WT/DS584/14  
 
25 May 2023  
(23-3564) Page: 1/9 
  Original: English  
 
INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION AND 
COMMUNICATIONS TECHNOLOGY SECTOR  
NOTIFICATION OF AN APPEAL  BY INDIA  UNDER ARTICLE 16.4 AND  
ARTICLE  17.1 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE  
SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 2 0(1) OF THE  
WORKING PROCEDURES FOR APPELLATE REVIEW  
The following communication, dated 17 May 2023 , from the delegation of India, is being circulated 
to Members.  
 
_______________  
 
 
1. Pursuant to Article 16.4 and Article 17.1 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes ( "DSU"), India hereby notifies the Dispute Settlement Body 
("DSB") of its decision to appeal to the Appellate Body ("AB") regarding certain issues of law covered  
in the Panel Report and certain legal interpretations developed by the Panel in the dispute 
India – Tariff Treatment on Certain Goods in the Information and Communications Technology 
Sector (WT/DS58 4/R). 
2. Pursuant to Rule 20(1) of the Working Procedures fo r Appellate Review, India simultaneously 
files this Notice of Appeal with the Appellate Body Secretariat.  
3. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures, this Notice of Appeal provides an 
indicative list of the paragraphs of the Panel Report containing the alleged errors of law and legal 
interpretation by the Panel in its report, without prejudice to India's ability to rely on other 
paragraphs of the Panel Report in its appeal.  
4. India seeks review by the Appellate Body of the errors of l aw and legal interpretation by the 
Panel in its Report and requests findings by the Appellate Body as noted below. Non -appeal of an 
issue does not signify agreement therewith.  
5. For the reasons to be further elaborated in its submissions to the Appellate Bod y, India 
appeals, and requests the Appellate Body to reverse, modify, or declare moot and of no legal effect, 
the findings, conclusions, rulings and recommendations of the Panel, with respect to the following 
errors of law or legal interpretations containe d in the Panel Report:  
I. THE ITA IS RELEVANT AND LIMITS /MODIFIES THE SCOPE OF THE TARIFF 
COMMITMENTS SET FORTH IN INDIA 'S WTO SCHEDULE.  
6. The Panel has committed legal errors in Section 7.3.2.2. 3 and Paras. 7.13 and 7.62 of the 
Panel Report. The Panel erred in its interp retation of the relationship of the Information Technology 
Agreement ( "ITA-1" or "the ITA ") with India 's WTO Schedule and/or failed to make an objective 
assessment pursuant to Arti cle 11 of the DSU, because  the Panel found that there is "no textual link 
in the GATT 1994 indicating that Members' legal obligations, for the purposes of applying Articles 
II:1(a) and (b), could be contained in the ITA ".1 The Panel erred because the insc riptions in Columns  
 
