WT/DS558/R  
 
16 August  2023 
(23-5547) Page: 1/53 
  Original: English  
 
  
 
CHINA  – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FROM THE 
UNITED  STATES  
REPORT OF THE PANEL  
 
 WT/DS558/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  10 
1.1   Complaint by the United  States  ................................ ................................ ..................  10 
1.2   Panel establishment and composition  ................................ ................................ ..........  10 
1.3   Panel proceedings  ................................ ................................ ................................ ..... 10 
1.3.1   General  ................................ ................................ ................................ ................  10 
1.3.2   Requests for enhanced third -party rights  ................................ ................................ ... 11 
1.3.3   Request for a ruling under Article  6.2 of the DSU  ................................ ........................  12 
2   FACTUAL ASPECTS  ................................ ................................ ................................ ..... 12 
2.1   Factual background  ................................ ................................ ................................ ... 12 
2.2   Measure at issue  ................................ ................................ ................................ ...... 13 
2.3   Other additional duties  ................................ ................................ ..............................  14 
3   PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................  15 
4   ARGUMENTS OF THE PARTIES  ................................ ................................ ...................  15 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  15 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 15 
6.1   Compliance of the United  States' panel request with Article  6.2 of the DSU  .......................  16 
6.1.1   Paragraphs 7.17 -7.30 ................................ ................................ .............................  16 
6.2   Applicability of the relevant covered a greements  ................................ ...........................  16 
6.2.1   Paragraph 7.36 and footnote 131  ................................ ................................ .............  16 
6.2.2   Paragraph 7.77  ................................ ................................ ................................ ..... 16 
6.2.3   Paragraphs 7.90 -7.94 ................................ ................................ .............................  16 
7   FINDINGS  ................................ ................................ ................................ .................  17 
7.1   Compliance of the United  States' panel request with Article  6.2 of the DSU  .......................  17 
7.1.1   Main arguments of the parties  ................................ ................................ .................  17 
7.1.1.1    China  ................................ ................................ ................................ ................  17 
7.1.1.2    United  States  ................................ ................................ ................................ ..... 19 
7.1.1.3    Main arguments of the third parties  ................................ ................................ ....... 20 
7.1.1.3.1    European  Union  ................................ ................................ ...............................  20 
7.1.1.3.2    Russian  Federation  ................................ ................................ ...........................  20 
7.1.1.3.3    Türkiye  ................................ ................................ ................................ ...........  20 
7.1.1.3.4    Ukraine  ................................ ................................ ................................ ...........  21 
7.1.2   Analysis by the Panel  ................................ ................................ .............................  21 
7.1.2.1    Introduction  ................................ ................................ ................................ ....... 21 
7.1.2.2    Applicable legal standard  ................................ ................................ ......................  21 
7.1.2.3    Whether the United  States' claims under Articles I and II of the GATT  1994 fall  
outside the Panel's terms of reference ................................ ................................ .................  22 
7.1.3   Conclusion  ................................ ................................ ................................ ............  24 
7.2   Applicability of the relevant covered agreements  ................................ ...........................  24 
7.2.1   Main arguments of the parties  ................................ ................................ .................  24 WT/DS558/R  
 
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  7.2.1.1    United  States  ................................ ................................ ................................ ..... 24 
7.2.1.2    China  ................................ ................................ ................................ ................  26 
7.2.2   Analysis by the Panel  ................................ ................................ .............................  28 
7.2.2.1    Introduction  ................................ ................................ ................................ ....... 28 
7.2.2.2   The Panel's duty to assess the applicability of the relevant covered agreements  ...........  28 
7.2.2.3    Order of analysis  ................................ ................................ ................................ . 29 
7.2.2.4    Interpretation of Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a)  
of the GATT  1994................................ ................................ ................................ .............  30 
7.2.2.5    Whether Art icle 8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 apply to China's additional duties measure  ................................ ..........................  34 
7.2.2.5.1    Interpretation of Article  11.1(c) of the Agreement on Safeguards  ............................  35 
7.2.2.5.2    Whether the United  States' Section  232 measures are excluded from the scope  
of application of the Agreement on Safeguards  ................................ ................................ ..... 39 
7.2.3   Conclusion  ................................ ................................ ................................ ............  44 
7.3   United  States ' claim under Article  I:1 of the GATT  1994 ................................ .................  45 
7.3.1   Main arguments of the parties  ................................ ................................ .................  45 
7.3.1.1    United  States  ................................ ................................ ................................ ..... 45 
7.3.1.2    China  ................................ ................................ ................................ ................  46 
7.3.2   Analysis by the Panel  ................................ ................................ .............................  46 
7.3.2.1    The applicable legal standard  ................................ ................................ ................  46 
7.3.2.2    Whether the additional duties measure is inconsistent with Article  I:1 of the  
GATT  1994 ................................ ................................ ................................ .....................  47 
7.3.3   Conclusion  ................................ ................................ ................................ ............  48 
7.4   United  States' claim under Articles II:1(a) and II:1(b) of the GATT  1994 ..........................  48 
7.4.1   Main arguments of the parties  ................................ ................................ .................  48 
7.4.1.1    United  States  ................................ ................................ ................................ ..... 48 
7.4.1.2    China  ................................ ................................ ................................ ................  49 
7.4.2   Analysis by the Panel  ................................ ................................ .............................  49 
7.4.2.1    The applicable legal standard  ................................ ................................ ................  50 
7.4.2.2    Whether China's additional duties measure is inconsistent with Article  II:1(b) of  
the GATT  1994 ................................ ................................ ................................ ................  51 
7.4.2.3    Whether the additional duties measure is inconsistent with Article  II:1(a) of the 
GATT  1994 ................................ ................................ ................................ .....................  52 
7.4.3   Conclusion  ................................ ................................ ................................ ............  52 
8   CONCLUSIONS AND RECOMMENDATION  ................................ ................................ ... 52 
 
 WT/DS558/R  
 
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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 Substantive Meetings with Remote 
Participation  11 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the United  States  15 
Annex  B-2 Integrated executive summary of the arguments of China  35 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of the European  Union  48 
Annex  C-2 Integrated executive summary of the arguments of Japan  53 
Annex  C-3 Integrated executive summary of the arguments of New  Zealand  56 
Annex  C-4 Integrated executive summary of the arguments of Norway  57 
Annex  C-5 Integrated executive summary of the arguments of the Russian  Federation  61 
Annex  C-6 Integrated executive summary of the arguments of Switzerland  65 
Annex  C-7 Integrated executive summary of the arguments of Türkiye  69 
Annex  C-8 Integrated executive summary of the arguments of Ukraine  75 
ANNEX D 
COMMUNICATIONS BY THE PANEL  
Contents  Page  
Annex  D-1 Communication by the Panel on requests for enhanced third -party rights  79 
Annex  D-2 Communication by the Panel on China's request for a ruling under Article  6.2 of 
the DSU  81 
 
 
  WT/DS558/R  
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Financial Services  Appellate  Body Report, Argentina – Measures Relating to Trade in Goods 
and Services , WT/DS453/AB/ R and Add.1,  adopted 9  May 2016, DSR 
2016:II, p. 431  
Argentina – Textiles and 
Apparel  Appellate  Body Report, Argentina – Measures Affecting Imports of 
Footwear, Textiles, Apparel and Other Items , WT/DS56/AB/R  and Corr.1, 
adopted 22  April 1998, DSR 1998:III, p. 1003  
Australia – Apples  Appellate  Body Report, Australia – Measures Affecting the Importation of 
Apples from New  Zealand , WT/DS367/AB/R , adopted 17  December  2010, 
DSR 2010:V, p. 2175  
Brazil – Taxation  Appellate  Body Reports, Brazil – Certain Measures Concerning Taxation 
and Charges , WT/DS472/AB/R  and Add.1 / WT/DS497/AB/R  and Add.1, 
adopted 11  January  2019, DSR 2019:I, p. 7  
Canada – Autos  Appellate  Body Report, Canada – Certain Measures Affecting the 
Automotive Industry , WT/DS139/AB/R , WT/DS142/AB/R , adopted 
19 June 2000, DSR 2000:VI, p. 2985  
Canada – Autos  Panel  Report , Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/R , WT/DS142/R , adopted 19  June 2000, as modified 
by Appellate  Body Report WT/D S139/AB/R, WT/DS142/AB/R, DSR 
2000:VII, p. 3043  
Chile – Price Band System  Appellate  Body Report, Chile – Price Band System and Safeguard 
Measures Relating to Certain Agricultural Products , WT/DS207/AB/R , 
adopted 23  October  2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 
2006:XII, p. 5473)  
China – Auto Parts  Appellate  Body Reports, China – Measures Affecting Imports of 
Automobile Parts , WT/DS339/AB/R  / WT/DS340/AB/R  / WT/DS342/AB/R , 
adopted 12  January  2009, DSR 2009:I, p. 3  
China – Auto Parts  Panel  Report s, China – Measures Affecting Imports of Automobile Parts , 
WT/DS3 39/R, Add.1 and Add.2 / WT/DS340/R , Add.1 and Add.2 / 
WT/DS342/R , Add.1 and Add.2, adopted 12  January  2009, upheld 
(WT/DS339/R) and as modified (WT/DS340/R / WT/DS342/R) by 
Appellate  Body Reports WT/DS339/AB/R / WT/DS340/AB/R / 
WT/DS342/AB/R, DSR 2009:I, p. 119  
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Appellate  Body Reports, China – Measures Imposing Anti -Dumping Duties 
on High -Performance Stainless Steel Seamless Tubes ("HP -SSST") from 
Japan / China – Measures Imposing Anti -Dumping Duties on High -
Performance Stainless Steel Seamless Tubes ("HP-SSST") from the 
European  Union , WT/DS454/AB/R  and Add.1 / WT/DS460/AB/R  and 
Add.1, adopted 28  October  2015, DSR 2015:IX, p. 4573  
China – Publications and 
Audiovisual Products  Panel  Report , China – Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertainment Products , 
WT/DS363/R  and Corr.1, adopted 19  January  2010, as modified by 
Appellate  Body Report WT/DS363/AB/R, DSR 2010:II, p. 261  
China – TRQs Panel  Report , China – Tariff Rate Quota s for Certain Agricultural 
Products , WT/DS517/R  and Add.1, adopted 28  May 2019 
Colombia – Frozen Fries 
(Article  25) Award of the Arbitrators, Colombia – Anti-Dumping Duties on Frozen 
Fries from Belgium, Germany and the Netherlands – Arbitration under 
Article  25 of the DSU , WT/DS591/ARB25  and Add.1, 21  December  2022 
Colombia – Ports of Entry  Panel  Report , Colombia – Indicative Prices and Restrictions on Ports of 
Entry , WT/DS366/R  and Corr.1, adopted 20  May 2009, DSR 2009:VI, p. 
2535 
Colombia – Textiles  Appellate  Body Report, Colombia – Measures Relating to the Importation 
of Textiles, Apparel and Footwear , WT/DS461/AB/R  and Add.1, adopted 
22 June 2016, DSR 2016:III, p. 1131  
Dominican  Republic  – Import 
and Sale of Ci garettes  Panel  Report , Dominican  Republic  – Measures Affecting the Importation 
and Internal Sale of Cigarettes , WT/DS302/R , adopted 19  May 2005, as 
modified by Appellate  Body Report WT/DS302/AB/R, DSR 2005:XV, 
p. 7425 
Dominican  Republic  – 
Safeguard Measures  Panel  Report , Dominican  Republic  – Safeguard Measures on Imports of 
Polypropylene Bags and Tubular Fabric , WT/DS415/R , WT/DS416/R , 
WT/DS417/R , WT/DS418/R , and Add.1, adopted 22  February  2012, 
DSR 2012:XIII, p. 6775  
EC – Bananas III  Appellate  Body Report, European  Communities – Regime for the 
Importation, Sale and Distribution of Bananas , WT/DS27/AB/R , adopted 
25 September  1997, DSR 1997:II, p. 591  WT/DS558/R  
 
