WT/DS582/R/Add.1  
 
17 April  2023 
(23-2700) Page: 1/108 
  Original: English  
 
  
INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION 
AND COMMUNICATIONS TECHNOLOGY SECTOR  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to E to the Final Report of the Panel to be found in document  
WT/DS582/R . 
 
 
_______________  
 
 
 
  WT/DS582/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures concerning meetings with remote participation for 
the first substantive meeting  11 
Annex  A-3 Additional Working Procedures concerning meetings with remote participation for 
the second substantive meeting   14 
ANNEX B  
ARGUMENTS OF THE PARTIES  
EUROPEAN UNION  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of the European Union  18 
Annex  B-2 Second integrated  executive summary of the arguments of the European Union  26 
 
INDIA  
Contents  Page  
Annex  B-3 First integrated executive summary of the arguments of India 31 
Annex  B-4 Second integrated  executive summary of the arguments of India 44 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  53 
Annex  C-2 Integrated executive summary of the arguments of Canada  55 
Annex  C-3 Integrated executive summary of the arguments of Japan  58 
Annex C -4 Integrated executive summary of the arguments of the Republic of Korea  63 
Annex C -5 Integrated executive summary of the arguments of Norway  66 
Annex C -6 Integrated executive summary of the arguments of Singapore  67 
Annex C -7 Integrated executive summary  of the arguments of Chinese Taipei  69 
Annex C -8 Integrated executive summary of the arguments of Türkiye  72 
Annex C -9 Integrated executive summary of the arguments of Ukraine  76 
Annex C -10 Integrated executive summary of the arguments of the United States  78 
ANNEX D 
COMMUNICATIONS CONCERNING THE SUBSTANTIVE MEETINGS  
Contents  Page  
Annex  D-1 Panel's communication to the parties  (31 March 2021 ) 84 
Annex  D-2 Panel's communication to the parties ( 21 April 2021 ) 85 
Annex  D-3 Panel's communication to the parties ( 31 August 2021 ) 88 
Annex D -4 Panel's communication to the parties ( 20 September 2021 ) 91 
ANNEX E 
OTHER DECISIONS BY THE PANEL  
Contents  Page  
Annex  E-1 Panel's decision on requests for enhanced third -party rights  94 
Annex  E-2 Panel's decision on India's preliminary objection and preliminary ruling request  95 
 
 WT/DS582/R/Add.1  
 
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  ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures concerning meetings with remote participation 
for the first substantive meeting  11 
Annex  A-3 Additional Working Procedures concerning meetings with remote participation 
for the second substantive meeting   14 
 
 WT/DS582/R/Add.1  
 
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  ANNEX  A-1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 4 December 20 20 and revised on 27 January 2021  
 
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 right to modify t hese 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 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 own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon re quest of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public. Non -confidential summaries 
shall be submitted no later than five working days after the relevant due dates for subm itting 
integrated executive summaries set forth in the timetable adopted by the Panel, unless a 
different due date is granted by the Panel upon a showing of good cause.  
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatm ent 
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 ca se 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 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 below.  
Preliminary rulings  
4. (1) If India considers that the Panel should make a ruling before the issuance of the Re port 
that certain measures or claims in the panel request or the complainant's first written WT/DS582/R/Add.1  
 
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  submission are not properly before the Panel, the following procedure applies. Exceptions to 
this procedure shall be granted upon a showing of good cause.  
a. India s hall 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 Panel. The 
European Union 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 m ay 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 reasons for the ruli ng 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 shall 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 shared with all third parties.  
(2) This procedure is without prejudice to the parties' right to request other types of 
preliminary or procedur al 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 pursuant to an additional exception granted 
upon a showing of good cause, the Panel shall accord the other party an appropriate period 
of time to com ment 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 
portion thereof 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, 
no later than the next submission or meeting (whichever occurs earlier) following the 
submission which contains the translation in question. Upon a showing of good cause, 
objections may also be raised at later stages of the proceedings. Any objection shall be 
accompanie d 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 exhibi ts throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. Exhibits submitted by the European Union should be numbered EU -1, EU -2, etc. 
Exhibits submitted by India should be numbered IND -1, IND-2, etc. If the last exhibit in 
connection with the first submission was numbered EU -5, the first exhibit in connection with 
the next submission thus would be numbered EU -6. If a party withdraws an exhibit or leaves 
one or more exhibits intentionally bla nk, it should indicate this on the cover page that provides 
the number of the blank exhibit.    WT/DS582/R/Add.1  
 
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  (2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to ques tions. If there are no new 
exhibits attached to such submissions, oral statements, and responses to questions, there is 
no need to provide an updated list of exhibits.  
(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.  
(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 s hall be 
provided in the form of an exhibit along with an indication of the date that it was accessed.  
(5) Any publicly available WTO document that is relied on by either party need not be 
submitted as an exhibit, provided that the party indicates the docum ent's official 
WTO document symbol. Such publicly available WTO documents shall be deemed to form part 
of the official record.  
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 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 
questions at the meeting.   
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing follo wing the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel shall meet in closed session.  
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 third parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later tha n 
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 should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient t ime to ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite the European Union to make an opening statement to present its 
case first. Subsequently, th e Panel shall invite India 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 WT/DS582/R/Add.1  
 
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  provisional written version of its statement. If interpretation is needed, each party shall 
provide additional copies for the interpreters before taking the floor.  
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 shall inform the 
Panel and the other party at least five working days before the meeting, together with an 
estimate of the expected duration of its statement. The Panel will ac cord 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.  
e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the European Union presenting its statement first. 
Before each party takes the floor, it shall provide the Panel and other particip ants 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 shall also submit a final written version of any prepared provisional 
written closing statement that it delivered at the meeting.  
ii. Each party shall send in writing, within the timeframe established by th e Panel, 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 the Panel, 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.  
16. The Panel will advise on the conduct of the second substantive meeting in due course,  after 
having consulted with the parties.  
Third parties  
17. Each third party may present its views orally during a session of the first substantive meeting 
with the parties set aside for that purpose. A joint third -party session will be held for the third  parties 
in DS582, DS584 and DS588.  
18. Each third party shall indicate to the Panel whether 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 
meeting with the Panel.  
19. (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 ha ve 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.  
20. 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 sufficient time to ensure a vailability of interpreters.  WT/DS582/R/Add.1  
 
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  21. The third -party session shall be conducted as follows:  
a. All parties and third parties may be present during the entirety of this session.  
b. The Panel shall first hear the oral statements of the third parties. Each third party making 
an oral statement at the third -party session shall provide the Panel and other participants 
with a provisional written version of its statement before it takes the  floor. If interpretation 
of a third party's oral statement is needed, that third party shall provide additional copies 
for the interpreters before taking the floor.  
c. Each third party should limit the duration of its statement to 15 minutes and avoid 
repetition of the arguments already in its submission. If a third party considers that it 
requires more time for its opening statement, it shall inform the Panel and the parties at 
least five working days before the meeting, together with an estimate of the expected 
duration of its statement. The Panel will accord equal time to all third parties for their 
statements.   
d. After the third parties have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for cla rification on any matter raised in 
that third party's submission or statement.  
e. The Panel may subsequently pose questions to any third party.  
f.  Following the third -party session:  
i. Each third party shall submit the final written version of its oral statement, no later 
than 5.00  p.m. (Geneva time) on the first working day following the meeting.  
ii. Each party may send in writing, within the timeframe to be established by the Panel, 
any questions to one or more third parties to which it wishes to rece ive a response in 
writing.  
iii. The Panel may send in writing, within the timeframe to be established by the Panel, 
any questions to one or more third parties to which it wishes to receive a response in 
writing.  
iv. Each third party choosing to do so sha ll respond in writing to written questions from 
the Panel or a party, within a timeframe established by the Panel.  
21bis.   In addition to the submissions referred to in Article 10.3 of the DSU, Japan and Chinese 
Taipei shall also be granted access to the p arties' written rebuttals before the second substantive 
meeting, the final written versions of the parties' opening and closing statements at the first and 
second substantive meetings, each party's responses to questions from the Panel and to any 
questions  posed by the other party, and each party's comments on the other party's responses to 
those questions following the second substantive meeting.  
Descriptive part and executive summaries  
22. The description of the arguments 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 any way serve 
as a substitute for the submi ssions of the parties and third parties in the Panel's examination of the 
case.  
23. Each party shall submit two integrated executive summaries. The first integrated executive 
summary shall summarize the facts and arguments as presented to the Panel in the  party's first 
written submission, its first oral statement(s), and may also include a summary of its responses to 
questions following the first substantive meeting. The second integrated summary shall summarize 
its second written submission, its second or al statement(s), and may also include a summary of its 
responses to the second set of questions and comments thereon following the second substantive WT/DS582/R/Add.1  
 
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  meeting. The timing of the submission of this integrated executive summary shall be indicated in 
the timet able adopted by the Panel.  
24. Each integrated executive summary shall be limited to 15 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 f or which a deadline is not 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. 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 sh all serve as the executive summary 
of that third party's arguments unless that third party indicates that it does not wish for the 
submission and/or oral statement to serve as its executive summary, in which case it shall submit 
a separate executive summar y. 
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. Th e right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
28. Each party may submit written comments on the other party's written request for review. 
Such written comments shall be limited to the other party's written request for review and shall be 
submitted in accordance with the timetable adopted by the Panel.  
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 ap ply 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 sending an email to 
the DS Registry by 5:00 p.m. (Geneva time) on the due dates established by the P anel, 
attaching an electronic copy of all such documents, preferably in both Microsoft Word and 
PDF format. The electronic version emailed to the DS Registry shall constitute the official 
version for the purposes of submission deadlines and the record of t he dispute. The email 
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 em ail, the submitting party 
or third party shall provide the DS Registry with one electronic copy of the exhibits on a 
USB key, CD -ROM or DVD.1   
b. Each party and third party shall also submit one paper copy of all documents it submits to 
the Panel, includ ing the exhibits, with the DS Registry (office No. 2047) by 5.00 p.m. 
(Geneva time) the next working day.2 The DS  Registrar shall stamp the documents with 
the date and time of submission. If an exhibit is in a format that is impractical to submit 
as a paper copy, then the party may submit such exhibit in electronic format only (by 
 
1 If, for any reason, the DS Registry is unavailable for the service of documents, the submitting party or 
third party shall file the exhibits using the DORA, at https://dora.wto.org . 
2 If, for any reason, the DS Registr y office is unavailable for the service of paper copies, the "next 
working day" shall mean the day that the Panel determines for such filing once normal operations have 
resumed.  WT/DS582/R/Add.1  
 
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  email or on a USB key, CD -ROM or DVD). In this case, the cover page of the exhibit shall 
indicate that the exhibit is only available in electronic format.  
c.  In addition, each party and third party is invited to submit all documents through the 
Disputes On -Line Registry Application (DORA), at https://dora.wto.org , within 24 hours 
following the deadline for the submission of the paper versions. If the parties or third 
parties have any questions or technical difficulties relating to the DORA, they a re invited 
to contact the DS Registry at DSRegistry@wto.org . 
d. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve any submissions in advanc e of the first substantive 
meeting with the Panel directly on the third parties. Each party shall also serve directly on 
Japan and Chinese Taipei the documents referred to in paragraph 21bis. 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 recipie nt party or third party has requested a paper copy 
at least five working days before their filing. 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.  
e. Each party and third party shall file 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 dates established by the Panel.  
f.   As a general rule, all communications from the Panel to the parties and third parties will 
be via email and uploaded in the DORA. The Panel shall provide the parties with a paper 
copy of the Interim Report and the Final Report in addition to transmitting such r eports by 
email.  
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.  
 
 
 
 
 
 
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  ANNEX A -2 
ADDITIONAL WORKING PROCEDURES  OF THE PANEL  
Concerning meetings with remote participation for the first substantive meeting  
Adopted on 20 September 2021  
 
General  
1. These additional Working Procedures set out terms for holding meetings with the Panel in 
which participants may attend by remote means.  
Definitions  
2. For the purposes of these Procedures:  
"Remote participant"  means any person participating in the meeting wi th the Panel by 
remote means. This includes members of the parties' and third parties' delegations, experts 
appointed by the Panel, and interpreters.  
"Platform"  means the Cisco Webex software through which remote participants will 
participate in the meetin g with the Panel.  
"Host"  means the designated person within the WTO Secretariat responsible for the 
management of the platform for remote participants to participate in the meeting with the 
Panel.  
Equipment and technical requirements  
3. Each party and third p arty shall ensure that remote participants of its delegation join the 
meeting using the designated platform, and meet the minimum equipment and technical 
requirements set out by the platform provider for the effective conduct of the meeting.  
4. All technical questions, including the minimum equipment and technical requirements for 
the usage of the platform, will be addressed in the advance testing sessions between the 
host and the remote participants provided for in paragraph 7 below.  
Technical support  
5. (1) The host will assist remote participants in planning, testing and conducting the virtual 
meeting and provide remote participants with technical support pertaining to the  platform 
and its functionality.  
(2) In order to guarantee the timely provision of technical support, the host will prioritize 
assisting those remote participants designated as main speakers on the delegations' lists.  
(3) In light of the limitations of re mote assistance, each party and third party shall be 
responsible for its own technical support pertaining to its computer systems and networks.  WT/DS582/R/Add.1  
 
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  Pre-meeting  
Registration  
6. Each party and third party shall provide to the Panel the list of the members of its delegation 
on a dedicated form provided by the Panel Secretary no later than 5:00 p.m. (Geneva  time) 
on 22 September 2021.  
Advance testing  
7. Remote participants will hold two testing sessions with the Secretariat before the meeting 
with the Panel, on dates to be established in due course. One of these sessions will be a joint 
session with all remote participants in the meeting, including the pa nelists joining remotely. 
Such sessions will seek to reflect, as far as possible, the conditions of the proposed meeting. 
Remote participants should make themselves available for the test sessions.  
Confidentiality and security  
8. The meeting shall be confide ntial. 
9. All remote participants shall follow any security and confidentiality protocols and guidelines 
the Panel may provide in advance of the meeting.  
10. Remote participants shall connect to the virtual meeting through a secure internet 
connection and shall a void the use of an open or public internet connection.  
11. The parties and third parties are strictly prohibited from:  
(1) Recording, via audio, video or screenshot, the virtual meeting or any part thereof; and  
(2) Permitting any non -participant to record, v ia audio, video or screenshot, the virtual 
meeting or any part thereof.  
12. The Panel will record the meeting and keep an official copy of it for the Panel's record. Such 
recording will include video and audio footage transmitted through the platform.  
Conduct of the meeting  
Access to the virtual meeting room  
13. (1) The host will invite remote participants via email to join the virtual meeting room on the 
platform.  
(2) For security reasons, access to the virtual meeting will be password -protected and limited 
to members of the delegations, who shall not forward or share the virtual meeting link or 
password.  
(3) Each party and third party shall ensure that only members of its delegation join the 
virtual meeting room.  
Advance log -on 
14. (1) The virtual meeting room wil l be accessible 60 minutes in advance of the scheduled start 
time of each session of the meeting with the Panel.  
(2) 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.  WT/DS582/R/Add.1  
 
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  Document sharing  
15. (1) Before each party or third -party takes the floor, it shall provide the Panel and other 
participants at the meeting with a provisional written version of its statement through the 
designated emailing list.  
(2) Any participant wishing to share a document with the other participants during the 
meeting will do so through the designated emailing list, before first referring to such 
document at the meeting.  
Pauses for internal coordination and consultation  
16. The Panel may briefly pause a session at any time, at its own initiative or upon request by 
a party, to enable any necessary internal coordination and consultation within a party's 
delegation and/or among the panelists.  
Technical issues  
17. (1) Each party and third -party sh all designate a contact person who can liaise with the host 
during the course of the meeting to report any technical issues that arise with respect to the 
platform. The host can be contacted via the platform, by sending an email to 
****.****@wto.org , or by calling at +4122 *** ****. 
(2) Should any technical interruptions occur, the host will directly coordinate 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.   
Relation with the Working Procedures  
18. These additional Working Procedures complement the Working Procedures of the Panel 
adopted on  4 December 2020 and revised on 27 January 2021, and prevail over the latter 
to the extent of any conflict.  
 
 
 WT/DS582/R/Add.1  
 
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  ANNEX A -3 
ADDITIONAL WORKING PROCEDURES  OF THE PANEL  
Concerning meetings with remote participation for the second substantive meeting  
Adopted on 18 March 2022  
 
General  
1. These additional Working Procedures set out terms for holding meetings with the Panel in 
which participants may attend by remote means.  
Definitions  
2. For the purp oses of these Procedures:  
"Remote participant"  means any person participating in the meeting with the Panel by 
remote means. This includes members of the parties' delegations, experts appointed by the 
Panel, and interpreters.  
"Platform"  means the Cisco Web ex software through which remote participants will 
participate in the meeting with the Panel.  
"Host"  means the designated person within the WTO Secretariat responsible for the 
management of the platform for remote participants to participate in the meeting  with the 
Panel.  
Equipment and technical requirements  
3. Each party shall ensure that remote participants of its delegation join the meeting using the 
designated platform, and meet the minimum equipment and technical requirements set out 
by the platform provi der for the effective conduct of the meeting.  
4. All technical questions, including the minimum equipment and technical requirements for 
the usage of the platform, will be addressed in the advance testing sessions between the 
host and the remote participants provided for in paragraph 7 below.  
 
Technical support  
5. (1) The host will assist remote participants in planning, testing and conducting the virtual 
meeting and provide remote participants with technical support pe rtaining to the platform 
and its functionality.  
(2) In order to guarantee the timely provision of technical support, the host will prioritize 
assisting those remote participants designated as main speakers on the delegations' lists.  
(3) In light of the li mitations of remote assistance, each party shall be responsible for its 
own technical support pertaining to its computer systems and networks.  WT/DS582/R/Add.1  
 
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  Pre-meeting  
Registration  
6. Each party shall provide to the Panel the list of the members of its delegation on a dedicated 
form provided by the Panel Secretary no later than 5:00 p.m. (Geneva  time) on 21 March 
2022.  
Advance testing  
7. Remote participants will hold two testing sessions with the Secretariat before the meeting 
with the Panel, on dates to b e established in due course. One of these sessions will be a joint 
session with all remote participants in the meeting, including the panelists joining remotely. 
Such sessions will seek to reflect, as far as possible, the conditions of the proposed meeting . 
Remote participants should make themselves available for the test sessions.  
Confidentiality and security  
8. The meeting shall be confidential.  
9. All remote participants shall follow any security and confidentiality protocols and guidelines 
the Panel may prov ide in advance of the meeting.  
10. Remote participants shall connect to the virtual meeting through a secure internet 
connection and shall avoid the use of an open or public internet connection.  
11. The parties are strictly prohibited from:  
(1) Recording, via aud io, video or screenshot, the virtual meeting or any part thereof; and  
(2) Permitting any non -participant to record, via audio, video or screenshot, the virtual 
meeting or any part thereof.  
12. The Panel will record the meeting and keep an official copy of it for the Panel's record. Such 
recording will include video and audio footage transmitted through the platform.  
Conduct of the meeting  
Access to the virtual meeting room  
13. (1) The host will invite remote participants via email to join the virtual meeting r oom on the 
platform.  
(2) For security reasons, access to the virtual meeting will be password -protected and limited 
to members of the delegations, who shall not forward or share the virtual meeting link or 
password.  
(3) Each party and shall ensure that o nly members of its delegation join the virtual meeting 
room.  
Advance log -on 
14. (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) 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.  WT/DS582/R/Add.1  
 
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  Document sharing  
15. (1) Before each party takes the floor, it shall provide the Panel and other participants at the 
meeting with a p rovisional written version of its statement through the designated emailing 
list. 
(2) Any participant wishing to share a document with the other participants during the 
meeting will do so through the designated emailing list, before first referring to such  
document at the meeting.  
Pauses for internal coordination and consultation  
16. The Panel may briefly pause a session at any time, at its own initiative or upon request by 
a party, to enable any necessary internal coordination and consultation within a party's  
delegation and/or among the panelists.  
Technical issues  
17. (1) Each party shall designate a contact person who can liaise with the host during the 
course of the meeting to report any technical issues that arise with respect to the platform. 
The host can be c ontacted via the platform, by sending an email to ****.****@wto.org , or 
by calling at +41 22 *** ****. 
(2) Should any technical interruptions occur, the host will directly coordinate with the 
affected participants t o 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.   
Relation with the Working Procedures  
18. These additional Working Procedures complement the Working Procedures of the Panel 
adopted on  4 December 2020 and revised on 27 January 2021, as well as the 
Additional  Working Procedures concerning meetings with remote participation, adopted on 
20 Septembe r 2021. The current additional Working Procedures prevail over the 
aforementioned documents to the extent of any conflict.  
 
 
 
_______________  
 
 
 
 
 
 
 WT/DS582/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PARTIES  
EUROPEAN UNION  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of the European Union  18 
Annex  B-2 Second integrated  executive summary of the arguments of the European Union  26 
 
INDIA  
Contents  Page  
Annex  B-3 First integrated executive summary of the arguments of India 31 
Annex  B-4 Second integrated  executive summary of the arguments of India 44 
 WT/DS582/R/Add.1  
 
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ANNEX  B-1 
FIRST INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
1. INTRODUCTION  
1. This dispute concerns the imposition of duties on imports of certain goods in the information 
and communications technology ("ICT") sector, contrary to India's obligations under the 
General Agreement on Tariffs and Trade 1994 ("GATT 1994").  
2. In 1997 India undertook in its certified Schedule of Concessions and Commitments annexed to 
the GATT 1994 ("India's GATT Schedule") commitments to accord duty free treatment with 
regard to the i mports of the ICT products concerned by this dispute.  
3. Initially India implemented correctly those tariff bindings. However, since 2014 India has 
adopted measures re -imposing import duties on the products concerned by this dispute. 
Currently, the duty r ates applied by India on imports of those products are up to 20%, 
depending on the tariff line, and are, therefore, in excess of India's bound rates.  
4. By applying customs duties in excess of its tariff bindings India acts in a manner manifestly 
inconsist ent with its obligations under Article II:1 (a) and (b) of the GATT 1994.  
2. INDIA'S 'PRELIMINARY OBJECTION' AND REQUEST FOR A PRELIMINARY RULING  
2.1. INDIA'S PRELIMINARY OBJECTION – THE PANEL COMPOSITION  
5. India's submission that the Panel was not proper ly composed is unconvincing and its request 
that the Panel should decline jurisdiction should be rejected.  
6. In its report in US – Zeroing (EC)(Article 21.6 – EC), the Appellate Body concluded that the 
panel in that case did not err in refraining from ma king a finding whether it was itself properly 
composed . Independently of whether the Panel has the power under the DSU to rule on the 
question of its own composition, the composition of the Panel in the present case was properly 
determined by the WTO Direc tor General in application of Art. 8.7 of the DSU.  
7. Article 8.7 of the DSU provides for three conditions in this respect, namely (i) that there is no 
agreement on the panellists within 20 days after the date of the establishment of a panel, (ii) 
that on e of the parties has made a request to the Director General to compose the panel and 
(iii) that the Director General has consulted the parties. These three conditions were fulfilled in 
the present case.  
8. The Panel would not act in accordance with its obl igations under the DSU if it were to decline 
its jurisdiction.  
2.2. INDIA'S REQUEST FOR A PRELIMINARY RULING – SCOPE OF THE PANEL REQUEST  
9. India's submission that the European Union's panel request does not fulfil the requirements of 
Art. 6.2 of the DSU should be rejected.  
10. India has failed to make a prima facie case in this respect, as its submission does not refer to 
the European Union's panel request, but to the European Union's first written submission. Art. 
6.2 of the DSU concerns only the panel request.  
11. In any event, the European Union's panel request fulfils the requirements of Art. 6.2 of the 
DSU, in particular by identifying the measures at issue in the present case and by identifying 
the scope of European Union's claims in this respect.  WT/DS582/R/Add.1  
 
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  3. INDIA'S CUSTOMS DUTY REGIME  
12. The basic legislative instruments governing the levying of import duties in India are the 
Customs Act and the Customs Tariff Act. The First Schedule to the Customs Tariff Act ("India's 
First Schedule") lays down the basic  customs duties on imports into India.  
13. The Customs Act and Customs Tariff Act are in practice amended by the annual Finance Act 
adopted by the Indian Parliament.  
14. Section 25 of the Customs Act empowers the Government of India to grant exemptions fro m 
the payment of basic customs duties on goods imported into India by issuing notifications. Such 
exemptions can be absolute or conditional. Such exemptions can be modified or rescinded 
anytime by the Government. A notification remains in principle applica ble even if the underlying 
statutory basic customs duty rate has been increased by an act of parliament.  
15.  Section 8A of the Customs Tariff Act gives the Government of India emergency powers to 
increase the basic customs duty under certain conditions.  
16. Section 11A of the Customs Tariff Act empowers the Government of India to alter India's First 
Schedule, wi thout however altering or affecting the rates of basic customs duty leviable on 
goods imported into India.  
4. THE LEGAL STANDARD  
17. To make a claim under Article II:1(a) and Article II:1(b) of the GATT 1994, a complainant must 
establish: (1) the treatmen t accorded to the products at issue under the relevant Schedule; 
(2) the treatment accorded to the products at issue under the measures at issue; and (3) 
whether the measures at issue result in less favourable treatment of the products at issue than 
that p rovided for in the relevant Schedule and, more particularly, whether those measures 
result in the imposition of duties and conditions on the products at issue in excess of those 
provided for in the relevant Schedule.  
18. The complaining party needs not id entify particular product models or categories in order to 
establish an "as such" breach of Article II:1(a) and Article II:1(b) of the GATT 1994. A 
determination that "some products fall within the scope of duty -free concessions in the 
[relevant] Schedule" , and that "the challenged measures provide for the application of duties 
to those products covered by the concession", is sufficient for a finding of an as such 
inconsistency with Article II:1(a) and Article II:1(b) of the GATT 1994.1 
19. A breach of Art icle II:1(b) of the GATT 1994 entails necessarily a breach of Article II:1 (a) of 
the GATT 1994.  
5. THE TARIFF LINES AT ISSUE  
5.1. STATIC CONVERTERS FOR AUTOMATIC DATA PROCESSING MACHINES AND UNITS THEREOF 
AND TELECOMMUNICATIONS APPARATUS (TL 8504.40.02)  
20. The TL 8504.40.02 ( 'Static converters for automatic data processing machines and units 
thereof, and telecommunications  apparatus') is bound at 0 % in India's GATT Schedule.   
21. The products covered in India's GATT Schedule by item 8504.40.02 fall wit hin the scope of 
Code 8504.40.90 ( 'Other') in the first schedule of India's Customs Tariff Act. The rate for Code 
8504.40.90 pursuant to India's First Schedule is 20 % and, therefore, is in excess of India's 
bound rate in its certified GATT Schedule.  
22. Notification 25/2005 exempted imports of certain products from the rates stipulated in India's 
First Schedule, including, as Item No. 4, the item 'Static converters for automatic data 
processing machines and units thereof'. However, Notification 25/2005 was subsequently 
amended by Notification 67/2017, which replaced the product description of Item No. 4 with 
the following:  "Static converters for automatic data processing machines and units thereof, 
and telecommunications  apparatus, other than s tatic converters for cellular mobile phones".  
23. By adding the phrase "other than static converters for cellular mobile phones", Notification 
67/2017 carved out static convertors for cellular mobile phones from the exemption originally 
 
1 Panel Report, EC – IT Products , para. 7.116.  WT/DS582/R/Add.1  
 
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  stipulated by Notif ication 25/2005 with regard to imports of all static converters for 
telecommunication apparatus. India's binding in its GATT Schedule for item 8504.40.02 at a 0 
% rate covers all "static converters for … telecommunications apparatus". Cellular mobiles are 
a "telecommunication apparatus". Therefore, India's binding for item 8504.40.02 covers inter 
alia static converters for cellular mobile phones.  
24. For the above reasons, India accords to those imports treatment less favourable than that 
provided for in it s GATT Schedule, thereby breaching Article II.1(a) of the GATT 1994. In 
addition, and for the same reason, India fails to exempt those products from ordinary customs 
duties in excess of those set forth and provided for in its GATT Schedule, thereby breachi ng 
Article II.1 (b) of the GATT 1994.  
5.2. TELEPHONES FOR CELLULAR NETWORKS OR FOR OTHER WIRELESS NETWORKS 
(TL 8517.12)   
25. TL 8517.62 ("Telephones for cellular networks or for other wireless networks") is bound at 0 
% in India's GATT Schedule. India's Fi nance Act 2019 set the duty rates for the three TL 
8517.12.11 ("Mobile Phones other than push button type"), 8517.62.19 ("Mobile Phones push 
button type") and 8517.12.90 ("Telephones for other wireless networks") at 20 %.  
26. Notification 21/2005 and 23/20 10 provided for partial exemptions for products contained in 
those TL, but these partial exemptions are not available anymore as per Notification 22/2012.  
27. Notification 23/2005 exempted products falling into TL 8517 from duties, but this exemption 
was r estricted by Notification 58/2017 in a way that TL 8517.12.10 and TL 8512.90 did not 
benefit anymore from this exemption.2  
28. Notification 57/2017 provided for a limited exemption for "telephones for wireless networks 
other than  cellular networks".  
29. For the above reasons, India accords to those imports treatment less favourable than that 
provided for in its GATT Schedule, thereby breaching Article II.1(a) of the GATT 1994. In 
addition, and for the same reason, India fails to exempt those products fro m ordinary customs 
duties in excess of those set forth and provided for in its GATT Schedule, thereby breaching 
Article II.1 (b) of the GATT 1994.  
5.3. BASE STATIONS (TL 8517.61)  
30. TL 8517.61 ("Base Stations") is bound in India's GATT Schedule at 0 %. However, India's First 
Schedule fixes the duties imposed on these products at 20 %.  
31. Notification 56/2017 temporarily fixed the applicable duty rate at 10 % (itself in excess of 
India's tariff bindings), but was rescinded by Notification 74/2018.  
32. Notification 24/2005 fixed the applicable duty rate for products of TL 8517.61 at 0 %. The 
subsequent Notification 58/2017 restricted the exemption and TL 8517.61 is not covered 
anymore.  
33. Notification 57/2017 exempts certain specific products falling in to the scope of TL 8517.61 from 
customs duties, under strict conditions specified in that notification.  
34. India therefore accords to those imports of products falling into TL 8517.61 (and not covered 
by any notification currently applicable) treatment le ss favourable than that provided for in its 
GATT Schedule, thereby breaching Article II.1(a) of the GATT 1994. In addition, and for the 
same reason, India fails to exempt those products from ordinary customs duties in excess of 
those set forth and provided  for in its GATT Schedule, thereby breaching Article II.1 (b) of the 
GATT 1994.  
 
2 It is to be noted in this res pect that India 's Finance Act 2019 (which is subsequent to Notification 
58/2017) changed the product description for TL 8517.12.90 and created two new tariff lines (8517.12.11 and 
8517.12.19).  WT/DS582/R/Add.1  
 
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  5.4.  MACHINES FOR THE RECEPTION , CONVERSION AND TRANSMISSION OR REGENERATION OF 
VOICE, IMAGES OR OTHER DATA (TL 8517.62)  
35. TL 8517.62 ("Machines for the reception, conversio n and transmission or regeneration of voice, 
images or other data") is bound in India's GATT Schedule at 0 %. India's First Schedule sets 
the applicable tariff rate for products falling into the scope of TL 8517.62.90 at 20 %.  
36. Notification 24/2005 gra nted exemptions to certain goods falling into the scope of this TL, but 
Notification 58/2017 amended this exemption and TL 8517.62.90 is not covered anymore.  
37. Notification 57/2017 as amended by Notification 2/2019 reduced the applicable tariff rate for 
certain products falling into the scope of TL 8517.62.90 to 10 %.  
38. Notification 36/2019 of the Government of India exempts 'routers' from customs duties.  
39. Both a 10 % as well as a 20 % tariff rate are in excess of India's bindings and India therefore  
accords to those imports of products falling into TL 8517.62.90 treatment less favourable than 
that provided for in its GATT Schedule, thereby breaching Article II.1(a) of the GATT 1994. In 
addition, and for the same reason, India fails to exempt those pr oducts from ordinary customs 
duties in excess of those set forth and provided for in its GATT Schedule, thereby breaching 
Article II.1 (b) of the GATT 1994.  
5.5. PARTS AND ACCESSORIES OF THE MACHINES OF HEADING 84.71  (TL 
8517.70.01/02/030)  
40. TL 8517.70.0 1/02/03 ("Parts and accessories of the machines of heading 84.71") is bound in 
India's GATT Schedule at 0 %. Under India's First Schedule, the products falling into the scope 
of this TL are fixed at 20 % for certain goods, and 15 % at all others.  
41. Sever al notifications based on Section 25 of the Customs Tariff Act have been adopted by the 
Government of India. However, none of these notifications currently provide for exemptions 
which would bring India's applied tariffs in line with India's bindings under  its GATT Schedule.  
42. With regard to TL 8517.70.10 , Notification 24/2005 exempted all goods of this TL from customs 
duties. The subsequent Notification 38/2018 limits this exemption, which is available only for 
certain products of this TL, namely "all go ods other than  Printed Circuit Board Assembly (PCBA) 
for cellular phones".  
43. By Notification 50/2017 of 30th of June, 2017, the Government of India set the applicable tariff 
at 0% for certain, but not all products falling under TL 8517.70.10, subject to  compliance with 
certain conditions.  
44. Notification 57/2017, as amended by Notification 2/2020, furthermore sets tariff duties for 
certain goods falling under TL 8517.70.10 at 10 %. This tariff is therefore in excess of India's 
binding rate. At any rate,  this exemption was available only until 31 March 2020.  
45. With regard to TL 8517.70.90 , Notification 24/2005 exempted the entirety of the products 
under TL 8517 from tariff duties and Notification 132/2006 confirmed this exemption. 
Notification 58/2017, however, amends Notification 24/2005 and provides the exemption only 
for TL 8517.70.10, and not for TL 8517.70.90.  
46. Notification 57/2017, as amended, provides for some exemptions for the products covered by 
TL 8517.70.90. However, these exemptions do no t cover all products of that TL, and are subject 
to conditions.  
47. Insofar as these notifications do not provide for an unconditional freedom from any tariffs for 
the products falling into the aforementioned TLs, India accords to those imports treatment less 
favourable than that provided for in its GATT Schedule, thereby breaching Article II.1(a) of the 
GATT 1994. In addition, and for the same reason, India fails to exempt those products from 
ordinary customs duties in excess of those set forth and provid ed for in its GATT Schedule, 
thereby breaching Article II.1 (b) of the GATT 1994.  
5.6. LINE TELEPHONE HANDSETS (TL 8518.30.01)  
48. TL 8518.30.01 ( 'Line telephone handsets') is bound in India's GATT Schedule at 0 %. The First 
Schedule of India's Customs Tariff Act provides for the imposition of customs duties at a 15 % 
rate on imports of all 'headphones and earphones, whether or not combined with a mi crophone, WT/DS582/R/Add.1  
 
- 22 - 
 
  and sets consisting of a microphone and one or more loudspeakers'. The products covered by 
item 8518.30.01 included in India's GATT Schedule fall within the scope of Code 8518.30.00 in 
the First Schedule of India's Customs Tariff Act.  
49. Notific ation 25/2005 exempted imports of certain products from the customs duty rates 
stipulated in the First Schedule of India's Customs Tariff Act, including, as Item No.9, TL 8518 
30 00 ( 'Line telephone handsets'). However, in 2019, Notification 25/2005 was am ended 
through Notification 23/2019, which changed the product description of Item No. 9 to "parts of 
line telephone sets", thereby excluding complete line telephone handsets.  
50. By excluding complete line telephone handsets from the exemption previously granted in 
Notification 25/2005, with the consequence that imports of those products are now subject to 
customs duties at a 15 % rate, India accords to those imports treatment less favourable than 
that provided for in its GATT Schedule, thereby breaching A rticle II.1(a) of the GATT 1994. In 
addition, and for the same reason, India fails to exempt those products from ordinary customs 
duties in excess of those set forth and provided for in its GATT Schedule, thereby breaching 
Article II.1 (b) of the GATT 1994 . 
5.7.  INSULATED ELECTRIC CONDUCTORS FITTED WITH CONNECTORS FOR TELECOMMUNICATIONS 
(TL 8544.42.01)  
51. TL 8544.42.01 ( 'Insulated electric conductors; for a voltage not exceeding 1000 volts, fitted 
with connectors, of a kind used in telecommunications') is  bound in India's GATT Schedule at 
0 %. 
52. The First Schedule of India's Customs Tariff Act provides for the imposition of customs duties 
at a 15 % rate on imports of all insulated electric conductors, for a voltage not exceeding 1.000 
volts, and fitted w ith connectors, including those of a kind used in telecommunications.  
53. Notification 25/2005 exempted imports of certain products from the BCD rates stipulated in in 
the First Schedule of India's Customs Tariff Act, including the following:  
 
28 8544 41, 8544 49  Electric conductors, for a 
voltage not exceeding 80 V, 
of a kind used for 
telecommunications  
29 8544 51  Electric conductors, for a 
voltage exceeding 80 V, but 
not exceeding 1000 V, fitted 
with connectors, of a kind 
used for 
telecommunications  
 
54. The two exemptions shown in the above Table ensured compliance with the tariff binding under 
consideration. However, in 2006 Notification 25/2005 was amended by Notification 133/2006, 
which replaced the Codes mentioned in the secon d column for items  28 and 29 with Code 
8544 49 and Code 8544 42, respectively, in order to reflect the introduction of a new 
nomenclature based on the HS 2007. Thus, as amended by Notification 133/2006, Notification 
25/2005 now provides for the following exemptions:  
 
28 8544 49  Electric conductors, for a 
voltage not exceeding 80 V, of 
a kind used for 
telecommunications  WT/DS582/R/Add.1  
 
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  29 8544 42  Electric conductors, for a 
voltage exceeding 80 V, but 
not exceeding 1000 V, fitted 
with connectors, of a kind used 
for telecommunications  
 
 
55. Prior to the introduction of the HS 2007, Code 8544 41 covered electric conductors, for a 
voltage not exceeding 80 Volts, fitted with connectors, of the kind used for telecommunications. 
Following the introduction of the HS 2007, those products are covered by Code 8544 42. 
Nevertheless, the product description stipulated in Notification 25/2005 alongside Code 8544 
42, which was not amended by Notification 133/2006, does not cover electric conductors for a 
voltage not exceedin g 80 V, fitted with connectors.  
56. By excluding electric conductors, for a voltage not exceeding 80 Volts, fitted with connector, of 
the kind used for telecommunications, from the exemption previously granted in Notification 
25/2005 India accords to those  imports treatment less favourable than that provided for in its 
GATT Schedule, thereby breaching Article II.1(a) of the GATT 1994. In addition, and for the 
same reason, India fails to exempt those products from ordinary customs duties in excess of 
those s et forth and provided for in its GATT Schedule, thereby breaching Article II.1 (b) of the 
GATT 1994.  
6. INDIA'S CONCESSIONS ARE NOT INVALID PURSUANT TO ARTICLE 48 OF THE VCLT  
57. Article 48 of the Vienna Convention on the Law of Treaties ("VCLT") is part of customary 
international law. As such, it is binding upon all WTO Members and applicable in disputes 
between them, to the extent that the parties to the WTO Agreement have not "contracted out" 
from it. Article 48 of the VCLT cannot provide, by itself, th e legal basis for a claim. But it may 
be invoked as a defence against a claim based on a provision of a covered agreement. Where 
that defence is raised, a panel must determine whether the respondent's consent to be bound 
by the provision of the covered agr eement invoked by the claimant is invalidated by the alleged 
error pursuant to Article 48 VCLT. The burden of proof is on the party alleging the error as a 
defence, including with regard to Article 48.2 of the VCLT.  
58. However, India has failed to show th at the tariff concessions at issue are invalid pursuant to 
Article 48 of the VCLT: f irst, India has not proven that it made the alleged error; second , the 
alleged error is an error of law, which would fall outside the scope of Article 48.1 of the VCLT; 
and third, in any event, the alleged error would not be "excusable" according to Article 48.2 of 
the VCLT.  
6.1. INDIA HAS NOT PROVEN THE ALLEGED ERROR  
59. According to India, the alleged error would consist in India's mistaken "assumption", at the 
time of the certification of its 2007 GATT Schedule, "that the HS2007 transposition did not 
expand India's tariff commitments beyond India's obligations under the ITA-1". That 
"assumption", however, was not in error. The transposition of India's GATT Schedule to HS 
2007 was just that: a mere transposition of pre -existing concessions into a new version of the 
HS nomenclature. That transposition did not purport to exp and and, in practice, did not expand 
the scope of India's pre -existing tariff concessions. India did not err by assuming that the HS 
2007 transposition could not expand the scope of pre -existing concessions in India's GATT 
Schedule. Rather, India erred by assuming that those pre -existing concessions could not cover 
any products that did not exist at the time when the ITA -1 was concluded.     
60. India appears to invoke Article 48 of the VCLT in respect of all the tariff concessions at issue in 
this dispute.  Yet two of the tariff sub -headings at issue were not modified as a result of the 
transposition to HS 2007 (8504.40.02 and 8518.30.01). Moreover, India does not appear to 
contest that it is required to accord duty free treatment for imports of "line teleph one handsets" 
and of products covered by tariff sub -heading 8544.42.01. Rather, India's defence is that it 
does accord such tariff treatment.  WT/DS582/R/Add.1  
 
