WT/DS556/R/Add.1  
 
9 December  2022 
(22-9175) Page: 1/85 
  Original: English  
 
  
UNITED  STATES  – CERTAIN MEASURES ON STEEL AND ALUMINIUM 
PRODUCTS  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS556/R . 
 
_______________  
 
 
 
 
 
 
 
 
 
 WT/DS556/R/Add.1  
 
- 2 - 
 
   
LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Working Procedures of the Panel  for Open Meeting  10 
Annex  A-3 Working Procedures of the Panel  Revised on 19 July 2019 and 20 February 
2020 11 
Annex  A-4 Additional Working Procedures of the Panel Concerning Meetings with Remote 
Participation   17 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Switzerland  20 
Annex  B-2 Integrated executive summary  of the arguments of the U nited States of 
America  38 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIE S 
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of China  45 
Annex  C-2 Integrated executive summary of the arguments of the European Union  48 
Annex  C-3 Integrated executive summary of the arguments of Hong Kong, China  53 
Annex  C-4 Integrated executive summary of the arguments of India 56 
Annex  C-5 Integrated executive summary of the arguments of Japan  59 
Annex  C-6 Integrated executive summary of the arguments of New Zealand  62 
Annex  C-7 Integrated executive summary of the arguments of Norway  65 
Annex  C-8 Integrated executive summary of the arguments of the Russian Federation  68 
Annex  C-9 Integrated executive summary of the arguments of Singapore  74 
Annex  C-10 Integrated executive summary of the arguments of Türkiye  79 
Annex  C-11 Integrated executive summary of the arguments of Ukraine  84 
 
 
 WT/DS556/R/Add.1  
 
- 3 - 
 
 ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Working Procedures of the Panel  for Open Meeting  10 
Annex  A-3 Working Procedures of the Panel  Revised on 19 July 2019 and 20 February 2020  11 
Annex  A-4 Additional Working Procedures of the Panel Concerning Meetings with Remote 
Participation   17 
 
 
 WT/DS556/R/Add.1  
 
- 4 - 
 
 ANNEX  A-1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 5 April 2019  
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the r ight to modify these procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is s ubmitted to the Panel 
which the submitting Member has designated as confidential.  
(2) In accordance with the DSU , nothing  in these Working Procedures shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public.  
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the parties.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, eac h party shall 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, before the second substantive meeting of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable ad opted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  
Preliminary rulings  
4. (1) If the United States considers that the Panel should make a ruling before the issuan ce 
of the Report that certain measures or claims in the panel request or the complainant's first 
written submission are not properly before the Panel, the following procedure applies. 
Exceptions to this procedure shall be granted upon a showing of good cau se.  
a. The United States shall submit any such request for a preliminary ruling at the earliest 
possible opportunity and in any event no later than in its first written submission to the   WT/DS556/R/Add.1  
 
- 5 - 
 
 Panel. Switzerland  shall submit its response to the request before the first substantive 
meeting of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling 
request before, during or after the first substantive meetin g, or the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide rea sons for the ruling at the time that the ruling is made, 
or subsequently in its Report.   
d. Any request for such a preliminary ruling by the respondent before the first meeting, and 
any subsequent submissions of the parties in relation thereto before the fir st meeting, 
shall be served on all third parties. The Panel may provide all third parties with an 
opportunity to provide comments on any such request, either in their submissions as 
provided for in the timetable or separately. Any preliminary ruling issued  by the Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be communicated to all third parties.  
(2) This procedure is without prejudice to the parties' right to request other types of 
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, ex cept evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitt ed upon a showing of good cause, the Panel shall 
accord the other  party  an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting p arty or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working language of the submission. The Panel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause .  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objec tion shall be accompanied 
by an explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequen tially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. Exhibits submitted by Switzerland  should be numbered CHE-1, CHE-2, etc. 
Exhibits submitted by the United Sta tes should be numbered USA -1, USA -2, etc. If the last 
exhibit in connection with the first submission was numbered [XXX] -5, the first exhibit in 
connection with the next submission thus would be numbered [XXX] -6.  
(2) Each party shall provide an updated li st of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is sub mitting that document again.  WT/DS556/R/Add.1  
 
- 6 - 
 
 (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
Questions  
 
9. The Panel may pose qu estions to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questio ns at the meeting.   
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel may open its meetings w ith the parties to the public, subject to appropriate 
procedures to be adopted by the Panel after consulting the parties.  
 
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibility  for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and th ird parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request for interpretation by any party shoul d be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Pane l shall invite Switzerland  to make an opening statement to present its case 
first. Subsequently, the Panel shall invite the United States  to present its point of view. Before 
each party takes the floor, it shall provide the Panel and other participants at the meeting with 
a provisional written version of its statement. If interpretation is needed, each party shall 
provide additional copies for the interpreters.  
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
party is  invited to limit the duration of its opening statement to not more than 75 minutes. If 
either party considers that it requires more time for its opening statement, it should inform 
the Panel and the other party at least 10 days prior to the meeting, toget her with an estimate 
of the expected duration of its statement. The Panel will accord equal time to the other party    
c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments or ask the other party questions.  
d. The Panel may subsequently pose questions to the parties.  WT/DS556/R/Add.1  
 
- 7 - 
 
 e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Switzerland  presenting its statement first. Be fore each 
party takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its closing statement, if available.  
f. Following the meeting:  
i. Each party shall submit a final written version of its op ening statement no later than 
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same 
time, each party should also submit a final written version of any prepared closing 
statement that it delivered at the meeting.  
ii. Each party sh all send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the other  party to which it wishes to receive 
a response in writing.  
iii. The Panel shall send in writing, within the timeframe established by th e Panel before 
the end of the meeting, any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the time -frame established by the Panel 
before the end of the meeting.  
16. The Panel will communicate in advance concerning the conduct of the second substantive 
meeting, after having consulted with the parties.  
Third party session  
 
17. The third parties shall be pr esent at the meetings only when invited by the Panel to appear 
before it.  
18. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the procee ding and the 
submissions of the parties and third parties.  
19. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow su fficient time to ensure availability of interpreters.  
20. (1) Each third party may present its views orally during a session of the first substantive 
meeting with the parties set aside for that purpose.  
(2) Each third party shall indicate to the Panel whe ther it intends to make an oral statement 
during the third party session, along with the list of members of its delegation, in advance of 
this session and no later than 5.00  p.m. (Geneva time) three working days before the third 
party session of the meetin g with the Panel.  
21. The Panel will communicate in advance of the first substantive meeting concerning the conduct 
of the third party session, after having consulted with the parties.  WT/DS556/R/Add.1  
 
- 8 - 
 
 Descriptive part and executive summaries  
 
22. The description of the a rguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in an y way serve 
as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case.  
23. Each party shall submit one integrated executive summar y. The timing of the submission of 
the integrated executive summar y shall b e indicated in the timetable adopted by the Panel.  
24. The integrated executive summary shall be limited to no more than 30 pages.  
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the ti metable adopted by the Panel. This 
integrated executive summary may also include a summary of responses to questions, if relevant. 
The executive summary to be provided by each third party shall not exceed six  pages. If a third -
party submission and/or oral statement does not exceed six pages in total, this may serve as the 
executive summary of that third party's arguments.  
Interim review  
 
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the in terim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
28. If no furth er meeting with the Panel is requested, each party may submit written comments 
on the other party's written request for review, in accordance with the timetable adopted by the 
Panel. Such comments shall be limited to commenting on the other party's  written  request for 
review.  
Interim and Final Report  
29. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
Service of documents  
 
30. The following procedures regarding  service of documents apply to all documents submitted by 
parties and third parties during the proceeding:  
a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047).  
b. Each party and third party shall submit 2 paper cop ies of its submissions and 2 paper 
copies of its Exhibits to the Panel by 5 .00 p.m. (Geneva time) on the due dates established 
by the Panel. The DS  Registrar shall stamp the documents with the date and time of 
submission. The paper version submitted to the DS Registry shall constitute the official 
version for the purposes of subm ission deadlines and the record of the dispute. If any 
documents are in a format that is impractical to submit as a paper copy, then the party 
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or USB 
key only . 
c. Each party and thi rd party shall also send an email to the DS Registry, at the same time 
that it submits the paper versions, attaching an electronic copy of all documents that it 
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails WT/DS556/R/Add.1  
 
- 9 - 
 
 to the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO 
Secretariat staff whose email addresses have been provided to the parties during the 
proceeding. If it is not possible to attach all the Exhibits to one email, the submitting party 
or third party shall provide the DS Registry with four copies of the Exhibits on USB keys, 
CD-ROMs or DVDs.  
d. In addition, each party and third party is invited to submit all documents through the 
Digital Dispute Settlement Registry (DDSR) within 24 hours fo llowing the deadline for the 
submission of the paper versions. If the parties or third parties have any questions or 
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide 
(electronic copy provided) or contact the DS R egistry at DSRegistry@wto.org.  
e. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve any submissions in advance of the first substantive 
meeting with the Panel directly on the third parties. Each third party shall serve any 
document submitted to the Panel directly on the parties and on all other third parties. A 
party or third party may serve its documents on another party or third party by email or  
other electronic format acceptable to the recipient without having to serve a paper copy , 
unless the recipient party or third party has previously requested a paper copy. Each party 
and third party shall confirm, in writing, that copies have been served on the parties and 
third parties, as appropriate, at the time it provides each document to the Panel.  
f. Each party and third party shall submit its documents with the DS Registry and serve 
copies on the other party (and third parties if appropriate) by 5.00  p.m. (Geneva time) on 
the due date s established by the Panel.  
g.  As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with a paper copy of the  Interim Report and the Final Report.  
Correction of clerical errors in submissions  
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any  such request should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  
 
 
 WT/DS556/R/Add.1  
 
- 10 - 
 
 ANNEX  A-2 
ADDITIONAL WORKING PROCEDURES FOR THE PANEL  
OPEN MEETING  
Adopted on 19 July 2019  
1. These Additional Working Procedures shall only be applicable to the first substantive meeting 
of the Panel with the parties. They shall not cover the second substantive meeting of the Panel 
with the Parties nor the third -party session.  
2. Subject to the availability of suitable WTO meeting rooms, the Panel will open its first 
substantive meeting with the parties to the public ("open session") pursuant to paragraph 10 
of its Working Procedures.  
3. If the Panel or any of the parties considers it necessary to close any part of the substantive 
meeting ("closed session"), the Panel shall close the meeting immediately or convene a closed 
session at a time to be determined by the Panel.  
4. The Panel will invite the parties to introduce the members of their delegations in a closed 
session at the beginning of the substantive meeting. The Panel will then start the open session 
with the parties' opening statements. After the parties' opening statements, each party wi ll 
be given the opportunity to pose questions or make comments, through the Panel, on the 
other party's statement. The Panel may subsequently pose questions to the parties. Once the 
questioning has concluded, the Panel shall afford each party an opportunit y to present a brief 
closing statement.  
5. During the first  substantive meeting , the following persons shall be admitted into the meeting 
room:  
• Members of the Panel;  
• Members of the delegations of the parties;  and 
• WTO Secretariat staff assisting the Panel.  
 
6. Subject to the availability of suitable WTO meeting rooms, the open sessions of the first 
substantive meeting will be open to other WTO Members, Observers, staff members and 
registered members of the public  via a live closed -circuit television broadcast to a  separate 
viewing room in the WTO.  The WTO Secretariat will remind the public that no audio or video 
recording of the open sessions  is permitted.  
7. The viewings will be open to officials of WTO Members, Observers and staff members of the 
WTO Secretariat upon  presentation of their official badges. No later than  four weeks before 
the substantive meeting , the WTO Secretariat will place a notice on the WTO website informing 
the public of the open sessions. The notice shall include a link through which members of the 
public, including accredited journalists and representatives of relevant non -governmental 
organizations (NGOs), can register directly with the WTO. The date of the  deadline for public 
registration will be communicated to the parties as soon as it has been established.  
 WT/DS556/R/Add.1  
 
- 11 - 
 
 ANNEX  A-3 
WORKING PROCEDURES OF THE PANEL  
Revised on 19 July 2019  and 20 February 2020  
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures appl y.  
(2) The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as co nfidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) In accordance with the DSU , nothing  in these Working Procedures shall preclude a party 
or third party from disclosing statements of its o wn positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be di sclosed to the public.  
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the parties.  
Submissions  
 
3. (1) Before the first substantive meeting of the  Panel with the parties, each party shall 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, before the second sub stantive meeting of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the Panel with the parties shall do so in acco rdance with the timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 b elow.  
Preliminary rulings  
4. (1) If the United States considers that the Panel should make a ruling before the issuance 
of the Report that certain measures or claims in the panel request or the complainant's first 
written submission are not properly before the Panel, the following procedu re applies. 
Exceptions to this procedure shall be granted upon a showing of good cause.  
a. The United States shall submit any such request for a preliminary ruling at the earliest 
possible opportunity and in any event no later than in its first written submi ssion to the   WT/DS556/R/Add.1  
 
- 12 - 
 
 Panel. Switzerland  shall submit its response to the request before the first substantive 
meeting of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling 
request before, during or after the first substantive meeting, or the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues i ts Report to the 
parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide reasons for the ruling at the time that the ruling is made, 
or subsequently in its Report.   
d. Any request for  such a preliminary ruling by the respondent before the first meeting, and 
any subsequent submissions of the parties in relation thereto before the first meeting, 
shall be served on all third parties. The Panel may provide all third parties with an 
opportu nity to provide comments on any such request, either in their submissions as 
provided for in the timetable or separately. Any preliminary ruling issued by the Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be communicated to all third parties.  
(2) This procedure is without prejudice to the parties' right to request other types of 
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with  respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party  an appropriate period of time to comm ent on the new evidence 
submitted.  
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO  working language of the submission. The Panel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shall be accompanied 
by an explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the num ber of each exhibit on its 
cover page. Exhibits submitted by Switzerland  should be numbered CHE-1, CHE-2, etc. 
Exhibits submitted by the United States should be numbered USA -1, USA -2, etc. If the last 
exhibit in connection with the first submission was num bered [XXX] -5, the first exhibit in 
connection with the next submission thus would be numbered [XXX] -6.  
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and response s to questions.  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again.  WT/DS556/R/Add.1  
 
- 13 - 
 
 (4) If a party includes a hyperlink to the content of a website in a submission,  and intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Pane l may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.   
b. The Panel may put questions to the parties and third parties orally duri ng a meeting, 
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel may open its meetings with the parties to the public, subject to appropriate 
procedures to be adopted by the Panel afte r consulting the parties.  
  
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each par ty shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request for i nterpretation by any party should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be c onducted as follows:  
a. The Panel shall invite Switzerland  to make an opening statement to present its case 
first. Subsequently, the Panel shall invite the United States  to present its point of view. Before 
each party takes the floor, it shall provide the Panel and other participants at the meeting with 
a provisional written version of its statement. If interpretation is needed, each party shall 
provide additional copies for the interpreters.  
b. Each party should avoid lengthy repetition of the arguments i n its submissions. Each 
party is invited to limit the duration of its opening statement to not more than 75 minutes. If 
either party considers that it requires more time for its opening statement, it should inform 
the Panel and the other party at least 10 days prior to the meeting, together with an estimate 
of the expected duration of its statement. The Panel will accord equal time to the other party    
c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to mak e comments or ask the other party questions.  
d. The Panel may subsequently pose questions to the parties.  WT/DS556/R/Add.1  
 
- 14 - 
 
 e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Switzerland  presen ting its statement first. Before each 
party takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its closing statement, if available.  
f. Following the meeting:  
i. Each party shall submit a final written version of its opening statement no later than 
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same 
time, each party should also submit a final written version of any prepared closing 
statement that it delivered at the meeting.  
ii. Each party shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the other party to which it wishes to receive 
a response in writing.  
iii. The Panel shal l send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to a ny 
questions posed by the other party, within the time -frame established by the Panel 
before the end of the meeting.  
16. The Panel will communicate in advance concerning the conduct of the second substantive 
meeting, after having consulted with the parties . 
Third party session  
 
17. The third parties shall be present at the meetings only when invited by the Panel to appear 
before it.  
18. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the procee ding and the 
submissions of the parties and third parties.  
19. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow su fficient time to ensure availability of interpreters.  
20. (1) Each third party may present its views orally during a session of the first substantive 
meeting with the parties set aside for that purpose.  
(2) Each third party shall indicate to the Panel whe ther it intends to make an oral statement 
during the third party session, along with the list of members of its delegation, in advance of 
this session and no later than 5.00  p.m. (Geneva time) three working days before the third 
party session of the meetin g with the Panel.  
21. The Panel will communicate in advance of the first substantive meeting concerning the conduct 
of the third party session, after having consulted with the parties.  WT/DS556/R/Add.1  
 
- 15 - 
 
 Descriptive part and executive summaries  
 
22. The description of the a rguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in an y way serve 
as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case.  
23. Each party shall submit one integrated executive summar y. The timing of the submission of 
the integrated executive summar y shall be indicated in the timetable adopted by the Panel.  
24. The integrated executive summary shall be limited to no more than 30 pages.  
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in  accordance with the timetable adopted by the Panel. This 
integrated executive summary may also include a summary of responses to questions, if relevant. 
The executive summary to be provided by each third party shall not exceed six  pages. If a third -
party submission and/or oral statement does not exceed six pages in total, this may serve as the 
executive summary of that third party's arguments.  
Interim review  
 
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is subm itted.  
28. If no further meeting with the Panel is requested, each party may submit written comments 
on the other party's written request for review, in accordance with the timetable adopted by the 
Panel. Such comments shall be limited to commenting on th e other party's  written request for 
review.  
Interim and Final Report  
29. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
Service of documents  
 
30. The followi ng procedures regarding service of documents apply to all documents submitted by 
parties and third parties during the proceeding:  
a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047 ).  
b. Each party and third party shall submit 2 paper cop ies of its submissions and 2 paper 
copies of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates established 
by the Panel. The DS  Registrar shall stamp the documents with the date and time of 
submission. The paper version submitted to the DS Registry shall constitute the official 
version for the purposes of submission deadlines and the record of the dispute. If any 
documents are in a format that is impractical to submit as a paper c opy, then the party 
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or USB 
key only . 
c. Each party and third party shall also send an email to the DS Registry, at the same time 
that it submits the paper versions, attaching an ele ctronic copy of all documents that it 
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails WT/DS556/R/Add.1  
 
- 16 - 
 
 to the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO 
Secretariat staff whose email addresses have been p rovided to the parties during the 
proceeding. If it is not possible to attach all the Exhibits to one email, the submitting party 
or third party shall provide the DS Registry with four copies of the Exhibits on USB keys, 
CD-ROMs or DVDs.  
d. In addition, ea ch party and third party is invited to submit all documents through the 
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the 
submission of the paper versions. If the parties or third parties have any questions or 
techni cal difficulties relating to the DDSR, they are invited to consult the DDSR User Guide 
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.  
e. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall serve  directly on the third parties  any submissions up to and including 
the responses to the questions posed by the Panel following the first substantive meeting 
of the Panel with the parties, as well as the final versions of the oral state ments made 
during this meeting . In addition, each party shall serve directly on the third parties second 
written submissions, final versions of oral statements made during the second substantive 
meeting, responses to the Panel's questions after the second substantive meeting, and 
comments on those responses . Each third party shall serve any document submitted to 
the Panel directly on the parties and on all other third parties. A party or third party may 
serve its documents on another party or third party by  email or  other electronic format 
acceptable to the recipient without having to serve a paper copy , unless the recipient party 
or third party has previously requested a paper copy. Each party and third party shall 
confirm, in writing, that copies have been  served on the parties and third parties, as 
appropriate, at the time it provides each document to the Panel.  
f. Each party and third party shall submit its documents with the DS Registry and serve 
copies on the other party (and third parties if appropriat e) by 5.00  p.m. (Geneva time) on 
the due dates established by the Panel.  
g.  As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall  
provide the parties with a paper copy of the Interim Report and the Final Report.  
Correction of clerical errors in submissions  
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragra ph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  
 WT/DS556/R/Add.1  
 
- 17 - 
 
  ANNEX  A-4 
ADDITIONAL WORKING PROCEDURES OF THE PANEL  
CONCERNING MEETINGS WITH REMOTE PARTICIPATION  
Adopted on 1 December 2020  
General  
1. These Additional Working Procedures set out terms for holding meetings with the Panel where 
all of the participants shall attend by remote means.  
2. These Additional Working Procedures are meant to develop and complement paragraph 16 of 
the Working Procedures of the Panel.  
Definitions  
3. For the purposes of these Additional Working Procedures:  
"Remote participant"  means any registered person attending the meeting with the Panel by 
remote means.  
"Platform"  means Cisco Webex software through which remote participants attend the meeting 
with the Panel.  
"Host"  means the designated person within the WTO Secretariat res ponsible for the 
management of the platform.  
Equipment and technical requirements  
4. Each party shall ensure that all remote participants of its delegation join the meeting using the 
designated platform, and meet the minimum equipment and technical requiremen ts set out by 
the platform provider for the effective conduct of the meeting . 
5. All technical questions, including the minimum equipment and technical requirements  for the 
usage of the Platform, will be addressed in the advance testing sessions in paragraph 8 below 
between the Host and the parties.  
Technical support  
6. (1) Each party is responsible for providing technical support to the remote participants of its 
delegation.  
(2) The host will assist remote participants in accessing and using the platform in prep aration 
of, and during, the meeting with the Panel.  
Pre-meeting  
Registration  
7. Each party shall provide  to the Panel the list of the members of its delegation, on a dedicated 
form to be provided by the WTO Secretariat, no later than 5:00 p.m. (Geneva time) o ne week 
before the first day of the meeting with the Panel.  WT/DS556/R/Add.1  
 
- 18 - 
 
  Advance testing  
8. Before the meeting with the Panel, the WTO Secretariat will hold two testing sessions with all 
remote participants of each party: (i ) a separate one for each party's remote participants, and 
(ii) a joint session with all participants in the meeting, including all remote participants of the 
parties and the Panel joining remotely. Such sessions will seek to reflect, as far as possible, t he 
conditions of the meeting.  
Confidentiality and security  
9. The Panel shall meet in closed session. The content and conduct of the meeting are confidential 
and no recording by the parties of any part of the meeting is allowed.  
10. The Panel will record the mee ting and keep an official copy of it for the Panel's record.  
Conduct of the meeting  
Access to the virtual meeting room  
11. (1) The host will invite remote participants via email to join the virtual meeting room on the 
platform.  
(2) For security reasons, acc ess to the virtual meeting room will be password -protected and 
limited to registered participants. Remote participants shall not forward or share the meeting 
link or password.  
(3) Each party shall ensure that only registered participants from its delegati on join the virtual 
meeting room.  
Advance log -on 
12. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled start 
time of each session of the meeting with the Panel.  
(2) All remote participants shall log on to the platform at least 30 minutes in advance of the 
scheduled start time of each session of the meeting with the Panel.  
Document sharing  
13. (1) Each party shall provide the Panel and other participants with a provisional written version 
of its opening statement and, if avail able, of its closing statement, before delivery at the 
meeting. The parties are invited to make their opening statements available to the Panel the 
day before the commencement of the meeting.  
(2) Any participant wishing to share a document with the Panel and other participants during 
the meeting shall do so before first referring to such document at the meeting.  
Technical matters  
14. (1) Each party shall designate a contact person who can liaise with the host during the course 
of the meeting to report any tech nical issues that arise with respect to the platform. The host 
can be contacted via the platform, by sending an email to leslie.stephenson@wto.org , or by 
calling +41 022 739 6148.  
(2) Should any technical interruptions occur, the host will directly coordin ate with the affected 
participants to resolve the issue. After consulting the parties, the Panel may pause the session 
until the technical issue is resolved or may continue the proceedings with those participants that 
continue to be connected.  
___________ ____  WT/DS556/R/Add.1  
 
- 19 - 
 
  ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Switzerland  20 
Annex  B-2 Integrated executive summary  of the arguments of the U nited States of 
America  38 
 
 WT/DS556/R/Add.1  
 
- 20 - 
 
  ANNEX  B-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SWITZERLAND  
I. INTRODUCTION  
1.1.  In this dispute, Switzerland challenges two sets of measures.  
1.2.  First, Switzerland challenges the import adjustment measure on certain steel products and the 
import adjustment measure on certain  aluminium products.  These measures consist of several 
elements including the additional duties and quotas applicable to imports of certain steel and 
aluminium products as well as the country exemptions and product exclusions from such duties and 
quotas.  The "country exemptions " element includes the seeking of and/or the conclusion of 
agreements by the United States with certain countries with a view to exempt those countries from 
the duties and/or quotas. Those different elements are challenged as part of a single measure 
relating to imports of steel on the one hand and a single measure relating to imports of aluminium 
on the other hand. All these elements relate to each other and have been imposed following a single 
investigation by the USDOC . The measures at issue and their dif ferent elements are all adequately 
identified in Switzerland 's Panel Request. These measures constitute safeguard measures that are 
inconsistent with Article XIX of the GATT 1994 and the Agreement on Safeguards. They are also 
inconsistent with Articles I:1 , II:1(a) and (b), XI:1 and X:3(a) of the GATT 1994.  
1.3.  Second, Switzerland challenges Section 232 of the Trade Expansion Act of 1962, as amended, 
as repeatedly interpreted by the US authorities and, in the alternative, its ongoing use  so as to afford 
protect ion to the domestic production by restricting imports from other WTO Members on the ground 
of an alleged threat to the US national security. These measures are inconsistent with several 
provisions of the Agreement on Safeguards and the GATT 1994.  
II. CLAIMS AG AINST THE ADJUSTMENT MEASURES ON IMPORTS OF STEEL AND 
ALUMINIUM PRODUCTS  
A. The measures at issue are inconsistent with the Agreement on Safeguards and 
Article XIX of the GATT 1994  
1. The measures at issue fall within the scope of the Agreement on Safeguards and  of Article XIX 
of the GATT 1994  
1.4.  The legal characterisation of a measure for the purpose of WTO law is not an issue to be decided 
unilaterally by the Member taking the measure. It is an issue that must be determined objectively. 
Such an examination is part  of the panel 's duty to make an objective assessment pursuant to Article 
11 of the DSU. Notably, the label given to a measure under a Member 's municipal law is not 
dispositive. Rather, the panel must assess the design, structure, and expected operation of the 
measure and identify all the aspects of the measure that may have a bearing on its legal 
characterization, recognize which of those aspects are the most central to that measure, and thereby 
properly determine the disciplines to which the measure is sub ject. Thus, the fact that the United 
States does not describe the measures at issue as "safeguard measures " does not mean that such 
measures are not "safeguard measures " under WTO law.  
1.5.  In Indonesia – Iron or Steel Products , the Appellate Body identified th e two constituent features 
of a safeguard measure.1 First, the measure must suspend, in whole or in part, a GATT obligation or 
withdraw or modify a GATT concession. Second , the suspension, withdrawal, or modification in 
question must be designed to preven t or remedy serious injury to the Member 's domestic industry 
caused or threatened by increased imports of the subject product. They are necessary and sufficient 
to find that a given measure constitutes a safeguard measure. They follow directly from the lan guage 
of Article XIX of the GATT 1994. Nothing in the text of that provision suggests that there are any 
other conditions for a measure to be legally characterised as a safeguard measure.  
 