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  Short Title  Full Case Title and Citation  
EC – Chicken Cuts  Panel  Report s, European  Communities – Customs Classification of Frozen 
Boneless Chicken Cuts , WT/DS269/R  (Brazil)  / WT/DS286/R  (Thailand) , 
adopted 27  September  2005, as modified b y Appellate  Body Report 
WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XIX , p. 9295 / DSR 
2005:XX, p. 9721 
EC – Seal Products  Appellate  Body Reports, European  Communities – Measures Prohibiting 
the Importation and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18  June 2014, DSR 2014:I, p.  7 
EC – Selected Customs Matters  Appellate  Body Report, European  Communities – Selected Customs 
Matters , WT/DS315/AB/R , adopted 11  December  2006, DSR 2006:IX, 
p. 3791 
EC – Tariff Preferences  Appellate  Body Report, European  Communities – Conditions for the 
Granting of Tariff Preferences to Developing Countries , WT/DS246/AB/R , 
adopted 20  April 2004, DSR 2004:III, p.  925 
EU – PET (Pakistan)  Panel  Report , European  Union – Countervailing Measures on Certain 
Polyethylene Terephthalate  from Pakistan , WT/DS486/R , Add.1 and 
Corr.1, adopted 28  May 2018, as modified by Appellate  Body Report 
WT/DS486/AB/R, DSR 2018:IV, p.  1739 
India – Additional Import Duties  Appellate  Body Report, India – Additional and Extra -Additional Duties on 
Imports from the United  States , WT/DS360/AB/R , adopted 
17 November  2008, DSR 2008:XX, p.  8223 
India – Patents (US)  Appellate  Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R , adopted 
16 January  1998, DSR 1998:I, p.  9 
Indonesia – Autos  Panel  Report , Indonesia – Certain Measures Affecting the Automobile 
Industry , WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1 and 
Corr.2, adopted 23  July 1998, and Corr.3 and Corr.4, DSR 1998:VI, 
p. 2201 
Indonesia – Iron or Steel 
Products  Appellate  Body Report, Indonesia – Safeguard on Certain Iron or Steel 
Products , WT/DS490/AB/R , WT/DS496/AB/R , and Add.1, adopted 
27 August  2018, DSR 2018:VII, p.  3393 
Korea – Dairy  Appellate  Body Report, Korea – Definitive Safeguard Measure on Imports 
of Certain Dairy Products , WT/DS98/AB/R , adopted 12  January  2000, 
DSR 2000:I, p.  3 
Korea – Pneumatic Valves 
(Japan)  Appellate  Body Report, Korea – Anti-Dumping Duties on Pneumatic 
Valves from Japan , WT/DS504/AB/R  and Add.1, adopted 
30 September  2019, DSR 2019:XI, p. 5637  
Saudi Arabia – IPRs Panel  Report , Saudi Arabia – Measures Concerning the Protection of 
Intellectual Property Rights , WT/DS567/R  and Add.1, circulated to WTO 
Members on 16 June 2020, dispute terminated while appeal  pending  
Spain – Unroasted Coffee  GATT Panel  Report , Spain – Tariff Treatment of Unroasted Coffee , 
L/5135, adopted 11  June 1981, BISD  28S/102  
Thailand – Cigarettes 
(Philippines) (Article  21.5 – 
Philippines)  Panel  Report , Thailand – Customs and Fiscal Measures on Cigarettes from 
the Philippines  – Recourse to Article  21.5 of the DSU by the Philippines , 
WT/DS371/RW  and Add.1, circulated to WTO M embers 
12 November  2018, appealed 9  January  2019 
Thailand – H-Beams  Appellate  Body Report, Thailand – Anti-Dumping Duties on Angles, 
Shapes and Sections of Iron or Non -Alloy Steel and H -Beams from 
Poland , WT/DS122/AB/R , adopted 5  April 2001, DSR 2001:VII, p.  2701 
US – Line Pipe  Appellate  Body Report, United  States  – Definitive Safeguard Measures on 
Imports of Circular Welded Carbon Quality Line Pipe from Korea , 
WT/DS202/AB/R , adopted 8  March  2002, DSR 2 002:IV, p.  1403 
US – Non-Rubber Footwear  GATT Panel  Report , United  States  – Countervailing Duties on Non -Rubber 
Footwear from Brazil , SCM/94, adopted 13  June 1995, BISD  42S/208  
US – Oil Country Tubular Goods 
Sunset Reviews  Appellate  Body Report, United  States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina , 
WT/DS268/AB/R , adopted 17  December  2004, DSR 2004:VII, p.  3257 
US – Poultry (China)  Panel  Report , United  States  – Certain Measures Affecting Imports of 
Poultry from China , WT/DS392/R , adopted 25  October  2010, DSR 
2010:V, p.  1909 
US – Steel and Aluminium 
Products (China)  Panel  Report , United  States  – Certain Measures on Steel and Aluminium 
Products , WT/DS544/R , Add.1 and Suppl.1, circulated to WTO Members 
9 December  2022, appealed 26  January  2023 
US – Steel Safeguards  Appellate  Body Report, United  States  – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R , WT/DS249/AB/R , 
WT/DS251/AB/R , WT/DS252/AB/R , WT/DS253/AB/R , WT/DS254/AB/R , 
WT/DS258/AB/R , WT/DS259/AB/R , adopted 10  December  2003, DSR 
2003:VII, p.  3117 
 WT/DS558/R  
 
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  EXHIBITS REFERRED TO IN THIS REPORT  
Panel 
Exhibit  Title Short title  
(where applicable ) 
USA-1 Notice on Suspension of Duty Concession Obligations on Some 
Imported Products Originating from the United  States (State 
Council Customs Tariff Commission  2018 Shui Wei Hui No.  13, 
issued 1  April 2018)  Implementation Notice  
USA-2 Notice on Publicly Soliciting Opinions on US Imported Steel and 
Aluminum Products 232 Measures and Chinese 
Countermeasures  (Ministry of Commerce Trade Remedy  and 
Investigation Bureau , issued 23  March  2018)  Opinions Notice  
USA-9 Announcement on Imposing Tariffs on S ome Goods Originating 
in the United  States  (Ministry of Commerce  2018 Public Notice 
No. 55, issued  16 June 2018)   
USA-10 Announcement on Imposing Tariff on Some Goods Originating 
in the United  States  (Ministry of Commerce 2018 Public Notice 
No. 64, issued  8 August  2018)   
USA-12 Announcement on Levying Tariffs on Goods and Commodity 
Imports from the United  States  (Ministry of Commerce 2018 
Public Notice No.  69, issued 18 September  2018)   
USA-14 United  States' Table Presenting Tariff Lines and Bound Rates 
Affected By the Chinese Measure (2018)   
USA-15 United  States' Table Presenting Tariff Lines and Bound Rates 
Affected By the Chinese Measure (2019)   
USA-16 United  States' Table Identifying Discr epancies Between China 's 
Opinions Notice and Implementation Notice   
USA-17 United  States' Table Presenting Tariff Lines and Bound Rates 
Affected By the Chinese Measure (2018) Without Other 
Additional Duties   
USA-18 United  States' Table Presenting Tariff Lines and Bound Rates 
Affected By the Chinese Measure (2019) Without Other 
Additional Duties   
USA-20, 
CHN-23 Trade Expansion Act, Public Law No.  87–794, 76 Stat. 877 
(1962), United  States  Code, Title 19, Section  1862 Section  232 
USA-25 United  States  Code of Federal Regulations, Title 15, Part 705   
USA-30, 
CHN-8 United  States  Department of Commerce, Bureau of Industry 
and Security, Office of Technology Evaluation, The Effect of 
Imports of  Steel on the National Security, An Investigation 
Conducted under Section  232 of the Trade Expansion Act of 
1962, as Amended  (11 January  2018)  Section  232 investigation 
into steel imports  
USA-31, 
CHN-9 United  States  Department of Commerce, Bureau of Industry 
and Security, Office of Technology Evaluation, The Effect of 
Imports of Aluminum on the National Security, An Investigation 
Conducted under Section  232 of the Trade Expansion Act of 
1962, as Amended  (17 January  2018) Section  232 investigation 
into aluminium imports  
USA-32, 
CHN-5 Proclamation 9705 of 8  March  2018, Adjusting Imports of Steel 
Into the United  States , United  States  Federal Register, Vol. 83, 
No. 51 (15  March  2018), p. 11625  Proclamation 9705  
USA-33, 
CHN-6 Proclamation 9704 of 8  March  2018, Adjusting Imports of 
Aluminum Into the United  States , United  States  Federal 
Register, Vol. 83, No.  51 (15  March  2018), p. 11619  Proclamation 9704  
USA-34, 
CHN-10 Proclamation 9711 of 22  March  2018, Adjusting Imports  of 
Steel Into the United  States , United  States  Federal Register, 
Vol. 83, No.  60 (28  March  2018), p. 13361  Proclamation 9711  
USA-35 Proclamation 9710 of 22  March  2018, Adjusting Imports of 
Aluminum Into the United  States , United  States  Federal 
Register, Vol. 83, No.  60 (28  March  2018), p. 13355   Proclamation 9710  
USA-36, 
CHN-11 Proclamation 9740 of 30  April 2018, Adjusting Imports of Steel 
Into the United  States , United  States  Federal Register, Vol. 83, 
No. 88 (7  May 2018), p. 20683  Proclamation 9740  
USA-37 Proclamation 9739 of 30  April 2018, Adjusting Imports of 
Aluminum Into the United  States , United  States  Federal 
Register, Vol. 83, No.  88 (7  May 2018), p. 20677  Proclamatio n 9739  
USA-38, 
CHN-12 Proclamation 9759 of 31  May 2018, Adjusting Imports of Steel 
Into the United  States , United  States  Federal Register, Vol. 83, 
No. 108 (5  June 2018), p. 25857  Proclamation 9759  WT/DS558/R  
 
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  Panel 
Exhibit  Title Short title  
(where applicable ) 
USA-39, 
CHN-13 Proclamation 9758 of 31  May 2018, Adjusting Imports of 
Aluminum Into the United  States , United  States  Federal 
Register, Vol. 83, No.  108 (5  June 2018), p. 25849  Proclamation 9758  
USA-40 Proclamation 9772 of 10  August  2018, Adjusting Imports of 
Steel Into the United  States , United  States  Federal Register, 
Vol. 83, No.  158 (15  August  2018), p. 40429  Proclamation 9772  
USA-41 Proclamation 9777 of 29  August  2018, Adjusting Imports of 
Steel Into the United  States , United  States  Federal Register, 
Vol. 83, No.  171 (4 September  2018), p. 45025  Proclamation 9777  
USA-42 Proclamation 9776 of 29  August  2018, Adjusting Imports of 
Aluminum Into the United  States , United  States  Federal 
Register, Vol. 83, No.  171 (4  September  2018), p. 45019  Proclamation 9776  
USA-44 Submissions of Exclusion Requests and Objections to Submitted 
Requests for Steel and Aluminum, United  States  Federal 
Register, Vol. 83, No.  176 (11  September  2018), p. 46026  BIS rule of 
11 September  2018 
CHN-1 Council for Trade in Goods and Committ ee on Safeguards , 
Immediate notification under  Article  12.5 of the Agreement on 
Safeguards to the Council for Trade in Goods of proposed 
suspension of concessions and other obligations referred  to in 
Article  8.2 of the Agreement on Safeguards, G/L/1218 -
G/SG/N/12/CHN/1   
CHN-2 Committee on Safeguards, Imposition of a safeguard measure 
by the United  States  on imports of steel  – Request for 
consultations under Article 12.3 of the Agreement on 
Safeguards, G/SG/162   
CHN-3 Committee on Safeguards, Imposition of a safeguard measure 
by the United  States  on imports of aluminum – Request for 
consultations under Article 12.3 of the Agreement on 
Safeguards, G/SG/161   
CHN-4 United  States ' communication  (4 April 2018)  
CHN-14 Memorandum from the United  States  Secretary of Defense, 
Memorandum for Secretary of Commerce responding to the 
Steel and Aluminum Policy Recommendations  United  States  Secretary of 
Defense Memorandum  
 
 WT/DS558/R  
 
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  ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
MFN Most-Favoured Nation  
GATT  1994 General Agreement on Tariffs and Trade 1994  
MOFCOM  Ministry of Commerce of China  
WTO World Trade Organization  
WTO Agreement  Marrakesh Agreement Establishing the World Trade Organization  
 WT/DS558/R  
 
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  1  INTRODUCTION  
1.1  Complaint by the United  States  
1.1.  On 16  July 2018, the United  States requested consultations with China pursuant to Article  4 of 
the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and 
Article  XXIII of the General Agreement on Tariffs and Trade 1994 (GATT  1994) concerning China's 
imposition of additional duties on certain products originating in the Unit ed States.1 
1.2.  Consultations were held on 29  August  2018 but failed to resolve the dispute.  
1.2  Panel establishment and composition  
1.3.  On 18  October  2018, the United  States requested the establishment of a panel pursuant to 
Article  6 of the DSU with standard terms of reference.2 At its meeting on 21  November  2018, the 
Dispute Settlement Body (DSB) established a panel pursuant to the request of the United  States in 
document WT/DS 558/2 , in accordance with Article  6 of the DSU.3 
1.4.  The Panel's terms of reference are the  following:  
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 by the United  States in 
document WT/DS558/2 and to make such findings as will assist the DSB in ma king the 
recommendations or in giving the rulings provided for in those agreements.4 
1.5.  On 7 January  2019, the United  States requested the Director -General to determine the 
composition of the panel, pursuant to Article  8.7 of the DSU . On 25  January  2019, the  
Director -General accordingly composed the Panel as follows:  
Chairperson:  Mr William  Ehlers  
 
