 In the WTO Secretariat 's own terms, it proposed to share an exhaustive list 
of all chang es in the transposition process.  
The WTO Secretariat took upon itself the absolute onus of flagging any changes in the 
scope of concession of a tariff line. In this regard, the Panel need not have traversed 
beyond the WTO Secretariat 's clear word that it s hall clearly flag the changes for the 
exercise of transposition. Accordingly, the Panel holds an incorrect view in having 
decided that the onus with respect to reviewing all complex changes and to assess 
whether they considered that " the scope of a concess ion has been modified as a result 
 
40 Rensmann , 'Article 48' in Oliver Dörr, Kirsten Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties (2nd edn., Springer, 2018), p. 892.  
41 India's  Response  to Panel Question No. 90; Panel Report, India – Tariff on ICT Goods (Chinese 
Taipei) , Para. 7.195.  
42 Panel  Report , Para. 7.192.  
43 India's  Second Written Submission, Exhibit IND -79, at 39.  
44 Panel  Report, Para. 7.193.  
45 A Procedure for the Intro duction of Harmonized System 2007 changes to Schedules of Concessions 
using the Consolidated Tariff Schedules (CTS) database (18 December 2006) WT/L/673 Para. 4.  WT/DS582/16  
 
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  of the transposition in a way that impairs the value of the concession " on the 
members.46 
Had the changes been clearly flagged, there would have been no possibility of an error. 
For instance, the WTO Secretariat in Attach ment 3 of CTS HS2007 Transposition Note 
sent an email dated 8 November 2013 which described certain complex changes to 
India's Schedule,47 to which India even responded seeking clarifications and 
commenting on sub -heading 28.52.48 Under such circumstances, had the WTO 
Secretariat clearly flagged all changes for the exercise of transposition, India would 
potentially have been put to notice of error. Such is the case given India was diligent 
with reviewing and commenting upon the cha nges clearly flagged by the WTO 
Secretariat.  
Further, the dictionary meaning of clear is "unambiguous, easily understood", 
"manifest, not confused or doubtful"49, "easy to understand and not confusing", 
"obvious and leaving no doubt at all".50 The fact t hat the EU and other complaining 
parties in the parallel disputes (WT/DS584 and WT/DS588) agree with India that the 
relevant entries were not flagged,51 is a clear indication of the fact that the entries 
were in fact, not clearly (obvious and leaving no d oubt at all) flagged.  
20. The Panel has committed legal errors in Section 7.3.3.3.3.3 of the Panel Report. The Panel 
erred in its interpretation and application of Article 48(2) of the VCLT and/or failed to make an 
objective assessment pursuant to Article 11 of the DSU, in so far a s the Panel found that India's 
inaction in the circumstances of its transposition would seem to satisfy the standard of "contributing 
by its conduct" to the error. In particular, the Panel erred because  
a) it formulates and then conflates the legal standa rd for (i) India being on notice of a 
possible expansion of its WTO tariff commitments from its ITA undertakings; or (ii) 
India contributing by its own conduct to the alleged expansion in the scope of its WTO 
tariff commitments from its ITA undertakings. I n doing so, the Panel presumes that 
India had notice of the changes in tariff lines under the transposition process, such 
that India 'should have ' objected or made comments during the transposition process.  
Specifically, the Panel in Para. 7.206 of its Rep ort mentions that "India had both 
specific and general opportunities to highlight to Members and to the WTO Secretariat 
any concerns that it may have had regarding the relationship between the ITA and its 
HS2007 Schedule". However, the Panel disregards tha t India 's prior conduct leading 
up to the error that it did not intend to commit to any obligations beyond those 
contained in the ITA -1 regarding ICT Products.52 Instead, the Panel imagines the 
several alleged opportunities that India may have had during the transposition process 
to highlight concerns regarding the process. Indeed, India highlighted its concerns 
vide email dated 12 February 201453 regards the changes that were clearly flagged by 
the WTO Secretariat.  
The Panel 's decision proceeds on the ba sis that India already had notice of expansion 
of tariff lines under its Schedule, and thereafter India contributed through its inaction 
during the transposition process. As such, the legal standard to determine whether a 
member state contributed by its co nduct cannot proceed on the basis that it already 
had notice of the error. These standards are different and the Panel made a legal error 
 
46 Panel's  Report, Para. 7.192.  
47 Email Communication from IDB, WTO, Subject: "HS2007 transpo sition file: India " dated 8 November 
2013, Attachment 3 - CTS HS2007 Transposition Note XII - India, Pages 5 -6 (Exhibit IND -50) 
48 Email Communication from  Alya Belkhodja, Market Access Intelligence Section WTO, Senior Statistical 
Officer Subject: "RE: HS20 07 transposition file . India " dated 12 February 2014 (Exhibit IND -51) 
49 Illustrated Oxford Dictionary  (1998), Pg. 156.  
50 Clear, Oxford  Learner's Dictionary, 
https://www. oxfordlearnersdictionaries .com/definition/english/clear_1?q=clear.  
51 India's  Response to Panel Question No. 90; Panel Report, India – Tariff on ICT Goods (Chinese 
Taipei) , Para. 7.195.  
52 India's First Written Submissions, Para. 75.  
53 Email Communication from Alya Belkhodja, Market Access Intelligence Section WTO, Senior Statisti cal 
Officer Subject: "RE: HS2007 transposition file . India " dated 12 February 2014 (Exhibit IND-51). WT/DS582/16  
 
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  in presuming that (a) India already had notice of the error and (b) notice is, in fact, 
essential before contribution through conduct is determined.  
b) it incorrectly conflates the legal standard under Article 48(2) with the act of committing 
the error itself.  
21. India, therefore, requests the Appellate Body to reverse or set aside the Panel's conclusions 
and the Panel 's legal interpretations contained in paragraphs 7.134, 7.170 to 7.210, 7.253, 7.278, 
7.319, 7.333 and 7.366. Consequently, India also requests the Appellate Body to declare moot and 
of no legal effect the Panel's conclusions and findings contained in para graphs 7.211 to 7.213 and 
Section 8, paragraphs 8.1(a)(i),(ii), 8.1(b), 8.2 and 8.3 of the Panel Report.  
22. Pursuant to Rule 20(2)(c) of the Working Procedures, the service address, telephone and 
facsimile numbers for India are:  
The Permanent Mission of  India to the World Trade Organization  
Rue du Valais 9,  
1202 EVA  
Tel:022 906 86 86  
Telefax:022 738 45 48  
23. India is providing a copy of this Notice of Appeal directly to the complainants as well as to all 
the third parties.  
24. In the event of a cr oss-appeal by the European Union, India reserves the right, in addressing 
any such cross -appeal, to disagree with any statement in the Panel Report made in the context of a 
matter on which India prevailed.  
25. There are currently no Appellate Body Members  to constitute a division for serving on appeal 
in this dispute. In these exceptional circumstances, and in the interests of fairness and orderly 
procedure in the conduct of the appeal, in accordance with Rule 16(1) and (2) of the Working 
Procedures for Ap pellate Review, India will await further instructions from the division, when it may 
eventually be composed, or the Appellate Body, regarding any further steps to be taken by India in 
this appeal absent which, this document is deemed to also be India 's app ellant submission.  
26. Filing of the Notice of Appeal by India should be without prejudice to its right to re -file or 
amend them once the division becomes operational. India also reserves its right to supplement its 
Appellant Submission with additional arg uments.  
__________