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  6.2. THE ALLEGED ERROR FALLS OUTSIDE THE SCOPE OF ARTICLE 48.1  OF THE VCLT   
61. Not every error in a treaty may b e invoked as a ground for invalidating consent to be bound 
by a treaty. The rule laid down in Article 48.1 of the VCLT only applies "if the error relates to 
fact or situation which was assumed … to exist at the time when the treaty was concluded". 
Accordin g to the commentary of the International Law Commission (the "ILC") to the Final 
Draft of the VCLT, the term "relates to a fact or situation" was intended to make clear that an 
error of law does not constitute a ground for invalidating consent. The princip le that an error 
of law may not, as such, be invoked as invalidating the consent to be bound by a treaty is in 
accordance with the position taken by international courts and tribunals on this issue, as well 
as with the opinion of most commentators.  
62. India argues that it made an error with regard to the scope of the tariff concessions at issue. 
The scope of those concessions is defined by the terms of India's GATT Schedule, which is an 
integral part of the WTO Agreement. The alleged error, therefore, does  not relate to a fact or 
situation underlying the treaty. Rather, the alleged error involves a misinterpretation by India 
of the terms of the treaty on which the European Union bases its claims. Such an error is a 
manifest unmixed error of law and, therefo re, falls squarely outside the scope of Article 48.1 
of the VCLT.  
63. The present case illustrates the dangers that led the drafters of the VCLT to exclude errors of 
law from the scope of Article 48.1 of the VCLT. Most, if not all disputes under the DSU in volve, 
at least in part, a disagreement between the disputing parties with regard to the proper 
interpretation of the provisions of the WTO Agreement invoked by the claimant. If errors of law 
were covered by Article 48.1 of the VCLT, it would be open to th e respondent in virtually every 
WTO dispute to invoke, as an alternative defence, the invalidity of its consent to the provisions 
relied upon by the claimant, on the ground that the respondent had made an error with regard 
to the correct interpretation of that provision.  
6.3. THE ALLEGED ERROR IS INEXCUSABLE ACCORDING TO ARTICLE 48.2  OF THE VCLT 
64. Article 48.2 of the VCLT subjects a State's right to invoke an invalidating error in accordance 
with Article 48.1 to two conditions: first, that the State in q uestion did not contribute by its 
own conduct to the error; and second , that the circumstances were not such as to put the State 
in question on notice of a possible error. In both cases, the error is "inexcusable" since "the 
mistaken party in some degree b rought the error upon itself". In the present case neither of 
those two conditions is fulfilled.  
6.3.1.1  India contributed by its own conduct to the alleged error  
65. The transposition from to 2007 was conducted in accordance with a procedure decided in 
advance by the WTO Council, with India's agreement (the "Procedure for introduction of 
HS2007"). India had a possibility to prepare its own transposition. Having chosen not to do so, 
India cannot shift the responsibility for the alleged error to the WTO Sec retariat.  
66. Furthermore, Members which, like India, chose to rely on the assistance of the WTO Secretariat 
were closely involved throughout the preparation process and retained full control over it.  India 
had ample opportunity to review the drafts, to r equest clarifications and provide comments 
and, if necessary, to object to the transposition to HS 2007 prepared by the WTO Secretariat. 
Nevertheless, India did not do so with regard to any of the tariff subheadings in dispute at any 
stage of the process.  
67. The allegedly " complex technical nature" of the transposition cannot release India from its 
responsibility. In the first place, India greatly overstates the complexity of the process. The 
tariff lines at issue were not among those identified by the WT O Secretariat as potentially 
controversial. Furthermore, even if the transposition of the tariff items at issue could be 
regarded as particularly "complex", India has carefully refrained from alleging that Indian 
officials lacked the necessary qualificatio ns for reviewing it.  
6.3.1.2  The circumstances were such as to put India on notice of the alleged error  
68. First, the WTO Secretariat made available to India for review and approval successive drafts of 
the transposition to HS 2007. It was clear from the terms of those drafts that the concessions WT/DS582/R/Add.1  
 
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  for the HS 2007 tariff -subheadings at issue in this dispute did cover products which, according 
to India, were not covered by the ITA -1 because they did not exist when the ITA -1 was 
negotiated.  Indeed, India has made no attempt in this dispute to contest that the terms of its 
latest certified GATT Schedule do cover those "n ew products". Rather, India limits itself to 
argue that the concessions at issue are invalid pursuant to Article 48 of the VCLT.  
69. Second , the 2010 panel report in EC-IT Products  examined the relationship between the ITA -1 
and the concessions for certai n IT products included in the EU's GATT Schedule. The same 
panel report addressed in detail the relevance of the status of technology at the time of 
negotiating the ITA -1 in assessing the scope of those concessions. The findings made by the 
panel in that c ase, as well as the views on those issues expressed by a large number of 
Members in that dispute, should have alerted India to the possibility that India's assumption 
that GATT concessions linked to the ITA -1 did not cover "new products" could be in error.      
7. INDIA'S SUBMISSIONS CONCERNING THE RELEVANCE OF THE ITA -1 
70. Both the European Union and India are parties to the Information Technology Agreement (the 
"ITA-1")3 of December 1996. According to paragraph 2 of the ITA -1, the parties to the ITA -1 
agree to bind and eliminate customs duties and other duties on all products listed in 
Attachments A and B to the ITA -1. The ITA -1 provides that parties to the ITA -1 shall incorporate 
this measure into their GATT Schedules of concessions in a manner specified  in the ITA -1. 
71. The ITA -1 is not a covered agreement within the meaning of Art. 1.1 of the DSU, as it is not in 
the list of 'covered agreements' in Appendix 1 to the DSU. The Panel is therefore not 
empowered to apply the ITA -1. The Panel's jurisdiction is limited to the covered agreements 
as defined in the DSU.  
72. In line with previous findings of the Appellate Body, the ITA -1 can be considered to fall into the 
scope of Art. 31(2) of the VCLT. In order for the ITA -1 to serve as context relevant  for the  
interpretation of a covered agreement, the ITA -1 must not only fall into the scope of Art. 31(2) 
of the VCLT, but it also must have relevance or pertinence to the language being interpreted. 
The European Union considers that the ITA -1 provides historical context for India's obligations, 
but that the ITA -1 is not relevant or pertinent to the interpretation of the tariff lines in India's 
GATT Schedule at issue in the present dispute.  
73. The interpretation of the ITA -1 must follow the customary rules of int erpretation as set out in 
Articles 31 and following of the VCLT. The European Union refers in this respect to the findings 
of the panel in EC – IT Products , both with regard to its own position as well as with regard to 
the position of the panel in that ca se, with which the European Union agrees.4 
74. At issue in the present case are India's obligations under Art. 2 of the GATT and under India's 
GATT Schedule, and not India's obligations under the ITA -1. The ITA -1 on the one hand and 
India's GATT Schedule of concessions on the other hand can be considered separate and distinct 
matters.  
75. In any event, all of the products at issue in the present case are covered by the ITA -1. 
76. The development of new technologies and new products does not alter the cont ent or scope of 
India's obligations under its certified GATT Schedule. The panel in EC – IT Products  was correct 
in its finding that the "determination of the scope of [product coverage of a commitment in a 
GATT Schedule] comes from the meaning of the term s of that commitment". What counts is 
therefore not whether a product is "new" or whether it has undergone technical advancements. 
What counts is whether a specific product is within the scope of a tariff schedule, and in 
particular within the scope of the  product descriptions in that schedule. If it is, the schedule 
and the tariff obligations expressed therein apply.  
77. The ITA Expansion does not have relevance for the interpretation of India's GATT Schedule in 
the tariff lines at issue in the present ca se. In particular, it is incorrect to argue that the product 
scope of the ITA -1 and the ITA Expansion are mutual exclusive in the sense that the fact that 
a product is within the product scope of the ITA Expansion is positive proof of the fact that it 
was not covered by the ITA -1. 
 
 
3 See the "Ministerial Declaration on Trade in Information Tech nology Products ". 
4 See Panel Report, EC – IT Products, paras. 7.384.  WT/DS582/ R/Add.1  
 
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  ANNEX B -2 
SECOND  INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
1. THE  CONCESSIONS  IN INDIA'S  GATT  SCHEDULE  ARE  NOT  INVALID  PURSUANT  TO 
ARTICLE  48 OF THE  VCLT  
1. India does not dispute that Article 48 of the VCLT cannot be invoked with regard to unmixed 
errors of law. Rather, India contends that "India's error […] qualifies as a fact or situation" ; 
and that "by inadvertently certifying co ncessions contrary to its unequivocal objections, India 
committed a factual/situational error". This argument confuses two different matters. In order 
to prove an invalidating error it is not enough for the invoking party to prove that, as a matter 
of fact , it made an error. In addition, the invoking party must prove that such error "relates to 
a fact or situation", rather than to a question of law, such as the interpretation of the treaty 
concerned.   
2. India has argued that the alleged error would be "ex cusable" in accordance with Article 48.2 
of the VCLT because the contested tariff lines were not "adequately flagged" 1 by the WTO 
Secretariat as part of the transposition process to HS 2007. India's attempt to shift the blame 
for the alleged error to the WTO Secretariat is unjustified and regrettable. The transposition to 
HS 2007 of the tariff lines at issue did not invol ve any "change in the scope of the concession". 
Therefore, there was no reason why the WTO Secretariat should have "flagged" those tariff 
lines to India.  
3. A comparison with the ITA -1 is not relevant in order to establish the existence of the error 
alleged by India because the ITA -1 is not a "covered agreement" within the meaning of Article 
1.1 of the DSU. Rather, the relevant question is whether India's presently certified WTO 
Schedule should be compared to India's Schedule based on HS1996 or to India's Schedule 
based on HS2002. India argues that it made the alleged error at the time of the transposition 
of its Schedule from HS2002 to HS2007. Accordingly, the relevant comparison is with India's 
Schedule based on HS2002, rather than with India's Schedule b ased on HS1996. The code 
numbers and accompanying product descriptions were not changed as a result of the 
transposition of India's Schedule from HS1996 to HS2002. Nevertheless, that product 
description may have to be interpreted differently following the transposition to HS2002 
because of the new and different legal context provided by other components of the HS2002 
or of India's Schedule based on HS 2002, or by the Explanatory Notes and other interpretative 
instruments relating to HS200.    
4. Articles 44  and 45 VCLT could be applicable in WTO dispute settlement proceedings provided 
that: 1) they could be considered as embodying customary law; 2) the parties to the WTO 
Agreement had not 'contracted out' from those provisions. The Panel, nevertheless, need not 
reach these issues because India has failed to prove that it made an invalidating error pursuant 
to Article 48 VCLT. In any event, India has not shown that the requirements of Articles 44 and 
45 of the VCLT are satisfied in the present proceedings.   
5. India bears the burden of proving that the condition of subparagraph 3(b) of Article 44 of the 
VCLT is satisfied. Nevertheless, India has limited itself to assert that "the certification of the 
contested sub -headings was not an essential condition for th e consent of other Members to 
2007 Schedule". India has not submitted any meaningful argument or evidence in support of 
this naked assertion and, therefore, has failed to meet its burden of proof. The concessions at 
issue are based on reciprocity. India be nefits from reciprocal concessions scheduled by the 
European Union and other Members with regard to ICT products, including the products at 
issue. It would "upset materially the balance of interests of the parties" if India could continue 
to benefit from t hose concessions while having its own concessions invalidated on grounds of 
error. In addition, it would be manifestly "unjust" and therefore contrary to subparagraph 3(c) 
of Article 44 if India could continue to benefit from the reciprocal concessions mad e by other 
Members while being released from its own obligations.  
 
1 India's Reply to Panel Question 77, paras. 59 -61. See also India's Closing Statement at the Panel's 
first meeting with the parties, paras. 6 -7.  WT/DS582/R/Add.1  
 
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  6. As regards Article 45 of the VCLT, initially India implemented correctly the tariff concessions 
at issue and that it was not until 2014 that India adopted measures re -imposing import duti es 
on the products concerned by this dispute. The European Union and other Members complained 
to India about those measures as early as 2015. Yet India did not invoke the existence of the 
invalidating error alleged in this dispute pursuant to Article 48 VC LT until its first written 
submission to this Panel. Prior to that submission India had sought the "rectification" of what 
it alleged to be a purely "formal" error in the text of its Schedule. But India's rectification 
request was not made until three year s after India's Schedule was certified, effective as of 12 
August 2015. Moreover, the error invoked by India under Article 48 of the VCLT in these 
proceedings and the error invoked by India in support of its request for a rectification under 
the 1980 Proce dures are legally distinct and manifestly incompatible with each other.  
2. THE  PANEL  CANNOT  MAKE  THE  FINDING  ON THE  EU'S  OBJECTION  TO THE  "DRAFT  
RECTIFICATION"  REQUESTED  BY INDIA  
7. India alleges that, by objecting to India's "Draft Certification", the Eu ropean Union acted 
inconsistently with Article 3 of the 1980 Procedures.  
8. As shown by the European Union, that allegation is baseless. The rectification requested by 
India would substantially "alter the scope of the concession" and cannot therefore be regarded 
as being of "purely formal character".  
9. In any event, the 1980 Pro cedures are not a "covered agreement" within the meaning of Article 
1.1 of the DSU. Therefore, a panel established under the DSU is precluded from ruling on 
claims alleging a violation of the 1980 Procedures.  
10. Even if the 1980 Procedures were part of a "covered agreement", India would be precluded 
from bringing claims alleging a violation of the 1980 Procedures by the European Union in the 
present dispute. Indeed, it is well -established that under the DSU it is not possible for the 
responding party to br ing counter -claims against the complaining party.  
11. Lastly, even if the Panel could rule on the violation of Paragraph 3 of the 1980 Procedures by 
the European Union alleged by India (quod non), and even if the Panel were to find that the 
European Union has breached that provision (quod non), the Panel could not rectify by itself 
India's GATT Schedule. That rectification would still require the agreement of all WTO Members. 
As long as India's Schedule has not been rectified in accordance with the 1980 Pro cedures, 
India will remain legally bound by the concessions included in its certified Schedule relied upon 
by the European Union in this dispute.  
3. REBUTTAL  OF INDIA'S  SUBMISSIONS  CONCERNING  THE  RELEVANCE  OF THE  ITA-1 
3.1 The ITA -1 is not a covered agreement under the DSU  
12. The ITA -1 is not a "covered agreement" under the DSU and its interpretation and application 
is therefore not before this Panel.  
13. Insofar as the EU makes reference to the ITA -1 in its submissions to the Panel, it is cl ear that 
such reference is for the purposes of providing the background of the case, and does not mean 
that the EU is basing its legal claim on an inconsistency of India's measures with the ITA -1.  
14. Contrary to India's submission, the EU was therefore u nder no obligation to demonstrate that 
the products at issue in the present case are within the scope of the ITA -1. The European Union 
notes that it nonetheless – in reply to a question from this Panel – has demonstrated that all 
of the products at issue h ere were in fact covered by the ITA -1. 
3.2 The ITA -1 has no relevance for interpreting India's certified schedule of concessions  
15. The European Union does not consider that the ITA -1 has relevance for the interpretation of 
any of the tariff lines of Indi a's schedule of concessions at issue in the present case. Indeed, 
the content of those tariff lines is clear.  WT/DS582/R/Add.1  
 
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  3.3 The ITA -Expansion has no relevance for this dispute  
16. Nothing in the text of the ITA -Expansion indicates that the ITA -Expansion covers only such 
products which were not covered by the ITA -1 and that therefore the product scope of these 
two documents is mutually exclusive.  
17. In any event neither the ITA -Expansion nor the practices of participants to the ITA -Expansion 
can be regarded as "subs equent practice" within the meaning of Article 31.3(b) VCLT.  
4. INDIA'S  DOMESTIC  CUSTOMS  REGIME  
4.1 India's Domestic Customs Regime and the HS  
18. India is a member of the World Customs Organization and a party to the HS Convention. India's 
domestic customs classification system is based on the HS nomenclature. The HS Convention, 
the HS nomenclature and the HS Explanatory Notes are therefore relevant aids for 
understanding India's domestic customs regime.  
19. The HS nomenclature is exhaustive  in the sense that every good must find its place in this 
nomenclature.  
4.2 Changes in India's domestic customs regime after the establishment of the Panel  
20. India has changed its domestic customs regime in some instances after the establishment of 
the Panel. In some instances, these changes in tariff treatment adopted by India means that 
the tariff treatment after the change is not anymore inconsistent with Article II of the GATT 
1994. In such a situation, the Panel should find that (i) prior to the entr y of these changes, 
India was in breach of its obligations pursuant to Article II:1(a) and (b) of the GATT 1994 and 
that (ii) following the entry into force of the amendments in question, India ceased to be in 
breach of those obligations.  
21. There is a different type of situation where India's changes in tariff legislation do not alter the 
fact that India is in breach of its international legal obligations. The EU's request to the Panel 
to find an inconsistency and recommend that India bring its domestic  laws in consistency with 
its international legal obligations remains unchanged in this case.  
4.3 Prima facie case: statutory customs duty and absence of exemptions  
22. In the situation like the present case, the EU has made its prima facie case under Arti cle II:1(a) 
and (b) of the GATT 1994 if it shows that products falling under a certain tariff line of India's 
statutory customs regime (First Schedule to the Customs Tariffs Act) are subject to a basic 
customs duty rate in excess of the relevant bound rate  in India's certified Schedule of 
concessions. It is not necessary in this respect to also show that these products are not all 
exempted from such basic customs duty.  
5. INDIA'S  SUBMISSIONS  CONCERNING  SPECIFIC  TARIFF  LINES  
23. With the exceptions of the ta riff lines mentioned in sections V. and VI. of its first written 
submission, India is advancing arguments with respect to specific tariff lines only with regard 
to the question whether the products are covered by the ITA -1. It is clear from this written 
submission as well as from India's request to the Panel that India advances the arguments of 
that section solely in support of its contention that its certified schedule of concessions was 
certified in error.  
5.1 STATIC CONVERTERS FOR AUTOMATIC DATA PROCESSI NG MACHINES AND UNITS 
THEREOF AND TELECOMMUNICATION APPARATUS (TL 8504.40.02)  
24. India does not contest that "static converters for cellular mobile phones" are covered by the 
commitment included in India's latest certified schedule for tariff line 8504.40 .02. India 
contends, however, that the EU's claim with regard to this tariff line is "dependent" on the EU's 
claim with regard to telephones for cellular networks.  
25. The EU has demonstrated that India's contention relies on the incorrect assumption that 
'mobile phones' are not within the scope of the ITA -1. WT/DS582/R/Add.1  
 
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  5.2 TELEPHONES FOR CELLULAR NETWORKS OR FOR OTHER WIRELESS NETWORKS 
(TL 8517.12)  
26. India submits that the produ cts falling into this tariff line (and namely mobile phones) were 
not covered by the ITA -1. These submissions are irrelevant for the present dispute. In any 
event, ITA -1 does cover all of the products at issue in the present case.  
27. Contrary to India's c ontention, it is evident from the explanatory notes to HS1996 that "speech, 
messages or still pictures" are just examples of the kind of material which can be transmitted 
by mobile phones. It would be wrong to take from these explanations that mobile phone s which 
allow for the transmission of other material cannot be covered by this tariff line.  
28. The fact that India has altered its domestic classification system does not change the fact that 
it continues to charge customs duties in excess of India's bind ings and that therefore India is 
acting inconsistently with its international legal obligations.  
29. With regard to the classification of "smartphones", it is clear from the text of TL 8517.12 in 
HS2007 as well as from customs classification opinions of th e World Customs Organization that 
such smartphones are within the scope of this tariff line.  
5.3 BASE STATIONS (TL 8517.61)  
30. India's argument with regard to the products falling into this tariff line is that they purportedly 
do not fall within the scope  of the ITA -1. As the European Union has demonstrated India's 
submission is incorrect in this respect.  
5.4 8517.62  (Machines for the reception , conversion and transmission or regeneration 
of voice, image or other data, including switching and routing app aratus)  
31. With regard to the EU's claim on this tariff line, the products concerned, and the scope of 
India's inconsistency with its obligations, is made clear by the reference to the tariff line in 
question: this identification in particular would allow  India to understand how to bring its 
domestic legal system into conformity with its international legal obligations.  
32. The EU considers that all products listed in lit. a) to h) of Serial No. 20 Notification 75/2018 
and which are not subject under that Notification to a customs rate of 10 % (and to which 
therefore a customs rate of 20 % is applied) are properly to be categorized under tariff line 
8517.62. This is in particular evidenced by customs classifications opinions issued by the World 
Customs Orga nization. These products are thus properly before this Panel and the European 
Union has demonstrated that India is acting inconsistently with its obligations under Article II 
of the GATT 1994 with regard to these products.  
5.5 8517.70 (Parts and accessorie s of the machines of heading 8471)  
33. The alteration of India's domestic customs legislation with regard to the products falling into 
the scope of this tariff line does not change the fact that India does impose customs duties on 
the products covered by i ts bindings, namely on those products which are within the scope of 
its certified schedule of concessions under tariff lines 8517.70.10 and 8517.70.90.  
34. Notification 57/2017, as amended by Notification 37/2018 and Notification 2/2020  exempts 
certain (but not all) products falling into the scope of tariff line 8517.70.90 from all or some 
customs duties.  
5.6 LINE TELEPHONE HANDSETS (TL 8518.30.01)  
35. The exemption provided in Notification No. 24/2005 with regard to Serial No 39 in conjunction 
with Serial No 13 A is subject to two conditions: 1) that the goods are used for the manufacture 
of the goods covered by 8517 11 10; and 2) that the importer follows the procedure set out in 
the Customs (Import of Goods at Concessional Rate of Duty for Manu facture of Excisable 
Goods) Rules, 1996. The conditional duty exemption provided for under Serial No 39 in 
conjunction with Serial Number 13 A fails to meet India's obligations under Article II:1(a) and 
(b) of the GATT 1994 because those two conditions are  not set forth in India's Schedule.  
36. The European Union agrees that, following the amendment of Serial No. 9 of Notification No. 
25/2005 effected by Serial No. 3 of Notification No. 15/2022, India accords duty free treatment 
for all the products covered by the concession included in its GATT schedule with regard to 
tariff line 8518.30 ex01. In view of that, the European Union hereby requests the Panel to find WT/DS582/R/Add.1  
 
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  that: 1) prior to the entry into force of the above mentioned amendment, India was in breach 
of its obligations pursuant to Article II:1  (a) and (b) of the GATT 1994 in respect of the products 
covered by the above mentioned concession, for the reasons set out in previous EU's 
submissions to the Panel; 2) following the entry into force of the above mentioned amendment, 
India ceased to be in  breach of those obligations.  
5.7 INSULATED ELECTRIC CONDUCTORS FITTED WITH CONNECTORS FOR 
TELECOMMUNICATIONS (TL 8544.42.01)  
37. Serial No. 3 of Notification No. 15/2022 adds the code 8544 42 to entry No. 28 of Notification 
No. 15/2022. The European Unio n understands that, following this amendment, the exemption 
accorded by Notification 25/2005 in relation to entry No. 28 covers all electric conductors below 
80 V, both with and without connectors. In turn, electric conductors above 80 V with connectors 
remain covered by entry No. 29. If this understanding is correct, India would accord duty free 
treatment for all the products covered by the concessions included in its GATT schedule with 
regard to tariff line 8544.42.00 ex01. The European Union would reques t India to confirm this 
understanding. Subject to that confirmation, the European Union hereby requests the Panel to 
find that: 1) prior to the entry into force of the above mentioned amendment, India was in 
breach of its obligations pursuant to Article II :1 (a) and (b) of the GATT 1994 in respect of the 
products covered by the above mentioned concession, for the reasons set out in previous EU's 
submissions to the Panel;  and 2) following the entry into force of the above mentioned 
amendment, India ceased t o be in breach of those obligations.  
6. CONCLUSION  
38. The European Union has demonstrated that India's measures at issue in the present case are 
inconsistent with Article II:1(a) and (b) of the GATT 1994. India has advanced no argument 
which would invali date that demonstration and the European Union therefore stands by its 
requests to this Panel.  
 
 
 WT/DS582/R/Add.1  
 
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  ANNEX B -3 
FIRST INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF INDIA  
A. Introduction  
 
1. The European Union ("EU") has alleged that by imposing duties on the products at issue, India 
is in violation of Article II:1(a) and II:1(b) of the General Agreement on Tariffs and Trade 1994 
("GATT 1994"). On the other hand, India argues that the alleged commitments on contested tariff 
lines were provided in error, and that India has never intended on expanding its commitments 
relating to certain information and communication technology products ("ICT products") beyond the 
Information Technology Agreement ("ITA-1") entered by it in 1996. In this regard, India has pleaded 
treaty invalidity under Article 48 of the Vienna Convention on the Law of Treaties ("VCLT").  
 
B. Article 48 of the VCLT is applicable in the present dispute  
 
2. Article  3.2 of the Underst anding on rules and procedures governing the settlement of disputes 
("DSU") prescribes that Panels apply 'customary rules of interpretation of public international law'.1 
The text of the DSU obliges the Panel to clarify the content of the covered agreemen ts in 'accordance 
with customary rules of interpretation of public international law' which requires the application of 
Articles 31 -33 of the VCLT (reflecting principles of customary international law for the purposes of 
treaty interpretation).2 More spec ifically, Article 31(3)(c) of the VCLT provides for taking into account 
"[a]ny relevant rules of international law applicable in the relations between the parties." Article 48 
of the VCLT codifies the customary international law principle of error (detaile d in India's first written 
submission),3 and therefore is applicable in the present context. That approach, in the context of 
applying Article 48 of the VCLT, has also been confirmed by the Panel in Korea—Procurement .4    
 
3. In addition, India highlight s that while World Trade Organization ("WTO") rules are lex 
specialis  in many respects, they do not exist in 'clinical isolation' from public international law and 
principles of international law therefore continue to apply to the present dispute unless ot herwise 
excluded.5  
 
 
1 Understanding on Rules and Procedures  Governing the Settlement of Disputes (entered into force 1 
January 1995), 1869 U.N.T.S. 401 Article 3.2  
2 Appellate Body Report, US — Gasoline , Page 17 ( "[Article 31 VCLT] … [t]hat general rule of 
interpretation has attained the status of a rule of custom ary or general international law. As such, it forms part 
of the "customary rules of interpretation of public international law " which the Appellate Body has been 
directed, by Article 3(2) of the DSU, to apply in seeking to clarify the provisions of the Gen eral Agreement and 
the other "covered agreements " of the Marrakesh Agreement Establishing the World Trade Organization (the 
"WTO Agreement "). That direction reflects a measure of recognition that the General Agreement is not to be 
read in clinical isolation from public international law. "); Panel Report, EC — Biotech , Paras. 7.67 - 7.70 
("Article 31(3)(c) directly speaks to the issue of the relevance of other rules of international law to the 
interpretation of a treaty. In considering the provisions  of Article 31(3)(c), we note, initially, that it refers to 
"rules of international law ". Textually, this reference seems sufficiently broad to encompass all generally 
accepted sources of public international law, that is to say, (i) international conventi ons (treaties), (ii) 
international custom (customary international law), and (iii) the recognized general principles of law. In our 
view, there can be no doubt that treaties and customary rules of international law are "rules of international 
law" within t he meaning of Article 31(3)(c) … [i]t is important to note that Article 31(3)(c) mandates a treaty 
interpreter to take into account other rules of international law ( "[t]here shall be taken into account "); it does 
not merely give a treaty interpreter the o ption of doing so. ")   
3 WTO, India - Tariff Treatment on Certain Goods - First Written Submission of India (8 April 2021) 
WT/DS582 ( "India's First Written Submission "),  Para. 55 -91   
4 Panel Report, Korea — Procurement , Para. 7.96  
5 Joost Pauwelyn, 'The Role of Public International Law in the WTO: How Far Can we Go ', (2001) 95 Am. 
J. Int'l L. 535 543 ( "[h]owever, besides international law rules on treaty interpretation, many other rules of 
general international law not explicitly confirmed in the WTO trea ty must be applied with respect to the treaty; 
that is, as long as it does not contract out of these rules. In terms of the law of treaties, certain rules on the 
conclusion, invalidity, application, modification, suspension, or termination of treaties come s to mind, but also 
rules on state responsibility, on judicial settlement of disputes, and on how to solve conflicts between norms 
must apply. ") (Exhibit IND -46) WT/DS582/R/Add.1  
 
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  4. Separately,  India clarifies  that Article  XXVIII  of the GATT 1994  does not apply  in the present  
dispute.  Article  XXVIII  provides  for renegotiation  and modification  of Schedule of Concessions.  This 
is different  from Article  48 of the VCLT, which provides for  error as a circumstance  that invalidates  
consent  to a treaty.6 India confirms  that it has not invoked  Article  79 of the VCLT.  
 
C. The commitments under the contested sub -headings in the 2007 Schedule are 
invalid due to errors.  
 
5.  Article 48(1) of the VCLT comprises the following threshold elements: (i) that the existence 
of an error must relate to a fact or situation assumed by the State to exist at the time when the 
treaty was concluded, and (ii) that such an error m ust form an essential basis of the state's consent 
to be bound by the treaty. Separately, these threshold conditions are qualified by Article 48(2) which 
provides: (i) that the State must not have contributed to the error by its own conduct, and (ii) that 
the State must not have been on notice of such error.  
 
6. In relation to the first threshold element of Article 48(1), India was in error in relation to the 
material scope of the commitments under the contested sub -headings at the time the 2007 Schedule 
was certified. At no point did India intend to expand the scope of concessions for certain ICT products 
beyond the ITA -1. India's error is further highlighted by the fact that at the time the contested sub -
headings were certified in August 2015, a) India had  already made its intention clear of not 
expanding its obligations under the ITA -1 via the HS2007 transposition or otherwise,7 and b) as 
noted by the EU, India was already levying duties in 2014 on certain ICT products which clearly 
conflicted with the co mmitments it was ostensibly undertaking at the same time via the HS2007 
transposition.8  
 
7. By inadvertently certifying concessions contrary to its unequivocal objections, India committed 
a factual/situational error within the meaning of the first Paragr aph of Article 48 of the VCLT in the 
context of admittedly complex technical transpositions. India highlights the deliberate use of the 
word 'situation' in addition to the word 'facts' in the phraseology of Article 48 - which covers the 
overall condition o r circumstance prevailing at a particular time.9 Indeed, similar errors relating to 
technical entries have been previously considered as a potential ground for invalidity in international 
law.10 
 
8. The above position is also confirmed via commentary on Article 48 of the VCLT, which notes 
that "no consistent meaning can be drawn from international jurisprudence with respect to the 
distinction between errors' of fact' and 'of law'.11 Further, "Article 48 does not exclude mixed 
 
6 See Paras. 67 -72 of WTO, India - Tariff Treatment on Certain Goods - India's Response to the  
Questions  by the Panel dated July 20, 2021 (20 September 2021) WT/DS582( "India's response to the Panel 's 
Questions ") 
7 India maintains that it never intended on joining the ITA -2 since India 's manufacturing had dipped 
profusely due to the ITA -1. It has m ade several pronouncements regarding the same. WTO, Committee of 
Participants on the Expansion of Trade in Information Technology Products, Minutes of the meeting of 1 
November 2012 (14 March 2013) G/IT/M/56 ( " India's position on the effects of ITA was we ll known as 
articulated during the symposium in May. India's IT manufacturing had dipped quite profusely due to the ITA I. 
In the spirit of constructiveness, India had conducted stakeholder consultations around the country. The 
general concern was the rele vance of many of the IT products or the ICT sector. The consolidated list 
(JOB/IT/7/Rev.1) could create an inversion in the duty structure, the multiple -use of many products and the 
difficulty in monitoring at the customs level for many of the products whi ch had multiple -use. He informed the 
Committee about his government's national electronics policy with ambitious targets in terms of manufacturing 
in the electronics sector, as well as the overall manufacturing sector of the country. As a result, stakehold ers 
had expressed serious reservations and he wanted to place these reservations on record. ") 
8 WTO, India - Tariff Treatment on Certain Goods in the Information and Communication Technology 
Sector - First Written Submission of the European Union (28 Januar y 2021) WT/DS582 ( "EU's First Written 
Submission "), Para. 3; Also see , WTO, Committee of Participants on the Expansion of Trade in Information 
Technology Products, 'Questions from the European Union, Japan and the United States to India Regarding 
Indian Customs Notification No 11/2014 ' (4 April 2016) G/MA/W/120, Page 1  
9 According to the Cambridge Dictionary, a "situation " is "the set of things that are happening and the 
conditions that exist at a particular time and place. "; Cambridge Advanced Learner's Dictionary  (Cambridge 
University Press, 2005), Page 606 (Exhibit IND -63) 
10 India's First Written Submission , Paras. 61, 71, 73, 74, 79  
11 Wyler and Samson, 'Invalidity, Termination and Suspension of Treaties ', in Corten and Klein, 'The 
Vienna Convention on the Law of Treaties ' (OUP, 2011) Page 1127 (Exhibit IND -18) WT/DS582/R/Add.1  
 
- 33 - 
 
  questions of fact and law an d the line between one and the other may not always be easy to draw".12 
Clearly, the difficulty in articulating a workable distinction between errors of law and errors of fact 
has been evident from as early as the drafting of the VCLT. India reasserts tha t the fact that an 
error might have legal consequences (as indeed all contested errors would) does not make the error 
a legal error.13  
 
9. In relation to the second threshold element of Article 48(1), it is clear that India would not 
have agreed to the c ertification if it were aware that it would effectively expand India's commitments 
beyond those contained in ITA -1. India's error in relation to the material scope of the contested sub -
headings formed an essential condition for India's consent to certifica tion of the contested sub -
headings.  
 
10. While India thus satisfies the threshold elements of Article 48(1), it also takes this opportunity 
to clarify its stand on Article 48(2). At the outset and contrary to the EU's assertions14, it is an 
acknowledged position that the party denying the vitiating effect of the error under Article 48(1) due 
to the exceptions under Article 48(2) has the burden of proving those exceptions.15 Accordingly, 
such burden of proof lies on the EU and not on India.  
 
11. Nevertheless, India has made submissions in relation to Article 48(2) of the VCLT, and has 
clarified that its error related to admittedly complex and technical transpositions - and which were 
not an unlikely circumstance for such error.16 Also, in th e one previous and perhaps the only instance 
of Article 48 of the VCLT being applied in a WTO dispute, the Panel had observed that there exists a 
duty for all negotiating parties to verify the schedule.17 That observation rings particularly true in 
the pr esent instance for any party interested in the treatment of ICT products by India would have 
known that India's explicit stance was that it did not intend to commit to obligations beyond those 
in the ITA -1.  
 
D. The ITA -1 is the comparative benchmark for a ssessing the 'error' under Article 
48(1), VCLT  
 
12. From the above, it is clear that in order to examine India's claims under Article 48 of the VCLT, 
the Panel is required to assess India's commitments under the ITA -1. The error that India committed 
at the time of certifying the 2007 Schedule was that it believed that the certification of the Schedule 
would not alter its commitments under the ITA -1. Unfortunately, the certification of the Schedule is 
being claimed as having materially altered its concessio ns for certain ICT products compared to its 
commitments under the ITA -1 or the subsequently certified Schedule, WT/LET/181 ("WT/LET/181").  
 
13. Further, the European Union has claimed that " the transposition did not purport to expand 
and, in practice, did  not expand the scope of India's tariff concessions"18 and that "the tariff lines at 
issue in this case were not flagged by the WTO Secretariat as possibly changing the scope of 
 
12 M.E. V illiger, Commentary  on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff, 
2009),  Page 608 (Exhibit IND -13) 
13 UN Conference on the Law of Treaties, Draft Articles on the Law of Treaties with Commentaries, Page 
244 ( "The Commission appreci ated that an error in a treaty may sometimes involve mixed questions of fact 
and of law and that the line between an error of fact and of law may not always be an easy one to draw. ") 
(Exhibit IND -65) 
14 Replies of the WTO, India - Tariff Treatment on Certa in Goods - Answers of the European Union to the 
Questions in advance of the Panel 's First Substantive Meeting (20 September 2021) WT/DS582 ( "European 
Union to Questions from the Panel "), Para. 55  
15 Rensmann , 'Article 48 ' in Oliver Dörr, Kirsten Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties  (2nd edn., Springer, 2018) Page. 893, n. 144 ( "The final version of Art 48 para 2 is in marked contrast 
to Fitzmaurice  III 25 (Art 12 para 2 lit c), which required posit ively that the error must be excusable. See also 
Bartoš  [1963 -I] YbILC 42 criticizing the negative wording of the ILC draft for not placing the burden of proof on 
the party relying on the error. As to the burden of proof with regard to para 1 see Villiger  (2009), Art. 48 
MN4") (Exhibit IND -14) 
16 As Canada notes, the transpositions were not sufficiently highlighted or flagged by the WTO 
Secretariat as being those which possibly changed the scope of the concessions. WTO, India - Tariff Treatment 
on Certain G oods in the Information and Communication Technology Sector - Third Party Written Submission of 
Canada (22 April 2021) WT/DS582 ( "Canada 's Third Party 's Submissions ") Para. 15    
17 Panel Report, Korea - Procurement , Para. 7.125   
18 WTO, India – Tariff Tre atment on Certain Goods in the Information and Communication Technology 
Sector - Oral Statements by the European Union (April 20, 2021) WT/DS582 ( "Oral Statements by the 
European Union "), Para. 2, Page 3  WT/DS582/R/Add.1  
 
- 34 - 
 
  concession."19 However, the European Union has not offered a shred of eviden ce to establish that 
the transposition did not alter the scope of India's concessions. Since the ITA -1 was the last 
instrument to substantively modify India's commitments concerning the ICT products, the European 
Union should, at the very least, compare th e scope of concessions under the ITA -1 and the scope of 
concessions under Certification of Modifications And Rectifications To Schedule XII – India, 
WT/LET/1072 ("2007 Schedule" or "WT/LET/1072")20 to establish that there has been no change in 
concessions  concerning the products at issue.21  
 
14. The ITA -1 and its scope of coverage are instrumental as the comparative benchmark in 
establishing whether the transposition resulted in an expansion in the scope of India's tariff 
concessions, and therefore, in d etermining India's plea of error.  
 
15. In order to determine whether there is a difference in the scope of concessions under the 
WT/LET/181 and WT/LET/1072, normally, the Panel could compare the scope of commitments of 
the two documents, and it could be e asily ascertained that the scope of commitments for ICT 
products is much wider under WT/LET/1072 than it was under WT/LET/181. A comparison the two 
documents (the said schedules) could be performed in two potential ways: (i) by preparing a positive 
list of  products covered by the relevant tariff lines in each of the documents, or (ii) by ascertaining 
the negative list of products not covered by the relevant tariff lines in each of the documents.  
 