Members:   Mr Cristian  Espinosa  Cañizares  
   Ms Mónica  Rolong  
 
1.6.  Brazil , Canada , Egypt , the European  Union,  Guatemala , India, Indonesia , Japan , Kazakhstan , 
Mexico , New Zealand , Norway , the Russian  Federation , Singapore , South  Africa , Switzerland , 
Chinese  Taipei , Thailand , Türkiye5, Ukraine , and the Bolivarian Republic of  Venezuela  reserved their 
rights to participate in the Panel proceedings as third parties.6 
1.3  Panel proceedings  
1.3.1   General  
1.7.  The Panel held an organizational meeting with the parties on 12  March  2019.  
1.8.  After consulting with the parties, the Panel adopted its Working Procedures7 and partial 
timetable on 5  April 2019. The Panel revised its time table several times throughout the proceedings 
in consultation with the parties.8 
 
1 See Request for consultations by the United  States, WT/DS558/1 (United  States' consultations 
request), p. 1.  
2 Request for the establishment of a panel by the United  States, WT/DS558/2 (United  States' panel 
request), p. 2.  
3 See DSB, Minutes of the meetin g held on 21  November  2018, WT/DSB/M/421, para.  13.4.  
4 Constitution note of the Panel, WT/DS558/3.  
5 Formerly "Turkey" (see WT/INF/43/Rev.23).  
6 Constitution note of the Panel, WT/DS558/3.  
7 See Working Procedures of the Panel  (Annex  A-1). 
8 The timetable  was revised on 11 June 2019, 17  June 2019, 7  February  2020, 16  November  2020, 
23 November 2020, 18  February  2022, 28  April 2022, 3 May 2022, 23  November  2022, and 25  May 2023.  WT/DS558/R  
 
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  1.9.  The Panel held a first substantive meeting with the parties on 19 and 20  September  2019. A 
session with the third parties took place on 19  September  2019. Prior to the first  substantive 
meeting, on 9  September  2019, the Panel sent the parties and the third parties a list of questions 
to be answered orally at the meeting. Following the meeting, on 29  November  2019, the Panel sent 
written questions to the parties and the third parties.  
1.10.  The second substantive meeting was originally scheduled to take place on 25-26 June 2020. 
However, due to the COVID -19 pandemic and related restrictions on travel and in -person meetings, 
it was not possible to physically meet with the parties at t he WTO premises on the scheduled dates. 
In consultation with the parties, the Panel postponed the second substantive meeting several times 
to a date to be determined. Meanwhile, on 16  November  2020, the Panel sent the parties a list of 
questions to which i t sought responses in writing.  
1.11.  On 17  December  2021, after further consultations with the parties, the Panel communicated 
its decision that, taking into account the delays already occasioned by COVID -19, as well as the 
uncertainty about the evolution of the  pandemic, scheduling a second substantive meeting in virtual 
format would strike an appropriate balance between the efficient conduct of the proceedings and the 
parties' due process rights.9 
1.12.  On 8 February  2022, after consultations with the parties, the P anel scheduled the second 
substantive meeting through virtual means for 15 and 16  March  2022, and issued draft Additional 
Working Procedures Concerning Substantive Meetings with Remote Participation to the parties. On 
18 February  2022, the Panel adopted it s Additional Working Procedures Concerning Substantive 
Meetings with Remote Participation.10 
1.13.  The Panel held its second substantive meeting with the parties virtually on 15 and 
16 March  2022 via the Cisco Webex platform. Prior to the second substantive meet ing, on 
8 March  2022, the Panel sent the parties a list of questions to be answered orally at the meeting.  
1.14.  On 28  April 2022, the Panel sent the parties a list of questions to which it sought answers in 
writing.  
1.15.  On 15 December  2022, the Panel issued the  draft descriptive part of its Report to the parties. 
On the same day, and following the circulation of the panel report in US – Steel and Aluminium 
Products (China) , the Panel sought the parties' views on the findings in that report concerning the 
applicabili ty of the WTO safeguards regime to the United  States' Section  232 measures, and on the 
relevance of those findings for this Panel's analysis.  
1.16.  The Panel issued its Interim Report to the parties on 25 May 2023. The Panel issued its Final 
Report to the partie s on 1 August  2023. 
1.3.2   Requests for enhanced third -party rights  
1.17.  The Panel received communications from Canada11, Türkiye12, the Russian  Federation13, the 
European  Union14, and Mexico15, asking that the Panel exercise its discretion under Article  12.1 of 
the DSU to grant all third parties additional rights to those provided under Article  10 of the DSU. 
The requesting third parties asked the Panel to allow all third parties: (i)  to receiv e copies of all of 
the parties' written submissions, their oral statements, rebuttals, and answers to questions from the 
Panel and each other, through all the stages of the proceedings; (ii)  to be present for the entirety 
of all substantive meetings of the  Panel with the parties; (iii)  to review the draft summary of their 
own arguments in the descriptive part of the Panel  Report ; and (iv)  to make a brief oral statement 
during the second substantive meeting.  
 
9 Panel's communication to the parties (17  December  2021).  
10 Annex  A-2. 
11 Canada' communication (15  March  2019).  
12 Türkiye's communication (18  March  2019).  
13 Russian  Federation 's communication (19  March  2019).  
14 European  Union's communication (20  March  2019).  
15 Mexico's communication (22  March  2019).  WT/DS558/R  
 
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  1.18.  The Panel sought the parties' views on the request s for enhanced third -party rights. China 
supported the requests, noting that the measure challenged by the United  States in this dispute was 
similar to those challenged by the same complainant in panel proceedings where the requesting 
third parties were pa rticipating as respondents. According to China, the enhanced rights requested 
by the third parties would not impose any undue additional burden on the parties to the dispute.16 
The United  States opposed the requests, arguing that they were not well founded  under the DSU, 
and that the granting of additional rights to third parties would result in a corresponding imposition 
of additional obligations on the parties, without the consent of one of them.17 
1.19.  On 5 April 2019, the Panel sent a communication to the pa rties and the third parties in relation 
to the requests for enhanced third -party rights. The Panel recalled that it had discretion to grant 
such requests but declined to do so in the circumstances of this case. In explaining its decision, the 
Panel noted, inter alia , the lack of agreement between the parties and the due process implications 
of granting enhanced third -party rights. The Panel further noted that the third parties requesting 
enhanced rights would have an opportunity to fully express their views  on the relevant legal issues 
as third parties in this dispute in accordance with Article  10 of the DSU, and also as respondents in 
separate panel proceedings concerning the United  States' complaints against their own measures.  
1.20.  The Panel's communication is  annexed to this Report.18 
1.3.3   Request for a ruling under Article  6.2 of the DSU  
1.21.  In its first written submission, China requested the Panel to make a ruling, on a preliminary 
basis or otherwise, that the claims of the United  States were not properly before the  Panel as the 
United  States' panel request failed to provide a brief summary of the legal basis of the complaint 
sufficient to present the problem clearly.19 On 25  June 2019, the United  States submitted its 
response, in which it argued that China's request  was without merit because the panel request met 
the requirements of Article  6.2 of the DSU.20 On 1 July 2019, the Panel received comments on 
China's request for a preliminary ruling and the United  States' response to that request from 
the European  Union, the Russian  Federation, and Türkiye.  
1.22.  On 12  March  2020, the Panel sent a communication to the parties and the third parties in 
relation to China's request for a ruling under Article  6.2 of the DSU. The Panel noted that the request 
touched upon "issues that are closely related to the substantive questions raised by the parties in 
this dispute". In the Panel's view, a preliminary ruling on the issue raised by China might require it 
to adjudicate the merits of the parties' arguments, including with regard to th e applicability of the 
relevant covered agreements to the measure at issue. The Panel thus concluded that a decision on 
a preliminary basis would be premature and, accordingly, stated that it would address the issue 
raised in China's request in its Report.  
1.23.  The Panel's communication is annexed to this Report.21 The Panel addresses China's request 
under Article  6.2 of the DSU  in section 7 of this Report.  
2  FACTUAL ASPECTS  
2.1.  This section provides an overview of the factual background to the case, describes the mea sure 
at issue, and details other factual developments discussed by the parties.  
2.1  Factual background  
2.2.  On 23  March  2018, the Ministry of Commerce of China (MOFCOM) issued the Ministry of 
Commerce Notice on Publicly Soliciting Opinions on US Imported Steel and Aluminum Products 
232 Measures and Chinese Countermeasures (Opinions Notice).22 The Opinions Notice recalled that 
on 8 March 2018, the United  States  had announced tariffs on imports of steel and aluminium 
 
16 China's communications (20, 21, and 26  March  2019).  
17 United  States' communications (20, 21, 22, and 26  March  2019).  
18 Communication by the Panel on requests for e nhanced third -party rights  (Annex  D-1). 
19 China's first written submission, para.  62. 
20 United  States' response to China's request for a preliminary ruling, paras.  5-13. 
21 Communication by the Panel on China's request for a ruling under Article  6.2 of the DSU (Annex  D-2). 
22 Opinions Notice, (Exhibit USA -2), p. 1.  WT/DS558/R  
 
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  products ( Section  232 duties). In the Opinions Notice, MOFCOM expressed the view that the 
Section  232 duties constitute "a safeguard measure", and indicated China's intention to "suspend 
the implementation of substantive e qual concessions and other obligations to the United  States ". 
Through the Opinions Notice, MOFCOM also sought public comments on the import tariffs  China  
proposed  to apply  on certain products originating in the  United  States . 
2.3.  On 26  March  2018, China notifi ed the WTO Committee on Safeguards of its formal request for 
consultations with the United  States  under Articles 12.3 and 8.1 of the Agreement on Safeguards 
and Article  XIX:2 of the GATT  1994. In its notification s, China indicated that it was "exercising i ts 
right to trade compensation consultations" .23 
2.4.  On 29  March  2018, China notified the WTO Council for Trade in Goods of its proposed 
suspension of concessions and other obligations with respect to imports from the United  States  
under Article  XIX:3 of the GATT  1994 and Article  8.2 of the Agreement on Safeguards. According to 
this notification, the  proposed suspension would consist o f an increase in tariffs on selected products 
originating in the United  States , "based on the part of the measures of the United  States  which were 
not taken as a result of an absolute incre ase for the [years 2014 -2016]".24 
2.5.  On 1  April 2018, MOFCOM issued the State Council Customs Tariff Commission Notice on 
Suspension of Duty Concession Obligations on Some Imported Products Originating from the 
United  States  (Implementation Notice)  "suspend [ing] tariff concession obligations ", as of 
2 April 2018,  for 128 impor ted products originating from the United  States . The Implementation 
Notice indicated an increase in  the tariff rate for each of these 128 products, to be applied in addition 
to the "current applied base tariff rates".25 
2.6.  On 4 April 2018, the United  States  informed China that it did not consider there was any basis 
to conduct consultations under Article  12.3 of the Agreement on Safeguards, as it did not agree with 
China's characteri zation of the Section  232 duties as safeguard measures.26 
2.2  Measure at issue  
2.7.  In its panel request, t he United  States  describes the measure at issue as "China's imposition 
of additional duties on certain products originating in the United  States  (the 'additional duties 
measure ')".27 According to the United  States , China imposes the add itional duties measure through 
the Opinions Notice and the Implementation Notice, operating separately or collectively, as well as 
any amendments, replacements, related measures or implementing measures.28 
2.8.  The Opinions Notice identified 128 tariff codes to  which China proposed to apply the additional 
duties measure. These tariff codes, set out in the Specific Product List attached to the Opinions 
Notice, comprised products in seven categories: (i)  fresh fruit, dried fruit, and nut products; 
(ii) wine; (iii)  denatured ethyl alcohol; (iv)  American ginseng; (v)  seamless steel tubes; (vi)  meat 
of swine and its products; and (vii)  aluminium waste.29 
 
23 Committee on Safeguards, Imposition of a safeguard measure by the United  States  on imports of 
steel – Request for consultations under Article 12.3 of the Agreement on Safeguards, G/SG/162 , 
(Exhibit  CHN-2); and Committee on Safeguards, Imposition of a safeguard measure by the United  States  on 
imports of aluminum – Request for consultations under Article 12.3 of the Agreement on Safeguards, 
G/SG/161 , (Exhibit CHN -3). 
24 Council for Trade in Goo ds and Committee on Safeguards , Immediate notification under  Article  12.5 
of the Agreement on Safeguards to the Council for Trade in Goods of proposed suspension of concessions and 
other obligations referred  to in Article  8.2 of the Agreement on Safeguards , G/L/1218 -G/SG/N/12/CHN/1 , 
(Exhibit  CHN-1), p. 1.  
25 Implementation Notice, (Exhibit USA -1), p. 1.  
26 United  States ' communication  (4 April 2018), (Exhibit CHN -4), p. 1.  
27 United  States' panel request, p. 1.  
28 Ibid. 
29 Opinions Notice, (Exhibit USA -2), pp. 2 -6. WT/DS558/R  
 
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  2.9.  The Implementation Notice imposed additional duties on the 128 tariff codes identified in the 
Opinions Notice.30 These additional duties were made applicable to "imported products originating 
from the United  States " and assessed on an ad valorem basis:  
a. For 120 of these tariff codes, including fruits and derived products, the Implementation Notice 
imposed an  additional tariff rate of 15% on top of  the current applied base tariff rates . 
b. For eight of these tariff codes, including pork and derived products31, the Implementation 
Notice imposed an additional tariff rate of 25% on top of  the current applied base ta riff rates.32 
2.3  Other additional duties  
2.10.  Subsequent to the Implementation Notice, China imposed certain "other  additional duties", 
i.e. duties on top of the additional duties imposed under  the Implementation Notice . The 
United  States  maintains that, in total,  these other  additional duties affect the importation of products 
falling under 112 of the 128 tariff lines already subject to the additional duties measure .33 These 
other additional duties are as follows:  
a. With effect from 6  July 2018, a  further additional  duty of 25% on imports  from the 
United  States  that applies  to 81 of the 128 tariff lines already subject to the additional duties 
measure .34 
b. With effect from 23  August  2018, a further additional duty of 25% on imports  from the 
United  States  that applies t o one of the 128 tariff lines already subject to the additional duties 
measure .35 
c. With effect from 24  September  2018, a  further additional duty of 10% and 5% on imports  
from the United  States  falling under, respectively, 20 and 10 of the 128 tariff lines already subject 
to the additional duties measure.36 
2.11.  China considers that the other additional duties described above are "not measures at issue 
in this dispute" as they were not included in th e United  States ' panel request.37 The United  States  
explains that it "included the additional tariffs in order to calculate the sum of duties … actually 
applied to" goods originating in the United  States .38 The United  States  further clarifies that it is no t 
seeking findings and recommendations on these other additional duties.39 The Panel addresses this 
issue in its findings in section 7 of the Report.  
 