1  Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  WT/DS556/R/Add.1  
 
- 21 - 
 
  1.6.  The measures at issue present these two constituent features and thus are "safeguard 
measures " subject to the requirements of Article XIX of the GATT and the Agreement on Safeguards.  
1.7.  First, by imposing an additional duty of 25% on imports of steel products  and an additional 
duty of 10% on imports of aluminium products, the United States has suspended at least one GATT 
obligation or modified or withdrawn at least one GATT concession, namely that included in Articles 
II:1(a) and (b) of the GATT 1994. Indeed, the United States ' Schedule of Concessions indicates tariff 
bindings of 0% for the steel products at issue and tariff bindings ranging from 0% to 6.5% for the 
aluminium products at issue and does not report any "other duties or charges " with respect to tho se 
products.  
1.8.  Second, the measures at issue, whether in the form of additional duties or quantitative 
restrictions (quotas), are designed to prevent or remedy serious injury to the US domestic steel and 
aluminium industries. Indeed, both the steel and alumi nium investigations focused on the "state" of 
the US steel and aluminium industries. The US Secretary of Commerce examined various injury 
factors relating to the state of the US steel and aluminium industries and concluded that imports 
adversely impacted t hose domestic industries. The "adverse impact " allegedly suffered by the US 
steel and aluminium industries takes the form of a too low level of utilisation capacity, a decreased 
production, unemployment and a negative impact on the financial situation of t hose industries. The 
purpose of the adjustment measures imposed on imports of steel products and aluminium products 
is, as stated in the Steel and Aluminium Reports and in the relevant Presidential Proclamations, to 
address the "adverse impact " suffered by  those industries. The fact that the measures at issue are 
designed to prevent or remedy the injury allegedly caused by the imports to the US steel and 
aluminium industries is further confirmed by numerous statements of the US President and of US 
officials  concerning those measures.  
1.9.  The conclusion that the measures at issue constitute "safeguard measures " is further supported 
by certain additional characteristics of those measures including their extraordinary character as 
temporary import restrictions, the ir complementary relationship with the existing trade remedy 
measures, their focus on the imports of steel and aluminium products, and finally, the fact that they 
were adopted pursuant to a procedure that is very similar to the procedure followed in US saf eguard 
investigations.  
1.10.   Contrary to what the United States argues, t he applicability of Article XIX and of the 
Agreement on Safeguards does not depend on the invocation of Article XIX through a notification. 
In other words, notification is not a condition precedent for a measure to be a safeguard measure. 
Thus, the fact that the United States did not "invoke " Article XIX by notifying the challenged 
measures pursuant to Article XIX:2 of the GATT does not mean that those measures are not 
"safeguard measures ".  
1.11.   While Article XIX:2 imposes an obligation to notify a safeguard measure and to provide an 
opportunity to consult and requires that such notification and opportunity to consult must take place 
prior to imposing the measure, those obligations are procedura l in nature. Accordingly, if a Member 
fails to notify its safeguard measure it will be acting inconsistently with the procedural requirements 
provided for under Article XIX:2 but this failure will not impact the legal characterisation of the 
measure as a s afeguard measure.  
1.12.   This is confirmed by the findings of the panel in Dominican Republic – Safeguard Measures , a 
dispute which examined the notification obligation in Article XIX:2 of the GATT 1994 for the first 
time. The panel 's findings make it clear that  Article XIX:2 is not relevant to the question of the 
applicability  of Article XIX to the challenged measures but to the question of their consistency  with 
that provision.2  
1.13.   The Appellate Body in Indonesia – Iron or Steel Products  stressed the importance of 
distinguishing between the features that determine whether a measure can be properly 
characterized as a safeguard measure from the substantive conditions and procedural requirements 
that must be met in order for the measure to b e consistent with the Agreement on Safeguards and 
the GATT 1994. In that regard, the Appellate Body warned against conflating factors pertaining to 
the legal characterization of a measure for purposes of determining the applicability  of the WTO 
safeguard d isciplines with the substantive conditions and procedural requirements that determine 
 
2  Panel Report, Dominican Republic – Safeguard Measures , para. 7.433.  WT/DS556/R/Add.1  
 
- 22 - 
 
  the WTO -consistency  of a safeguard measure.3 The notification requirement set out in Article XIX:2 
is one of such procedural requirements.  
1.14.   The fact that notification is not a condition precedent for the application of the safeguard 
disciplines, but a procedural requirement, is further confirmed by t he Agreement on Safeguards and, 
in particular, Article 12 which further develops the general notification obligation set out in Article 
XIX:2 of the GATT. Article 12 confirms that the notifications required under the safeguard disciplines 
serve a transpare ncy and information purpose. Notifications, and the information that they provide, 
allow other Members to review the measures and to decide whether and how to respond to them. 
Notifications do not determine whether a measure is a "safeguard measure ".  
1.15.   Switzerland notes that various covered agreements contain different notification obligations. 
This is the case, among others, of the Anti -Dumping Agreement, the SCM Agreement, the TBT 
Agreement or the SPS Agreement. These notification obligations, which may re late to the Members ' 
legislation or to their specific measures, do not determine the applicability  of those agreements but 
relate invariably to the consistency  of the Members ' actions with the procedural obligations imposed 
by those agreements.  
1.16.   Finally, th e fact that a notification does not determine the legal characterisation of a measure 
is confirmed by the 1993 Decision on Notification Procedures, annexed to the Uruguay Round 
agreements, whereby Members committed to notify their adoption of trade measure s affecting the 
operation of the GATT 1994 but recognized that notifications themselves are "without prejudice to 
views on the consistency of measures with or their relevance to rights and obligations under the 
Multilateral Trade Agreements ". The Annex to that Decision, providing an indicative list of notifiable 
measures, lists, among others, "safeguard actions ". This clearly confirms that a notification of a 
safeguard measure cannot determine the applicability of the safeguard disciplines to that measure.  
1.17.   Accepting the United States ' position that a notification is a "condition precedent " for a 
measure to qualify as a safeguard measure would mean that a WTO Member could avoid the 
application of the safeguard disciplines to its measure simply by not notifyin g it to the WTO 
Committee on Safeguards.  
1.18.   In addition, Switzerland notes that certain aspects of the steel and aluminium import 
adjustment measures fall within the scope of the Agreement on Safeguards not as safeguard 
measures but rather as measures similar  to voluntary export restraints ( "VERs") and orderly 
marketing arrangements ( "OMAs ") prohibited under Article 11.1(b) of the Agreement on Safeguards. 
Indeed, to the extent that the United States has sought, taken and maintains restrictions, such as 
import quotas, pursuant to "arrangements " or "agreements " with some exporting countries, those 
measures qualify as measures similar to VERs or OMAs which "afford protection " to the domestic US 
steel and aluminium industries within the meaning of Article 11.1(b) a nd footnote 4 of the Agreement 
on Safeguards.  
1.19.   Finally, contrary to what the United States argues, the fact that it has invoked Article XXI(b) 
with respect to the measures at issue does not mean that these measures are excluded from the 
scope of the Agreem ent on Safeguards by virtue of Article 11.1(c). Since the measures at issue 
constitute safeguard measures, as explained above, pursuant to Article 11.1(a) they must conform 
with the provisions of Article XIX of the GATT 1994 applied in accordance with the Agreement on 
Safeguards. In other words, the Agreement on Safeguards applies to those measures and they are 
not covered by the exclusion operated by Article 11.1(c).  
2. The measures at issue are inconsistent with several provisions of the Agreement on 
Safegu ards and Article XIX of the GATT 1994  
1.20.   The measures at issue are inconsistent with Article XIX of the GATT and several provisions of 
the Agreement on Safeguards. The United States has failed to address the substance of Switzerland 's 
safeguard claims.  
1.21.   First, the measures at issue are inconsisten t with Article XIX:1(a) of the GATT 1994 because 
the US authorities failed to demonstrate the existence of unforeseen developments and of the effect 
of obligations incurred under the GATT 1994 and because they failed to demonstrate a logical 
 
3  Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.57.  WT/DS556/R/Add.1  
 
- 23 - 
 
  connection bet ween unforeseen developments and the effect of obligations incurred under the GATT 
1994 and the increased imports.  
1.22.   In fact, neither the Steel and Aluminium Reports nor the relevant Presidential Proclamations 
imposing the adjustment measures on imports of s teel and aluminium identify any events as 
constituting "unforeseen developments ". While the Reports refer to the global excess capacity in 
steel and aluminium sectors, they fail to demonstrate why such global excess capacity constitutes 
an "unforeseen deve lopment ". 
1.23.   Second, the measures at issue are inconsistent with Article XIX:1(a) of the GATT 1994 and 
Articles 2.1 and 4.2(a) of the Agreement on Safeguards because the United States has applied those 
measures without having first determined that the product s at issue "were imported into its territory 
in such increased quantities, absolute or relative to domestic production, and under such conditions " 
as to cause or threaten to cause serious injury to the domestic industry, in accordance with those 
provisions . 
1.24.   Third, the measures at issue are inconsistent with Article 2.2 of the Agreement on Safeguards 
because the United States did not apply those measures to the products concerned imported 
"irrespective of [their] sources ". Indeed, the additional import dutie s on steel products are applied 
on imports from all countries except Argentina, Australia, Brazil and South Korea and the additional 
import duties on aluminium products are applied on imports from all countries except Argentina and 
Australia. By excluding imports from certain countries from the scope of the safeguard measures at 
issue, while imports from those countries have been taken into account in the investigations, the 
United States has therefore failed to apply the measures to the products concerned "irrespective of 
[their] sources ", contrary to what is required by Article 2.2.  
1.25.   Fourth, the measures at issue are inconsistent with Articles 4.1 and 4.2(a) of the Agreement 
on Safeguards and Article XIX:1(a) of the GATT because the US Secretary of Commerc e has not 
properly determined that there is serious injury, or threat thereof, to a domestic industry, in 
accordance with the requirements laid down in those provisions.  
1.26.   More specifically, the US Secretary of Commerce failed to make a determination concer ning 
the "domestic industry " in accordance with the requirements of Article 4.1(c) for the purposes of 
assessing whether such industry suffers from serious injury or threat thereof. Furthermore, by 
merely concluding that the imports are "weakening " the US internal economy, the US authorities 
failed to establish the existence of a "serious injury ", defined as "a significant overall impairment in 
the position of a domestic industry ", suffered by the US steel and aluminium industries.  
1.27.   The measures at issue ar e also inconsistent with Article 4.2(a) of the Agreement on 
Safeguards because the US Secretary of Commerce failed to examine all the injury factors listed in 
that provision. In addition, even with respect to the factors that have been addressed in the Ste el 
and Aluminium Reports, such as employment or production capacity, the US Secretary of Commerce 
has failed to make an objective analysis and to provide a "reasoned and adequate " explanation on 
how the facts support its determination that there is an adve rse impact on the economic welfare of 
the US steel and aluminium industries.   
1.28.   Fifth, the measures at issue are inconsistent with Article 2.1 and Article 4.2(b) of the 
Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 because the US authorities failed 
to demonstrate the existence of a causal link between increased imports and the alleged serious 
injury or threat thereof and because they failed to ensure that the alleged serious injury or threat 
thereof caused by factors other than increased impor ts was not attributed to increased imports.  
1.29.   Sixth, the United States did not comply with the requirements of Articles 3.1 and 4.2(c) of 
the Agreement on Safeguards because (i) the authorities failed to provide the interested parties with 
"the opportunity t o respond to the presentations of other parties "; (ii) the interested parties have 
not been provided a central role in the investigations and (iii) the authorities failed to provide a 
reasoned and adequate explanation on all pertinent issues of fact and la w. 
1.30.   Seventh, the measures at issue are inconsistent with Article 5.1 of the Agreement on 
Safeguards and Article XIX:1(a) of the GATT 1994 because they are applied beyond the extent 
necessary to prevent or remedy serious injury and to facilitate adjustment. Since the US authorities WT/DS556/R/Add.1  
 
- 24 - 
 
  failed to establish a causal link between the increase in imports and the injury as required by Article 
4.2(b), they could not ensure that the safeguard measures were applied only "to the extent 
necessary " to prevent or remedy that  serious injury. Furthermore, there is no calibration between 
the additional duties imposed, i.e. 25% on steel products and 10% on aluminium products, and the 
objective of preventing or remedying serious injury and the additional import duties are not limi ted 
in time and do not provide for any progressive liberalization.  
1.31.   Eight, the measures at issue are inconsistent with Articles 7.1 and 7.4 of the Agreement on 
Safeguards because they have been applied without making provision for their application only for 
the period necessary to prevent or remedy serious injury and to facilitate adjustment, without 
limitation to four years and without making provision for progressive liberalization at regular 
intervals.  
1.32.   Ninth, the measures at issue are inconsistent with Article 11.1(a) of the Agreement on 
Safeguards because by taking those measures the United States has taken emergency actions on 
imports of steel products and aluminium products as set forth in Article XIX of GATT 1994 while such 
actions did not conform with the provisions of Article XIX of the GATT 1994 applied in accordance 
with the Agreement on Safeguards.  
1.33.   Tenth, the United States acted inconsistently with Article 11.1(b) of the Agreement on 
Safeguards because, through the measures at i ssue, it has sought, taken and maintained "other 
measures " similar to VERs and OMAs. First, by inviting countries with which the Unites States has 
"security relationship " to discuss "alternative means " to address the threat posed by the imports 
from those countries, the United States has sought  measures similar to VERs prohibited by Article 
11.1(b). Second, the United States has also taken and maintains  measures similar to VERs or OMAs 
because it has agreed on "alternative means ", including in the form of i mport quotas, with several 
countries. In particular, the United States has agreed on quotas with respect to steel products with 
South Korea, Argentina and Brazil and on quotas with respect to aluminium products with Argentina. 
Given that those quantitative  restrictions have been imposed following an agreement reached by 
the United States and those countries they constitute measures similar to VERs or OMAs. Switzerland 
notes that those quantitative restrictions (or quotas) are only one type of "alternative m eans" agreed 
by the United States, as the Presidential Proclamations state that the United States and countries 
such as Argentina or Australia agreed on a "range of measures ". Although it is unclear what those 
other measures are, the language of the releva nt Presidential Proclamations suggests that those 
measures also fall within the scope of Article 11.1(b) of the Agreement on Safeguards and are 
inconsistent with that provision.  
1.34.   Finally, the United States acted inconsistently with Articles 12.1, 12.2 and 12.3 of the 
Agreement on Safeguards and Article XIX:2 of the GATT 1994 since it has failed to comply with any 
of the notification and consultation obligations provided for in these provisions. First, the United 
States acted inconsistently with Article 12.1  of the Agreement on Safeguards because it did not 
notify the Committee on Safeguards upon initiating an investigatory process relating to serious injury 
or threat thereof and the reasons for it, upon making a finding of serious injury or threat thereof 
caused by increased imports, and upon taking a decision to apply or extend a safeguard measure. 
Second, the United States also acted inconsistently with Article 12.2 because since it did not make 
the relevant notifications it did not provide the Committee on  Safeguards "with all pertinent 
information " in making those notifications.  Third, the United States failed to provide adequate 
opportunity for prior consultations with Members having a substantial interest as exporters of the 
product concerned as required  by Article 12.3 of the Agreement on Safeguards and Article XIX:2 of 
the GATT 1994.   
B. The measures at issue are inconsistent with several provisions of the GATT 1994  
1.35.   First, the additional import duties imposed on imports of steel and aluminium products are 
inconsistent with Article II:1(b) of the GATT 1994.  
1.36.   These additional import duties constitute "other duties or charges " within the meaning of the 
second sentence of  Article II:1(b) of the GATT 1994. First, the additional import duties do not 
replace, but rather coexist with, the MFN tariff. Second, they are extraordinary in nature since their 
purpose is to protect the domestic industry from import competition on the ground of an alleged 
threat to the national security of the United States following a specific investigation of the US WT/DS556/R/Add.1  
 
- 25 - 
 
  Secretary of Commerce. Third, the additional import duties only apply on imports of steel and 
aluminium products originating in certain M embers. Fourth, they appear to be imposed on a 
temporary rather than permanent basis.  These characteristics demonstrate that  the additional 
import duties on steel and aluminium products constitute "other duties or charges " within the 
meaning of Article II:1(b) of the GATT 1994. Those additional import duties are inconsistent with 
that provision since they are in excess of those recorded in the United States ' Schedule of 
Concessions.  
1.37.   Switzerland further submits that, if the  additional import duties imposed on steel and 
aluminium products are considered to be "ordinary customs duties " (and not "other duties or 
charges "), they are inconsistent with the first sentence of Article II:1(b) of the GATT 1994 because 
they are in exce ss of those set forth in the relevant part of the United States ' Schedule of 
Concessions.  
1.38.   Second, as a consequence, the measures at issue are also inconsistent with Article II:1(a) of 
the GATT 1994 since, by applying those measures, the United States fail s to accord to the commerce 
of most  other WTO Members, including Switzerland, treatment no less favourable than that provided 
for in the appropriate part of the United States ' Schedule of Concessions.  
1.39.   Third, the measures at issue are inconsistent with Arti cle I:1 of the GATT 1994 since, by 
exempting from the imposition of the additional duties imports from certain countries, namely 
Australia, Argentina, South Korea and Brazil in case of additional import duties on steel products 
and Argentina and Australia in case of additional import duties on aluminium products, the United 
States has granted to the products from those countries an "advantage, favour, privileged or 
immunity " within the meaning of Article I:1 of the GATT 1994 that has not been accorded 
immed iately and unconditionally to like products originating in other WTO Members, including 
Switzerland.  
1.40.   Fourth, the measures at issue are also inconsistent with Article XI:1 of the GATT 1994 because 
by imposing quotas on imports of steel products from South K orea, Argentina and Brazil, and on 
imports of aluminium products from Argentina, the United States has instituted and maintains 
restrictions other than duties, taxes or other charges, made effective through quotas, on the 
importation of steel and aluminium  products of the territory of other Members.  
1.41.   Fifth, the administration of the Presidential Proclamations and of the product exclusion 
mechanism is inconsistent with Article X:3(a) of the GATT 1994.  
1.42.   Switzerland submits that, by providing for the possibility  to countries with which the United 
States has "important security relationships " of agreeing on "alternative means " to address the 
alleged threat to the national security caused by the imports from those countries, without any 
indication as to what such "alternative means " might be and what is the process as well as the 
requirements to agree on such "alternative means ", the United States fails to administer the 
Presidential Proclamations regarding import adjustments with respect to steel and aluminium 
products in a uniform, impartial and reasonable manner.  
1.43.   Switzerland also submits that the United States fails to administer in a reasonable manner 
the product exclusion mechanism foreseen by Presidential Proclamations 9704 and 9705 and 
governed by specific ru les set out in the Supplements to Section 705 of the Code of Federal 
Regulations. More specifically, Switzerland considers that the criteria that a product is (i) "not 
produced in the United States in a sufficient and reasonably available amount " and (ii) "not produced 
in the United States in a satisfactory quality ", both expressed in the revised Supplements to Section 
705, establish the lack of reasonable administration. This unreasonable administration of the product 
exclusion mechanism is further aggrava ted by the fact that the examination of product exclusion 
requests notoriously exceeds the 90 -day deadline established in the Supplements to Section 705.  
1.44.   Finally, Switzerland submits that by failing to provide any criteria for the examination of the 
need to amend or to discontinue the import adjustment measures, the United States fails to 
administer the Presidential Proclamations regarding import adjustments with respect to steel and 
aluminium products in a uniform and reasonable manner.  WT/DS556/R/Add.1  
 
- 26 - 
 
  III. CLAIMS AGAINST SE CTION 232 AS REPEATEDLY INTERPRETED BY THE US 
AUTHORITIES AND ITS ONGOING USE  
1.45.   Switzerland also challenges Section 232, as repeatedly interpreted by the US authorities and, 
in the alternative, the ongoing use of Section 232.  
1.46.   Section 232 as interpreted by the US authorities provides for the imposition of measures that 
restrict imports in order to shield domestic production from competition with foreign products on the 
grounds of an alleged threat to the national security. Indeed, Section 232 as repeatedly i nterpreted 
by the US authorities provides for the imposition of restrictions on imports of products from other 
WTO Members, on the grounds of an alleged threat to national security, because the imports of such 
products, taking into account their quantities  and/or the circumstances, cause or threaten to cause 
injury to the domestic industry. This interpretation is based on an increasingly expansive reading of 
the notion of "national security " in Section 232. That interpretation is reflected in the reports ad opted 
by the USDOC in the context of the steel and aluminium investigations, multiple statements by 
President Trump and other US officials as well as the information relating to the investigation 
concerning imports of automobiles.  
1.47.   In the alternative, Swit zerland challenges the ongoing use of Section 232 so as to afford 
protection to the domestic production by restricting imports on the grounds of an alleged threat to 
the US national security. This use of Section 232 is ongoing and likely to continue in the  future as 
evidenced by the steel and aluminium investigations, the investigations into imports of automobiles 
and titanium sponge as well as multiple statements of the US officials including President Trump.  
1.48.   These measures are inconsistent with the balanc e of rights and obligations under the WTO 
Agreement as they constitute an "emergency action " mechanism which essentially amounts to 
safeguard mechanism without complying with the rules set out in Article XIX of the GATT and the 
Agreement on Safeguards.  
1.49.   More specifically, the measures at issue are inconsistent with Article XIX:1(a) of the GATT 
1994 and Articles 2.1, 4.1 and 4.2 of the Agreement on Safeguards since they provide for the 
imposition of import restrictions in order to protect a domestic indust ry from foreign competition, 
without examining whether the products at issue are being imported into the United States in such 
increased quantities and under such conditions as to cause or threaten to cause serious injury to the 
US domestic producers of li ke or directly competitive products, as a result of unforeseen 
developments, and of the effects of the obligations incurred under the GATT 1994.  
1.50.   Furthermore, the measures at issue are inconsistent with Article 3.1 of the Agreement on 
Safeguards since they  provide for the imposition of safeguard measures without providing for an 
investigation whereby the US authorities actively seek out from the interested parties the 
information that is used in the investigation and without providing for the publication of  a report 
setting forth their findings and reasoned conclusions reached on all pertinent issues of fact and law.  
1.51.   The measures at issue are also inconsistent with Articles 5.1, 7.1 and 7.4 of the Agreement 
on Safeguards since they do not provide for the imp osition of safeguard measures only to the extent 
and for such time as may be necessary to prevent or remedy serious injury and to facilitate 
adjustment and since they fail to provide that those measures cannot exceed four years and that 
they shall be progr essively liberalised at regular intervals.  
1.52.   In addition, the measures at issue are inconsistent with Article 11.1(a) of the Agreement on 
Safeguards since they constitute a mechanism of "emergency action " as set forth in Article XIX of 
the GATT 1994 that doe s not conform with the provisions of that Article and is not applied in 
accordance with the Agreement on Safeguards.  
1.53.   These measures are also inconsistent with Articles II:1(a) and (b) and Article XI:1 of the GATT 
1994. Indeed, those measures provide for th e imposition of additional duties and import restrictions 
other than duties, taxes or other charges without consideration of whether such duties or restrictions 
contrary to the United States ' WTO obligations.  
1.54.   Finally, these measures are inconsistent with Article XVI:4 of the WTO Agreement because 
through those measures the United States fails to ensure the conformity of its laws, regulations and WT/DS556/R/Add.1  
 
- 27 - 
 
  administrative procedures with its obligations under the GATT 1994 and the Agreement on 
Safeguards.  
1.55.   Switzerland 's claims against those measures are essential since the Panel 's ruling on those 
claims would prevent the United States from imposing further unlawful trade -restrictive measures 
under the guise of protecting national security pursuant to Section 232.  
IV. THE UN ITED STATES' INVOCATION OF ARTICLE XXI(B) OF THE GATT 1994  
A. Introduction  
1.56.   The United States does not dispute the existence of the measures challenged in this dispute 
nor their inconsistency with the WTO covered agreements. Instead, the United States ' entire defence 
with respect to all aspects of this dispute is based on Article XXI(b) of the GATT. The United States 
submits that because it has invoked  Article XXI(b) the entire dispute becomes non -justiciable 
meaning that the sole finding that the Panel  may make is to note the US invocation of Article XXI.  
1.57.   Although the United States alleges that its measures are justified under Article XXI(b) of the 
GATT 1994, it has not even clearly indicated the specific subparagraph of Article XXI(b) on which it 
relies and has not provided any argument or evidence to substantiate its defence.  
1.58.   Switzerland submits that the United States errs in its interpretation of Article XXI(b) and has 
manifestly failed to meet its burden of proof. This means that, if the Panel disag rees with the United 
States ' proposition about the self -judging nature of Article XXI(b), the Panel must reject the United 
States ' defence and find in favour of Switzerland.  
B. The order of analysis and the burden of proof under Article XXI(b) of the GATT  1994  
1.59.   Article XXI(b) of the GATT 1994 constitutes an affirmative defence that may be invoked to 
justify a measure that is inconsistent with the GATT 1994. This has important implications for the 
order of analysis that should be followed by this Panel and t he allocation of the burden of proof.  
1.60.   First, in terms of the order of analysis, the nature of Article XXI(b) implies that the Panel must 
start its examination by reviewing Switzerland 's claims in order to determine whether there is a 
violation before turn ing to the United States ' defence under Article XXI(b).  
1.61.   As explained by the Appellate Body, "an analysis of whether a measure infringes an obligation 
necessarily precedes, and is distinct from, the 'further and separate ' assessment of whether such 
measure  is otherwise justified ".4 Thus, in the present case, the Panel must first address Switzerland 's 
claims of violation before addressing the United States ' defence under Article XXI. If there is no 
violation, a defence under Article XXI would not even come into play.  
1.62.   Second, the fact that a provision is an affirmative defence means that the burden of proof is 
on the party asserting that defence. The United States, being the party invoking Article XXI(b), bears 
the burden of proving first that its defence und er Article XXI(b) of the GATT 1994 is available and 
second (and if so) that the conditions laid down in Article XXI(b) are fulfilled.  
1.63.   Contrary to what the United States argues, to discharge this burden with respect to Article 
XXI(b), it is not enough for a Member invoking that provision to indicate that it considers one or 
more of the circumstances set forth in Article XXI(b) to be present. Article XXI(b) contains a number 
of conditions that must be satisfied in order for a Member to justify its otherwise GATT -inconsistent 
measure under that provision. Thus, in order to discharge its burden of proof under Article XXI(b) 
of the GATT 1994, the United States has to establish that the measures at issue satisfy all the 
conditions laid down in Article XXI(b). How ever, the United States has failed to do so.  
C. The invocation of Article XXI of the GATT 1994 by the United States is subject to 
review by the Panel  
 
4  Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 173.  WT/DS556/R/Add.1  
 
- 28 - 
 
  1. Introduction  
1.64.   The United States claims that Article XXI(b) is self -judging and that this understanding is 
based on the text and context of the provision itself and is confirmed by the subsequent agreement 
of the GATT Contracting Parties regarding the interpretation and application of tha t provision, as 
well as the negotiating history of that provision. The United States also alleges that WTO Members, 
including the United States, have "repeatedly " expressed the view that Article XXI(b) is self -judging.  
1.65.   Switzerland submits that interpretin g Article XXI(b) as a self -judging provision not subject to 
review by a panel is first of all manifestly inconsistent with fundamental obligations and principles 
set out in the covered agreements, in particular in the DSU. Furthermore, the correct interpre tation 
of Article XXI(b), on the basis of the ordinary meaning of its terms, taken in their context and in 
light of the object and purpose of the GATT 1994 and the WTO Agreement, clearly establishes that 
the WTO Member invoking Article XXI(b) as a defence does not enjoy absolute discretion and the 
panel needs to review whether the conditions set out in that provision are satisfied. Finally, while 
recourse to supplementary means of interpretation, including the negotiating history, is not 
necessary, such sup plementary means additionally confirm that Article XXI(b) is reviewable by 
panels.  
2. Interpreting Article XXI(b) of the GATT 1994 as a self -judging provision contradicts 
fundamental obligations and principles of the covered agreements  
1.66.   Various principles and obligations included in the WTO covered agreements and, in particular, 
in the DSU establish that the Panel shall duly exercise its jurisdiction.  
1.67.   First, the United States ' position is contrary to Articles 1.1 and 1.2 of the DSU. Article XXI(b) 
is not exclu ded from the scope of the DSU.  
1.68.   Second, based on Article 7 of the DSU, this Panel is required , in accordance with its terms of 
reference, to examine the claims raised by Switzerland in its Panel request and to make findings, in 
the light of the relevant pro visions of the covered agreements cited by Switzerland and the United 
States, including Article XXI(b).  
1.69.   Third, the Panel must make an objective assessment of the matter pursuant to Article 11 of 
the DSU, including "an objective assessment of the facts of the case and the applicability of and 
conformity with the relevant covered agreements ". If the Panel were to merely note that the United 
States has invoked Article XXI(b) of the GATT 1994, it would not make "an objective assessment of 
the matter ", includin g an objective assessment of the facts of the case and of the applicability of 
and conformity with the relevant covered agreements ". As the Appellate Body noted, "[i]t is difficult 
to see how a panel would fulfil that obligation [under Article 11] if it de clined to exercise validly 
established jurisdiction and abstained from making any finding on the matter before it ". 
1.70.   The United States seeks to make a distinction, allegedly based on Articles 7.1 and 11 of the 
DSU, between what it describes as being two dif ferent functions of panels "(1) '[t]o examine the 
matter – that is, to '[i]nvestigate the nature, condition or qualities of (something) by close inspection 
or tests '; and (2) to 'make such findings as will assist the DSB in making the recommendations or 
in giving the rulings provided for ' in the covered agreement ". The United States further argues that 
this Panel (i) should only examine the matter, which in the present dispute would be limited to an 
acknowledgement of the US invocation of Article XXI(b), an d (ii) cannot make any findings that will 
assist the DSB in making a recommendation because the dispute presents an issue that is not 
justiciable.  
1.71.   Switzerland submits that that approach is fundamentally flawed and finds no legal basis in 
the DSU nor in any  other covered agreements. Pursuant to Article 11 of the DSU, panels must make 
an objective assessment of the facts of the case and the applicability of and conformity with the 
relevant covered agreements. This implies making findings with respect to the c laims raised by the 
complainants. In some cases, panels will be also required to make "such other findings " pursuant to 
Article 11 of the DSU as may be necessary for the DSB to make the recommendations or give the 
rulings provided for in the covered agreem ents.  WT/DS556/R/Add.1  
 
- 29 - 
 
  1.72.   Fourth, the United States ' argument that the matter is non -justiciable is inconsistent with 
Article 23 of the DSU. Concluding that this Panel cannot make findings on Switzerland 's claims would 
"diminish " Switzerland 's right to seek redress within the meaning of Article 23 of the DSU and to 
bring a dispute pursuant to Article 3.3 of the DSU. It would also be inconsistent with Article 23.2(a) 
of the DSU which prohibits Members from making a determination to the effect t hat a violation has 
occurred, except through recourse to the multilateral dispute settlement system. Accepting the 
United States ' argument that Article XXI(b) is "self-judging " would render the principle of compulsory 
WTO dispute settlement inutile.  
1.73.   Fifth, Switzerland submits that concluding that Article XXI(b) is self -judging would also 
undermine the role of the dispute settlement system as a "central element in providing security and 
predictability to the multilateral trading system ". 
1.74.   Finally, while the U nited States initially argued in the proceedings that the invocation of Article 
XXI of the GATT 1994 prevents the Panel from exercising its jurisdiction in relation to the entire 
dispute due to the political nature of essential security interests, it appea rs to have abandoned that 
argument during the proceedings. In any case, this argument must be rejected by the Panel because 
it has no basis in the DSU and in fact is contrary to several of its provisions, including Articles 3.2, 
3.3, 7, 11, 12, 19 and 23.  
3. The invocation of Article XXI(b) is subject to the panel's review in accordance with the ordinary 
meaning of its terms, context and the object and purpose of the GATT 1994  
a. The text of Article XXI(b)  
1.75.   The United States ' assertion that Article XXI(b) is "self-judging " is based on its reading that 
the phrase "which it considers " in the chapeau  applies to all elements in Article XXI(b), including 
each subparagraph ending of that clause and on the understanding that the word "consider " implies 
boundless discretio n for the Member invoking that defence with respect to all elements qualified by 
that word. This is manifestly erroneous.  
1.76.   First, it is clear from the text of Article XXI(b), including its structure and grammar, that the 
phrase "which it considers " only qu alifies the "necessity " of the action and does not qualify the 
subparagraphs nor the remaining part of the chapeau .  
1.77.   In terms of structure, Article XXI(b) of the GATT 1994 is composed of two distinct parts: on 
the one hand, the chapeau and on the other han d, the three subparagraphs which list circumstances 
(the first two identifying the types of goods and the third being a temporal circumstance) which 
must objectively be met in order for a Member to take action under the chapeau . The chapeau then 
elaborates  on additional conditions that must be met in order for the action taken by the Member to 
be justified under Article XXI(b). The same structure is found in Article XX of the GATT 1994 which 
lists the general exceptions of that agreement.  
1.78.   It is also clear f rom the wording and the grammatical structure of Article XXI(b) that the three 
subparagraphs and the circumstances identified therein qualify the word "action " in the chapeau and 
are not part of the clause "which it considers necessary for the protection o f its essential security 
interests ".  
1.79.   The United States does not dispute that subparagraph (iii) relates to the word "action " in the 
chapeau . However, the United States erroneously argues that the relevant question is "whether the 
Member considers the action to be 'taken in time of war or other emergency in international 
relations '". The United States ' interpretation ignores the grammatical co nstruction of Article XXI(b). 
Indeed, to the extent that subparagraph (iii) qualifies the "action ", it is not in any way connected to 
the words "which it considers " in the chapeau . 
1.80.   The United States erroneously argues that "the relative clause that follows  the word 'action ' 
begins with 'which it considers ' and ends with 'taken in time of war or other emergency in 
international relations '." In fact, the relative clause starts with "which it considers " and ends at the 
end of the chapeau  with "essential securi ty interests ". The subparagraphs (i), (ii) and (iii) are not 
part of the relative clause. They constitute coordinated participial clauses which relate directly and 
modify the noun "action " in the chapeau. More specifically, subparagraphs (i), (ii) and (iii ) constitute WT/DS556/R/Add.1  
 