1 Panel Report , India – Tariff on ICT Goods  (Japan) , Para. 7.38  (hereinafter "Panel Report "). WT/DS584/14  
 
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  G and H of the worksheet titled "Part I Section II " of India 's Combined Tariff Schedule (CTS) explicitly 
refer to WT/Let/1812 through which India incorporated its commitment under the ITA -1 in its WTO 
Schedule  and accordingly, WT/Let/1 81 must be interpreted according to the ITA.3  
7. The Panel has committed legal errors in Section 7.3.2.3.3 of the Panel Report. The Panel erred 
in its interpretation of the relationship of the ITA with India 's WTO Schedule and/or failed to make 
an objective  assessment pursuant to Article 11 of the DSU, in so far as the Panel found that the ITA 
does not limit the scope of tariff commitments set forth in India 's WTO Schedule. At the outset, it is 
submitted that the Panel has erred in Section 7.3.2.3.3 by apply ing the interpretative tools for  
interpretation of  ITA to directly interpret India 's WTO Schedule. The Panel overlooks the inscriptions 
in Columns  G and H of the worksheet titled "Part I Section II " of India 's Combined Tariff Schedule 
(CTS) which explicitly refer to WT/Let/1814 through which India incorporated its commitment under 
the ITA -1 in its WTO Schedule.  Further , the Panel erred because , inter alia : 
a) the Panel's  interpretation in Para 7.6 9 is at odds wi th its interpretation in Para 7.45 as 
India's Combined Tariff Schedule (CTS) explicitly refer to WT/Let/181 through which 
India incorporated its commitment under the ITA -1 in its WTO Schedule . 
b) the Panel incorrectly noted, in Para. 7.70 of its Report, that India's interpretation is at 
odds with the multilateral principles of reciprocity and mutually advantageous 
arrangements underpinning the multilateral trading system.  
Contrary to the Panel's interpretation, it is precisely because of the principles of 
reciprocity and mutually advantageous arrangements that India's interpretation is 
correct. The ordinary meaning of the term "reciprocal" is "[o]f the nature of a return 
made for something; given, felt, shown, etc., in return", and "[e]xisting on both sides; 
mutual; (of two or more things) done, made, etc., in exchange".5 The products which, 
as Japan alleges, should be given tariff -free treatment were never covered under the 
ITA and hence were not negotiated. Even if the products were covered under the ITA, 
the ITA was a sui generis  agreement with broad and generalised coverage, as opposed 
to a request -offer negotiation. Further, the concessions under the ITA were available 
to all WTO Members, and not only to the ITA participants. Accordingly, ITA does not 
follow the multilateral principles of reciprocity and mutually advantageous  
arrangements, and India has not received any reciprocal benefits in exchange for the 
alleged concessions.  
c) the Panel  erred in its interpretation and application of the ITA and/or faile d to make 
an objective assessment pursuant to Article 11 of the DSU, in Para. 7.7 1-7.73 of its 
Report by mischaracterising India 's arguments and incorrectly interpreting the product 
scope of the ITA. It is not India 's case that "products coming into existe nce after the 
conclusion of the ITA […] would be excluded from the coverage of Members ' existing 
WTO commitments. "6 India submits:  
• that the language in the Annex to the ITA7 providing for a meeting of the parties 
for modification of the product scope in light of technological development 
clearly shows that the product scope of the ITA is static . 
• that the parties to the ITA have given special meaning to the terms of the ITA 
(and consequent to WT/Let/181) under Article 31(4) of the VCLT, limiting t he 
product scope to HS1996 and its explanatory notes .8  
• that for the purposes of Article 31(4) , the universe of parties is limited to ITA 
participants. Therefore, HS 1996 and its explanatory notes constitute special 
meaning given by "all parties to a trea ty", i.e. all parties to the ITA . 
• that as communicated by India to the Panel, the term "new product " in India 's 
submissions refers to products not covered by the HS1996 and its explanatory 
 
2 Combined Tariff Schedule of India, Part I Section II, Rows 5427, 5526 to 5541, 5554 and 5808.  
3 India Second Written Submissions, paras. 37 to 45.  
4 Combined Tariff Schedule of India, Part I Section II , Rows 5427, 5526 to 5541, 5554 and 5808.  
5 Panel Report, EU – Poultry (China) , para. 7.297.  
6 Panel  Report , Para. 7.7 1. 
7 Ministerial Declaration on Trade in Information Technology Products (13 December 1996) WT/MIN 
(96)/16,  Annex Para. 3  (hereinafter "ITA-1").  
8 ITA-1, Para. 2(a).  WT/DS584/14  
 