30 The United  States has noted discrepancies between the product lists attached to the Opinions Notice 
and the Implementation Notice. According to the United  States, f or 88 out of the 128 products listed in the 
Implementation Notice, the eight-digit tariff line matches a product description in the attachment to  the 
Opinions Notice, but the product description is not verbatim . (See United  States' first written submission, 
para. 8 and fn  8 and United  States' Table Id entifying Discrepancies Between China 's Opinions Notice and 
Implementation Notice , (Exhibit USA -16)). China considers these differences to be "different ways of describing 
the same products under the same HTS" that "have no impact on the measures taken". ( See China's response 
to Panel question No.  16). 
31 While the Implementation Notice uses the terms "pork and derived products", the terms used in the 
Opinions Notice are "meat of swine and its products". The Panel notes that these differently described produ ct 
categories comprise the same seven tariff codes (02031200, 02031900, 02032190, 02032200, 02032900, 
02064100, and 02064900). See also ibid. 
32 Implementation Notice, (Exhibit USA -1), p. 1.  
33 United  States' first written submission, para.  17. 
34 United  States' first written submission, para.  17, referring to  Announcement on Imposing Tariffs on 
Some Goods Originating in the United  States  (Ministry of Commerce  2018 Public Notice No.  55, issued  
16 June 2018) , (Exhibit  USA-9). 
35 United  States' first written submission, para.  17, referring to  Announcement on Imposing Tariff on 
Some Goods Originating in the United  States  (Ministry of Commerce 2018 Public Notice No.  64, issued  
8 August  2018) , (Exhibit  USA-10). 
36 United  States' first  written submission, para.  17, referring to  Announcement on Levying Tariffs on 
Goods and Commodity Imports from the United  States  (Ministry of Commerce 2018 Public Notice No.  69, 
issued 18 September  2018) , (Exhibit USA -12). 
37 China's first written submission, para.  156.  
38 United  States' response to Panel question No.  12. 
39 United  States' response to Panel question Nos. 12 and 68.  WT/DS558/R  
 
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  3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.   The United  States requests that the Panel find that Ch ina's additional duties measure is 
inconsistent with China's obligations under Articles  I:1, II:1(a),  and II:1(b)  of the GATT  1994.40 
3.2.  China requests that the Panel reject the United  States' claims in this dispute in their entirety.41 
4  ARGUMENTS OF THE PARTI ES 
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 22 of the Working Procedures adopted by the Panel (see Annexes B -1 
and B -2). 
5  ARGUMENTS OF THE THIRD PARTIES  
5.1.  The arguments of the European  Union, Japan, New  Zealand , Norway, the Russian  Federation , 
Switzerland, Türkiye, and Ukraine are reflected in their executive summaries, provided in accordance 
with paragraph 25 of the Working Procedures adopted by the Panel (see Annexes C -1, C-2, C-3, 
C-4, C-5, C-6, C-7, and C -8). 
6  INTERIM REVIEW  
6.1.  On 25  May 2023, the Panel issued its Interim Report to the parties. On 8  June 2023, the parties 
submitted written requests for review of the Interim Report. Neither party requested an interim 
review meetin g. On 15  June 2023, the United  States submitted comments on China's requests for 
review of the Interim Report. On the same date, China informed the Panel that it did not intend to 
submit comments on the United  States' requests for review of the Interim Rep ort. 
6.2.  In accordance with Article  15.3 of the DSU, this section  of the Report sets out the Panel's 
responses to the requests made at the interim review stage.42 
6.3.  At the outset, the Panel notes the parties' requests to modify or expand the Panel's summaries 
of their arguments. In this Report, the Panel has summarized the parties' arguments concerning the 
contested issues with a view to placing its reasoning and findings in context. The Panel did not intend 
to provide extensive descriptions of all the arguments raised by the parties, but only of arguments 
relevant for the purposes of its objective assessment of the matter before it. In this regard, t he 
Panel recalls that the parties submitted detailed executive summaries of their arguments, annexed 
to this Report43, which provide  a comprehensive account of their respective positions . The Panel 
further understands that it  has substantial  discretion to focus and elaborate on those aspects of the 
parties' submissions that it considers most pertinent for the res olution of the dispute, in fulfilment 
of its duty to make such findings as will assist the DSB in making the recommendations or rulings 
provided for in the covered agreements.44 
6.4.  Accordingly, unless otherwise specified in this section , the Panel considers that the parties' 
arguments were adequately summari zed in the Interim Report and that it need not modify or expand 
the relevant paragraphs in the Final Report.  
6.5.  The Panel has made typographical and other editorial modifications in the Report, incl uding in 
response to the parties' requests for review.45 
 
40 United  States' first written submission, para.  89; second written submission, para.  156. 
41 China's first written submission, para.  158; second written submission, para.  169. 
42 The paragraph and footnote numbers in the Final Report may have changed due to the revisions 
made at the interim review stage. The paragraph and footnote numbers indicate d in this section pertain to 
those in the Final Report, unless otherwise specified.  
43 See Annex es B-1 and B -2. 
44 See Article  7.1 of the DSU.  
45 Editorial changes in response to the parties' requests for review have been made at  paras.  1.1, 1.15, 
2.9, 7.3, 7.7, 7.38-7.39, 7.57, and 7.132 . WT/DS558/R  
 
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  6.1  Compliance of the United  States' panel request with Article  6.2 of the DSU  
6.1.1   Paragraphs 7.17 -7.30 
6.6.  China requests that the Panel modify paragraphs 7.17, 7.26, 7.29, and 7.30 of the Interim 
Report to "co rrectly summarize and reflect China's arguments" concerning the issue of the Panel's 
terms of reference.46 The United  States objects to the request, arguing that the Panel has accurately 
presented China's position on Article  6.2 of the DSU. The United  States further contends that China 
offers no precise comments as to how the Panel should modify its statements.47 
6.7.  The Panel's understanding of China's position , as expressed in the paragraphs identified by 
China as well as in other relevant parts of the Report , is based on a close reading of all of China's 
submissions.  The Panel does not consider that it misstates or otherwise misrepresents China's 
position. Nevertheless, for greater clarity, the Panel has modified paragraphs 7.17, 7.26, 7.28, and 
7.29 of the F inal Report, including by adding or modifying footnotes 104, 11 3, and 11 4, to further 
explain both its own understanding of China's position and the basis of that understanding in China's 
various submissions. In the light of these changes, the Panel no lon ger considered paragraph 7.30 
of the Interim Report to be necessary and has accordingly deleted that paragraph.  
6.2  Applicability of the relevant covered agreements  
6.2.1   Paragraph 7.36 and footnote 13 1 
6.8.  The United  States requests that the Panel make certain modifica tions to more accurately reflect 
the United  States' position that "invocation through notice is the condition precedent for taking 
action under Article  XIX and the application of the safeguards disciplines".48 China does not comment 
on the request.  
6.9.  Taking into account  that the modification s requested in  the summary of the United  States ' 
arguments do not impact the Panel's reasoning , and in the absence of any objection from China , the 
Panel agrees to modify paragraph 7.3 6 and footnote  131 of the Report.  
6.2.2   Paragraph 7.77  
6.10.  In relation to China's argument that the absence of an underlying safeguard measure 
concerns the consistency with, and not the applicability of, Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994, China requests that the Panel modify the 
summary of China's arguments and reconsider its analysis or findings.49 Specifically, China requests 
that the Panel revise or remove a statement  in paragraph 7.77 reflecting  the Panel's understanding 
of the conseq uences of China 's arguments.50 The United  States does not object to the deletion of 
this sentence, but does not consider that the Panel should reconsider its analysis or findings.51 
6.11.  The Panel takes note that the United  States does not object to the removal  of the sentence 
identified by China. As the sentence concerns an observation relating to certain arguments raised 
by China, but is not a direct summary of those arguments, the Panel agrees to  remove the final 
sentence of paragraph 7.77 and has replaced it  with a statement reflecting China's argument as 
contained in its second written submission. The Panel does not consider it necessary to revise its 
reasoning or findings set out in subsequent paragraphs, which address China's arguments as 
reflected in the remainder of paragraph  7.77. 
6.2.3   Paragraphs  7.90-7.94 
6.12.  The United  States  requests that the Panel add a paragraph in the Report to support its 
interpretation of the terms "pursuant to" in Article  11.1(c) of the Agreement on Safeguards. 
Specifically, the United  States requests the Panel to indicate that the ordinary meaning of "sought, 
 
46 China's interim review comments, paras.  3-14. 
47 United  States' comments on China's interim review comments, paras.  3-6. 
48 United  States' interim review co mments, para.  5. 
49 China's interim review comments, paras.  15-17. 
50 China's interim review comments, para.  16. 
51 United  States' comments on China's interim review comments, para.  7. WT/DS558/R  
 
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  taken or maintained" in Article  11.1(c) supports the Panel's understanding that "in the case of 
measures sought, taken, or maintained by virtue of or under 'provisions of the GATT o ther than 
Article  XIX', the Agreement on Safeguards does not apply, irrespective of whether the measures are 
consistent with such other provisions" .52 China does not comment on the request.  
6.13.  The Panel does not find it necessary to supplement  its reasoning w ith additional 
considerations. In the Panel's view, its interpretation of the text of Article  11.1(c) of the Agreement 
of Safeguards  is adequately supported by considerations pertaining to the  context  of the provision  
and the object and purpose of the Agre ement. In this light, the  Panel does not consider that 
addressing  the additional elements raised by the United  States  is strictly necessary to resolve  the 
dispute or to make  such findings as will assist the DSB  in making the recommendations or rulings 
provided for in the covered agreements. Accordingly, the Panel declines the request.  
7  FINDINGS  
7.1  Compliance of the United  States' panel request with Article  6.2 of the DSU  
7.1.  China contends that the United  States' panel request does not comply with the requirements 
of Article  6.2 of the DSU because it fails to provide a brief summary of the legal basis o f the complaint 
sufficient to present the problem clearly.53 Specifically, China argues that, by failing to raise a claim 
in its panel request that the additional duties measure is not justified under Article  XIX of  the 
GATT  1994 and the Agreement  on Safeg uards, and only claiming inconsistency with Article s I and II 
of the GATT  1994 in its panel request, the United  States  has not provided a brief summary of  the 
legal basis of its complaint sufficient to present the problem clearly, and thus failed to notify  China 
of the nature of its case.54 China submits that, as a result, the United  States' claims under Articles I 
and II of the GATT  1994, as well as any arguments concerning the additional duties measure's 
consistency with Article  XIX:3(a) of the GATT  1994 and Article  8.2 of the Agreement on Safeguards, 
fall outside the Panel's terms of reference.55 China requested that the Panel rule on this issue " on 
preliminary basis or otherwise ".56 
7.2.  On 12  March  2020, the Panel informed the parties in writing that it did not intend to issue a 
preliminary ruling in respect of China's request under Article  6.2 because it "touches upon issues 
that are closely related to the substantive questions raised by the parties in this dispute".57 The 
Panel indicated that it would inste ad address China's objections in its Report.58 Given that these 
objections concern the Panel's terms of reference, the Panel will address them first before turning 
to the substance of the dispute.  
7.1.1   Main arguments of the parties  
7.1.1.1   China  
7.3.  China submits that t he United  States  was "well aware " that China's measure at issue was 
plainly taken pursuant to Article  XIX:3 (a) of the GATT  1994 and Article  8.2 of the Agreement on 
Safeguards.59 China observes that the United  States  nevertheless chose not to invoke 
Article  XIX:3 (a) of the GATT  1994 and Article  8.2 of the Agreement on Safeguard s in its panel 
request. Instead, in the panel request, the United  States  only claimed that China's measure was 
inconsistent with Article s I and II of  the GATT  1994.60 According to China, A rticle XIX of the 
GATT  1994 and the  Agreement on  Safeguard s establish "positive obligations " for Members , and it is 
therefore  the obligation of a complainant to raise a claim of violation under these provisions in its 
panel request for measures "plainly taken " pursuant to them.61 In China's view, the United  States' 
 