- 30 - 
 
  a case of "coordinate construction ", which in the context of Article XXI(b) means that the three 
subparagraphs must have the same function. Given that it is undisputed and undisputable that 
subparagraph (iii) relates to the noun "action ", it m eans that all three subparagraphs modify the 
noun "action " in the chapeau.  
1.81.   Thus, in Article XXI(b), we have a case of double modification of the noun "action ": the first 
modifier is the relative clause ( "which it considers necessary for the protection of its essential 
security interests ") while the second modifier is the coordinate construction including (i), (ii) and 
(iii). 
1.82.   This analysis is not only supported by, but also is the only one consistent with, the French 
and Spanish versions of Article XXI(b). In particular, in the Spanish version, the word "relativas " is 
not included in the subparagraphs but at the end of the chapeau  to introduce the three 
subparagraphs. Given that this word is feminine and plural, it can relate to the only other word in 
the chapeau  which is feminine and plural, i.e. "medidas " ("action "). The grammatical structure in 
the Spanish version renders the interpretation put forward by the United States simply impossible.  
1.83.   Second, the chapeau and subparagraphs identify objective eleme nts that are subject to 
objective determination by a panel.  
1.84.   Regarding the subparagraphs, they all refer to objective elements, as noted by the panel in 
Russia – Traffic in Transit .5 First of all, the fact that the circumstances identified in the three 
subparagraphs are exhaustive, as acknowledged by the United States, implies that Member cannot 
take action pursuant to Article XXI(b) in circumstances other than the ones listed in Article XXI(b). 
If a WTO Member were to determine for itself whether the circ umstances listed in subparagraphs (i) 
to (iii) are met, there would have been no need to identify those specific circumstances.  
1.85.   Subparagraphs (i) and (ii) refer to action "relating to " "fissionable materials… " and "traffic in 
arms… ". The phrase "relating t o" requires "a 'close and genuine relationship of ends and means ' 
between the measure and the objective of the Member adopting the measure ". This constitutes an 
objective element that is subject to objective determination.  
1.86.   Subparagraph (iii) refers to act ion "taken in time of war or other emergency in international 
relations ". The phrase "taken in time of " describes the connection between the action and the events 
of war or other emergency in international relations. This connection is a temporal one – as the 
United States acknowledges. That temporal connection is an objective fact, amenable to objective 
determination. Likewise, the existence of a "war or other emergency in international relations " is 
also an objective fact that is amenable to objective det ermination. This has also been confirmed by 
the panel in Russia – Traffic in Transit .6 
1.87.   Regarding the chapeau , the fact that the phrase "essential security interests " of a Member 
implies a degree of discretion, does not mean that whether an interest may be  regarded as an 
"essential security interest " may not objectively be assessed by a panel. Similarly, a panel must 
make an objective assessment of whether there is a rational connection between the action taken 
and the protection of the Member 's essential security interests.  
1.88.   Finally, the United States erroneously interprets the word "considers " as implying boundless 
discretion. The word "consider " is defined inter alia as to "estimate, reckon ". Thus, the Member 
taking the action must "estimate " or "reckon " that the action taken is "necessary " for the protection 
of its essential security interests. This meaning is consistent with the French and Spanish versions 
of Article XXI(b).  
1.89.   Switzerland submits that the discretion granted to the Member as to th e "necessity " of its 
action implies that no comparison of the action taken by that Member against a benchmark of a less 
trade restrictive action that could have been taken by that WTO Member instead is required. 
However, the Member invoking that defence mu st still present the grounds for its finding of the 
 
5  Panel Report, Russia – Traffic in Transit , para. 7.82.  
6  Panel Report, Russia – Traffic in Transit , paras. 7.70 -7.71. WT/DS556/R/Add.1  
 
- 31 - 
 
  "necessity " of the measure in order for the panel to assess whether the Member has exercised its 
discretion in good faith.  
b. The context of Article XXI(b)  
1.90.   The immediate context provided by the other paragr aphs of Article XXI, as well as the broader 
context provided by other provisions of the GATT 1994 and other WTO agreements support the 
conclusion that Article XXI(b) is reviewable by a panel.  
1.91.   First, the United States claims that the language of Article XX I(a) supports the view that 
Article XXI(b) is not subject to review by a panel since a panel "may have no facts at all upon which 
to base its review of what it considers to be 'objective ' facts. " These arguments are baseless, purely 
speculative and must be  rejected.  
1.92.   Article XXI(a) merely notes that a Member does not need to provide information "the 
disclosure of which " it considers contrary to its essential security interests. Thus, that provision 
acknowledges that there might be situations in which a Memb er considers that the disclosure of 
certain information is contrary to its essential security interests, in which case it does not have to 
provide such information. A Member acting under Article XXI(a) would be required to explain why 
the disclosure of cer tain information is contrary to its essential security interests. This would require 
at a minimum identifying the "essential security interests " at stake and explaining why it considers 
that the disclosure of the information in question is contrary to thos e essential security interests. 
The same reasoning applies under Article XXI(b).  
1.93.   Importantly, the provision of Article XXI(a) does not relieve a WTO Member from its burden 
of proof in the context of dispute settlement proceedings. Article XXI(a) does not change the principle 
confirmed by the Appellate Body that "the burden of proof rests upon the party, whether complaining 
or defending, who asserts the affirmative of a particular claim or defence ".7 
1.94.   Second, the broader context provided by other provisions of the GATT 1994, in particular 
Article XX, also supports the conclusion that the invocation of Article XXI(b) is reviewable by a panel.  
1.95.   Both provisions, Article XX and Article XXI, constitute defen ces to measures that are 
inconsistent with the GATT 1994. They are in the nature of "affirmative defences ", which means that 
it is up to the party invoking the exception to offer proof that the conditions set out in the provision 
laying down the exception are met. Thus, a Member cannot merely invoke Article XX or Article XXI 
but has to establish that the measures that are inconsistent with its obligations under the GATT 1994 
satisfy the conditions laid down in Article XX or in Article XXI.  
1.96.   Switzerland note s that the United States erroneously seeks to distinguish Article XXI(b) from 
Article XX of the GATT 1994. Contrary to what the United States argues, the absence of the phrase 
"which it considers " in Article XX(a), (b) and (d) which provide exceptions for measures "necessary 
to protect public morals ", "necessary to protect human, animal or plant life or health " and "necessary 
to secure compliance with laws and regulations […] ", does not imply that Article XXI(b) is self -
judging. The phrase "which it considers " implies that, unlike Article XX(a), (b) or (d), Article XXI(b) 
does not require a comparison of the measure taken by a Member against a benchmark of an 
alternative less t rade restrictive measure.  
1.97.   Moreover, in arguing that in Article XXI(b) there is only one "requirement for applicability of 
the exception " which is included in the chapeau  namely "that the Member taking the action must 
consider that action necessary for the  protection of its essential security interests ", the United States  
disregards the subparagraphs. The three subparagraphs in Article XXI(b) identify circumstances that 
must objectively be met in order for a Member to take action under the chapeau . The chapeau then 
elaborates on additional conditions that must be met for the action taken to be justified under Article 
XXI(b). The structure of Article XXI(b), similar to that of Article XX, requires examining first whether 
the measure falls under one of the cir cumstances listed in the subparagraphs and second whether 
the measure satisfies the requirements of the chapeau . 
 
7  Appellate Body Report, US – Wool Shirts and Blouses , p. 14.  WT/DS556/R/Add.1  
 
- 32 - 
 
  c. The object and purpose  
1.98.   The object and purpose of the GATT 1994 is inter alia "the security and predictability of 'the 
reciprocal and mutually a dvantageous arrangements and the substantial reduction of tariffs and 
other barriers to trade '". The possibility to completely shield a trade -restrictive measure from any 
scrutiny by merely invoking Article XXI(b) would be entirely contrary to the security  and 
predictability of the multilateral trading system established by the GATT 1994 and the WTO 
Agreements. Moreover, the need to keep that balance between the right of a Member to invoke an 
exception, including the Article XXI(b) exception, and the substa ntive rights of the other Members 
under the GATT 1994, implies that the invocation of Article XXI(b) as an exception is necessarily 
reviewable by a panel.  
4. The negotiating history and other supplementary means of interpretation support 
Switzerland's interpr etation of Article XXI(b) as not self -judging  
1.99.   Switzerland submits that there is no need to look at supplementary means of interpretation. 
The interpretation based on the text of Article XXI(b) in its context and in light of the object and 
purpose of the GA TT is clear: Article XXI(b) is not self -judging.  
1.100.   Pursuant to Article 32 of the Vienna Convention, supplementary means of interpretation, 
including the preparatory work of the treaty and the circumstances of its conclusion, may be used 
to confirm the meanin g established pursuant to Article 31. Supplementary means, however, cannot 
be used to determine the meaning of a provision, unless Article 31 interpretation leaves the meaning 
ambiguous or obscure or leads to a result which is manifestly absurd or unreason able. In the present 
case the Panel may resort to the secondary means of interpretation pursuant to Article 32 of the 
Vienna Convention only to confirm the meaning that results from the interpretation in line with 
Article 31.  
1.101.   If the Panel decides to refer to the negotiating history, the negotiating history confirms that 
Article XXI(b) is not "self-judging " as claimed by the United States.  
1.102.   First, contrary to what the United States argues, when examined holistically, the negotiating 
history of the GATT 1947 confirms that Article XXI(b) was not designed to be self -judging, and the 
redress for Article XXI(b) measures was never limited to non -violation complaints under the GATT 
1947.  
1.103.   Second, the 1949 Czechoslovakia Decision does not show that Article XXI(b) is self-judging. 
Contrary to what the United States argues that decision is not a "subsequent agreement " within the 
meaning of Article 31(3)(a) of the Vienna Convention for the purpose of interpreting Article XXI(b) 
of the GATT 1994. In any event, the 1949 Czechoslovakia Decision does not demonstrate the 
existence of a "common understanding " as to the "justiciability " of Article XXI(b).  
1.104.   Third, the views of the GATT Contracting Parties referred to by the United States do not 
meet the requirements of a "subsequent practice " set out in Article 31(3)(b) of the Vienna 
Convention.  
1.105.   Fourth, the negotiating history of the GATT 1994 confirms that measures under Article XXI 
were always meant to be subject to a panel 's review under Article XXIII of the GATT 1994 and the 
DSU. 
1.106.   Finally, contrary to what the United States argues, nothing in the negotiating history of the 
GATS and the TRIPS Agreement suggests that the security exceptions contained in those agreements 
are self -judging.  
D. The United States has failed to substantiate its defence under Article XXI(b) of the 
GATT 1994  
1. Introduction  
1.107.   The United States asserts that, although the Member invoking Article XXI(b) does not have 
"to provide an explanation or to produce evidence to justify its invocation ", it may nonetheless WT/DS556/R/Add.1  
 
- 33 - 
 
  choose to make information available to other Members. The United States claims that it "made 
extensi ve information available in relation to its actions under Section 232 through the steel and 
aluminum reports and Presidential Proclamations " and that, if the Panel were to review the evidence, 
that evidence would show that the measures were taken "in time of war or other emergency in 
international relations ".  
1.108.   Switzerland notes that the United States has not properly invoked subparagraph (iii) of 
Article XXI(b). In particular, the United States ' statement that the available information in relation 
to its ac tion under Section 232 "could be understood to relate most naturally to the circumstances 
described in Article XXI(b)(iii) " and a reference, at a very general level to the Steel and Aluminium 
Reports and the Presidential proclamations in its opening statem ent at the first meeting of the Panel 
does not suffice to meet the requirement of articulating the defence "promptly and clearly ". 
1.109.   Switzerland further submits that making information available is not sufficient to meet the 
burden of proof under Article XXI (b). In particular, while panels enjoy latitude to develop their 
reasoning and to decide which evidence on record they wish to rely upon in reaching their findings, 
that discretion is limited by the requirement that the party satisfies its burden of proof by adducing 
both evidence and arguments "sufficient to make a prima facie case in relation to each of the 
elements of its claims ". Switzerland submits that it is not for the Panel to make the case for the 
United States.  
1.110.   In any event, the United States errs  in its interpretation of the terms of Article XXI(b)(iii). 
Moreover, t he United States, consistent with its interpretation of Article XXI(b) as self -judging, has 
not submitted any specific facts, evidence or arguments to establish that the measures at iss ue have 
been "taken in time of war or other emergency in international relations " and "for the protection of 
its essential security interests ". The Panel should thus find that the United States failed to meet its 
burden of proof under Article XXI(b).  
2. Interpretation of Article XXI(b)(iii) of the GATT 1994  
1.111.   In accordance with the principles of treaty interpretation, Article XXI(b)(iii) must be 
interpreted on the basis of the ordinary meaning of its terms taken in their context.  
1.112.   Starting with subp aragraph (iii), the words "in time of " indicate that a temporal connection 
must be established between the action taken and the war or other emergency in international 
relations. It requires that the action be taken during the war or other emergency in int ernational 
relations ".8 
1.113.   Subparagraph (iii) also refers to "emergency in international relations ". That phrase can be 
generally understood as a situation of danger or conflict among sovereign states. The use of the 
word "grave " in the French and Spanish versions also suggests that not every difficulty or issue in 
international relations may justify re course to Article XXI(b), such tension must be sufficiently 
serious. Furthermore, subparagraph (iii) does not merely refer to "emergency in international 
relations ", but to "war or other emergency in international relations ". The use of the conjunction "or" 
together with the adjective "other " indicates "that war is one example of the larger category of 
'emergency in international relations '".9 The panel in Saudi Arabia – Protection of IPRs  relied on the 
interpretation of those terms provided by the panel i n Russia – Traffic in Transit .  
1.114.   It follows from the correct interpretation of subparagraph (iii) that "an emergency in 
international relations " in the third subparagraph of Article XXI(b) appears "to refer generally to a 
situation of armed conflict, or of latent armed conflict, or of heighted tension or crisis, or of general 
instability engulfing or surrounding a state ".10 
1.115.   Turning to the chapeau , it refers to "action which [the Member taking the measure] considers 
necessary for the protection of its essential security interests ".  
 
8  Panel Report, Russia – Traffic in Transit, para. 7.70.  
9  Panel Report, Russia – Traffic in Transit, paras. 7.73 -7.75. 
10  Panel Report, Russia – Traffic in Transit, para. 7.76.  WT/DS556/R/Add.1  
 
- 34 - 
 
  1.116.   The phrase "essential security interests " implies that not any "interests " may justify an action 
under Article XXI(b), only "essential security interests " do. As confirmed by the panels in previous 
disputes, the concept of "essential security interests " "may generally be understood to refer to those 
interests relating to the quintessential functions of the state, namely, the protection of its territory 
and its population from external threats, and the maintenance of law and p ublic order internally ".11 
1.117.   While it is left in general to WTO Members to define what are their essential security 
interests, this discretion is not unlimited and a panel will have to review whether the interests that 
have been identified by the Member invo king Article XXI(b) fall within the scope of what is 
understood as "essential security interests ". 
1.118.   The terms "essential security interests " must be interpreted in their context, i.e. in light of 
the circumstances identified in the three subparagraphs of Ar ticle XXI(b). Those interests "are all 
defence and military interests, as well as maintenance of law and public order interests ". Switzerland 
thus disagrees with the United States ' assertion that the definition of "essential security interests " 
is broad en ough to encompass an emergency that concerns injury to domestic industry, or threat 
thereof, caused by increased imports. "Essential security interests " are distinct from economic 
interests of a particular domestic industry harmed by increased imports. Thi s type of economic 
interests may be protected through the imposition of safeguard measures but would not qualify as 
"essential security interests " within the meaning of Article XXI(b).  
1.119.   Furthermore, the Member invoking Article XXI(b), in this case the Unit ed States, also has to 
demonstrate that the action is "for the protection " of its essential security interests. The phrase "for 
the protection " in Article XXI(b) must be understood as "directed at protecting " a Member 's essential 
security interests. This p hrase suggests that there must be a rational relationship between the action 
taken by the Member concerned and the protection of its essential security interests.  
1.120.   Finally, Switzerland submits that the phrase "which it considers " in the chapeau only qualifies 
the "necessity " of the action, and not the phrase "for the protection of its essential security interests ", 
nor the subparagraphs.  
1.121.   The use of the phrase "which it considers " which qualifies the "necessity " of the action implies 
that a certai n degree of discretion is granted to the Member taking action under Article XXI(b) 
regarding the "necessity " of its action. In particular, it implies that no comparison of the action taken 
by the Member concerned against a benchmark of an alternative less trade restrictive action that 
could have been taken by that Member is required. It also implies that the Panel does not have to 
weigh and balance the relative importance of the interest at stake, the contribution of the measure 
to the objective it pursues and the degree of trade -restrictiveness of the measure such as what is 
required under the necessity test for instance under Article XX(a).  
1.122.   It remains, however, necessary for the Member invoking Article XXI(b), i.e. the United States 
in this dispute, to pr esent the grounds forming the basis of why the measure taken by that Member 
is "necessary " in order for the Panel to assess whether the Member has exercised its discretion in 
good faith.  
3. The United States has failed to demonstrate that the conditions of A rticle XXI(b)(iii) are met  
1.123.   The United States errs when stating that the findings in the Steel and Aluminium Reports 
are consistent with the United States claiming that an "other emergency in international relations " 
exists and that "national security " as used in the Steel and Aluminium Reports falls within the scope 
of the United States ' essential security interests under Article XXI(b).  
1.124.   First, there is no situation of "emergency in international relations " in the case of the steel 
and aluminium measures. The United States refers to the findings in the Steel Report about the 
"global excess steel capacity " and the "global excess steel production led by China ". However, excess 
in global production and in global production capacity, and displacement of domesti c products by 
imports do not constitute elements establishing an "emergency in international relations ". Purely 
economic factors, such as those referred to by the United States clearly do not establish the 
 
11  Panel Reports, Russia – Traffic in Transit, para. 7.130; Saudi Arabia – Protection of IPRs , para. 
7.249.  WT/DS556/R/Add.1  
 
- 35 - 
 
  existence of an emergency in international relatio ns within the meaning of Article XXI(b)(iii), 
meaning a "situation of armed conflict, or of latent armed conflict, or of heighted tension or crisis, 
or of general instability engulfing or surrounding a state ". Nothing in the Steel and Aluminium 
Reports, no r in the Presidential Proclamations, even indirectly refers to anything like an "emergency 
in international relations ".  
1.125.   Second, the United States also errs in its interpretation of the phrase "its essential security 
interests " and in alleging that "the te rm 'national security ' – as used in the context of Section 232 
and the steel and aluminum reports – squarely falls within the scope of '[a Member 's] essential 
security interests ' under Article XXI ". 
1.126.   The findings in the Steel and Aluminium Reports are unrelated to "external threats " and "the 
maintenance of law and public order ". For the United States, "national security " for the purpose of 
Section 232 means "general security and welfare of certain indu stries, beyond those necessary to 
satisfy national defense requirements , which are critical to minimum operations of the economy and 
government ". In the Steel and Aluminium Reports, the USDOC focused on the financial viability and 
overall economic situatio n of the US steel and aluminium industries. However, the general "economic 
welfare of individual domestic industries " at issue in the steel and aluminium measures does not 
constitute a "defence and military interest " or an interest relating to the "mainten ance of law and 
public order ".  
1.127.   The economic interests of specific industries which are harmed by competition with imports 
would not qualify as "essential security interests " within the meaning of Article XXI(b) of the GATT 
1994. The protection of purely e conomic interests is addressed in particular in Article XIX of the 
GATT 1994 and in the Agreement on Safeguards which focus on situations of "economic emergency ". 
The Steel and Aluminium Reports and the Presidential Proclamations demonstrate that the steel  and 
aluminium measures fall within the scope of Article XIX of the GATT 1994 and the Agreement on 
Safeguards and not Article XXI(b) of the GATT 1994.  
1.128.   Finally, the United States ' arguments in respect of good faith lack merit. In the context of 
Article XXI,  the principle of good faith implies that even though that provision grants a certain 
discretion to a Member invoking it, that discretion is limited by the obligation to interpret and apply 
Article XXI in good faith. However, the principle of good faith do es not relieve the Member invoking 
it of its burden to show that it fulfils the legal requirements provided for in Article XXI(b). In these 
proceedings, the United States did not demonstrate that the measures at issue were taken "in time 
of war or other em ergency in international relations " and "for the protection of its essential security 
interests " and did not provide an explanation as to how and why it considers the measures at issue 
as "necessary " for the protection of its essential security interests. The United Sates thus failed to 
meet the legal requirements set out in Article XXI(b)(iii).  
E. Article XXI of the GATT 1994 is not available as a defence to justify measures that 
are inconsistent with Article XIX of the GATT 1994 and the Agreement on Safeg uards  
1.129.   Contrary to what the United States argues, the fact that a Member invokes Article XXI(b) of 
the GATT to justify the challenged measures does not automatically mean that Article XIX and the 
Agreement on Safeguards do not apply to those measures.  
1.130.   The safeguards disciplines established by Article XIX of the GATT 1994 and the Agreement 
on Safeguards and Article XXI of the GATT 1994 have a different place in the WTO legal system. 
This is crucial for understanding the relationship between Article XXI, on the one hand, and Article 
XIX together with the Agreement on Safeguards, on the other hand.  
1.131.   Article XIX and Article XXI have a similar function in that they allow for derogations from 
general obligations under the GATT (such as Articles I, II, III or XI ). They both authorize a departure 
from general obligations for certain legitimate purposes: economic for Article XIX and essential 
security for Article XXI. In that sense, both Article XIX and Article XXI operate as exceptions to the 
general obligations u nder the GATT 1994.  
1.132.   Although they have a similar function, the nature of Article XIX and Article XXI is different. 
Article XXI is an affirmative defence, which may be invoked in order to justify a measure that is 
inconsistent with the obligations set out in the GATT, while Ar ticle XIX lays down a conditional right, WT/DS556/R/Add.1  
 
- 36 - 
 
  i.e. a right for Members to derogate from GATT concessions or obligations provided that certain 
conditions and circumstances are satisfied. Unlike an affirmative defence, Article XIX lays down an 
entire specific reg ime, i.e. disciplines that ensue from the measures being safeguard measures.  
1.133.   The different nature of Article XIX and Article XXI of the GATT 1994 requires that it must 
first be determined whether the safeguard disciplines of Article XIX and the Agreement o n 
Safeguards apply. Since Article XXI of the GATT 1994 constitutes an affirmative defence, it only 
needs to be addressed at a later stage once it has been found that the measures at issue are 
inconsistent with certain GATT provisions. Indeed, an affirmativ e defence implies that it can be 
invoked by a respondent only in relation to another provision in order to justify measures that have 
been found to be inconsistent with the obligation(s) set out in that provision.  
1.134.   Indeed, as observed by the Appellate Body , the examination regarding the "applicability " of 
certain provisions logically precedes the assessment of a measure 's "conformity " with such 
provisions. Furthermore, "an analysis of whether a measure infringes an obligation necessarily 
precedes, and is di stinct from, the 'further and separate ' assessment of whether such measure is 
otherwise justified ". 
1.135.   In support of its position, the United States relies on Article 11.1(c) of the Agreement on 
Safeguards. According to the United States, once a Member invoke s Article XXI of the GATT 1994 
as a basis for its measure, it means that that measure has been sought  pursuant to Article XXI and 
not pursuant to Article XIX and thus, by virtue of Article 11.1(c), the Agreement on Safeguards does 
not apply to that measure . This argument must be rejected.  
1.136.   Article 11.1(c) excludes from the scope of application of the Agreement on Safeguards all 
measures that are sought, taken or maintained by a Member pursuant to provisions other than 
Article XIX or the provisions of the Agr eement on Safeguards, i.e. measures other than safeguard 
measures. The reference to measures which are "sought, taken or maintained " reflects the scope of 
application of the Agreement on Safeguards and the type of obligations imposed by it. Indeed, the 
Agreement on Safeguards sets out certain obligations that apply even before any safeguard measure 
is imposed, such as those relating to the initiation or conduct of a safeguard investigation. Once the 
Member initiates an investigation, it is "seeking " to appl y safeguard measures.  
1.137.   In that sense, the word "sought " in Article 11.1(c) of the Agreement on Safeguards does not 
relate to the subjective intention of the Member to impose a certain type of measure or the invocation 
of a specific provision, contrary to wh at the United States argues. Rather it refers to the process 
which precedes the imposition of, i.e. the steps undertaken with a view to impose, a measure. Thus, 
the fact that the United States invokes Article XXI(b) with respect to the measures at issue do es not 
mean that these measures are excluded from the scope of the Agreement on Safeguards by virtue 
of Article 11.1(c).  
1.138.   Furthermore, the term "pursuant to " in Article 11.1(c) should be understood as "falling within 
the scope of " a given provision. The que stion of whether a measure has been sought, taken or 
maintained "pursuant to " a certain provision of the GATT 1994 cannot be unilaterally decided by a 
Member taking that measure but must be objectively assessed on the basis of the text, design, 
structure a nd expected operation of the measure as a whole. Thus, the fact that the United States 
has invoked  Article XXI(b) with respect to the challenged measures does not in and of itself mean 
that those measures have been sought or taken "pursuant to " Article XXI  of the GATT 1994.  
Importantly, the expression "other than " clearly indicates that measures to which the Agreement on 
Safeguards does not apply are measures taken pursuant to other provisions except  Article XIX of 
the GATT. Accordingly, even if a measure w ere sought, taken or maintained pursuant to Article XIX 
and another provision of the GATT, Article 11.1(c) would not apply.  
1.139.   If a measure presents the two constituent features of a safeguard measure, it constitutes a 
"safeguard measure " and, pursuant to Article 11.1(a), it must conform with the provisions of Article 
XIX of the GATT applied in accordance with the Agreement on Saf eguards. Such measure cannot 
become excluded from the scope of application of the Agreement on Safeguards by virtue of Article 
11.1(c). A different reading of Article 11.1(c), as put forward by the United States, would be contrary 
to the very object and pu rpose of the Agreement on Safeguards expressed in the second recital of 
its preamble to "re-establish multilateral control over safeguards and eliminate measures that 
escape such control ". WT/DS556/R/Add.1  
 
- 37 - 
 
  1.140.   Once it has been established that safeguards disciplines apply to t he measures at issue and 
that such measures do not comply with those disciplines, it then needs to be determined whether 
such measures can nevertheless be justified under an affirmative defence put forward by the 
defendant, such as Article XXI of the GATT 1994. A preliminary question in that regard is whether 
Article XXI is available as a defence for inconsistencies with Article XIX of the GATT and the 
Agreement on Safeguards. Switzerland submits that the answer to that question is negative.  
1.141.   Although Artic le XXI starts with the words "[n]othing in this Agreement ", it cannot be invoked 
as a defence with respect to safeguard measures which are inconsistent with Article XIX. This is so 
because Article XIX does not establish any general obligation in and of its elf. Rather Article XIX, 
together with the Agreement on Safeguards, establishes a conditional right to apply safeguard 
measures, which derogate from WTO Members ' obligations under the GATT, provided that certain 
conditions and circumstances are met.  
1.142.   Obliga tions laid down in Article XIX, and which are further clarified and developed in the 
Agreement on Safeguards, are "subsidiary " or "conditional " since they arise only with respect to 
WTO Members that impose safeguard measures. It follows that there are no g eneral obligations 
under Article XIX of the GATT the non -compliance with which could be justified under Article XXI.  
1.143.   Furthermore, without any specific reference in the text of the Agreement on Safeguards to 
the security exceptions under Article XXI of the GATT, there is no basis to argue that these 
exceptions should also apply with respect to the claims of violation of the Agreement on Safeguards.  
1.144.   Indeed, where the drafters wished to make Article XXI defence available in the context of 
other covered agreeme nt they have explicitly said so. This is the case of Article 1.10 of the 
Agreement on Import Licensing Procedures, Article 3 of the TRIMs Agreement or Article 23.7 of the 
Trade Facilitation Agreement. Other covered agreements, such as the TRIPS Agreement ( Article 73) 
or the GATS (Article XIV bis) contain their own security exceptions clauses which resemble Article 
XXI of the GATT 1994. No such provision can be found in the Agreement on Safeguards.  
1.145.   Contrary to what the United States argues, none of the gene ral references to the GATT 1994, 
or Article XIX, included in the Agreement on Safeguards can be considered as establishing a link 
between that agreement and Article XXI. Indeed, the case law suggests that in order to make a 
defence under the GATT 1994 avai lable to another covered agreement the language incorporating 
that defence must be sufficiently specific.  
1.146.   Finally, given that the Agreement on Safeguards applies to safeguards measures understood 
as "those measures provided for in Article XIX of the GATT ", logically, if Article XXI is not available 
as a defence for measures inconsistent with Article XIX, Article XXI cannot be available as a defence 
for measures inconsistent with the Agreement on Safeguards and vice versa . 
 