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  notes, and not to products which came into existence after the conc lusion of the 
ITA as characterised by the Panel.9 
Accordingly, the meaning ascribed by the ITA and WT/Let/181 should continue to 
govern India 's WTO Schedule.  
d) it erred in its interpretation in Para. 7.7 6 of its Report and has mischaracterised India 's 
argum ents, as India has used the ITA Expansion to confirm the product scope of the 
ITA and WT/Let/181 , and not India 's WTO Schedule. Thus, ITA Expansion is a 
subsequent practice of some Members of the ITA -1, which confirms the product scope 
of the ITA -1 and WT/ Let/181 .10 
e) it erred in its interpretation in Para. 7.7 7 of its Report as ITA -1 and WT/Let/181  remain 
relevant to interpret India 's WTO Schedule which is evident from the inscriptions in 
Column s G and  H of the worksheet  titled "Part I Section II " of India 's Combined Tariff 
Schedule (CTS).11 Accordingly, the statements /practices  cited by India12 are relevant 
as subsequent practice for the interpretation of the ITA -1 and WT/Let/181  under 
Article 31(3)(b) of the VCLT.  
f) it erred in its interpretation and/or failed to make an objective assessment pursuant 
to Article 11 of the DSU, in Para 7.77 to 7.78 of its Report as none of the products at 
issue have been identified in G/IT/SPEC/15 with a notation that such products at issue 
were part o f the ITA -1.13 In addition, G/IT/SPEC/15 cannot be preparatory material of 
ITA Expansion because preparatory material is the material which was generated 
during the negotiating process of ITA Expansion.   
8. India, therefore, requests the Appellate Body to rev erse or set aside the Panel's conclusions 
and the Panel's legal interpretations contained in Paras.  7.36 to 7.46, 7.61 to 7.82, 7.261, 7.301, 
7.324, 7.338 and 7.3 70, and complete the analysis regarding the applicability of Article 48 of the 
VCLT. Consequen tly, India also requests the Appellate Body to declare moot and of no legal effect 
the Panel's conclusions and findings contained in Section 8 , paragraphs 8.1 (a)(i) , 8.1(b)(i), (ii), (iii), 
(iv), (v), 8.2 and 8.3  of the Panel Report.  
II. ORDER OF ANALYSIS OF A RTICLE 48 OF THE VIENNA CONVENTION ON LAW OF 
TREATIES ( "VCLT "). 
9. The Panel has committed legal errors in Section 7.3.3.1 of the Panel Report. The Panel erred 
in its interpretation and application of the legal standard for Article 48, in so far as the Panel found 
that "it would only b e necessary for us to take a position  on this issue if it is the case that the 
substantive requirements of Article 48 are indeed satisfied ."14 In particular, the Panel erred because 
the order of analysis conducted by the Panel is not correct. The analysis does not support the 
"fundamental structure and logic "15 of the provision, as the analysis of the requirements of Article 
48 cannot be undertaken without deciding the applicability of the provision. Specifically, the analysis 
by the Panel is not in accordance with the standard set by the Appellate Body in China – Publications 
and Audiovisual Products  and US – Large Civil Aircraft (2nd complaint) .16 Further, in the event that 
Appellate Body disagrees with the Panel's findings, and as requested by India, reverses the findings 
of the Panel with respect to substantive requirements of Article 48 of the VCLT, there would be no 
finding by the Panel on the applicability of Article 48 in the present dispute.17 
10. India, therefore, requests the Appellate Body to reverse or set aside the Panel 's conclusions 
and the Panel 's legal interpretations contained in paragraph 7. 90 and complete the analysis 
regarding the applicability of Article 48 of the VCLT. Consequently, India also requests the Appellate 
 
9 India's Response  to Panel 's Question No. 39; India 's Second Written Submissions, Paras. 59 to 61.   
10 M.E. Villiger, Commentary  on the 1969 Vienna Convention on the Law of Treaties  (Martinus Nijhoff, 
2009) Pages. 445 -446 
11 Combined Tariff Schedule of India, Part I Section II, Rows 5427, 5526 to 5541, 5554 and 5808.  
12 India's First Written Submissions, Paras. 86 to 106, 119 to 130 ; India 's Second Written Submissions, 
Paras. 62 to 83.  
13 India's Second Written Submission, Paras. 93 to 95.  
14 Panel Report, Para. 7. 90. 
15 Appellate Body Report, US – Shrimp , Para. 119; Appellate Body Report, Canada – Autos , Para. 151.  
16 Appellate  Body Report, China – Publications and Audiovisual Products , Para. 213; Appellate Body 
Report, US – Large Civil Aircraft (2nd Complaint) , Para. 739.  
17 Appellate  Body Report, US – Large Civil Aircraft (2nd Complaint) , Para. 741.  WT/DS584/14  
 