52 See para.  7.91 below.  
53 China's response to Panel question No.  1, para.  2. 
54 China's first written submission, para.  58. 
55 China's first written submission, paras.  17 and 60.  
56 China's first written submission, para.  62. 
57 Communication  by the Panel on China's request for a ruling under Article  6.2 of the DSU  (Annex  D-2). 
58 Communication by the Panel on China's request for a ruling under Article  6.2 of the DSU  (Annex  D-2). 
59 China's first written submission, para.  13. 
60 China's first wri tten submission, para.  14. 
61 China's first written submission, para.  15. Relatedly, China elaborates on why it considers that 
Article  XIX of the GATT  1994 and the Agreement on Safeguards cannot be considered "affirmative defences" in 
 WT/DS558/R  
 
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  omission of these provisions from its panel request precludes the Panel  from assessing either the 
United  States' claims under Articles I and II of the GATT  1994, or  from examining and making 
findings on whether China's measure is consistent with Article  XIX of the GATT  1994 and the 
Agreement on Safeguard s.62 
7.4.  China further argues that, when  the measure at issue in  a dispute is "plainly taken " pursuant 
to Article  XIX of the GATT  1994 and the Agreement on Safeguards , then "the relevant concessions 
and obligations under other GATT  1994 provisions, such as those under Article  I and II of 
GATT  1994, are necessarily suspended, withdrawn or modified ".63 In China's view, it follows in such 
circumstances that a complainant cannot make a claim solely under Article s I and II of the 
GATT  1994 in its panel request without also claiming  that the measure cannot be justified under 
Article  XIX of the GATT  1994 and the  Agreement on  Safeguard s.64 
7.5.  China argues that to sustain a claim of violation of Articles I and II of the GATT  1994 by a 
measure taken pursuant to the WTO safeguard provisions, the non -application of or inconsistency 
with the WTO safeguard provisions "would be an inextricable link , and therefore an integral part" of 
the legal basis for such a claim.65 Thus, China considers that, in failing to identify Article  XIX of the 
GATT  1994 and the Agreement on Safeguards in its panel request, the United  States has turned a 
"blind eye"66 to "the explicit legal basis within the WTO framework of China's measure []" and so 
failed to present a proper claim before the Panel .67 In particular, China maintains that, because  the 
"crucial and inextricable link in between China's [measure ] at issue and cl aim of violation of Article  I 
and II of the GATT  1994 is missing ", the panel request does not sufficiently connect  the challenged 
measure with the United  States' claims under Articles I and II of the GATT  1994.68 
7.6.  China draws support for its position from the Appellate  Body's report in EC – Tariff 
Preferences .69 According to China, in that case the Appellate  Body found that a complaining party 
challenging a measure taken pursuant to the Enabling Clause must allege more than mere 
inconsistency with Article  I:1 of the GATT  1994, for to do only that would not convey the legal basis 
of the complaint sufficient to present the problem clearly .70 China notes that the Appellate  Body 
found that a complainant in such a  case must  cite the Enabling Clause in making its claim of 
inconsistency with Article  I:1 of the GATT  1994, and must moreover identify in its panel request the 
provision (s) of the Enabling Clause that it considers to  have been violated by the measures at i ssue.71 
In China's view, the same principles underlying the Appellate  Body's report in EC – Tariff Preferences  
would have required the United  States in this dispute to identify in its panel request the specific 
requirement(s)  in Article  XIX of the GATT  1994 and the Agreement on Safeguards with which it 
considered China had failed to comply  to properly " convey the legal basis of the complaint sufficient 
to present the problem clearly ".72 In China's view, although the United  States  was "entitled to 
disagree a nd challenge that China 's [measure ] could be justified under its explicit legal basis, 
 
paragraphs 18 -30 of it s first written submission and paragraphs 15 -19 of its second written submission. The 
Panel will discuss these arguments as relevant in its analysis below.  
62 China's first written submission, para.  17. 
63 China's first written submission, para.  16; opening statement at the first meeting of  the Panel, 
para. 22. China provides further arguments on why measures taken pursuant to Article  XIX of the GATT  1994 
and the Agreement on Safeguards suspend, withdraw, or modify obligations under the GATT  1994 in 
paragraph s 31-42 of its first written submission. The Panel will discuss these arguments as relevant in its 
analysis below.  
64 China's first written submission, para.  16. 
65 China's second written submission, para.  47. 
66 China's second written submission, para.  46. 
67 China's first written submission, para.  43. 
68 China's second written submission, para.  48. (emphasis omitted)  
69 China's first written submission, paras.  44-55; second written submission, para.  50; and respons e to 
Panel question No.  5. 
70 China's first written submission, para.  47 (referring to Appellate  Body Report, EC – Tariff Preferences , 
para. 110).  
71 China's first written submission, para.  45 (referring to Appellate  Body Report, EC – Tariff Preferences , 
paras. 113 and 125).  
72 China's first written submission, paras.  48 and 52 (internal citation omitted). China draws further 
parallels between this dispute and EC – Tariff Preferences  in paragraphs 49 -55 of its first written submission, 
which, in China's view, supports the position described above.  WT/DS558/R  
 
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  Article  XIX:3 of GATT  1994 and Article  8.2 of the Safeguard Agreement ", it should nevertheless have  
raised a claim of inconsistency with these provisions in its panel re quest.73 
7.7.  China concludes that the United  States' decision not to identify Article  XIX of the GATT  1994 
and the Agreement on Safeguards in its panel request is a "fundamental defect"74 that results in the 
panel request failing either to convey the legal bas is of the complaint sufficient ly to present the 
problem clearly , or to notify  China  of the nature of the United  States' case.75 According to China, the 
panel request thus fails to meet the requirements of Article  6.2 of the DSU76, with the consequence 
that the Panel does not have jurisdiction to assess either the United  States'  claim s under Article s I 
and II of  the GATT  1994 or to examin e and mak e findings on whether China's measure is consistent 
with Article  XIX of  the GATT  1994 and the Agreement  on Safeguards.77 
7.1.1.2   United  States  
7.8.  The United  States contends that China's arguments on the sufficiency of the United  States' 
panel request are "groundless"78, and asks the Panel to reject China's request for a ruling under 
Article  6.2 of the DSU.  
7.9.  The United  States submits that its panel request fully satisfies the requirements of Article  6.2 
of the DSU. According to the United  States, the pan el request provides a brief summary of the legal 
basis of the complaint sufficient to present the problem clearly . It does so by identifying the  legal 
instrument through which China imposes the additional duties  and explaining  why the United  States  
conside rs that China 's additional duties are inconsistent with China's obligations under Articles I 
and II of the GATT  1994.79 By doing so, the United  States is of the view that the panel request 
properly " connects China 's additional duties measure with provision s of the GATT  1994".80 The 
United  States further submits that, because its panel request satisfies the requirements of Article  6.2 
of the DSU, " China cannot credibly claim that it did not receive proper notice on the nature of the 
dispute ".81 
7.10.  The United  States further argues that China's reference to the Appellate  Body Report in EC – 
Tariff Preferences  is unavailing. In the United  States' view, the approach adopted by the 
Appellate  Body in EC – Tariff Preferences  was based on " particular circumstances  … dictating a 
special approach, given the fundamental role of the Enabling Clause " in "promoting trade as a means 
of stimulating economic growth and development ".82 According to the United  States, such 
considerations are not relevant in the present dispute.83 
7.11.  Moreover, the United  States observes that in EC – Tariff Preferences , the complaining  party 
considered the Enabling Clause to be relevant to th e dispute and req uested consultations under th at 
provision .84 In contrast, in this dispute,  the United  States  does not consider Article  XIX of the 
GATT  1994 or the Agreement on Safeguards to be relevant , and has not asserted that China has 
acted inconsistently with those p rovisions. There was therefore, in the United  States' view, no reason 
for the United  States to refer to Article  XIX of the GATT  1994 or the Agreement on Safeguards in its 
panel reques t.85 The United  States notes that  China has asserted that certain "permis sive provisions" 
of the Agreement on Safeguards and Article  XIX of the GATT  1994 are relevant. In the United  States' 
 
73 China's first written submission, para.  57. 
74 China's first written submission, paras.  17 and 60 -62. 
75 China's first written submission, para.  58. 
76 Ibid. 
77 China's first written submission, paras.  17 and 60.  
78 United States' response to China's request for a preliminary ruling, para.  4. 
79 United  States' response to China's request for a preliminary ruling, para.  8; second written 
submission, para.  150. 
80 United  States' response to China's request for a preliminary r uling, para.  8. 
81 United  States ' response to China's request for a preliminary ruling, para.  9. 
82 United  States ' opening statement at the first meeting of the Panel, para.  51 (referring to 
Appellate  Body Report, EC – Tariff Preferences , paras.  106-107).  
83 United  States ' response to China's request for a preliminary ruling, para.  11. 
84 United  States ' response to China's request for a preliminary ruling, para.  11; opening statement at 
the first meeting of the Panel, para.  46. 
85 United  States ' response to Chi na's request for a preliminary ruling, para.  12. WT/DS558/R  
 
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  view, because China would have the provisions considered as justification for the additional duties 
measure, it is for China to demonstrate  their applicability.86 
7.12.  The United  States concludes that China's arguments concerning Article  6.2 of the DSU merely 
point "to additional  claims " that, in its opinion, the United  States  could  or should  have present ed.87 
In the United  States' view, however, the fact that additional claims could have been made " is not an 
issue under DSU Article  6.2 that the legal basis of the claims the United  States  has presented are 
not clear ".88 
7.1.1.3   Main arguments of the third parties  
7.1.1.3.1   Europ ean Union  
7.13.  The European  Union submits that the United  States is incorrect to refer to Article  XIX:3(a) of 
the GATT  1994 and Article  8 of the Agreement on Safeguards  as "affirmative defences".89 In the 
European  Union's view, these provisions are in fact " the controlling provisions in this dispute "90, 
because the measure at issue is "based on" them .91 According to the European  Union,  it is 
"disingenuous" of the United  States  to claim that those provisions have no legal connection to the 
claims raised in this d ispute.92 The European  Union  concludes that the Panel must dismiss the 
United  States ' case because neither the consultations request nor the panel request make reference 
to Article  XIX:3(a) of the GATT  1994 and Article  8 of the Agreement on Safeguards.93 
7.1.1.3.2   Russian  Federation  
7.14.  The Russian  Federation  submits that " China took the [measure ] at issue to exercise its 
essential right under Article 8.2 of the  [Agreement on  Safeguards ] to counter the disruptive effects 
of the United  States ' safeguards me asures on their bilateral trade ".94 In the Russian  Federation 's 
view, the United  States' evident disagreement with this proposition " does not relieve [it] from its 
obligation to present the problem clearly in accordance with Article  6.2 of the DSU, i.e. to  present 
the 'full picture '", including by identifying Article  XIX of the GATT  1994 and the Agreement on 
Safeguards in its panel request.95 According to the Russian  Federation , the United  States' omission 
of Article  XIX of the GATT  1994 and the Agreement o n Safeguards from its panel request results in 
a failure to "present the problem clearly"96, as required by Article  6.2 of the DSU, because the 
United  States' claims under Articles I and II of the GATT  1994 "are legally and factually linked to the 
safeguar ds disciplines under which China adopted the challenged measure[]".97 
7.1.1.3.3   Türkiye  
7.15.  Türkiye submits that it  "shares China's concern that, in its consultations and panel request, 
as well as its first written submission, the United  States  has not articulated the c orrect legal basis 
for challenging China's measure []".98 In Türkiye's view, in circumstances in which a measure falls 
under WTO safeguard rules, claims under Articles I and II "as free -standing claims " should be 
rejected, because they would amount to "circumventing the complaining Member's burden to make 
out a prima facie case under Article  XIX and the Agreement on Safeguards ".99 According to Türkiye, 
if the Panel agrees with China that the additional duties measure falls within the scope of the 
 
86 United  States ' opening statement at the first meeting of the Panel, para.  45. 
87 United  States ' response to China's request for a preliminary ruling, para.  13; opening statement at 
the first meeting of the Panel, para.  50; second written submission, para.  147. (emphasis original)  
88 United  States' response to China's request for a preliminary ruling, para.  13. (emphasis original)  
89 European  Union's comments on China's request for a preliminary ruling, para.  4. 
90 European  Union's third -party written submission, para.  11; comments on China's request for a 
preliminary ruling, para.  4. 
91 European  Union's comments on China's request for a preliminary ruling, para.  6. 
92 Ibid. 
93 European  Union's comments on China's request for a preliminary ruling, para.  8. 
94 Russian  Federation 's comments on China's request for a preliminary ruling, para.  5. 
95 Russian  Federation 's comments on China's request for a preliminary ruling, para.  7. 
96 Russian  Federation 's third -party submission, para.  53. 
97 Russian  Federation 's comments on China's request for a preliminary ruling, para.  10. 
98 Türkiye's comments on China's request for a preliminary ruling.  
99 Türkiye's comments on China's request for a pre liminary ruling . (emphasis original)  WT/DS558/R  
 