 WT/DS556/R/Add.1  
 
- 38 - 
 
  ANNEX  B-2 
INTEGRATED EXECUTIVE SUMMARY  OF THE ARGUMENTS OF THE UNITED STATES OF AMERICA  
1.1.  At issue in this dispute  is the sovereign right of a state to take action to protect its essential 
security in the manner it considers necessary. WTO Members did not relinquish this inherent right 
in joining the WTO. To the contrary, this right is reflected in Article  XXI(b) of t he GATT 1994, and 
WTO Members have not agreed to subject the exercise of this right to legal review.  
1.2.  Section 232 of the Trade Expansion Act of 1962 (Section 232) allows the United States to 
adjust imports of an article based on a finding that such imports  threaten to impair U.S. national 
security. On April 19 and 26, 2017, the United States initiated investigations under Section 232 into 
imports of steel and aluminum, respectively. In connection with these investigations, United States 
solicited written co mments from interested parties and held public hearings. The United States 
summarized its findings from these investigations in written reports, and released these reports to 
the public.  On March 8, 2018, the United States acted pursuant to Section 232 and  imposed tariffs 
on certain steel and aluminum imports, effective beginning on March 23, 2018. The United States 
also established a process to permit product -specific exclusions from the Section 232 tariffs, based 
on, among other factors, the national secu rity implications of those imports.  
A THE TEXT OF GATT 1994 ARTICLE XXI(B) IN ITS CONTEXT, AND IN THE LIGHT OF THE 
AGREEMENT'S OBJECT AND PURPOSE, ESTABLISHES THAT THE EXCEPTION IS SELF -JUDGING  
1.3.  The text of GATT 1994 Article XXI(b), in its context and in th e light of the agreement 's object 
and purpose, establishes that the exception is self -judging.  As this text provides "[n]othing " in the 
GATT 1994 shall be construed to prevent a WTO Member from taking "any action " which "it considers 
necessary " for the pro tection of its essential security interests. This text establishes that (1) 
"nothing " in the GATT 1994 prevents a Member from taking any action needed to protect an essential 
security interest, and (2) the action necessary for the protection of its essenti al security interests is 
that which the Member "considers necessary " for such protection.  
1.4.  The self -judging nature of GATT 1994 Article XXI(b) is demonstrated by that provision 's 
reference to actions that the Member "considers necessary " for the protection of its essential security 
interests. The ordinary meaning of "considers " is "[r]egard in a certain light or aspect; look upon as " 
or "think or take to be. " Under Article XXI(b), the relevant "light" or "aspect " in which to regard the 
action is whether that action is necessary for the protection of the acting Member 's essential security 
interests. Thus, reading the clause together, the ordinary meaning of the text indicates it is the 
Member ( "which it ") that must regard ( "consider[] ") the  action as having the aspect of being 
necessary for the protection of that Member 's essential security interests.  The French and Spanish 
texts of Article XXI(b) confirm the self -judging nature of this provision. Specifically, use of the 
subjunctive in Span ish ("estime ") and the future with an implied subjunctive mood in French 
("estimera ") support the view that the action taken reflects the beliefs of the WTO Member, rather 
than an assertion of objective fact that could be subject to debate.  
1.5.  The ordinary me aning of the terms in the phrase "its essential security interests, " also supports 
the self -judging nature of Article XXI. The word "interest " is defined as "[t]he relation of being 
involved or concerned as regards potential detriment or (esp.) advantage. " The term "security " 
refers to "[t]he condition of being protected from or not exposed to danger. " The definitions of 
"essential " include "[t]hat is such in the absolute or highest sense " and "[a]ffecting the essence of 
anything; significant, important. " 
1.6.  And it is "its" essential security interests – the Member 's in question – that the action is taken 
for the protection of. Therefore, it is the judgment of the Member that is relevant. Each WTO Member 
must determine whether certain action involves "its inter ests," that is, potential detriments or 
advantages from the perspective of that Member. Each WTO Member likewise must determine 
whether a situation implicates its "security " interests (not being exposed to danger), and whether 
the interests at stake are "essential, " that is, significant or important, in the absolute or highest 
sense. By their very nature, these questions are political and can only be answered by the Member 
in question, based on its specific and unique circumstances, and its own perception of those WT/DS556/R/Add.1  
 
- 39 - 
 
  circumstances. No WTO Member or WTO panel can substitute its views for those of a Member on 
such matters.  
1.7.  The text of subparagraphs (i) to (iii) of Article XXI(b) also supports the self -judging nature of 
this provision. The first element of this t ext that is notable is the lack of any conjunction to separate 
the three subparagraphs. The subparagraphs a re not separated by the coordinating conjunction "or", 
to demonstrate alternatives, or the conjunction "and", to suggest cumulative situations. Accor dingly, 
each subparagraph must be considered for its relation to the chapeau of Article XXI(b).  
Subparagraphs (i) and (ii) of Article XXI(b) both begin with the phrase "relating to " and directly 
follow the phrase "essential security interests " in the chape au of paragraph (b). The most natural 
reading of this construction is that subparagraphs (i) and (ii) modify the phrase "essential security 
interests " and thus illustrate the types of "essential security interests " that Members considered 
could lead to act ion under Article XXI(b).  
1.8.  Subparagraphs (i) and (ii) do not limit a Member 's essential security interests exclusively to 
those interests. First, the chapeau of Article XXI(b) (as noted) reserves to the Member the judgment 
of what "its interests " are, inclu ding whether they are relating to one of the enumerated interests. 
Second, subparagraph (iii) reflects no explication (and therefore cannot be understood to reflect a 
limitation) on a Member 's essential security interests. Rather, as with subparagraphs (i)  and (ii), the 
essential security interests are those determined by the Member taking the action.  
1.9.  Subparagraph (iii) begins with temporal language: "taken in time of  war or other emergency 
in international relations. " The phrase "taken in time of " echoes t he reference to "taking any action " 
in the chapeau of Article XXI (b), and it is actions that are "taken ", not interests. Thus, the temporal 
circumstance in subparagraph (iii) modifies the word "action, " rather than the phrase "essential 
security interests ." Accordingly, Article XXI(b)(iii) reflects a Member 's right to take action it considers 
necessary for the protection of its essential security interests when  that action is taken in time of 
war or other emergency in international relations. Nor does the text of Article XXI(b)(iii) require that 
the emergency in international relations or war directly involve the acting Member, reflecting again 
that the action taken for the protection of its essential security interests is that which the Member 
judges neces sary. 
1.10.   Subparagraphs (i) to (iii) of Article XXI(b) thus reflect that Members wished to set out certain 
types of "essential security interests " and a temporal circumstance that Members considered could 
lead to action under Article XXI(b). A Member taking ac tion pursuant to Article XXI(b) would consider 
its action to be necessary for the protection of the interests identified in subparagraphs (i) and (ii) 
or to be taken in time of war or other emergency in international relations. In this way, the 
subparagrap hs guide a Member 's exercise of its rights under this provision while reserving to the 
Member the judgment whether particular action is necessary to protect its essential security 
interests.  
1.11.   The context of Article XXI(b) also supports this understanding. First, the phrase "which it 
considers necessary " is present in Article XXI(a) and XXI(b), but not in Article  XXI(c). The selective 
use of this phrase highlights that, under Article XXI(a) and XXI(b), it is the judgment of the Member 
that controls. The Panel  should recognize and give meaning to such deliberate use of the phrase 
"which it considers " in Article XXI(b), and not reduce these words to inutility.  Second , the context 
provided by Article XX supports the understanding that Article  XXI(b) is self -judging. Specifically, 
Article XX sets out "general exceptions, " and a number of subparagraphs of Article XX relate to 
whether an action is "necessary " for some lis ted objective. For example, Article XX(a), (b), and (d), 
respectively, provide exceptions for certain measures "necessary  to protect public morals, " 
"necessary  to protect human, animal or plant life or health, " and "necessary  to secure compliance 
with laws  or regulations which are not inconsistent with the provisions of this Agreement " (emphases 
added).  Unlike Article XXI(b), however, none of the Article XX subparagraphs use the phrase "which 
it considers " to introduce the word "necessary. " Furthermore, Art icle XX includes a chapeau which 
subjects a measure qualifying as "necessary " to a further requirement of, essentially, non -
discrimination. Notably, such a qualification, which requires review of a Member 's action, is absent 
from Article XXI.  
1.12.   Third, a numb er of provisions of the GATT 1994 and other WTO agreements refer to action 
that a Member "considers " appropriate or necessary, and —as in Article XXI(b) —this language signals 
that a particular judgment resides with that Member. For example, under Article  18.7 of the 
Agreement on Agriculture, "[a]ny Member " may bring to the attention of the Committee on WT/DS556/R/Add.1  
 
- 40 - 
 
  Agriculture "any measure which it considers ought to have been notified by another Member. " 
Similarly, Article III(5) of the General Agreement on Trade in Ser vices (GATS) permits "[a]ny 
Member " to notify the Council for Trade in Services of any measure taken by another Member which 
"it considers affects " the operation of GATS. In other provisions of the GATT 1994 or other WTO 
agreements, however, certain judgme nts are left for determination by a panel, the Appellate Body, 
or a WTO committee. Under DSU Art. 12.9, for example, "[w]hen the panel considers " that it cannot 
issue its report within a certain period of time, the panel must provide certain information to  the 
DSB. Under Article 4(1) of the Agreement on Rules of Origin, the Committee on Rules of Origin may 
request work from the Technical Committee on Rules of Origin "as it considers appropriate " for the 
furtherance of the objectives of that agreement.  
1.13.   Fourt h, by way of contrast, and further context, in at least two WTO provisions the judgment 
of a Member is expressly subject to review through dispute settlement. Specifically, DSU Article 26.1 
permits the institution of non -violation complaints, subject to sp ecial requirements, including that 
the panel or Appellate Body agree with the judgment of the complaining party. As DSU Article 26.1 
states, a non -violation complaint may be instituted, "[w]here and to the extent that such party 
considers and a panel or the Appellate Body determines " that a particular measure does not conflict 
with a WTO agreement, among other requirements. Thus, in this provision, Members explicitly 
agreed that it is not sufficient that "[a] party considers " a non -violation s ituation to exist, and 
accordingly, a non -violation complaint is subject to the additional check that "a panel or the Appellate 
Body determines that " a non -violation situation is present. A similar limitation —that a "party 
considers and a panel determines that"—was agreed in DSU Article 26.2 for complaints of the kind 
described in GATT 1994 Article XXIII:1(c).  
1.14.   The context provided by DSU Articles 26.1 and 26.2 is highly instructive. No such review of a 
Member 's judgment is set out in Article XXI(b), which p ermits a Member to take action "which it [a 
Member] considers necessary for the protection of its essential security interests. " Accordingly, the 
context of Article XXI(b) demonstrates that Members did not agree to subject a Member 's essential 
security jud gments to review by a WTO panel.  
1.15.   The object and purpose of the GATT 1994 also establishes that Article XXI(b) is self -judging. 
The object and purpose of the GATT 1994 is set out in the agreement 's Preamble. That Preamble 
provides, among other things, that the GATT 1994 set forth "reciprocal and mutually advantageous 
arrangements directed to the substantial reduction of tariffs and other barriers to trade. " Particularly 
with these references to arrangements that are "mutually advantageous " and tariff reducti ons that 
are "substantial " (rather than complete), the contracting parties (now Members) acknowledged that 
the GATT contained both obligations and exceptions, including the essential security exceptions at 
Article XXI. The self -judging nature of Article XX I is further established by a subsequent agreement 
between the parties regarding  the interpretation of the treaty or the application of its provisions in 
the context of the United States Export Measures dispute between the United States and 
Czechoslovakia.   
B SUPPLEMENTARY MEANS OF INTERPRETATION, INCLUDING NEGOTIATING HISTORY, 
CONFIRM THE SELF -JUDGING NATURE OF GATT 1994 ARTICLE XXI(B)  
1.16.   While not necessary in this dispute, supplementary means of interpretation, including 
negotiating history, confirms that GATT 1994 Article  XXI(b) is self -judging. The drafting history of 
GATT 1994 XXI(b) dates back to negotiations to establish the International Trade Organization of 
the United Nations (ITO). In 1946, the United States proposed a draft charter f or the ITO, which 
included the following two exceptions provisions:  
Article 32 (General Exceptions to Chapter IV):  
Nothing in Chapter IV of this Charter shall be construed to prevent the 
adoption or enforcement by any Member of measures  
. . . .  
(e) in ti me of war or other emergency in international relations, relating to 
the protection of the essential security interests of a Member.  
  WT/DS556/R/Add.1  
 
- 41 - 
 
  Article 49.2 (Exceptions to Provisions Relating to Intergovernmental Commodity 
Agreements):  
None of the foregoing provis ions of Chapter VI is to be interpreted as 
applying to agreements relating to fissionable materials; to the traffic in 
arms, ammunition and implements of war and to such traffic in other goods 
and materials as is carried on for the purpose of supplying a m ilitary 
establishment; or, in time of war or other emergency in international 
relations, to the protection of the essential security interests of a Member.  
1.17.   The United States asserted at the time that Article 32(e) "afforded complete opportunity for 
the ado ption of all measures regarded as necessary for the protection of national interests " in a time 
of war or a national emergency. As originally drafted, however, neither exceptions provision was 
explicitly self -judging. These provisions lacked the key phrase  that appears in the current text of 
GATT 1994 Article XXI(b) regarding action by a Member that "it considers necessary for " the 
protection of its essential security interests. In addition, the essential security exception set out in 
Article 32 of the ITO draft charter was one of twelve exceptions, several of which later formed the 
basis for the general exceptions at GATT 1994 Article XX.  
1.18.   In March 1947, the same exceptions text was proposed as both GATT Article XX and Article 
37 the ITO draft charter, in C hapter V, which related to "[g]eneral commercial policy. " The chapeau 
of this proposed text and a number of the subparagraphs are identical to what would become 
GATT  1994 Article XX. With its proviso, the chapeau contemplated panel review so that the 
excep tions would not be applied to discriminate unfairly. The subparagraphs corresponding to 
essential security were included in this proposed text, together with other exceptions, and thus were 
subject to the proviso in the chapeau, like these other exceptions . This structure suggests that, at 
that time, not all drafters may have viewed the essential security exception in subparagraph (e) as 
self-judging.  
1.19.   In May 1947, the United States proposed removing, inter alia , subparagraph (e) from the ITO 
draft charter e xceptions provision quoted above. In the U.S. proposal, item (e) would be included in 
a new article, to be inserted at an "appropriate " place at the end of the ITO draft charter, so that 
these exceptions would apply to the whole charter. The United States also proposed that the new 
article would begin by stating "[n]othing in this Charter shall be construed to prevent the adoption 
or enforcement by any Member of measures, " including those relating to the protection of essential 
security interests.  Thereafte r, the United States proposed the addition of a new chapter, entitled 
"Miscellaneous " at the end of the ITO draft charter, and that the proposed exceptions to the charter 
as a whole be included in this new chapter. The United States also suggested additional text to this 
exceptions provision, to make the self -judging nature of these except ions explicit. Under this U.S. 
proposal, the draft exceptions provision stated:  
Nothing in this Charter shall be construed to require any Member to furnish any 
information the disclosure of which it considers contrary  to its essential security 
interests, o r to prevent any Member from taking any action which it may consider to be 
necessary  to such interests:  
a) Relating to fissionable materials or their source materials;  
b) Relating to the traffic in arms, ammunition and implements of war and 
to such traff ic in other goods and materials as is carried on for the purpose 
of supplying a military establishment;  
c) In time of war or other emergency in international relations, relating to 
the protection of its essential security interests  . . . .  
1.20.   The text now r eferenced what a Member considered to be necessary, explicitly indicating that 
this provision could be invoked based on a Member 's own judgment. Moreover, this reference was 
included only for national security issues, including actions which a Member may c onsider necessary 
for the protection of its essential security interests. The drafting history thus shows that a deliberate 
textual distinction was drawn between the self -judging nature of exceptions pertaining to essential 
security and exceptions related to other interests that, unlike the security -based exceptions WT/DS556/R/Add.1  
 
- 42 - 
 
  referenced above, were retained as part of the "[g]eneral commercial policy " chapter of the ITO 
draft charter.  
1.21.   Regarding the exception 's scope, at a July 1947 meeting of the ITO negotiating comm ittee, 
the delegate from The Netherlands requested clarification on the meaning of a Member 's "essential 
security interests, " and suggested that this reference could represent "a very big loophole " in the 
ITO charter. The U.S. delegate responded that the e xception would not "permit anything under the 
sun," but suggested that there must be some latitude for security measures. The U.S. delegate 
further observed that in situations such as times of war, "no one would question the need of a 
Member, or the right of a Member, to take action relating to its security interests and to determine 
for itself —which I think we cannot deny —what its security interests are. " 
1.22.   In those discussions the Chairman made a statement "in defence of the text, " and recalled 
the context of the essential security exception as part of the ITO charter. As the Chairman observed, 
when the ITO was in operation "the atmosphere inside the ITO will be the only efficient guarantee 
against abuses of the kind " raised by The Netherlands delegate. That  is, the parties would serve to 
police each other 's use of the essential security through a culture of self -restraint. During the same 
July 1947 meeting, the Chairman asked whether the drafters agreed that actions taken pursuant to 
the essential security e xception "should not provide for any possibility of redress. " In response, the 
U.S. delegate observed that such actions "could not be challenged in the sense that it could not be 
claimed that the Member was violating the Charter. " The United States acknowl edged, however, that 
a member affected by such actions "would have the right to seek redress of some kind " under Article 
35(2) of the ITO charter.  
1.23.   At that time, Article 35(2) provided for the possibility of consultations concerning the 
application of any m easure, "whether or not it conflicts with the terms of this Charter, " which had 
"the effect of nullifying or impairing any object " of the ITO charter. If the parties were unable to 
resolve the matter, it could be referred to the ITO, which in turn could ma ke recommendations, 
including the suspension of obligations or concessions. In response to the explanation from the U.S. 
delegate, including the right to seek redress for non -violation under Article 35(2), the Australian 
delegate lifted a reservation on th e essential security exception at this July 1947 meeting. The 
delegate from Australia stated that, as the exception was "so wide in its coverage "—particularly the 
"which it may consider to be necessary " language —Australia 's agreement was done with the 
assurance that "a Member 's rights under Article 35(2) will not be impinged upon. " This exchange 
demonstrates that the drafters of the text that became GATT 1994 Article XXI(b) understood that 
essential security measures could not be challenged as violating obl igations in the underlying 
agreement. Nevertheless, an ITO member affected by essential security measures could claim that 
its expected benefits under the charter had been nullified or impaired, as set forth at Article 35(2) 
of the ITO Charter draft curren t in July 1947. As applied to the WTO context, this discussion indicates 
essential security measures cannot be found by a panel to breach the GATT 1994 or other WTO 
agreements, although Members may request that a panel review whether its benefits have been  
nullified or impaired by the essential security measure and, if so, to assess the level of that 
nullification or impairment.  
1.24.   This understanding of the relationship between essential security measures and nullification 
or impairment procedures is further c onfirmed by discussions of the ITO Charter that occurred in 
early 1948. For example, after "extensive discussions, " a Working Party of representatives from 
Australia, India, Mexico, and the United States decided to retain the draft charter 's non -violation 
nullification or impairment provision. The Working Party noted that the provision "would apply to the 
situation of action taken by a Member " to protect its essential security interests. The explanation of 
the Working Party is worth reading in full:  
Such action, for example, in the interest of national security in time of war or other 
international emergency would be entirely consistent with the Charter , but might 
nevertheless result in the nullification or impairment of benefits accruing to other 
Members. Such other Members should, under those circumstances, have the right to 
bring the matter before the Organization, not on the ground that the measure taken 
was inconsistent with the Charter, but on the ground that the measure so taken 
effectively null ified benefits accruing to the complaining Member.  
1.25.   Members of a sub -committee on the ITO Charter 's dispute settlement chapter expressed 
similar views. Thereafter, the essential security exception in the ITO draft charter was revised based WT/DS556/R/Add.1  
 
- 43 - 
 
  on suggestions fr om the United Kingdom. The UK representative opined that with these revisions, 
the Charter "would neither permit, nor condemn, nor pass any judgment whatever on, unilateral 
economic sanctions. " After the UK 's revisions were accepted, a representative of In dia—when 
discussing nullification or impairment claims as a remedy for essential security measures —
"expressed some doubt " about whether "the bona fides of an action allegedly coming within [the 
essential security exception] could be questioned. " In early 1 948, negotiators also declined to adopt 
a UK proposal that would have amended the essential security provision to state that nullification or 
impairment procedures were the appropriate recourse for members affected by essential security 
measures by other m embers. As the United States noted at the time, such a reference to nullification 
or impairment in the essential security provision was "unnecessary " in light of the existing text.  
1.26.   In its analysis of the negotiating history of Article XXI(b), the Russia – Traffic in Transit  panel 
referred at length to internal documents of the U.S. delegation to the GATT negotiations. Specifically, 
in addition to considering published documents assoc iated with the negotiating history of Article 
XXI(b), that panel considered a study that discusses internal documents of the U.S. delegation. In 
particular, the panel report recounts at some length this study 's discussion of an internal U.S. 
delegation mee ting of July 4, 1947. The panel used these documents as negotiating history to 
confirmed the panel 's interpretation that it had the authority to review a Member 's invocation of its 
essential security interests . The Panel in Russia – Traffic in Transit erred in relying on such material 
because it is not "negotiating history " within the meaning of the Vienna Convention. It is concerning 
that the panel would commit such an elementary error in interpretive approach. Even putting aside 
this interpretative error,  the panel also misunderstood and mischaracterized the U.S. discussions to 
which it referred. These internal U.S. deliberations —when considered as a whole and in context —
further confirm that Article XXI(b) is self -judging.   
1.27.   The self -judging nature of Artic le XXI(b) is also supported by views repeatedly expressed by 
GATT contracting parties (now Members) in connection with prior invocations of their essential 
security interests.  
C THE RUSSIA – TRAFFIC IN TRANSIT  PANEL ERRED IN DECIDING IT HAD AUTHORITY 
TO REVIEW A RESPONDING PARTY'S INVOCATION OF ARTICLE XXI.  
1.28.   The panel in Russia – Traffic in Transit  erred when it decided that it had authority to review 
multiple aspects of a responding party 's invocation of Article XXI. That panel 's interpretation of 
Article XXI is not consistent with the customary rules of interpretation set forth in the Vienna 
Convention. In addition to being inconsistent with the ordinary meaning of the terms of Article XXI, 
the panel failed to interpret that provision as a whole. In fact, the panel appears to have reached its 
conclusion regarding the reviewability of Article XXI a mere four paragraphs after beginning its 
analysis – based not on "the mere meaning of the words and the grammatical construction of the 
provision, " but on what it termed the "logical structure of the provision. "  
1.29.   Furthermore, in its examination of the negotiating history of the treaty, the Russia – Traffic 
in Transit  panel misconstrued certain statements by negotiating parties and relied on materials  not 
properly considered part of the negotiating history. These errors reveal the panel 's analysis as deeply 
flawed and suggest a results -driven approach not in line with the responsibility bestowed on the 
panelists by WTO Members through the DSU.  
________ _______  
 
 
 WT/DS556/R/Add.1  
 
- 44 - 
 
  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of China  45 
Annex  C-2 Integrated executive summary of the arguments of the European  Union  48 
Annex  C-3 Integrated executive summary of the arguments of Hong Kong, China  53 
Annex  C-4 Integrated executive summary of the arguments of India 56 
Annex  C-5 Integrated executive summary of the arguments of Japan  59 
Annex  C-6 Integrated executive summary of the arguments of New Zealand  62 
Annex  C-7 Integrated executive summary of the arguments of Norway  65 
Annex  C-8 Integrated executive summary of the arguments of the Russian Federation  68 
Annex  C-9 Integrated executive summary of the arguments of Singapore  74 
Annex  C-10 Integrated executive summary of the arguments of Türkiye  79 
Annex  C-11 Integrated executive summary of the arguments  of Ukraine  84 
 
 
 WT/DS556/R/Add.1  
 
- 45 - 
 
  ANNEX C -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA  
1. This executive summary integrates  the Oral Statement and Responses to the Panel's 
Questions by China  in the se disputes . 
I. LEGAL CHARACTERIZATION OF MEASURES AS SAFEGUARD MEASURE  
2. China believes the Appellate Body in Indonesia – Iron or Steel Products  has provided useful 
analysis as to what meaure constitutes Safeguard measure.  
3. The Appellate Body identified two constitu ent elements of a safeguard measure, i.e. (1) the 
suspension, in whole or in part, of a GATT obligation or the withdrawal or modification of a 
GATT concession; and (2) that the suspension, withdrawal, or modification in question is 
designed to prevent or r emedy serious injury to the Member's domestic industry caused or 
threatened by increased imports of the subject product.  
4. In China's view, the purpose of a safeguard measure is to prevent or remedy serious injury 
to a domestic industry caused or threate ned by increased imports, through the mechanism 
of suspending, withdrawing, or modifying a GATT obligation or concession. That is what a 
safeguard measure "is" , and a measure which meets the two constituent elements would be 
a safeguard measure . The remain ing elements provided under Article XIX(1)(a) are legal 
requirements for the imposition of a safeguard measure rather than constituent elements of 
such a measure.  
5. Furthermore, China believes that the characterization of a measure as safeguard measure 
is not a question of subjective intent, but independant and objective assessment of the 
features of the measure. In making this "independent and objective assessment", a panel 
must "identify all the aspects of the measure that may have a bearing on its lega l 
characterization, recognize which of those aspects are the most central to that measure, 
and, thereby, properly determine the disciplines to which the measure is subject."   The 
assessment of whether a measure is a safeguard measure is therefore an object ive 
assessment based on the relevant characteristics of the measure, not the importing 
Member's subjective intent.  
6. This conclusion is unaffected by the statement in Article  XIX:1(a) that a Member "shall be 
free" to suspend an obligation in whole or in p art or to modify or withdraw a concession, 
provided that the conditions for the imposition of a safeguard measure are satisfied. The 
phrase "shall be free" does nothing more than confer the right to impose a safeguard 
measure when the conditions for the im position of such a measure are satisfied.  
II. ISSUES CONERNING INTERPRETATION OF ARTICLE XXI(b)  
i. Standard of Review  
7. China holds the view that, nothing in the DSU or elsewhere in the covered agreements allows 
a panel to perform its role any differently  in disputes in which the responding Member 
invokes Article  XXI(b) of the GATT 1994.   
8. Article  XXI(b) is an affirmative defense which, like other affirmative defenses, must be 
interpreted and applied to the facts of the case to determine whether it prov ides justification 
for any identified inconsistency.  There are no special or additional rules or procedures that 
apply to a dispute in which the responding Member has invoked Article  XXI(b), and the 
panel's function  to undertake "an objective assessment o f the facts of the case and the 
applicability of and conformity with the relevant covered agreements" is the same as in any 
other dispute.  WT/DS556/R/Add.1  
 
- 46 - 
 
  9. Furthermore, the subparagraphs of Article XXI(b) represent an enumerated and exhaustive 
list of the circumstances under which a Member may seek to justify a particular type of 
action that is otherwise inconsistent with the GATT 1994. For the subparagraphs to be 
exhaustive and have effective meaning, they must be objectively reviewable.  Otherwise, 
Article  XXI(b) would  have the same meaning and effect as if the subparagraphs did not 
exist, and the circumstances described in the three subparagraphs would no longer constrain 
the circumstances in which a Member could invoke Article  XXI(b).  
ii. Interpretation of Article XXI (b) 
10. Within Article XXI (b), the phrase "which it considers" qualifies the phrase "necessary for 
the protection of its essential security interests".  Thus, what a Member is permitted to 
determine, in its own judgment, is whether a particular action of a type set forth in 
subparagraphs (i) through (iii) is "necessary for the protection of its essential security 
interests".  For an action in question to be justified under Article  XXI(b), it must objectively 
fall within one of the three enumerate d subparagraphs.  Provided that the action in question 
is objectively within the scope of one (or more) of the enumerated subparagraphs, it is up 
to the invoking Member to determine whether the action in question is necessary for the 
protection of its esse ntial security interests.  The United States stands alone in asserting 
that the entirety of Article  XXI(b), including its subparagraphs, is self -judging.  This is clearly 
different from what was perceived from other parties and third parties.  
11. The subj ective element of the chapeau  encompasses both the "necessity" of the action and 
the determination of the invoking Member's "essential security interests".  The chapeau  
refers not to "necessity" in the abstract, but to the necessity of a particular action "for the 
protection of its essential security interests".  The elements of this determination are not 
divisible – a Member's determination of whether a particular action is "necessary" includes 
the determination of whether that action is "for the protectio n of" what the Member considers 
to be "its essential security interests".  
12. The phrase "any action which it considers necessary for the protection of its essential 
security interests" has two operative halves.  The phrase "any action" is qualified by the  
three subparagraphs.  Thus, any action for which justification is sought under Article  XXI(b) 
must be one " relating  to fissionable materials", " relating  to the traffic in arms …", or one 
"taken  in time of war or other emergency in international relations" .  Provided that the action 
in question is of one or more of those types, the Member may determine, in its own 
judgment, whether that action is "necessary for the protection of its essential security 
interests".  
13. China does not consider that the presen t disputes present a circumstance in which there is 
a potential conflict among the Spanish, French and English texts following the application of 
Articles 31 and 32 of the Vienna Convention.  Rather, the minor differences in terminology, 
structure, and pun ctuation discussed in response to the preceding questions all point to the 
same conclusion: that the individual subparagraphs of Article  XXI(b) are objectively 
reviewable in dispute settlement and do not form part of the self -judging element of that 
provis ion. 
14. The individual subparagraphs of Article  XXI(b) describe, exhaustively, the specific 
circumstances in which a Member may seek to justify an inconsistent measure under this 
provision.  They serve the same function as the subparagraphs of Article  XX, i.e. to delimit 
the scope of application of the exception.  
15. The exhaustive nature of the three subparagraphs means there are no other circumstances 
in which a Member may invoke Article  XXI(b) to justify a GATT -inconsistent measure. If 
those subparagraphs were considered "self -judging", there would be no constraint upon the 
circumstances in which a Member could justify a GATT -inconsistent action.  Such an 
interpretation would defeat and run contrary to the exhaustive nature of the three 
subpar agraphs .  
16. In addition, i f the self -judging element of Article XXI(b) were interpreted to encompass the 
three subparagraphs of this provision, those subparagraphs would be rendered inutile in WT/DS556/R/Add.1  
 
- 47 - 
 
  violation of the principle of effective interpretation.  Had this been the intention of the 
drafters, the three subparagraphs could have been omitted entirely and Article XXI(b) would 
have the same meaning and effect.   
17. It is well established that an object and purpose of the GATT 1994 is to "promote the securit y 
and predictability of the reciprocal and mutually advantageous arrangements and the 
substantial reduction of tariffs and other barriers to trade".   An interpretation of 
Article  XXI(b) under which the applicability of its subparagraphs is to be determined  by the 
invoking Member in its own judgment would be incompatible with the object and purpose of 
the GATT 1994, because a Member could, at any time and for any reason, excuse itself from 
compliance with its WTO obligations merely by invoking Article  XXI(b) .  A consideration of 
the object and purpose of the GATT 1994 plainly supports the conclusion that the 
subparagraphs of Article  XXI(b) are objectively reviewable by a panel.   Otherwise, the 
security and predictability of the multilateral trading system  would be obviously undermine d.   
18. Whatever the scope of the self -judging element in Article  XXI(b), a Member's invocation of 
Article  XXI(b) is, in all events, subject to the requirement of Article  26 of the Vienna 
Convention that a treaty must be performed in good faith.  
19. The principle  of good faith applies to the performance of any treaty obligation, including 
elements of a treaty that are committed to a party's discretion.  It does not deprive a 
Member invoking Article  XXI(b) of its right to determine its essential security interests in its 
own judgement and take measures it considers necessary for the protection of those 
interests.  However, as a general matter, the pervasive nature of the obligation to act in 
good faith requires that even in relation to those elements of Article  XXI(b) that are 
committed to a Member's discretion by virtue of the phrase "which it considers", the invoking 
Member must nevertheless invoke Article XXI(b) in good faith.  This may require some 
explanation by the invoking Member of why it considered a particu lar element of 
Article  XXI(b) to apply.  
III. RELATIONSHIP BETWEEN ARTICLES XXI AND XIX OF THE GATT 1994 AND 
THE AGREEMENT ON SAFEGUARDS  
20. In China's view, the absence of an explicit cross -reference in the Agreement on Safeguards 
to Article  XXI of the GA TT 1994 is not determinative of whether Article  XXI is available to 
justify measures that are inconsistent with the Agreement on Safeguards.  It is, however, a 
pertinent interpretive consideration, and one that weighs against the conclusion that 
Article  XXI is available in this circumstance.  
21. The Appellate Body has stated that the relationship between provisions contained in two 
different agreements, including the applicability of a GATT exception to another agreement, 
"must be ascertained through scruti ny of the provisions concerned, read in the light of their 
context and object and purpose, with due account being taken of the overall architecture of 
the WTO system as a single package of rights and obligations, and any specific provisions 
that govern or shed light on the relationship between the provisions of different 
instruments".   Within the framework articulated by the Appellate Body, the presence or 
absence of an express textual cross -reference is not dispositive. The only circumstance in 
which a GA TT exception was found to be available notwithstanding the absence of an explicit 
textual cross -reference is where the provision at issue strongly implied the availability of the 
GATT exceptions.  
22. The fact that the Agreement on Safeguards is an elaborat ion upon Article  XIX of the GATT 
1994 does not mean that Article  XXI applies to the Agreement on Safeguards.  This is true 
in respect of both those provisions of the Agreement on Safeguards that could be said to 
replicate provisions of Article  XIX and thos e provisions of the Agreement on Safeguards that 
have no counterpart in Article  XIX.  
23. With has been said, China believes that nothing in the Agreement on Safeguards provides 
any indication that the exceptions provisions of the GATT 1994, including Arti cle XXI, are 
available as potential justifications for measures that are inconsistent with that agreement.   
 WT/DS556/R/Add.1  
 