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  Body to declare moot and of no legal effect th e Panel 's conclusions and findings contained in 
paragraph 7.21 6 and Section 8 , paragraphs 8.1 (a)(ii), 8.1(b)(i), (ii), (iii), (iv), (v), 8.2 and 8.3  of 
the Panel Report.  
III. APPLICATION OF ARTICLE 48(1) OF VCLT . 
A. The Panel erred in its analysis on the requireme nt of existence of India's 
assumption that the scope of its WTO tariff commitments would not be expanded 
beyond the scope of its ITA undertakings.  
11. The Panel has committed legal errors in Section 7.3.3.2.3.2 of the Panel Report. The Panel 
failed to make an objective assessment pursuant to Article 11 of the DSU, in so far as the Panel 
observed that India 's statements do not indicate that India assumed that the transposition of its 
Schedule would not expand the scope of its WTO tariff commitments beyond the sc ope of its ITA 
undertakings. Contrary to Panel 's reasoning, the statements are unequivocal evidence of India 's 
well-known position against the expansion of the commitments under the ITA.  
12. India, therefore, requests the Appellate Body to reverse or set aside  the Panel's conclusions 
contained in paragraphs 7. 110 to 7.114. 
B. The Panel erred in its analysis of the requirement of India's Assumption forming 
an essential basis of India's consent to be bound by its WTO Schedule.  
13. The Panel has committed legal errors in  Section 7.3.3.2.3.4 of the Panel Report. The Panel 
erred in its interpretation and application of Article 48(1) of the VCLT and/or failed to make an 
objective assessment pursuant to Article 11 of the DSU, in so far as the Panel found that India 's 
assumption (i.e. that the scope of its WTO tariff commitments would not be expanded beyond the 
scope of its ITA undertakings) did not constitute an essential basis for its consent to be bound by its 
HS2007 Schedule. In particular, the Panel erred because , inter alia :  
a) it failed to make an objective assessment of the matter before it in Paras. 7.13 3 and 
7.134 by failing to evaluate the correct meaning of India 's statements and observed 
that India was on notice that there was a difference of opinion among ITA  participants 
regarding certain classification issues. Contrary to Panel 's reasoning, the statements 
are unequivocal evidence of India 's well -known position against the expansion of the 
commitments under the ITA. The statements do not demonstrate that Indi a was aware 
that the transposition could have led to an expansion of tariff commitments beyond 
obligations under the ITA . 
b) it incorrectly interpreted and applied Article 48(1) of the VCLT in  Para. 7.136, in  finding 
that India should have made it obvious tha t it would not be willing to be bound by its 
Schedule if it was broader than the scope of its obligations in the ITA. Article 48(1) 
only requires that the mistakenly assumed fact or situation form an essential basis of 
consent to be bound by the treaty. Th is assessment needs to be undertaken from the 
perspective of the erring State.18 Since the requirement cannot be based on a 
subjective appreciation of the concerned State, assessment of the same must be 
tested against an objective  yardstick  – whether  a third State in a similar situation 
would also have refrained from giving its consent had it known the real fact or 
situation.19 There can be no doubt that no State would agree to a transposition which 
adds unnegotiated concessions to its schedule of concessio n, with no reciprocal 
benefit . 
c) the application by the Panel of the legal standard under Article 48(1)  in Para. 7.136 of 
its Report is inherently contradictory, and not based in law. India submitted that it 
had assumed that "the HS2007 transposition did not  expand India 's tariff 
commitments beyond India 's obligations under the ITA ",20 which was accepted by the 
Panel in Paragraph 7.11 8 of its Report. The Panel while assessing the condition of 
 
18 Rensmann, 'Article 48 ' in Oliver Dörr, Kirsten Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties (2nd edn., Springer, 2018), Page 892. 
19 Id. 
20 India's First Written Submission, Para. 11, Panel Report , Para. 7.10 7. WT/DS584/14  
 
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  whether this assumption formed an essential basis of the State 's consent to be bound 
by the treaty, noted in Paragraph 7.13 6 of its report that India should have made it 
obvious that it would not be willing to be bound by its Schedule if it 's broader than the 
scope of its obligations in the ITA.  If India had known of th e fact that the HS 2007 
transposition would make the Schedule broader than the static commitments under 
the ITA, it would not have agreed to certify  it. Essentially, while the Panel accepts 
India's assumption of error on one hand, the legal standard adopte d by the Panel 
expects India to have made this assumption obvious to the Member States before  the 
error even occurred.  
d) the application by the Panel of the legal standard under Article 48(1) is erroneous 
because Article 48(1) of the VCLT  does not require that "assumption " must be 
precisely communicated to the Parties to the treaty before such error relating to the 
said assumption has occurred . The Panel has inserted this additional criterion, not 
supported in text or the State practice.  
14. India, therefore, requests the Appellate Body to reverse or set aside the Panel's conclusions 
and the Panel's legal interpretations contained in paragraphs 7. 125 to 7.139. Consequently, India 
also requests the Appellate Body to declare moot and of no legal  effect the Panel's conclusions and 
findings contained in paragraphs 7.15 7 to 7.15 8, 7.21 5 to 7.21 6, 7.209, 7.261, 7.324, 7.338 and 
7.370, and Section 8 , paragraphs 8.1 (a)(ii), 8.1(b)(i), (ii), (iii), (iv), (v), 8.2 and 8.3  of the Panel 
Report.  
C. The Panel e rred in its analysis of requirement of India's Assumption being in error.  
15. The Panel has committed legal errors in Section 7.3.3.2.3.5 of the Panel Report. The Panel 
erred in its interpretation and application of Article 48(1) of the VCLT and/or failed to m ake an 
objective assessment pursuant to Article 11 of the DSU, in so far as the Panel found that India 's 
assumption (i.e. that the scope of its WTO tariff commitments would not be expanded beyond the 
scope of its ITA undertakings) was not in error. In part icular, the Panel erred because , inter alia :  
a) it erred in its interpretation of the relevance of the ITA in Para. 7.14 3. While the 
implication of the statement "[w]e recall that the ITA is not a covered agreement "21 is 
ambiguous, it seems that the Panel ha s implied that it cannot interpret the ITA for 
assessing whether India 's assumption is in error. The Panel has erred in making such 
an inference as the defence in a dispute does not need to be limited to a covered 
agreement. The limitations of Article 1.1 of the DSU are applicable only upon the 
"disputes pursuant to the consultation and dispute settlement provisions of the 
[covered agreements] ". India is relying on the ITA as a defence, and thus the Panel 
may not refuse to interpret the ITA for the sole rea son of it not being a covered 
Agreement.22  
b) the Panel erred in its interpretation of and/or failed to make an objective assessment 
of the transposition process in Para. 7.14 4 of its report. Whether the correlation tables 
were followed in the transposition process is immaterial to the question of India 's 
error. What is relevant is whether the complex technical transposition was flagged in 
accordance with the tran sposition proce dure.23 
c) the Panel erred in the legal standard applied by it in Paras. 7.144 -7.145 of its report. 
The Panel has stated  that since India has not argued that the transpositions conducted 
by the WTO Secretariat were inconsistent with the correlation tables com municated 
by the WCO. While the Panel does not form a definitive conclusion on the fourth 
element,24 the Panel's 'observations' seem to imply that the requirements for this 
element have not been met. The Panel seem to imply  that since the correlation table s 
have been followed, there is no error in the treaty. However, the WCO corelation tables 
do not ascribe bound rate of "Nil" to a particular heading or sub -heading whose 
definition itself has undergone a change. In addition, the fact or situation which is 
 