16. As an example of the latter, it may be noted that India made a commitment to grant 
concessions to "Transmission apparatus incorporating reception apparatus" covered by sub -heading 
8525.20 under the ITA -1, and consequently under WT/LET/181. The Explanatory Notes to HS1996 
limit the definition of 'Transmission Ap paratus of Radio Telephony or Radio Telegraphy' to apparatus 
which allowed the transmission of signals representing (1) speech, (2) messages, or (3) still pictures. 
22Therefore, apparatus which could transmit signals representing videos or any other media  (other 
than the three listed above) could not be included in the scope of sub -heading 8525.20 under 
HS1996. Subsequently, during the transposition of India's schedule from HS2002 to HS2007, sub -
heading 8525.20 was split into four sub -headings in the 2007 Schedule, the relevant one being sub -
heading 8517.12. In the 2007 Schedule, sub -heading 8517.12, which is a contested tariff line in the 
present dispute, covers telephones for cellular networks. Telephones for cellular networks can 
transmit signals represe nting data other than speech, messages or still pictures. Accordingly, such 
phones cannot be covered under the HS1996 sub -heading 8525.20. Upon a comparison of the 
relevant tariff lines under the two documents, it can be ascertained that while telephones f or cellular 
networks could not have been covered under the ITA -1 (and no commitment was made for it under 
WT/LET/181), India's scope of concessions has erroneously expanded to cover telephones for cellular 
networks in the 2007 Schedule.  
 
17. Therefore, the  core question before the Panel is a limited one: whether the products at issue 
are eligible to receive concessions under India's commitment under the ITA -1.23 The exercise is 
limited to finding whether the products at issue were covered by the ITA -1.  
 
18. The European Union has not provided any evidence to establish that the products at issue 
were covered by the ITA -1. Rather than have the Panel make an object ive assessment, as is 
mandated by Article 11 of the DSU,24 the European Union would instead have the Panel rely on the 
European Union's empty  assertions.  
 
 
19 Oral Statement by the European Union, Para. 30, P age 8  
20 Certification of Modifications and Rectifications to Schedule XII - India (12 August 2015) WT/Let/1072  
21 A comparison between the ITA -1 and the 2007 Schedule is required to assess India 's claim under 
Article 48. See Paras. 15 -16 of this Response;  WTO, India – Tariff Treatment on Certain Goods – India's 
Opening Statements (October 5, 2021) WT/DS582 ( "India's Opening Statements "), Para. 29  
22 Customs Co -operation Council, Harmonized Commodity Description and Coding System: Explanatory 
Notes  (2nd edn ., World Customs Organization 1996) Heading 8525 (Exhibit IND -6) 
23 The European Union has been unable to satisfy threshold requirements of specificity under Article 6.2 
of the DSU. It has been unable to classify products under the contested sub -headings. This is particularly true 
for tariff items 8517.62.90, 8517.70.90 a nd USB cables. See India's First Written Submission, Paras. 37 -47 
24 Appellate Body Report, EC and Certain Member States – Large Civil Aircraft , Para. 1128: "However, in 
its analysis, the Panel deferred to the United States' subsidized product allegations rather than making its own 
independent assessment of whether all Airbus LCA should be treated as a single subsidized product. In so 
doing, the Panel failed to make an objective assessment of the matter, including the 'applicability of and 
confo rmity with the relevant covered agreements', as required under Article 11 of the DSU. " WT/DS582/R/Add.1  
 
- 35 - 
 
  E. The products at issue are not covered by the ITA -1 
 
19. The parties initially agreed that the ITA-1 is relevant to the present dispute,25 although it 
seems that the European Union has had a change of heart on this issue26 when confronted with the 
explanatory notes attached to Harmonized System ("HS") 1996. If the European Union reverts to its 
original position, then it is required to offer a prima facie proof that the products at issue were 
covered by the ITA -1. 
 
20. Even though the burden of proof rests on the European Union to establish that products at 
issue were covered by the ITA -1, India has  made extensive submissions concerning the same.  
 
21. Firstly, India submits that the scope of Attachment A to the ITA -1 is limited to the sub -
headings mentioned therein read with the HS1996 (including the Explanatory Notes). Most of the 
products at issue  are covered by the ITA Expansion27, to which India is not a party. The products at 
issue are advanced ICT products, which evolved and developed over time. India considers that such 
products could not be covered under ITA -1.28 However, for the purposes o f the present dispute, 
India does not wish to enter into a fact -finding exercise concerning how many products at issue 
actually existed when ITA -1 was signed. The term "new product" used by India in this dispute is 
limited to the products which fall outsid e the product scope of the ITA -1 and HS1996 Explanatory 
Notes.29  
 
22. As per Paragraph 2 of ITA -1, the product coverage of the ITA -1 is delimited in Attachment A 
and Attachment B of the ITA -1. Attachment A consists of two lists of categories of products defined 
by their HS1996 codes30 and Attachment B is a list of product descriptions without reference to their 
HS codes. Under Attachment B, customs duties and other duties and charges of any kind were to be 
eliminated on these products " wherever they are classified ."31 There is no language to suggest that 
all ICT products which may exist at the time of signing or in the future will be included in the product 
scope of the ITA -1. The language simply provides for two lists of products which are included in the 
product scop e of the ITA -1.  
 
23. The Annex to ITA -1 also shows that the Participants were well aware of the rapidly advancing 
nature of the IT industry.32 The ITA -1's language was not expected to cover every new product that 
may come along in the rapidly developing and converging IT sector. The ITA -1, therefore, also 
provided a mechanism for updating the product scope of the ITA -1 and the framework for resolving 
the ambiguities that convergence and rapid development were expected to bring to customs 
classification of  such products in this sector. However, this mechanism was not 'automatic' in nature. 
It required the Participants to 'meet periodically' and modify the Attachments in light of technological 
developments.33 The mechanism envisioned by the negotiators for updating the product coverage 
of the ITA -1 in the light of, inter alia, technological development is set forth in Paragraph 3 to the 
Annex to the ITA -1. 
 
 
25 WTO, India - Tariff Treatment on Certain Goods in the Information and Communication Technology 
Sector - First Written Submission of the European Union (January 28, 202 1) WT/DS582 ( "EU's First Written 
Submission "), Para. 2, Para. 75, Section III.B and III.C; WTO, India - Tariff Treatment on Certain Goods in the 
Information and Communication Technology Sector - First Written Submission of India (April 8, 2021) 
WT/DS582 ( "India's First Written Submission "), Para. 92  
26 WTO, India - Tariff Treatment on Certain Goods in the Information and Communication Technology 
Sector – Answers of the European Union to the Questions in Advance of the Panel 's First Substantive Meeting 
(Sept ember 20, 2021) WT/DS582 ( "European Union 's Responses to the Panel 's Questions "), Paras. 11 -16 
27 India's First Written Submission, Para. 142  
28 India maintains that it never intended on joining the ITA -Expansion. India has made several 
pronouncements rega rding the same. WTO, Committee of Participants on the Expansion of Trade in 
Information Technology Products, Minutes of the meeting of 1 November 2012 (14 March 2013) G/IT/M/56)  
29 India's Opening Statement, Para. 33  
30 Ministerial Declaration on Trade in Information Technology Products (13 December 1996) WT/MIN 
(96)/16 Para. 2(a)  
31 Ministerial Declaration on Trade in Information Technology Products (13 December 1996) WT/MIN 
(96)/16 Para. 2(b)  
32 Ministerial Declaration on Trade in Information Technology P roducts (13 December 1996) WT/MIN 
(96)/16 Para. 2(a)  
33 Ministerial Declaration on Trade in Information Technology Products (13 December 1996) WT/MIN 
(96)/16 Para. 2(a)  WT/DS582/R/Add.1  
 
- 36 - 
 
  24. Further, in the course of negotiating the Ministerial Declaration on the Expansion of Trade in 
Information Technology Products ("ITA -2"), various Participants to both the ITA -1 and the ITA -2 
made several pronouncements regarding the product scope of the ITA -1. India submits that the 
various official statements issued by the Participants regarding the l imited product scope of the ITA -
1 would be relevant to the interpretation of ITA -1, including by means of subsequent practice  to the 
ITA-1 under Article 31(3)(b) of the VCLT. Article 31(3)(b) of the VCLT states that " any subsequent 
practice in the applicat ion of the treaty which establishes the agreement of the  parties regarding its 
interpretation" is instrumental in interpreting a treaty.34 
 
25. India submits that by the admission of over 51 Participants (with each EU Member, not 
including Croatia who joined EU in 2013, being counted as one) of the ITA -1, the scope of the ITA -
1 continues to be limited to the products classified in Attachment A and list ed in Attachment B of 
the ITA -1.35 It is clear that the Participants agree that technological advancements have not affected 
the product scope of the ITA -1. 
26. Secondly, Attachment A contains a list of products " classified (or classifiable) with Harmoniz ed 
System (1996) headings. " Therefore, in order to determine the product scope of the ITA -1 under 
Attachment A, it is important to interpret the HS headings in accordance with the International 
Convention on the Harmonized Commodity Description and Coding System ("HS Convention") and 
the Explanatory Notes issued by the World Customs Organization which serve as an official 
interpretation to the HS Nomenclature.  
 
27. Article 31(4) of the VCLT states that " [a] special meaning shall be given to a term if it is 
established that the parties so intended." In the present instance, the parties intended to limit the 
scope of Attachment A to the HS1996 Nomenclature.36 Therefore, the ordinary meaning of products 
listed under Attachment A can only be determined in accor dance with the meaning assigned to the 
products by the HS1996 Nomenclature. Other dictionary meanings and interpretations can only be 
relied upon if the European Union provides a decisive reason to rely on another interpretation.37 
However, no such reason ing has been provided by the European Union.  
 
 
34 Vienna Convention of the Law of Treaties (adopted 23 May 1969, entered into force 27  January 1980) 
1155 U.N.T.S. 331 (1969) Article 31(3)(b) (Exhibit IND -12); India 's First Written Submission, Paras. 105 -108 
35 WTO, Committee of Participants on the Expansion of Trade in Information Technology Products, 
Concept Paper for the Expansion of t he ITA (2 May 2012) G/IT/W/36; Directorate General for Trade of the 
European Commission, The Expansion of the Information Technology Agreement: An Economic Assessment 
(Publications Office of the European Union, 2016) < 
https://trade.ec.europa.eu/doclib/doc s/2016/april/tradoc_154430.pdf> last accessed 26 March 2021 (Exhibit 
IND-24); WTO, Committee of Participants on the Expansion of Trade in Information Technology Products, 
'Updating the List of Products covered under the Information Technology Agreement (IT A): Communication 
from Japan ' (24 November 2006) G/IT/W/25; Ministry of Economy, Trade and Industry, 'Report on Compliance 
by Major Trading Partners with Trade Agreements - WTO, EPA/FTA and IIA ' (2013), 
<https://www.meti.go.jp/english/report/downloadfiles/ 2013WTO/02_04.pdf> last accessed 6 April 2021 
(Exhibit IND -25); Ministry of Economy, Trade and Industry, 'Report on Compliance by Major Trading Partners 
with Trade Agreements - WTO, EPA/FTA and IIA ' (2014), < 
https://www.meti.go.jp/english/report/downloadf iles/2014WTO/02_05.pdf> last accessed 6 April 2021 (Exhibit 
IND-26); Ministry of Economy, Trade and Industry, 'Report on Compliance by Major Trading Partners with 
Trade Agreements - WTO, EPA/FTA and IIA ' (2015), 
<https://www.meti.go.jp/english/report/data/ 2015WTO/02_05.pdf>  last accessed 6 April 2021 (Exhibit IND -
27); Ministry of Economy, Trade and Industry, 'Report on Compliance by Major Trading Partners with Trade 
Agreements - WTO, EPA/FTA and IIA ' (2016), 
<https://www.meti.go.jp/english/report/data/2016 WTO/pdf/02_07.pdf>  last accessed 6 April 2021 (Exhibit 
IND-28); Ministry of Economy, Trade and Industry, 'Report on Compliance by Major Trading Partners with 
Trade Agreements - WTO, EPA/FTA and IIA ' (2017) (Exhibit IND -29); Ministry of Economy, Trade and Industry, 
'Report on Compliance by Major Trading Partners with Trade Agreements - WTO, EPA/FTA and IIA ' (2018), last 
accessed 6 April 2021 (Exhibit IND -30); Ministry of Economy, Trade and Industry, 'Report on Compliance by 
Major Trading Partners with Trade  Agreements - WTO, EPA/FTA and IIA ' (2019), 
<https://www.meti.go.jp/english/report/data/2019WTO/pdf/02_05.pdf> last accessed 6 April 2021 (Exhibit 
IND-31); Asia-Pacific Economic Cooperation, Compilation of APEC and Industry Statements of Support for 
Expansion of the Information Technology Agreement (29 March 2012) 2012/CTI2/MAG/DIA/002 
<http://mddb.apec.org/documents/2012/MAG/DIA1/12_mag_dia1_002.pdf > accessed 25 March 20 21 (Exhibit IND -32); 
WTO, Committee of Participants on the Expansion of Trade in Information Technology Products,  Minutes of the 
Meeting (8 May 2015) G/IT/M/62 Para 2.2 and 2.7  
36 Ministerial Declaration on Trade in Information Technology Products (13 Dece mber 1996) WT/MIN 
(96)/16, Para. 2(a)  
37 Admission of a State to the United Nations (Charter, Art. 4) , Advisory Opinion, I.C.J. Reports 1948, 
57, 63 (Exhibit IND -62) WT/DS582/R/Add.1  
 
- 37 - 
 
  28. Thirdly, India submits that the products at issue are not covered by the ITA -1. This has been 
demonstrated in Section IV.B of India's First Written Submission. This is also confirmed by the fact 
that severa l Participants of the ITA -1, who are also now participants to the Ministerial Declaration 
on the Expansion of Trade in Information Technology Products ("ITA Expansion"), did not grant any 
concessions to certain products at issue until they modified their schedules of concessions in 
pursuance of the ITA Expansion..  
  
29. For example, the European Union had a bound rate of 3.6 -5% for certain products covered 
under 8517.70 until it entered the ITA Expansion.38 The very fact that the European Union, along 
with several other ITA -1 Participants, continued to impose duties on certain products at issue is of 
significant interpretative value, including as subsequent  practice in the application of the ITA -1 and 
establishes the ITA's limited and static product scope. If the ITA -1 covered the products at issue, 
there would be no rea son for at least 36 ITA -1 Participants to impose duties on such products. 
Interestingly, these 36 ITA -1 Participants only modified their schedules with regard to these products 
to implement the ITA Expansion.   
 
30. The continued imposition of duty on the products at issue for years after their entry into the 
ITA-1 constitutes subsequent practice under Article 31(3)(b) of the VCLT since it establishes the 
agreement of the parties regarding the application of the ITA -1. From this practice, it is clear that 
the product scope of the ITA -1 did not include the products at issue..  
 
31. The claims made by the European Union are under the sub -headings 8517.12, 8517.61, 
8517.62, 8517.70, 8544.42, 8518.30, and 8504.40. For sub -headings 8518.30 and 8544.42, India 
has clarified that there has been no violation of Article II:1(a) and Article II:1(b) of the GATT 1994 
since India is providing concessions for these sub -headings. The remaining claims and products at 
issue could be divided into two categories, namely, "indepe ndent claims" and "dependent claims."  
 
32. Telephones for cellular networks (8517.12), base stations (8517.61), Machines for the 
reception, conversion and transmission or regeneration of voice, images or other data, including 
switching and routing apparatu s (8517.62) 39are independent claims. With regard to static converter 
(8504.40), printed circuit boards (8517.70), and parts of telephone sets other than PCBs 
(8517.70),40 it is submitted that the commitments under these sub -headings are dependent on the  
other principal commitments made under the ITA -1 for products such as telephones for cellular 
networks.41 Since the ITA -1 did not cover telephones for cellular networks, base stations and LTE 
Equipment, their parts and apparatus can also not be covered b y the ITA -1.  
 
33. India summarizes its position concerning the independent claims made by the European Union 
below:  
 
i) Sub-Heading 8517.12 – 'Telephones for Cellular Networks or for Other 
Wireless Networks' were not covered under the ITA -1   
34. The EU alleges that India imposes a 20% duty on telephones for cellular networks, which are 
covered under tariff items 8517.12.11, 8517.12.19, and 8517.12.90.42  
35. The issue before the Panel is whether sub -heading 8525.20 – "Transmission apparatus 
incorporating reception apparatus" could cover telephones for cellular networks. The tariff heading 
8525 covered, among others, 'Transmission Apparatus for Radio -Telephony or Radio Telegraphy.'43 
The definition of the Transmission Apparatus of Radio Telep hony or Radio Telegraphy is limited to 
the transmission of signals representing (1) speech, (2) messages, or (3) still pictures.44  This list is 
 
38 Certification of Modifications and Rectifications to Schedule CLXXIII – European Union ( June 8, 2017) 
WT/Let/1265   
39 The European Union has been unable to satisfy threshold requirements of specificity under Article 
6.2of the DSU. It has been unable to classify products under the contested sub -headings. This is particularly 
true for tariff i tem 8517.62.90. See India's First Written Submission, Paras. 37 -47 
40 The European Union has been unable to satisfy threshold requirements of specificity under Article 
6.2of the DSU. It has been unable to classify products under the contested sub -headings.  This is particularly 
true for tariff items 8517.70.90. See India's First Written Submission, Paras. 37 -47 
41 India's First Written Submission, Paras. 170, 209, 215  
42 EU's First Written Submission, Para. 106  
43 Customs Co -operation Council, Harmonized Com modity Description and Coding System: Explanatory 
Notes  (2nd edn., World Customs Organization 1996) Heading 8525 Marginal Note (Exhibit IND -6) 
44 Customs Co -operation Council, Harmonized Commodity Description and Coding System: Explanatory 
Notes  (2nd edn.,  World Customs Organization 1996) Heading 8525 Marginal Note (Exhibit IND -6) WT/DS582/R/Add.1  
 
- 38 - 
 
  cumulative and exhaustive in nature. Therefore, no apparatus which can transmit signals 
representing videos or  any other media other than the three listed above can be included in the 
scope of heading 8525.  
 
36. Further, a comparison of the HS1996 Explanatory Note to Heading 8525 and HS2007 
Explanatory Notes to Heading 8517 demonstrates that telephones for cellula r networks are not 
categorized in the general group of " transmitting and receiving apparatus for radio -telephony and 
radio-telegraphy " even under HS2007.45 The description of radio telephony apparatus of the kind 
covered under heading 8517 under HS2007 ha s remained unchanged from those covered under 
Heading 8525 in HS1996 viz. radio -telephony apparatus for motor vehicles, ships, aircraft, trains, 
etc. Therefore, it would be fallacious to argue that telephones for cellular networks which are not 
even covere d within the general description of " transmitting and receiving apparatus for radio -
telephony and radio -telegraphy " in the year 2007, were covered within the general description of 
transmission apparatus for radio -telephony or radio -telegraphy under HS1996 . 
 
37. Alternatively, India submits that the list appended to the HS1996 Explanatory Notes to 
Heading 8525 could be regarded as illustrative in nature with regard to various sub -groups. However, 
with respect to the sub -group of radio -telephony, the descrip tion is exhaustive.46 Accordingly, India 
submits that 8525.20 – "Transmission apparatus incorporating reception apparatus " did not and 
could not cover telephones for cellular networks.  
  
ii) Sub-Heading 8517.61: 'Base Stations' were not covered under the ITA-1. 
38. The EU alleges that India imposes 20% duty on "Base Stations," which are covered under 
tariff items 8517.61.00 of the Customs Tariff Act, 1975.47  
 
39. It is India's understanding that the EU does not argue that the base stations were somehow 
covered under sub -headings 8517.30 or 8517.50 because the apparatus covered under these sub -
headings would be limited to those matching the description of heading 8517, i.e., apparatus for line 
telephony or line telegraphy. Base stations at issue are not us ed as apparatus in line telephony or 
line telegraphy. Therefore, base stations could not have been covered under sub -heading 8517.50 
of HS1996.  
 
40. Unlike base station, switching apparatus of the kind covered in HS1996 Explanatory Notes 
does not receive o r transmit radio waves. They receive and transmit "coded" electrical signals and 
establish a connection for the purposes of line telephony. Therefore, base stations, for which radio 
transmission is essential, cannot be covered under this heading. According ly, the issue before the 
Panel is whether sub -heading 8525.10 – "Transmission apparatus other than apparatus for 
radiobroadcasting or television " or 8525.20 – "Transmission apparatus incorporating reception 
apparatus " could cover base stations.  
 
41. As sta ted above, heading 8525 (HS1996) covered "[t]ransmission apparatus for radio-
telephony, radio -telegraphy , …., whether or not incorporating reception apparatus or sound 
recording or reproducing apparatus."48 The transmission apparatus covered under such he ading 
were limited to radio -telephony apparatus of the kind described in HS1996 Explanatory Notes. It 
has already been established above that telephones for cellular networks were not covered under 
the ITA -1. Accordingly, base stations were also not covere d under the ITA -1. Accordingly, India 
submits that sub -headings 8525.10 or 8525.20 did not and could not cover base stations.  
 
 
45 Customs Co -operation Council, Harmonized Commodity Description and Coding System: Explanatory 
Notes  (4th edn., World Customs Organization 2007), Heading 8517 (Exhibit IND -8) 
46 Customs Co -operation Council, Harmonized Commodity Description and Coding System: Explanatory 
Notes  (2nd edn., World Customs Organization 1996) Heading 8525 (Exhibit IND -6) 
47 EU's First Written Submission, Para. 117  
48 Customs Co -operation Council, Harmo nized Commodity Description and Coding System: Explanatory 
Notes  (2nd edn., World Customs Organization 1996) Heading 8525 (Exhibit IND -6) WT/DS582/R/Add.1  
 
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  iii) Sub-Heading 8517 62: Machines for the reception, conversion and 
transmission or regeneration of voice, images or other data , including 
switching and routing apparatus other than PLCC Equipment, Voice 
Frequency Telegraphy, Modems, High Bit Rate Digital Subscriber Line System, 
Digital Loop Carrier System, Synchronous Digital Hierarchy System and 
Multiplexers were not covered und er the ITA -1. 
42. At the outset, the EU has alleged49 that Customs Notification No. 57/2017 dated 30 June 2017 
and its succeeding notifications exempts all products falling under the tariff item 8517.62.90 of the 
First Schedule from the portion of customs duty exceeding 10%, except for wrist wearable devices , 
optical transport equipment, combination of one or more of packet optical transport product or 
switch, optical transport network, IP Radios, Soft switches and Voice over Internet Protocol 
equipment, carrier ethernet switch, packet transport node products , multiprotocol label switching 
transport profile products, and MIMO and LTE products. However, the EU has not provided a shred 
of evidence regarding the said products being classified under tariff item 8517.62.90. Serial No. 20 
of Notification No. 57/2017  dated June 30, 2017 provides exemption with certain exceptions.50 The 
column concerning classification of the said goods indicate that such goods could be classified under 
8517.62.90 or 8517.69.90.  
 
43. Therefore, the products at issue may not be classified under tariff item 8517.62.90. EU's 
claims are limited to sub -heading 8517.62. Therefore, to the extent that the products described 
above are appropriately classified under sub -heading 8517.69, such products are not only outside 
the scope of the present Panel request but there cannot be any dispute over such products.  
 
44. It is India's understanding that the EU does not argue that the products or apparatus which 
are currently covered under tariff item 8517.62.90 were somehow covered under sub -headings 
8517.22, 8517.30, 8517.50 or 8517.80 because the apparatus covered under these sub -headings 
would be limited to those matching the description of heading 8517, i.e., apparatus for line telephony 
or line telegraphy.  
 
45. India invites the Panel's attention to HS1996 Explanatory Notes for heading 8517. The 
Explanatory Note s define electrical apparatus for line telephony and line telegraphy as under51: 
 
The term "electrical apparatus for line telephony or line telegraphy" 
means apparatus for the transmission between two points of speech 
or other sounds (or of symbols repres enting, written messages, 
images or other data), by variation of an electric current or of an 
optical wave flowing in a metallic or dielectric (copper, optical fibres, 
combination cable, etc.) circuit connecting the transmitting station 
to the receiving st ation.  
The heading covers all such electrical apparatus designed for this 
purpose, including the special apparatus used for carrier -current line 
systems.  
46. Under the ITA -1, India made a commitment under sub -heading 8517.50, i.e., 'other apparatus 
for ca rrier-current line systems or for digital line systems.' HS1996 Explanatory Notes states as 
follows with regard to sub -heading 8517 5052:  
 
"These systems are based on the modulation of an electrical carrier -
current or of a light beam by analogue or digit al signals. Use is made 
of the carrier -current modulation technique and pulse code 
modulation (PCM) or some other digital system. These systems are 
 
49 EU's First Written Submission, Para. 129  
50 Notification No. 57/2017 dated 30 June 2017, G.S.R. 798(E) (Exhibit IND -42) 
51 Customs Co -operation Council, Harmonized Commodity Description and Coding System: Explanatory 
Notes  (2nd edn., World Customs Organization 1996) , Heading 8517 (Exhibit IND -7) 
52 Customs Co -operation Council, Harmonized Commodity Description and Coding System: Explanatory 
Notes  (2nd edn., World Customs Organization 1996) Heading 8517 (Exhibit IND -7) WT/DS582/R/Add.1  
 
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  used for the transmission of all kinds of information (words, data, 
images, etc.)  
These systems include all  categories of multiplexers and related line 
equipment for metal or optical fibre cables. "Line equipment" 
includes transmitters and receivers or electro -optical converters. 
Combined modulators -demodulators (modems) are also classified 
here. 
Similar appara tus used for radio transmission systems is excluded 
(heading 85.25 or 85.27). "53 
[Emphasis Supplied]  
47. From the above, it becomes evident that apparatus used for 'radio transmission' systems were 
excluded from the ambit of sub -heading 8517.50, and conse quently, there exists no obligation upon 
India under the ITA -1 to provide Nil duty to apparatus used for radio transmission under sub -heading 
8517.50.  
 
48. There is no doubt that the apparatus for carrier line systems and digital line systems have 
been gr anted a Nil duty by India.54 India made no commitment for " machines for the reception, 
conversion and transmission or regeneration of voice, images or other data, including switching and 
routing apparatus ". 
 
49. The HS1996 Explanatory Notes to heading 8471 states as under:  
 
Automatic data processing machines are machines which, by 
logically interrelated operations performed in accordance with pre -
established instructions (program), furnish data which can be used 
as such or, in some cases, serve in turn as data for other data 
processing operations.  
[…] 
However, the heading excludes machines, instruments or apparatus 
incorporating or working in conjunction with an automatic data 
processing machine and performing a s pecific function. Such 
machines, instruments or apparatus are classified in the headings 
appropriate to their respective functions or, failing that, in residual 
headings.55 
50. From the above, it becomes evident that 'machines, instruments or apparatus in corporating 
or working in conjunction with an automatic data processing machine and performing a specific 
function' were excluded from the ambit of heading 8471. Accordingly, the HS1996 Explanatory Notes 
exclude " Modulator -demodulator apparatus (modems), w hich modulate, in transmittable form over 
a telephone network, information obtained from an automatic data processing machine, and 
reconvert it into digital form "56 from the ambit of heading 8471.  
 
51. The HS1996 Explanatory Notes to sub -heading 8525.10 states as under:  
 
The apparatus for radio -broadcasting falling in this group must be 
for the transmission of signals by means of electro -magnetic waves 
transmitted through the ether without any line connection. On the 
 
53 Customs Co -operation Council, Harmonized Commodity Description and Coding System: Explanatory 
Notes  (2nd edn., World Customs Organi zation 1996) Heading 8517 (Exhibit IND -7) 
54 The Customs Tariff Act 1975, No. 51 of 1975, First Schedule  
55 Customs Co -operation Council, Harmonized Commodity Description and Coding System: Explanatory 
Notes  (2nd edn., World Customs Organization 1996) Head ing 8471 (Exhibit IND -10) 
56 Customs Co -operation Council, Harmonized Commodity Description and Coding System: Explanatory 
Notes  (2nd edn., World Customs Organization 1996) Heading 8471 (Exhibit IND -10) WT/DS582/R/Add.1  
 
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  other hand television apparatus falls  here whether the transmission 
is by electro - magnetic waves or by line.  
This group includes:  
(1) Transmitters of all kinds.  
(2) Relay apparatus used to pick up a broadcast and retransmit it 
and so increase the range (including television relay apparatus f or 
mounting in aircraft).  
(3) Relay television transmitters for transmission, by means of an 
aerial and parabolic reflector, from the studio or site of an outside 
broadcast to the main transmitter.  
(4) Television transmitters for industrial use (e.g., for  reading 
instruments at a distance, or for observation in dangerous localities). 
With this apparatus the transmission is often by line.  
52. On the other hand, as per HS2007 Explanatory Notes, " other communication apparatus"  is 
apparatus which allows for connection to a wired or wireless communication network or the 
transmission or reception of speech/sounds/images/data within such a network. This could include 
network interface cards, modems, routers, bridges, hubs, codecs, multiplexers, pulse to tone 
converters.57 HS2007 Explanatory Notes explain 'other communication apparatus' to be:  
 
This group includes apparatus which allows for the connection to a 
wired or a wireless communication network or the transmission or 
reception of speech or other sounds, images or other data within 
such a network.  
Communication networks include, inter alia , carrier current line 
systems , digital line systems  and combinations thereof. They may 
be configured, for example, as public switched telephone networks, 
Local Area Networks (LAN), Metropolitan Area Networks (MAN) and 
Wide Area Networks (WAN), whether pro prietary or open 
architecture. This group includes:  
(1) Network Interface Cards  
(2) Modems  
(3) Routers, bridges, hubs, repeaters and channel to channel 
adaptors  
(4) Multiplexers and related line equipment (e.g., transmitters, 
receivers or electro -optical  converters)  
(5) Codecs (data compressors/decompressors) which have the 
capability of transmission and reception of digital information  
(6) Pulse to tone converters which convert pulse dialed signals to 
tone signals"58  
[Emphasis Supplied]  
 
57 Customs Co -operation Council, Harmonized Commodity  Description and Coding System: Explanatory 
Notes  (4th edn., World Customs Organization 2007) Heading 8517 (Exhibit IND -8) 
58 Customs Co -operation Council, Harmonized Commodity Description and Coding System: Explanatory 
Notes  (4th edn., World Customs Organ ization 2007) Heading 8517 (Exhibit IND -8) WT/DS582/R/Add.1  
 
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  53. A compari son of the HS1996 Explanatory Notes to heading 8525 with HS2007 Explanatory 
Notes to heading 8517 makes it clear that the latter is much wider. The EU cannot succeed in its 
claim unless it demonstrates that the products listed in Paragraph 186 of India's f irst written 
submissions are appropriately classified under tariff item 8517.62.90 and fall within the ambit of 
sub-headings 8525.10 and 8471.80 (HS1996), as explained by HS1996 Explanatory Notes.  
 
F. India's Rectification Request was valid and the object ions made by the European 
Union were unfounded  
 
54. The 1980 Procedures provide that Members may only object to a rectification if the 
Rectification and Modification of Schedules, Schedule XII - India, Communication to the Secretariat, 
(25 September 2018)  G/MA/TAR/RS/572 ("Draft Rectification"), (a) alters the scope of concessions, 
or (b) is not in terms of the procedural requirements as listed in Paragraph 2 of the 1980 Procedures. 
In that context (and as India has argued previously),59 the objections ma de by the European Union 
to India's rectification request were unfounded. Accordingly, India maintains that: (i) the European 
Union acted beyond the prescriptions of Paragraph 3 of the 1980 Procedures by raising an objection 
unfounded in law, and (ii) Euro pean Union's objections were an impediment to India's rights to make 
a formal rectification to its Schedule of Concessions under the 1980 Procedures.  
 
55. Paragraph 1(b)(iv) of the GATT 1994 states that the GATT 1994 consists of "other decisions 
of the Co ntracting Parties to GATT 1947." The Panel in US — FSC had interpreted "other decisions 
of the Contracting Parties to GATT 1947" to include 'a formal legal text which represented a legally 
binding determination in respect of the rights and/or obligations g enerally applicable to all 
contracting parties to GATT 1947.'60 Thus, it is clear that the 1980 Procedures form part of the GATT 
1994, by virtue of being a decision by Contracting Parties to the General Agreement on Tariffs and 
Trade 1947 ("GATT 1947"), a nd thereby are  a "covered agreement" within the meaning of the DSU.  
 
56. Since the 1980 Procedures are a covered agreement, under Article 3.2 of the DSU, the Panel 
has the authority to interpret the Draft Rectification and clarify the rights and obligations of the 
Members under it. Further, Article 11 of the DSU also imposes an  obligation on the Panel to 
objectively assess the facts of the dispute and examine the conformity of Members' actions with 
covered agreements. Therefore, in the present dispute, the Panel has an obligation to assess if the 
objection raised by the European  Union is in good faith or if it is merely an instrument to force India 
to grant concessions on products, which it never agreed to.  
  
57. India requests the Panel to assess the objection raised by the European Union. If the Panel 
were to find that the ITA -1 did not cover the products at issue, it will be evident that the Draft 
Rectification was of a purely formal character. Therefore, the objection raised by the European Union 
to the Draft Rectification would be unfounded in law and would be contrary to Pa ragraph 3 of the 
1980 Procedures. Further, such a determination shall also establish that the European Union's action 
impeded India's right to rectify its Schedule under the 1980 Procedures. This would also lead to the 
conclusion that the alleged concessio ns on the products at issue were clearly in error and that such 
concessions were capable of rectification via the 1980 Procedures.  
 
G. Conclusion  
 
58. In the light of the foregoing considerations, India respectfully requests the Panel to find that:  
  
a. All products except the ones explicitly classified by the EU under the contested sub -
headings, especially tariff items 8517.62.90 and 8517.70.90 and USB Cable, are 
beyond the scope of the present dispute.  
 
b. The products at issue are not covered under the  ITA-1.  
 
c. Since the products at issue are not covered under the ITA -1, the Draft Rectification 
circulated by India is of a purely formal character.  
 
 
59 Decision on Procedures for Modification and Rectification of Schedules of Tariff Concessions, GATT 
Doc. BISD S27/25 –26, 26 March 1980  
60 Panel Report, US — FSC, Para. 7.63  WT/DS582/R/Add.1  
 
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  d. The commitments under the contested sub -headings are invalid due to error. 
Accordingly, India has no t violated Articles II:1(a) and II:1(b) of the GATT 1994.  
 
e. India is not imposing duty on products at issue classified under sub -headings 
8518.30, 8544.42 and 8544.49.  
 