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  Article  XIX and the Agreement on Safeguards , the Panel " should reject the United  States ' claims 
under Articles I and II of the GATT  1994 as improper ".100 
7.1.1.3.4   Ukraine  
7.16.  Ukraine cautions against a "loop -hole" that would allow a complainant to "escape from its 
obligation" to present the problem clearly by intentionally failing to raise claims under the applicable 
covered agreements.101 However, Ukrain e also notes that if a claim is properly governed by a 
particular covered agreement, then a complainant would be "completely right" in raising only that 
covered agreement in a panel request.102 Ukraine concludes that, in undertaking its analysis, the 
Panel should " look into the nature of the measure at issue to find whether it is in its terms of 
reference ".103 
7.1.2   Analysis by the Panel  
7.1.2.1   Introduction  
7.17.  The Panel's task is to determine whether the United  States' panel request is inconsistent with 
Article  6.2 of the DSU because, as argued by China, by failing to claim that the additional duties 
measure is inconsistent with Article  XIX of the GATT  1994 and Article  8.2 of the Agreement on 
Safeguards, it does not provide a brief summary of the legal basis of the United  States' complaint 
sufficient to present the problem clearly.104 
7.18.  The Panel begins its analysis by examining the legal standard under Article  6.2 of the DSU.  
7.1.2.2   Applicable legal standard  
7.19.  Article  6.2 of the DSU provides as follows:  
The request for the establishment of a panel shall be made 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 
clearly. In case the applicant requests the establishment of a panel with other than 
standard terms of reference, the written request shall include the proposed text of 
special terms of reference.  
7.20.  As indicated, China's concerns relate to the requirement that a panel request must provide a 
brief summary of the legal basis of the complaint sufficient to present the problem clearly. Both 
parties agree that, to comply with thi s requirement, a panel request must "plainly connect the 
challenged measure(s) with the provision(s) of the covered agreements claimed to have been 
infringed".105 The parties disagree on the application of this requirement in the present case.  
 
100 Türkiye's third -party submission, para.  3.19.  
101 Ukraine's third -party submission, para.  11. 
102 Ibid. 
103 Ukraine's third -party written submission, para.  13. 
104 China's first written submission, paras.  3, 15, and 57- 58. The Panel observes that certain arguments 
advanced by the parties and third parties in response to China's request under Article  6.2 touch upon issues 
such as the characterization of the WTO safeguards regime as an "exception" or a "right", the burden  of proof, 
and the order of analysis that the Panel should adopt in these proceedings. However, these issues are legally 
and conceptually separate from the question whether the panel request satisfies the specific requirements of 
Article  6.2. The Panel wil l address these issues as necessary in the relevant parts of its Report.  
Additionally, the Panel notes China's argument that, having failed to raise claims under Article  XIX of 
the GATT  1994 or Article  8.2 of the Agreement on Safeguards, the United  States  cannot be allowed to claim 
that the additional duties measure is inconsistent with those provisions. In this respect, the Panel notes that 
the United  States  has confirmed that it is not seeking findings on the consistency of the additional duties 
measure w ith those provisions . (United  States ' response to China's request for a preliminary ruling, para.  12). 
Accordingly, the Panel does not consider it necessary to address this aspect of China's request for a ruling 
under Article  6.2 of the DSU.  
105 China's seco nd written submission, para.  48; and United  States' response to China's request for a 
preliminary ruling, para.  7 (quoting Appellate  Body Report, US – Oil Country Tubular Goods Sunset Review s, 
 WT/DS558/R  
 
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  7.21.  The Panel agr ees with the parties that Article  6.2 of the DSU requires a panel request to 
plainly connect the challenged measures with the provisions of the covered agreements claimed to 
be violated. This requirement has been linked to the important role that the panel  request plays in 
ensuring due process, since only through such connection between the measure(s) and the relevant 
provision(s)  can a respondent "know what case it has to answer, and … begin preparing its 
defence".106 
7.22.  At the same time, a panel request need not elaborate the arguments  why the complainant 
believes the measure at issue to be WTO -inconsistent.107 The term "arguments" in this context refers 
to "the reasons put forth by a complaining party to demonstrate that the responding party's measure 
does ind eed infringe upon the identified treaty provision".108 Arguments of this nature are instead 
to be "set out and progressively clarified in the first written submissions, the rebuttal submissions 
and the first and second panel meetings with the parties".109 
7.23.  Given that arguments need not be set out in the panel request, it follows that the requirement 
"to provide a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly" is not a requirement to set out in detail the reasons un derlying a complainant's case. Rather, 
the Panel considers that Article  6.2 requires only that the legal basis of the complaint be set out with 
sufficient clarity to enable the respondent to know what case it has to answer, and what violations 
have been al leged, so that it can begin preparing its defence.110 
7.24.  The Panel notes that Article  6.2 does not require the panel request to explain or otherwise 
justify the applicability  of the particular provisions identified as the legal basis of a claim. Nor does 
it require a panel request to expressly indicate the provi sions governing the characterization of a 
measure for the purposes of the applicability of a given covered agreement. Rather, where particular 
provisions of the covered agreements are cited in the panel request, it can be logically presupposed 
that the com plainant considers such provisions to be applicable and relevant to the case at hand.111 
7.25.  With these principles in mind, the Panel now turns to examine whether, as argued by China, 
the United  States' panel request contains " fundamental defect s"112 that result  in the United  States' 
claims under Articles I and II of the GATT  1994 being  outside the Panel's terms of reference.  
7.1.2.3   Whether the United  States' claims under Articles I and II of the GATT  1994 fall 
outside the Panel's terms of reference  
7.26.  The Panel understand s China's request to be based on the proposition that the United  States' 
panel request is defective because Article  6.2 of the DSU required the United  States to include claims 
under Article  XIX of the GATT  1994 and the Agreement on Safeguards in its panel request in order 
to provide a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly. For China, the United  States' failure to do so results in those claims that it did include, under 
Articles  I and II of the GATT  1994,  falling outside the Panel's terms of reference. China's central 
argument is thus that the United  States' panel request is defective because it fails to provide a brief 
 
para. 162). The parties further agree that a panel request must  explain "how or why " the measure at issue is 
considered by the complaining party to violate the WTO obligation in question. (See China's second written 
submission, para.  48 and United  States' response to China's request for a preliminary ruling, para.  7 (quoting 
Appellate  Body Report, EC – Selected Customs Matters , para.  130)). In this regard, the Panel recalls the 
Appellate  Body's statement in Korea – Pneumatic Valves  (Japan) that "the use of the phrase 'how or why' [in 
previous panel and Appellate  Body r eports] does not imply a new and different legal standard for complying 
with the requirements of Article  6.2 of the DSU ". (Appellate  Body Report, Korea – Pneumatic Valves  (Japan) , 
para. 5.7). 
106 Appellate  Body Report, US – Oil Country Tubular Goods Sunset Review s, para.  162. (internal 
citations omitted) See also Appellate  Body Report, Thailand – H-Beams , para.  88. 
107 Appellate  Body Report, EC – Bananas III, paras.  141-143.  
108 Award of the Arbitrators, Colombia – Frozen Fries (Article  25), para.  4.58 ( quoting Appellate  Body 
Reports, China – HP-SSST (Japan)  / China – HP-SSST (EU) , para.  5.14; and Korea – Dairy , para.  139).  
109 Appellate  Body Report, EC – Bananas III , para.  141. 
110 Appellate  Body Report, Thailand – H-Beams , para.  88.  
111 Appellate  Body Repor t, Indonesia – Iron or Steel Products , para.  5.30.  
112 China's first written submission, paras.  5, 17, and 60 -62. WT/DS558/R  
 
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  summary of what China considers to be the "full"113 or "correct"114 legal basis of the Un ited States' 
complaint.  
7.27.  The Panel observes that Article  6.2 of the DSU  does not qualify the concept of the "legal basis 
of the complaint" in terms of correctness. Article  6.2 requires only that the  brief summary of the 
legal basis of the complaint be "sufficient to present the problem clearly "; it does not require that 
such a summary be "correct". The wording of Article  6.2 of the DSU, and the requirement that the 
summary of the legal basis present the "problem" clearly, thus entrust to each complainant the 
discretion to articulate the "problem" about which it is concerned in  any given dispute.115 This 
includes identifying the measures it wishes to challenge and deciding which of the covered 
agreements to bring claims under. Provided that the complainant clearly identifies the provisions 
under which it seeks to bring claims and  properly links those provisions to the measures at issue in 
a manner sufficient to present its "problem" clearly, a panel request satisfies the requirements of 
Article  6.2 of the DSU.  
7.28.  In the Panel's view, whether the panel request has identified the corre ct legal basis is a matter 
that goes to the merits of the complainant's case116, and not to the sufficiency of its panel request.117 
The Panel notes that a central part of every panel's duty to make an "objective assessment of the 
matter" pursuant to Article  11 of the DSU is the obligation to assess "the applicability of the relevant 
covered agreements".118 If a complainant identifies in its panel request provisions that a panel later 
finds to be inapplicable to the measure at issue, its case cannot succeed, a nd it cannot raise 
additional claims later in the proceedings.119 However, a panel request that identifies what either 
the respondent considers, or the panel ultimately finds, to be the incorrect legal basis for a claim is 
not thereby retrospectively render ed defective in terms of Article  6.2 of the DSU.  
7.29.  In these proceedings, the United  States has challenged the additional duties measure as being 
inconsistent with Articles I and II of the GATT  1994. China has not argued that the panel request 
fails to identi fy those specific provisions with sufficient clarity. Instead, China argues that the 
additional duties measure is subject to the WTO safeguards regime, and not to Articles I and II of 
the GATT  1994. This is a disagreement that the Panel will need to resolv e in fulfilling its mandate 
under Article  11 of the DSU, as detailed in the following section. In the Panel's view, however, the 
question whether the United  States' panel request identified the correct legal basis is not relevant 
to an examination of the c ompliance of that request with the requirements of Article  6.2 of the DSU.  
7.30.  China refers to the Appellate  Body Report in EC – Tariff Preferences  in support of its request. 
In that case, the Appellate  Body found that, in order to present the problem clearly under Article  6.2 
of the DSU, the complaining party was required to identify in its panel request not just the provisions 
of the GATT  1994 with which it considered the relevant tariff preferences to be inconsistent, but also 
 
113 China's second written submission, para.  51. 
114 China's opening statement at the first meeting of the Panel , para.  7. 
115 The Panel  notes that China generally agrees  with this proposition:  "It is up to the United  States , as 
the complaining party, to assess and determine which covered agreement or provision are considered violated 
and therefore should be challenged. China, as the respondent,  has no role in that decision ". (China's opening 
statement at the first meeting of the Panel, para.  13).  
116 The Panel notes that in Australia – Apples , the Appellate  Body confirmed the distinction between 
issues going to a panel's jurisdiction, on the one hand, and issues going to the merits of a dispute, on the other 
hand. The Appellate  Body stated that "[f]or a matter to be within a panel's terms of reference —in the sense of 
Articles 6.2 and 7.1 of the DSU —a complainant must identify 'the specific measure s at issue' and the 'legal 
basis of the complaint sufficient to present the problem clearly' … By contrast, the question of whether the 
measures identified in the panel request can violate, or cause the violation of, [a WTO obligation] is a 
substantive iss ue to be addressed and resolved on the merits". (Appellate  Body Report, Australia – Apples , 
paras.  423 and 425. See also Panel  Report , EU – PET (Pakistan) , para.  7.24).  
117 In this connection, the Panel considers relevant the findings of the panel in Thaila nd – Cigarettes 
(Philippines) (Article  21.5 – Philippines) . In that case, the panel stated that "a panel must take care to ensure 
that it does not make findings on disputed questions of fact or law encroaching on the merits of a claim for the 
purpose of de termining whether it has jurisdiction over that same claim … disputed questions of fact or law 
raised at the jurisdictional phase will encroach upon the merits of a claim insofar as they would require a panel 
to make findings relating to one or more legal elements that must be established to uphold the claim at issue". 
(Panel  Report , Thailand – Cigarettes (Philippines) (Article  21.5 – Philippines) , paras.  7.528 -7.529 ). 
118 Article  11 of the DSU.  
119 The Panel notes that the United  States agrees with this conclusion. See United  States' second written 
submission, para.  147. See also Appellate  Body Reports, India – Patents (US) , para.  89; and Indonesia – Iron 
or Steel Products , para.  5.31.  WT/DS558/R  
 