21 Panel Report , Para. 7.143.  
22 India's Response to Panel Question Nos. 2 and 16; India 's Opening Statement FSM, Para. 39.  
23 See Para. 18. 
24 Panel  Report, Para. 7.15 6. WT/DS584/14  
 
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  sufficiently proximate to the subject matter of the treaty25 need not be explicit in the 
treaty. An error in terms of Article 48 , is an assumed fact or situation, which is 
subsequently  found to have no existence.26 India's consent was based on the 
assumpti on that the HS2007 transposition would not expand India's obligations under 
India's WTO Schedule, beyond the ITA. This error is an assumed fact, which is 
subsequently found to have no existence and has been the basis of India 's consent .  
d) it has summarily d ismissed India 's nuanced arguments on error committed in the 
transposition of its 2007 Schedule. In Para. 7.14 5, the Panel has simply stated that 
the Panel "ha[s] already concluded above that India is mistaken with respect to the 
relationship between the I TA and its WTO schedule ". India in its submissions to the 
Panel, has stated multiple times that the relevance of the ITA is twofold: as a 
comparative benchmark for determination of the error in the 2007 Schedule, and as 
context to India 's WTO Schedule.27 By making reference to the earlier Section on 
"[w]hether the ITA limits or modifies the scope of the tariff commitments set forth in 
India's WTO Schedule ", the Panel has committed a grave error in conflating the two 
grounds. Further, the Panel has misconstr ued India 's argument on error, by assuming 
that India requests the Panel to interpret its Schedule differently. Rather, India has 
argued that a comparison of India 's 2007 Schedule with the ITA would make its error 
apparent. Accordingly, the erred tariff li nes should be rendered unbound.  
e) it did not use the ITA as a benchmark for determination of the error in transposition 
of its Schedule to HS2007. India 's submission in this regard is two -pronged: that the 
obligations under the ITA are static, and that the transposition cannot add new 
obligations for India. In wrongfully and summarily rejecting India 's submissions, the 
Panel has not made an analysis of various interpretative aids used by India for the 
interpretation of the ITA, which the Panel had rejected i n Section 7.3.2.3., on the 
ground that the interpretative aids relying on some  Members is being used for 
interpretation of treaty applicable to all Members. In the present section, the 
interpretative aids are unequivocally being used for the interpretation  of the ITA as a 
comparative benchmark, and hence cannot be rejected on the earlier ground.  
f) it erred in its interpretation and/or failed to make an objective assessment pursuant 
to Article 11 of the DSU, in Para 7.15 2 to 7.15 6 of its Report as the definiti on of 
"transmission apparatus " falling under tariff item/sub -heading 8525.20 under HS1996 
Explanatory Notes is not an inclusive but an exhaustive definition. The HS1996 
Explanatory Notes use the phrase "transmission of signals representing  speech, 
messages or still pictures " as opposed  to providing an indicative or inclusive definition 
of signals.  
g) it erred in its interpretation and/or failed to make an objective assessment pursuant 
to Article 11 of the DSU, in Para s. 7.153, 7.15 5 to 7.15 6 of its Report as the 
amendments in HS1996 Expla natory Notes occurred subsequent to the ITA -1 or 
WT/Let/181 and even if Panel 's interpretation is accepted, only those mobile phones 
which were tra nsmitting signals ( representing  speech, messages or still pictures) could 
be covered in tariff item/sub -headi ng 852 5.20.  
16. India, therefore, requests the Appellate Body to reverse or set aside th e Panel's conclusions 
and th ' Panel's legal interpretations contained in paragraphs 7.1 40 to 7.15 6. Consequently, India 
also requests the Appellate Body to declare moot an d of no legal effect th ' Panel's conclusions and 
findings contained in paragraphs 7.157 to 7.158, 7.215 to 7.216, 7.261, 7.324, 7.338 and 7.370, 
and Section 8, paragraphs 8.1(a)(ii), 8.1(b)(i), (ii), (iii), (iv), (v), 8.2 and 8.3 of the Panel Report.   
IV. APPLICATION OF ARTICLE 48(2) OF THE VCLT.  
17. The Panel has committed legal errors in Section 7.3.3.3.3.2 of the Panel Report. The Panel 
erred in its interpretation and application of Article 48(2) of the VCLT and/or failed to make an 
objective assessment purs uant to Article 11 of the DSU, in so far as the Panel found that India was 
 