- 48 - 
 
  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
1  INTRODUCTION  
1. In this dispute, the complainants have argued that the steel and aluminium measures are 
safeguards, inconsistent with the Agreement on Safeguards; that they are also inconsistent 
with the GATT 1994; and that they are not justified by Article XXI of the GATT 1994, even 
if the US chose to make out an Article XXI defence, and even i f that provision applied.  
2. In response, the US has said one thing only: Article XXI is "self-judging ". In other words, as 
soon as the US "invokes " any part of Article XXI or Article XXI as a whole, the Panel is 
allowed to do no more than record that the "invocation " took place.   
3. That assertion is baseless as a matter of law. It is also unacceptable from a systemic point 
of view. It cannot be that Members are able to escape their WTO obligations through mere 
unilateral "invocations ". Going down that ro ad would undermine everything that the dispute 
settlement system has achieved and reduce WTO law to inutility.  
4. It is important to note the following: the US has not taken issue with a single fact or piece 
of evidence put forward by the complainants. It  has not even tried to rebut the claim that 
the steel and aluminium measures are safeguards; any of the claims under the Agreement 
on Safeguards or the GATT 1994. Strikingly, for all its reliance on Article XXI, the US has 
not even raised an Article XXI de fence. It has not said which "action " supposedly falls within 
Article XXI(b), whether or why it "considers it necessary ", what it is "for", which "security 
interest " is at issue, whether and why it is "essential " , which of the three subparagraphs (if 
any) is at issue or why.  
5. For these reasons and others, the EU considers that it should not be difficult for the Panel 
to find that the measures at issue are WTO -inconsistent.  
2 THE MEASURES AT ISSUE FALL WITHIN THE SCOPE OF THE AGREEMENT ON SAFEGUARDS , AND ARE 
INCONSISTENT WITH CERTAIN PROVISIONS OF THAT AGREEMENT  
2.1 WHETHER THE AGREEMENT ON SAFEGUARDS APPLIES TO A MEASURE IS AN OBJECTIVE QUESTION TO 
BE DECIDED BY THE PANEL 
6. The EU recalls that, according to settled case -law, and as recently confirmed by  the Appellate 
Body in the specific context of the Agreement on Safeguards, whether or not a measure is 
subject to the disciplines of the Agreement on Safeguards is an objective question. Contrary 
to what the US asserts in the Additional Duties cases, it i s not a question to be decided 
unilaterally by the Member imposing the safeguard measure.  
7. A reason why the characterisation of a measure as a safeguard must be an objective 
question is that Article XIX and the rules of the Agreement on Safeguards includ e important 
and fundamental rights of other WTO Members, notably the right to suspend equivalent 
GATT obligations. It cannot be that a WTO Member can deprive other WTO Members of these 
rights simply by choosing not to notify its measure as a safeguard meas ure or by not 
"invoking" Article XIX.  The fulfilment of the requirements in Article XIX:2 of the GATT 1994 
and Article 12 of the Agreement on Safeguards is a question of consistency, not of the 
applicability of the Agreement on Safeguards.  
8. In making th at objective assessment of whether a measure is a safeguard, the Panel must 
engage in a case -specific assessment, having regard to all of the relevant facts. In this 
respect, and again contrary to what the US asserts in the Additional Duties case, the 
dome stic procedures pursuant to which a measure has been adopted are not determinative, 
and neither are the WTO procedures that have been followed, or not followed, by the 
adopting Member.  WT/DS556/R/Add.1  
 
- 49 - 
 
  9. Indeed, the Appellate Body has previously held that the characterisa tion of a measure under 
a Member's municipal law is not dispositive of the question of whether or not that measure 
is governed by the provisions of a particular agreement.  
10. What are, then, the true "constituent features " of a safeguard?  
11. In the context of Article 1 of the Agreement on Safeguards, in order to be a safeguard 
measure, a measure must have two constituent features. First, it must suspend, in whole 
or in part, a GATT obligation or withdraw or modify a GATT concession. Second, th e 
suspension, withdrawal, or modification in question must be designed to prevent or remedy 
serious injury to the Member's domestic industry caused or threatened by increased imports 
of the relevant products. The constituent features of a safeguard measure  are distinct from 
and not to be conflated with the conditions that must be met in order for the right to adopt, 
apply and maintain a safeguard measure to be exercised.  
12. If the measures have "a specific objective" of preventing or remedying serious inj ury to the 
Member's domestic industry, they are subject to the disciplines of the Agreement on 
Safeguards.  
13. In conducting its assessment, the Panel must have regard to the measure "as a whole". The 
US measures, with respect to steel and aluminium products, should be seen as the tariff and 
non-tariff treatment provided for, without qualification (that is, with respect to all WTO 
Members, as a whole).  
2.2 THE AGREEMENT ON SAFEGUARDS APPLIES TO THE MEASURES AT ISSUE  
14. The only reasonable outcome of an objective assessment is to conclude that the US 
measures are safeguards.  
15. The facts speak for themselves: even on their face, the central objective, and at the very 
least "a specific objective " of the measures is protecting domestic steel  and aluminium 
industry writ large from competition with imports, regardless of any alleged national security 
implications.  
16. Applying the legal standard formulated by the Appellate Body, it is first of all clear that the 
US measures suspend at least on e GATT obligation, in whole or in part, or withdraw or 
modify at least one GATT concession.  
17. Indeed, prior to the Section 232 measures the US customs duties on the steel and aluminium 
products at issue were bound, as well as applied at the level of 0%. However, the US 
measures provide for a customs duty rate of 25% ad valorem  for the relevant steel products 
and 10% ad valorem  for the relevant aluminium products.  
18. Thus, the US measures suspend at least one GATT obligation or withdraw or modify at leas t 
one GATT concession, per tariff line in question, in a manner that is inconsistent with Article 
II:1(b) of the GATT 1994.  
19. According to the Presidential Proclamations, the US measures are designed to prevent or 
remedy a decline in the respective dome stic industries caused by imports, and to provide a 
"relief" to those industries from competition with imports.  
20. Indeed, the Steel Report, the Aluminium Report and the Proclamations point to several 
elements relevant to an injury analysis. The steel an d aluminium import adjustments 
explicitly purport to assess a number of injury factors that are typically associated with a 
serious injury finding under Article 4.2(a) of the Agreement on Safeguards (the rate and 
amount of the increase in imports, the shar e of the domestic market taken by increased 
imports (import penetration), changes in the level of domestic sales, production and 
productivity, capacity utilization, profits and losses, and employment).  
21. Thus, consistent with the legal standard identifie d by the Appellate Body in Indonesia – Iron 
or Steel Products , the US measures have a specific objective of preventing or remedying 
serious injury to the US domestic steel and aluminium industries caused or threatened by 
increased imports of the relevant p roducts.  
22. An analysis of the "design, structure, and expected operation " of the steel and aluminium 
measures supports the conclusion that they are safeguard measures. The measures are 
designed , and expected to operate , such as to achieve a certain domes tic capacity utilisation 
for all domestic producers of steel and aluminium, whether their products are linked to WT/DS556/R/Add.1  
 
- 50 - 
 
  security needs or not. The structure  of the measures also shows that their overwhelming 
concern is simply whether imports harm or threaten to h arm "US producers writ large ", with 
regard essentially to their "industrial and commercial sales ". Any discussion of defence -
related needs is brief, marginal, and would actually argue against the imposition of the 
measures.  
23. Furthermore, there are sever al characteristics of the US measures that confirm that they 
are safeguards measures. While these aspects provide further support for the conclusion 
that the US measures are safeguards, it is not legally necessary to go beyond the two 
required "constituent  features".  
2.3 THE MEASURES AT ISSUE ARE INCONSISTENT WITH SEVERAL PROVISIONS OF THE AGREEMENT ON 
SAFEGUARDS   
24. The EU agrees that the steel and aluminium measures at issue are inconsistent with several 
provisions of the Agreement on Safeguards. In part icular:  
• Article 2.1 (notably, because the US acted inconsistently with the provisions of Articles 
4.1 and 4.2);  
• Article 2.2 (because the US did not apply the safeguard measures to the products at 
issue irrespective of their source);  
• Articles 4.1 and 4.2 (because the USDOC failed to properly demonstrate (i) an increase 
in imports of the steel and aluminium products at issue, (ii) the existence of serious 
injury (or threat thereof) to the US domestic steel and aluminium industries and (iii) a 
causal lin k between increased imports and serious injury (or threat thereof) with 
respect to the steel and the aluminium industries);  
• Article 5.1 (because the US has failed to apply its safeguard measures only to the 
extent necessary to prevent or remedy serious injury and to facilitate adjustment);  
• Article 7.1 (because the safeguard measures make no provision for their application 
only for such period of time as may be necessary to prevent or remedy serious injury 
and to facilitate adjustment, and without limi tation to four years or any other period 
of time);  
• Article 7.4 (because the safeguard measures fail to make provision for the progressive 
liberalisation at regular intervals during the period of their application, the expected 
duration of which is over one year);  
• Article 11.1(a) (because the safeguard m easures do not conform with the provisions 
of Article XIX of the GATT 1994 applied in accordance with the Agreement on 
Safeguards);  
• Article 12.1 (because the US failed to make the notifications listed in Article 12.1 of 
the Agreement on Safeguards);  
• Article 12.2 (because the US failed to provide the Committee on Safeguards with all 
pertinent information);  
• Article 12.3 (because the US failed to provide adequate opportunity for prior 
consultations with Members having a substantial interest as exporte rs of the product 
concerned when proposing to apply or extend the safeguard measures).  
2.4 ARTICLE XXI IS NOT A DEFENCE FOR CLAIMS UNDER THE AGREEMENT ON SAFEGUARDS  
25. When another covered agreement specifically cross -references Article XXI of GATT 1994 
and incorporates these security exceptions by reference, then the Article XXI exceptions 
will also apply to that other agreement. The Agreement on Safeguards does not contain a 
similar provision, which would lead to the incorporation by reference of the se curity 
exceptions of the GATT 1994. Thus, the GATT 1994 security exceptions are not available 
to justify breaches of the Agreement on Safeguards.  
26. To confirm such a conclusion it is useful to follow a standard "analytical approach" 
developed by the Appe llate Body, which entails an agreement -by-agreement analysis that WT/DS556/R/Add.1  
 
- 51 - 
 
  starts with the text of the covered agreement in question, while keeping in mind that the 
lack of an express textual reference to a particular enumerated provision is not dispositive 
in and of itself. Cases such as China – Publications , China - Raw Materials , China - Rare 
Earths  and Thailand — Cigarettes (Philippines)  provide useful guidance in this respect.  
27. It is up to the US whether or not it wishes to invoke Article XXI of the GATT 1994 at all 
and, should it wish to do so, to develop arguments taking into account the guidance 
provided by the Appellate Body in previous cases.  
28. Indeed, the burden under Article XXI lies on the party raising the defence, which would in 
this case be th e US. The same is true of the burden of showing why Article XXI applies in 
the context of the Agreement on Safeguards. The general point that there are textual links 
between the two agreements does nothing to specifically  establish that Article XXI is 
available as a defence for inconsistencies with the Agreement on Safeguards.  
3 THE MEASURES AT ISSUE ARE INCONSISTENT WITH CERTAIN PROVISIONS OF THE GATT  1994  
29. The EU also agrees that the steel and aluminium measures at issue are inconsistent with 
several p rovisions of the GATT 1994.  
30. First, they are inconsistent with Articles II:1(b) and II:1(a), because they impose duties 
in excess of bound rates. The bound duties provided in the US' Schedule for the steel and 
aluminium products at issue are 0%, while t he duties imposed through the Presidential 
Proclamations are 25% ad valorem for steel products and 10% ad valorem for aluminium 
products.  
31. Second, the import adjustments at issue are inconsistent with Article I:1 of the GATT 1994. 
The imposition of addi tional customs duties of 25% on steel products and 10% on 
aluminium products creates more favourable competitive opportunities on the US market 
for like products of certain origins, namely for products from countries that were exempted 
from the additional duties on steel and aluminium and have chosen instead a quota regime 
(exemptions have been agreed with Argentina, Australia, Brazil, and Korea).  
32. Third, the administration of the product exclusions and the country exemptions by the US 
was not uniform, i mpartial or reasonable. Thus, it can be established that the US acted 
inconsistently with Article X:3(a) of the GATT 1994).  
4 ARTICLE XXI  IS NOT "SELF-JUDGING "  
33. The US ' view that that Article XXI is "self-judging " has been convincingly rejected by the 
Panel Report in Russia — Traffic in Transit . It is wrong in light of the text, context, object 
and purpose, and indeed useful effect of the GATT 1994. It is not supported by any of the 
materials referred to in Articles 31 and 32 of the VCLT, including supp lementary means of 
interpretation.  
34. In addition, while certain GATT Contracting Parties have expressed the view that Article 
XXI(b) is "self -judging", several others have repeatedly expressed diametrically opposed 
positions. Thus, the enquiry into the GATT 1947 palaeontology does not support the US 
position.  
35. The EU recalls, first, that Article XXI of the GATT 1994 is an affirmative defence. But it 
does not provide for an exception to the rules on jurisdiction laid down in the DSU or to 
the speci al rules on consultations and dispute settlement contained in Articles XXII and 
XXIII of GATT 1994. The DSU creates compulsory jurisdiction, and it contains no security 
exception.  
36. Second , interpreting Article XXI as a "non -justiciable" provision in thi s dispute would be 
inconsistent with the terms of reference of the Panel, which follow Article 7.1 of the DSU. 
It would also be inconsistent with Article 7.2 of the DSU, which specifies that "[p]anels 
shall address the relevant provisions in any covered ag reement or agreements cited by the 
parties to the dispute ". 
37. Thus, the present disputes differs from the case under the GATT 1947 opposing the US and 
Nicaragua, where the terms of reference explicitly precluded that panel from examining or 
judging the v alidity or motivation for the invocation of Article XXI(b) by the US.  WT/DS556/R/Add.1  
 
- 52 - 
 
  38. Third,  interpreting Article XXI as a "non -justiciable" provision would make it impossible for 
the Panel to "make an objective assessment of the matter before it ", as required by Arti cle 
11 of the DSU, as the "matter" before the Panel must also include any defence under Article 
XXI raised by the US.  
39. Fourth, interpreting Article XXI as a "non -justiciable" provision would undermine one of the 
fundamental objectives of the DSU, as exp ressed in Article 3.2 of the DSU: security and 
predictability.  
40. Fifth, Article 23 of the DSU prohibits Members from making a determination to the effect 
that a violation has occurred, except through recourse to dispute settlement in accordance 
with the DSU. If Article XXI was "non-justiciable ", a WTO Member, rather than the WTO 
adjudicating bodies, would be deciding unilaterally the outcome of a dispute.  
41. Finally, by way of illustration, the EU would like to point out that there are fundamental 
differences in the way that security exceptions are drafted in the GATT, on the one hand, 
and in other international agreements, on the other hand. For instance, an express text 
that comes very close to the idea of "non -justiciability" can be found in the KORUS FTA. 
There is no such text agreed by the WTO Membership in any of the covered agreements.  
42. Thus, the invocation of Article XXI by a defending party does not have the effect of 
excluding the jurisdiction of a panel.  
43. The EU fails to understand  how Article XXI(a) can exempt the US from meeting its burden 
of proof under Article XXI(b). Like Article XXI(b), Article XXI(a) is also a justiciable 
provision. Any discretion accorded under it is not unlimited.  
44. The EU acknowledges that information r elating to essential security interests is of a highly 
sensitive nature, but the respondent is expected at a minimum to explain in sufficient detail 
why such information cannot  be shared with the Panel. There is nothing that would prevent 
a panel, if neces sary, from adopting appropriate procedures to deal with sensitive 
information in cases involving the invocation of Article XXI. At any rate, even if the US was 
justified in not providing certain information pursuant to Article XXI(a), that would not 
discha rge the US from its burden of proof in relation to Article XXI(b).  
45. Regarding the interpretation of Article XXI, in the EU 's view, the phrase "which it considers " 
refers only to the necessity test and not to any other provisions. Furthermore, t he 
subpar agraphs to Article XXI(b) are exhaustive of the types of circumstances covered by 
the provision, and cannot be considered cumulative in nature. A ll those distinct 
circumstances are objective, and susceptible to a panel 's assessment. Moreover, the terms 
"other emergency in international relations"  do not extend to an "emergency" in 
commercial or trade relations . 
46. Concerning the negotiating history raised by the US, even under the Havana Charter, the 
correct position would have been that the predecessor to  Article XXI is "justiciable ", and 
not self -judging. Even under the Havana Charter, all issues arising out of the Charter were 
intended to be subject to the dispute settlement procedures provided therein, whether 
involving the ITO itself (Articles 93 -95 of the Havana Charter), or the ICJ (Article 96 of the 
Havana Charter). The evolution towards the WTO covered agreements, and notably the 
provisions of the DSU, further confirms that position.  
47. Furthermore, the 1949 GATT Council decision cited by the US c annot be considered as a 
subsequent agreement on the interpretation even of the GATT 1947, or in any way binding 
to all the contracting parties to the GATT 1947. Still less could it be considered as binding 
under the GATT 1994. In any event, it also suppor ts the complainants ' position rather than 
that of the US.  
5 CONCLUSIONS  
48. What the US is advocating is, in fact, the end of a rules —based multilateral trading system. 
While the EU acknowledges the margin of discretion that WTO Members enjoy under the 
security exceptions, that discretion is not unfettered, but subject to certain objective 
elements, which can and should be subject to review by a panel  
49. The EU hopes that its contribution in the present case will be helpful to the Panel in 
objectively asse ssing the matter before it and in developing the respective legal 
interpretations of the relevant provisions of the Agreement on Safeguards and of the 
GATT  1994.  WT/DS556/R/Add.1  
 
- 53 - 
 
  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF HONG KONG, CHINA  
I. INTRODUCTION  
1. In DS544, DS547, DS548, DS552, DS554, DS556, and DS564 ("the parallel disputes"), the 
complainants challenge the consistency of the measures imposed by the United States ("U.S.") on 
steel and aluminium products.  Specifically, the complainants have challenged the U.S. measures 
under several of the core p rovisions of the GATT  1994, including Articles II:1 and I:1.  The United 
States has sought to defend its measures pursuant to Article  XXI(b) of the GATT 1994.  
2. Hong Kong, China ("HKC") has participated in the parallel disputes because of its systemic 
interest in the correct interpretation and application of the provisions of the WTO -covered 
agreements at issue in these disputes and its substantial interest in the outcome of the parallel 
disputes.1 
3. For the reasons set out in Hong Kong, China's written submission, oral statement, and 
responses to questions from the Panel to the third parties, Hong Kong, China respectfully submits 
that in its view, the complaints have established a prima facie case that the U.S.  measures are 
inconsistent with the relevant  provisions of the Agreement on Safeguards and the GATT 1994.  Hong 
Kong, China further respectfully submits that the United  States has failed to demonstrate that the 
U.S. measures are justified under Article  XXI(b) of the GATT 1994.   
4. Throughout these proceedings, Hong Kong, China has focused on the correct legal 
interpretation of Article  XXI(b) of the GATT 1994 in light of the critical systemic implications of the 
U.S. proposed interpretation of this provision as entirely self -judging.  
II. THE COMPLAIN ANTS' CLAIMS UNDER THE AGREEMENT ON SAFEGUARDS AND THE GATT  1994  
5. As detailed in Hong Kong, China's written submission, Hong Kong, China considers that the 
complainants have each demonstrated that when evaluated objectively and in a manner consistent 
with the Appellate Body's statements in Indonesia – Iron or Steel Products , the U.S.  measures are 
safeguard measures because (1) the measures suspend at least one GATT obligation, in whole or in 
part, or withdraw or modify a GATT concession, and (2) it is evi dent on the face of the measures 
and in their design, structure, and operation that the specific objective of such measures is to prevent 
or remedy serious injury to the U.S. steel and aluminium industries.2  In Hong Kong, China's view, 
each of the complainants has also demonstrated that the U.S. measures are inconsistent with 
numerous provisions of the Agreement on Safeguards.3 
III. THE APPLICABILITY OF ARTICLE  XXI  OF THE GATT  1994  TO THE AGREEMENT ON SAFEG UARDS  
6. In its answers to questions from the Panel to the third parties, Hong Kong, China explained 
its view that Article  XXI of the GATT 1994 is inapplicable to the Agreement on Safeguards.4  Hong 
Kong, China considers the lack of an explicit reference to Article  XXI or any other GATT exception in 
the Agreement on Safeguards, in particular, to be critical evidence that Article  XXI is not available 
to justify violations of the Agreement on Safeguards.  In Hong Kong, China's view, the general 
references in  the Agreement on Safeguards to the GATT 1994 do not provide a sufficient legal basis 
to apply Article  XXI to the Agreement on Safeguards.  The Agreement on Safeguards strikes a 
balance between preserving the right of Members to take emergency action on im ports and 
disciplining the use of safeguard measures.  Consequently, allowing recourse to Article  XXI of the 
GATT 1994 is both legally unjustifiable and potentially disruptive of this inherent balance.  
 
1 See Hong Kong, China's third -party submission, para. 1; third -party statement, paras. 2 and 3.  
2 See Hong Kong, China's third -party submission, paras. 5 -8. 
3 See Hong Kong, China's third -party submission, para. 9.  
4 See Hong Kong, China's response to Panel questions Nos. 38(a), 38(c), 38(d), and 39.  See also 
Hong Kong, China's third -party statement, paras. 10 -12. WT/DS556/R/Add.1  
 
- 54 - 
 
  IV. ARTICLE  XXI(B)  OF THE GATT  1994  
7. The United Stat es has invoked Article  XXI(b) of the GATT 1994 in respect of all of the 
complainants' claims.  Therefore, for the reasons detailed in Hong Kong, China's answers to 
questions from the Panel to the third parties, the Panel has jurisdiction to examine and int erpret 
Article  XXI(b).5  In particular, pursuant to Articles 7.2 and 11 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes ("DSU"), the Panel is required to address 
Article  XXI(b) and conduct an objective assessment of wheth er Article  XXI(b) applies to the U.S. 
measures.  
8. Furthermore, since Article  XXI(b) is an affirmative defence, the Panel should first evaluate 
whether each complainant has established a prima facie case that the U.S.  measures violate certain 
provisions o f the Agreement on Safeguards and the GATT 1994 and whether the United States has 
rebutted those claims, before turning to the interpretation and application of Article  XXI(b) of the 
GATT 1994.6 
9. In regard to the correct legal interpretation of Article  XXI(b), it is Hong Kong, China's view 
that when analysed in accordance with Article  3.2 of the DSU and the general customary rules of 
interpretation codified in Article  31 of the Vienna Convention on the Law of Treaties ("Vienna 
Convention"), it is clear t hat this provision preserves the right of Members to take actions necessary 
for the protection of their essential security interests, but it is not entirely self -judging.7   
10. Pursuant to Article  31 of the Vienna Convention, the terms of Article  XXI(b) must be 
interpreted in good faith, in accordance with their ordinary meaning in their context, and in the light 
of the object and purpose of the GATT 1994.  The language "which it considers" makes clear that 
Article  XXI(b) contemplates a certain level of unilateral determination by the invoking Member.  The 
placement of the language of "which it considers" in the chapeau indicates that it is up to the invoking 
Member to determine, in good faith, whether a measure is necessary  for the protection of its 
essential security interests.8   
11. Pursuant to the principle of effective treaty interpretation, a treaty interpreter may not "'adopt 
a reading that would result in reducing whole c lauses or paragraphs of a treaty to redundancy or 
inutility'".9  A proper interpretation of Article  XXI(b) must therefore give meaning to all of the 
enumerated subparagraphs.  If the language "which it considers" is interpreted to qualify the 
subparagraph s, the subparagraphs would be rendered inutile.  In order to give meaning to all parts 
of Article  XXI(b), the enumerated subparagraphs must be interpreted as subject to objective review 
by a WTO panel.  Correctly interpreted, Article  XXI(b) is therefore no t entirely self -judging.  This 
conclusion is supported by the fact that the chapeau does not include any terms to suggest that the 
enumerated subparagraphs do not exhaustively list the types of actions covered by Article  XXI(b), 
such as "including" or " inter alia ".10 
12. This conclusion is further supported by the context provided by Article  XX of the GATT 1994, 
which requires a "two -tiered" analysis, the first tier of which consists of objectively determining 
whether the measure at issue falls within the scope of one or more of the enumerated 
subparagraphs.11 
 
5 See Hong Kong, China's answers to Panel ques tions Nos. 8 -11.  See also Hong Kong, China's 
third-party submission, para. 56.  
6 See Hong Kong, China's answer to Panel question No. 15; third -party submission, para. 4.  
7 See Hong Kong, China's third -party submission, paras. 20 -32; third -party statement,  paras. 13 -21. 
8 See Hong Kong, China's third -party submission, para. 23.  See also Hong Kong, China's response to 
Panel questions Nos. 13 and 14.  
9 See Hong Kong, China's third -party submission, para. 25, quoting Appellate Body Report, Japan – 
Alcoholic B everages II , p. 12, quoting Appellate Body Report, US – Gasoline , p. 23; third -party statement, 
para. 19.  
10 See Hong Kong, China's third -party submission, para. 26; third -party statement, para. 18.  
11 See Hong Kong, China's third -party submission, paras. 27-29, quoting Appellate Body Report, US – 
Shrimp , paras. 118 and 119, quoting Appellate Body Report, US – Gasoline , p. 22 (explaining that the analysis 
under Article  XX is " two-tiered : first, provisional  justification by reason of characterization of the measure 
[under one of the subparagraphs] … ; second,  further appraisal of the same measure under the introductory 
clauses of Article  XX (emphasis added)" and explaining that this analysis reflects "the fundamental structure 
and logic of Article  XX.").  WT/DS556/R/Add.1  
 
- 55 - 
 
  13. The terms of Article  XXI(b) must also be interpreted in light of their object and purpose, which 
as Hong Kong, China has explained, requires "avoid[ing] interpretations that would enable Members 
to 'circumvent' or 'evade' their obligations," including those under Article  XIX of the GATT 1994.12  
In this regard, Hong Kong, China has highlighted the statement by the panel in Russia – Traffic in 
Transit that a "general object and purpose of the WTO Agreement, as well as of the GATT 1994, is 
to promote the security and predictability of the reciprocal and mutually advantageous arrangements 
and the substantial reduction of tariffs and other barriers to trade", and therefore "[i]t would be 
entirely cont rary to the security and predictability of the multilateral trading system … to interpret 
Article  XXI as an outright potestative condition, subjecting the existence of a Member's GATT and 
WTO obligations to a mere expression of the unilateral will of that Member."13  Hong Kong, China 
concurs with the panel's statement.  
14. In support of its interpretation of Article  XXI(b) as entirely self -judging, the United States has 
advanced certain arguments relating to the United States v. Czechoslovakia  dispute and the views 
previously expressed by WTO Members on Article  XXI.  Hong Kong, China respectfully submits that 
the United States has failed to demonstrate that the Panel should take into account these arguments 
as a matter of law, nor has the United States demo nstrated that these arguments factually support 
the U.S.  proposed interpretation of Article  XXI(b).14 
15. Finally, throughout these proceedings, Hong Kong, China has expressed strong disagreement 
with the U.S. view that the negotiating history detailed in  the U.S. first written submission confirms 
that Article  XXI(b) is self -judging.15  Hong Kong, China has carefully examined the records of the 
discussions surrounding the evolution of the language "which it considers" and disagrees that they 
confirm that the drafters intended for this language to qualify the adjectival clauses that ultimately 
became the subparagraphs of Article  XXI(b).  As Hong Kong, China has highlighted in its submissions 
to the Panel, in contrast to the interpretation proposed by the Un ited States in the present parallel 
disputes, in these early discussions the United States itself did not consider Article  XXI(b) to be 
entirely self -judging or that Members' rights of redress in respect of the exception would be limited.16   
V. CONCLUSION  
16. The text of Article  XXI(b) of the GATT 1994, interpreted in its context and in light of the object 
and purpose of that agreement, establishes that for a measure to be justified under that provision, 
the action taken must objectively fall wit hin the scope of Article  XXI(b).  As the party invoking 
Article  XXI(b), the United States bears the burden of demonstrating that its measures fall within the 
scope of that provision.17  Additionally, consistent with the general international law principle  of 
pacta sunt servanda  underlying all of the WTO -covered agreements,  the Member invoking 
Article  XXI(b) must do so in good faith.  For the reasons explained in Hong Kong, China's submissions 
in the parallel disputes, Hong Kong, China respectfully submits that in its view, the complainants 
have met their burden of proof and established a prima facie  case that the U.S. measures violate 
the relevant provisions of the GATT 1994 and the Agreement on Safeguards. Given that the proposed 
interpretation by the Unit ed States of Article  XXI(b) is flawed and the United States has failed to 
meet its burden of proof under Article  XXI(b),18 Hong Kong, China also respectfully submits that the 
Panel should find that the U.S.  measures are not justified under that provision.   
 