 
 
 WT/DS582/R/Add.1  
 
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  ANNEX B -4 
SECOND  INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF INDIA  
Introduction  
The European Union ("EU") has alleged that by imposing duties on certain information and 
communication technology products ("ICT products"), India is in violation of Article II:1(a) and 
II:1(b) of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"). On the other hand, 
India argues that the alleged commitments on contested tariff lines were provided in error, and that 
as a consequence India inadvertently expanded its commitments r elating to the products at issue 
beyond its obligations arising from the Information Technology Agreement 1996 ("ITA -1").  
Article 48 of the VCLT is applicable in the present dispute  
Article 3.2 of the Understanding on Rules and Procedures Governing the S ettlement of Disputes 
("DSU") prescribes the application of 'customary rules of interpretation of public international law' 
by Panels. The text of the DSU thus obliges the Panel to clarify the content of the covered agreements 
in 'accordance with customary  rules of interpretation of public international law' and thereby Articles 
31-33 of the Vienna Convention on the Law of Treaties 1969 ("VCLT"). More specifically, Article 
31(3)(c) of the VCLT provides for taking into account "[a]ny relevant rules of intern ational law 
applicable in the relations between the parties." Article 48 of the VCLT codifies the customary 
international law principle of error (detailed in India's written submissions), which therefore applies 
in the present context. That approach, in th e context of applying Article 48 of the VCLT, has been 
previously confirmed by the Panel in Korea—Procurement .    
In addition, India highlights that while World Trade Organization ("WTO") rules are lex specialis  in 
many respects, they do not exist in 'clinical isolation' from public international law and principles of 
international law therefore continue to apply to the present dispute unless otherwise excluded. India 
notes that its position with respect to the applicability of Article 48 of the VCLT has be en confirmed 
by certain other parties to this dispute, including the European Union.   
Separately, India also clarifies that Article XXVIII of the GATT 1994 does not apply in the present 
dispute. Article XXVIII provides for renegotiation and modification o f a Schedule of Concessions. 
This is different from Article 48 of the VCLT, which provides for error as a circumstance that 
invalidates consent to a treaty (in this case, a part of India's Schedule of Concessions). India further 
confirms that it has not in voked Article 79 of the VCLT.  
The commitments under the contested sub -headings in the 2007 Schedule are invalid due 
to errors  
Article 48(1) of the VCLT comprises the following threshold elements: (i) that the existence of an 
error must relate to a fact or situation assumed by the State to exist at the time when the treaty 
was concluded, and (ii) that such an error must form an essential basis of the state's consent to be 
bound by the treaty. These threshold conditions are qualified by Article 48(2) which pr ovides: (i) 
that the State must not have contributed to the error by its own conduct, and (ii) that the State 
must not have been on notice of such error.  
In relation to the first threshold element of Article 48(1), India was in error in relation to the mat erial 
scope of the commitments under the contested sub -headings at the time the 2007 Schedule was 
certified. At no point did India look to to expand the scope of concessions on ICT products beyond 
the ITA -1. India's error is highlighted by the fact that at  the time the contested sub -headings were 
certified in August 2015, a) India had already made its intention clear of not expanding its obligations 
under the ITA -1 via the HS2007 transposition or otherwise, and b) as noted by the European Union, 
India was a lready levying duties in 2014 on certain ICT products which clearly conflicted with the 
commitments it was ostensibly undertaking (in error) at the same time via the HS2007 transposition.  WT/DS582/R/Add.1  
 
- 45 - 
 
  By inadvertently certifying concessions contrary to its unequivocal  stand on the issue, India 
committed a factual/situational error within the meaning of the first Paragraph of Article 48 of the 
VCLT in the context of admittedly complex technical transpositions which were not flagged as they 
should have been. In this cont ext, India highlights the deliberate use of the word 'situation' in 
addition to the word 'facts' in the phraseology of Article 48  which covers the overall condition or 
circumstance prevailing at a particular time. Further, similar errors relating to techn ical entries have 
been previously considered as a potential ground for invalidity in international law. Additionally, 
India notes that Canada (as a third party to this dispute) is in agreement with India's position in 
relation to the character of India's e rror. 
That position is also confirmed via commentary on Article 48 of the VCLT, which notes that "no 
consistent meaning can be drawn from international jurisprudence with respect to the distinction 
between errors' of fact' and 'of law'". Further, "Article 48 does not exclude mixed questions of fact 
and law and the line between one and the other may not always be easy to draw". Clearly, the 
difficulty in articulating a workable distinction between errors of law and errors of fact has been 
evident from as ear ly as the drafting of the VCLT. India reiterates that the fact that an error might 
have legal consequences (as indeed all contested errors would) does not make the error a legal 
error.  
In relation to the second threshold element of Article 48(1), it is clear that India would not have 
agreed to the certification if it were aware that it would effectively expand India's commitments 
beyond those contained in ITA -1. India's error in relation  to the material scope of the contested sub -
headings formed an essential condition for India's consent to certification of the contested sub -
headings.   
In relation to Article 48(2), India notes that contrary to the European Union's assertions, it is an 
acknowledged position that the party denying the vitiating effect of the error under Article 48(1) due 
to the exceptions under Article 48(2) has the burden of proving those exceptions. Accordingly, such 
burden of proof lies on the European Union and not on I ndia. Chinese Taipei (in a parallel dispute 
DS588) and Canada agree with India's position. Notwithstanding India's position on burden of proof, 
India highlights that the qualifying condition under Article 48(2) is "to have employed all reasonable 
(rather t han possible) means of establishing the facts when concluding the treaty and of having 
taken precautions to avoid any error". India's error is framed by a transposition exercise in relation 
to admittedly complex technical sub -headings which were not "clear ly flagged" as was required 
under the Procedure for the Introduction of HS2007 (a fact that has also been noted by the European 
Union and Canada separately). India's error was not unlikely in these circumstances. India further 
highlights that WTO law impos es a duty of diligence on all parties. The WTO Membership, at large, 
including the European Union, could not have been unaware of India's very public and unequivocal 
stance against the expansion of the ITA -1. 
Indeed, in the one previous instance of Article  48 of the VCLT being applied in a WTO dispute, the 
Panel had observed that there existed a duty for all negotiating parties to verify the concessions 
being offered. That observation rings particularly true in the present instance for any party interested 
in the treatment of ICT products by India would have known that India's explicit stance was that it 
did not intend to commit to obligations beyond those in the ITA -1.  
In relation to Article 44 of the VCLT, India highlights that error is a relative ground of invalidity, 
which may affect only some provisions of the treaty. Articles 44(3)(a) -3(c) of the VCLT prescribe 
the conditions for separability of some provisions of the treaty. India has previously sought to 
establish that the contested sub -headings are clearly separable for, a) the error relates only to the 
contested sub -headings, b) the contested sub -headings are separable from the remainder of 2007 
Schedule, c) the certification of the contested sub -headings was not an essential condition for the 
conse nt of other Members to 2007 Schedule, and d) the continued performance of obligations 
undertaken via other sub -headings in 2007 Schedule would not be unjust (as is also a continuing 
fact) . 
Further, while India has previously clarified that "it continues t o consider itself bound by the 
obligations under the ITA -1 which are separate from the commitments under the contested sub -
headings that were certified in error via the HS2007 transposition", the European Union does not 
demonstrate why an unwarranted expan sion in India's concession schedule in the course of a (un -
negotiated) transposition exercise could be considered an essential condition for the consent of the 
other WTO members to the 2007 Schedule. That is especially since the procedure for the introduct ion WT/DS582/R/Add.1  
 
- 46 - 
 
  of HS2007 provided that "[i]n preparing the HS2007 transposition, to the extent possible, the scope 
of the concessions and other commitments shall remain unchanged".  
Further, the European Union has cited Villiger's commentary on reciprocity of treaty obligations in 
cases of invalidation of treaties. However, Villiger's commentary does not instantiate the present 
instance accurately. That is because the transposition exercise was not an exercise of mutual 
negotiations for concessions. It was instead a l argely mechanical exercise to 'transpose' the 
schedules of countries from one set of nomenclature to another. Any expansion in the process due 
to a complex technical transposition needed to have been flagged (which was not) for the precise 
reason that such  a transposition was not an exercise intended to lead to an un -negotiated expansion 
in concessions.  
In relation to Article 45 of the VCLT, the European Union asserts that India has acquiesced to the 
validity of contested tariff lines as India's Schedule wa s certified in 2015, since India did not invoke 
Article 48 of the VCLT until its first written submission to this Panel. However, even assuming that 
a period of six years would suffice for acquiescence under international law ( quod non ), India's 
conduct de monstrates exactly to the contrary. First, at no point did India provide concessions on the 
contested sub -headings which would be conduct capable of evidencing acquiescence to begin with. 
Second, as India has previously described, India made its position c lear with respect to the scope of 
its commitments within a year of certifying its schedule (in response to objections by various WTO 
members including the present Complainant).  
Ultimately, India has sought to establish that the legal consequence of the inv alidity of the contested 
sub-headings is that the tariff sub -headings would be rendered unbound. Also, in relation to Article 
48, India highlights that it has provided a comprehensive expert opinion on the issue of error by 
Prof. Waibel with its second wri tten submissions. That expert report is admissible in the present 
proceedings and confirms various aspects of India's analysis on error as a principle of customary 
international law in the context of the present dispute.     
The ITA -1 is the comparative be nchmark for assessing the 'error' under Article 48(1), 
VCLT  
The ITA -1 and its scope of coverage are instrumental as the comparative benchmark in establishing 
whether the transposition resulted in an expansion in the scope of India's tariff concessions, an d 
therefore, in determining India's plea of error.  
In order to determine whether there is a difference in the scope of concessions under the 
WT/LET/181 and WT/LET/1072, normally, the Panel could compare the scope of commitments of 
the two documents, and i t could be easily ascertained that the scope of commitments for ICT 
products is much wider under WT/LET/1072 than it was under WT/LET/181. A comparison the two 
documents (the said schedules) could be performed in two potential ways: (i) by preparing a posi tive 
list of products covered by the relevant tariff lines in each of the documents, or (ii) by ascertaining 
the negative list of products not covered by the relevant tariff lines in each of the documents.  
India highlights that since the HS1996 Schedule ( WT/LET/181) represents the immediate 
incorporation of India's commitments under the ITA -1, it should be used as the comparative 
benchmark. This is also evidenced by the fact that the European Union has used ITA -1 as the basis 
of its claim or as context for  India's concessions on ICT Products. In any case, there is no material 
difference between India's concessions under WT/LET/181 and its HS2002 Schedule, i.e.,  
WT/LET/886. The transposition of India's schedule from HS1996 to HS2002 did not result in any 
changes to headings 8517 or 8525.  
The European Union has argued that a comparison with the ITA -1 is not relevant because the ITA -
1 is not a 'covered agreement' within the meaning of Article 1.1 of the DSU. However, by that count, 
India's Schedule in WT/Let/ 886 (HS2002) is also not a covered agreement for it has now been 
replaced with WT/Let/1072 (HS2007). The European Union does little to address that inconsistency 
in its arguments.  Indeed, given the ITA -1 continues to stand as a special sui -generis agreemen t 
relevant to the subject matter of the present dispute and it must therefore be used as a base 
comparator as opposed to other instruments (or concession schedules) that may have expired or 
been superseded.   WT/DS582/R/Add.1  
 
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  The Products at Issue Were Not Covered By The I TA-1 
India submits that the HS Explanatory Notes, the subsequent practice to the ITA -1, and the product 
scope of the ITA -Expansion (read together) constitute relevant practice and demonstrate that the 
products at issue were not covered by the ITA -1. 
HS Exp lanatory Notes  
Article 31(4) of the VCLT provides that "[a] special meaning shall be given to a term if it is established 
that the parties so intended." The Participants to the ITA -1 intended to limit the scope of Attachment 
A to the Harmonized System ("HS ") 1996 Nomenclature and its Explanatory Notes. Thus, the 
interpretation of the ITA -1 can only be according to the HS and its Explanatory Notes, and not 
through dictionary meanings.  
The claims made by the European Union are under the sub -headings 8517.12,  8517.61, 8517.62, 
8517.70, 8544.42, 8518.30, and 8504.40. India understands that the dispute concerning sub -
headings 8518.30 (Line Telephone Handsets) and 8544.42 (Insulated electric conductors, for a 
voltage not exceeding 1000 volts, fitted with connecto rs for telecommunications) has been resolved  
with the introduction of Notification No. 15/2022 dated February 1, 2022. India submits that the 
Panel is not mandated to make any recommendations on expired measures.  
The remaining claims and products at issue  can be divided into two categories, namely, "independent 
claims" and "dependent claims." Telephones for cellular networks (8517.12), base stations 
(8517.61), Machines for the reception, conversion and transmission or regeneration of voice, images 
or other  data, including switching and routing apparatus (8517.62)  are independent claims. With 
regard to static converter (8504.40), printed circuit boards (8517.70), and parts of telephone sets 
other than PCBs (8517.70), it is submitted that the commitments und er these sub -headings are 
dependent on the other principal commitments made under the ITA -1 for products such as 
telephones for cellular networks. Since the ITA -1 did not cover telephones for cellular networks, 
base stations and LTE Equipment, their parts and apparatus can also not be covered by the ITA -1. 
India summarizes its position concerning the independent claims made by the European Union 
below:  
Sub-Heading 8517.12 – 'Telephones for Cellular Networks or for Other 
Wireless Networks' were not covered under the ITA -1   
The European Union alleges that India imposes a 20% duty on telephones for cellular networks, 
which are covered under tariff items 8517.12.11, 8517.12.19, and 8517.12.90. India maintains that 
the issue before the Panel is whether sub -heading 8525.20 – "Transmission apparatus incorporating 
reception apparatus" could cover telephones for cellular networks. The tariff heading 8525 covered, 
among others, 'Transmission Apparatus for Radio -Telephony or Radio Telegraphy.' The definition of 
the Tr ansmission Apparatus of Radio Telephony or Radio Telegraphy is limited to the transmission 
of signals representing (1) speech, (2) messages, or (3) still pictures.  This list is cumulative and 
exhaustive in nature. Therefore, no apparatus which can transmi t signals representing videos or any 
other media other than the three listed above can be included in the scope of heading 8525.  
The European Union has relied on the amendment made to the HS1996 Explanatory Notes in March 
1998 to argue that mobile phones c ould be classified under HS1996 heading 8525. India highlights 
that, first, the list in Part (A) of the Explanatory Notes of heading 8525 is subject to the main 
definition of Transmission Apparatus for Radio Telephony or Radio Telegraphy. As explained abov e, 
the transmission apparatus under HS1996 heading 8525 only consists of apparatus which can 
transmit signals representing (1) speech, (2) messages, or (3) still pictures. Second , the amendment 
to the HS1996 Explanatory Notes was only adopted in 1998. WT/LET/181 was certified on October 
2, 1997. Therefore, the product scope agreed upon by India was the product scope as delineated by 
the Explanatory Notes as on October 2, 1997. The amendment cited by the European Union is not 
applicable in the present di spute.  
India also highlights that the contested sub -heading 8517.12 has ceased to exist. Smartphones and 
Telephones for cellular networks are now classified under sub -headings 8517.13 and 8517.14, 
respectively. In this regard, it must be noted that if a pr oduct is to be classified under a tariff entry, WT/DS582/R/Add.1  
 
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  then the heading and description both would have to be seen together to determine the 
commitments prescribed in the schedule. The description of sub -headings 8517.13 and 8517.14 is 
different from the descript ion of the erstwhile sub -heading 8517.12. Specifically, the term 
'smartphones' does not appear in the ITA -1 or in the 2007 Schedule. Accordingly, no commitments 
exist with respect to such smartphones. Further, there exists no certified schedule with respec t to 
sub-headings 8517.13 and 8517.14.  
Separately, India submits that HS2007, HS2012 and HS2017 solely used the 'type of network' a 
particular telephone uses to classify telephones under sub -headings 8517.11 and 8517.12. However, 
tariff item 8517.13.00 is based on functionality of the phone and the type of network. Based on 
Chapter Note 5 to Chapter 85, India conside rs that smartphones are multifunctional devices, and 
the principal function of these devices is not that of telephones. In other words, such devices could 
have various other functions such as gaming, photography and videography, video production and 
editin g, consuming various forms of content, wirelessly charging other devices, etc. and the principal 
function no longer appears to be that of a telephone. India submits that since 'smartphones' were 
not granted a dedicated tariff sub -heading in HS2007, they we re classifiable under different tariff 
items, depending on the functionality of the smartphones. The burden of proof is on the complainant 
to identify the sub -heading under which smartphones were classified under HS2007, and whether 
India has violated its commitments viz -a-viz such sub -headings.  
Sub-Heading 8517.61: 'Base Stations' were not covered under the ITA -1. 
The European Union alleges that India imposes 20% duty on "Base Stations," which are covered 
under tariff items 8517.61.00 of the Customs Tarif f Act, 1975. Unlike base station, switching 
apparatus of the kind covered in HS1996 Explanatory Notes does not receive or transmit radio 
waves. They receive and transmit "coded" electrical signals and establish a connection for the 
purposes of line telepho ny. Therefore, base stations, for which radio transmission is essential, cannot 
be covered under this heading. Accordingly, the issue before the Panel is whether sub -heading 
8525.10 – "Transmission apparatus other than apparatus for radiobroadcasting or te levision" or 
8525.20 – "Transmission apparatus incorporating reception apparatus" could cover base stations.  
India reiterates that heading 8525 (HS1996) covered "[t]ransmission apparatus for radio-telephony, 
radio-telegraphy , …., whether or not incorporati ng reception apparatus or sound recording or 
reproducing apparatus." The transmission apparatus covered under such heading were limited to 
radio-telephony apparatus of the kind described in HS1996 Explanatory Notes. It has already been 
established above th at telephones for cellular networks were not covered under the ITA -1. Even if 
the Panel were to find that mobile phones were covered under sub -heading 8525 of HS1996 on the 
basis of the later WCO amendment, the European Union's claims regarding base statio ns and LTE 
equipment being covered by the ITA -1 would still fail - since they were still not included within the 
exhaustive description of sub -group of radio -telephony. Accordingly, base stations were also not 
covered under the ITA -1. Accordingly, India su bmits that sub -headings 8525.10 or 8525.20 did not 
and could not cover base stations.  
Sub-Heading 8517 62: Machines for the reception, conversion and 
transmission or regeneration of voice, images or other data, including 
switching and routing apparatus ot her than PLCC Equipment, Voice 
Frequency Telegraphy, Modems, High Bit Rate Digital Subscriber Line System, 
Digital Loop Carrier System, Synchronous Digital Hierarchy System and 
Multiplexers were not covered under the ITA -1. 
The European Union has alleged t hat Customs Notification No. 57/2017 dated 30 June 2017 and its 
succeeding notifications exempts products falling under the tariff item 8517.62.90 of the First 
Schedule from the portion of customs duty exceeding 10%, except for wrist wearable devices, opti cal 
transport equipment, combination of one or more of packet optical transport product or switch, 
optical transport network, IP Radios, Soft switches and Voice over Internet Protocol equipment, 
carrier ethernet switch, packet transport node products, mult iprotocol label switching transport 
profile products, and MIMO and LTE products.  
Indeed, Serial No. 20 of Notification No. 57/2017 dated June 30, 2017 provides exemptions with 
certain exceptions, and the column concerning classification of the said goods indicates that such 
goods could be classified under tariff item 8517.62.90 or 8517.69.90. There is thus a possibility that WT/DS582/R/Add.1  
 
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  the products at issue might not be classified under tariff item 8517.62.90 to the extent they are 
appropriately classified under sub -heading 8517.69.  
The European Union has sought to establish that all the products listed under S.No. (a) to (h) of 
Notification No. 78/2018 are classifiable under sub -heading 8517.62. The European Union relies on 
the HS Explanatory Notes 2007 to tariff li ne 8517. However, the European Union's reasoning is 
flawed.  
The HS2007 tariff heading 8517 is divided into 7 sub -headings: 8517.11, 8517.12, 8517.18, 
8517.61, 8517.62, 8517.69 and 8517.70. Section (I) of the Explanatory Notes pertains to sub -
headings 8517 .11, 8517.12, 8517.18, while Section (II) of the Explanatory Notes pertains to 
headings 8517.61, 8517.62, 8517.69 and 8517.70. Section (II) of the Explanatory Notes is further 
divided into 8 sub -sections. The European Union has relied on one of the sub -sections and has 
assumed that the entirety of sub -section (G) is dedicated to sub -heading 8517.62. However, there 
is no legal basis for such an assumption.   
India draws the Panel's attention to the fact that the description of 8517.69 is "Other" and sub -
section (G) as relied upon by the European Union also pertains to "Other Communication Apparatus." 
Therefore, there is no legal basis for the European Union to rely on sub -section (G) to prove that 
the products identified by it are classifiable under sub -headi ng 8517.62 and not sub -heading 
8517.69.   
This negates the European Union's argument for such products would then be outside the scope of 
the present Panel request.  
The European Union has stated that India's commitment under HS1996 sub -heading 8525.10 
covered 'Transmission apparatus other than apparatus for radiobroadcasting or television.'  It has 
been argued that post -transposition, transmission apparatus for radio -broadcasting or television is 
classified under HS2007 sub -heading 8525.50. The remainder of  HS1996 sub -heading 8525.10 was 
transposed to ex8517.61 and ex8517.62. The European Union further argues that the products can 
be classified under HS1996 sub -headings 8517.50 and 8471.80.  
First, it is submitted that European Union relies on the correlatio n table to make the above argument. 
Correlation tables act as guidelines in order to facilitate implementation of the new editions of the 
HS nomenclature, but are not legally binding. Secondly, the European Union does not provide any 
evidence to establish that the products in question were classifiable under HS1996 sub -heading 
8525.10. Third, apparatus used for 'radio transmission' systems were excluded from the ambit of 
sub-heading 8517.50, and consequently, there exists no obligation upon India under the ITA-1 to 
provide Nil duty to apparatus used for radio transmission under sub -heading 8517.50. Last, 
'machines, instruments or apparatus incorporating or working in conjunction with an automatic data 
processing machine and performing a specific function' we re excluded from the ambit of heading 
8471.  
Therefore, the European Union cannot succeed in its claim unless it demonstrates that the products 
are appropriately classified under tariff item 8517.62.90 and fall within the ambit of sub -headings 
8525.10, 851 7.50, and 8471.80 (HS1996), as explained by HS1996 Explanatory Notes.  
Subsequent Practice to the ITA -1 
India highlights that contrary to the European Union's position, 'general and political statements' 
may also qualify as subsequent practice within the m eaning of Article 31(3)(b) of the VCLT,  if such 
statements are concerned with the treaty's meanings and interpretation. Since the statements relied 
upon by India reflect the countries' agreement concerning the static nature of product scope of the 
ITA-1, they constitute as subsequent practice. However, since the European Union agrees with 
India's understanding that the ITA -1 does not automatically cover "all" ICT products, this discussion 
is moot.  
India in its First Written Submission demonstrated how sev eral Participants of the ITA -1, who are 
also now participants to the Ministerial Declaration on the Expansion of Trade in Information 
Technology Products ("ITA Expansion"), did not grant any concessions to certain products at issue 
until they modified thei r schedules of concessions in pursuance of the ITA Expansion. Separately WT/DS582/R/Add.1  
 
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  too, and in what affirms the complex nature of the transposition itself, India has demonstrated that 
(i) the HS2007 schedules of some WTO Members reflect NIL duty for certain conteste d tariff lines, 
whereas these Members continue to impose duties on such tariff lines, (ii) some ITA -1 Participants 
have not committed to a NIL duty for certain contested tariff lines, and last, (iii) certain ITA -1 
participants who are not participants to t he ITA Expansion continue to impose duties on products 
covered under certain contested tariff lines.  
For instance, Vietnam and Ukraine have committed Nil duty on certain tariff lines but continue to 
impose duties ranging from 0 -10% on certain products cla ssifiable under such tariff lines. Indeed, 
countries such as the Dominican Republic, Indonesia, Morocco, Tajikistan, Turkey, Ukraine, Vietnam, 
Oman, Moldova, Jordan and Egypt continued to impose duties on certain products at issue for a 
considerable period  after entering into the ITA -1.  
It was found that while Viet Nam's bound rate for sub -heading 8517.62 is Nil, Viet Nam continued 
to apply duties ranging from 0 -10% till 2020 on certain products classifiable under sub -heading 
8517.62. Further, Viet Nam's b ound rate for contested sub -heading 8517.70 is not Nil. This implies 
that Viet Nam does not consider the contested sub -heading to be a part of its ITA -1 commitments. 
Similarly, Ukraine's bound rate for sub -heading 8517.70 is Nil, Ukraine continued to apply  duties 
ranging from 0 -10% on certain products classifiable under sub -heading 8517.70 till at least 2021.  
Product Scope of the ITA Expansion  
India also highlights that the very purpose of the ITA Expansion was to extend concessions to a 
wider range of pro ducts accounting for technological progress and market evolution which could not 
be covered within the ITA -1 read with the relevant sub -headings of HS1996 and the applicable 
Explanatory Notes. The fact that the ITA Expansion covers almost all products at i ssue in the present 
case - explicitly those under sub -headings 8504.40, 8517.61, 8517.62, 8517.70, 8518.30 - is a clear 
affirmation that those products are in addition to and were beyond the scope of the ITA -1.    
The European Union and certain third parti es have claimed that there exists an overlap between 
ITA-1 and ITA Expansion. The European Union has relied on G/IT/SPEC/15 to substantiate the claim. 
India highlights that G/IT/SPEC/15 does not form a part of negotiating history of the ITA Expansion, 
and therefore cannot be relied upon. Further, India notes that G/IT/SPEC/15 contains notations 
against products which are already included in the ITA -1. However, India notes that none of the 
products at issue have been identified in G/IT/SPEC/15 with such nota tions which denote that the 
products at issue were part of the ITA -1. 
Draft Rectification  
India's  position with regard to the Draft Rectification is not a counter -claim in the present dispute. 
India submits that if it is found that the proposed Draft Recti fication is of a purely formal character, 
it would lead to the conclusion that the objection raised by the European Union to the Draft 
Rectification was unfounded. Consequently, the Panel could determine that the bound rates assigned 
to the products at iss ue were clearly in error and that such concessions were capable of rectification 
via the 1980 Procedures. Therefore, there can be no violation of Article II:1(a) and Article II:1(b) of 
the GATT 1994 if the contested tariff lines of India's Schedule of conc essions are void. India does 
not seek for the certification of the Draft Rectification through the dispute settlement mechanism.  
Paragraph 1(b)(iv) of the GATT 1994 states that the GATT 1994 consists of "other decisions of the 
Contracting Parties to GATT 1947." The Panel in US — FSC had interpreted "other decisions of the 
Contracting Parties to GATT 1947" to include "a formal legal text which represented a legally binding 
determination in respect of the rights and/or obligations generally applicable to all contracting parties 
to GATT 1947." India notes that the 1980 Procedures constitute a 'covered agreement', as it is a 
decision by the Contracting Parties to the General Agreement on Tariffs and Trade 1947 ("GATT 
1947), and it is a legally binding determination in respect of the rights and obligations generally 
applicable to all the Contracting Parties to the GATT 1947. Since the 1980  Procedures is a covered 
agreement, under Article 3.2 of the DSU, the Panel can interpret the Draft Rectification and clarify 
the rights and obligations of the Members under it.  
In any case, the Panel is obligated under Article 11 of the DSU to make an "ob jective assessment of 
the matter before it, including an objective assessment of the facts of the case."  From this, it is WT/DS582/R/Add.1  
 
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  evident that under Article 11 of the DSU, the Panel is obligated to consider defences raised by the 
respondent during the course of a  dispute. This stands true even if such defence pertains to 
Agreements which are not covered agreements. Therefore, the Panel is obligated to assess the 
complaint in light of the 1980 Procedures. Any position to the contrary would result in the 
respondents  not being able to raise any defence in proceedings before the Panel. India considers the 
assessment of the European Union's objections to the Draft Rectification essential for an objective 
assessment of the facts of the case under Article 11 of the DSU.  
Conditions  
The Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017, which requires the 
intimation of intent to avail concessional rates of duties and registration of bills of entry. These 
processes have been automated, where all details can be uploaded on a common portal. With regard 
to the licensing requirements for wireless products, the Indian Wireless Telegraphy Act 1933 
provides that the possession of wireless telegraphy apparatus, i.e., 'any apparatus, appliance, 
instrument or material used or capable of use in wireless communication' without a license is 
prohibited, except any relaxation provided under any rules framed thereunder. Further, Notification 
No. 71 dated September 25, 1953, as amended, allows the importation of wireless equip ment only 
by persons who have been licensed to import such equipment by the Department of 
Telecommunications. The licensing requirement is applicable for the possession of the specified 
wireless apparatus in the country.  
India submits that there is no req uirement to record such procedural and documentary formalities 
for the importation of goods in the schedule of concessions. There is no restriction on maintaining 
such formalities pertaining to importation of goods, as long as such formalities do not act a s a 
limitation to trade.  
Conclusion  
For the reasons set forth in this submission, India respectfully requests the Panel to find that:   
• The commitments under the contested sub -headings are invalid due to 'error' 
within the meaning of Article 48 of the VC LT 
• The products at issue are not covered under the ITA -1 and the 2007 Schedule, 
certified in error, included products not originally covered by the ITA -1 
• Since the products at issue are not covered under the ITA -1, the Draft Rectification 
circulated by  India is of a purely formal character  
 
 
 
_______________  
 
 
 WT/DS582/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  53 
Annex  C-2 Integrated executive summary of the arguments of Canada  55 
Annex  C-3 Integrated executive summary of the arguments of Japan  58 
Annex C -4 Integrated executive summary of the arguments of the Republic of Korea  63 
Annex C -5 Integrated executive summary of the arguments of Norway  66 
Annex C -6 Integrated executive summary of the arguments of Singapore  67 
Annex C -7 Integrated executive summary of the arguments of Chinese Taipei  69 
Annex C -8 Integrated executive summary of the arguments of Türkiye  72 
Annex C -9 Integrated executive summary of the arguments of Ukraine  76 
Annex C -10 Integrated executive summary of the arguments of the United States  78 
 
 
 WT/DS582/R/Add.1  
 
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  ANNEX  C-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL  
INTRODUCTION  
 
1. Brazil provides the following executive summary of its participation during the panel proceedings 
in this dispute.  
I. ARGUMENTS  
A. Articles 8.6 and 8.7 of the DSU regarding the composition of a panel.  
 
2. Brazil does not see a hierarchy of procedures between Article 8.6 and A rticle 8.7. Article 8.6 
establishes an obligation for the Secretariat to circulate names for the parties to agree upon as 
panelists, but Parties may decline such indications or agree on other panelists not previously 
suggested by the Secretariat. Article 8 .7, on its turn, defines that the Director -General shall 
determine the composition of the panel if there is no agreement on the panelists within 20 days 
after the date of the establishment of a panel. The text of that provision does not condition the 
reque st to the Director -General on the previous circulation of a slate of names; rather, it only 
defines a minimum amount of time for the parties to try to negotiate. Such negotiations, in 
Brazil's view, are not a mandatory condition for the formation of a pane l by the Director -General.  
B. The interpretation and modification of the Schedules of Concessions, in light of the 
object and purpose of the GATT 1994.  
 
3. Brazil understands that, in the present dispute, the Panel is required to clarify the proper bound 
tariff set by India in its Schedules for certain tariff lines. Pursuant to Article 3.2 of the DSU, the 
Panel should apply customary rules of interpretation of public international law, in particular 
Articles 31 and 32 of the VCLT, to accomplish this objective.  
4. Regarding the nature and usefulness of the ITA -1 in the present dispute, Brazil understands that 
the ITA -1 constitutes a commitment on the part of its participants to eliminate and bind duties 
at zero for the products specified therein on an MFN basis. Once the concessions are included in 
a participant's Schedule of Concessions, those rates become part of that Member's obligations 
under the covered agreements.  
5. In Brazil's view, the ITA -1 is not a "covered agreement" within the meaning of Ar ticle 1.1 of the 
DSU, and, therefore, the Panel has no authority to interpret it. The panel may need to inquire, 
however, whether the ITA -1 qualifies as context, within the meaning of Article 31(2)(b) of the 
VCLT, for the interpretation of the commitments in India's Schedule. Brazil does not take a 
position on that matter.  
6. More importantly, Brazil considers that the present dispute concerns the interpretation of the 
Schedules in line with the objective of ensuring the predictability and security of the r eciprocal 
and mutually agreed concessions that are the cornerstone of the WTO architecture. In this sense, 
Brazil reiterates that the ITA is not material to a determination on the objective and purpose of 
the WTO Agreement, just as previously analyzed by t he panel in EC – IT Products.1 
7. Brazil also notes that the ITA -1 covers a set of fast evolving products - computers, 
telecommunication gadgets, semi -conductors, and manufacturing equipment, amongst others – 
which are constantly subject to new functional ities and innovations. This invites the panel to 
analyze the extent to which technological innovations may change the commitments inscribed 
in a Member's Schedule. In Brazil's view, technological evolution cannot lead to unilateral 
 
1 Panel Report, EC – IT Products , para . 7.548.   WT/DS582/R/Add.1  
 
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  reclassifications by imp orting Members in ways that may circumvent the tariff commitments they 
negotiated and registered in their WTO Schedules.  
C. The application of Article 48 of the Vienna Convention on the Law of Treaties.  
 
8. Brazil understands that nothing in the WTO agreem ents precludes a Member from invoking 
Article 48 of the VCLT. Notwithstanding this, Brazil notes that current international jurisprudence 
sets a very high threshold for demonstrating that a party consented to a treaty in error.  
9. Brazil recalls that in o rder for Article 48 to apply, it must be established that: (i) the error in 
question, if it existed, formed an "essential basis" of a Party's consent to be bound by the treaty; 
(ii) that Party did not contribute by its own conduct to the error; and (iii) t he circumstances were 
not such as to put that Party on notice of a possible error.  
10. Whilst Brazil does not take a position on the application of Article 48 of the VCLT in this dispute, 
it believes that precedence should be given to provisions in the WT O covered agreements over 
other legal documents, such as the VCLT. For example, Brazil understands that provisions 
contained in the "Procedures for Modification and Rectification of Schedules of Tariff 
Concessions" ("1980 Procedures") regarding the rectifi cation of Schedules should prevail over 
the analogous rules in Article 79 of the VCLT regarding changes of a purely formal character  
 
 
 
 
 
 
 WT/DS582/R/Add.1  
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA  
I. INTRODUCTION  
1. The following submission sets out the main arguments of Canada as a third party in this 
dispute. Specifically,  Canada 's views with respect to the issue of technological advancements and 
product coverage, the ITA -1 and the ITA Expansion, Article 48 of the VCLT, and India 's bilateral 
trade agreement with Japan.  
II. NEW PRODUCTS ARE NOT EXCLUDED FROM EXISTING COVERAGE SIMPLY BECAUSE 
THEY INCORPORATE TECHNOLOGICAL ADVANCEMEN TS 
2. Canada 's view is that tariff concessions under the Uruguay Round and ITA -1 are not static and 
do not encompass only those products in existence at the time they were concluded. The HS is 
updated to account for new products and Members' obligations an d tariff bindings will either apply 
to these new products to the extent that they fall within existing tariff lines.  
3. The panel in EC – IT Products  observed that Members, when making commitments pursuant 
to Article II of the GATT 1994 "may choose precise , even exclusive, terms and conditions to qualify 
or limit the scope of coverage. These include terms and conditions that would limit coverage to a 
particular product based on its physical attributes, dimensions, technical characteristics or features. 
A Member may also refer to a particular classification or tariff heading to define or limit the scope of 
a concession. The determination of the scope of coverage comes from the meaning of the terms of 
that commitment ."1 New products are not automatically excl uded from existing coverage simply 
because they incorporate technological advancements. Rather, the scope of coverage is determined 
by an examination of the meaning of the terms contained in the commitment set out in a Member's 
Schedule.  
4. With regards to the specific issue of technological developments with respect to IT products, 
the panel in EC – IT Products  found that in assessing the scope of the proposed concessions at issue 
in that case there was no need to consider the particular sta tus of technology at the time of 
negotiating the concession.2 Rather, in determining the scope of the commitments made with respect 
to the specific products, the Panel applied the customary rules of interpretation set out in Article 31 
of the Vienna Conve ntion, including the ordinary meaning of the terms of the commitment, the 
context provided by the ITA -1, other relevant parts of the Schedule at issue and the Schedules of 
other WTO Members.3   
5. As such, it is not necessary in the case at hand to examin e the status of the technology in 
existence at the time the ITA -1 was concluded. Rather, the Panel's primary task in this case is to 
determine whether, in its tariff schedule, India has made tariff commitments with respect to the 
products at issue, and if so, whether duties have been imposed on the products at issue in this case 
in excess of the tariff bindings set out in India's 2007 Schedule.  
6. Canada's position in this regard is the same with respect to all products - whether products in 
general, products falling within the scope of the ITA -1, or products falling within the scope of the 
ITA Expansion. An interpretation that finds that such commi tments are static and unable to capture 
technological advancement would undermine the WTO system of tariff concessions by allowing 
Members to simply disregard tariff commitments on the basis that a product incorporates new 
technology or has otherwise evolv ed technologically.   
 
1 Panel Reports, EC – IT Products , para. 7.505 (emphasis added).  
2 Ibid, paras. 7.596, 7.600, 7.952.  
3 Ibid, para. 7.952 for instance.  WT/DS582/R/Add.1  
 
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  III. THE RELEVANCE OF THE ITA -1 AND THE ITA EXPANSION AND THE INTERPLAY 
BETWEEN THE TWO AGREEMENTS  
7. In Canada's view, it is not necessary in the case at hand to interpret the ITA -1 itself . Rather, 
the Panel's task is to interpret In dia's tariff commitments set forth in its Schedule of Concessions 
annexed to the GATT 1994. The ITA -1, however, may be considered as relevant context within the 
meaning of Article 31 of the Vienna Convention for the purposes of interpreting the terms of th e 
concessions at issue.  
8. India is not a party to the ITA Expansion and therefore did not agree to any tariff concessions 
nor implement the commitments agreed upon by the parties to the ITA Expansion. The ITA 
Expansion would therefore qualify to serve as context for changes to other Member's schedules that 
were made following that Agreement and which implemented the commitments contained therein – 
but this is not the case for India.  
9. Further, the inclusion of a product in the ITA Expansion does not nece ssarily mean that it falls 
outside the scope of the ITA -1; overlap in product coverage may occur between the two lists. When 
defining the product scope of the ITA Expansion, it is Canada's understanding that negotiators did 
not purposefully seek to avoid o verlap with certain products falling within the scope of ITA -1. Rather, 
Canada understands that negotiators were aware that there would be overlap, and that overlap 
would be difficult to avoid, in part due to the differences in HS versions that were used a s a basis 
for the two agreements (i.e. the HS2007 for the ITA Expansion and HS1996 for ITA -1). 
IV. ARTICLE 48 OF THE VCLT  
10. As a preliminary matter, any analysis under Article 48 must first be preceded by an analysis 
and findings as to whether the produc ts at issue are captured by the tariff concessions at issue. It 
would then require a determination that all of the requisite elements of Article 48 have been met. 
In other words, it must be shown that: 1) there is an error in the treaty, 2) related to a fa ct or 
situation assumed by the State to exist at the time the treaty was concluded, 3) which formed an 
essential basis of its consent to be bound by the treaty, and 4) that the State did not contribute by 
its own conduct to the error nor the circumstances were such as to put that State on notice of a 
possible error.  
11. Canada questions whether purely formal or technical amendments to treaties, such as those 
which occur during the certification of tariff schedules following a transposition process, could sa tisfy 
the requirement of forming an "essential basis" of a State's consent to be bound by the treaty. This 
element of Article 48 examines whether a State would have refrained from giving its consent to the 
entire treaty had it known the real fact or situat ion. It was included in Article 48 to guard against 
abuse of Article 48 by preventing States from reneging on their commitments and to protect the 
stability of treaties, as well as the good faith of the other parties by clearly defining the conditions 
under which an error is capable of invalidating consent.4 In Canada's view, given this requirement 
regarding the "essential" character of the error, it seems unlikely that technical amendments that 
do not alter the scope of a State's obligations could satisfy such a high threshold of forming the 
"essential" basi s of a State's consent to be bound by a treaty.  
12. The criteria in Article 48(2) are also of particular importance to the Panel's analysis on whether 
Article 48 can be successfully invoked. The first requirement in Article 48(2) is that the State in 
quest ion did not, by its own conduct, contribute to the error. The second element in Article 48(2) is 
that a claim of error cannot be invoked where "the circumstances were such as to put that State on 
notice of a possible error."  
13. While the jurisprudence on  Article 48 is limited, the jurisprudence suggests that there is a 
certain level of diligence that is required on the part of the State invoking the error in order to 
demonstrate that its conduct did not contribute to the error. In Canada's view, it is the  WTO 
Member's responsibility to adequately review and ensure its Schedules are correct before they are 
certified. Canada considers that India had the opportunity to review the proposed transposition 
prepared by the WTO Secretariat and to propose any change s prior to certifying the document. 
Canada further notes that concordance documentation was available in 2007 that indicated exactly 
 
4 O. Dorr and K. Schmalenbach (eds.),  Vienna Convention on the Law of Treaties: A Commentary, 
Second Edition  (Berlin: Springer -Verlag GmbH Germany, 2018), Exhibit CAN -1, p. 897.  WT/DS582/R/Add.1  
 
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  how the Secretariat viewed the transposition of ITA products from HS1996 to HS2007. The 
availability of such 2007 concordan ce documentation may further suggest that the circumstances 
were such as to put India on notice as to a possible error in its understanding regarding the scope 
of the concessions. Upon review of the draft HS07 file, despite all of the available information , India 
did not inquire further as to the scope of the concessions and thus, by its own conduct, may have 
contributed to the alleged error regarding the scope of such concessions.  
14. With regards to the burden of proof when invoking Article 48, the party  seeking to invoke 
Article 48 bears the burden of proof of demonstrating that it meets the requirements of Article 48. 
However, Canada considers that the exclusionary clause in Article 48(2) requires the party denying 
the vitiating effect of an error – in this case the complainant – to prove the elements of Article 48(2) 
are met.  
V. THE PANEL 'S ABILITY TO ASSESS THE VALIDITY OF INDIA 'S DRAFT 
RECTIFICATION  
15. Canada is of the view that the determination of whether India's 2018 draft rectification was 
of a purely formal character is not within the purview of a dispute settlement panel to assess.  
VI. INDIA'S BILATERAL TRADE AGREEMENT WITH JAPAN DOES NOT SAVE IT FROM A 
FINDING OF A VIOLATION OF ARTICLES II:1(A) AND (B ) 
16. The implementation of a bilateral fre e trade agreement does not preclude a finding of a 
violation of Article II and is irrelevant to the Panel's analysis in the case at hand. The obligations in 
Article II of the GATT exist independent of any bilateral free trade agreement that sets out 
prefer ential tariff concessions for goods that qualify under the bilateral free trade agreement. The 
concessions set out in the Schedules of WTO Members establish the maximum most -favoured nation 
("MFN") duties that will apply to WTO Members, including goods fro m free trade agreement partners 
that do not claim or qualify for preferential tariff treatment under the free trade agreement. These 
bound MFN rates are unaffected by bilateral trade agreements.  
 