25 Rensmann, 'Article 48' in Oliver Dörr, Kirsten Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties (2nd ed n., Springer, 2018), p. 884.  
26 Id., at 33.  
27 India's Opening Statement FSM, Para. 36, India 's Response to Panel Question No. 65.  WT/DS584/14  
 
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  put on notice of the possibility of an "error", as India defines its error, within the meaning of 
Article  48(2). In particular, the Panel erred because  
a) the legal standard formulate d and applied by it in Paras. 7.197 to 7.200 regarding 
India, being on notice of the possibility that such an error could occur, is unfounded 
and not supported by the text of Article 48(2) of VCLT. India interprets the legal 
standard under Article 48(2) of  VCLT, based on the decisions in the Case Concerning 
the Temple of Preah Vihear (Cambodia v. Thailand) , and Case Concerning Sovereignty 
over Certain Frontier Land (Belgium v. Netherlands) . According to India, the 
appropriate legal standard based on the ICJ  cases is that "for a state to be put on 
notice of a possible error, the circumstances should be such that no interested party 
should fail to notice the error or be under a misapprehension about it. "28  
Concerning the basis of the legal standard, the Panel  notes that neither of the cases 
cited by India pertain to the application of Article 48 of the Vienna Convention.29 This 
is one of the two central reasons for the Panel to disregard India 's suggested legal 
standard. However, the Panel ignores that the two ICJ cases referred above influenced 
the formation of Article 48 of the VCLT30 and are crucial to recognition of 'error' as a 
ground for invalidating consent.31 As such, the Panel's reasoni ng to disregard the ICJ 
cases is literal and based only on the fact that the cases pre -date formulation of the 
VCLT.  
Further, the interpretation s uggested by India is in consonance with the overall 
objective  of Article 48 of the VCLT. The drafters of the VCLT had expressly rejected 
the 'strict standard of care ' which requires a State to exercise due diligence in avoiding 
an error.32 The provision does not prescribe any duty of care on the State. In the same 
breath, the State cannot be deprived of relying o n the exception of error in consenting 
to a treaty simply because it was on notice of 'possibility ' that such an error could 
occur. This standard, as proposed by the Panel, is strict and all States are likelier to 
be on notice of 'possibility ' of an error.  
b) it proceeded to examine the contents of document G/MA/283 and the Secretariat's 
Transposition Note despite agreement between the parties that the WTO Secretariat 
did not flag the relevant tariff items.  
Specifically , the complainant in this and parallel pr oceeding s (WT/DS584  and 
WT/DS588 ) unequivocally agreed with India 's position that the contested sub -
headings were not flagged.33 As such, it is undisputed between Parties that all tariff 
lines that faced a change in scope of a concession were not clearly f lagged. Indeed, 
the Panel itself notes Japan's submission that "in the case the contested subheadings 
were not flagged ".34 As such, the Secretariat's Transposition Note and document 
G/MA/283 did not notify India by clearly flagging all structural changes t o India's 
Schedule as it 'held the pen' over the drafting of the HS2007 file for India35 and must 
have been irrelevant to the Panel's determination.  
Yet, the panel incorrectly examined otherwise irrelevant documents i.e. the 
Secretariat's Transposition Not e and the document G/MA/283 towards deciding that 
"India was on notice, prior to and during the transposition process, that the HS2007 
transposition process could have substantial implications for the classification 
differences among ITA participants regarding their ITA undertakings ".36  
 