 
 
12 See Hong Kong, China's third -party submission, para. 30, quoting Panel Report, Thailand – Cigarettes 
(Philippines)  (Article  21.5 – Philippines) , para. 7.642.  
13 See Hong Kong, China's third -party submission, para. 31, quoting Panel Report, Russia – Traffic i n 
Transit , para. 7.79 (internal citations omitted).  
14 See Hong Kong, China's third -party submission, paras. 33 -36; 45 -51, 54.  
15 See Hong Kong, China's third -party submission, paras. 42 -44; third -party statement, paras. 22 -24. 
16 See Hong Kong, China's th ird-party submission, paras. 42 -44; third -party statement, paras. 22 -24. 
17 See Hong Kong, China's third -party submission, para. 57, citing Appellate Body Report, US – Wool 
Shirts and Blouses , p. 16 (noting that the burden of establishing an affirmative de fense "should rest on the 
party asserting it.").  
18 See Hong Kong, China's response to Panel questions Nos. 16 -19, 21, 25, and 26.  WT/DS556/R/Add.1  
 
- 56 - 
 
  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF INDIA  
I. Introduction   
1. India notes that the United States does not contest any of the evidence presented and claims 
raised, by the complainants in any of the 6 disputes in which India is a third party. In  other words, 
there is no longer any dispute that the measures at issue violate multiple provisions of GATT 1994 
and Agreement on Safeguards.  
2. The entirety of United States First Written Submissions is devoted to Article XXI(b) of 
GATT  1994. Essentially , the United States argues that mere invocation of Article XXI(b) shields the 
measures at issue from scrutiny by the Panel. India disagrees for the reasons outlined below. India 
also notes that the United States also fails to offer any explanation as to ho w Article XXI could be a 
defence against claims raised under Article XIX of GATT 1994 and Agreement on Safeguards (which 
are themselves an exception to the obligations contained in Articles I, II, X and XI of GATT 1994). 
Finally, the United States offers a  generic defence under Article XXI without specifying the precise 
sub-clause it invokes and without presenting any facts to support the invocation of Article XXI. India 
submits that the burden of proof is on the United States1 to establish that Article XX I applies in the 
facts and circumstances of the present dispute since Article XXI(b) of the GATT 1994 is an affirmative 
defence, just like Article XX.   
II. Justiciability of Article XXI(b) of the GATT 1994   
3. The United States argues that Article XXI(b) is "self-judging " and this "has been the 
consistently expressed view of the United States for more than 70 years ".2 Nothing could be farther 
from the truth3. Such assertion contradicts the comments made by the representatives of the United 
States when Ar ticle XXI (and its predecessor) were being drafted4.  
4. India considers that the terms "justiciable/non -justiciable " can neither be found in the DSU 
nor in any other WTO covered agreements. These terms have not been addressed in past disputes 
except in Russia – Traffic in Transit  in which the United States, intervened as a third -party5. 
Accordingly, India considers that these terms do not provide any guidance in relation to the standard 
of review to be applied to an invocation of Article XXI in dispute settlement proceedings.  
5. India submits that the invocation of Article XXI of GATT 1994 is subject to review by the Panel. 
India notes that the Panel in Russia – Traffic in Transit supports India 's position. The Panel held "[i]t 
would be entirely contrary to the security and predictability of the multilateral trading system 
established by the GATT 1994 and the WTO Agreements, including the concessions that allow for 
departures from obligations in specific circumstances, to interpret Article XXI as an outright 
potestative condition, subjecting the existence of a Member's GATT and WTO obligations to a mere 
expression of the unilateral will of that Member ."6  
6. India also recalls that the panel explicitly rejected the United States ' position that 
Article XXI(b)(iii) is non -justiciable7 and correctly found that Article XXI(b)(iii) of the GATT 1994 is 
not totally "self-judging " in the manner asserted by Russia in those proceedings. Although the United 
 
1 Appellate Body Report, US – Wool Shirts and Blouses , p. 16  
2 US’ first written submission, para. 2. 
3 Panel Report, Russia - Traffic in Transit , Appendix – subsequent conduct concerning Article XXI of the 
GATT 1947, paras. 1.11 – 1.14 with regard to the views expressed by several US agencies in 1951 in United 
States – Imports of Dairy Products  (1951).  
4 Exhibit USA -41, pp. 20-21. 
5 Panel Report, Russia – Traffic in Transit , paras. 7.52 and 7.103.  
6 Panel Report, Russia – Traffic in Transit , para. 7.79.  
7 Panel Report, Russia – Traffic in Transit , para. 7.103 and fn 183.  WT/DS556/R/Add.1  
 
- 57 - 
 
  States has not specifically asserted that it is inv oking Article XXI(b)(iii), it is unimaginable that any 
other sub -clause of XXI(b) could apply in the facts and circumstances of the present dispute.  
7. Further in the 1982 Decision Concerning Article XXI of the General Agreement (1982 
Decision)8 the cont racting parties decided that a 'formal interpretation of Article XXI ' was yet to be 
taken and, in the meanwhile, 'all contracting parties…retain[ed] their full rights under the General 
Agreement ' and the GATT Council would give 'further consideration to th is matter in due course '. 
Since this was a later and more specific agreement, which expressly resolved to keep the 
interpretation of Article XXI open -ended and subject to further consideration, any purported 
agreement which predated the 1982 Decision limiting the rights of parties to the GATT to this extent 
would be modified or set aside by the 1982 Decision. Accordingly, Article 31(3)(c) of the VCLT gives 
precedence to the 1982 Decision on the interpretation of Article XXI of GATT 1994.9 
III. Interpretation of Article XXI(b) of the GATT 1994  
8. India considers that the phrase "which it considers " appearing in Article XXI(b) does not qualify 
the three subparagraphs of Article XXI(b). The subparagraphs only relate to the word "action " in the 
chapeau. In other words, the three subparagraphs identify circumstances (the first two identifying 
the types of goods and the third being a temporal circumstance) which must objectively be met in 
order for a Member to take action under the chapeau . India consi ders that the phrase "which it 
considers " relates only to the "necessity " of the action. Per contra , India is of the view that the 
phrase "for the protection of [that Member 's] essential security interests " is not qualified by the 
terms "which it considers ". 
9. India acknowledges that the words "which it considers " imply that a certain degree of 
discretion is granted to the Member taking action . Accordingly, the standard of review would be 
somewhere between "total deference " and "de novo " review, both of wh ich are excluded10. It implies 
that the United States must provide a rationale and plausible explanation regarding how or why it 
considers that its measures are "necessary " for the protection of its essential security interests. It 
is not India 's position  that the panel make a judgment on what the panel itself "considers " is 
"necessary " in the circumstances.  
10. India also considers that the three subparagraphs to Article XXI(b) are exhaustive of the 
circumstances  covered by that provision. Article XXI(b) does not include any language to suggest 
that the three paragraphs are merely illustrative. In that regard, it  may be observed that Article XX 
of the GATT 1994 containing "General Exceptions " similarly includes ten subparagraphs numbered 
(a) to (j) without conjunction between the ten subparagraphs. The ten categories are exhaustive, 
implying that in order to be ju stified under Article  XX, a measure must necessarily fall "under at 
least one of the ten exceptions listed under Article  XX".11  
11. India further considers that the words "relating to " in subparagraphs (i) and (ii) and "taken in 
time of " in subparagraph (iii) are words linking each subparagraph to the word "action " in the 
chapeau. Accordingly, there must be a substantive nexus between particular subparagraph, the 
challenged measure and the security interests in question.  
12. Finally, India considers that each of the three subparagraphs of Article XXI(b) is a relevant 
context for the interpretation  of the other two subparagraphs. The chapeau  is also relevant context 
for interpreting the subparagraphs. In particular, the three s ubparagraphs suggest that purely 
economic interests would not fall within the scope of Article XXI(b)12. India submits  that the phrase 
"other emergency in international relations " in Article XXI(b)(iii) must be interpreted on the basis of 
its ordinary mea ning in light of its context.13 The panel in Russia – Traffic in Transit , explained that 
 
8 Decision Concerning Article XXI of the General Agreem ent dated 30 November 1982, L/5426 at recital 
3 and para 3 (2 December 1982).  
9 International Law Commission, ‘Conclusions of the work of the Study Group on the Fragmentation of 
International Law: Difficulties arising from the Diversification and Expansion  of International Law 2006’ UN 
Doc. A/73/10, p. 180, paras 17; VCLT, Articles 30, 41.  
10 Appellate Body Report, EC – Hormones , para. 115.  
11 Appellate Body Report, Brazil – Tyres , para. 139. See also, Appellate Body Report, Indonesia – Import 
Licensing Reg imes, para. 5.96; Appellate Body Report, China – Raw Materials , para. 354; Appellate Body 
Report, EC – Seal Products , para. 5.169; Appellate Body Report, US – Gasoline , para. 57.  
12 Panel Report, Russia – Traffic in Transit , paras. 7.75 and 7.133.  
13 Panel Report, Russia – Traffic in Transit , paras. 7.71 -7.76. WT/DS556/R/Add.1  
 
- 58 - 
 
  political or economic differences between Members are not sufficient, of themselves, to constitute 
an emergency in international relations for purposes of subparagrap h (iii) ….. unless they give rise 
to defence and military interests, or maintenance of law and public order interests .14 Accordingly , 
for emergency in commercial or trade relations to be covered by Article  XXI(b), it must pose a threat 
to the functioning and/or stability of the respondent state, including the maintenance of law and 
public order. Further, the use of the word "other " clearly "indicate[s] that war is one example of the 
larger category of 'emergency in international relations '".15 Thus, the phrase "or other " makes clear 
that the situation of "emergency in international relations " is of the same category as that arising in 
the context of "war".  
13. Finally, India submits that three subparagraphs are not cumulative in nature. The 
subparagraphs describe three distinct circumstances in which a Member may invoke Article XXI(b). 
The intent of the drafters  is reflected in the structure of that provision, which contains three separate 
subparagraphs, that are separated by a semicolon and de al with substantially different subject 
matters16. This interpretation has been confirmed by the panel in Russia – Traffic in Transit17. The 
United States is therefore required to identify a specific subparagraph of Article XXI(b) on which it 
relies as p art of its defence. The respondent may, if it wishes, rely on more than one subparagraph. 
However, it must demonstrate that the conditions in each of the subparagraphs is satisfied.  
IV. Exception to an Exception under the GATT 1994  
14. India submits that the text and context of GATT 1994 do not support the proposition that the 
agreement provides an exception to an exception, i.e. specifically put, it is India 's view that Article 
XXI(b) cannot be an exception to Article XIX. In this regard, India supports t he interpretation 
proposed by Switzerland18. During the course of the substantive meeting India had argued that 
Article XIX and XXI are separate mechanisms which allow Members to derogate from their general 
obligations under GATT to address exceptional si tuations - economic emergency under XIX and 
security interests under Article XXI. The general obligations could be, for instance, obligations under 
Article I or Article II.  
15. India further submits that assuming without conceding that the proposition adv anced by the 
United States that Article XXI(b) is an exception to Article XIX, is tenable, the result would be merely 
a "release " for the United States from certain substantive and procedural obligations contained in 
Article XIX and the Agreement on Safegu ards. This is because when a respondent seeks to apply 
Article XXI(b) as an exception to Article XIX, it makes two implicit admissions – (a) that the measure 
is indeed a safeguard measure; and (b) that by applying Article XXI(b), it is not required to foll ow 
the disciplines contained in Article XIX and the Agreement on Safeguards. As a result, the 
Complainants would then be free to apply rebalancing measures pursuant to Article 8.3 because the 
respondent has already admitted that the measure at issue does n ot confirm to the provisions of 
Agreement on Safeguards.  
 
 
 
14 Panel Report, Russia – Traffic in Transit , para. 7.75.  See also , paras. 7.71 -7.76. 
15 Panel Report, Russia – Traffic in Transit , para. 7.72.  
16 Panel Report, Russia – Traffic in Transit , para. 7.68.  
17 Panel Report, Russia – Traffic in Transit , para. 7.68.  
18 Opening Statement of Switzerland at the First Substantive Meeting of the Panel, US – Steel and 
Aluminium Products (DS556) , paras. 111 – 119.   WT/DS556/R/Add.1  
 
- 59 - 
 
  ANNEX C-5 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN  
I. INTRODUCTION  
1.  Japan does not take a position on the merits of the claims and defenses that are before the Panel.  
However, Japan has a systemic interest in the scope of application of the Agr eement on Safeguards 
and the availability  of non -violation remedies when measures are justified under the security 
exception in Article XXI of the General Agreement on Tariffs and Trade 1994 ( "GATT 1994 "). 
II. SCOPE OF APPLICATION OF THE AGREEMENT ON SAFEG UARDS  
2.  A "safeguard measure " is not a defined term or notion. Thus it seems to have limited value to 
try to draw a line of what is a safeguard measure and what is not.  Japan therefore disagrees with 
the view that a measure is a safeguard measure when i t contains certain elements, because such a 
view is based on the premise that there is a definition for "a safeguard measure ".  In order to 
determine whether a measure can be characterized as a safeguard measure for purposes of 
Article  XIX of the GATT 1994  and the Agreement on Safeguards, various factors should be considered 
on a case by case basis taking into consideration all relevant factors.   
3.  Notifications submitted by WTO Members are an example of a factor that may be relevant in 
certain cases.  A lthough notifications are not a prerequisite for the applicability of the safeguard 
disciplines to a measure, notifications indicate that the relevant measure is taken to remedy "serious 
injury or threat thereof. "  This provides some indication that the me asure was designed to prevent 
or remedy serious injury and thus should be considered as one of the relevant factors when 
determining the applicability of the safeguard disciplines.  
4.  While notifications are an example of a relevant factor that may be con sidered to determine the 
applicability of safeguard disciplines, a WTO Member’s formal "invocation " or its intention to exercise 
the rights under Article XIX of the GATT 1994 is not a necessary  factor for the safeguard disciplines 
to app ly.  In fact, WTO p anels and the Appellate Body have generally avoided relying on a WTO 
Member’s subjective intent.1  However, the Panel may consider the objectives pursued as reflected 
in the measure itself or in statements made by the Member taking the measure.  
5.  Ultima tely, a panel must look at all of the evidence available to ensure that a WTO Member is 
not seeking to avoid the disciplines of Article XIX and the Agreement on Safeguards, or to frustrate 
other WTO Members’ right to rebalancing measures.  It is likewise i mportant to consider all of the 
evidence, because otherwise, potentially, the Agreement on Safeguards could be applied to any 
measure raising the tariff above the Article II tariff bindings, including anti -dumping measures.  This 
is particularly so given t hat a tariff by its nature only applies to imports, and thus even in the case 
of anti -dumping measures, the allegation could be made that they are a remedy for injury suffered 
by the domestic industry.  
6.  The terms "to suspend the obligation in whole or in part or to withdraw or modify the concession " 
under Article XIX of the GATT 1994 are not necessarily synonymous with violations of the GATT 
1994.  That is, it may be possible to determine that a Member withdrew or modified a concession 
without assessing  whether there is a violation.  Having said that, Japan recognizes that the 
determination of violation could turn out to be merely a consequential step that does not require 
much in terms of additional analysis.  If the measure does not comply with the saf eguard disciplines 
under Article XIX of the GATT 1994 and the Agreement on Safeguards, then consequently, it will be 
found simply to violate a GATT 1994 obligation.   
7.  A measure may have multiple objectives.  For example, a measure may be taken for nati onal 
security purpose as well as to prevent or remedy serious injury to domestic industries.  In such 
cases, the application of Article XXI of the GATT 1994 as well as the Agreement on Safeguards may 
need to be considered, respectively.  If a measure can b e justified pursuant to Article XXI of the 
 
1 See, for example, Appellate Body Report, US – COOL , para. 420.  WT/DS556/R/Add.1  
 
- 60 - 
 
  GATT 1994, there is no need to justify the measure pursuant to Article XIX of the GATT 1994 and 
the Agreement on Safeguards.  Article  11.1 (c) clarifies that measures that are in conformity with 
Article XXI of the  GATT 1994, should not be prohibited by Article 11.1(b) of the Agreement on 
Safeguards and that such a measure need not be in accordance with the Agreement on Safeguards.  
In this regard, Article 11.1(c) is one of the articles in the WTO Agreement that see k to avoid 
situations where a measure that is WTO -consistent under one of the covered agreements becomes 
WTO inconsistent under another agreement.  
8.  On the other hand, when the measure at issue is not justified under Article XXI of the GATT 1994, 
the sit uation is more complex and a case -by-case analysis would be required.  If the measure can 
be characterised as a safeguards measure, considering all relevant factors, the safeguard disciplines 
should be considered.  If the measure falls under Article 11.1(b ) of the Agreement on Safeguards, 
the measure should be withdrawn as such a measure is prohibited.  Japan notes that in some cases, 
it may be unclear whether the measure at issue can be justified as a safeguard measure or whether 
it falls under the measure s that are prohibited under Article 11.1(b) of the Agreement on Safeguards.  
In such a case, it would be necessary to engage in a case -by-case analysis, considering various 
factors to determine whether the measure is one of those that is prohibited or whet her the measure 
can be characterised as a safeguard measure.   
III. NON-VIOLATION CLAIMS AGAINST SECURITY MEASURES JUSTIFIED UNDER ARTICLE  XXI( B) OF THE 
GATT  1994  
9.  While Japan does not take a view on whether the measures at issue are justified under 
Article XXI(b) of the GATT 1994, Japan does not consider that the potential availability of a non -
violation remedy, in and of itself, provides a basis for concluding that Article XXI(b) is self -judging, 
as suggested by the United States.   
10.  Japan consider s that, if a measure that otherwise would be inconsistent with the GATT 1994 
satisfies the security exception in Article XXI, then the appropriate conclusion to draw is that the 
measure does not conflict with the GATT 1994.  This does not mean, however, th at a non -violation 
finding under Article  XXIII:1(b) can always be made against such measures.  Indeed, there are 
several textual and contextual elements that appear to suggest that measures that satisfy Article 
XXI are very unlikely to be subject to a non -violation remedy or, at the very least, that a complaining 
party would have to overcome a high burden before succeeding in a non -violation claim in such 
circumstances.    
11.  First, Article XXI(b) permits a WTO Member to take measures that would otherwise  be deemed 
inconsistent with the GATT 1994 in order to address essential national security risks.  The purpose 
of the security exception under Article XXI(b) of the GATT 1994 would be frustrated if it were the 
case that security measures justified under Ar ticle XXI(b) were unvaryingly found to nullify or impair 
benefits accruing to other Members, or to impede the attainment of the objectives of the GATT 1994.   
12.  The exceptional nature of the non -violation remedy also weighs against applying a presumptio n 
that security measures justified under Article XXI(b) nullify or impair benefits or impede the 
attainment of objectives under the GATT 1994.  In Japan’s view, the very existence of a specific 
exception under Article  XXI(b) might indicate that WTO Members  did not necessarily expect that 
they would be challenged for actions that are properly justified under that exception.     
13.  Article XXIII:1 requires a panel examining a non -violation claim under Article XXIII:1(b) to 
assess whether there was a reasona ble expectation, at the time that market access commitments 
were negotiated, that the WTO -consistent measure at issue would not be taken.2  Given that WTO 
Members agreed that security measures taken under Article XXI(b) are permissible, they clearly 
conte mplated the possibility that the security exception would be invoked and thus should be 
deemed to have reasonably expected that Members would have recourse to such an exception.  
Japan is of the view that WTO Members cannot reasonably expect that other Mem bers will never 
rely on Article XXI( b) to justify measures otherwise inconsistent with GATT obligations.  
14.  It is by no coincidence that during the GATT -era, non -violation claims were mostly used to 
address subsidy measures, since at that time, explicit subsidy rules were not in place except for 
 
2 See Panel Report, Japan – Film, paras. 10.76 -10.77.  WT/DS556/R/Add.1  
 
- 61 - 
 
  export subsidies.  This situation arose not because the Contracting Parties agreed not to discipline 
subsidy measures, but because the Contracting Parties could not agree on the rules.  Thus, "non-
violation claims " were used to address issues that lacked explicit rules.  Unlike such circumstances 
where there was lack of explicit rules,  Article XXI contains explicit rules for security exceptions.  If 
a measure fully satisfies the explicit rules in Article XXI, it wo uld not be reasonable to expect that 
such measures could not be taken, and thus such a measure would not result in being subject to 
non-violation remedy.  
 WT/DS556/R/Add.1  
 
- 62 - 
 
  ANNEX C -6 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NEW ZEALAND  
I. INTRODUCTION  
1. New Zealand 's participation in this dispute reflects its systemic interest in the proper 
interpretation of Article XXI(b) of the General Agreement on Tariffs and Trade 1994 ( GATT ).  Article 
XXI(b) is being called upon by Members in a way that it has not been in the past.  In this changing 
climate, i t is imperative that Article XXI(b) is interpreted in a principled and robust manner that both 
preserves its utility and also guards against its abuse.   
2. Article XXI(b) performs an important function.  It permits Members to take measures that 
would othe rwise conflict with trade obligations in order to protect certain essential security interests, 
and grants Members a degree of latitude to determine where this is necessary.  This is not without 
limit, however.  Article XXI(b) contains elements that are su bject to objective review by a panel.  
Further, like all treaty provisions, Article  XXI(b) must be applied in good faith.  Whether this good 
faith obligation has been fulfilled is also a matter that is open to panel review.  These limiting features 
maintai n the utility of the national security exception for Members, while still preserving the security 
and predictability of the international trading system and protecting Article  XXI(b) against misuse.  
II. SCOPE OF PANEL REVIEW UNDER ARTICLE XXI(b) GATT  
3. Article XXI(b) GATT provides that:  
Nothing in this Agreement shall be construed  
…  
(b) to prevent any contracting party from taking action which it considers necessary for the 
protection of its essential security interests:  
(i) relating to fissionable materials or the materials from which they are derived;  
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on directly or indirectly for the purpose of 
supplying  a military establishment;  
(iii) taken in time of war or other emergency in international relations;  
4. A key issue in this dispute is the extent to which Article XXI(b) retains Members ' discretion 
to determine the matters contained in that provision, and  the extent to which action taken in reliance 
on it can be reviewed by a panel.   As a preliminary point, it can be noted that this is not a question 
of justiciability.  The fact that a provision fully or partially defers to the judgment of a Member will 
not, in itself, render conduct taken under that provision non -justiciable.  As discussed further below, 
all treaties must be applied and performed in good faith.1  Whether this obligation of good faith has 
been met is a justiciable matter susceptible to pa nel review.  The degree of discretion retained by 
Members under Article XXI(b) will, however, impact upon the nature of a panel 's assessment of that 
conduct.  An examination of the scope of this discretion is therefore an appropriate place to start 
our int erpretation.   
Article XXI(b) contains both elements that defer to Members ' own judgment and elements 
that are capable of objective review by a panel  
5. The starting point to the interpretation of Article XXI(b) is the phrase 'which it considers ' 
contained  in the chapeau.  It is clear from the words directly preceding the phrase, that the term 'it' 
 
1 Vienna Convention on the Law of Treaties, Articles 31(1) and 26; Appellate Body Report US – Shrimp , 
at para  158.   WT/DS556/R/Add.1  
 
- 63 - 
 
  is a reference to the relevant contracting party.  To 'consider ' means “to contemplate mentally, fix 
the mind upon; to think over, meditate or reflect on, bestow  attentive thought upon, give heed to, 
take note of”.2  This is an inherently subjective exercise.  The use of 'which it considers ' in the 
chapeau to Article XXI(b) signals that what is being referred to is a subjective assessment to be 
carried out in goo d faith by the relevant contracting party.  
6. The phrase 'which it considers ' qualifies both the assessment of the 'necessity ' of the action 
taken and the determination of the invoking Member's 'essential security interests '.  This is clear 
from the structure of the chapeau to Article XXI(b).  The terms in the chapeau run one after the 
other.  There is no grammatical or formatting division suggesting the phrase 'which it considers ' 
applies only to the term 'necessary ' and not  to 'for the protection of its essential security interests '.  
This is further supported by the use of the term 'its' before 'essential security interests '.  The chapeau 
is not referring to essential security interests in the abstract, it is referring to t he essential security 
interests of the particular Member invoking Article XXI(b).   It would be artificial to suggest that any 
entity other than a Member can determine that Member 's essential security interests.  It is for a 
Member, acting in good faith, t o determine its essential security interests, and the measures 
necessary to protect those interests.    
7. As recognised by the Panel in the recent decision Russia – Traffic in Transit , the phrase 
'which it considers ' does not qualify the three subparagrap hs to Article XXI(b).  Unlike the chapeau, 
the sub -paragraphs are framed in objective terms.  As noted above, the chapeau uses 'it considers ' 
and 'its essential security interests ' to indicate that these are subjective matters left to the judgment 
of a Mem ber.  In stark contrast, the subparagraphs are framed in purely objective terms: whether 
the measures relate to fissionable materials; whether the measures relate to military materials; 
whether the measures were taken in a time of war or emergency in inter national relations.  This 
reflects a deliberate effort to differentiate between those elements that are to be subjective and left 
to the judgment of a Member, and those that are objective requirements, subject to determination 
by a panel.   
8. This interpr etation is supported by the context of Article XXI(b), in particular, 
Article  XXI(a), which provides that contracting parties shall not be required to furnish information 
the disclosure of which it considers contrary to its essential security interests.  A n objective 
assessment of a Member 's asserted security interests and the necessity of action taken for their 
protection could require a panel to be provided with information contrary to Article XXI(a).  
9. This interpretation is also supported by the objec t and purpose of the GATT.  The general 
object and purpose of the GATT, as well as the Marrakesh Agreement Establishing the World Trade 
Organization, is to 'promote the security and predictability of the reciprocal and mutually 
advantageous arrangements an d the substantial reduction of tariffs and other barriers to trade '.3  A 
number of provisions, including Article XXI(b), permit Members to take measure that would 
otherwise conflict with trade obligations in order to protect other interests.  While these provisions 
grant Members a degree of flexibility, they contain in -built limits to preserve the security and 
predictability of the trading system and protect against abuse.   The three subparagraphs to 
Article  XXI(b) perform this important limiting function  by delineating the factual circumstances in 
which Article XXI(b) can be invoked.  As noted by the Panel in Russia – Traffic in Transit , it would 
be “entirely contrary” to the security and predictability of the multilateral trading system established 
by the above agreements to interpret Article XXI(b) as “an outright potestative condition, subjecting 
the existence of a Member's GATT and WTO obligations to a mere expression of the unilateral will of 
that Member”.4 
10. Accordingly, whether the factual circum stances set out in one of the sub -paragraphs to 
Article  XXI(b) exist is a matter subject to objective panel review.  In carrying out this review, a panel 
should take into account the particular factual circumstances relevant to the invoking Member.  It 
would be unhelpful to attempt to prescribe the scope of each of the factual circumstances contained 
in the sub -paragraphs.  Whether a particular set of facts falls within the sub -paragraphs is a matter 
to be assessed on a case by case basis.   An overly formu listic approach to the interpretation of the 
 
2 www.oed.com . Last accessed 04 July 2019.   
3 See Appellate Body Report, EC – Computer Equipment , at para 82; Appellate Body Report  EC – 
Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US), at para  433; Appellate Body 
Report  EC – Chicken Cuts , at para 243.   
4 Panel Report,  Russia – Traffic in Transit , at para 7.79.  WT/DS556/R/Add.1  
 
- 64 - 
 
  circumstances described in the sub -paragraphs could unduly limit the scope of Article  XXI(b) and, 
in doing so, undermine its utility.  The terms of Article  XXI(b) are not static.  They must be read by 
a treaty i nterpreter in the light of contemporary concerns of the community of nations.5  The degree 
to which the existence of these factual circumstances must be substantiated by the Member relying 
on Article XXI(b) will also depend on the circumstances.   
Members  are obliged to perform their obligations under Article  XXI(b) GATT in good faith  
11. It is a principle of general international law that all treaty provisions must be interpreted 
and performed in good faith.6  This obligation of good faith arises irrespe ctive of whether a provision 
defers to the judgment of Members or is subject to objective review by a panel.   
12. The obligation to perform a treaty in good faith requires Members to not use the exceptions 
in Article XXI(b) as a means to circumvent its ob ligations under GATT.7   In carrying out an 
assessment of conduct taken in reliance on Article XXI(b), a panel may consider whether this 
obligation of good faith has been met. There is no test, in the abstract, for how a panel should assess 
whether this o bligation of good faith has been met.  'Good faith ' is not a threshold, or a standard of 
proof, it is an assessment of the integrity of a Member 's performance of a particular treaty provision.  
This assessment will differ depending the facts and circumstan ces of the particular case.   In the 
context of Article XXI(b), it will likely involve consideration of the connections between the measure 
in dispute, the essential security interests engaged and the factual circumstances in the relevant 
sub-paragraph.  T he question for the panel is whether, in all relevant circumstances, the Member 's 
reliance on Article XXI(b) is a good faith performance of that provision.   
 
 
 
 
5 Panel Report, US – Shrimp , at para 129.  
6 Vienna Convention on the Law of Treaties, Articles 31(1) and 26; Appellate Body Report US – Shrimp , 
at para  158.   
7 Panel Report, Russia – Traffic in Transit , at para 7.133.  WT/DS556/R/Add.1  
 
- 65 - 
 
  ANNEX C -7 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY  
I. THE "JUSTICIABILITY " OF ARTICLE XXI(b) OF THE GATT 1994  
 
1. The United States accepts that the Panel has jurisdiction over this dispute, in the sense that 
the DSB has established the Panel to examine the matter set out in the panel request.1   However, 
the United States asse rts that the Panel cannot undertake any meaningful review of the US actions 
that are purportedly justified under Article XXI(b),2 because, based on its terms, "whether and what 
circumstance action is necessary to protect its essential interests " is entirely "self-judging ", by virtue 
of the phrase "which it considers ".3  
2. In sum, the United States argues that Article XXI(b) establishes a right – to take GATT -
inconsistent security measures – with no scope whatsoever for a panel to review the obl igations and 
conditions that qualify that right.  Thus, the dispute is subject to the Panel 's jurisdiction , but the 
Panel may not undertake an objective review, by virtue of the phrase "which it considers ". 
3. Norway strongly disagrees with this argument b y the United States.  If mere invocation of 
Article  XXI(b) would render a claim "non-justiciable ", this would allow easy circumvention of WTO 
obligations. If a respondent could effectively bar a panel, that the United States acknowledges enjoys 
jurisdictio n, from undertaking objective review by mere invocation of a security exception, this would 
give "carte blanche " for WTO Members to unilaterally set aside the rules that the legitimacy of the 
rule-based system rests on. A respondent could invoke a variety of protectionist interests under the 
guise of national security, and thereby avoid scrutiny of its WTO -inconsistent measures altogether. 
Such a measure could violate any of the Member 's WTO obligations, and a WTO panel would be 
barred from making any findi ngs of inconsistency.  An interpretation of Article XXI(b), which had 
this effect, would render all the obligations in the GATT 1994 effectively unenforceable.  
4. Moreover, if the intentions of the negotiators were for the panel to have no authority to assess 
a Member 's invocation of a security exception provision, one would also have expected such an 
important and significant matter be expressly provided for.4  
II. ORDER OF ANALYSIS UNDER ARTICLE XXI(b) OF THE GATT 1994  
 
5. Article XXI(b) operates to justify certain GATT -inconsistent action, using the same language 
as Article  XX:  "nothing in this Agreement shall be construed to prevent any Member from taking 
any action which… ". Hence, Article XXI(b) is, just like Article XX, an affirmative  defence to a violation 
of the GATT 1994. Under Article XX, panels and the Appellate Body have, without exception, 
addressed first whether the complainant has made out its claims of WTO -inconsistency; and second 
whether the respondent has made out its affi rmative defence that the measures are justified. This 
is because an affirmative defence is only relevant where a panel has found a violation. If there is no 
violation, then the relevant exceptions provision has no operative role; there is nothing to justif y in 
the first place. Logically, therefore, where a respondent invokes Article XXI(b), the panel should first 
confirm whether there is a violation; and second whether the violation is justified.  
6. Moreover, it is well -accepted, from jurisprudence under Ar ticle XX of the GATT 1994, that it is 
the WTO -inconsistent aspect of the measure – and not the measure as a whole – which must be 
justified.5 Of course, a panel cannot identify the WTO -inconsistent aspects of a measure that would 
require justification, un til it has addressed the claims. Hence, in our view, it is clear that the same 
reasoning must apply with respect to the other exceptions provisions applicable under the GATT 
1994. By contrast, if a panel were obliged to address Article XXI(b) before addres sing the claims, it 
 
1 The United States' first written submission, para. 184.  
2 The United States' first written submission, para. 184.  
3 The United States' first written submission, para. 3.  
4 The “justiciability” of the security exceptions is also supported by the GATT Council Decision 
Concerning Article XXI of the General Agreement, 30 November 1982, L/5426.  
5 Appellate Body Report, US – Gasoline , pp. 13 -14; Appellate Body Report, Thailand – Cigarettes , para. 
177; Appellate Body Reports, EC – Seal Products , para. 5.185.  WT/DS556/R/Add.1  
 
- 66 - 
 
  would also have to assess whether the measures are justified in a vacuum, without yet having 
determined which aspects of the measures are WTO -inconsistent.  
III. BURDEN OF PROOF UNDER ARTICLE XXI (b) OF THE GATT 1994  
7. Article XXI(b) o f the GATT 1994 is an affirmative defence, just like Article XX. The Appellate 
Body has found that the burden for establishing limited exceptions in the GATT 1994 lies with the 
party asserting the defence.6 Hence, a respondent invoking an affirmative defe nce must bear the 
burden of proving that the applicable conditions are met. If the respondent does not take on that 
burden, beyond invoking an exception, a panel should not proceed to consider the merits of the 
exception.  
8. Consequently, if the complaina nt establishes that a measure imposed by the respondent is 
inconsistent with the provisions of the GATT 1994, and the respondent does not make a prima facie  
case that those measures are justified under Article XXI, the panel must, as a matter of law, rule in 
favour of the complainant. In our view, the panel in Russia – Traffic in Transit  failed, in effect, to 
treat Article XXI(b) of the GATT 1994 as an affirmative defence. The respondent in that dispute 
argued only that the security exception is not "justic iable", and did not adduce evidence and 
argument on the merits.  In those circumstances, the panel should have found that the respondent 
did not make its case, and found in favour of the complainant.   
IV. STANDARD OF REVIEW UNDER ARTICLE XXI (b) OF THE GA TT 1994  
9. The United States agrees that the Panel has jurisdiction over this matter.7  However, the 
United States takes the radical position that, because it has invoked Article XXI(b) of the GATT 1994, 
the Panel cannot make any substantive findings.  In  other words, while the Panel has jurisdiction, 
its review is empty of any substantive content.   
10. In any given dispute, the standard of review under Article 11 "must be understood in light of 
the specific obligations of the relevant agreements that are  at issue in the case ".8  To give effect to 
the chosen terms of Article XXI(b), and to the obligation to make an "objective assessment ", the 
Panel must reject the US position that the appropriate standard of review under Article XXI(b) is 
total deference to the respondent.  
V. INTERPRETATION OF ARTICLE XXI(b) OF THE GATT 1994  
11. The US position that Article XXI(b) is self -judging rests o n two incorrect interpretive premises: 
first, the phrase "which it considers " applies to the subparagraphs of Article XXI(b); and second  the 
phrase renders any other terms to which it attaches "self-judging ". In Norway´s view, however, the 
subparagraphs of  Article XXI (b) are not qualified by "which it considers " and the chapeau is not 
"self-judging " by virtue of the terms "which it considers ".  
A. The subparagraphs of Article XXI(b)  
12. The US first interpretive error is to misunderstand the relationship between the chapeau  and 
the subparagraphs.  The United States argues that subparagraphs (i) and (ii) qualify the term 
"essential security interests " in the chapeau , and not the word "action ".9  On this basis, the United 
States (incorrectly) argues that ea ch subparagraph must be understood as simply endings to a 
sentence that begins with "which it considers ".  The United States thereby injects the verb "consider " 
from the chapeau  into the subparagraphs.  As a result, for the United States, the fulfilment of  the 
legal conditions in the subparagraphs depends entirely on a respondent 's subjective "consideration ".  
The United States is wrong.  
13. Properly interpreted, each of the three subparagraphs qualifies the word "action ", and not the 
words "essential security interests ".  This follows from the text, context, object and purpose, and 
negotiating history of Article XXI(b).  In particular, the US view is irreconcilable with the Spanish 
 