 WT/DS582/R/Add.1  
 
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  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN  
I. Introduction  
1. This dispute concerns the imposition of customs duties on certain products by India, in breach 
of its obligations under the General Agreement on Tariffs and Trade 1994 (" GATT 1994"). Japan 
submits that India is imposing customs duties in a manner inconsistent with its obligations under 
Articles II:1(a) and (b) of the GATT 1994 upon certain products.  
II. India's Tariff Concessions Are Not Limited by the ITA -1 
A. The Panel Lacks Jurisdiction to Adjudicate on India's Rights and Obligations 
Under the ITA -1 
2. India asserts that the products at issue are not covered by the Ministerial Declaration on Trade 
in Information Technology Products (WT/MIN(96)/16)  ("ITA-1"). India relies o n paragraph 1 of the 
Annex to the ITA -1 and Article 3.2 of the Dispute Settlement Understanding ("DSU") to argue that 
the Panel should interpret "the relevant entries in Attachment A to the ITA -1" in accordance with 
the customary rules of interpretation un der the Vienna Convention on the Law of Treaties ( "Vienna 
Convention "). This argument is wrong because the Panel does not have jurisdiction to clarify the 
rights and obligations under the ITA -1. 
3. The ITA -1 is not a "covered agreement" within the meaning of Article 1.1 of the DSU, as only 
agreements listed in Appendix 1 to the DSU are "covered agreements" . In this case, India 's relevant 
obligations arise from the tariff concessions made by India under Article II:1 of the GATT 1994 and 
its certified schedule o f concessions ("Schedule") which is made an integral part of the GATT  1994, 
pursuant to Article II:7 of the GATT 1994, not the ITA -1. 
4. The panel function under Article 11 of the DSU is limited to assisting the Dispute Settlement 
Body ("DSB") in discharging its responsibilities under the DSU and the covered agreements. In 
addition , Article 3.2 of the DSU establishes that the role of the di spute settlement system of the 
World Trade Organization ("WTO") is to "preserve the rights and obligations of Members under the 
covered agreements and to clarify the existing provisions of those agreements in accordance with 
customary rules of interpretati on of public international law". Thus, the jurisdiction of the Panel to 
clarify the rights and obligations of members of the WTO ("WTO Members ") is limited to those arising 
under the "covered agreements", and this limitation is also clearly indicated in th e Panel's terms of 
reference.  
B. The ITA -1 Is Not Relevant to the Interpretation of India's Tariff Concessions 
at Issue  
5. India's obligations regarding the tariff concessions on the products at issue arise from Article 
II:1 of the GATT 1994, and thus, the document to be interpreted by the Panel is India's Schedule of 
Concessions and Commitments annexed to the GATT 1994 ("India's Schedule"), not the ITA -1. Japan 
further submits that the ITA -1 is not relevant to the Panel's interpretation of India's Sched ule and 
cannot be taken into account either as context or even as supplementary means of interpretation.  
6. Article 31(1) of the V ienna Convention  requires that the interpretation of a treaty be made "in 
good faith in accordance with the ordinary meaning to b e given to the terms of the treaty in their 
context and in the light of its object and purpose" . WT/DS582/R/Add.1  
 
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  7. While Japan recognizes that  the panel in EC – IT Products  found that the ITA -1 may serve as 
context within the meaning of Article 31(2)(b) of the Vienna Conven tion for interpreting tariff 
concessions  in some cases, this finding was made in the specific context of that case. More 
specifically, in EC – IT Products , the relevant Schedule at issue was based on the same version of 
the nomenclature established under t he International Convention on the Harmonized Commodity 
Description and Coding System (" HS nomenclature") as the one used by the ITA -1. In contrast, in 
the present case, India's Schedule at issue is based on a different version of the HS nomenclature 
from the one which the ITA -1 was based upon.  
8. Accordingly, Japan submits that the ITA -1 cannot serve as part of the context within the 
meaning of Article 31(2)(b) of the Vienna Convention for the purpose of interpreting India's 
Schedule.  
9. Nor c an the ITA -1 be examined as a "supplementary means of interpretation " within the 
meaning of Article 32 of the Vienna Convention. A recourse to "supplementary means of 
interpretation" is justified when "the interpretation according to [A]rticle 31 … leaves the meaning 
ambiguous  or obscure; or … leads to a result which is manifestly absurd or unreasonable". As the 
meaning of the relevant part of India's Schedule which is at issue is sufficiently clear and 
unambiguous, the conditions for a recourse to suppleme ntary means of interpretation are not 
satisfied  in the present case.  
C. The ITA -1 Covers the Products at Issue and Its Product Scope Does Not 
Exclude "New Products"  
10. Finally, even if the Panel were to look at the ITA -1 when interpreting India's tariff conce ssions, 
whether as context or otherwise, the consideration of the ITA -1 does not change the result of the 
textual analysis of the relevant tariff concessions. India asserts that the ITA -1 does not include "new 
products" that did not exist at the time of th e ITA -1 negotiations. In support of its position, India 
refers to the fact that some of the products at issue are covered by Ministerial Declaration on the 
Expansion of Trade in Information Technology Products (WT/MIN(15)/25)  ("ITA Expansion"). 
However, th is fact does not support India's position.  
11. In particular, the product coverage of the ITA -1 and that of the ITA Expansion are not mutually 
exclusive. In fact, the negotiators of the ITA Expansion were aware that some of the products being 
negotiated for in clusion in the ITA Expansion were already covered by the ITA -1. 
12. Accordingly, even if the ITA -1 were to be taken into account for interpreting the scope of 
India's tariff concessions, there is no reason for the Panel to conclude that such scope is limited t o 
the products that existed at the time the ITA -1 was negotiated. India's interpretation effectively 
carves out "new products" from the scope of the tariff concessions, without any textual basis in the 
tariff concessions themselves for doing so. As explain ed by the panel  in EC – IT Products , the scope 
of tariff concessions must be interpreted using the ordinary meaning of the actual terms of the 
relevant commitment, and qualifications which  are not found within the text of a commitment should 
not be considered  in its interpretation. The pane l in EC – IT Products also stressed that "there [was] 
no need to consider further the particular status of technology at the time of negotiating the 
concession in assessing the scope of the concession". Thus, whether a particular product or 
technology exis ted at the time the relevant concession was made is not an element which should be 
taken into account for determining the scope of the relevant concession.  
III. India Is Not Excused from Its Commitments Due to an Alleged  "Error"  
13. In its defense, India alleg es that the tariff concessions  at issue in India's Schedule are invalid 
due to errors within the meaning of Article 48 of the Vienna Convention. In particular, India argues 
that it was in error as to the scope of its tariff concessions in its Schedule based on the 2007 edition 
of the H S nomenclature (" HS 2007"), at the time of its certification, as a result of the complex nature WT/DS582/R/Add.1  
 
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  of the transposition from the 2002 edition of the HS nomenclature (" HS 2002") to the HS 2007 . 
According to India, the transposition expanded its tariff commitme nts with respect to information 
technology products beyond the remit of India's obligations as contained in  the ITA -1.  
14. However, India's allegations of error and invocation of Article 48 of the Vienna Convention 
must be rejected, as India has failed to est ablish that (i) the defense set forth in Article 48 of the 
Vienna Convention is available in the present dispute, and that (ii) the conditions for the invocation 
of that defense are met.  
A. The Defense Under Article 48 of the Vienna Convention Is Not Availab le in 
the Present Case  
15. There is no legal basis for the application of Article 48 of the Vienna Convention to this case.  
Although India refers to Article 3.2 of the DSU and Article 31(3)(c) of the Vienna Convention as two 
distinct legal bases for the appli cability of Article 48 of the Vienna Convention in this case, neither 
argument can be sustained.  
16. Article 3.2 of the DSU describes the role of the WTO dispute settlement system as being to 
"clarify the existing provisions of [the covered] agreements in acco rdance with customary rules of 
interpretation of public international law" . Moreover, Article 11 of the DSU instructs panels to make 
an objective assessment of the "applicability of and conformity with the relevant covered 
agreements ". However, the Vienna Convention is not a "covered agreement" within the meaning of 
Article 11 of the DSU . In addition, Article 48 of the Vienna Convention does not constitute part of 
the customary rules of interpretation  of public international law referred to in Article 3.2 of the DSU.  
17. Likewise, Article 31(3)(c) of the Vienna Convention, which provides that "any relevant rules 
of international law applicable in the relations between the parties " shall be "taken into acco unt, 
together with the context", only provides that such rules of international law can be taken into 
account in interpreting  the text of a treaty pursuant to Article 31(1) of the Vienna Convention. It 
does not authorize the invalidation of rights or oblig ations under that treaty based on an 
interpretation pursuant to those rules of international law. Accordingly, it does not authorize a panel 
to invalidate a WTO Member's concessions on the basis of Article 48 of the Vienna Convention.  
18. Rather, such invalida tion would be contrary to the requirements of Articles 3.2 and 19.2 of 
the DSU, which provide that findings and recommendations of panels and the Appellate Body, and 
correspondingly the recommendations and rulings of the DSB, cannot add to or diminish the rights 
and obligations provided in the covered agreements . India's argument raises serious systemic 
questions about the power of panels under the DSU to invalidate provisions of a WTO Member's 
Schedule.  
19. Furthermore, even if the Panel were to find that, in principle, Article 48 of the Vienna 
Convention could be invoked with respect to the rights and obligations under the covered 
agreements, it cannot be invoked in this case. This is because Article XXVIII of the GATT 1994 is the 
sole provision appli cable to any modification of the tariff concessions regardless of the underlying 
cause or nature of the modification, including a modification of a tariff concession which a WTO 
Member made "in error" . Article XXVIII of the GATT 1994 thereby precludes the applicability of 
Article 48 of the Vienna Convention.  
20. In Korea – Procurement , the panel  found that customary international law "applies to the 
extent that the WTO treaty agreements do not 'contract out' from it" . Article 5 of the Vienna 
Convention also ex plicitly recognizes that the rules of the Vienna Convention apply to treaties 
adopted within an international organization "without prejudice to any relevant rules of the 
organization" . Accordingly, when an international organization has separate and diffe rent rules on a 
particular subject of the law of treaties, those specific rules supersede those of the Vienna 
Convention.  WT/DS582/R/Add.1  
 
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  21. The provisions of Article XXVIII of the GATT 1994 constitute "an expression in a covered 
agreement that implies differently", which, according to the panel in Korea – Procurement , precludes 
the application of the customary rules of international law,  taking into account the very detailed 
rules and procedures set out therein and the particular legal nature of tariff concessions . Article 
XXVIII of the GATT 1994 thus offers the relevant path for any modifications of the tariff concessions, 
including modifications due to an error in granting or transposing tariff concessions.  
22. In that regard,  it is important to recall that all tariff concessi ons are made by WTO Members 
as part of the reciprocal exchange of tariff concessions among and between all WTO Members, and 
they do so on the basis of the other tariff concessions existing to date.  
23. This is confirmed by Article XXVIII bis of the GATT 1994, which states  that "[tariff] negotiations 
on a reciprocal and mutually advantageous basis … are of great importance to the expansion of 
international trade ". This language underlines  that the tariff concessions of one WTO Member are an 
important factor for all other WTO Members when making their own tariff concessions, and such 
reciprocal and mutually advantageous concessions are an important basis for subsequent tariff 
negotiations . The reciprocal and mutually advantageous nature of the t ariff concessions requires 
that any modification of a tariff concession by a WTO Member provide all other WTO Members the 
opportunity to make appropriate adjustments in their own tariff concessions if they so request . 
However, nullification of a WTO Member 's tariff concessions pursuant to Article 48 of the Vienna 
Convention offers no such opportunity, and therefore would simply allow one WTO Member to escape 
its obligations while leaving all other WTO Members bound by their own . In light of the foregoing, i t 
is manifestly unreasonable to allow a WTO Member to unilaterally invalidate or modify a tariff 
concession to the detriment of other WTO Members . Thus, the application of Article 48 of the Vienna 
Convention to such modification on the basis of an alleged error would upset the rights and 
obligations of the WTO Members . 
24. Article XXVIII of the GATT 1994 sets forth the substantive rules and procedures for 
withdrawing or modifying tariff concessions set out in a WTO Member's Schedule . These procedures 
are specif ically tailored to meet the needs of such multi -party negotiations, and therefore constitute 
the exclusive method by which to enact any modifications of the tariff concessions by a WTO 
Member, irrespective of the underlying cause or nature of the modificat ion. 
25. Although India argues that the alleged "error" in India's Schedule is a technical error, and thus 
Article XXVIII of the GATT 1994 does not apply to rectification of such error, there is no such textual 
limitation in Article XXVIII of the GATT 1994 as to the reasons or nature of the modification to which 
it applies . There is no rationale to artificially limit the scope of Article XXVIII of the GATT 1994 as 
suggested by India.  
B. The Conditions for the Invocation of Article 48(1) of the Vienna Convention 
Are Not Met  
26. Article 48(1) of the Vienna Convention contains several conditions for its application, namely, 
(i) that an "error" occurred and (ii) that such error "relates to a fact or situation which was assumed 
… to exist at the time when the treaty was concluded" . However, India has not established that such 
conditions are met in the present case.  
27. In addition, Article 48(2) of the Vienna Convention provides that Article 48(1) of the Vienna 
Convention does not apply if the state alleging its error contrib uted to the error or was put on notice 
of a possible error . In this case, these circumstances existed and thus, for that additional reason, 
Article 48(1) of the Vienna Convention does not apply.  
28. First, there is no "error" in relation to the material scope of the commitments under the 
contested subheadings as alleged by India because the transposition to the HS 2007 constituted a 
mere process of transposition from the previous version of the HS nomenclature, which was certified 
and agreed as it did not chang e the scope of the pre -existing concessions of India.  WT/DS582/R/Add.1  
 
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  29. India's tariff concessions as included in its Schedule which was certified in 1997, after the 
conclusion of the ITA -1, already covered the products at issue . This is demonstrated by the 
correlation tabl es between the HS 2002/the 1996 edition of the HS nomenclature and the HS 2007 
which were prepared by the WTO Secretariat and circulated to the WTO Members.  
30. Second, Article 48 of the Vienna Convention does not apply in this case because the "error" 
alleged  by India is not one which "relates to a fact or situation which was assumed … to exist at the 
time when the treaty was concluded" . India claims that it "was in error as to the scope of the 
contested sub -heading commitments in" its Schedule based on the HS  2007. Such alleged "error"  
regarding the scope of India's tariff commitments is an error of law, not one of fact or regarding a 
situation, and therefore falls outside the scope of Article 48 of the Vienna Convention.  
31. Finally, India cannot rely on Article 48 of the Vienna Convention because India contributed to 
the alleged "error" and the circumstances were such that it was on notice of a possible "error", as 
India had ample opportunity to examine its transposed Schedule and correct any error, if such an 
error existed . In fact, during the negotiations leading to the certification of India's Schedule based 
on the HS 2007, India's representatives repeatedly examined and had ample opportunities to avoid 
the alleged error and correct it before the certification . In these proceedings, India confirmed that it 
had reviewed the HS 2007 transposition file prepared by the secretariat of the WTO and had been 
able to provide comments thereon, meaning that the contents of the tariff lines subject to this 
dispute were suff iciently clear to India . Accordingly, an excusable error under Article 48(2) of the 
Vienna Convention could not have occurred in the process of the HS 2007 transposition of India's 
Schedule.  
32. In this regard, India asserts that the party denying the applicat ion of Article 48(1) of the 
Vienna Convention by virtue of Article 48(2) of the Vienna Convention bears the burden of proving 
that the circumstances prescribed in Article 48(2) of the Vienna Convention existed . Japan 
emphasizes that, regardless of which pa rty bears the burden of proof with regard to Article 48(2) of 
the Vienna Convention, it is relevant for the Panel to take into account that it is India that has most 
of the relevant information and evidence to prove that the conditions of Article 48(2) of the Vienna 
Convention are met, and that it is difficult for the complainants to access such information and 
evidence.  
C. Conclusion Regarding Article 48 of the Vienna Convention  
33. To conclude, Article 48 of the Vienna Convention is not applicable in the present case and, 
even assuming that it is applicable, the conditions for invoking Article 48(1) of the Vienna Convention 
are not met . Furthermore, and in any case, even if an error were found to exist, India contributed 
to its own alleged error and the ci rcumstances were such as to put India on notice of a possible error 
within the meaning of Article 48(2) of the Vienna Convention . Thus, Article 48 of the Vienna 
Convention does not invalidate India's tariff concessions regarding the products at issue.  
 
 WT/DS582/R/Add.1  
 
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  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE REPOUBLIC OF KOREA  
I. Introduction  
1. Korea respectfully submits the executive summary of its third party written submission of 22 
April 2021 and oral statement of 13 October 2021.  
2. In its previous written submission and oral statement, Korea had addressed the following: 
(i) a request to th e Panel to examine as a preliminary question, whether and how India's invocation 
of error pursuant to Article 48 of the Vienna Convention on the Law of Treaties ("Vienna Convention") 
falls under the Panel's terms of reference as defined by the DSU; (ii) th e relevant principles to be 
taken into consideration while interpreting India's Schedule of Concessions; (iii) Korea's observations 
on India's defense of error and the relevance of Article 48 of the Vienna Convention; and (iv) Korea's 
observations on Japan 's argument on the interpretation of Article II:1(a) of the General Agreement 
on Tariffs and Trade 1994 ("GATT 1994").  
II. Preliminary  Question: the Panel's Terms of Reference in Regards to Article 48 of 
the Vienna Convention  
3.  Korea understands that the re is no basis in the DSU or elsewhere in the WTO agreements on 
which the Panel would be authorized to apply Article 48 of the Vienna Convention in this dispute. 
Korea notes that Article 48 of the Vienna Convention is not a provision of any "covered agreem ent" 
under Article 7.2 of the DSU which provides that "[p]anels shall address the relevant provisions in 
any covered agreement or agreements cited by the parties to the dispute."1  Korea also wishes to 
highlight that Article 48 of the Vienna Convention ad dresses the issue of invalidation  of treaties, 
while Article 3.2 of the DSU states that the dispute settlement system serves to " clarify  the existing 
provisions of those [covered] agreements in accordance with customary rules of interpretation of 
public in ternational law."2 
4. In light of such, Korea requests the Panel to examine as a preliminary question, whether and 
how India's claim of error pursuant to Article 48 of the Vienna Convention falls under the Panel's 
terms of reference as defined by the DSU.  
III. Relevant Principles for the Interpretation of the Schedule of Concessions  
5. To Korea's understanding, India's argument is that its intention was to extend the scope of its 
tariff commitments only to those that it made through the ITA -1 to which it is a party, while the 
sub-headings referred to by the Complainants are only subject to the ITA -2 to which it is not a party, 
and that the transposition of its Schedule of Concessions to HS2007 which effectively extended the 
scope of its concessions to incl ude such sub -headings was made in error contrary to its actual 
intention.3  During the course of making such an argument, India assumes that the scope of 
Attachment A to the ITA -1 is limited to the sub -headings under HS1996 and does not reflect changes 
in product scope following technological advancements.4 
6. With regards to s uch arguments made by India, Korea points out that the agreement at issue 
in this dispute is the GATT 1994, not the ITA -1. This is because the key issue in this dispute involves 
the interpretation of India's Schedule of Concessions annexed to the GATT 1994 . And it is Korea's 
belief that the interpretation of the GATT 1994 must be done on the basis of the common intention 
of the Members and the customary rules of treaty interpretation under Article 31 of the Vienna 
Convention.  
7.  As made clear by the Appell ate Body in EC – Computer Equipment , only the common  intention 
of the contracting parties is relevant under the customary rules of treaty interpretation, while the 
expectations of one of the parties are not.5  Also, a Member's Schedule of Concessions must  be 
 
1 DSU, Article 7.2.  
2 DSU, Article 3.2. ( emphasis added ) 
3 See generally, India's First Written Submission, WT/DS584, paras. 76 -194. 
4 See e.g., India's First Written Submission, WT/DS584, paras. 107 -194. 
5 Appellate Body Report, EC – Computer Equipment , para. 84. ("The purpose of treaty interpretation 
under Article 31 of the Vienna Convention is to ascertain the common  intentions of the parties. These WT/DS582/R/Add.1  
 
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  interpreted in light of its ordinary textual meaning, and the Harmonized System may constitute a 
"context" that can be taken into account according to Article 31 of the Vienna Convention as held by 
the Appellate Body in EC – Chicken Cuts .6 
IV. Korea's  Observation on India's Arguments: the Rectification of GATT 1994 
Schedules and the Relevance of Article 48 of the Vienna Convention  
8. To elaborate on India's position, India's argument is that it made "technical errors" in 
transposition of its Schedule of Concessions to HS2007 due to the complex technical nature involved 
in the process, which it attempted to rectify by recourse to the Procedures for Modification and 
Rectification of Schedules of Tariff Concessions ("1980 Procedures").7  India argues tha t since this 
attempt for rectification was not certified owing to  objections from other Members, India was 
"constrained to invoke the plea of treaty invalidity" which is the plea of error under Article 48 of the 
Vienna Convention.8  Korea makes several o bservations in this regard.  
9. First, the Panel need not consider Article 48 of the Vienna Convention, given that the 1980 
Procedures which provide a mechanism to rectify a Member's Schedule indicate that a Member's 
Schedule remains in effect until a valid  rectification is made.  
10. The 1980 Procedures allow rectifications to a Member's Schedule of a purely formal character 
"which do not alter the scope of a concession."  This is in line with Article XXVIII of the GATT 1994 
which envisages a framework for Members to modify or withdraw concessions "by negotiation and 
agreement."  At the same time, the 1980 Procedures require the communication of the proposed 
change to all WTO Members, who have the right to object to the proposed change. Thus, the 1980 
Proced ures expressly contemplate that the rectification will not go into effect if other Members 
object. The logical implication stemming from this is that the unmodified Schedule remains valid 
despite any allegation of error.  
11. Second, even if the Panel finds that there is a basis for the Panel to have recourse to Article 
48 of the Vienna Convention, Article XXVIII of the GATT 1994 and the 1980 Procedures should be 
understood as lex specialis  which would pre -empt the application of Article  48 in this dispute. Korea 
believes that the present case is similar to the situation in Peru – Agricultural Products , where the 
Appellate Body found that "the WTO agreements contain specific provisions addressing amendments, 
waivers, or exceptio ns for regional trade agreements, which prevail over the general provisions of 
the Vienna Convention, such as Article 41."9 
12. Third, and in any event, Korea has doubts that the strict conditions set out in Article 48 of the 
Vienna Convention are satisfi ed in this case.  
13. A plea of error under Article 48 of the Vienna Convention must involve an error relating to a 
"fact or situation."  However, it is evident from India's statement that its alleged error was "in 
relation to the material scope of the com mitments under the contested sub -headings" at the time 
the 2007 Schedule was certified,10 implying that the error, which concerns the legal consequences 
and the scope of its obligations stemming from the adoption of its 2007 Schedule, is of a legal 
nature.  
14. Furthermore, India appears to have contributed to the alleged error and been duly put on 
notice about it. As acknowledged by India, its updated schedule was prepared by the WTO 
Secretariat, which followed the prescribed procedure of transposition as a greed by the decision of 
15 December 2006 ("Procedure for HS2007").11  The Procedure for HS2007 provides for extensive 
processes to be completed for the certification of an updated schedule, which provided India with 
ample opportunity to avoid the alleged error and to fix it.12    
 
common intentions  cannot be ascertained on the basis of the subjective and unilaterally determined 
'expectations' of one of the parties to a treaty.")  
6 Appellate Body Report, EC – Chicken Cuts , para. 199. ("As such, this agreement is 'context' under 
Article 31(2)(a) for t he purpose of interpreting the WTO agreements, of which the [Schedule of Concessions] is 
an integral part.")  
7 India's First Written Submission, WT/DS584, para. 31.  
8 India's First Written Submission, WT/DS584, paras. 35, 37.  
9 Appellate Body Report, Peru — Agricultural Products , para. 5.112. (footnote omitted)  
10 India's First Written Submission, WT/DS582, para. 57.  
11 A Procedure for the Introduction of Harmonized System 2007 ("Procedure for HS2007 "), WTO 
Document WT/L/673 (18  December 2006).  
12 For instance, Procedure for HS2007, para. 4. ("[i]n preparing the HS2007 transposition, to the extent 
possible, the scope of the concessions and other commitments shall remain  unchanged. Any tariff line for 
which a change in the scope of a concession may have occurred due to the complex technical nature of the WT/DS582/R/Add.1  
 
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  15. The Procedure for HS2007 also mandates the Members to "examine" the HS07 file prepared 
by the Secretariat and either approve the file or provide specific comments.13  Additionally, the 
Procedure for HS2007 also provided for a multilateral review process during which modifications 
could be made to the updated schedules.14  Specifically, where transposition might have changed 
the scope of concessions of a Member, the Procedure mandated consultations and renegotiations 
pursuant to  Article XXVIII of GATT.15  The updated schedule would only be certified after all these 
steps were completed and there were no outstanding comments by Member States.16 
16. Korea also notes that despite the fact that India's request for rectification was m ade in 
September 2018,17 India had been aware of the alleged error at least since April 2016 when the EU, 
Japan, and the U.S. submitted questions to India on its inconsistent tariffs.18  Of particular note, in 
Korea's opinion, is the fact that there was no mention of the defense of error in India's response 
communication of November 2016.19 
17. Finally, Korea expresses its concern that accepting the defense of error would provide possible 
leeway for Members to avoid their WTO commitments. This would create great unpredictability a nd 
instability in the application of the GATT regime, which would be contrary to the object and purpose 
of the GATT 1994. Korea urges the Panel to exercise caution before allowing recourse to Article 48 
of the Vienna Convention.  
V. Korea's Observation on J apan's Arguments: whether ex post facto  Exemption 
Corrects Inconsistency under Article II:1 of GATT 1994  
18. Japan argues that a measure may be found to provide for less favourable treatment in a 
manner inconsistent with Article II:1(a), even in cases where there is no inconsistency with Article 
II:1(b). Japan refers to EC – IT Products  and argues that "less favo urable treatment" should be 
understood in reference to "conditions of competition."20  In this context, Japan argues that India's 
customs laws allow India to repeal or modify the exemptions at any time and that this creates a 
"lack of foreseeability for tr aders operating in the marketplace" as established in Russia – Tariff 
Treatment .21  Japan concludes that this lack of predictability has a serious effect on competition and 
hence is inconsistent with Article II:1(a).22    
19. Korea agrees that an inconsist ency with Article II:1(a) of the GATT 1994 is not exclusively 
conditional on showing an inconsistency with Article II:1(b).23  Korea also agrees with Japan's 
interpretation that "less favourable treatment" should be understood by reference to "conditions o f 
competition" as held in Argentina – Textiles and Apparel , and that any uncertainty or unpredictability 
in negotiated tariff concessions could have "potential of deleterious effects on competition."24 
20. Korea believes that it is the fundamental object a nd purpose of the WTO Agreement and the 
GATT 1994 that the security and predictability of reciprocal and mutually advantageous 
arrangements must be preserved, as acknowledged by the Appellate Body in EC - Computer 
Equipment .25 
 
 
 
 
transposition shall be clearly flagged. Paragraph 5 of Annex 2 and paragraph 15 below describe how these 
situations shall be addressed.")  
13 Procedure for HS2007, para. 8.  
14 Procedure for HS2007, paras. 13 -14. 
15 Procedure for HS2007, para. 15.  
16 Procedure for HS2007, paras. 16 -17. 
17 India's First Written Submission, WT/DS584, para. 31. (fn. 51)  
18 Questions from the European Union, Japan and the United States to India Regarding Indian Customs 
Notification No 11/2014, WTO Document G/MA/W/120 (4 April 2016).  
19 Replies of India to Questions Raised by EU, US and Japan in G/MA/W/120 and G/IT/W/42, WTO 
Document G/MA/W/128 (17 November 2016).  
20 Japan's First Written Submission, WT/DS584, para. 130.  
21 Japan's First Written Submission, WT/DS584, para. 137.  
22 Japan's First Written Submission, WT/DS584, para. 137.  
23 Japan's First Written Submission, WT/DS584,  para. 130.  
24 Japan's First Written Submission, WT/DS584, para. 130.  
25 Appellate Body Report, EC – Computer Equipment , para. 84. ("the security and predictability of 'the 
reciprocal and mutually advantageous arrangements directed to the substantial reducti on of tariffs and other 
barriers to trade' is an object and purpose of the  WTO Agreement, generally, as well as of the GATT 1994.")  WT/DS582/R/Add.1  
 
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  ANNEX C -5 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY* 
Mr Chair, Members of the Panels,  
1. Norway welcomes the opportunity to present its views as a third party in this dispute. In this 
oral statement, Norway briefly sets out its views on the legal status of the 1996 Ministerial 
Declaration on Trade in Information Technology Products ("ITA -1"), as well as offer some remarks 
on the relevant commitments under a Member's schedule of concessions.  
2. Norway agrees with other third parties in this dispute that the ITA -1 is not a "covered 
agreement" within the meaning of Article 1.1 of the Understandin g on Rules and Procedures 
Governing the Settlement of Disputes ("DSU") as the ITA -1 is not listed in Appendix 1 of the DSU. 
The Panels' main task in this dispute is to interpret India's commitments made in the schedule of 
concessions annexed to the GATT 19 94, hence the relevant legal provision in the WTO Agreement 
is the GATT 1994 Article II:1. This, however, does not in principle preclude the ITA -1 from serving 
as relevant context within the meaning of Article 31(2)(b) of the Vienna Convention on the Law o f 
Treaties for the interpretation of India's tariff concessions.  
3. As mentioned in Norway's written third party submission, one must separate between 
technological advancements leading to "new products" not captured by the tariff lines at six -digit 
level as listed in Attachment A (following transposition) to the ITA -1 Annex and included in Members' 
schedules on the one hand, and technological advancements which are developments of a product 
that falls within existing commitments on the other. Norway is no t of the view that the development 
of new technologies and new products as such modifies the scope of tariff concessions in a Member's 
WTO Schedules.1 Rather, Norway agrees with Canada that " tariff concessions under the Uruguay 
Round and the ITA -1 are not  static and do not encompass only those products in existence at that 
time".2 Members' obligations under the GATT 1994 Article II:1 include all products covered by the 
tariff lines in that Members' schedule of concessions.  
4. Norway respectfully requests  the Panels to take account of the considerations set out above 
when evaluating the claims set forth in this dispute.  
5. Thank you for your time and attention.  
 
 
 
* Norway requested that its oral statement serves as its executive summary.  
1 See the Panels' Question 6 to the third partie s before the first substantive meeting.  
2 Canada's Response to the Panels' Question 10. See also Canada's written third -party submission, 
paras. 5 -9. WT/DS582/R/Add.1  
 
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  ANNEX C -6 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SINGAPORE* 
Mr. Chairperson, Members of the Panel,  
 
1. Good afternoon, and thank you for the opportunity to present Singapore's views on the 
issues raised in these proceedings.  
 
2. At the outset, we would l ike to emphasise that 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 setting out its views, from a legal perspective, on whether:  
 
(a) the scope of coverage of products subject to tariff elimination commitments under a 
Member's schedule evolve with technological advancements; and  
 
(b) the coverage of ITA -1 and ITA -2 are mutually exclusive.    
 
 
A. Whether the scope of coverage of products subject to tariff elimination 
commitments under a Member's schedule evolve with technological advancements  
 
3. We note that the respondent to the current disputes, as well as some third parties, have 
raised the is sue of whether "new products" arising out of technological advancements are 
captured by the tariff concessions under a Member's schedule pursuant to the agreement 
under ITA -11.   
 
4. Singapore's position is that the scope of coverage of tariff concessions  under a Member's 
schedule is not limited to products in existence at the time that the concessions were made, 
but that they can cover new products arising from technological advancements, as long as 
these products fall within the terms or description of t he tariff concession. This applies to 
tariff concessions on ICT products under a Member's schedule pursuant to ITA -1 (within the 
tariff lines and descriptions listed in Attachment A and Attachment B to the Annex of ITA -1) 
as well. New ICT products are not excluded from the concessions under a Member's schedule 
simply because they incorporate technological advancements or because they were not in 
existence at the time the ITA -1 was concluded (or when the tariff concession was made).  
 
5. This is evident from the Panel's findings  in EC – IT Products . The Panel, in assessing the 
scope of the concessions at issue in the dispute, took the view that it was neither desirable 
nor possible to consider the relevance of the state of technology that existed at the time o f 
negotiations of ITA -1, or technological development in the abstract, without reference to the 
relevant terms of the concessions. The relevant terms of the concession had to be 
interpreted in accordance with the customary rules of interpretation set out i n Article 31 of 
the VCLT, which included the ordinary meaning of the terms of the commitment, the context 
provided by ITA -1, other relevant parts of the schedule at issue, and the schedules of other 
WTO Members2. 
 
6. This must be correct. If the mere incorporation of new technology into a product that will 
otherwise be covered by a Member's tariff schedule takes the product out of the Member's 
tariff schedule, it is not difficult to imagine the chilling effect this will have on the 
development of techn ology. It would undermine tariff concessions under GATT 1994 and be 
contrary to the intent of the participants of ITA -1, as expressed in the preamble of ITA -1, 
which highlights the participants' desire to " achieve maximum freedom  of world trade in 
 
* Singapore requested that its oral statement serves as its executive summary.  
1 India's First Written Sub mission (DS582), paras 109 -123; Third Party Submission of the United States 
of America (DS582, DS 584 and DS 588), paras. 25 -28; Third Party Submission of the Canada (DS582), paras. 
5-9; Third Party Submission by Norway (DS582, DS 584 and DS 588), paras. 7 -9; Third Party Submission by 
Turkey (DS582, DS 584 and DS 588), paras. 22 -29 
2 Panel Reports, EC – IT Products , paras. 7.596, 7.600, 7.602, and 7.952  WT/DS582/R/Add.1  
 
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  informat ion technology products ". It should also be borne in mind that paragraph 1 of ITA -
1 exhorts that "[e] ach party's trade regime should evolve in a manner that enhances  
market access opportunities for information technology products ." 
 
7. We acknowledge that the classification of certain ICT products is challenging due to the 
continuing advances in technology, and this in turn led to many disputes in connection with 
the coverage of tariff concessions for such products under a Member's ITA -1 schedule. The 
correct response, however, is not for such products to be ipso facto excluded from the scope 
of commitments under a Member's schedule simply because they are "new". The correct 
response is to enquire whether these "new" products fall within a Member's schedule of tariff 
concession commitments, interpreted in accordance with the applicable rules of 
interpretation.  
 
B. Whether the coverage of ITA -1 and ITA -2 are mutually exclusive  
 
8. The question has also arisen in the current disputes as to whether products whic h are part 
of the ITA expansion under ITA -2 are necessarily outside the scope of ICT products subject 
to tariff concessions under a Member's tariff schedule pursuant to the agreement under ITA -
13.  
 
9. Singapore's position is that the mere inclusion of a product in the ITA expansion under ITA -
2 does not mean that it falls outside the coverage of ICT products subject to tariff 
concessions under a Member's tariff schedule, that was made pursuant to the agreement 
under ITA -1. There is nothing expressly provid ed in ITA -2 that the coverage of ITA -1 and 
ITA-2 are mutually exclusive, or that ITA -2 supersedes ITA -1. Tariff concessions to be made 
to a Member's schedule pursuant to ITA -1 and ITA -2 are identified based on different HS 
Codes. There can be overlaps betw een the products covered by ITA -1 (defined based on 
HS1996 nomenclature) and ITA -2 (defined based on HS2007 nomenclature). In fact, it was 
noted by the Panel in EC – IT Products  that a proposal to include an item in ITA -2 during its 
negotiations does not c onclusively establish whether or not the product was covered within 
ITA-1, or whether such a product existed at the time of the ITA -1 negotiations4.  
 
10. As already indicated by the United States in its written submissions and answers to the 
Panel's questions5,  and other third parties in their answers to the Panel's questions6, ITA-2 
negotiators have also considered the possibility that several products proposed for inclusion 
in ITA -2 may in fact already be part of the ITA -17.  
 
C. Conclus ion  
  
11. In conclusion, we submit that the Panel should resolve the dispute in the spirit of what ITA -
1 was intended to achieve, especially taking into account its objective to " achieve maximum 
freedom of world trade in information technology products ". We thank the Panel for giving 
due consideration to Singapore's views on the issues raised in these disputes.  
 
 
 
 
3 India's First Written Submission (DS582), paras 140 -148; Third Party Submission of the United States 
of America (DS582, DS 584 and DS 588), paras. 30 -31 
4 Panel Reports, EC – IT Products , paras. 7.587, 7.588  
5 Responses of the United States to the Panel 's Advance Questions to the Third Parties, para 21  
6 Korea 's Response to the Panel 's Questions to  the Third Parties, page 3 5th paragraph from the top; 
Responses of Canada to Questions to the Third -Parties  from the Panel before the First Substantive Meeting, 
para 19  
7 Third Party Submission of the United States of America (DS582, DS 584 and DS 588), paras. 30 -31; 
See Proposed Additions to Product Coverage: Compilation of Participants ' Submissions: Note by the 
Secretariat, G/IT/SPEC/15 (February 24, 1998) (indicating notation that certain products are "already covered 
by the ITA "); Committee of Partici pants on the Expansion of Trade in Information Technology Products, 
Minutes of the Meeting on 14 March 2013 (G/IT/56),   WT/DS582/R/Add .1 
 
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  ANNEX C -7 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINESE TAIPEI* 
Mr. Chairman, members of the Panel,  
 
1. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu would like to thank 
the Panel for the opportunity to make a statement at this third  party session. The Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu  delivers this statement as a third party in 
DS582 and DS584.  
 
2. We will first talk about the main issue in this dispute, and after that, the importance of tariff 
concession s and transposition procedures. And then we will briefly address the main arguments in 
India's submissions: first, India's claim of error under Article 48 of the Vienna Convention; and then, 
the idea that the ITA -1 is somehow the agreement at issue in this  dispute.  
1   THE ISSUE IN THIS DISPUTE IS WHETHER INDIA IMPOSES CUSTOMS DUTIES ON 
PRODUCTS IN EXCESS OF THE BOUND RATES IN ITS SCHEDULE OF CONCESSIONS 
INCONSISTENT WITH ARTICLE II:1(a) AND (b)  
 
3. In our view, these are straightforward disputes. The question before the Panel is whether 
India imposes customs duties on certain ICT products in excess of the bound rates in its currently 
certified Schedule inconsistent with Article II:1(a) and (b) of the GATT 1994. If the Panel finds that 
India imposes customs duti es on products in excess of the bound rates, then the Panel must find 
that India is acting inconsistently with Article II:1(a) and (b) of the GATT 1994.  
2   INDIA'S ARGUMENTS DISREGARD TRANSPOSITION PROCEDURES AND THE 
EXISTENCE OF INDIA'S TARIFF CONCESSIONS TH AT HAVE BEEN TRANSPOSED INTO THE 
HS2007  
 
4. Schedules are the backbone of the WTO. They ensure transparency, stability, and 
predictability of world trade. The commitments in Schedules, like tariff concessions, are the result 
of successive rounds of negotia tions, and represent a balance of mutually advantageous concessions.  
5. In order to keep up with technological advancements, WTO Members have agreed that tariff 
concessions should be transposed to update tariff lines. Transposition of tariff concessions are so 
important that WTO Members have agreed on detailed procedures on how to do it, and have 
requested the Secretariat for its assistance in carrying out transpositions.1 
6. India argues in its submissions that tariff concessions are static,  and are limited to only 
those products in existence at the time of undertaking concessions. India's arguments, however, 
completely disregard the existence of transposition procedures, as well as India's own tariff 
concessions that have been transposed int o the HS2007.  
7. Under India's approach, tariff transpositions simply would not exist. However, without 
transpositions, tariff concessions would become meaningless, as over time products covered may no 
longer exist or become obsolete due to technological a dvancements. Members would be forced into 
a state of constant renegotiation for concessions on "new" products.  
8. India's approach also ignores the fact that India itself has transposed its own schedules 
twice. India cannot seek to undo transpositions when  its tariff concessions become subject to WTO 
panel proceedings. If India wishes to modify its tariff concessions, it must resort to the WTO 
procedures for their modification provided under Article XXVIII of the GATT 1994.  
 