28 Panel Report, Para. 7.19 9; India's Response to Panel question No. 60(a), Para. 11; See also India's 
Second Written Submission , Para. 30. 
29 Panel Report, Para. 7.19 9. 
30 India's Second Written Submission, Exhibit IND-76, at 49.  
31 Rensmann, 'Article 48' in Oliver Dörr, Kirsten Schmalenbach  (eds.), Vienna Convention on the Law of 
Treaties (2nd edn., Springer, 2018), p. 881, 7.  
32 Rensmann , 'Article 48' in Oliver Dörr, Kirsten Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties (2nd edn., Springer, 2018), p. 892.  
33 India's Response  to Panel Question No. 60; Panel Report, India – Tariff on ICT Goods (Chinese 
Taipei) , Para. 7.195 .  
34 Panel  Report , Para. 7.195.  
35 India's Second Written Submission, Exhibit IND-76, at 39.  
36 Panel  Report, Para. 7.196. WT/DS584/14  
 
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  c) it failed to make an objective assessment of the contents of the Secretariat's 
Transposition Note which was exhaustive in relation to entries that were sought to be 
'clearly flagged' for the exercise of tr ansposition , in Paras. 7.181 to 7.194 .  
The Panel's understanding that the Secretariat's Transposition Note was not 
exhaustive is incorrect. In believing and deciding so, the Panel ignored the clear terms 
of the Methodology Note which states "[i]n preparin g 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 tran sposition shall be clearly 
flagged "37 In the WTO Secretariat's own terms, it proposed to share an exhaustive list 
of all changes in the transposition process.  
The WTO Secretariat took upon itself the absolute onus of flagging any changes in the 
scope of co ncession of a tariff line. In this regard, the Panel need not have traversed 
beyond the WTO Secretariat's clear word that it shall clearly flag the changes for the 
exercise of transposition. Accordingly, the Panel holds an incorrect view in having 
decided that the onus with respect to reviewing all complex changes and to assess 
whether they considered that "the scope of a concession has been modified as a result 
of the transposition in a way that impairs the value of the concession " on the 
members.38 
Had the changes been clearly flagged, there would have been no possibility of an error. 
For instance, the WTO Secretariat in Attachment 3 of CTS HS2007 Transposition Note 
sent an email dated 8 November 2013 which described certain complex changes to 
India's Sc hedule,39 to which India even responded seeking clarifications and 
commenting on sub -heading 28.52.40 Under such circumstances, had the 
WTO Secretariat clearly flagged all changes for the exercise of transposition, India 
would potentially have been put to notice of error. Such is the case given India was 
diligent with reviewing and commenting upon the changes clearly flagged by the 
WTO Secretariat.  
Further, the dictionary meaning of clear is "unambiguous, easily understood ", 
"manifest, not confused or doubt ful"41, "easy to understand and not confusing ", 
"obvious and leaving no doubt at all ".42 The fact that Japan  and other complaining 
parties in  the parallel disputes ( WT/DS58 2 and WT/DS588 ) agree with India that the 
relevant entries were not flagged,43 is a clear indication of the fact that the entries 
were in fact, not clearly (obvious and leaving no doubt at all) flagged.   
18. The Panel has committed legal errors in Section 7.3.3.3.3.3 of the Panel Report. The Panel 
erred in its interpretation and applica tion of Article 48(2) of the VCLT and/or failed to make 
an objective assessment pursuant to Article 11 of the DSU, in so far as the Panel found that 
India's inaction in the circumstances of its transposition would seem to satisfy the standard 
of "contribut ing by its conduct" to the error. In particular, the Panel erred because  
a) it formulates and then conflates the legal standard for (i) India being on notice of a 
possible expansion of its WTO tariff commitments from its ITA undertakings; or (ii) 
India contr ibuting by its own conduct to the alleged expansion in the scope of its WTO 
tariff commitments from its ITA undertakings. In doing so, the Panel presumes that 
India had notice of the changes in tariff lines under the transposition process, such 
that India 'should have ' objected or made comments during the transposition process.  
 