6 Appellate Body Report, US – Wool Shirts and Blouses , p. 14.  
7 The United States' first written submission, para. 184.  
8 Appellate Body Report, US – Softwood Lumber VI (Artic le 21.5 – Canada) , para. 92; Appellate Body 
Report, US – Countervailing Duty Investigation on DRAMS , para. 184.  
9 The United States' first written submission, paras. 29 -34. WT/DS556/R/Add.1  
 
- 67 - 
 
  version of the text, in which the term "relativas " (relating) can only qualify the word "medidas " 
("action "); and, the chapeau / subparagraphs are broken by a comma.  
14. The chapeau  / subparagraph relationship has important implications for the Panel 's approach 
under Article XXI(b).  Specifically, as a consequence of the relationship, a Member 's "action " under 
Article XXI(b) is subject to two sets of distinct and independent conditio ns:  
(1) the "action " must "relate to " the specific circumstances set forth in subparagraph (i) 
or (ii), or be "taken in time of war or other emergency in international relations ", 
under subparagraph (iii); and,  
(2) it must be "action " that the Member "considers necessary " for the protection of its 
essential security interests.  
15. As a first step, therefore, a panel must make an objective assessment of whether the Member 
has demonstrated that the "action " meets the circumstances / situation in at least one  of the 
subparagraphs.  Textually, the phrase "which it considers " is not part of this step.  Therefore, a 
Member 's demonstration that it fulfils the conditions in the subparagraphs is not subject to a more 
forgiving standard of review flowing from the ver b "consider " in the chapeau .   
16. The United States has not identified a subparagraph of Article XXI(b), let alone substantiated 
that its actions meet the terms of any of the subparagraphs.  The United States therefore fails to 
make a prima facie  case, and the Panel 's analysis may stop at the first step.  
B. The chapeau  of Article XXI(b)  
17. The US second interpretive error relates to the second step of the Panel 's analysis: is the 
measure "action " which the Member "considers necessary " for the pro tection of its essential security 
interests?  The United States is wrong that the legal effect of the terms "which it considers " is that, 
in assessing this question, a panel must afford total deference to the respondent.   
18. Norway agrees that the phrase  "which it considers " means a panel should afford the 
respondent a degree of deference.  However, a standard of "total deference ", with no scrutiny 
whatsoever of a Member 's action, fails to give effect to the chosen treaty terms, and the requirement 
of "objectivity " under Article 11 of the DSU.   
19. The verb "consider " has a specific meaning: to "look attentively "; and, in transitive form, "to 
contemplate mentally, fix the mind upon ".10  Thus, the verb "considers " in the chapeau  of Article 
XXI(b) establis hes an obligation for a Member to undertake an attentive examination that the legal 
conditions in the chapeau  are met.   
20. Indeed, the surrounding words "necessary ", "for the protection of ", and "essential " each have 
their own specific meaning, and establish legal conditions that constrain the types of action that a 
respondent may take.  The treaty interpreter cannot interpret two words in the chapeau  in a way 
that deprives the surrounding context of meaning .   
21. By way of contrast, the drafters could have chosen a different verb than "considers ", and 
different surrounding words.  For example, Article XXI(b) could have permitted a Member to take 
any action which it "declares necessary for the protection of its essential security interests "; or, 
which it "considers, in its judgment, fruitful to its security interests ".  The more open -ended language 
in each example would connote a far greater degree of discretion than the language the drafters 
actually chose.  
22. The US interpretation of the chapeau as "self-judging " therefore reduces the chapeau 's 
disciplines to inutility, and overrides Article 11 of the DSU.  If the Panel accepts that Article XXI(b) 
is "self-judging ", a Member could justify any action under the chapeau , however spurious its national 
security justification, thereby circumventing its GATT 1994 obligations, and defeating the object and 
purpose of the GATT 1994.  
 
 
 
10 Oxford English Dictionary definition of “consider”, last accessed 4 November 201 9, (Exhibit NOR -
27). WT/DS556/R/Add.1  
 
- 68 - 
 
  ANNEX C -8 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE RUSSIAN FEDERATION  
I. Introduction  
Russia welcomes this opportunity to present its views as a third party in these disputes.  
Russia recalls that seven Members challenge the US' import adjustments on steel and 
aluminium products in parallel disputes.1 The proper legal characterization of these measures is at 
the heart of e ach of them. The reasons and grounds for adopting the measures at issue are not 
country -specific and are applicable to all complaints, showing a significant overlap between these 
disputes.  
While the Russian Federation recognizes the exclusive right of the respondent to choose its 
line of defense, the US ignored and, therefore, failed to rebut complainants` specific arguments 
regarding inconsistency of the measures at issue with the GATT 1994 and the Agreement on 
Safeguards merely asserting that these me asures are consistent with Article XXI (b) of the GATT 
1994. In this regard, Russia stands that (i) the US failed to invoke Article XXI(b) of the GATT 1994 
to justify the measures at issue as necessary for protection of its essential security interests; (i i) the 
measures at issue are safeguards in their essence.  
II. The task of the Panel and the order of analysis  
The complainants in each of the seven disputes claim that the measures by the United States 
on certain steel and aluminium products fall within  the scope of the Agreement on Safeguards and 
Article XIX of the GATT 1994. The United States, on the other hand, does not characterize its 
measures on steel and aluminium as safeguard measures: according to the United States, the 
measures were introduced pursuant to Section 232 of the Trade Expansion Act of 1962, aimed at 
protection of national security interests and fortification of steel and aluminium industries .  
The fact that the measures at issue are not characterized by the United States under the  
domestic law as safeguards is, in and of itself, not dispositive of the question of whether the 
measures constitute safeguards within the meaning of Article 1 of the Agreement on Safeguards. 
Otherwise,  the domestic characterization of a measure could nega te Member 's obligations under the 
WTO agreements.  
In such a situation, the Panel`s first task is to determine whether or not the measures at issue 
are designed: 1) solely to protect essential security interests of the United States; 2) solely to avoid 
injury (or threat thereof) to its national steel and aluminum industry from imports of like or directly 
competitive products; 3) combination of both items.   
If the Panel positively concludes that the measures at issue fall solely under the first scenari o 
(protection of essential security interests of the United States ), it will be in a position to proceed 
with the analysis of the United States` defense  under Article XXI(b) of the GATT 1994. If the Panel 
determines that the measures are designed to protect the US domestic steel and aluminum  
industries from the injury or threat thereof caused by imports of like or directly competitive products,  
the Panel may proceed with examining their consistency with Article XIX of the GATT 1994 and the 
Agreement on Safeguards.  
To conclude, whether or not the measures by the United States qualify as measures provided 
for in Article XIX of the GATT 1994 or measures pr ovided for in Article XXI(b) of the GATT or both is 
an objective question that the Panel must decide based on the objective assessment that it is 
required to make pursuant to Article 11 of the DSU. In making its objective assessment, the Panel 
 
1 These parallel disputes over the legality of the United States' import adjustments on steel and 
aluminium products, are DS544 (China), DS547 (India), DS548 (EU), DS552 (Norway), DS554 (Russia), 
DS556 (Switzerland) and DS564 (Turkey).  WT/DS556/R/Add.1  
 
- 69 - 
 
  must engage in a case -specific analysis by examining all of the relevant facts and examine the 
constituent features of the measures at issue.  
III. Invocation of Article XXI(b) of the GATT 1994    
There is no disagreement between the parties that the panels have jur isdiction to resolve the 
disputes, as the US confirms its existence. The Panels were established by the DSB with the standard 
terms of reference in accordance with Article 7.1 of the DSU, without any exemptions, exceptions 
or limitations thereto. Therefore , the Panel 's function is to examine the matters set out in the panel 
requests and to make an objective assessment of the matter before it pursuant to Article 11 of the 
DSU, as well as the applicability of and conformity with the relevant covered agreement s assisting 
the DSB in making its findings and recommendations. Making any provisions "non-justiciable ", the 
way the US puts it forward, will directly prevent the Panel to meet this function.  
Nothing in the Panel 's terms of reference or in the WTO Agre ements indicates that this Panel 
is not able to resolve the disputes and make necessary findings, or that invocation of Article XXI(b) 
of the GATT 1994 affects in any way or limits the ability of the Panel to make such findings and 
therefore to assist the DSB in making relevant findings and recommendations.  
Specific attention should also be paid to the US attempts to introduce the concept of 
"justiciability " to the context of the WTO Agreement without providing any arguments based on the 
text of any of  the WTO Agreements, including the DSU, in order to support this concept. Given that 
the WTO Agreements do not provide for this concept, explicitly or implicitly, Russia would like to 
caution the Panel from taking the path of bringing a new term to the WTO  dispute settlement system 
and remind that the recommendations and rulings of the DSB cannot add to or diminish rights and 
obligations provided in the covered agreements. Introduction of a concept non -existent under the 
covered agreements clearly violates the provisions of Article 3.2 of the DSU.  
Turning to the substance of Article XXI(b) of the GATT 1994, Russia would like to notice the 
following. It starts with a chapeau ( "nothing in this agreement shall be construed ") followed by the 
list of actions that may not be prevented by the application of the GATT 1994. In the wording of the 
chapeau of this Article there are no limiting conditions under which the measure applied shall fall. 
On the contrary, the chapeau provides that there could be no limitatio ns in the Agreement for the 
specific purposes provided by that Article.  
The wording in this part of the said Article provides that it is the Member taking the action 
who determines which actions are necessary to protect its essential security interest s and excludes 
any objective examination or evaluation by adjudicative body. Therefore, the Panel is not in a 
position to make an objective determination as to whether the Member taking such an action is 
inconsistent with the chapeau.  
The adjectival c lause "which it considers " in the chapeau can be read to qualify the "necessity " 
of the action for the protection of the invoking Member`s essential security interests, as well as the 
determination of these "essential security interests ". 
Thus, Russia considers that it is within the sole discretion of a Member to determine its 
essential security interests and what actions are necessary for their protection. Should a Member 
consider certain actions necessary to protect its essential security interests, the declaration thereof 
by that Member is enough to satisfy the requirements of t he chapeau of Article XXI(b) of the GATT 
1994. Neither WTO panels nor the WTO itself have the right to determine the essential security 
interests for the Member, whether the Member correctly chose the action necessary to protect those 
security interests an d whether or not that action is indeed necessary.  
The presence of subjective element, however, does not preclude the panels to assess the facts 
related to the measures at issue, applicability of the GATT to the measures at issue and conformity 
of the measures at issue with the relevant provisions. The possible panel`s judgement that the term 
"which it considers " qualifies the determination of the essential security interests and necessity of 
the actions and, thus, leaves these elements under sole discr etion of the Members, does not prevent 
the Panel to finish its analysis and resolve the matter before it in a WTO consistent way.   WT/DS556/R/Add.1  
 
- 70 - 
 
  
Meanwhile, the compliance with Article XXI(b) of the GATT 1994 is conditioned by three 
distinct settings (subparagraphs i-iii). These subparagraphs and the way they are formulated 
represent the objective elements that are susceptible to the Panel's review au contraire  to the 
chapeau.  
The required nexus between a particular subparagraph and the measures (actions taken t o 
protect) is established through the phrases "relating to " (connection with subparagraphs (i -ii)) and 
"taken in time of " (connection with subparagraph (iii)).  
As a result, the Panel shall determine whether the measures at issue meet the requirements 
of either subparagraph. In order to do so, the Panel shall assess the legal arguments and evidence 
provided in support. A conclusion that the measures meet these requirements is a necessary 
prerequisite in order to establish whether they could be justified under the national security 
exceptions.  
However, Russia wishes to note that the US seems to have invoked only the chapeau of 
Article  XXI(b) of the GATT 1994 without indicating which particular subparagraphs out of three 
applies and why. The reading of  Article XXI(b) of the GATT 1994 proposed by the US makes part of 
this Article, i.e. subparagraphs (i) -(iii), redundant and inutile. However, the drafters of the 
GATT  1994 have specifically added the three subparagraphs qualifying the introductory statemen t, 
which must not be regarded as effectively absent in the text. The Panel bears the task of giving 
them their proper meaning.  
Thus, Russia is of a position that when invoking Article XXI(b) of the GATT the respondent is 
under obligation to identify a particular subparagraph of Article XXI(b) of the GATT 1994. The 
complainants and the Panel should not be left to guess whether the measures in question are related 
to any of subparagraphs. Mere reference to Article XXI(b) without any identification of a particular 
subparagraph or any combination of such subparagraphs strips these paragraphs of all the meaning 
and reduces the text of t he Article to its chapeau only.   
Therefore, in these proceedings, the Panel was deprived of an ability to assess in which 
particular circumstances the measures at issue were taken and examine whether these particular 
circumstances really exist within t he meaning of Article XXI(b)(i) -(iii). The US failed to fulfill its 
burden of proof and appropriately justify its defense.  
Although the US failed to identify relevant subparagraphs and provide any arguments why 
they are applied in relevant situation, Russia would like to note the following.  
None of the subparagraphs of Article XXI(b) of the GATT 1994 could be applied in the present 
situations since neither the relevant acts of the US, nor its submissions shed light on the close and 
genuine relatio nship between the measures in question and fissionable materials or the materials 
from which they are derived; or the traffic in arms, ammunition and implements of war and to such 
traffic in other goods and materials as is carried on directly or indirectly  for the purpose of supplying 
a military establishment. Neither the relevant acts of the US, nor its submissions elaborate on any 
chronological concurrence in case of the measures at issue and any war or any other emergency in 
international relations that required the US to take said measures.  
It is important to note that import adjustments on steel and aluminium (1) were implemented 
by the US through the same sources, same legal acts in respect of all the countries, (2) have the 
same reasoning and grou nds for all of the adjustments in respect of all the Members affected, (3) it 
is not possible to isolate the cause for adoption of the measures at issue for one particular WTO 
Member.   
Therefore, even if the Panel were in a position to engage into ana lysis of the applicability of 
any of the subparagraphs to any of the WTO Member in isolation, it would constitute an error since 
the measures at issue are not country -specific.  
To sum up, in Russia`s view the task of the Panel is (i) to conclude that t he chapeau of 
Article  XXI(b) of the GATT 1994 is a subjective element, remaining in the discretion of the sovereign 
state, limited by the obligation of good faith; (ii) to assess whether the defending Member acted in 
good faith while imposing and maintaini ng the measures at issue; (iii) to review whether the WT/DS556/R/Add.1  
 
- 71 - 
 
  defending Member met the requirements under subparagraphs. In respect of the latter, Russia is of 
the position that the US failed to establish a prima facie  case under Article XXI(b) of the GATT, as it 
failed to 1) refer to particular subparagraph, 2) provide all relevant evidence and explanations 
supporting that those actions taken for protection of the essential security interests (i) relate to 
fissionable materials, (ii) relate to traffic in arms, amm unition and implements of war, and/or (iii) 
were taken in time of war or other emergency.  
In their turns, the complainants in these disputes have provided sufficient evidence to 
establish prima facie  case of numerous violations under the Agreement on Safeguards and the 
GATT  1994. This evidence supports complainants` position that the measures at issue are purely 
safeguards in their nature, object and purpose and have nothing in common with the securit y 
exceptions. We believe that the nature of the measure could not be unilaterally determined by the 
Member. In order for a measure to be subject to security exception it is not enough just to label it 
as such under domestic procedures.  
Russia would als o like to note that if a particular measure complies with a particular provision 
of a particular WTO Agreement, this automatically means only one thing – that the measure complies 
with that provision of that particular WTO Agreement. This does not mean tha t the measure is 
automatically excluded from being subjected to provisions of another WTO Agreement. Therefore, if 
the measures at issue meet the requirements of Article XXI(b) of the GATT 1994, their consistency 
with Article XXI(b) of the GATT 1994 does n ot exclude the Panel`s examination of the applicability 
of the Agreement on Safeguards.  
There is no mutual exclusivity between the GATT 1994 and the Agreement on Safeguards. 
Article XIX of the GATT 1994 and the Agreement on Safeguards are silent in res pect of particular 
reasons for a Member to seek to prevent serious injury to its producers as a result of increased 
imports, whether this is done for employment, protection of traditional industries, environmental, 
national security or any other reasons. T herefore, when a Member adopts an emergency action 
against such imports the Member shall comply with the requirements of Article XIX of the GATT 
1994. If the prevention of injury is needed for national security purposes, the Member adopting the 
emergency a ction shall comply with the requirements of Article XXI(b) of the GATT 1994.  
IV. Legal characterization of measures at issue as safeguards  
The Russian Federation concurs with the complainants that the United States ' measures at 
issue present the consti tuent features of safeguard measures within the meaning of Article XIX of 
the GATT 1994 and the Agreement on Safeguards, and thus constitute safeguard measures on the 
basis of an objective analysis.  
First, the United States has withdrawn or modified i ts tariff concessions and suspended at 
least one of its obligations under the GATT 1994. By introducing additional duties, the United States 
has exceeded the bound rate established under its Schedule of concessions on goods (Schedule), 
which amounts to wit hdrawal or modification of its tariff concessions. By withdrawing or modifying 
its concessions under the Schedule, the United States has suspended its obligations under Article 
II:1(a) and (b) of the GATT 1994.  
Second , by their design, structure and e xpected operation, the import adjustments on certain 
steel and aluminium products sought to prevent or remedy the impairment to the domestic industry 
of the United States caused or threatened by increased imports of the subject products. This specific 
objective of the United States ' measures is discernible from the texts of the U.S. President 's 
respective Proclamations, as well as the investigation Reports on the effects of imports of steel and 
aluminium coupled with related documents, such as the U.S. Pres ident's Memoranda on imports of 
steel and aluminium, associated announcements, as well as numerous statements by the U.S. 
President.  
Third , the withdrawal or modification of tariff concessions and suspension of GATT obligations 
have a demonstrable lin k to the prevention or remediation of the alleged serious injury.  
In the range of legal instruments and official statements, the United States specifically 
declared that the measures are sought to stop the decline in its steel and aluminium industries  
caused by imports, to provide relief to those industries from competition with imports, to enable the WT/DS556/R/Add.1  
 
- 72 - 
 
  respective domestic industries to increase their production capacity or capacity utilization and 
profitability, and to prevent the closures of production  facilities.  
Tariff concessions and obligations under the GATT 1994, in particular, those under 
Article  II:1(a) and (b), however, impeded the ability of the United States to achieve its goals 
(prevention or remedying the alleged injury or threat thereo f to the U.S. industry). Thus, the United 
States chose to suspend those tariff concessions and obligations. While suspending its tariff 
concessions and its obligations under Article II:1(a) and (b) of the GATT 1994, the United States 
has limited imports of  steel and aluminium products by making steel and aluminium products 
originating from certain Members more expensive when marketed in the United States.  
Hence, there is a clear link between the withdrawal or modification of tariff concessions and 
suspension of GATT obligations to the prevention or remediation of the alleged serious injury.  
The US in support of its position states that notification under the relevant provisions of 
Article  XIX of the GATT 1994 and of the Agreement on Safeguards is a prerequisite to the 
applicability of safeguard disciplines to the measures taken. In respect of import adjustments on 
certain steel and aluminium products it did not notify them as safeguard measures, on this basis, in 
its view, the measures could not be d eemed safeguards. These allegations must fail.  
Notifications pursuant to Article XIX:2 of the GATT 1994 or Article 12 of the Agreement on 
Safeguards are neither necessary condition nor a prerequisite for the applicability of safeguard 
disciplines. The  compliance with any of obligations set forth in Article XIX:2 of the GATT 1994 and 
Article 12 of the Agreement on Safeguards does not affect the consistency of measures with other 
provisions under Article XIX of the GATT 1994 and the Agreement on Safeguar ds.  
Absence of a notification does not and cannot change any of the constituent features of 
safeguards measures. Being otherwise would help Members to escape from application of the 
provisions of the Agreement on Safeguards and negative consequences t o their measures (for 
example, DSB 's finding on inconsistency of such measures with the Agreement on Safeguards).  
Notification requirements are not an instrument of characterization or identification of 
measure 's nature, but of transparency. Otherwise, if the applicability of a WTO agreement were to 
be established based on Member 's compliance with the notification requirements:  
− should that be so, the issue of the applicability of an agreement would be excluded  from 
objective assessment by a panel, as it would be left for Member 's discretion to choose a 
particular agreement under which to notify its measure;  
− in such a logic a measure that was not properly notified under particular agreement becomes 
non-existe nt, as by not notifying that measure under any agreement at all a Member 
effectively declares that there are no relevant notification requirements that a measure falls 
under. Therefore, there 's no WTO agreement that measure is covered by.  
Furthermore,  the United States claims that the Agreement on Safeguards does not apply to 
measures that a Member considers necessary for the protection of its essential security interests 
through Article 11.1 (c) of the Agreement on Safeguards, which provides that "this Agreement does 
not apply to measures sought, taken or maintained by a Member pursuant to provisions of GATT 
1994 other than Article XIX ". In this regard, Russia notes the following.  
 Hypothetically, there might be three scenarios. First, a measure is sought, taken or 
maintained exclusively pursuant to provisions of Article XIX of the GATT 1994. Second, a measure 
is sought, taken or maintained pursuant to provisions of Article XIX of t he GATT and some other 
provisions of the GATT 1994. Third, a measure is sought, taken or maintained exclusively pursuant 
to provisions of the GATT 1994 other than Article XIX of the GATT 1994. Only the latter category of 
measures is excluded from the scope  of the Agreement on Safeguards in accordance with Article 
11.1(c).  
We note that every term in this Article, as any treaty provision, has its own meaning and due 
attention should be paid to it. Without providing definitions of the terms "sought ", "taken" or 
"maintained " Russia is of the view, that they represent different stages of measure 's "life", i.e. WT/DS556/R/Add.1  
 
- 73 - 
 
  whether a Member tries to take the measure (initial stage where the measure does not exist yet), 
whether a Member has already taken the measure (the ac tion is made, measure becomes alive) and 
"maintained " (the measure exists for some time, long lasting measure that continues to exist).  
The second interpretation of the words "seek", "take" and "maintain " may be derived from the 
text of Article 11.1(b)  which uses the same combination of the terms. In the context of this provision 
it is obvious that the word "seeks " is used in the meaning "asks/requests from someone ". This 
provision covers measures, in particular, in respect of exports, that can only be obtained from 
another Member. Therefore, the text of Article 11.1(b) effectively says that a Member must not 
request another Member to adopt, in particular, exports re strictions. Given that the forms in which 
"emergency actions " may be taken under Article XIX of the GATT and the Agreement on Safeguards 
are not predetermined or exhaustively listed, the same meaning of the term "seek" may be applied 
in the context of Arti cle 11.1(a) or 11.1(c).     
V. Conclusion  
Russia has already noted that each of the seven disputes has the same subject matter and, 
therefore, there is a significant overlap between them. This fact has a bearing on how the panels in 
the respective disp utes should go about the ensuring security and predictability to the multilateral 
trading system. The delicate issue here is that when two or more panels are tasked with the duty to 
resolve the same matter or closely related claims such a situation raises complex issues. The most 
dangerous consequence of the parallel proceedings involving the same or closely connected matters 
is the contradictory outcome of the disputes. This should be avoided.  
It follows from Articles 3.2 and 3.4 of the DSU that a holi stic and coherent resolution of all 
parallel disputes is  critical  for the overall vitality of the multilateral trading system.  
Russia reminds that the ultimate goal of the Panel is to make such findings "as will assist the 
DSB in making the recommendat ions or in giving the rulings provided for in the covered agreements" 
pursuant to Article 11 of the DSU. The achievement of this goal will be seriously prejudiced should 
the panels arrive at the different conclusions as for the proper legal characterizatio n of the measures 
at issue in the respective disputes, given that these measures are the same.  
 
 
 WT/DS556/R/Add.1  
 
- 74 - 
 
  ANNEX C -9 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SINGAPORE  
I. INTRODUCTION  
1. This dispute raises novel issues concerning the interpretation of Article XXI of the GATT and 
whether it can be used as a defence to justify inconsistencies with the Safeguards 
Agreement. Singapore is not commenting on the merits of the claims and defences raised 
by the parties to the current disputes. Singapore's participation is strictly limited to whether 
Article XXI is applicable to and can be used as a defence to justify inconsistencies with the 
Safeguards Agreement, whether a Panel has jurisdiction over Article XXI, and the 
interpretation of Article XXI, in particular, the chapeau of Article  XXI(b).   
II. EXECUTIVE SUMMARY OF SINGAPORE’S THIRD PARTY ORAL STATEMENT  
A. Whether Article XXI is applicable to and can be used as a defence to justify 
inconsistencies with the Safeguards Agreement  
2. Article XXI is not applicable to and cannot be used as a defence to justify inconsistencies 
with the Safeguards Agreement. The Appellate Body has applied a standard "analytical 
approach"  in determining the relationship between the provisions of different covered 
agreements1 and the absence of an explicit cros s-reference to Article XXI in the Safeguards 
Agreement is not per se  dispositive of the issue.  
3. Safeguard measures allow WTO Members to take action that would otherwise be 
incompatible with their obligations under the GATT 19942. Article XIX of the GATT 1994 and 
the Safeguards Agreement operate to provide for the suspension of the application of the 
obligations under the GATT 1994, and may be imposed "only" where the conditions and 
circumstances listed in the relevant provisions are satisfied3. In other words, the Safeguards 
Agreement already provides a comprehensive set of provisions as to when a Member may 
justifiably apply safeguard measures. Allowing Article XXI to apply as an exception to the 
Safeguards Agreement would not b e aligned with the comprehensive nature of the 
Safeguards Agreement and would be inconsistent with the intent to provide greater discipline 
when Members apply safeguard measures.  
4. Further, the Safeguards Agreement is a different creature from other WTO Agreements as it 
essentially provides for the suspension of GATT obligations. To layer Article XXI over and 
above the provisions of the Safeguards Agreement would require a clear intent to be distilled 
from the text of those provisions read in their proper  context. This is not the case here. 
Given the sui generis nature of the Safeguards Agreement, our views are confined to the 
Safeguards Agreement only.  
B. The Panel's jurisdiction in respect of Article XXI  
5. The Panel has jurisdiction over any Member's i nvocation of Article XXI in WTO dispute 
proceedings and the Panel is required to address such invocation. The phrase "shall address" 
in Article 7(2) of the DSU indicates that panels are "required to address the relevant 
 
1 This requires an agreement -by-agreement analysis that starts with the text of the agreement in 
question, and entails a "thorough analysis of the relevant provisions", on the understanding that the lack of an 
express textual reference is not dispositive in  and of itself (Appellate Body Report, China – Rare Earths , paras. 
5.61 – 5.63). The relationship must be "ascertained through scrutiny of the provisions concerned, read in the 
light of their context and object and purpose, with due account being taken of the overall architecture of the 
WTO system as a single package of rights and obligations, and any specific provisions that govern or shed light 
on the relationship between the provisions of different instruments." (Appellate Body Report, China – Rare 
Earth s, para. 5.55).  
2 Panel Report, Dominican Republic – Safeguard Measures , para. 7.54.  
3 Article 2 of the Safeguards Agreement. The preparatory materials to the Safeguards Agreement and 
the preamble to the Safeguards Agreement confirm this.  WT/DS556/R/Add.1  
 
- 75 - 
 
  provisions in any covered agreement or agreements cited by the parties to the dispute"4. 
This means that the Panel must address the relevant provisions to the dispute at hand, 
including Article XXI(b).  The plain and ordinary meaning of the DSU's provisions do not speak 
of any exceptions to the application of Articles  7(1) (which set out the Panel’s terms of 
reference) and 7(2).  
C. Interpretation of Article XXI(b) – the applicable test  
6. To the extent that the non -justiciability of a claim under Article XXI(b) relies on an 
interpretation th at Article XXI(b) is totally self -judging, such an interpretation should not 
apply based on the explanation below. First, the word "it" in the phrase "it considers 
necessary" clearly refers to a "contracting party". The focus of any scrutiny therefore has to 
be from the standpoint of the invoking Member and whether that Member considers the 
action to be necessary . This phrase points to the self -judging nature of the assessment and 
indicates that a Member is allowed to determine the elements of the chapeau w ith a 
significant degree of subjectivity. Second , the assessment of threats to the essential security 
interests of a Member and the necessary measures in response involves judgment on the 
part of that Member and is dependent on the particular context and c ircumstances of that 
Member. There is necessarily a degree of subjectivity in this exercise, and an accompanying 
diversity of assessments that has to be respected. Third, there are many areas in the WTO 
regime where some margin of appreciation is accepted5.  
7. A higher level of deference and a significant margin of appreciation should be accorded to a 
Member's chosen level of protection, and its assessment of risk and of the necessity of a 
measure taken for the protection of its essential security interes ts.  
8. Notwithstanding the above, Article XXI(b) should not be read as giving a Member entirely 
unfettered discretion in invoking this exception. For this exception to be meaningful, a 
Member must act in accordance with the standard of good faith as set out in Article 26 of 
the Vienna Convention on the Law of Treaties6 and with the general international law 
prohibition of abuse of rights. It is also well accepted that a Member seeking to rely on an 
affirmative exception bears the burden of proof. The  Member invoking Article XXI would have 
to provide its reason(s) for doing so, by minimally explaining its course of action and 
invocation of Article XXI, bearing in mind the margin of appreciation to be accorded to 
Members on matters involving their essen tial security interests. The extent and degree of 
detail required is fact and context specific and will be informed by the specific circumstances 
surrounding the invocation, as well as the underlying security and confidentiality 
considerations.  
9. We have  carefully considered the Russia – Traffic in Transit panel's approach in interpreting 
Article  XXI(b)(iii) in the context of certain prohibitions on goods traffic in transit, and 
generally agree with that panel's analysis of Article XXI(b)(iii).  
III. EXECU TIVE SUMMARY OF SINGAPORE’S RESPONSES TO PANEL QUESTIONS TO 
THIRD PARTIES  
A. Response to Question 8  
10. There are no provisions in the DSU  that support a distinction between justiciable and non -
justiciable matters in relation to the measures that are the subject of the present dispute.  
 