* Chinese Taipei requested that its oral statement serves as its executive summary.  
1 See e.g. Concessions under the Harmonized Commodi ty Description and Coding System – A Procedure 
for Introduction of Harmonized System 2002 Changes To Schedules of Concessions, 18 July 2001, WT/L/407; 
and A Procedure for the Introduction of Harmonized System 2007 Changes to Schedules of Concessions Using 
the Consolidated Tariff Schedules (CTS) Database, 15 December 2006, WT/L/673.  WT/DS582/R/Add.1  
 
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  3   ARTICLE 48 OF THE VIENNA CONVENTI ON IS INAPPLICABLE IN THIS DISPUTE 
BECAUSE IT IS NOT A CUSTOMARY RULE OF INTERPRETATION WITHIN THE MEANING 
OF ARTICLE 3.2 OF THE DSU  
 
9. We next address India's arguments.  
10. India's main defence  in this dispute is that the tariff concessions at issue are "in error" within 
the meaning of Article 48(1) of the Vienna Convention.2 
11. But Article 48 of the Vienna Convention cannot apply, and cannot be used as a defence, in 
this dispute. As is well k nown, Article 3.2 of the DSU provides that "Members recognize that the 
[WTO dispute settlement system] serves to preserve the rights and obligations of Members and to 
clarify the existing provisions of those agreements in accordance with the customary rule s of 
interpretation of public international law". Thus, by the express provision of Article 3.2 of the DSU, 
it is therefore only the rules of interpretation in Articles 31 and 32 that can be used to interpret the 
WTO agreements, and not principles of publi c international law in general. Articles 31 and 32 are 
found in the part of Vienna Convention governing the "Observance, Application and Interpretation 
of Treaties". Article 48, however, is found in the part of Vienna Convention governing "Invalidity, 
Termination and Suspension of the Operation of Treaties". Article 48 of the Vienna Convention is 
clearly not a customary rule of interpretation, and therefore cannot apply in a WTO dispute.  
12. Moreover, the WTO Agreements themselves already provide procedures  should a Member 
consider it has made a mistake when reflecting concessions in its Schedule. Article XXVIII of the 
GATT 1994 provides specific procedures for Members to follow should they wish to modify or 
withdraw a concession. Application of Article 48 o f the Vienna Convention would allow a Member to 
bypass these procedures and to modify or withdraw a concession, casting uncertainty over the actual 
scope of those concessions, and undermining the function and purpose of Article XXVIII of the GATT 
1994.  
13. Application of Article 48 of the Vienna Convention would also set a dangerous precedent for 
WTO disputes. Responding parties could potentially raise an Article 48 defence in every dispute on 
grounds that the relevant provision of the covered agreement was  made "in error". Even the most -
favoured -nation principle of Article I:1 of the GATT 1994 —a cornerstone of the multilateral trading 
system —could be subject to challenge. WTO disputes would become consumed by Article 48 
defences, as parties use it as a liti gation tactic to delay and complicate proceedings.  
4  THE ITA -1 IS NOT A "COVERED AGREEMENT" UNDER THE DSU, AND THERE IS NO 
BASIS FOR THE PANEL TO INTERPRET THE ITA -1 IN ACCORDANCE WITH THE RULES OF 
THE VIENNA CONVENTION  
 
14. India's second argument is tha t the ITA -1 is the agreement at issue in this dispute, and that 
the complainants must demonstrate that the products at issue fall within the scope of the ITA -1.3 
This is incorrect.  
15. The ITA -1 is not a "covered agreement" within the meaning of Article 1 .1 of the DSU. As 
such, there is no basis for the Panel to "interpret" the ITA -1 in accordance with the rules of the 
Vienna Convention, because pursuant to Article 3.2 of the DSU, only the provisions of the covered 
agreements can be interpreted in accordan ce with the rules of the Vienna Convention.  
16. In contrast, there is a legal basis for the Panel to interpret India's tariff concessions, as 
recorded in its Schedule of Concessions, in accordance with the rules of the Vienna Convention as 
provided in Arti cle 3.2 of the DSU. The complainants' claims in these disputes is that India has 
imposed customs duties on products in excess of the tariff bindings in its currently certified Schedule 
of Concessions inconsistent with Article II:1(a) and (b) of the GATT 19 94. India's Schedule is an 
 
2 India's first written submission in DS582, section III.B; and India's first written submission in DS584, 
section III.B.  
3 India's first written submission in DS582, paras. 92 a nd 126; and India's first written submission in 
DS584, paras. 75 and 109.  WT/DS582/R/Add.1  
 
- 71 - 
 
  integral part of the GATT 19944, which is an integral part of the WTO Agreement5. As both the GATT 
1994 and the WTO Agreement are "covered agreements" within the meaning of Article 1.1 of the 
DSU,6 the Panel must interpret the relevant tariff concessions in India's Schedule in accordance with 
the rules of the Vienna Convention.  
5  CONCLUSION  
 
17. Mr. Chairman, members of the Panel, this concludes our statement. Thank you very much.  
 
 
 
4 Article II:7 of the GATT 1994 provides that WTO Members' Schedules of Concessions are an integral 
part of the GATT 1994. (See Appellate Body Report, EC – Computer Equipment , para. 84.) 
5 Article II:2 of the WTO Agreement states that the Agreements contained in the Annexes to the WTO 
Agreement, which include the GATT 1994, are integral parts of the WTO Agreement. (See Panel Report, EC – 
IT Products , para. 7.16.)  
6 The WTO Agreement i s an agreement listed in Appendix 1(A) of the DSU as an agreement covered by 
the DSU. The GATT 1994 is an agreement listed in Annex 1A of Appendix 1 of the DSU as an agreement 
covered by the DSU.  WT/DS582/R/Add.1  
 
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  ANNEX C -8 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TÜRKİYE  
I. INTRODUCTION  
1. Turkey welcomes this opportunity to present its views as a third party in the disputes DS582, 
DS584 and DS588. Turkey makes this third party submission because of her systemic 
interests in the interpretation and implementation of the tariff concessions mad e by the 
World Trade Organization (WTO) Members pursuant to the Ministerial Declaration on Trade 
in Information Technology Products (Information Technology Agreement - ITA). 
II. INFORMATION TECHNOLOGY AGREEMENT  
2. Information Technology Agreement – ITA was  signed in 13 December 1996 by Members of 
the WTO, including Turkey as a signatory party, with the purpose of expanding world trade 
in information technology products.  
3. Product coverage of the Agreement is specified in two Attachments to the ITA, namely 
Attachment A that lists information technology products based on HS Codes and Attachment 
B, which lists products based on their names and definitions. Those products can also be 
classified under corresponding HS codes.  
4. ITA features a limited coverage of  information technology products, with the object and 
purpose of reflecting a balance reached by the parties to the Agreement. Thus interpretation 
of concessions in ITA should not disrupt the balance which is negotiated by the parties.  
5. Turkey believes that these cases raise important questions with respect to the interpretation 
of the tariff concessions made by WTO Members pursuant to the ITA. As a developing 
country with strong interest in expanding its information technology sector, Turkey 
contemplate s that tariff concessions must be interpreted in a manner in line with the 
negotiating balance of ITA.  
6. While debating the issue of applicability of duty -free treatment for technological products, 
all WTO Members need to balance the critical issue of pro moting technological improvements 
and keeping in line with the mandated product coverage.  
7. Hence, for a new product to be included in ITA, it must be negotiated; it cannot be assumed 
to be covered by the already established ITA concessions. Indeed, this negotiation procedure 
is what the ITA foresees explicitly.  
8. Paragraph 2 (a) of the ITA Annex demonstrates that the parties to the ITA intended to limit 
the product coverage only to: (i) those products classified (or classifiable) with the 
Harmonized Syst em (1996) listed in Attachment A and (ii) those products listed in 
Attachment B, whether or not they are included in Attachment A. In fact, based on that 
India, like some other participants, had followed the procedures for the formal rectification 
and modi fication of schedules and the Director -General formally certified the schedules in 
1997. However, if the parties wish to extend the product coverage of the ITA, they have to 
follow the procedures set forth in paragraph 3 of the ITA Annex.  
9. Paragraph 3 o f the ITA Annex provides that the modification of the Attachments could stem 
not only from "technological developments," but also from "experience in applying tariff 
concessions" as well as "changes to the HS nomenclature." Therefore, Turkey is of the view  
that Paragraph 3 undoubtedly shows that any changes with regard to the product coverage 
of the ITA should be based on the exclusive list of situations mentioned above and should 
be agreed by consensus.  
10. Therefore, if parties wish to extend the product coverage of the ITA, they have to follow the 
procedures set forth in paragraph 3 of the Annex to the ITA.   
11. Paragraph 5 of the ITA Annex requires Members to meet as often as necessary to deal with 
matters relating to customs classification of informati on technology products and regulates WT/DS582/R/Add.1  
 
- 73 - 
 
  the procedures to establish a common understanding on the HS classification of information 
technology products starting with Attachment B.  
12. In that regard, Paragraphs 3 and 5 of the ITA Annex aims to ensure that a n ew product is 
added to the coverage of the ITA by consensus, when a technological change in a product 
creates requirement to do so.  
III. ASSESSMENT  
13. We believe India puts forward some quite powerful evidence in her First Written Submissions 
in DS582, DS 584 and DS588 supporting "'new' products which are a result of technological 
progress are not covered under the ITA -1."1  
14. Turkey also agrees that "the scope of the ITA -1 is limited to the products classified in 
Attachment A and listed in Attachment B.  There is no language to suggest that all ICT 
products which may exist at the time of signing or in the future will be included in the product 
scope of the ITA -1. The language simply provides for two lists of products which are included 
in the product scop e of the ITA -1."2 
15. As stated in India's First Written Submissions "a large number of Participants have 
consistently agreed on the limited product scope of the ITA -1. The Participants have agreed 
that the product scope of the ITA -1 does not adequately c over the rapid growth of 
information technology products, and therefore an expansion of the ITA -1 was required in 
order to liberalize the IT product sector."3 Various WTO Members, including the complainants 
the EU and Japan as well as APEC counties had be en voicing the need for expansion of the 
range of tariff free ITA products because of the rapid technological advancements, taking 
into consideration that every year new IT products are being released. It has been insisted 
by many WTO members, ITA expansio n was necessary to update the Agreement. Many 
innovative products that had come on the market since the ITA were simply not covered by 
the Agreement, and the development of those products was hindered by duties.  Therefore, 
by the admission of participants of the ITA, the scope of the Agreement continues to be 
limited to the products classified in Attachment A and listed in Attachment B of the ITA. It 
is clear that the Participants agree that technological advancements have not affected the 
product scope of the ITA.4 
16. As India stated in its First Written Submissions in DS582, DS584 and DS588, an analysis of 
the lists of common group of participants of ITA and the Declaration on the Expansion of 
Trade in Information Technology Products (ITA -2), proves that "new" products  based on 
new technology are not included in ITA lists while they were added to the newly established 
lists of ITA -2 participants. "In this regard, attention is drawn to the product scope of the 
ITA-2. The ITA -2 includes "new" products which have not been covered by the ITA -1. The 
intention of a subset of Participants was to account for the rapid technological advancement 
which has happened over the years in the product scope of ITA -2. The product scope of the 
ITA-2 contains several products at issue. Speci fically, Attachment A of ITA -2 covers the 
following products:  
a) Sub-heading 8504.40: Static Converters )  Sub-heading 8517.61: Base Stations  
 
c) Sub-heading 8517.62: Machines for the reception, conversion and transmission or 
regeneration of images or other data, including switching and routing apparatus  
 
d) Sub-heading 8517.70: Parts  
 
e) Sub-heading 8518.30: Headphones and earphones, whether or n ot combined with a 
microphone, and sets consisting of a microphone and one or more loudspeakers.  
 
 
1 First written submission of India DS582 , para. 28.  
2 First written submission of India DS584, para. 82.  
3 First written submission of India DS582, para. 109.  
4 First written submission of India DS582, para. 109 -120. WT/DS582/R/Add.1  
 
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  In that regard, we support India's statement that "the mere existence of these products in 
the product scope of ITA -2 implies that these products are 'new' a nd were not accounted for 
in the ITA -1."5 
17. Turkey also shares the view that " the commitments under the ITA -1 are made with reference 
to HS1996. Therefore, these commitments must be interpreted in light of the 1996 version 
of the HS and its Explanatory Notes. HS2002 and HS2007 have no bearing on the question 
of whether the products at issue are covered under the ITA -1"6 
18. To elaborate further on this differentiation, we would like to highlight the examples given by 
India:  
19. "The tariff heading 8525 covered, 'Transmission Apparatus for Radio -Telephony or Radio 
Telegraphy' which are "used for the transmission of signals (representing speech, messages 
or still pictures) by means of electro -magnetic waves which are transmitted through the 
ether without a ny line connection." The definition of the Transmission Apparatus of Radio 
Telephony or Radio Telegraphy is limited to the transmission of signals representing (1) 
speech, (2) messages, or (3) still pictures.  Therefore, no apparatus which can transmit 
signals representing videos or any other media other than the three listed above can be 
included in the scope of heading 8525."7 Hence, telephones for cellular networks cannot be 
listed under the 1996 version of the HS 8525.20.  
20. In addition to that "A comp arison of the HS1996 Explanatory Note to Heading 8525 and 
HS2007 Explanatory Notes to Heading 8517 demonstrates that telephones for cellular 
networks are not categorized in the general group of " transmitting and receiving apparatus 
for radio -telephony and radio-telegraphy " even under HS2007.  The description of radio 
telephony apparatus of the kind covered under heading 8517 under HS2007 has remained 
unchanged from those covered under Heading 8525 in HS1996 viz. radio -telephony 
apparatus for motor vehicles, ships, aircraft, trains, etc. Therefore, it would be fallacious to 
argue that telephones for cellular networks which are not even covered within the general 
description of " transmitting and receiving apparatus for radio -telephony and radio -
telegraphy " in the year 2007, were covered within the general description of transmission 
apparatus for radio -telephony or radio -telegraphy under HS1996."8  
21. Turkey also would like to underline the point made by India that "telephones for cellular 
networks cannot be o perated without base stations or LTE equipment. However, base 
stations were not included in the product scope of the ITA -1." 9 
22. Through all stated above, Turkey considers contrary to the claims of the complainants, the 
products in question do not fall under the ITA -1. Turkey believes the complainants seek an 
overly broad or inclusive construction of ITA commitments, threatening the balance 
established during the negotiation process of ITA.  
IV. CONCLUSIONS  
23. Turkey considers that contrary to the claims of the complainants, the products at issue do 
not fall under ITA. Any technologically newly developed product cannot automatically be 
considered as covered by the ITA. The duty -free treatment cannot be extended to all 
variants of the products. The procedures outlined in paragraphs 3 or 5 of the Annex of the 
ITA draw the framework for negotiation for the new products which were not originally 
included in the Schedules of the Participants.  
24. We would like to furt her add that the litigation process should not diminish Members' rights 
beyond obligations undertaken at the time of the signing of the ITA. Article 3.2 of the WTO 
Dispute Settlement Understanding provides that "Recommendations and rulings of the DSB 
canno t add to or diminish the rights and obligations provided in the covered agreements." 
Our view is that, if accepted, complainants' claims will serve to add to the obligations of 
many signatory parties of the ITA by expanding the product coverage of the Agre ement, 
without resorting to paragraph 3 of ITA Annex.  
 
5 First written submission of India DS582, para. 143.  
6 First written submission of India DS 582, para. 130, 136.  
7 First written submission of India DS582, para. 151, 152.  
8 First written submission of India DS582, para. 160 -162. 
9 First written submission of India DS582, para. 163.  WT/DS582/R/Add.1  
 
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  25. Turkey requests the Panels in the disputes DS582, DS584 and DS588 to review the claims 
taking into account the viewpoint and issues raised in this executive summary.  
 
 
 WT/DS582/R/Add.1  
 
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  ANNEX C -9 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE* 
1. Mr Chairman, distinguished Members of the Panel, it is a pleasure to appear before you today 
and present the views of Ukraine as a third party in these disputes.  
2. In Responses on Questions to the Third Parties Before the First Substantive Meeting Ukraine 
provided views on the issues whether the Information Technology Agreement ("ITA") is a "covered 
agreement" within the  meaning of Article 1.1 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes ("DSU")  and what is the basis for the Panel's authority to 
interpret the ITA -1 in accordance with the rules of the Vienna Convention on the Law of Tre aties 
(1969) ("Vienna Convention").  
3. Today, Ukraine will shortly provide its further views on these issues.  
4. Ukraine recognizes that the ITA -1 is an important element in these disputes. At the same 
time, Ukraine considers  that the issue whether the IT A-1 is a "covered agreement" within the 
meaning of Article 1.1 of the DSU is not quite at the table, and therefore it is not necessary to 
interpret the ITA -1 itself or to elaborate this issue further in general.  
5. The Panel's terms of reference in these disputes are "to examine, in the light of the relevant 
provisions of the covered agreements cited by the parties to the dispute, the matter referred to the 
DSB […] and to make such findings as will assist the DSB in making the recommendations or in 
giving the rulings provided for in those agreements (emphasis added).1 
6. According to the complainants in these cases (the European Union, Japan, and Chinese 
Taipei), the measures through which India imposed custom duties on certain information and 
communicatio n technology products are inconsistent with India's obligations under Article  II:1(a) 
and (b) of the General Agreement on Tariffs and Trade ("GATT 1994") . Accordingly, the matter at 
issue is Article II:1 of the GATT 1994 and understanding of the India's Sc hedules.  
7. The central point of these disputes is not the ITA -1, but rather the interpretation of India's 
Schedule, which is part of the covered agreements, according to Article II:7 of the GATT 1994.2  
8. The WTO schedules of concessions are legal instr uments that form an integral part of the 
GATT 1994 and the WTO Agreement. The ITA concessions are included in the participants' WTO 
schedules of concessions and become part of that Member's obligations under the WTO covered 
agreements and the Panel may con sider the ITA -1 as relevant context for interpreting India's 
concessions.  
9. The ITA -1 may be a part of the Panel's analysis like in the EC – IT Products dispute and 
within the meaning of Article 31(2) (b) of the Vienna Convention.  
10. In this regard Ukrai ne agrees that the Panel have to focus its analysis on the terms of the 
tariff concessions in India's Schedule and, taking into account the significant technological progress 
that has occurred lately and changed the IT -sector, to decide if products in thes e cases fall under 
ITA-1. At the same time, Ukraine is of the view that not all new products in the IT -sector will have 
to automatically fall under the ITA -1. 
 
* Ukraine requested that its oral statement serves as its execut ive summary.  
1 WT/DS582/10 , WT/DS584/10/Rev.1 , WT/DS588/8/Rev.1  
2 Third Party Submission of Brazil, para. 9 referring also to the Panel Report, EC – IT Products, para. 
7.374 and footnote 3: "According to the International Law Commission, cited by the panel : "'What is proposed 
in paragraph 2 [of Article 31 of the VCLT] is that, for purposes of interpreting the treaty, these categories of 
documents should not be treated as mere evidence to which recourse may be had for the purpose of resolving 
an ambiguity or  obscurity, but as part of the context for the purpose of arriving at the ordinary meaning of the 
terms of the treaty ". WT/DS582/R/Add.1  
 
- 77 - 
 
  11. Ukraine considers, that the factual aspects of the case, in particular, whether there is prop er 
identification of the products at issue and whether products are covered by the ITA -1, are key 
elements in order to complete the analysis under Article II:1(a) and (b) of the GATT 1994. It is 
important that the Panel considers each invocation carefully,  in light of the particular circumstances 
of the disputes.  
12. Therefore, it is clear that the Panel has an authority, legal basis and task to interpret India's 
tariff concessions set forth in its Schedule of Concessions , and such interpretation should be made 
in accordance with the rules of the Vienna Convention and objective of providing security and 
predictability to the multilateral trading system.  
13. This concludes Ukraine's oral statement. Thank you for your attention and for giving Ukraine 
this oppo rtunity to present its views before the Panel. We look forward to answering questions that 
you may have.  
 
 
 WT/DS582/R/Add.1  
 
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  ANNEX C -10 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES  
EXECUTIVE SUMMARY OF U.S. THIRD PARTY SUBMISSION  
 
I. INDIA'S REQUEST FOR A PRELIMINARY RULING  
 
1. India argues that the panel requests do not satisfy Article 6.2 of the DSU because they do not 
sufficiently identify some or all of the products covered by the measures at issue. The text of Article 
6.2 does not expressly require that a panel request identify specific products to which the measures 
at issue apply. In considering India's prelimin ary ruling request, the Panels must address whether 
identification of specific products would be required to identify the measures at issue in each panel 
request, or whether the products at issue flow from the identified measures. The United States notes 
in that regard that each panel request makes the claim that, through certain instruments listed in 
the request, India imposes duties on goods within the scope of its bindings for certain tariff lines in 
excess of the bindings on those goods set forth in its  Schedule.  
 
II. GENERAL FRAMEWORK UNDER ARTICLE II OF THE GATT 1994  
 
2. The complainants claim that the measures at issue are inconsistent with Articles II:1(a) and 
(b) of the GATT 1994. Article II (Schedules of Concessions) imposes an obligation on an i mporting 
Member to accord to products of other Members treatment no less favorable than that provided for 
in its Schedule.  
 
3. Article II:1(b) makes clear that a Member's tariff bindings as set out in its Schedule of 
Concessions are a ceiling. The first s entence of Article II:1(b) sets forth a specific kind of "treatment" 
that would be inconsistent with paragraph (a) in providing that the products listed in Part I of a 
Member's Schedule shall, on their import, "be exempt from ordinary customs duties in exc ess of 
those set forth and provided therein."  Accordingly, should a breach of Article II:1(b) be established, 
it would follow that a breach of Article II:1(a) has also occurred. In sum, to the extent that a Member 
imposes ordinary customs duties in excess  of those provided in Part I of its Schedule, it is in breach 
of its obligations in Articles II:1(a) and (b).  
 
4. India largely does not defend its measures based on arguments under Article II. Rather, 
India's defense is focused on several flawed arguments  concerning the 1996 Ministerial Declaration 
on Trade in Information Technology Products (ITA -1), the process for Harmonized System (HS) 
transposition in WTO Schedules, Article 48 of the Vienna Convention on the Law of Treaties (Vienna 
Convention), and the  India-Japan Comprehensive Economic Partnership Agreement (CEPA).  
 
A. Relevance of the Information Technology Agreement (ITA -1) 
 
5. Contrary to India's assertion, the ITA -1 is not the agreement at issue in these disputes. As is 
evident from the panel requ ests, the complainants claim that the measures at issue are inconsistent 
with Articles II:1(a) and (b) of the GATT 1994. Article II:1 refers to the tariff treatment set forth in 
a Member's Schedule of Concessions for goods, which is annexed to the Marrakes h Protocol of the 
GATT 1994. Pursuant to Article II:7 of the GATT 1994, WTO Members' Schedules annexed to the 
GATT 1994 are an integral part of the GATT 1994.   
 
6. As a WTO Member, India committed to bind tariffs as reflected in Schedule XII – India (India's 
Schedule). The tariff headings in India's Schedule establish the scope of India's concessions. 
Accordingly, the relevant question before the Panels is whether th e measures at issue would impose 
duties in excess of the bindings in India's Schedule.  
 
7. Although the ITA -1 is not the relevant agreement in these disputes, the United States notes 
that India makes several flawed arguments concerning the ITA -1. In parti cular, India makes 
misleading arguments with respect to "new technologies" developed since the conclusion of the ITA -
1 and the relevance of the Declaration on the Expansion of Trade in Information Technology Products 
(ITA Expansion).  WT/DS582/R/Add.1  
 
- 79 - 
 
   
8. As an initial mat ter, India's Schedule reflects its participation in the ITA -1. After the ITA -1 was 
concluded in 1996, participants formally modified their WTO Schedules. India's Schedule reflecting 
its ITA -1 commitments was certified effective July 2, 1997.  
 
9. India's co mmitments in its WTO Schedule do not distinguish between "new technologies" and 
products existing in 1996 at the time of ITA -1 conclusion. In fact, the ITA -1 that formed the basis 
for entering into those commitments affirmatively contemplated technological  evolution.  
 
10. The United States further notes that virtually all ITA -1 products – including computers, 
peripherals, cell phones, and digital cameras – incorporate significantly improved features as 
compared to the products available at the time the ITA -1 was concluded. India's position would 
undermine the fundamental obligations of Article II:1 of the GATT 1994 by allowing participants to 
disregard tariff commitments on the basis that a product incorporates or constitutes a perceived 
new technology. The  United States also notes that the possibility of technological development with 
respect to tariff concessions is not limited to the information technology sector. Tariff concessions, 
including those incorporated into a Member's Schedule as a result of the  ITA, apply to all products 
– regardless of technological development – that meet the terms of the concession, interpreted 
based on its ordinary meaning in context and light of the agreement's object and purpose.  
 
B. Relevance of HS Transposition and Indi a's Rectification Request  
 
11. India's arguments do not reflect an accurate understanding of the HS transposition process or 
the legal status of its rectification request. Members' WTO Schedules describe the tariff treatment 
Members must accord to product s using HS terminology. However, the HS Convention does not 
contain obligations with respect to tariff treatment. Rather, a WTO Member's tariff obligations are 
contained in its Schedule.  
 
12. The WTO General Council decides on specific procedures to introd uce and certify HS changes 
to Members' Schedules, including certification under the 1980 Procedures. Therefore, the HS 
transposition process reflects the continuation of tariff commitments, not substantive modifications.  
 
13. The 1980 Procedures also esta blish specific procedures to address perceived errors in a 
Schedule, provided that those errors do not modify the scope of a concession. In September 2018, 
citing the 1980 Procedures, India submitted to the Committee on Market Access a draft Rectification 
under the category "other rectifications."  India's proposal would have substantively altered its WTO 
commitments with respect to 15 tariff lines from duty -free to unbound. Several Members, including 
the United States, objected to India's draft Rectificati on within the three -month period provided by 
the 1980 Procedures. Therefore, India's draft Rectification was not approved and certified, and 
India's Schedule as previously certified is unaltered.  
 
14. The United States also notes that there are procedures  available to WTO Members seeking to 
modify or withdraw their tariff commitments, as provided in GATT 1994 Article XXVIII (Modification 
of Schedules). The 1980 Procedures and the General Council procedures for HS2007 nomenclature 
updates explicitly refer t o Article XXVIII as a distinct action for modifying the scope of tariff 
concessions. Were India to seek to modify its Schedule, it would need to enter into negotiations with 
affected Members and offer substantially equivalent concessions, or potentially fa ce compensatory 
adjustments by those affected Members. India has not availed itself of the Article XXVIII procedures 
with respect to the tariff lines at issue.  
 
C. India's Invocation of Vienna Convention Article 48 (Error) Should be Rejected  
 
15. Article 4 8 is not applicable to this dispute. The DSU sets out rules and procedures for the 
settlement of disputes concerning Members' rights and obligations under the WTO covered 
agreements (Article 1.1), to preserve the rights and obligations of Members under the  covered 
agreements (Article 3.2), to settle situations in which benefits under the covered agreements are 
being impaired by another Member's measure (Article 3.4), and to achieve a satisfactory settlement 
of a matter in accordance with rights and obligati ons under the covered agreements (Article 3.5). 
The Vienna Convention is not a "covered agreement" under Appendix 1 of the DSU, and Article 48 
is not incorporated into a covered agreement, including the DSU.  
 WT/DS582/R/Add.1  
 
- 80 - 
 
  16. One aspect of the Vienna Convention is exp ressly referred to in the DSU. Article 3.2 of the 
DSU provides that the dispute settlement system "serves to preserve the rights and obligations of 
Members under the covered agreements, and to clarify the existing provisions of those agreements 
in accordan ce with customary rules of interpretation of public international law."  Therefore, panels 
are to interpret and apply relevant provisions of WTO covered agreements in accordance with 
customary rules of interpretation of public international law. Those rule s are reflected in Articles 31 
through 33 of the Vienna Convention. As constituent text to the WTO Agreement, a Schedule should 
therefore be interpreted in accordance with Articles 31 through 33.  
 
17. In any event, it would not appear that India has estab lished the factual basis for its claim 
under Article 48. WTO Members have agreed to follow specific procedures for transposition of HS 
nomenclature in Members' Schedules. Further, India is a member of the WCO and HS Convention. 
India would have been able t o follow the WCO process for HS updates for the disputed tariff 
subheadings as later transposed in WTO Member Schedules. Therefore, India's involvement in these 
processes would appear to undermine its claim of error.  
 
EXECUTIVE SUMMARY OF U.S. THIRD PARTY ORAL STATEMENT  
 
I. What may be considered as relevant context in interpreting the terms of the 
concessions in India's Schedule under Article 31 of the Vienna Convention  
 
18. Most parties and third parties appear to agree that the ITA -1 is not a cover ed agreement 
under the DSU and that it may in theory qualify as "context" within the meaning of Article 31(2). 
However, there is disagreement as to whether the ITA -1 may be relevant context in the 
interpretative exercise called for in these disputes. The U nited States considers that the Panels may 
consider the ITA -1 as context to the extent it is relevant for interpreting India's concessions within 
the meaning of Article 31(2). Context should be considered to the extent it may shed light on the 
meaning of t he treaty terms at issue. Under the factual circumstances of these disputes, the ITA -1 
may be of limited relevance where the tariff headings at issue were originally certified in HS1996 – 
reflecting Attachment A of the ITA -1 – and therefore the Panels may examine that nomenclature to 
the extent they consider necessary depending on the heading at issue.  
 
19. Turning to the Harmonized System, again there appears to be agreement that the HS may 
generally be considered as context. The question is which version of the HS would be relevant to 
consider in light of the circumstances of these disputes. While the United States agrees that in theory 
the Panels may consider multiple versions of the HS nomenclature through which India's concessions 
have been transposed s ince the commitment was undertaken, earlier HS versions, i.e., HS1996 and 
HS2002, may be of limited relevance for evaluating the ordinary meaning of the terms of India's 
existing concessions. The HS2007 would appear to be the most relevant version where In dia's tariff 
commitments are certified in that version of the nomenclature.  
 
II. India's argument regarding the preferential agreement between India and Japan 
(CEPA) in the context of Article II:1 of the GATT 1994 (DS584)  
 
20. While panels may consider pre ferential measures in considering the tariff treatment a Member 
provides, it would be important to consider the scope of any such measures asserted to be applicable. 
Preferential agreements generally contain unique rules of origin that may limit preferenti al treatment 
to goods meeting certain criteria, as Japan asserts is the case with respect to the CEPA. The customs 
notification put forward by India appears to refer to rules that may limit products that may be 
considered of origin of Japan, and therefore may not qualify for the treatment provided therein. Also, 
it may be necessary to consider whether a preferential measure covers all products within the scope 
of the challenged measures.  
 
21. With respect to Article II:1 of the GATT 1994, a Member may not determine for purposes of 
the tariff treatment provided for in its WTO Schedule that some goods of a Member will be afforded 
that treatment (such as goods that meet a preferential rule of origin under the terms of a non -WTO 
agreement), but not others, or t hat goods from some Members may qualify for the treatment 
provided in its Schedule, but not others.  
 WT/DS582/R/Add.1  
 
- 81 - 
 
  EXECUTIVE SUMMARY OF U.S. THIRD PARTY RESPONSES TO QUESTIONS  
 
22. Response to Question 5 :  As a general matter, panels may consider the HS and its Explanat ory 
Notes as additional relevant context for the purpose of interpreting the HS -derived language of a 
particular tariff line in a Member's Schedule. However, the tariff commitment is contained in the 
Schedule, and the HS may not add to or diminish from tha t obligation. As the report in EC – IT 
Products (Panel) explained, "while the HS would always qualify as context for interpreting 
concessions in a Member's schedule that are based on that nomenclature, or that explicitly or 
implicitly make reference to it,  the relevance of the HS will depend on the interpretative question at 
issue."  
 
23. Here, India argues that the Panel should look only to HS1996 nomenclature and Explanatory 
Notes as relevant context because ITA -1 product coverage was defined in part based  on HS1996 
nomenclature, supposedly limiting the scope of India's commitments. Again, India approaches the 
interpretation of its commitments from the wrong starting point; it is the tariff headings in India's 
Schedule that establish the scope of India's co ncessions, not the ITA -1. Tariff concessions, including 
those incorporated into a Member's Schedule as a result of the ITA -1, apply to all products that meet 
the terms of the concession.  
 
24. With respect to which versions of the HS the Panel may consider  as additional context, 
generally the ordinary meaning of a concession is informed by sources indicating the meaning 
intended by the parties at the time the treaty was concluded. However, the concessions at issue in 
India's Schedule incorporated after ITA -1 have been continued through the WTO transposition 
process established by the WTO General Council from HS1996 to HS2002 nomenclature, and from 
HS2002 to HS2007 nomenclature. While the concessions at issue were not negotiated in HS2007 
nomenclature, India' s Schedule was most recently certified in HS2007, reflecting the agreement of 
WTO Members regarding the relationship between the HS2007 and India's Schedule.  
 
25. Response to Question 6 :  The tariff concessions in a WTO Member's Schedule apply to all 
produ cts – regardless of technological development – that meet the terms of the concession, 
interpreted based on its ordinary meaning in context and in light of the GATT 1994's object and 
purpose. This is consistent with the findings in the GATT 1947 dispute Gr eek Increase in Bound Duty, 
in which the Group of Experts found that later -developed, long -playing gramophone records were 
covered by the description of "gramophone records" in Greece's schedule of concessions, and that 
Greece had therefore acted inconsist ently with Article II when it imposed higher duties on long -
playing records.  
 
26. In fact, virtually all ITA -1 products incorporate significantly improved features as compared 
to the devices that were available at the time the agreement was concluded. Furt her, the acquisition 
of new features is not unique to information technology products; automobiles, light bulbs, and any 
number of other goods covered by WTO Members' Schedules advance over time. India's position 
would undermine the fundamental obligations  of Article II:1 of the GATT 1994 by allowing Members 
to disregard tariff commitments on the basis that a product incorporates or constitutes a perceived 
new technology.  
 
27. Response to Question 8 :  The ITA Expansion is not relevant to the Panel's interp retation of 
India's concessions under the customary rules of interpretation reflected in the Vienna Convention. 
Like the ITA -1, the ITA Expansion is not a covered agreement within the meaning of the DSU.  
 
28. Further, India is not a participant in the ITA Expansion, and did not record any tariff 
concessions in its WTO Schedule as a result of the conclusion of that agreement. Thus, under Article 
31(2) of the Vienna Convention, the ITA Expansion is not relevant context for interpreting the scope 
of India' s commitments bound in 2005 following the conclusion of the ITA -1. Nor is there any basis 
to conclude that the ITA Expansion would qualify as a subsequent agreement under Article 31(3).  
 
29. Response to Question 12 :  Notably, the rectification provision in  paragraph 2 of the 1980 
Procedures is not the proper vehicle by which a Member seeks to increase the bound duty rates 
reflected in its Schedule, or reflect that it is no longer bound by certain commitments. Thus, the 
United States understands that a Membe r could, for example, use the rectification provision to 
change its Schedule in order to reflect "amendments or rearrangements which do not alter the scope 
of a concession."  The 1980 Procedures provide the technical mechanism by which a Member may 
rectify  its Schedule, but do not provide an independent basis through which a Member may alter the WT/DS582/R/Add.1  
 
- 82 - 
 
  substance of its commitments. Indeed, India's proposed "rectification" impacting certain tariff lines 
at issue in this dispute was rejected for this very reason.  
 
30. On the other hand, where a Member seeks to increase the bound duty rates in its Schedule, 
or reflect that it is no longer bound, the Member is seeking to alter the substance of its commitments 
and must therefore follow the procedures set forth in Articl e XXVIII, subject to the negotiation 
requirements of that provision. The United States understands that where a Member makes 
modifications to its Schedule pursuant to Article XXVIII, a Member would also need to follow the 
1980 Procedures to modify formally  its Schedule annexed to the GATT 1994.  
 
31. Response to Question 16 :  The United States considers that Article 48 of the Vienna 
Convention is not applicable in these disputes because it is not a provision of a WTO covered 
agreement within the meaning of A rticle 1.1 of the DSU, or a customary rule of interpretation of 
public international law within the meaning of Article 3.2. As panels are limited to examining the 
consistency of challenged measures with cited provisions of covered agreements, Article 48 is  not 
applicable, and there is no legal basis for the Panels to interpret or apply this provision.  
 
32. Even if the Panels were to consider India's argument, there are undisputed facts on the record 
that appear to demonstrate that India does not satisfy th e conditions of Article 48(2). For instance, 
the parties appear to agree that India participated in the process for transposition of its Schedule 
into HS2007 nomenclature in accordance with established WTO procedures, and that India failed to 
raise any spe cific concern or objection during that process with respect to the tariff subheadings at 
issue. Thus, it appears that India has not established that it did not contribute by its own conduct 
to the alleged error, or that the circumstances were such that Ind ia was not on notice of the alleged 
error.  
 
33. Article 48(2) provides that Article 48(1) "shall not apply" in such circumstances. In the event 
that the Panels seek to apply Article 48 – which, again, there is no legal basis to do – the Panels 
therefore n eed not engage in an interpretation of what it means for an error to refer to a "fact or 
situation" within the meaning of Article 48(1).  
 
_______________  
 
 
 WT/DS582/R/Add.1  
 
- 83 - 
 
  ANNEX D  
COMMUNICATIONS CONCERNING THE SUBSTANTIVE MEETINGS  
Contents  Page  
Annex  D-1 Panel's communication to the parties  (31 March 2021 ) 84 
Annex  D-2 Panel's communication to the parties ( 21 April 2021 ) 85 
Annex  D-3 Panel's communication to the parties  (31 August 2021 ) 88 
Annex D -4 Panel's communication to the parties  (20 September 2021 ) 91 
 
 
 
 WT/DS582/R/Add.1  
 
- 84 - 
 
  ANNEX  D-1 
PANEL'S COMMUNICATION TO THE PARTIES  (31 MARCH 2021 ) 
As provided for in the Panel's timetable for the above referenced dispute, the first  substantive 
meeting of the Panel with the parties and the third -party session will take place on 1 -2 June 2021 
and 9 June 2021, respectively.  
As the parties are aware, the Covid -19 pandemic continues to present serious challen ges for 
international travel and in -person meetings. In light of such challenges, the Panel has concluded 
that it will not be possible to hold its first substantive meeting with the parties and the third -party 
session in traditional face -to-face format in June, with the parties, third parties, panelists and 
Secretariat staff assisting the Panel all physically present in Geneva on the WTO premises.   
 
In these circumstances, and taking into account the objective of prompt settlement of disputes 
set out in Article 3.3 of the DSU and the need to preserve the parties' due process rights, the Panel 
currently intends to hold both its first substantive meetin g and the third -party session with remote 
participation, more specifically through the Cisco Webex platform.  
 
Considering the time  difference between the respective capitals of the parties and the 
third parties and that of the home locations of the paneli sts, the Panel intends to organize the first 
substantive meeting and the third -party sessions along the following timeframes:  
 
DATE  TIME  EVENT  
1 June 2021  2 p.m. to 5 p.m.  
(Geneva time)  First substantive meeting  
2 June 2021  2 p.m. to 5 p.m.  
(Geneva time)  First substantive meeting 
(continued)  
9 June 2021  2 p.m. to 5 p.m.  
(Geneva time)  Third-party session  
 
 Attached are draft Additional Working Procedures concerning meetings with 
remote  participation.  
 
The Panel would welcome comments from the parties on the above proposed arrangements 
for the first substantive meeting and the third -party session, and on the  draft Additional Working 
Procedures, by 5 p.m. on 12 April 2021 .  
 
 
 
 
 
 
 WT/DS582/R/Add.1  
 
- 85 - 
 
  ANNEX D -2 
PANEL'S COMMUNICATION  TO THE PARTIES  (21 APRIL 2021 ) 
On 31 March 2021, the Panel sent a communication to the parties concerning the first 
substantive meeting with the parties and the third -party session. The Panel observed that, due to 
the challenges presented by the Covid -19 pandemic for international trave l and in -person meetings, 
it would not be possible to hold the first substantive meeting and third-party session in the traditional 
face-to-face format in June 2021. In light of the circumstances, and taking into account the objective 
of the prompt settlem ent of disputes set out in Article 3.3 of the DSU and the need to preserve the 
parties' due process rights, the Panel indicated that it intended to hold both its first substantive 
meeting and third -party session remotely, through the Cisco Webex platform. The Panel also 
transmitted to the parties draft Additional Working Procedures for meetings with remote 
participation. The Panel sought the parties' views on the proposed arrangements.  
 
The European Union and India submitted comments on the Panel's proposed  arrangements 
for the first substantive meeting and third-party session on 7 April and 12 April 2021, respectively.  
On 16 April 2021, the parties submitted comments on each other's comments, and the third parties1 
submitted comments on the parties' commen ts regarding the arrangements proposed by the Panel.  
 
The European Union agrees with the Panel's proposed arrangements for the first substantive 
meeting and third -party session.2 The European Union recalls that, according to Article 3.3 of the 
DSU, the pr ompt settlement of disputes is essential to the effective functioning of the WTO and 
ensures that benefits accruing to Members under the agreements are not curtailed or denied. The 
European Union also underlines that the Panel has the ultimate power to dec ide on procedural 
matters in accordance with Articles 12.1 and 12.2 of the DSU, while ensuring respect of due process 
and the prompt settlement of disputes. The European Union considers that remote meetings "are 
perfectly possible from a technical perspect ive" and refers to the practice of a number of judicial 
bodies that hold meetings virtually, including the Indian Supreme Court.3 The European Union 
stresses the need to prevent any further delays in the dispute.  
 