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  the Enabling Clause120, which , if properly invoked and applied by the responding party, would have 
shield ed those preferences  from WTO -inconsistency .121 
7.31.  The Panel is not persuaded that the approach to the Enabling Clause taken in EC – Tariff 
Preferences  is helpful in the present dispute. Indeed, the Appellate  Body in EC – Tariff Preferences  
recognized that its treatment of the Enabling Clause was "special" and justified by "the particular 
circumstances" of that case.122 The Appellate  Body thus placed particular emphasis on the Enabling 
Clause's "special status in the covered agreements"123, which engendered "particular implications 
for WTO dispute settlement".124 
7.32.   The Panel sees no basis in either the Appellate  Body's statements or the text of the DSU for 
treating what was a decision based on the particular status and function of a "'special" WTO provision 
as a general rule about the requirements of Article  6.2 of the DSU.  
7.1.3   Conclusion  
7.33.  For the reasons outlined above, the Panel finds that Article  6.2 of the DSU  did not require the 
United  States to include claims of violation under Article  XIX of the GATT  1994 or the Agreement on 
Safeguards in its panel request in order to provide a brief summary of the legal basis of its complaint 
sufficient to present the probl em clearly. Accordingly, the Panel rejects China's reque st to find that 
the United  States' panel request does not comply with the requirements of Article  6.2 of the DSU.  
7.2  Applicability of the relevant covered agreements  
7.2.1   Main arguments of the parties  
7.2.1.1   United  States  
7.34.  The United  States argues that the Panel's analysis should begin by evaluating its claims under 
Articles I and II of the GATT  1994, before addressing China's arguments under Article  8.2 of the 
Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994.125 
7.35.  The United  States maintains that Article  8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994 do not apply to China's additional duties measure. In the 
United  States' view, Article  XIX:3(a) of the GATT  1994 and Article  8.2 of th e Agreement on 
Safeguards explicitly link a Member's right to suspend concessions or other obligations to the 
application or extension of a safeguard measure by another Member.126 According to the 
United  States, Article  8.2 of the Agreement on Safeguards al lows an exporting Member affected by 
a safeguard measure to suspend concessions or other obligations under the GATT  1994 if no 
agreement concerning compensation has been reached among the Members concerned pursuant to 
Article  8 of the Agreement on Safeguar ds. For the United  States, the first analytical step to 
 
120 The Enablin g Clause, originating in a 1979 decision of the GATT contracting parties , allows 
derogations  from the Most -Favoured -Nation Treatment obligation laid down in Article  I of the GATT  1994 in 
favour of developing countries. For more information on the Enabling Clause, see the relevant page on the 
WTO website: https://www.wto.org/Engli sh/docs_e/legal_e/enabling1979_e.htm  (last accessed 17 May 2023). 
121 Appellate  Body Report, EC – Tariff Preferences , para.  110. The Appellate  Body reasoned as follows:  
"[A] complaining party challenging a measure taken pursuant to the Enabling Clause must allege 
more than mere inconsistency with Article  I:1 of the GATT  1994,  for to do only that would not 
convey the 'legal basis of the complaint sufficient to present the problem clearly'. …  [I]t is 
insufficient in WTO dispute settlement for a complainant to allege inconsistency with Article  I:1 of 
the GATT  1994 if the complain ant seeks also to argue that the measure is not justified under the 
Enabling Clause. This is especially so if the challenged measure, like that at issue here, is plainly 
taken pursuant to the Enabling Clause ". 
122 Appellate  Body Report, EC – Tariff Preferenc es, paras.  106 and 110.  
123 Appellate  Body Report, EC – Tariff Preferences , para.  107. 
124 Appellate  Body Report, EC – Tariff Preferences , para.  110. The Appellate  Body confirmed the 
exceptional nature of this approach in Brazil – Taxation . See Appellate  Body Reports, Brazil – Taxation , 
paras.  5.361 -5.362.  
125 United  States' responses to Panel question No.  18, para.  30. 
126 United  States' respo nse to Panel question No.  35, para.  69; second written submission, 
paras.  141-143. WT/DS558/R  
 
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  determine whether Article  8.2 of the Agreement on Safeguards applies to a certain measure is thus 
to examine whether another Member has previously applied a safeguard measure.127 
7.36.  The United  States  argues that it has not adopted any relevant safeguard measure for the 
purposes of the present dispute.128 According to the United  States, a measure is only a safeguard 
measure when the right to apply a safeguard is invoked with notice under Ar ticle XIX:2 of the 
GATT  1994, which the United  States deems a necessary "condition precedent" for a measure to 
qualify as a safeguard measure. Without this invocation, the United  States argues, a Member is not 
seeking legal authority under Article  XIX of t he GATT  1994 to suspend its obligations or withdraw or 
modify its concessions .129 The United  States acknowledges that the applicability of the Agreement 
on Safeguards and Article  XIX of the GATT  1994 is an "objective question",130 and contends that 
whether a  Member has or has not invoked these disciplines  by giving notice can be objectively 
ascertained by a panel .131 The United  States notes that, in the present case, it has not invoked 
Article  XIX, but rather Article  XXI of the GATT  1994.132 
7.37.  The United  States a rgues that the key issue in this dispute regarding the applicability of the 
Agreement on Safeguards is directly addressed in Article  11.1(c) of that Agreement.133 In this 
respect, the United  States recalls that under Article  11.1(c), the Agreement on Safegu ards does not 
apply to measures "sought, taken or maintained … pursuant to provisions of GATT  1994 other than 
Article XIX". The United  States understands the terms of Article  11.1(c) to mean that the Agreement 
on Safeguards is inapplicable when a Member ac ts "under" a provision of the GATT  1994 other than 
Article  XIX.134 In support of this understanding, the United  States refers to early draft texts of the 
Agreement on Safeguards, which in its view clarify that "the availability of Article  XIX as a release 
from obligations does not constrain a Member's ability to take action pursuant to other provisions of 
the GATT  1994". The United  States also notes that references in these early draft texts to measures 
"consistent with" or "taken in conformity with" other GATT provisions were changed in the final draft 
of Article  11.1(c), which instead refers to measures sought, taken, or maintained "pursuant to" other 
GATT provisions.135 
7.38.  According to the United  States, the Section  232 measures were taken pursuant to Article  XXI 
of the GATT  1994. In this respect and in the context of Article  11.1(c) , the United  States refers to 
the domestic legal basis and procedures for the Section  232 measures as well as relevant statements 
made in WTO committees.136 On this basis, the United  States argues that the Agreement on 
Safeguards does not apply to the Section  232 measures by virtue of Article  11.1(c) of that 
Agreement. For the United  States, this also means that Article  8.2 of the Agreement on Safeguards 
and Article  XIX:3(a) of the GA TT 1994 are inapplicable to China's additional duties measure.137 The 
United  States disagrees with China's argument that the carve -out in Article  11.1(c) does not apply 
in circumstances where a measure "objectively" presents the features of a safeguard meas ure, 
maintaining that "if Article  11.1(c) only applied in certain circumstances, the text would say so".138 
7.39.  In its comments on the findings of the panel in US – Steel and Aluminium Products (China) 
on the applicability of the Agreement on Safeguards and Article  XIX of the GATT  1994 to the 
Section  232 measures,  the United  States argues that those findings may be taken into account  to 
 
127 United  States' response to Panel question No.  24, para.  37. 
128 United  States' opening statement at the first meeting of the Panel, para.  4. 
129 United  States' opening stateme nt at the first meeting of the Panel, paras.  5 and 25. See also 
United  States' response to Panel question No.  52, para.  99 (noting that in using the term "invocation", the 
United  States refers to the exercise of an available right); response to Panel quest ion No.  26, para.  50 (arguing 
that the "invocation" of the right to take a safeguard measure occurs through notification of the measure and 
providing an opportunity for consultation).  
130 United  States' opening statement at the first meeting  of the Panel, p ara. 27 (also noting that "the 
first step in the analysis is the 'objective question' of whether a Member has sought to invoke its right under 
Article  XIX to suspend its obligations or to withdraw concessions … If so, the 'objective question' will turn to 
whether the measure at issue meets additional elements required for meeting the definition of a safeguard.").  
131 United  States' response to Panel question No.  92, para.  79. 
132 United  States' response to Panel question No.  33, para.  67; second written submiss ion, para.  11. 
133 United  States' comments on China's response to Panel question No.  73, para.  16.  
134 United  States' second written submission, paras.  92 and 109.  
135 United  States' response to Panel question No.  73, paras.  25 and 27.  
136 United  States' second w ritten submission, paras.  12-16 and 109; comments on China's responses to 
Panel question Nos. 73 and 85.  
137 United  States' second written submission, paras.  91-92; response to Panel question No.  72.  
138 United  States' response to Panel question No.  92, para . 80. WT/DS558/R  
 
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  the extent that they are persuasive. The United  States considers that the findings in that panel 
report on th e meaning of the expression "pursuant to" in Article  11.1(c) were arrived at through a 
careful assessment of the expression's ordinary meaning in its context. The United  States also 
regards as compelling that panel's assessment of the Section  232 measures in the context of 
Article  11.1(c) . The United  States nevertheless emphasizes that this Panel must conduct an 
objective assessment of the matter before it pursuant to Article  11 of the DSU.139 
7.2.1.2   China  
7.40.  China argues that the Panel should first examine China 's additional duties measure in relation 
to Article  8.2 of the Agreement on Safeguards , and  examine the United  States'  claims under 
Articles  I and II of the GATT  1994 only if the Panel were to find that Article  8.2 of the Agreement on 
Safeguards  does not apply .140 According to China, this approach is based on the correct 
understanding of the legal relationship between the Agreement on Safeguards and Article  XIX of the 
GATT  1994, on the one hand, and Articles I and II of the GATT  1994, on the other hand.141 China 
submits that a measure taken pursuant to and consistent with Article  8.2 of the Agreement on 
Safeguards suspends the application of other obligations under the GATT  1994, and it would thus 
be incorrect for the Panel to assess claims of inconsistency under t he GATT  1994 prior to determining 
the law applicable to the measure at issue.142 
7.41.  China maintains that a  measure  falls under Article  8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994 when it exhibits the following  constituent features : (i) it suspend s 
concessions or obligations ; and (ii)  it pursues the objective of maintaining a substantially equivalent 
level of concessions and other obligations  compared to that existing under the GATT  1994 between 
the Member imposing a safeguard measur e and the Member affected by it.143 In addition, China 
submits that other substantive conditions and procedural requirements may also be considered , 
including : (i) the Member imposing a safeguard and the Member affected by it failed to reach an  
agreement  on trade compensation ; (ii) the suspension of concessions or other obligations takes 
place within 90 days  after the application of the safeguard measure ; (iii) 30 days  have elapsed  from 
the day on which written notice of the suspension of conces sions is received by the Council on Trade 
in Goods; and (iv)  the suspension of concessions or other obligations was not disapproved  by the 
Council on Trade in Goods .144 According to China, its additional duties measure exhibits all of these 
features.145 China argues that it has thus acted "with the explicit authorization of" Article  XIX:3(a) 
of the GATT  1994 and Article  8.2 of the Agreement on Safeguards.146 China further notes that the 
United  States has not made any claims under Article  XIX:3(a) of the GATT  1994 or Article  8.2 of the 
Agreement on Safeguards.147 
7.42.  China argues that determining whether the United  States' Section  232 measures are 
safeguard measures is not a threshold issue for determining whether Article  8.2 of the Agreement 
on Safeguards applies to the additional duties measure. In China's view, the existence of a n 
underlying safeguard measure is a condition for  the consistency  of a measure with Article  8.2 of the 
Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994, but does not control the  
applicability  of those provisions .148 In support of this position, China argues that t he rigid time -
frames provided in Article  8 of the Agreement on Safeguards  do not permit  a Member  that considers 
itself to be affected by a safeguard measure to ascertain ex ante  whether the underlying measure 
is in fact  a safeguard  measure .149 Therefore, in China's view, the existence of an underlying 
safeguard measure cannot be a condition precedent to the applicability of Article  8.2 of the 
Agreement on Safeguards. Relatedly, China argues that the applicability of Article  XIX of the 
 
139 United  States' communications (20  January and 10  February  2023).  
140 China's response to Panel question No.  18, para.  37. 
141 China's response to Panel question No.  18, para.  38. 
142 China's response to Panel question No.  18, paras.  38 and 40.  
143 China's response to Panel question No.  24, paras.  51-53. 
144 China's response to Panel question No.  24, para.  54. 
145 China's second written submission, paras.  115-118. 
146 China's opening statement at the second meeting  of the Panel, para.  38. 
147 China's first written submission, para.  14.  
148 China's response to Panel question No.  24, para.  62; second written submission, p ara. 92. 
149 China's response to Panel question No.  24, para.  59. WT/DS558/R  
 