4 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 49. 
5 For example, in the context of the SPS Agreement, the Appellate Body has recognised that "[t]he 
determination of the appropriate level of protection… is a prerogative of the Member concerned and not of a 
panel or of the Appellate Body" (Appellate Body Report, Australia – Salmon , para. 199). The Appellate Body 
also noted, in relation to the necessity of a measure taken for the protection of health under the GATT 1994, 
that "… it is undisputed that WTO Member s have the right to determine the level of protection of health that 
they consider appropriate in a given situation" (Appellate Body Report, EC – Asbestos , para. 168.).  
6 Done at Vienna, 23 May 1969, 1155 U.N.T.S. 331; 8 International Legal Materials 679.  WT/DS556/R/Add.1  
 
- 76 - 
 
  B. Response to Question 10  
11. We agree with the panel’s statements in Russia –Traffic in Transit that "[ g]iven the absence 
in the DSU of any special or additional rules of procedure applying to disputes involving 
Article XXI of the GATT 1994… [the] invocation of [Article XXI(b)] of the GATT 1994 is within 
the Panel’s terms of reference for the purposes of th e DSU."7  
C. Response to Question 13  
12. We agree with the panel’s statements in Russia — Traffic in Transit  that "[t]he obligation of 
good faith requires that Members not use the exceptions in Article XXI as a means to 
circumvent their obligations under  the GATT 1994" and that "[i]t is therefore incumbent on 
the invoking Member to articulate the essential security interests said to arise from the 
emergency in international relations sufficiently enough to demonstrate their veracity"8.  
D. Response to Qu estion 14  
13. The good faith test is met when a Member demonstrates that it has in good faith, albeit 
subjectively, considered, based on information available, that there is a threat to its essential 
security interest, and that its chosen action is necess ary for the protection of its security 
interest.  
E. Response to Question 15  
14. Article XXI is an affirmative defence and the invoking Member bears the burden of proof9. 
F. Response to Questions 16 and 17  
15. The phrase "which it considers" applies to the entire chapeau of Article XXI(b)10. 
G. Response to Question 18  
16. A panel should consider whether a Member’s invocation of Article XXI is consistent with the 
principle of good faith, while recognising the element of self -judgment in Artic le XXI.  
H. Response to Question 19  
17. The Member invoking the exception bears the burden to show that it has, in good faith, 
considered, based on the information available, that the elements of Article XXI(b) are made 
out. The extent and detail required to demonstrate this is fact and context specific.  
I. Response to Question 20  
18. The subparagraphs to Article XXI(b) are exhaustive of the types of circumstances covered 
by the provision. Typically, phrases like "including "11 denote that a list is merely  illustrative. 
Nothing in Article XXI(b) suggests that the subparagraphs are merely an illustrative list. In 
interpreting the circumstances in the subparagraphs, a panel should adopt a contextual 
approach.  
J. Response to Question 21  
19. A nexus between a particular subparagraph and the challenged measure is required. The 
determination of that nexus should be done in good faith, taking into account the Member’s 
circumstances and concerns.  
 
7 Panel Report, Russia – Traffic in Transit , paras. 7.54 and 7.56.  
8 Panel Report, Russia – Traffic in Transit , paras. 7.133 and 7.134.  
9 As noted by the panel in Russia – Traffic in Transit , it is "incumbent on the invoking Member to 
articulate the essent ial security interests said to arise from the emergency in international relations sufficiently 
enough to demonstrate their veracity." (Panel Report, Russia – Traffic in Transit , para. 7.134.)  
10 Panel Report, Russia — Traffic in Transit , paras. 7.130 – 7.133 and 7.146.  
11 Panel Report, EC – Approval and Marketing of Biotech Products , para. 4.161.  WT/DS556/R/Add.1  
 
- 77 - 
 
  K. Response to Question 25  
20. A panel should consider whether a Mem ber’s invocation of Article XXI is consistent with the 
principle of good faith, while recognising the element of self -judgment in Article XXI.  
L. Response to Question 26  
21. A panel will need to assess if a Member has acted in accordance with the standard of good 
faith and with the general international law prohibition on abuse of rights.  
M. Response to Question 27  
22. Factual evidence is relevant to considering the applicability of the conditions provided in the 
subparagraphs of Article XXI(b). T he extent and degree of detail required is fact and context 
specific.  
N. Response to Question 28  
23. Subparagraphs (i) to (iii) inform each other as to the overall subject matter and scope of 
applicability of Article XXI(b)12. 
O. Response to Question 29  
24. Subparagraphs of Article XXI(b) are not cumulative in nature13.  
P. Response to Question 30  
25. It is inadvisable to put forward a label or prescriptive definition of “other emergency in 
international relations”. We agree with the panel’s statements in  the Russia — Traffic in 
Transit panel report that there is a useful "sliding scale " of circumstanc es that might qualify 
as an "emergency in international relations " and could include any circumstances that fall 
within the description of "heightened tension or crisis ", or "general instability engulfing or 
surrounding a state "14. We also agree that it i s incumbent on the invoking Member to 
articulate the essential security interests said to arise from the emergency in international 
relations sufficiently enough to demonstrate their veracity15; and what qualifies as a 
sufficient level of articulation wil l depend on the emergency in international relations at 
issue16. The Member would also need to demonstrate that its measure is applied in good 
faith.  
Q. Response to Question 31  
26. Both Articles  XX17 and XXI(b) are affirmative defences. A  Member seeking to rely on either 
exception bears the burden of proof. With respect to measures under Article XXI, a higher 
level of deference and a significant margin of appreciation should be accorded to the WTO 
Member’s chosen level of protection, its assessment of risk, and of the necessity of a 
measure taken for the protection of its essential security interests, as compared to those 
taken under Article XX. This is because Article XXI(b) contains the additional ph rase "it 
considers necessary", which is not present in Article XX.  
R. Response to Question 32  
27. Article XXI(a) is concerned with a scenario where a Member is asked to furnish information, 
the disclosure of which it considers contrary to that Party’s ess ential security interest. In 
contrast, Article XXI(b) deals with the situation in which a Member takes actions which it 
considers necessary for the protection of its essential security interest. There is an element 
 
12 Panel Report, Russia — Traffic in Transit , para. 7.65, 7.67 and 7.74.  
13 Panel Report, Russia – Traffic in Transit , para. 7.68.  
14 Panel Report, Russia – Traffic in Transit , para. 7.76.  
15 Panel Report, Russia – Traffic in Transit , para. 7.134.  
16 Panel Report, Russia – Traffic in Transit , para. 7.135.  
17 Appellate  Body Report, US – Wool Shirts and Blouses , p. 16 and Appellate Body R eport, US – 
Shrimps , para. 121; Appellate Body Report, EC – Asbestos , paras. 115  – 116. WT/DS556/R/Add.1  
 
- 78 - 
 
  of subjectivity in both Article XXI(a) an d Article XXI(b) but the principle of good faith and 
the general international law prohibition of abuse of rights applies to both.  
S. Response to Question 34  
28. See paragraphs 3 and 4 above.  
T. Response to Question 36  
29. If the Panel determines that the measures are safeguard measures within the meaning of 
Article XIX and the Safeguards Agreement, Article XXI of the GATT 1994 does not apply.  
U. Response to Question 37  
30. The phrase "nothing in this agreement " in Article XXI(b) should be interpreted as referring 
to the obligations under the GATT 1994. It should not be interpreted to allow Article XXI(b) 
to operate as an exception to the conditions for suspension of GATT obligations under Article 
XIX as this would render the strict conditions of Article X IX and the Safeguards Agreement 
meaningless.  
V. Response to Questions 38 and 39  
31. While the references to Article XIX in the Preamble, Articles 118 and 11.1(a) of the 
Safeguards Agreement reflect a relationship between Article XIX of the GATT and the 
Safeguards Agreement, they do not establish any textual basis for applying Article XXI of 
the GATT 1994 to the Safeguards Agreement19.  
W. Response to Question 40  
32. The general interpretative note to Annex 1A of the WTO Agreement indicates that the GATT 
1994 and the other agreements are to be considered together20. Thus, if a conflict were to 
exist between a Safeguards Agreement provision and a GATT 1994 provision, the Safeguards 
Agreement provision would prevail to the extent of the conflict. Applying t he panel’s 
definition of "conflict "21, the justification of a measure under Article XXI that would otherwise 
be prohibited under the Safeguards Agreement would not give rise to a "conflict" within the 
meaning of the General Interpretative Note, since Arti cle XXI cannot be considered a 
permissive obligation. The presumption against conflict should also be borne in mind22. In 
any case, our position is that Article XXI cannot apply as an exception to the Safeguards 
Agreement.  
 
 
18 Article 1 of the Safeguards Agreement provides that the term safeguard measure "shall be 
understood to mean those measures provided for in Article XIX of GATT 1994."  The Appellate Body stated that 
Article 1 of the Safeguards Agreement "suggests that Article XIX continues in full force and effect, and, in fact, 
establishes certain prerequisites for the imposition of safeguard measures" (Appellate Body Report, Argentina  – 
Footwear,  para. 83).  
19 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines) supports this 
interpretation. The question there was whether Article XX of the GATT applied to the CVA. Similar to the 
preamble to the Safeguards Agre ement, the preamble to the CVA referred to the Members’ desire to "further 
the objectives of the GATT 1994" and recognises "the importance of the provisions of Article VII of GATT 1994 
and desir[e] to elaborate rules for their application in order to provi de greater uniformity and certainty in their 
implementation". The panel found that the language and the title to the CVA reflects a general link between 
the CVA and the GATT 1994, but it does not establish any textual link to Article XX of the GATT, and 
consequently does not establish any affirmative textual basis for concluding that Article XX applies to the CVA 
(paras. 7.748 and 7.749).  
20 Appellate Body Report, Brazil – Desiccated  Coconut , p. 8.  
21 The panel made the following observation on the definiti on of "conflict" as set out in the General 
Interpretative Note, stating that "[i]n light of the wording, the context, the object and the purpose of [the 
General Interpretative Note], we consider that it is designed to deal with (i) clashes between obligati ons 
contained in GATT 1994 and obligations contained in agreements listed in Annex 1A, where those obligations 
are mutually exclusive in the sense that a Member cannot comply with both obligations at the same time, and 
(ii) the situation where a rule in on e agreement prohibits what a rule in another agreement explicitly permits" 
(Panel Report, EC – Bananas III (Ecuador),  para. 7.159).  
22 Panel Report, Indonesia – Autos , para. 5.349.  WT/DS556/R/Add.1  
 
- 79 - 
 
  ANNEX C -10 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TÜRKIYE  
1.   INTRODUCTION  
1.1.  This integrated executive summary contains the arguments presented by the Republic of 
Turkey (Turkey) in its third -party written submissions, oral statements, and responses to the Panel's 
questions in the following disputes parallel to United States – Additional Duties on Steel and 
Aluminium  (DS564) : DS544, 547, 548, 552, 554, and 556.  
1.2.  Turkey agrees with the complainants in the parallel disputes that the Section 232 measures 
imposed by the United States on steel and aluminium articles are safeg uard measures within the 
meaning of Article  XIX of the GATT 1994 and the Agreement on Safeguards. Moreover, Turkey 
believes that the Panels in these disputes should examine the complainants' claims under Article XIX 
and the Agreement on Safeguards before  addressing the United States' defence under Article XXI. 
As Turkey has consistently argued in these disputes as well as in DS564, matters falling under Article 
XIX are outside the scope of Article XXI. Put simply, Article XXI does not apply to safeguard mea sures 
and cannot justify violations of WTO safeguards disciplines. The respective scopes of application of 
Articles XIX, XX and XXI are mutually exclusive.  
1.3.  With respect to Article XXI, it is impossible to overstate the systemic importance of this di spute. 
The United States' position is that a WTO Member can take any trade -related action that it wishes, 
for any protectionist purpose that it wishes, label it as a "national security" measure, invoke allegedly 
unlimited discretion, and by doing so escape  any and all disciplines of WTO law. This position, if 
sustained by the Panel, would create a large loophole within the WTO legal system that would enable 
all WTO Members to escape their WTO obligations at will. This would render the rights of other WTO 
Members an empty shell, place them entirely at the discretion of an importing Member, and would 
reduce the entire multilateral trading system to a nullity.  
1.4.  It is, therefore, vital that this Panel approaches Article XXI in a manner that preserves the 
balance of rights and obligations of the WTO Members under the covered agreements. Turkey fully 
supports the need to protect the right of WTO Members to take genuine national security measures, 
for which they should enjoy an appropriate margin of deference.  But, at the same time, there must 
continue to be meaningful WTO disciplines on domestic trade measures. There is no such balance in 
the United States' position.  
1.5.  The United States' entire defence in this dispute is based on the national security exce ption in 
Article  XXI(b) of the GATT 1994. The United States' principal argument is that, as soon as the 
defendant invokes this provision, a WTO panel must lay down its tools, no matter how WTO -
inconsistent the challenged measure is or how unreasonable the invocation of Article XXI might be. 
According to the United States, in these circumstances, a dispute becomes "inherently political in 
nature", and, therefore, inappropriate for any review in the WTO.  
1.6.  Turkey notes that, beyond the fact that its appr oach to Article XXI is manifestly unreasonable 
on substance, the United States' approach to Article XXI is somewhat contradictory in procedural 
terms. On the one hand, the United States does not dispute that panels have jurisdiction over such 
disputes with in the meaning of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), and may receive submissions from the parties and third parties. On 
the other hand, the United States calls the invocation of Article XXI "non -justiciabl e" or "self -
judging". The United States argues that each WTO Member has the right to determine, for itself, 
what it considers necessary for protecting its essential security interests.  
1.7.  To Turkey, these two positions taken together constitute an elab orate empty formality. The 
Panel has jurisdiction, but cannot effectively exercise any meaningful review. This makes no sense 
to Turkey and clearly runs counter to the objective of the WTO dispute settlement system to act as 
a central element in providing security and predictability to the multilateral trading system.  WT/DS556/R/Add.1  
 
- 80 - 
 
  1.8.  The United States also tries to divert attention from the major loophole in the WTO disciplines 
that its approach would create, by arguing that Members can rely on non -violation claims t o address 
the situation. This, of course, misses the point. WTO Members are entitled to expect WTO -consistent 
behaviour by all other WTO Members. Under the approach advocated by the United States, the 
boundary between WTO -consistent and WTO -inconsistent be haviour essentially becomes irrelevant. 
This cannot be right.  
1.9.  In Section 2, Turkey summarises its legal arguments regarding the United States' defence 
under Article  XXI of the GATT 1994, as well as the correct interpretation of this provision. In th is 
Section, Turkey also explains that Article XXI cannot serve as a valid exception to "economic 
emergencies", like the measures at issue in these disputes. In Section 3, Turkey summarises its 
conclusion.  
2.   THE UNITED STATES' DEFENCE UNDER ARTICLE XXI(B ) OF THE GATT 1994 IS 
MISPLACED AND SHOULD BE REJECTED  
2.1.   The United States' defence under Article XXI has important consequences  
2.1.  The United States does not engage with the complainants' detailed explanations that the United 
States' import measu res on steel and aluminium constitute safeguard measures. Rather, the United 
States' central argument is that the measures at issue were taken under Article XXI(b), which may 
serve as a defence to claims under the Agreement on Safeguards. Therefore, should  the Panel agree 
that the United States' Article XXI defence fails, it should immediately find in favour of the 
complainants, including Turkey.  
2.2.  The United States' arguments under Article XXI are very generic. First, the United States 
invoked Article XXI(b) in general terms, without specifying which sub -paragraph of this provision it 
considers to be relevant. In Turkey's view, the Panel could reject the United States' invocation on 
this basis alone. A Member invoking an exceptions provision must specif y in detail which particular 
part of that provision it is relying on, for instance, a particular sub -paragraph. It would similarly be 
insufficient if a WTO Member sought to justify, for instance, an import ban by invoking "Article XX 
of the GATT 1994", wit hout specifying which of the sub -paragraphs of Article XX it is relying on. In 
the prior disputes where respondents took this approach under Article XX, the Appellate Body found 
this defence to be "patently underdeveloped".1  
2.3.  In addition, the United States provides no facts in support of this defence, for instance, to 
argue that the facts at hand reflect an "emergency in international relations" within the meaning of 
Article XXI(b)(iii) or to substantiate its implicit assert ion that "essential security interests" of the 
United States are at issue. Of course, the United States bears the burden of proof under Article XXI 
and must provide both argument and evidence to successfully invoke this provision. Given the 
absence of any relevant evidence adduced by the United States, should the Panel reject the United 
States' view of the self -judging nature of the entirety of Article XXI(b), it should also immediately 
reject the United States' defence.  
2.2.   The overview of Turkey's interpretation of the chapeau  and sub -paragraphs of 
Article XXI  
2.4.  Turkey turns to its views on the correct interpretation of Article XXI of the GATT 1994.  
2.5.  Article XXI(b) consists of a chapeau  and of three sub -paragraphs. The chapeau  contains the 
phrase "any action which it considers necessary". This phrase confers a margin of discretion on the 
invoking Member, in the choice of measures that protect essential security interests. There is also 
certain inherent flexibility an d discretion in the articulation of a Member's "essential security 
interests", in the light of the nature of the concept of security interests.  
2.6.  Nevertheless, the discretion that informs the chapeau  of Article XXI(b), even if wide, cannot 
be boundles s.  
2.7.  First, the term "considers" cannot mean that a Member is entirely free to adopt any measures, 
including measures that are manifestly unrelated to any conceivable security interests or that are 
manifestly unable to serve any security purpose. In p rior decisions of WTO panels and the Appellate 
 
1 Appellate Body Report, Thailand – Cigarettes (Philippines) , paras. 178 -179. WT/DS556/R/Add.1  
 
- 81 - 
 
  Body, even  very permissive provisions have been interpreted to include, at least, some residual 
objective standard.  
2.8.  As an example, consider Article 3.7 of the DSU, which states that a Member is free to "exercise 
its judgment" whether engaging in WTO dispute settlement would be "fruitful". The expression 
"exercise its judgment" is, for all practical purposes, synonymous with "consider", and the subject 
matter would appear to be naturally suited to very wi de Member discretion. Nevertheless, panels 
and the Appellate Body have never considered this provision to grant unfettered discretion  to a 
Member. Rather, they have emphasized that Members are " largely  self-regulating"2 – not entirely  
self-regulating – and that Members' judgment "is not entirely unbounded".3 The "bound" is, for 
instance, whether that Member has previously waived its right to resort to a dispute settlement 
process, through an explicit and considered decision.4   
2.9.  Second, by including the term "essential" before "security interests", the drafters clearly 
intended to limit the discretion emanating from the phrase "it considers" to situations of particularly 
serious matters of national security.5 
2.10.  Third, Article XXI(b) co ntains three sub -paragraphs that qualify  the chapeau . These sub -
paragraphs qualify the measures  (action) that can be taken pursuant to the chapeau . This 
qualification consists in either setting out a particular subject matter  to which those measures must 
be related (e.g. fissionable materials or derivates6) or by describing the time period  in which those 
measures must be taken (time of war or other emergency in international relations7). 
2.11.  Compliance with the three sub -paragraphs is not left to discr etion of the invoking Member . 
These qualifying phrases are open to a fully objective, multilateral review by a WTO panel, pursuant 
to the "objective assessment" requirement in Article 11 of the DSU.8  This is, in particular, because 
the discretion -grantin g phrase "which it considers" refers only to the necessity of the measure under 
the chapeau , not also to the three sub -paragraphs.  
2.12.  Turkey believes that its interpretation of the chapeau  and the sub -paragraphs of Article XXI(b) 
is well grounded in th e principles of treaty interpretation set out in Articles 31 to 33 of the Vienna 
Convention. The chapeau  and the sub -paragraphs are separate, and impose separate requirements. 
In the Spanish language version of Article XXI, this separation is further under scored by a comma 
after the chapeau , before the word " relativas ", which introduces each of the sub -paragraphs and 
drives a further wedge between the chapeau  and the three sub -paragraphs . 
2.13.  Next, some of the internal documents of the United States' del egation from the period of GATT 
negotiations, attached as exhibits to the United States' first written submissions, illustrate how 
Article XXI would  read if the term "considers" indeed were to extend  to the sub -paragraphs. It would 
read: " which it consider s necessary  for the protection of its essential security interests and to relate 
to …" or "which it may consider to relate to ". 
2.14.  These documents reveal that the United States' delegation members were keenly aware of 
the important difference each phrase would have for the operation of Article XXI. The delegation 
member who proposed the "to relate to" clause intended precisely t o create an "independent clause" 
that would make the sub -paragraphs equally "self -judging" as the chapeau . The other delegation 
members understood this consequence, and this is precisely why they rejected the proposal . They 
instead wished to limit the "con sider" discretion to the chapeau  and not to permit a "completely open 
escape from the Charter" (and the GATT  1947).  
 
2 Appellate Body Report, Peru – Agricultural Products , para. 5.18. Emphasis added.  
3 Appellate Body Report, Peru – Agricultural Products , para. 5.19.  
4 Appellate Body Report, EC – Bananas III (21.5 II – US), para. 217.  
5 Panel Report, Russia — Traffic in Transit , para. 7.130.  
6 Article XXI(b)(i).  
7 Article XXI(b)(iii).  
8 Panel Report, Russia — Traffic in Transit , paras. 7.82, 7.100.  WT/DS556/R/Add.1  
 
- 82 - 
 
  2.15.  These internal discussions within the United States' delegation are explained in greater detail 
in a comprehensive treatise relied on  also by Russia – Traffic in Transit  panel.9 
2.16.  The United States' view is also at odds with the principle of effective treaty interpretation. 
Under the United States' "self -judging" approach, there is no purpose to the carefully drafted 
language of t he three sub -paragraphs.10   
2.17.  The United States also gives too much credence to the views of some GATT Contracting Parties 
that, during various GATT discussions, allegedly endorsed the self -judging nature of Article XXI. In 
Russia — Traffic in Trans it, the panel found that no common position of GATT and WTO Members on 
this issue existed.11 The views cited by the United States thus do not constitute a subsequent 
agreement within the meaning of the Vienna Convention and have no special legal relevance  for the 
interpretation of Article XXI.  
2.18.  Similarly, the United States inaccurately relies on the GATT Contracting Parties' Decision in 
the 1949 US – Export Restrictions dispute between the United States and Czechoslovakia as a 
"subsequent agreement".  The subject matter of the Decision was not the interpretation  of Article 
XXI(b), and it, therefore, cannot be an agreement "bearing specifically" upon the interpretation of 
this provision.12 Moreover, the Decision was not taken unanimously or by consensus. Hence, there 
was no " agreement " among all Contracting Parties.  
2.19.  Finally, the United States' "self -judging" theory is also contradicted by the negotiating history. 
A consistent theme r unning through all the negotiating history documents is the recognition by all 
intervening delegations that some balance  had to be found between, on the one hand, some 
reasonable discretion to be afforded to the regulating Member, and, on the other hand, o bjective, 
reviewable elements to limit that discretion and prevent it from destroying the entire legal 
framework. The debate about how to strike this proper balance is discernible at all phases of the 
negotiations, both among  Members' delegations and within the United States' delegation itself. It is 
simply not credible for the United States to argue that, after these lengthy negotiations about that 
important balance, the drafters ultimately opted for a 100 per cent one -sided, no -questions -asked 
discretion and a completely self -judging provision.13   
2.3.   Article XXI of the GATT 1994 does not apply to "economic emergencies"  
2.20.  In Turkey 's view, Article XXI does not apply to the measures at issue in these disputes. These 
measures are safeguard measures, which are instead disciplined by WTO safeguard rules.  
2.21.  Article XXI is one of many exceptions, carve -out provisions, and escape clau ses in the GATT 
1994. Each of these exceptions, carve -outs and escape clauses addresses distinct matters . This is 
important. One of the fundamental flaws of the United States' position is to ignore the fact that 
Article XXI does not address emergency situa tions of an economic  nature. The drafters assigned to 
Article XIX economic "emergency action" in situations concerning "imports of particular products", 
and confined Article XXI to a foreign -policy dimension, in particular to diplomatic crises, military 
conflicts, and closely related matters. This was also the conclusion of the panel in Russia – Traffic in 
Transit .14 
2.22.  This distinction between the issues of foreign policy addressed in Article XXI, on the one hand, 
and "economic emergencies" addressed by WTO safeguard rules is further reflected in Article 11.1 
of the Agreement on Safeguards. This provision draws a distinction between "emergency action[s] 
on imports … as set forth in Article XIX of GATT 1994" (Article 11.1(a)), and "measures sought, 
taken or maintained by a Member pursuant to provisions of GATT 1994 other than Article XIX " 
(Article 11.1(c)). The first category, of course, encompasses safeguard measures, whereas the 
 
9 See Kenneth J. Vandevelde, The First Bilateral Investment Treaties: U.S. Postwar Friendship, 
Commerce, and Navigation Treaties , (Oxford University Press 2017), pp. 145 -154. Exhibit TUR -4. 
10 Appellate Body Report, US – Gasoline , p. 20.  
11 See Panel Report, Russia — Traffic in Transit , para. 7.80, Appendix.  
12 See, inter alia , Appellate Body Report, US – Clove C igarettes , para. 265.   
13 See, inter alia , Second Session of the Preparatory Committee of the United Nations Conference on 
Trade and Employment, Verbatim Report, E/PC/T/A/PV/33, 24 July 1947, pp. 20 -21. 
14 Panel Report, Russia — Traffic in Transit , paras.  7.76 and 7.133.  WT/DS556/R/Add.1  
 
- 83 - 
 
  second category refers to measures other than safeguard measures, for exam ple, Article XXI 
measures.  
2.23.  This distinction is important because Article 11 ties each category to different disciplines. For 
safeguard measures, Article 11.1(a) stipulates that a Member shall not "take or seek" these 
measures, unless they conform w ith the provisions of Article XIX applied in accordance with the 
Agreement on Safeguards. In contrast, for other measures (including those protecting national 
security), Article 11.1(c) establishes "provision[s] of GATT 1994 other than Article XIX " as the legal 
benchmark of WTO consistency. It is difficult to imagine how these clearly demarcated two sets of 
disciplines could apply to a single measure. Equally, it is not clear why the drafters would distinguish 
between these two categories of measures, each subject to a separate set of disciplines, if a measure 
could in any event fall under both categories.  
2.24.  Whether a measure falls under the scope of Articles 11.1(a) or 11.1(c) must be determined 
objectively  by analysing the design, structure and expect ed operation of the measure, in particular 
whether the measure presents the constituent features of a safeguard measure within the meaning 
of Article XIX, as clarified by the Appellate Body in Indonesia — Iron or Steel Products .15 This 
objective assessmen t is required by Article 11 of the DSU.  
3.   CONCLUSION  
3.1.  For the above reasons, Turkey considers that:  
• The measures at issue fall under Article XIX and the Agreement on Safeguards;  
• The Panel should begin its analysis with the claims under Article XIX and the Agreement 
on Safeguards, rather than with Article XXI;  
• In any event, the United States' defence under Article XXI should be rejected.  
 
 
 
 
15 Appellate Body Report, Indonesia — Iron or Steel Products , para. 5.60.  WT/DS556/R/Add.1  
 
- 84 - 
 
  ANNEX C -11 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE* 
1. INTRODUCTION  
1. Mr. Chairperson , distinguished Members of the Panel, Ukraine welcomes the opportunity to 
express its views to the Panel as a Third Party in the current proceedings.  
2. Ukraine h as a systemic interest in a proper and consistent interpretation of the provisions of 
the World Trade Organization (“WTO”) covered agreements, therefore in its oral statement Ukraine 
is not commenting on the merits of the claims and the defences raised by the parties to this dispute, 
but rather focuses on some key issues relating to the order of analyses and application of Article XXI 
of the General Agreement on Tariffs and Trade 1994 (“GATT 1994”).  
2. JURISDICTIONAL ISSUES OF ARTICLE XXI OF THE GATT 1994  
3. The United States in its first written submissions or oral statements does not address any of 
the claims raised by the complainants. The United States focuses only on Article XXI(b) of the GATT 
1994 stating that it is self -judging and its invocation is n on-justiciable.  
4. The United States submits that the adjustment measures on imports of steel and aluminium 
constitute national security action justified under Article XXI of the GATT 1994. In the United States’ 
view, the measures at issue cannot be revie wed by this Panel which should limit its findings to noting 
that the United States has invoked Article XXI(b) of the GATT 1994, given that Article XXI(b) is self -
judging.  
5. Ukraine believes that the useful guidance for the Panel can be found in the Unders tanding on 
rules and procedures governing the settlement of disputes (“DSU”). Article 7.2 of the DSU states 
that “panels shall address the relevant provisions in any covered agreement or agreements cited by 
the parties to the dispute” in order to make “an objective assessment” of the case under Article 11 
of the DSU.  
6. Ukraine is of the opinion that jurisdictional question under Article XXI of the GATT 1994 should 
not be a matter of a panel’s analysis  in any further disputes . Without repetition of the find ings in 
Russia – Traffic in Transit , Ukraine believes that a panel may interpret Article XXI(b) of the GATT 
1994 and review the reliance on this provision. It means that Article XXI(b) of the GATT 1994 is 
justiciable in the same manner as any other provision of the WTO covered agreements.  
7. Ukraine would like to emphasise that the Panel in Russia – Traffic in Transit  made a very 
important and welcome contribution by rejecting arguments that the panel has no jurisdiction to 
review invocation of Article XXI of the GATT 1994 and therefore by confirming that Article XXI(b)(iii) 
is within the Panel’s terms of reference for the purposes of the DSU. 1 
8. There is therefore no need for a Panel to examine the issue of justiciability of Article XXI(b)(iii) 
of the GATT 1994 not only in this particula r case, but in general.  In Ukraine’s view, this conclusion 
is constant.  
3. STANDARD OF REVIEW  
9. Ukraine would like to present its views on the proper order of analysis in reviewing the United 
States’ reliance on “security exceptions” provision.  
10. Takin g into account the special nature of “security exceptions” provision, Ukraine wishes to 
emphasize that the fact that the text of Article XXI(b) expressly states that it is for a Member to 
 
* Ukraine requested that its Oral Statement is used as its integrated executive summary.  
1 Panel Report, Russia – Traffic in Transit , paras. 7.56 and 7.104.  WT/DS556/R/Add.1  
 
- 85 - 
 
  decide what action it considers necessary for protecting its essenti al security interests does not mean 
that a Member enjoys total discretion.  
11. In Ukraine’s view, a panel has to examine whether (i ) the interests or reasons advanced by a 
defendant for imposing the measures fall within the scope of the phrase “its essential security 
interests”; and whether (ii) the measures are directed at safeguarding a defendant Member’s 
security interests, meaning  that there is a rational relationship between the action taken and the 
protection of the essential security interest at issue.  
12. That means that a defending Member must show and a panel must review that, taking into 
account the structure, content and d esign of the measure, there is a rational relationship between 
the action taken and the protection of the essential security interest at issue.  
13. Due to the exceptional features of the disputes involving the “security exceptions” provisions, 
Ukraine note s that it is important that the Panel considers each invocation carefully, in light of the 
particular circumstances of the disputes before it.  
4. CONCLUSION  
14. This concludes our oral statement. Ukraine thanks the Panel for its consideration of Ukraine’s  
views.  
__________