For its part, India stresses that the Covid -19 pandemic continues to spread in India at an 
alarming rate. India observes that, on 11 April, it witnessed the largest number of positive cases 
globally and the number of new cases (152,879) for that day was 56 % higher than the previous 
peak of 97,894 cases on 16 September 2020.4 India further submits that 217,353 new cases were 
recorded on 15 April 2021, i.e. a surge of 42% in positive cases in a period of 5 days.5 India submits 
that new restrictions could be  introduced in Delhi, which would limit India's ability to invite its 
delegation to a single meeting room. India requests the Panel "to wait, observe the Covid -19 
situation in India and hold the first substantive meeting in this dispute only when the situa tion 
improves so as to permit face to face meetings".6 
 
In addition, India states that it would not be able to participate in the first substantive meeting 
remotely for a number of reasons. First, India considers that a contemporaneous oral exchange, 
which is possible during in -person meetings, is fundamental to a meaningful participation in dispute 
settlement proceedings.7 Second, India notes that, in other disputes in which India has participated 
and where meetings with remote participation were held, t echnical difficulties occurred and 
coordination within the Indian delegation proved impossible.8 Third, in India's view, the proposed 
Additional Working Procedures do not safeguard the confidentiality and security of the meeting. In 
particular, India stat es that it is not clear how the Panel would ensure that the security and 
 
1 Canada, China, Japan, Singapore, Chinese Taipei, and the United States submitted comments on the 
parties' views.  
2 European Union's co mments of 7 April 2021 on Panel's communication dated 31 March 2021.  
3 European Union's comments of 16 April 2021.  
4 India's comments of 12 April 2021 on Panel's communication dated 31 March 2021.  
5 India's comments of 16 April 2021.  
6 India's comments of 12 April 2021 on Panel's communication dated 31 March 2021, para. 11.  
7 India's comments of 12 April 2021 on Panel's communication dated 31 March 2021, paras. 2 and 10.  
8 India's comments of 12 April 2021 on Panel's communication dated 31 March 2021, para.  5. WT/DS582/R/Add.1  
 
- 86 - 
 
  confidentiality protocols are followed by the parties and third parties.9 In addition, India considers 
that a meeting of a total duration of six hours, as opposed to two full days, m ay not contribute to 
producing a high -quality panel report.10 According to India, the right to a face -to-face meeting 
reflects due process, and the objective of securing the prompt settlement of a dispute within the 
meaning of Article 3.3 of the DSU canno t mean that the respondent is presented with an environment 
where it does not have a meaningful opportunity to present its defence.11 
 
India refers to several disputes in which panels have decided to postpone substantive 
meetings due to pandemic -related t ravel restrictions. According to India, no reading of Article 3.3 of 
the DSU must compromise the security and predictability of institutional dispute settlement 
practice.12 
 
Canada, China, Japan, Singapore, Chinese Taipei, and the United States, third par ties to the 
dispute, submitted comments on the parties' views regarding the Panel's proposed arrangements 
for the first substantive meeting and third -party session. Canada and Singapore do not object to the 
Panel's proposed arrangements.13 China, in light  of the uncertainty of possible future developments 
in the Covid -19 pandemic and related travel restrictions, and in the interest of the prompt settlement 
of the dispute, welcomes the Panel to consider holding the first substantive meeting virtually.14 Japan 
points out that the issue of consistency of the measures at issue with Article II:1 of the GATT 1994 
"is simple and not novel" and therefore "the pursuit of prompt settlement of the dispute is 
warranted".15 Japan notes that the utmost consideration sh ould be given to concerns related to 
technical issues, taking into account the parties' due process rights.16 Japan considers that technical 
difficulties may be alleviated to a certain extent by sufficient advance preparation, testing and other 
relevant m easures.17 Chinese Taipei agrees with the Panel's proposed arrangements. Chinese Taipei 
notes that the future development of the Covid -19 pandemic is entirely unforeseeable, and that it 
could take years for the situation to improve to a point where face -to-face substantive meetings are 
possible.18 In Chinese Taipei's view, such a delay would run fundamentally against the aim of Article 
3.3 of the DSU for a prompt settlement of the dispute.19 The United States agrees with India that a 
contemporaneous oral exchange of views is crucial to the panel process.20 The United States notes 
that one WTO panel recently postponed the first substantive meeting due to the Covid -19 
pandemic.21 The Unites States also observes that holding the first s ubstantive meeting via video 
conference would pose serious logistical challenges for the participating delegations, who each face 
varying levels of restrictions, depending on their location, and could be prevented from meeting in 
person as a delegation.22 Thus, the United States suggests that the Panel reschedule the meeting 
and consult with the parties about holding it in person in the future.23 
 
Having considered the views of the parties and third parties, the Panel notes, as an initial 
point, that the DSU does not prescribe a particular format of panel meetings.24 Therefore, the Panel 
is not precluded from amending its Working Procedures and conducting meetings in the format it 
deems appropriate, after consulting with the parties to the dispute, as  provided for in Article 12.1 of 
the DSU. In doing so, the Panel should be mindful of preserving the parties' due process rights. The 
Panel is also conscious that, pursuant to Article 3.3 of the DSU, the prompt settlement of disputes 
is essential to the ef fective functioning of the WTO and the maintenance of a proper balance between 
the rights and obligations of Members.  
 
 
9 India's comments of 12 April 2021 on Panel's communication dated 31 March 2021, para. 6.  
10 India's comments of 12 April 2021 on Panel's communication dated 31 March 2021, para. 7.  
11 India's comments of 12 April 2021 on Panel's communication dated 31 March 2021, para. 10.  
12 India's comments of 16 April 2021, para. 4.  
13 Canada's comments of 16 April 2021; Singapore's comments of 16 April 2021.  
14 China's comments of 16 April 2021, pa ra. 2.  
15 Japan's comments of 16 April 2021.  
16 Japan's comments of 16 April 2021.  
17 Japan's comments of 16 April 2021.  
18 Chinese Taipei's comments of 16 April 2021.  
19 Chinese Taipei's comments of 16 April 2021.  
20 United States' comments of 16 April 2021, para. 5.  
21 United States' comments of 16 April 2021, para. 6.  
22 United States' comments of 16 April 2021, para. 7.  
23 United States' comments of 16 April 2021, para . 8. 
24 Appendix 3 to the DSU refers to a "substantive meeting of the panel", without specifying a particular 
format.   WT/DS582/R/Add.1  
 
- 87 - 
 
  While meetings through remote means may be seen by some parties as a sub -optimal 
solution, they ensure that proceedings are not unduly de layed and that parties' due process rights 
are preserved when in -person meetings remain impossible due to travel restrictions and limitations 
on the number of participants in indoor meetings. The Panel also notes that the obligation to respect 
the confiden tiality of meetings with the Panel applies regardless of the format of the meeting.  
 
At the same time, the Panel is aware of, and sympathetic to, the disruptions and ravages 
caused by the Covid -19 pandemic and the difficulties faced by the parties in organ izing their work. 
In particular, the Panel is mindful about the alarming rate of growth in Covid -19 cases in India. The 
Panel takes note of India's observation that, on 11 April, India recorded the largest number of 
positive cases globally and that the num ber of new cases (152,879) for that day was 56% higher 
than the previous peak of 97,894 cases on 16 September 2020.25 The Panel also notes India's 
estimate that 217,353 new positive cases were detected in a single day on 15 April 2021, which 
represents a surge of 42% in five days.26 
 
In light of the current Covid -19 situation in India, it is understandable that preparing for and 
organizing India's participation in a virtual first substantive meeting in this dispute and in the other 
two disputes in which t he same three panelists have been appointed may be unusually difficult. The 
Panel therefore deems it appropriate at this stage to postpone the first substantive meeting with the 
parties and the third -party session. The Panel proposes to hold the first subs tantive meeting and the 
third-party session in this dispute, and in the other two disputes in which the same three panelists 
have been appointed, during the weeks of 4 and 11 October 2021. The Panel hopes that, with the 
roll-out of vaccines, the epidemiolo gical situation will improve so as to allow for an in -person meeting 
at that time. However, should an unfavourable epidemiological situation and travel restrictions 
persist, the Panel may nevertheless have to conduct the first substantive meeting with the parties 
and the third -party session in a virtual format, bearing in mind other relevant considerations, such 
as the need for the prompt settlement of disputes. The Panel will confirm the format of the first 
substantive meeting to the parties by 31 August 2 021. 
 
In the meantime, the Panel intends to send written questions to the parties and third parties 
and will request written responses to them before the first substantive meeting. The Panel will 
communicate further details in due course.  
 
The Panel invite s the parties to inform the Panel of their availability for a meeting during the 
weeks of 4 and 11 October 2021 and to provide any comments they may have on the draft revised 
timetable by 5 p.m. on  Friday, 30 April 2021 . 
 
 
 
 
 
 
25 India's comments of 12 April 2021 on Panel's communication dated 31 March 2021.  
26 India's comments of 16 April 2021, para. 1.  WT/DS582/R/Add.1  
 
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  ANNEX D -3 
PANEL'S COMMUNICATION TO THE PARTIES  (31 AUGUST 2021 ) 
On 21 April 2021, the Panel sent to the parties a communication concerning the first 
substantive meeting. In that communication, the Panel proposed to hold th e first substantive 
meeting and the third -party session in this dispute, and in the other two disputes in which the same 
three panelists have been appointed, during the weeks of 4 and 11 October 2021. The Panel 
expressed the hope that, with the roll -out of  vaccines, the epidemiological situation would improve 
so as to allow for an in -person meeting at that time. The Panel also indicated that, should an 
unfavourable epidemiological situation and travel restrictions persist, the first substantive meeting 
with the parties and the third -party session may have to be conducted in a virtual format. The Panel 
indicated that it would confirm the format of the first substantive meeting to the parties by 
31 August  2021.1 
The Panel has been monitoring the epidemiological situation and notes that the Covid -19 
pandemic continues to present serious challenges to international travel. Entry into Switzerland 
remains subject to certain requirements for travellers, and particularly those from so -called "high -
risk countries".2 Some participants in these proceedings may also be subject to travel restrictions 
and quarantine requirements under domestic policies of their home country. Furthermore, in 
accordance with the recommendations of the WTO Health Task Force, all  official WTO missions and 
WTO-funded travels, which include panelists' travels to Geneva, continue to be suspended.3 At the 
current time, it is not possible to predict when these travel restrictions will be lifted or revised.  
The Panel has taken note of India's desire for an in -person meeting. Given the absence of 
significant prospects of improvement in the status of the Covid -19 pandemic at this time, however, 
the Panel must proceed with the resolution of the dispute by other reasonable means available t o it. 
In light of these circumstances, the Panel has decided to conduct its first substantive meeting with 
the parties and the third -party session in a virtual format. As noted in the Panel's communication of 
21 April 2021, while meetings through remote me ans may be seen by some parties as a sub -optimal 
solution, they ensure that proceedings are not unduly delayed and that parties' due process rights 
are preserved when in -person meetings remain impossible due to travel restrictions.4 
The Panel notes that I ndia recognizes that the DSU does not prescribe a particular format for 
panel meetings.5 However, India has raised a number of concerns regarding the virtual format of 
panel meetings. Some of these concerns were addressed in the Panel's communication of 
21 April 2021. The Panel addresses the remainder of India's concerns in this communication.  
First, as regards India's assertion that "the practice has always been to hold an in -person 
meeting, unless the parties agree to waive this right in favour of some other format"6, the Panel 
notes that, under Article 12.1 of the DSU, "[p]anels shall follow the Working Procedures in 
Appendix  3 unless the panel decides otherwise after consulting the parties to the dispute." Hence, 
while a panel is obliged to consult wi th the parties before modifying the Working Procedures in 
Appendix 3 of the DSU, the parties' agreement is not a prerequisite to such modification.  
India further points out several perceived shortcomings of virtual meetings such as: (a) the 
lack of contem poraneous oral exchange7; (b) the proposed duration of the meetings8; (c) limited 
 
1 Panel's communication to the parties of 21 April 2021.  
2 See High -risk countries, available at https://www.sem.admin.ch/sem/en/home/sem/aktuell/faq -
einreiseverweigerung.html#1668147653  (accessed 30 August 2021).  
3 WTO Health Task Force, "Updates from the HTF", email of 28 May 2021.  
4 Panel's communication to the parties of 21 April 2021.  
5 India's communication of 30 April 2021, para. 5(ii).  
6 India's communication of 30 April 2021, para. 5(ii).  
7 India's communication of 12 April 2021, para. 2.  
8 India's communication of 12 April 2021, paras. 4 and 7. India explains that while in -person meetings 
of the Panel with the parties would normally last for two  full days, the proposed duration of the virtual meeting 
is three hours each day due to the time difference.  WT/DS582/R/Add.1  
 
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  opportunities for coordination within the Indian delegation9; and (d) concerns over confidentiality 
and security of the meeting.10 
Regarding India's allegation that a vir tual meeting would not allow contemporaneous 
exchanges between the Panel and the parties, the Panel notes that procedures for a virtual meeting 
seek to replicate those for an in -person meeting as closely as possible. Similar to an in -person 
meeting, during  the virtual meeting, the parties will be given an opportunity to present their opening 
and closing statements, to respond to the Panel's questions, and to comment on each other's 
responses. Therefore, the virtual meeting will preserve the possibility of c ontemporaneous 
exchanges between the Panel and the parties.  
As regards the duration of the meeting, which India perceives as being insufficient, the Panel 
notes that the duration of an in -person meeting depends, among other things, on the size and 
complex ity of the dispute. The Panel notes that, in the present dispute, the complainant raises claims 
under a single legal provision – Article  II:1 of the GATT 1994. Furthermore, the Panel notes that the 
first written submissions of the parties in this dispute a re not particularly lengthy. The Panel 
therefore considers that, given the size and complexity of this dispute, six hours would be sufficient 
for the first substantive meeting of the Panel with the parties. The Panel further underlines the need 
to take int o account the different time zones of the participants and the panelists in determining the 
timing and duration of the meeting.  
Regarding the alleged limited possibilities for coordination within the Indian delegation, the 
Panel first notes that it is up to India to arrange that, to the extent possible, key members of its 
delegation are in the same room. India points out difficulties in communication between "the Mission 
and the numerous stakeholders involved in this dispute while they are all located r emotely".11 The 
Panel notes that these difficulties could be addressed by means of, for example, India putting in 
place a separate channel of communication for all members of India's delegation.  
As regards India's concerns over potential breaches of conf identiality of the meeting, the Panel 
recalls that the obligation to respect the confidentiality of the meeting of the Panel applies to the 
participants regardless of the format of the meeting. Furthermore, as regards the security of the 
platform used to c onduct the meeting, the Panel has been advised that IT security officers in the 
WTO Secretariat have assessed the security features of Cisco Webex and found it to be a suitable 
platform to hold virtual panel meetings. The WTO Secretariat has purchased a nu mber of licences 
from Cisco Webex necessary for hosting meetings with end -to-end encryption. Based on the 
foregoing and considering that Cisco Webex has been used by several WTO panels and international 
tribunals, the Panel also intends to use this platfor m, which it trusts will protect the confidentiality 
of its first substantive meeting with the parties and the third -party session.  
Finally, the Panel notes that the first substantive meeting and the third -party session in this 
dispute have already been del ayed by four months. The Panel is cognizant of, and sympathetic to, 
the disruptions caused by the Covid -19 pandemic and the difficulties faced by the parties in 
organizing their work. At the same time, the Panel recalls that, pursuant to Article 3.3 of the  DSU, 
the prompt settlement of disputes is essential to the effective functioning of the WTO and the 
maintenance of a proper balance between the rights and obligations of Members. In light of the 
current situation, the Panel considers that the only means f or it to ensure prompt dispute settlement, 
while also observing the parties' due process rights,  is to conduct the first substantive meeting and 
the third -party session in a virtual mode.  
Considering the time  difference between the respective capitals of t he parties and 
third parties, and the home locations of the panelists, the Panel intends to organize the first 
substantive meeting and the third -party session within the following timeframes:  
 
 
9 India's communication of 12 April 2021, para. 5.  
10 India's communication of 12 April 2021, para. 6.  
11 India points out difficulties in communic ation between "the Mission and the numerous stakeholders 
involved in this dispute while they are all located remotely". (India's communication of 12 April 2021, para. 5)  WT/DS582/R/Add.1  
 
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  DATE  TIME  EVENT  
5 October 2021  2 p.m. to 5 p.m.  
(Geneva time)  First substantive meeting  
6 October 2021  2 p.m. to 5 p.m.  
(Geneva time)  First substantive meeting 
(continued)  
13 October 2021  2 p.m. to 5 p.m.  
(Geneva time)  Third-party session  
 
The Panel trusts that the parties will have had sufficient time to prepare for the first 
substantive meeting and to make any necessary internal arrangements aimed at ensuring their 
effective participation.  
Further details about the meeting will be communi cated to the parties in due course.  
 
 
 
 
 WT/DS582/R/Add.1  
 
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  ANNEX D -4 
PANEL'S COMMUNICATION   TO THE PARTIES ( 20 SEPTEMBER 2021 ) 
The Panel is in receipt of the parties' communications of 13 September 2021 responding to 
the Panel's communication of 6 September 2021, in which the Panel invited the parties to provide 
any additional comments on the draft Additional Working Procedures co ncerning meetings with 
remote participation.  
 
The European Union noted that it has no comments on the draft Additional Working 
Procedures.  
 
India indicated that it "is unable to agree [with the Panel's decision to conduct its first 
substantive meeting wi th the parties in a virtual format] for the reasons already mentioned in 
preceding communications", reiterating arguments raised in India's communications of 12, 16, and 
30 April 2021.1 In addition to those arguments, India submits that "a virtual meeting  format unduly 
expands and modifies DSU provisions pertaining to panel procedures and meetings", as evidenced 
by several "additional obligations proposed in the draft [A]dditional [W]orking [P]rocedures".2 
Moreover, India states that it has not expressly agreed to using Cisco Webex to hold the virtual 
meeting and that the DSB has not adopted its use either.3 India therefore "requests for a face to 
face meeting pursuant to Article 12.10, DSU when remaining hurdles attributable to the travel 
restrictions ca used by the pandemic are removed".4 If the Panel were to hold a virtual meeting, 
however, India notes that it "has no choice but to confirm its presence at the proposed virtual 
meeting".5  
 
Invited to comment on India's communication of 13 September 2021 , the European Union 
asked the Panel to reject India's request to further postpone the first substantive meeting until an 
in-person meeting becomes possible, asserting that "[a]ny further postponement of the first 
substantive meeting would unjustifiably de lay these proceedings". The European Union submits that 
online meetings are "technically feasible", "fully consistent with the legal requirements of the DSU", 
and "have become a frequent practice in WTO disputes, including disputes involving developing 
countries".6 The European Union argues that the DSU gives the Panel the power to decide on 
procedural matters even in the absence of party agreement, provided that due process and the 
prompt settlement of the dispute are ensured.7 
 
The Panel is keenly aware  of the extraordinary disruptions arising from the Covid -19 pandemic 
that continue to require adaptations in the modalities for dispute settlement work, including for the 
parties' participation in these proceedings and the Panel's fulfilment of its mandate . Those are the 
circumstances in which, on 31 August 2021, the Panel decided to conduct the first substantive 
meeting with the parties and the third -party session in a virtual format, having duly weighed India's 
request for an in -person meeting against the  significant challenges still affecting international travel. 
Then, as now, there appeared to be no real possibilities for an imminent improvement in 
circumstances that would make an in -person meeting reasonably practicable. The Panel therefore 
continues t o consider that holding a virtual meeting is the only means capable of ensuring the prompt 
settlement of the dispute while also observing the parties' due process rights. In these 
circumstances, the Panel maintains its decision of 31 August 2021 as it rela tes to the format of the 
first substantive meeting and thus cannot accede to India's "request[] for a face to face meeting 
pursuant to Article 12.10, DSU when remaining hurdles attributable to the travel restrictions caused 
by the pandemic are removed".8 
 
1 India's communication of 13 September 2021, para. 4.  
2 India's communication of 13 S eptember 2021, para. 4(ii) (referring to paragraphs, 3, 5(3), 9, 10, 11, 
and 13(3) of the draft Additional Working Procedures concerning meetings with remote  participation) . 
3 India's communication of 13 September 2021, para. 4(iii).  
4 India's communicatio n of 13 September 2021, para. 8.  
5 India's communication of 13 September 2021, para. 9.  
6 European Union's communication of 15 September 2021, pp. 1 -2. 
7 European Union's communication of 15 September 2021, p. 2.  
8 India argues that, applied to the present context, Article 12.10 of the DSU means that India should be 
afforded (a) the time originally allotted for the first substantive meeting (i.e. two working days) and (b) the WT/DS582/R/Add.1  
 
- 92 - 
 
   
On 6 September 2021, the Panel invited the parties to the first substantive meeting and 
afforded them an opportunity to "make any additional comments on the draft Additional Working 
Procedures", "on which the parties ha[d] already had an opportunity to comment".9 The Panel 
observes that, in its comments of 13 September 2021, India raises two main arguments that 
specifically concern the draft Additional Working Procedures.  
 
The Panel is not persuaded by India's first argument that the dra ft Additional Working 
Procedures "unduly expand[] and modif[y]" relevant provisions of the DSU. Panels enjoy a margin 
of discretion in establishing their own working procedures, provided they do not disregard or modify 
the substantive provisions of the DSU .10 While the draft Additional Working Procedures include 
modalities and technical instructions for virtual meetings that may not be specifically reflected in the 
Working Procedures in Appendix 3 of the DSU, this does not imply, as a general proposition, that 
they disregard or modify the substantive provisions of the DSU. Nor do the draft Additional Working 
Procedures place an undue burden on the parties to the dispute.  
 
One provision of the DSU that India argues would be disregarded in this context is Art icle 18.2, 
which concerns the obligation of confidentiality in panel proceedings. India questions the extent to 
which that obligation can be enforced during a virtual meeting.11 However, as India itself 
acknowledges, the obligation to respect the confiden tiality of panel proceedings applies to the 
participants regardless of the format of the meeting.12 The Panel discerns no reason to doubt that 
the participants will strictly uphold the confidentiality of the proceedings as they would at an in -
person meeti ng.  
 
This leads the Panel to India's second argument regarding the draft Additional Working 
Procedures, namely, that Cisco Webex as a third -party platform provider has not been expressly 
agreed to by India or formally adopted in the DSB. While taking note  of India's views, the Panel is 
satisfied that Cisco Webex is a reliable, secure, and technically feasible means to conduct virtual 
meetings in the present circumstances.13 This is supported by the demonstrably positive experience 
dispute settlement panel s have had using the platform over the past several months. Accordingly, 
the Panel has decided to proceed with using Cisco Webex for the conduct of the first substantive 
meeting and third -party session.  
 
Finally, the Panel takes note of India's confirmatio n of attendance to the first substantive 
meeting and attaches to this communication the Additional Working Procedures concerning meetings 
with remote participation, adopted on 20 September 2021.  
 
 
_______________  
 
 
 
 
traditional format for meetings given th e technical difficulties associated with a virtual meeting. (India's 
communication of 13 September 2021, para. 7) The Panel is mindful of its duty under Article 12.10 to accord 
India, a developing country Member, sufficient time to prepare and present its argumentation in this dispute. 
In doing so in light of relevant circumstances, however, the Panel must also recognize and seek to uphold its 
other obligations under the DSU, including that regarding the prompt settlement of disputes pursuant to 
Article  3.3.   
9 Pursuant to the timetable adopted on 4 December 2020, the first substantive meeting was originally 
scheduled for 1 -2 June 2021 and the third -party session for 9 June 2021. On 31 March 2021, the Panel (a) 
informed the parties that it intended to hold both its first substantive meeting and the third -party session with 
remote participation and (b) forwarded them a draft of Additional Working Procedures concerning meetings 
with remote participation.  The parties were invited to submit their views with reg ard to both elements by 
12 April 2021, which they did. The parties commented on each other's comments regarding the above two 
elements on 16 April 2021. On 21 April 2021, in view of the Covid -19 situation in India and after consulting 
with the parties, the  Panel decided to postpone the first substantive meeting and third -party session.  
10 To recall, Article 12.1 of the DSU provides that "[p]anels shall follow the Working Procedures in 
Appendix  3 unless the panel decides otherwise after consulting the partie s to the dispute." See also Appellate 
Body Report, India – Patents (US) , para. 92.  
11 India's communication of 13 September 2021, paras. 4(ii) and 5.  
12 India's communication of 13 September 2021, para. 4(ii).  
13 As previously indicated, the Panel has also been advised that IT security officers in the WTO 
Secretariat have assessed the security features of Cisco Webex and found it to be a suitable platform  to hold 
virtual panel meetings. (Panel's communication to the parties of 31 August 2021)  WT/DS582/R/Add.1  
 
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  ANNEX E  
OTHER DECISIONS BY THE PANEL  
Contents  Page  
Annex  E-1 Panel's decision on requests for enhanced third -party rights  94 
Annex  E-2 Panel's decision on India's preliminary objection and preliminary ruling request  95 
  
 
 
 
 
 WT/DS582/R/Add.1  
 
- 94 - 
 
  ANNEX E -1 
PANEL'S DECISION ON REQUESTS FOR ENHANCED THIRD -PARTY RIGHTS  
Issued  on 27 January  2021 
 
The Panel is in receipt of the requests for enhanced third -party rights (the "requests") submitted by 
Chinese Taipei and Japan on 22 and 23 December 2020, respectively, of India's responses of 11 
January 2021 asking the Panel to reject those requests, and of the European Union's response of 11 
January 2021 agreeing with the requests. The Panel  is also in receipt of the comments on the 
requests submitted by China, the Russian Federation, Turkey, and the United States on 11 January 
2021.  
 
 After carefully reviewing the requests and the views of the parties and other third parties, the 
Panel has c oncluded that the particular circumstances of this dispute warrant the granting of certain 
enhanced third -party rights to Japan and Chinese Taipei. In evaluating whether Japan and Chinese 
Taipei have demonstrated an interest in the dispute that goes beyond  the "substantial interest" that 
all third parties having notified such an interest to the DSB are presumed to have in the matter at 
issue, the Panel has weighed and balanced several factors. Such factors include the similarity 
between this dispute and the  two other disputes in which the same three persons have been 
appointed  to serve as panelists1; the status of Japan and Chinese Taipei as sole complainants in the 
parallel proceedings in DS584 and DS588, respectively; the parties' inability to agree as to  the 
appropriateness of fully harmonizing the timetable for the panel process in the three disputes under 
Article 9.3 of the DSU; and the need to uphold the requirements of due process.2 
 
 In light of the foregoing, and after giving due regard to the scop e of the requests and the 
need to maintain the distinction drawn in the DSU between the rights of parties and third parties, 
the Panel hereby:  
 
a. grants Japan and Chinese Taipei access to (i) the parties' second written submissions, (ii) 
the final written versions of the parties' oral statements made during the first and second 
substantive meetings, (iii) each party's responses to questions from the Panel and to any 
questions posed by the other party following the first and second substantive meetin gs, 
and (iv) each party's comments on the other party's responses to those questions following 
the second substantive meeting; and  
b. rejects the remainder of the request, namely, with regard to the possibility of (i)  attending 
the first and second substantiv e meetings of the parties with the panel, (ii) making oral 
statements, orally replying to questions and asking questions to the parties or other third 
parties at those meetings, and (iii) reviewing the draft summary of their own arguments 
in the descriptiv e part of the Panel Report.  
Finally, mindful of the particular circumstances of this dispute and the status of Japan and 
Chinese Taipei as complainants in the parallel proceedings, t he Panel has decided not to extend the 
enhanced rights mentioned in paragr aph (a), above, to the other third parties . 
 Revised Working Procedures reflecting the decision of the Panel accompany this letter. The 
relevant modifications concern paragraphs 21bis and 30(d).  
 
 
 
 
 
 
 
1 The three disputes in which the same panelists have been appointed are DS582, DS584, and DS588.  
2 Appellate Body Reports, EC – Hormones , para. 154.  WT/DS582/R/Add.1  
 
- 95 - 
 
  ANNEX E -2 
PANEL'S DECISION ON INDIA'S PRELIMINARY OBJECTION AND PRELIMINARY RULING REQUEST  
Issued  on 7 July  2021 
 
1  INTRODUCTION  
1.1.  On 8 April 2021, India submitted a preliminary objection to the Panel's jurisdiction and a 
request for a preliminary ruling under Article 6.2 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes ("DSU"), which were incorporated  in India's first written 
submission.  
1.2.  On 14 April 2021, the Panel invited the European Union to comment on India's 
preliminary  objection and preliminary ruling request ("India's requests") by 29 April 2021. The Panel 
also invited the third parties to expr ess their views on India's requests by the same date. On 
23 April 2021, the European Union requested that the deadline for submitting comments on India's 
requests be extended until 13 May 2021. India, in principle, did not object to the extension request.1 
Since 13  May was a WTO non -working day, the Panel extended the deadline until 17 May 2021.  
1.3.  On 17 May 2021, the European Union submitted its comments on India's requests. On the 
same date, Brazil, Canada, Japan, and Chinese Taipei, third parties, provided  their comments. 
The United States had commented on India's requests in its third -party submission of 22 April 2021.  
1.4.  On 23 June 2021, the Panel informed the parties that it would issue a communication regarding 
India's preliminary objection and preliminary  ruling request on 28 June 2021.  
1.5.  On 28 June 2021, India sent a communication to the Panel, requesting the Panel to defer the 
communication and give the parties an opportunity to respond to questions from the Panel and 
present views on issues raised by Ind ia's requests at the first substantive meeting of the Panel with 
the parties.2 On the same date, shortly after India's communication, the European Union sent a 
communication to the Panel in which it requested the Panel to "disregard India's unsolicited an d 
untimely submission".3 Taking note of the parties' communications, the Panel informed the parties 
that it had decided to suspend the issuance of the Panel's communication regarding India's requests 
and would get back to the parties in due course.4 
1.6.  In a further communication sent to the Panel on 29 June 2021, the European Union regretted 
the Panel's decision to suspend the issuance of its communication on India's requests "without giving 
first an adequate opportunity to the European Union to respond in s ubstance to India's submission".5 
On the same date, the Panel sent a communication to the parties, reminding them of the importance 
of ensuring an orderly process for addressing any issues arising in this dispute and inviting the 
parties to make any last comments on this issue by 1 July 2021.6 On 1 July 2021, India submitted 
an additional communication to the Panel7, and the European Union referred to its previous 
communications.8 
 
1 India stated t hat it did not object to the European Union's request "provided the extension does not 
affect India's preferences for time periods on any subsequent or other filings that India may need to or is 
required to make". (India's communication to the Panel, 27 Ap ril 2021)  
2 India's communication to the Panel, 28 June 2021, para. 3.  
3 European Union's communication to the Panel, 28 June 2021.  
4 Panel's communication to the parties, 28 June 2021.   
5 European Union's communication to the Panel, 29 June 2021.  
6 Panel 's communication to the parties, 29 June 2021.  
7 India's communication to the Panel, 1 July 2021.  
8 European Union's communication to the Panel, 1 July 2021.  WT/DS582/R/Add.1  
 
- 96 - 
 
  1.7.  We address, first, the issue of the timing of the Panel's communication regarding India's 
requests. We then turn to the substantive aspects of India's requests.9  
2  TIMING OF THE PANEL'S COMMUNICATION REGARDING INDIA'S PRELIMINARY 
OBJECTION AND PRELIMINARY RULING REQUEST  
2.1.  We begin with India's request of 28 June 2021 to delay the issuance of the Panel's 
communication regarding India's preliminary objection and prelimi nary ruling request. We first 
summarize the arguments of the parties, before addressing India's request  
2.1  Main arguments of the parties  
2.2.  India considers that the European Union's submission "elicit[s] further discussions on key 
issues" raised by India's reque sts.10 India therefore requests the Panel to defer the communication 
and give the parties an opportunity to respond to questions from the Panel and present views on 
issues raised by India's requests at the first substantive meeting of the Panel.11 Accordin g to India, 
"[s]uch a deferral would contribute to India being afforded an opportunity to adequately pursue its 
claims and establish the facts in the context of proceedings conducted in a balanced and orderly 
manner."12 India states that it ascribes signif icant importance to the preliminary issues arising in 
this dispute and "intends to ensure that these preliminary issues on which submissions have been 
made prior to the first substantive meeting are properly discussed and considered at the first 
substantiv e meeting".13 
2.3.  The European Union requests the Panel to disregard India's "unsolicited and untimely 
submission" and to remind India that the parties must refrain from making any such submissions to 
the Panel.14 The European Union submits that, "[h]aving requested the Panel to make preliminary 
rulings, India now seeks to delay those rulings without any proper justification."15 According to the 
European Union, the parties have had a sufficient opportunity to express their views on the issues 
raised by India's requests, and the Panel has been adequately briefed to reach a decision.16 The 
European Union submits that it has a legitimate interest in obtaining a ruling from the Panel on these 
fundamental questions promptly and requests the Panel to issue the  preliminary rulings requested 
by India as soon as possible.17  
2.2  Panel's evaluation of India's request to defer the issuance of its communication 
regarding India's preliminary objection and preliminary ruling request  
2.4.  As an initial point, we note that the DS U does not contain specific rules of procedure governing 
the treatment of preliminary ruling requests or other preliminary objections raised by the parties to 
a dispute.18 However, paragraph 4(1)(a) of the Working Procedures, adopted by the Panel in this 
dispute, provides as follows:  
India 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 Panel. 
The European Union 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.  
2.5.  The Working Procedures adopted in this dispute thus do not mandate several rounds of written 
submissions or questions from the Panel , nor do they grant to the parties the right to present their 
 
9 This communication will become an integral part of the Panel's final report, subject to any cha nges 
that may be necessary in light of comments received from the parties during the interim review.  
10 India's communication to the Panel, 28 June 2021, para. 3.  
11 India's communications to the Panel, 28 June 2021, para. 3 and 1 July 2021, para. 3.  
12 India's communication to the Panel, 28 June 2021.  
13 India's communication to the Panel, 1 July 2021, para. 4.  
14 European Union's communication to the Panel, 28 June 2021.  
15 European Union's communication to the Panel, 29 June 2021.  
16 European Union's communicat ion to the Panel, 29 June 2021.  
17 European Union's communication to the Panel, 29 June 2021.  
18 We note, however, that Article 12.2 of the DSU stipulates that "[p]anel procedures should provide 
sufficient flexibility so as to ensure high -quality panel repor ts, while not unduly delaying the panel process."  WT/DS582/R/Add.1  
 
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  views on any preliminary ruling request at the first substantive meeting of the Panel or at any other 
meeting.  
2.6.  Depending on the circumstances of the case, a panel may find it appropriate, when a ssessing 
a request for a preliminary ruling, to solicit further submissions from the parties, pose questions, or 
seek the parties' views during a meeting. However, as observed by the panel in Argentina – Import 
Measures , "[a]ny of those steps is not an acq uired right for the parties, but is instead an instrument 
for a panel to obtain the necessary information that will allow it to rule on the relevant issues."19 In 
the present case, having perused the parties' submissions, the Panel is satisfied that it can  make a 
decision regarding India's requests on the basis of the arguments and evidence contained therein. 
The Panel thus does not find it necessary to request further submissions, pose questions to the 
parties, or to seek the parties' views at the first su bstantive meeting of the Panel.  
2.7.  India refers to four disputes in which the panel issued a preliminary ruling only after a meeting 
with the parties.20 We do not consider that the approach of these four panels evinces a consistent 
practice to necessarily seek the parties' views on preliminary ruling issues in the course of a 
substantive meeting. Rather, panels' practice on such issues has varied, and whe ther a meeting is 
needed to seek the parties' views on a preliminary ruling request is decided by each panel depending 
on the circumstances of the dispute.21  
2.8.  In this regard, we recall that, pursuant to paragraph 4(1)(b) of the Working Procedures,"[t]he 
Panel may issue a preliminary ruling … before, during or after the first substantive meeting." Thus, 
the Working Procedures provide the Panel with a discretion to decide, in light of the circumstances 
of the case, when it is appropriate to issue a preliminar y ruling. India recognizes the Panel's 
discretion in this regard.22  
2.9.  Furthermore, we do not agree with India's view that its request that the Panel defer its 
communication on India's requests "does not prejudice the complainant in any way whatsoever".23 
India's requests concern fundamental questions related to the Panel's j urisdiction. The issues raised 
by India's preliminary objection go to the root of the Panel's authority to examine the claims brought 
by the European Union. As the European Union observes, if the Panel were to uphold India's objection 
that the Panel was no t validly composed, the parties would need to resume the panel composition 
process.24 We therefore consider that the European Union has a legitimate interest in obtaining a 
ruling from the Panel on this fundamental question as early as possible.  Furthermor e, by ascertaining 
that the panel request complies with the requirements of Article  6.2 of the DSU, the preliminary 
ruling ensures that the matter before the Panel has been properly identified and allows the parties 
to adequately prepare for the first subs tantive meeting.  
2.10.   Finally, we recall that Article 3.3 of the DSU lays down the principle of the prompt settlement 
of disputes. As noted above, in this dispute, having perused the parties' submissions, the Panel was 
 
19 Panel Reports, Argentina – Import Measures , Addendum D -2, para. 3.16.  
20 India's communication to the Panel, 28 June 2021, para. 4 (referring to Panel Reports in China – Raw 
Materials , para. 1.11; Canada – Wheat Exports and Grain Imports , para. 1.8; China – Electronic Payment 
Services , para. 1.6; and Turkey – Textiles,  para. 1.8).  
21 Our review of the 23 panel reports circulated between 1 January 2019 and 30 June 2021 
demonstrates that eight of them contain a preliminary ruling ( US – Facts Available , Korea – Stainless Steel 
Bars, Indonesia – Chicken (Article 21.5 – Brazil), EU – Cost Adjustment Methodologies II (Russia), EC and 
certain member States – Large Civil Aircraft (Article 21.5 – EU), India – Export Related Measures, U.S. – 
Renewable Energy, and Russia – Traffic in Transit ). Four of these panels issued their preliminary ruling after a 
single round of the parties' comments ( US – Facts Available , Indonesia – Chicken (Article 21.5 – Brazil), EU – 
Cost Adjustment Methodologies II (Russia), and EC and certain member States – Large Civil Aircraft (Article 
21.5 – EU)), and five of them issued a preliminary ruling before the first substantive meeting (or the 
substantive meeting in the case of the two Ar ticle 21.5 disputes) with the panel ( US – Facts Available , EU – 
Cost Adjustment Methodologies II (Russia), EC and certain member States – Large Civil Aircraft (Article 21.5 – 
EU), India – Export Related Measures, and U.S. – Renewable Energy ). None of the e ight panels held a separate 
meeting regarding a preliminary ruling request.  
22 India states:  
Para. 4(1)(b) provides discretion to the Panel to issue a preliminary finding "before, during or after 
the first substantive meeting". The word "may" in this para i s indicative of the discretion the Panel 
has in order to provide findings "before, during or after the first substantive meeting".  
(India's communication to the Panel, 28 June 2021, para. 5)  
23 India's communication to the Panel, 28 June 2021, para. 5.  
24 European Union's communication to the Panel, 29 June 2021.  WT/DS582/R/Add.1  
 