37 A Procedure for the Introduction of Harmonized System 2007 changes to Schedules of Concessions 
using the Consolidated Tariff Schedules (CTS) database (18 December 2006) WT/L/673 Para. 4.  
38 Panel 's Report, Para. 7.19 5. 
39 Email Communication from IDB, WTO, Subject: "HS2007 transposition file: India " dated 8 November 
2013, Attachment 3 - CTS HS2007 Transposition Note XII - India, Pages 5 -6 (Exhibit IND -49). 
40 Email Communication from  Alya Belkhodja, Market Access Intelligence Section WTO, Senior Statistical 
Officer Subject: "RE: HS2007 transposition file . India " dated 12 February 2014 (Exhibit IND -50). 
41 Illustrated Oxford Dictionary  (1998), Pg. 156.  
42 Clear, Oxford  Learner 's Dictionary, 
https://www. oxfordlearnersdictionaries .com/definition/english/clear_1?q=clear.  
43 India's Response to Panel Question No. 60; Panel Report, India – Tariff on ICT Goods (Chinese 
Taipei) , Para. 7.195 . WT/DS584/14  
 
- 9 - 
 
  Specifically, the Panel in Para. 7.209 of its Report mentions that "India had both 
specific and general opportunities to highlight to Members and to the WTO Secretariat 
any concerns  that it may have had regarding the relationship between the ITA and its 
HS2007 Schedule ". However, the Panel disregards that India's prior conduct leading 
up to the error that it did not intend to commit to any obligations beyond those 
contained in the IT A-1 regarding ICT Products.44 Instead, the Panel imagines the 
several alleged opportunities that India may have had during the transposition process 
to highlight concerns regarding the process. Indeed, India highlighted its concerns 
vide email dated 12 Feb ruary 201445 regards the changes that were clearly flagged by 
the WTO Secretariat.  
The Panel's decision proceeds on the basis that India already had notice of expansion 
of tariff lines under its Schedule, and thereafter India contributed through its inacti on 
during the transposition process. As such, the legal standard to determine whether a 
member state contributed by its conduct cannot proceed on the basis that it already 
had notice of the error. These standards are different and the Panel made a legal er ror 
in presuming that (a) India already had notice of the error and (b) notice is, in fact, 
essential before contribution through conduct is determined.  
b) it incorrectly conflates the legal standard under Article 48(2) with the act of committing 
the error i tself.  
19. India, therefore, requests the Appellate Body to reverse or set aside the Panel's conclusions 
and the Panel's legal interpretations contained in paragraphs 7.136, 7.173 to 7.2 13, 7.261, 7.324, 
7.338 and 7.370 . . Consequently, India also requests th e Appellate Body to declare moot and of no 
legal effect the Panel's conclusions and findings contained in paragraphs 7. 214 to 7.216 and Section 
8, paragraphs 8.1(a) (i)(ii), 8.1(b)(i), (ii), (iii), (iv), (v)  , 8.2 and 8.3  of the Panel Report.  
20. Pursuant to R ule 20(2)(c) of the Working Procedures, the service address, telephone and 
facsimile numbers for India are:  
The Permanent Mission of India to the World Trade Organization  
Rue du Valais 9,  
1202  EVA  
Tel:022 906 86 86  
Telefax:022 738 45 48  
21. India is providing a copy of this Notice of Appeal directly to the complainants as well as to all 
the third parties.  
22. In the event of a cross -appeal by Japan , India reserves the right, in addressing any such 
cross-appeal, to disagree with any statement in the Panel Report made in the context of a matter 
on which India prevailed.  
23. There are currently no Appellate Body Members to constitute a division for servin g on appeal 
in this dispute. In these exceptional circumstances, and in the interests of fairness and orderly 
procedure in the conduct of the appeal, in accordance with Rule 16(1) and (2) of the Working 
Procedures for Appellate Review, India will await fur ther instructions from the division, when it may 
eventually be composed, or the Appellate Body, regarding any further steps to be taken by India in 
this appeal absent which, this document is deemed to also be India 's appellant submission.  
24. Filing of the Not ice of Appeal by India should be without prejudice to its right to re -file or 
amend them once the division becomes operational. India also reserves its right to supplement its 
Appellant Submission with additional arguments.  
 
__________  
 
44 India's First Written Submissions, Para. 58. 
45 Email Communication from Alya Belkhodja, Market Access Intelligence Section WTO, Senior Statistical 
Officer Subject: "RE: HS2007 transposition file . India " dated 12 February 2014  (Exhibit IND-50).