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  satisfied that it could make a decision r egarding India's requests based on the arguments and 
evidence contained therein. In these circumstances, allowing a further exchange between the parties 
on these issues would unnecessarily extend the proceedings, contrary to the principle of prompt 
settlem ent of disputes.  
2.11.   Accordingly, given that India's requests concern matters related to the Panel's jurisdiction, 
and in keeping with the principle of prompt settlement of disputes under Article 3.3 of the DSU , we 
consider it appropriate to resolve them befor e the first substantive meeting of the Panel with the 
parties.  
3  DECISION OF THE PANEL REGARDING INDIA'S PRELIMINARY OBJECTION  
3.1.  We now turn to India's preliminary objection, in which India requests that the Panel decline to 
exercise jurisdiction in this disp ute. The Panel notes that India has not tied its preliminary objection 
to a request for a preliminary ruling under paragraph 4 of the Panel's Working Procedures. India 
specifically requests, however, that the Panel decline jurisdiction in this dispute.25 For the reasons 
mentioned above, the Panel considers that it is in the interest of the parties to issue a decision on 
this issue as early as possible.  
3.2.  We begin by summarizing the arguments of the parties and third parties, before setting forth 
our evaluati on of India's preliminary objection.  
3.1  Main arguments of the parties and third parties  
3.1.1   Main arguments of the parties  
3.3.  India submits that the Panel's composition was determined in violation of Articles 8.6 and 8.7 
of the DSU. For this reason, India requests that the Panel decline jurisdiction in this dispute.26 India 
argues that the Panel has the right to do so through the exercise of its inherent power to determine 
the validity of its jurisdiction.27  
3.4.  India argues that Article 8.6 places a "positive  obligation" on the Secretariat to propose 
nominations for a panel to the parties, as reflected in the use of the term "shall" in that provision. 
India asserts that the Secretariat did not propose the names of potential panelists despite India's 
two reques ts that it do so. This, according to India, amounts to a "clear violation of Article 8.6 of the 
DSU and vitiates the due process of dispute settlement".28 India also argues that a "hierarchy of 
procedure" is embodied in Article 8, whereby a party can reque st the Director -General to compose 
a panel under Article 8.7 only when the parties to the dispute, having first followed the steps outlined 
in Article 8.6 and "work[ed] on reaching an agreement on the panelists for 20 days" from the date 
of establishment o f a panel, are unable to do so themselves.29 India argues that, in the absence of 
propositions from the Secretariat, the parties were not provided an opportunity to discuss or agree 
on the composition of the Panel, implying that the composition process was  flawed on that account.30 
Additionally, India contends that the European Union considered from the outset approaching the 
 
25 India's first written submission, para. 238.  
26 India's first written submission, paras. 21 and 238.  
27 According to India, "the doctr ine of ' competence de la competence ' is a well -recognized principle in 
the WTO". See India's first written submission, paras. 18 -21 (referring to Appellate Body Reports, Mexico – 
Taxes on Soft Drinks , para. 45; Mexico – Corn Syrup (Article 21.5 – US), para. 53; and US – 1916 Act , 
para. 54). 
28 India's first written submission, para. 12. India asserts that, on 17 August 2020, during a meeting 
with the Secretariat to discuss the Panel's composition with the parties, it "outlined the criteria and specifically 
requested [the Secretariat] to send the slate of panelists". India further states that the European Union 
nevertheless filed a request for the composition of the Panel to the Director -General on 19 August 2020 
without any slates being exchanged, and that th e parties met with the Director -General on 20 August 2020. 
India also states that, on 21 August 2020, it reiterated in writing its request to the Secretariat to propose 
nominations for the Panel to the parties under Article 8.6. (India's first written subm ission, paras. 5 -7 
(referring to various e -mail communications filed collectively by India as Exhibit IND -43). 
29 India's first written submission, paras. 14 -16 (quoting Panel Report, Guatemala – Cement II , 
para. 8.11).  
30 India's first written submission, p ara. 15.  WT/DS582/R/Add.1  
 
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  Director -General under Article 8.7 and had no intention to receive proposed nominations from the 
Secretariat, thereby violating India 's due process rights under the DSU.31 
3.5.  The European Union argues that the Panel should reject India's preliminary objection for two 
main reasons. Regarding India's submission that the Panel has the power to rule on whether it was 
properly composed, the European Union refers to a finding of the Appellate Body according to which 
"Article 8.7 confers on the Director -General the discretion to compose panels, which was properly 
exercised in this case" and "the [p]anel did not err in refraining … from making a finding on whether 
it was improperly comp osed".32  
3.6.  Second, and irrespective of whether the Panel has authority to make such finding, the European 
Union argues that the Panel was composed consistently with Article 8.7. According to the European 
Union, only three conditions must be met before the D irector -General can determine the composition 
of a panel under Article 8.7, namely, (a) the absence of agreement on the panelists within 20 days 
of the date of establishment of the panel, (b) a request by either party for the Director -General to 
compose th e panel after this 20 -day period, and (c) a consultation by the Director -General with the 
parties to the dispute.33 The European Union submits that these conditions were fulfilled in this 
dispute and that facts referred to in India's first written submissi on evidence this.34  
3.1.2   Main arguments of the third parties  
3.7.  Brazil sees no ground for the Panel to decline jurisdiction. For Brazil, a party's right to have 
recourse to Article 8.7 does not depend on whether the Secretariat has proposed nominations under 
Article 8.6. Thus, there is no "hierarchy of procedure" between those provisions. Brazil argues that 
Article 8.7 dictates only a minimum time -period of 20 days for the parties to try to negotiate.35 
3.8.  Chinese Taipei36 submits that India's request presupposes wro ngly that a panel's authority to 
determine the extent of its jurisdiction covers matters related to a panel's composition under 
Articles  8.6 and 8.7.37 Chinese Taipei argues that a panel cannot review the propriety of its 
composition because the power to c ompose a panel is attributed to the parties under Article 8.6 and 
 
31 India states that, on 14 August 2020, the European Union communicated its intention to request the 
Director -General to compose the Panel under Article 8.7. India adds that, despite its request on 17 
August  2020 that the Secretariat propose nomin ations to the parties, the European Union filed a request for 
composition with the Director -General on 19 August 2020. India notes that the parties met with the Director -
General on 20 August 2020 to discuss the issue of the Panel's composition. It also ass erts that, on 
21 August  2020, the European Union confirmed its request to the Director -General to compose the Panel under 
Article 8.7 of the DSU, stating that: "[g]iven the restrictive selection criteria put forward by India, the 
European Union is of the v iew that it would not be fruitful to pursue the discussions with India on the basis of a 
slate of names proposed by the Secretariat". See India's first written submission, paras. 5 -7 (referring to 
various e -mail communications filed collectively by India a s Exhibit IND -43). 
32 European Union's comments on India's preliminary objection and preliminary ruling request, para. 7 
(quoting Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 172).  
33 European Union's comments on India's preliminary ob jection and preliminary ruling request, para. 10. 
Accordingly, the European Union emphasizes the absence of textual support in Articles 8.6 and 8.7 of the DSU 
for India's interpretation of those provisions. (European Union's comments on India's preliminary  objection and 
preliminary ruling request, paras. 18 -21) 
34 Specifically, the European Union observes that: (a) the parties did not agree on the panelists before 
the expiry of the 20 -day period, as evidenced from the dates of the Panel's establishment (29 J une 2020) and 
the European Union's request that the Director -General compose the Panel (19 August 2020); (b) the 
European Union made such a request; and (c) the Director -General consulted with India and the European 
Union on 20  August 2020. (European Union 's comments on India's preliminary objection and preliminary ruling 
request, paras. 12 -17) 
35 Brazil's comments on India's preliminary objection, paras. 3 -5.  
36 Chinese Taipei notes "the overlap in the scope of India's preliminary ruling request in the pres ent 
dispute with that of DS588, in which [Chinese Taipei] is complainant" and indicates that, "[a]s such, [Chinese 
Taipei] refers the Panel to its comments on India's preliminary ruling request in DS588 for the Panel's 
reference, to the extent of such over lap." (Chinese Taipei's cover e -mail of 17 May 2021 to its comments on 
India's preliminary objection and preliminary ruling request in DS582)  
37 Chinese Taipei argues that the principle of "compétence de la compétence" referred to by India should 
be seen as having a narrower scope in the context of WTO dispute settlement than under general public 
international law, as the principle is not expressl y reflected in the DSU. According to Chinese Taipei, this 
principle is limited to a panel's jurisdiction over the "matter" before it under Article 7.1 of the DSU. Chinese 
Taipei argues that the issue of composition is not part of the "matter" referred to t he DSB here and thus not 
properly before the Panel. (Chinese Taipei's comments on India's preliminary objection and preliminary ruling 
request in DS588, paras. 2.5 and 2.6)  WT/DS582/R/Add.1  
 
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  to the Director -General under Article 8.7. It observes that all previous WTO panels asked to rule on 
the validity of their composition concluded that they lacked the authority to so rule.38 According to 
Chinese Taipei, India's position is further undermined by the Appellate Body's finding in 
Mexico  – Taxes on Soft Drinks that the panel "ha[d] no discretion to decline to exercise its 
jurisdiction in the case that ha[d] been brought before it",  and had instead an "obligation" to exercise 
jurisdiction as not doing so would be inconsistent with provisions in the DSU.39  
3.9.  The United States submits that India has not presented facts, or a legal interpretation, that 
could lead this Panel to decline ju risdiction under the terms of reference established by the DSB.40 
The United States asserts that Article 8.6 provides no basis for the Panel to not consider the matter 
referred to it by the DSB, and that the Director -General's action under Article 8.7 is n ot a matter for 
the Panel to review or within its terms of reference.41 According to the United States, panels do not 
have a role in the composition process and, therefore, like other previous panels faced with claims 
under Article 8 of the DSU, this Panel  should decline to make findings on the consistency of its own 
composition with Articles 8.6 and 8.7.42 
3.2  Panel's evaluation of India's preliminary objection  
3.10.   Article 8 of the DSU governs the "composition of panels" in WTO dispute settlement. 
Articles  8.6 and 8.7 of the DSU provide:  
6. The Secretariat shall propose nominations for the panel to the parties to the 
dispute. The parties to the dispute shall not oppose nominations except for compelling 
reasons.  
7. If there is no agreement on the pan elists within 20 days after the date of the 
establishment of a panel, at the request of either party, the Director -General, in 
consultation with the Chairman of the DSB and the Chairman of the relevant Council or 
Committee, shall determine the composition of the panel by appointing the panelists 
whom the Director -General considers most appropriate in accordance with any relevant 
special or additional rules or procedures of the covered agreement or covered 
agreements which are at issue in the dispute, after consulting with the parties to the 
dispute. The Chairman of the DSB shall inform the Members of the composition of the 
panel thus formed no later than 10 days after the date the Chairman receives such a 
request.  
3.11.   The Panel notes that the participants disagr ee on two key issues: (a) whether the consistency 
of the Panel's composition with Articles 8.6 or 8.7 of the DSU is an issue on which the Panel may 
rule for the purpose of determining its jurisdiction in this dispute; and, if so, (b) whether the Panel's 
composition was determined inconsistently with those provisions. To sustain India's request in this 
context, we would need to reach affirmative conclusions on both issues.  
3.12.   We assess first the threshold issue of whether the Panel may rule on India's prelimin ary 
objection regarding the consistency of the Panel's composition with Articles 8.6 or 8.7 of the DSU.  
3.13.   We recall that India argues that we not only have the right, but also the duty, to determine 
whether we have jurisdiction before proceeding with our review of the European Union's claims in 
this dispute. The European Union, Chinese Taipei, and the United S tates each dispute this argument 
based in part on earlier Appellate Body and panel reports. Having assessed the reports referred to 
by these participants, we note that at least three previous panels faced with an objection to the 
propriety of their composi tion – determined by the Director -General under Article 8.7 – declined to 
 
38 Chinese Taipei's comments on India's preliminary objection and preliminary ruling  request in DS588, 
para. 2.4 (referring to Panel Reports, Guatemala – Cement II ; US – Zeroing (EC) (Article 21.5 – EC); and 
US - Upland Cotton (Article 21.5 – Brazil) ).  
39 Chinese Taipei's comments on India's preliminary objection and preliminary ruling re quest in DS588, 
para. 2.10 (referring to Appellate Body Report, Mexico – Taxes on Soft Drinks , paras.  47-53). 
40 United States' third -party submission, para. 4.  
41 United States' third -party submission, para. 7.  
42 United States' third -party submission, para.  8 (referring to Panel Reports, Guatemala – Cement II ; 
US – Zeroing (EC) (Article 21.5 – EC); and US – Upland Cotton (Article 21.5 – Brazil) ). WT/DS582/R/Add.1  
 
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  make a ruling on the substance of such objection.43 Our review of these reports reveals that, in each 
case, the panel's decision turned on the absence of any role ascribed to panels in the DSU or in 
Article 8 in respect of the panel composition process.44 We note that this understanding was 
confirmed on appeal of one of these cases, where the Appellate Body found that "Article 8.7 confers 
on the Director -General the discretion to comp ose panels, which was properly exercised in this case" 
and that "the [p]anel did not err in refraining … from making a finding on whether it was improperly 
composed."45   
3.14.   We consider this approach legally sound and relevant  to the issue before this Panel, whose 
composition was also determined by the Director -General on the basis of Article 8.7 of the DSU. We 
note, in particular, that Article 8.7 grants discretionary authority to the Director -General to 
determine the composition of the panel under certain co nditions. We do not discern a basis in 
Article  8.7 or generally in the DSU that would allow us in this case to review the propriety of the 
Panel's composition, as determined by the Director -General by virtue of the discretionary authority 
conferred by Arti cle 8.7. We are also not aware of any previous panel having engaged substantively 
with a challenge to its jurisdiction on account of an allegedly flawed composition under Articles 8.6 
or 8.7, and India has referred to none.  
3.15.   India's jurisdictional plea in r elation to Articles 8.6 and 8.7 of the DSU essentially rests on the 
Appellate Body's statement in Mexico – Taxes on Soft Drinks  that "WTO panels have certain powers 
that are inherent in their adjudicative function", one of which is "the right to determine whether they 
have jurisdiction in a given case".46 We are not persuaded that this statement supports the position 
advocated by India. We observe, first, that the issue the Appellate Body was addressing in Mexico 
– Taxes on Soft Drinks when making the state ment in question was different from the one before 
us.47 Further, the Appellate Body stated elsewhere in the same report that "[a] decision by a panel 
to decline to exercise validly established jurisdiction" "would not be consistent with a panel's 
obligati ons under Articles 3.2 and 19.2 of the DSU".48 It cannot simply be assumed that deficiencies 
in the determination of a panel's composition under Articles 8.6 or 8.7, even if shown to exist, would 
bear on whether the Panel has "validly established jurisdict ion" in a dispute. In referring to the 
Appellate Body's statement in Mexico – Taxes on Soft Drinks , India does not engage with this critical 
point. In the circumstances of this case, we do not consider that declining to exercise jurisdiction 
would be consi stent with our obligations under the DSU.49 
 
43 See Panel Reports, Guatemala – Cement II ; US – Upland Cotton (Article 21.5 – Brazil) ; and 
US – Zeroing (EC) (Ar ticle 21.5 – EC). 
44 In Guatemala – Cement II , the panel noted that "[n]either Article 8 nor any other provision of the 
DSU prescribes any role for the panel in the panel composition process". (Panel Report, Guatemala – Cement 
II, para. 8.11) In US – Upland  Cotton (Article 21.5 – Brazil) , the panel noted that "it is not within its authority 
under the DSU to make a 'finding or ruling' on an issue … which concerns the application by the WTO Director -
General of the DSU provisions regarding panel composition". ( Panel Report, US – Upland Cotton (Article 21.5 – 
Brazil) , para. 8.28) In US – Zeroing (EC) (Article 21.5 – EC), the panel noted that "Article 8.7 is clear that 
whenever there is no agreement between the parties, the ultimate power to compose the panel rest s with the 
Director -General of the WTO" and, consequently, decided to "refrain from ruling on the substance of the EC 
claim with respect to the composition of this panel by the Director -General". ( US – Zeroing (EC) (Article 21.5 – 
EC)) paras. 8.16 -8.17)  
45 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 172.  
46 India's first written submission, para. 18 (referring to Appellate Body Report, Mexico – Taxes on Soft 
Drinks , para. 45). India mentions in this context the principle of "compétence  de la compétence", which it 
asserts is well -recognized in the WTO. We note that India does not distinguish this principle from the substance 
of the Appellate Body's observations in Mexico – Taxes on Soft Drinks on which it relies; we treat the two as 
referring to the same concept in the circumstances of this case.  
47 The Appellate Body was evaluating whether a validly established WTO panel could decline, and should 
have declined, to exercise jurisdiction with respect to the United States' claims under Artic le III of the GATT 
1994 in light of the parties' ongoing dispute under NAFTA. (Appellate Body Report, Mexico – Taxes on Soft 
Drinks , para.  44) 
48 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 53.  
49 We note that India also refers to excerpts fr om the Appellate Body reports in Mexico – Corn Syrup 
(Article 21.5 – US) and US – 1916 Act , in which the Appellate Body stated that panels must satisfy themselves 
that they have authority to proceed in a dispute, a fundamental prerequisite for lawful panel  proceedings. 
(India's first written submission, paras. 19 and 20 (referring to Appellate Body Reports, Mexico – Corn Syrup 
(Article 21.5 – US), para. 53; and US – 1916 Act , para. 54)) We do not consider India's reference to these 
excerpts to be directly r elevant to the issue before us. The Appellate Body's statements as to the need for 
panels to verify the validity of their jurisdiction were not made in the context of allegations of deficiencies in 
the panel composition process.  WT/DS582/R/Add.1  
 
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  3.16.   In light of our analysis above, and mindful of the uniform approach prior WTO panels have 
taken in refraining to rule on objections regarding the propriety of their composition, we do not 
perceive a basis in this  case to make a ruling on India's claim under Articles 8.6 and 8.7 and, 
consequently, do not do so.  
3.17.   Having so found, we see neither a need nor a justification to rule on the second issue 
mentioned in paragraph 3.11.   above, which pertains to the merits of India's preliminary objection. 
At the same time, it will be recalled that India alleges that the violations at hand are of such a nature 
as to "vio late[] India's due process rights" and "vitiate[] the due process of dispute settlement".50 
This is a serious allegation, and the Panel would be remiss were it to disregard the substantive 
aspects of India's arguments which underlie it. The Panel therefore  wishes to be clear that it does 
not share India's interpretation of the provisions at issue and the associated characterization of 
relevant facts. In our view, to interpret Article 8.6 as imposing a "positive obligation" on the 
Secretariat would be overly  focused on the first sentence of that provision and overlook the broader 
context of Article 8 of the DSU. We note that Article 8.4 of the DSU stipulates that the Secretariat 
"assist[s] in the selection of panelists". As the panel in Guatemala – Cement II  observed, "Article  8.6 
of the DSU imposes primary responsibility for panel composition on the parties to the dispute".51 As 
we see it, the main responsibility for the composition of a panel rests with the parties and, in certain 
circumstances, with the Dir ector-General. These considerations do not lend credence to India's 
understanding of the level of the Secretariat's role in the panel composition process.52 
3.18.   Finally, we do not see a basis for reading Articles 8.6 and 8.7 of the DSU as laying out a 
"hierarc hy of procedure wherein Article 8.7 of the DSU can only be invoked after following the steps 
outlined in Article 8.6 of the DSU".53 Rather, the terms of Article 8.7 make clear that the Director -
General can determine the composition of a panel when three cu mulative conditions are combined: 
(a) no agreement on the panelists within 20 days of the date of establishment of the panel, (b) a 
request by either party to the Director -General, and (c) a consultation by the Director -General with 
the parties. Unconteste d facts on the record reveal that these conditions were met in this dispute, 
and India does not allege otherwise.  
3.19.   For the foregoing reasons, the Panel does not consider India's concerns that its due process 
rights were affected in the process of the Panel 's composition to be well -founded.  
4  PRELIMINARY RULING OF THE PANEL UNDER ARTICLE 6.2 OF THE DSU  
4.1.  We now turn to address India's preliminary ruling request, which concerns the compliance of 
the European Union's panel request with the requirements of Article 6.2 of the DSU. We start by 
briefly summarizing the arguments of the parties and third parties. Thereafter, we examine the 
consistency of the European Union's panel request with Article 6.2 of the DSU.  
4.1  Main arguments of the Parties and third parties  
4.1.1   Main arguments of the parties  
4.2.  India submits that the European Union's panel request does not satisfy the conditions laid down 
in Article 6.2 of the DSU.54 In particular, highlighting the requirements of Article 6.2 to identify the 
specific measures at issue and to provide a brief summary of the legal basis of the complaint 
sufficient to present the problem clearly, India argues that "the identification of s pecific measures 
at issue may require the identification of specific products ..., or conversely, the measure at issue 
 
50 India's first written submission, paras. 12 and 17.  
51 Panel Report, Guatemala – Cement II , para. 8.11.  
52 The Panel notes that India alleges that it requested the Secretariat to propose nominations once on 
17 August 2020, and again on 21 August 2020, to no avail. We observe that the 20 -day period envisaged 
under Article 8.7 expired on 20 July 2020. Thus, both  of India's requests were made beyond the expiration of 
the 20 -day period. In light of the fact that India approached the Secretariat after the expiration of the 20 -day 
period, we do not see a credible ground for India to suggest that the Secretariat faile d to propose nominations 
in due course and to assert a violation of due process. Additionally, the Panel observes that, based on the 
evidence on the record, the Secretariat arranged a meeting with the parties on 17 August 2020 to discuss the 
parties' selec tion criteria for panelists. (See various e -mail communications filed collectively by India as Exhibit 
IND-43) 
53 India's first written submission, para. 14.  
54 India's first written submission, para. 36.  WT/DS582/R/Add.1  
 
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  may then identify the products at issue."55 India asserts that, in a number of previous disputes that 
dealt with issues pertaining to Art icles II:1(a) and (b) of the GATT 1994 and Article 6.2 of the DSU, 
the disputed measures have led to the identification of the products at issue.56 According to India, 
by contrast, "the measures at issue in the present instance - stated to be India's legal  instruments 
via which India imposes customs duties on products falling under certain sub -headings - do not 
necessarily lead to a sufficiently specific or positive identification of the products at issue."57 India 
further argues that "[t]he lack of specifi city in the EU's submission is further compounded by the EU 
not explicitly confirming that the classification of the products at issue falls under the contested sub -
headings."58 For India, the "indeterminacy in the EU's submissions compromises not only Ind ia's 
ability to defend itself but also that of the Panel to articulate a clear and reasoned decision."59  
4.3.  The European Union asserts that, while assessing consistency with Article 6.2 entails 
scrutinizing the panel request, India's arguments refer to the E uropean Union's first written 
submission instead of the panel request.60 The European Union also stresses that India's arguments 
concerning product classification and the scope of specific exemptions pertain to the merits of the 
European Union's claims.61 According to the European Union, India has failed to make a prima facie  
case in favour of its preliminary ruling request and India's request should be rejected for this reason 
alone.62 The European  Union argues that, nonetheless, its panel request complies  with the 
requirements of Article 6.2 and requests the Panel to reject India's preliminary ruling request.63  
4.1.2   Main arguments of the third parties  
4.4.  Canada states that it agrees with the comments contained in the United States' third -party 
submission.64 
4.5.  Japan65 argues that India's arguments refer to the complainant's first written submission 
instead of the panel  request and pertain to the merits of the complainant's claims.66 Japan also 
argues that India's argument concerning the identificat ion of the products at issue in the panel 
request is erroneous.67 In Japan's view, the measures the complainant has identified in the 
panel  request define the products at issue.68 Finally, Japan argues that, contrary to India's assertion, 
the manner in whi ch the measures at issue are identified in the complainant's panel request is 
sufficient to allow India to understand the subject of this dispute and defend itself.69 
4.6.  Chinese Taipei70 submits that, while India sets out in its request the legal standard und er 
Article  6.2 of the DSU, India does not specify what specific requirements the panel request does not 
 
55 India's first written submission, para. 39.  
56 India's first written submission, paras. 40 and 41.  
57 India's first written submission, para. 41 and fn 60 thereto.  
58 India's first written submission, para. 42.  
59 India's first written submission, para. 47. India requests the Panel to find that "the EU has bee n 
unable to satisfy the threshold requirements of specificity under Article 6.2 of the DSU" and that 
"[c]onsequentially, all other products except the ones explicitly classified by the EU under the contested sub -
headings, especially tariff items 8517.62.90  and 8517.70.90 and USB Cable, are beyond the scope of the 
present dispute." (Ibid. para. 239)  
60 European Union's comments on India's preliminary objection and preliminary ruling request, paras. 
36-37. 
61 European Union's comments on India's preliminary obj ection and preliminary ruling request, para. 38 
(referring to India's first written submission, paras. 42 -44). 
62 European Union's comments on India's preliminary objection and preliminary ruling request, para. 39.  
63 European Union's comments on India's pre liminary objection and preliminary ruling request, 
paras.  40-58. 
64 Canada's comments on India's preliminary ruling request.  
65 Japan notes that the matters addressed in India's preliminary ruling request in this dispute "largely 
overlap" with those in India – Tariffs on ICT Goods (Japan)  (DS584) where Japan is the complainant and where 
the same panelists have been appointed. Japan incorporated by reference its comments on India's preliminary 
ruling request in DS584 in this dispute. (Japan's cover letter of 1 7 May 2021 to its comments on India's 
preliminary ruling request in DS582)  
66 Japan's comments on India's preliminary ruling request in DS584, paras. 31 -33. 
67 Japan's comments on India's preliminary ruling request in DS584, paras. 34 -38. 
68 Japan's comments  on India's preliminary ruling request in DS584, para. 39.  
69 Japan's comments on India's preliminary ruling request in DS584, paras. 40 -41. 
70 Chinese Taipei notes "the overlap in the scope of India's preliminary ruling request in the present 
dispute with t hat of DS588, in which [Chinese Ta ipei] is complainant" and indicates that, "[a]s such, 
[Chinese  Taipei] refers the Panel to its comments on India's preliminary ruling request in DS588 for the Panel's WT/DS582/R/Add.1  
 
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  comply with.71 Chinese Taipei argues that the text of Article 6.2 does not require an identification of 
the products at issue, but only refers to the id entification of the "specific measures at issue".72 
Chinese Taipei also asserts that India appears to have mistakenly made substantive arguments in 
its preliminary ruling request when addressing issues of tariff classification. According to Chinese 
Taipei,  Article 6.2 requires a brief submission of the "claims" and not the "arguments" supporting 
those claims, which are clarified in subsequent submissions.73 
4.7.  The United States argues that Article 6.2 does not expressly require that a panel request 
identify sp ecific products to which the measures at issue apply.74 According to the United States, in 
the context of claims under Articles II:1(a) and (b) of the GATT  1994, prior panels and the Appellate 
Body have considered that an identification of specific products is required only to the extent 
necessary to identify the measures at issue.75 The United  States also asserts that India's arguments 
regarding alleged errors in the Harmonized System (HS)  transposition process, proper classification 
of products und er the contested tariff subheadings, and insufficient precision in the complainants' 
written submissions as to specific products, go to the merits of the complainant's claims, not to the 
identification of measures in the panel request.76  
4.2  Panel's evaluatio n of India's preliminary ruling request  
4.2.1   General observations  
4.8.  Article 6.2 of the DSU reads, in relevant part:  
The request for the establishment of a panel shall be in writing. It shall indicate whether 
consultations were held, identify the specific measures at issue and provide a brief 
summary of the legal basis of the complaint sufficient to present the problem c learly.  
4.9.  Article 6.2 sets out two principal requirements that a panel request must comply with: (a) the 
identification of the specific  measures at issue and (b) the provision of a brief summary of the legal 
basis of the complaint sufficient to present the problem clearly.77  
4.10.   Whereas Article 6.2 sets forth the requirements for a panel request, India does not argue that 
the European Union's panel  request  does not properly identify the specific  measures at issue. Nor 
does India argue that the European Union's panel request  does not provide a brief summary of the 
legal basis of the complaint sufficient to present the problem clearly, as required under Article  6.2 
of the DSU. Rather, throughout its preliminary ruling request, India refers to the European Union's 
first written  submission  in raising the alleged lack of specificity in the identification of the products  at 
issue in this dispute.78  
 
reference, to the extent of such overlap." (Chinese Tai pei's cover e -mail of 17 May 2021 to its comments on 
India's preliminary objection and preliminary ruling request in DS582)  
71 Chinese Taipei's comments on India's preliminary objection and preliminary ruling request in DS588, 
para. 3.1.  
72 Chinese Taipei's  comments on India's preliminary objection and preliminary ruling request in DS588, 
para. 3.5 (referring to Appellate Body Report, EC – Chicken Cuts , para. 165).  
73 Chinese Taipei's comments on India's preliminary objection and preliminary ruling request in  DS588, 
para. 3.23.  
74 United States' third -party submission, para. 10.  
75 United States' third -party submission, para. 11. The United States argues that, in considering India's 
request for a preliminary ruling, the Panel must address whether identification of specific products would be 
required to identify the measures at issue or whether the products at issue flow from the identified measures. 
(Ibid. para. 13)  
76 United States' third -party submission, paras. 14 -15. 
77 The other two requirements are that the p anel request must be in writing and must indicate whether 
consultations were held. (Appellate Body Reports, Russia – Railway Equipment , para. 5.26 and fn 95 thereto;  
and Korea – Dairy , para. 120) These two requirements have been complied with and are not c hallenged by 
India.  
78 For example, India states:  
The lack of specificity in the EU's submission is further compounded by the EU not explicitly 
confirming that the classification of the products at issue falls under the contested sub -headings.  
(India's first written submission, para. 42. See  also ibid. paras. 43, 47, and fns 52 -54 to paras. 
37-38, fns 60 -61 to paras. 41 -42, and fns 63 -64 to paras. 43 -44)  WT/DS582/R/Add.1  
 
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  4.11.   Furthermore, India raises issues pertaining to the classification of products and applicable 
rates of duty, which concern  the merits of the European Union's claims rather than the specific 
requirements of Article 6.2 of the DSU.79 In this regard, we note that it is well established that issues 
pertaining to the merits of a complainant's claims, as opposed to jurisdictional i ssues, are not 
properly subject to preliminary  ruling requests.80  
4.12.   India also argues that the European Union does not identify the products at issue with 
sufficient specificity.81 First, as noted, India points to the alleged lack of specificity in the desc ription 
of the products at issue in the European Union's first written submission, not in its panel request.82 
Second, in any event, Article 6.2 of the DSU does not require that a panel request identify the 
relevant products. Rather, it requires the identi fication of the specific measures at issue .83 The 
identification of the products at issue is "a consequence of the scope of application of the specific 
measures at issue", and thus " it is the measure  at issue that generally will define the product  at 
issue. "84 Therefore, the identification of the products at issue is generally not a separate and distinct 
element of a panel's terms of reference.85 
4.13.   We note that it may be necessary to identify the specif ic products at issue in the panel request 
in instances where classification decisions of customs  authorities are under challenge, in order to 
identify the specific measures at issue.86 However, this is not the case in the dispute before the 
Panel. As expla ined in detail below, the European Union defines the measures at issue as the duties 
on products that are covered by certain tariff lines of India's Schedule, which are allegedly imposed 
through certain legal instruments. In our view, therefore, the identi fication of the products at issue 
flows from the description of the measures at issue in the European Union's panel request, and we 
agree with the European Union that the relevant products are those that fall under the scope of the 
identified tariff lines.87  
4.14.   These reasons alone provide us with sufficient grounds to reject India's preliminary ruling 
request. Nevertheless, with a view to providing a comprehensive response to India's request, and 
noting that panels can address on their own motion "certain issues of a fundamental nature", in 
particular "issues which go to the root of their jurisdiction"88, we proceed to examine whether the 
European Union's panel  request complies with the requirements of Article 6.2 of the DSU.  
4.15.   Accordingly, we will examine, in turn,  whether the European Union's panel request: 
(a) identifies the specific measures at issue; and (b) provides a brief summary of the legal basis of 
the complaint sufficient to present the problem clearly.  
4.2.2   Identification of the specific measures at issue  
4.16.   As explained above, the arguments raised by India do not concern the European Union's 
panel  request and pertain instead to its first written submission. These arguments are therefore not 
pertinent to an assessment of whether the European Union's panel reques t complies with the 
requirements of Article 6.2 of the DSU.  
 
79 India's first written submission, paras. 42 -44. See also fn 69 to para. 47, in which Indi a discusses the 
burden of proof.  
80 See Appellate Body Report, Australia – Apples , paras. 423 -425. See also Panel Report, Russia – 
Traffic in Transit , paras. 7.331 -7.339.  
81 India's first written submission, para. 46.  
82 For example, India states:  
Indeed, the EU's submissions only describe at best an indeterminate (and seemingly 'residuary') 
list of products which  do not apparently benefit from extant statutory exemptions.  
(India's first written submission, para. 47)  
83 Appellate Body Report, EC – Chicken Cuts , para. 165. See also Panel Reports, EC – IT Products , 
para. 7.194.  
84 Appellate Body Report, EC – Chicken Cuts , para. 165. (emphasis original)  
85 Appellate Body Report, EC – Chicken Cuts , para. 165.  
86 Appellate Body Report, EC – Chicken Cuts , para. 166 (referring to Appellate Body Report, EC – 
Computer Equipment,  para. 67). See also Panel Reports, EC – IT Products , para.  7.194.  
87 European Union's comments on India's prelimina ry objection and preliminary ruling request, para. 48.  
88 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36.  WT/DS582/R/Add.1  
 
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  4.17.   The European Union, for its part, argues that its panel request identifies the measures at issue 
in accordance with the requirements of Article 6.2 of the DSU.89 According to the European  Union, 
it is clear from the panel request that "the measures are duties applied by India on imports, and it 
is also clear on which products those duties are applied to – the products falling within the scope of 
the seven tariff lines explicitly mentioned in the pa nel request."90 
4.18.   As noted above, one of the requirements of Article 6.2 of the DSU is that a panel request 
identifies the specific  measures at issue. It must do so with sufficient precision, so that what is 
referred to adjudication could be discerned from t he panel request.91 This requirement is met if the 
panel request identifies the measures at issue with sufficient particularity so as to indicate the nature 
of the measures and the gist of what is at issue.92 We now turn to assess the compliance of the 
European Union's panel request with this requirement.  
4.19.   The European Union's panel request reads in relevant part:  
The measures at issue are the duties applied by India on imports of certain ICT products 
in excess of the bindings set forth in its Schedule of C oncessions and Commitments 
annexed to the GATT 1994 ("India's WTO Schedule" or "WTO Schedule").  
 
The ITC products concerned fall within the scope of the bindings included in India's WTO 
Schedule with respect to the following tariff lines (based on the HS 2 007):  
 
8504.40.02  
8517.12  
8517.61  
8517.62  
8517.70.01/02/03  
8518.30.01  
8544.42.01  
 
In its WTO Schedule India has bound the ad valorem  duty rate for the above tariff lines 
at 0%. Yet the duty rate applied by India on imports of ICT products falling within the 
scope of those bindings is up to 20%, depending on the tariff line and is, therefore, in 
excess of the bound rate.93 
 
4.20.   This descrip tion is followed by a list of legal instruments that, according to the 
European  Union, set out the applicable duties for each of the tariff lines.94 
4.21.   As the excerpt of the European Union's panel request demonstrates, the European Union has 
identified the me asures at issue as " [t]he duties applied by India on imports of certain ICT products 
in excess of the bindings set forth in its Schedule of Concessions and Commitments annexed to the 
GATT 1994".95 The panel  request then specifies that the relevant products  fall within the scope of 
the tariff lines under the 2007  version of the HS , which are listed in the panel request. Thereafter, 
the panel request enumerates the legal  instruments which, according to the European Union, set 
the relevant duty rates for the p roducts covered by the tariff lines listed.  
4.22.   Our examination of the European Union's panel request reveals that it identifies the measures 
at issue with sufficient particularity so as to indicate the nature and gist of those measures. We 
agree with the Eur opean Union that, based on its panel request, it is clear that the measures at issue 
are the duties applied by India on imports of the relevant ICT products, and it is also clear that those 
 
89 European Union's comments on India's preliminary objection and preliminary ruling request, para. 48.  
90 European Union's com ments on India's preliminary objection and preliminary ruling request, para. 48.  
91 Appellate Body Report, US – Continued Zeroing , para. 168.  
92 Appellate Body Report, US – Continued Zeroing , para. 169.  
93 Request for the establishment of a panel by the Europ ean Union, WT/DS582/9, p.  1. 
94 Request for the establishment of a panel by the European Union, WT/DS582/9, pp.  2-3.  
95 We note that India incorrectly asserts that the European Union identified the measures at issue as 
"India's legal instruments via which I ndia imposes customs duties on products falling under certain 
sub-headings". (See India's first written submission, para. 41)  WT/DS582/R/Add.1  
 
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  duties apply to products falling within the scope of the seven tar iff lines explicitly mentioned in the 
panel request.96  
4.23.   We therefore conclude that the identification of the measures at issue in the European Union's 
panel request is consistent with the requirements of Article  6.2 of the DSU.  
4.2.3   Brief summary of the legal b asis of the complaint sufficient to present the problem 
clearly  
4.24.   We now turn to the second requirement of Article 6.2, which is the provision of a brief 
summary of the legal  basis of the complaint sufficient to present the problem clearly.  
4.25.   As noted above, India does not specifically argue that the European  Union's panel  request 
does not provide a brief summary of the legal basis of the complaint that is sufficient to present the 
problem clearly, as required by Article 6.2 of the DSU.  
4.26.   The European Union, fo r its part, submits that its panel request provides a summary of the 
legal basis of the complaint in accordance with the requirements of Article 6.2 of the DSU.97 
According to the European Union, its panel request states that the measures at issue are inco nsistent 
with Articles II:1(a) and II:1(b) of the GATT 1994.98 
4.27.   The  requirement to provide a brief summary of the legal  basis of the complaint sufficient to 
present the problem clearly entails precision in identifying the legal basis of the complaint, i.e. the 
treaty provisions claimed to have been violated.99 Further more, in order to "present the problem 
clearly", the panel  request must plainly connect the challenged measures to the provisions of the 
covered agreements claimed to have been violated.100 With these considerations in mind, we now 
examine the European Unio n's panel request.  
4.28.   The European Union's panel request reads in relevant part:  
The measures at issue are inconsistent with India's obligations under the covered 
agreements and, in particular, with Article II:1 (a) and (b) of the GATT 1994, because, 
through those measures, India accords to the EU commerce of certain ICT goods 
treatment less favourable than that provided for in its WTO Schedule and does not 
exempt those goods from ordinary customs duties or other import duties in excess of 
those set forth and provided in its Schedule, respectively.  
These measures adversely affect exports of goods from the European Union to India, 
and they nullify or impair the benefits accruing to the European Union directly or 
indirectly under the covered agreements.101 
 
4.29.   Our examination of the European Union's panel request reveals that it identifies the provisions 
of the covered agreement claimed to have been violated by the measures at issue, 
i.e. Articles  II:1(a) and (b) of the GATT 1994. Furthermore, the  panel request plainly connects those 
provisions to the measures at issue by stating that "through those measures, India accords to the 
EU commerce of certain ICT goods treatment less favourable than that provided for in its WTO 
Schedule and does not exemp t those goods from ordinary customs duties or other import duties in 
excess of those set forth and provided in its Schedule, respectively".102  
 
96 See European Union's comments on India's preliminary objection and preliminary ruling request, 
para. 48.  
97 European Union's comm ents on India's preliminary objection and preliminary ruling request, para. 44.  
98 European Union's comments on India's preliminary objection and preliminary ruling request, para. 44.  
99 Appellate Body Report, Thailand – H-Beams , para 97. See also Appellate Body Reports, Korea – 
Dairy , para. 124 and Russia – Railway Equipment , para. 5.28.  
100 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review , para. 162. See also Appellate 
Body Report, Russia – Railway Equipment , para. 5.27.  
101 Request for the establishment of a panel by the European Union, WT/DS582/9, p.  3. 
102 Request for the establishment of a panel by the European Union, WT/DS582/9, p.  3. WT/DS582/R/Add.1  
 
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  4.30.   We therefore conclude  that the European Union's panel request provides a brief summary of 
the complaint that is s ufficient to present the problem clearly, within the meaning of Article 6.2 of 
the DSU.  
4.3  Conclusion  
4.31.   In light of the foregoing, we reject India's preliminary ruling request and conclude that the 
European Union's panel  request meets the requirements of Articl e 6.2 of the DSU.  
 
__________