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  GATT  1994 and the Agreement on Safeguards in the present dispute should be assessed solely based 
on the additional duties measure and not the United  States' Section  232 measures.150 
7.43.  Nevertheless, China maintains that the Section  232 measures  are safeguard measures as 
they present the two "constituent features" of safeguard measures  identified by the Appellate  Body 
in Indonesia – Iron or Steel Products .151 First, China contends that the se measures impose duties 
on alumin ium and steel  imports that exceed the bound rates set forth in the United  States ' tariff 
schedule ; thus, according to China, they " suspend a GATT obligation or withdraw or modify a GATT 
concession ".152 Second , refer ring inter alia  to the statutory basis for the Section  232 measures, the 
investigations and reports that led to the adoption of these measures, and the relevant 
proclamations  of the United  States, China argues that  "the Section  232 measures have a 
demonstrable li nk to the objective of remedying serious injury to domestic industries caused by 
increased imports".153 China considers  that whether the Section  232 measures are safeguard 
measures must be determined through an objective assessment of the ir design, structur e, and 
expected operation , and by giving due consideration to "all relevant factors"  to recognize the aspects 
most central to these measures .154 
7.44.  China also contends that the Section  232 measures include "quota agreements" between the 
United  States  and certa in countries, which are subject to Article  11.1(b) of the Agreement on 
Safeguards.155 For China, the applicability of Article  11.1(b) of the Agreement on Safeguards to 
these quotas further demonstrates that the Section  232 measures are safeguard measures.156 China 
considers that for measures subject to Article  11.1(b) of the Agreement on Safeguards, such as the 
Section  232 measures, it has the right to suspend concessions or other obligations under Article  8.2 
of the Agreeme nt on Safeguards and Article  XIX:3(a) of the GATT  1994.157 
7.45.  China acknowledges that the disciplines of the Agreement on Safeguards, including 
Article  8.2, do not apply to a measure falling under Article  11.1(c) of that Agreement.158 China  
argues , however,  that the carve -out in Article  11.1(c) of the Agreement on Safeguards  does not 
apply to a measure that is "objectively" a safeguard measure .159 China relies on the references to 
Article  XIX of the GATT  1994 in Articles 1 and 11.1(a) of the Agreement on Safeguar ds to contend 
that Article  XIX of the GATT  1994 is the only benchmark for determining whether a particular 
measure is a safeguard measure to which the rules in the Agreement on Safeguards should apply.160 
7.46.  China further argues that the expression "pursuant t o" in Article  11.1(c) of the Agreement on 
Safeguards "requires that the measure is consistent with the relevant legal basis" and that there is 
"a genuine connection between the measure and the provision of the GATT  1994 other than 
Article  XIX".161 In China' s view, a genuine connection between the measure and a provision of the 
GATT  1994 other than Article  XIX cannot be established by the invocation of the provision by a 
Member , but must be determined by objectively analysing the design, structure , and operat ion of 
the measure.162 For China, the domestic legal basis of the Section  232 measures, the procedure 
under which they were adopted, and the non -notification of the measures to the WTO Committee 
on Safeguards are not dispositive in determining the applicabl e rules.163 China contends that the 
 
150 China's first written submission, paras.  80-81; response to Panel question No.  73, para.  21. 
151 China's first written submission, paras.  103-148 (referring to  Appellate  Body Report, Indonesia  – 
Iron or Steel Products, paras.  5.57-5.62). 
152 China's first written submission, para.  103; response to Panel question No.  27, para.  71.  
153 China's first written submission, para.  148. See also first written submission, paras.  113-135 (where 
China argues that the domestic legal basis for the Section  232 measures, the reports underlying these 
measures, as well as the proclamations constituting them mirror the factors under Articles 2 and 4 of the 
Agreement on Safeguards).  
154 China's response to Panel questi on No.  30, paras.  79-81; first written submission, paras.  89-90; 
opening statement at the first meeting of the Panel, paras.  41 and 43.  
155 China's first written submission, para.  149. 
156 China's first written submission, para.  152. 
157 China's response to Panel question No.  72.  
158 China's response to Panel question No.  72, para.  16 (where China also states that Members affected 
by measures falling under Article  11.1(c) of the Agreement on S afeguards would not have the right to suspend 
concessions or other obligations under Article  XIX:3 of the GATT  1994).  
159 China's opening statement at the second meeting  of the Panel, para.  46. 
160 China's response to Panel question No.  73, para.  30. 
161 China's  response to Panel question No.  73, para.  26. (emphasis omitted)  
162 China's response to Panel question No.  73, para.  27.  
163 China's response to Panel question No.  85. WT/DS558/R  
 
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  examination of those measures based on their objective legal characteristics would give meaning to 
both Articles 11.1(a) and 11.1(c) of the Agreement on Safeguards, such that the latter is not 
interpreted in a way that di minishes the application of the former.164 
7.47.  In its comments on the findings by the panel in US – Steel and Aluminium Products (China) 
concerning the applicability of the WTO safeguards regime to the Section  232 measures, China 
argues that the measures at iss ue before this Panel are different (namely, China's additional duties 
measure and not the United  States' measures). China also contends that this Panel must conduct 
its own objective assessment of the matter before it. Finally, China disagrees with the fin dings in 
that panel report, arguing that they were based on an inappropriate interpretation of Article  11.1(c) 
of the Agreement on Safeguards and overly emphasize the United  States characterization of the 
Section  232 measures.165 
7.2.2   Analysis  by the Panel  
7.2.2.1   Intro duction  
7.48.  The parties hold diverging views on which covered agreement applies to the measure at issue 
in this dispute.  On the one hand, China argues that its additional duties measure is subject to 
Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994, and therefore 
that the application of Articles I and II of the GATT  1994 to the measure is suspended.166 On the 
other hand, the United  States maintains that the challenged measure is subject to Articles I and  II 
of the GAT T 1994, and that Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 are not applicable.167 
7.49.  The Panel will begin by setting out its understanding of the provisions in the DSU concerning 
the assessment of the applicability of the relevant covered agreements in a dispute. The Panel will 
then decide the order in which it will conduct its analysis. S pecifically, the Panel will decide whether 
it will begin with a review of the United  States' claims under Articles I and II of the GATT  1994 before 
examining China's argument that the application of the obligations and concessions under those two 
provision s is suspended within the meaning of Article  8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994 or vice versa.  
7.2.2.2   The Panel's duty to assess the applicability of the relevant covered agreements  
7.50.  Article  11 of the DSU requires a panel to m ake "an objective assessment of the matter before 
it, including an objective assessment of the applicability  of and conformity with the relevant covered 
agreements". This  requirement  applies in all disputes, including those where the parties agree on 
which  relevant covered agreements apply to the measures at issue.168 In the specific circumstances 
of this case, the requirement to make an objective assessment of the applicability of the relevant 
covered agreements is of particular significance given the parti es' disagreement.  
7.51.  Under Article  7.2 of the DSU, a panel is required to address "the relevant provisions in any 
covered agreement or agreements cited by the parties to the dispute". In this dispute, while the 
United  States has raised claims under Articles I  and II of the GATT  1994 in its panel request, China 
has identified Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 as 
the provisions applicable to the additional duties measure. Both parties have made extensive 
arguments r egarding the applicability (or non -applicability) of these provisions to the measure at 
issue. The Panel therefore considers that all of these provisions are "relevant" within the meaning 
of Article  7.2 of the DSU and must be addressed in the Panel's analy sis. 
7.52.  Reading Articles 7.2 and 11 of the DSU together, the Panel is of the view that, in making an 
objective assessment of the matter before it, it must determine which provisions of the covered 
agreements apply to China's additional duties measure. To exam ine the United  States' claims under 
Articles I and II of the GATT  1994 without determining their relationship with other provisions raised 
 
164 China's response to Panel question No.  73, para.  31. 
165 China's communications (20  Januar y and 10  February  2023).  
166 China's first written submission, paras.  1-4. 
167 United  States' first written submission, paras.  50 and 67; second written submission, paras.  21 
and 92. 
168 Appellate  Body Report, Indonesia – Iron or Steel Products , para.  5.32.  WT/DS558/R  
 
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  by China (specifically, Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994) would overl ook a disputed issue between the parties and not assist the DSB "in making 
the recommendations or in giving the rulings provided for in the covered agreements" , as prescribed 
in Article  11 of the DSU . The Panel further considers that this would be at odds with the aim of the 
dispute settlement mechanism, as set out in Article  3.7 of the DSU, of securing a positive solution 
to a dispute.  
7.53.  The Panel is mindful of the limits of its authority when assessing the applicability of the 
relevant covered agreements to  the measure at issue in this dispute. Specifically, examining the 
applicability of Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 to 
China's additional duties measure does not imply that the Panel may make findings on the  
consistency of the  additional duties  measure with those two provisions . While  Articles 11 and  7.2 of 
the DSU require  the Panel  to determine  the provisions applicable to the additional duties measure, 
the Panel  can only make findings  on the claims raised a nd provisions  listed in the United  States ' 
panel request169, which does not include Article  8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994. Accordingly, the Panel will only consider Article  8.2 of the 
Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 to the extent necessary to 
determine the applicability of these provisions to the measure at issue.  
7.2.2.3   Order of analysis  
7.54.  The Panel now turns to consider the order in which to conduct its analysis. One possibili ty 
would be to begin by examining the United  States' claims under Articles I and II of the GATT  1994, 
and then proceeding to assess the applicability of Article  8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994 to China's additional duties measure. The United  States and Egypt 
favour this approach.170 Alternatively, the Panel could begin by examining the applicability of 
Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994. Under this 
approach, the Panel woul d only examine the United  States' claims under Articles I and II of the 
GATT  1994 if it were to conclude that Article  8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994 do not apply to the additional duties measure. China and several 
third parties are in favour of this option.171 
7.55.  Neither the DSU nor the relevant provisions of the GATT  1994 or the Agreement on 
Safeguards prescribe a mandatory order of analysis that must be followed in addressing the issues 
raised in this dispute. The Pan el thus has discretion  to structure its order of analysis in  the way it 
consider s most appropriate , provided that its choice is in line with its mandate and functions as laid 
down in the DSU.172 
7.56.  In the specific circumstances of this case, the Panel consider s that beginning with the question 
of whether Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 apply 
to China's additional duties measure is the most appropriate course of action, for the reasons that 
follow.  
7.57.  Article  XIX:3(a ) of the GATT  1994 allows Members to "suspend … the application … of … 
substantially equivalent concessions or other obligations under this Agreement" to the trade of 
another Member taking action under Article  XIX:1 of the GATT  1994. Article  8.2 of the Agr eement 
on Safeguards, which clarifies the disciplines of Article  XIX:3(a) of the GATT  1994173, similarly allows 
Members, under certain conditions, to "suspend … the application of substantially equivalent 
concessions or other obligations under GATT  1994" to  the trade of another Member applying a 
 
169 A panel making findings on provisions that are not listed in the panel request would be acting ultra 
petita , and thus inconsistently with Article  11 of the DSU.  Appellate  Body Report, Chile – Price Band System , 
para. 173. 
170 United  States ' response to Panel question No.  18; Egypt's response to Panel question No.  2(a). 
171 China's response to Panel question No.  18; Canada's response to Panel question No.  2(a); 
European  Union's response to Panel question No.  2(a); Japan's response to Panel question No.  2(a); Norway's 
response to Panel question No.  2; Russian  Federation 's response to Panel question No.  2; Switzerland's 
response to Panel question No.  2; Türkiye's response to Panel question No.  2; Ukraine's third -party 
submission, para.  15. 
172 See Appellate  Body Report, Colombia – Textiles , para.  5.20.  
173 Agreement on Safeguards, preamble, second recital: " Recognizing  the need to clarify and reinforce 
the disciplines of GATT  1994, and specifically those of its Article  XIX (Emergency Action on Imports of 
Particular  Products ) …". WT/DS558/R  
 
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  safeguard measure. Measures falling within the scope of Article  8.2 of the Agreement on Safeguards 
and Article  XIX:3(a) of the GATT  1994 thus "suspend" the application of concessions or other 
obligations under the GA TT 1994. In the context of these two provisions, the Panel understands the 
notion of a suspension of concessions or other obligations to mean that, provided certain conditions 
are met, Members affected by the application of a safeguard measure may temporar ily lift the 
application of tariff concessions or other GATT obligations vis-à-vis the Member applying the 
safeguard measure. In such cases, measures falling within the scope of Article  8.2 of the Agreement 
on Safeguards and Article  XIX:3(a) of the GATT  1994 would not simultaneously be subject to GATT 
rules governing tariff concessions or other obligations that have been suspended.  
7.58.  The Panel therefore considers it most logical to begin its analysis by first determining whether 
Article  8.2 of the Agreement o n Safeguards and Article  XIX:3(a) of the GATT  1994 apply to China's 
additional duties measure, suspending concessions and obligations under Articles I and II of the 
GATT  1994. If that were the case, the Panel would have to conclude its analysis with a find ing that 
Articles I and II of the GATT  1994 do not apply to China's additional duties measure. If, however, 
the Panel were to find that Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 do not apply to the measure at issue, t his would mean that the application of Articles I 
and II of the GATT  1994 has not been suspended. Consequently, the Panel would need to review 
the consistency of China's additional duties measure with the latter set of provisions, as per the 
claims raised by the United  States.  
7.59.  Beginning with an assessment of the applicability of Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994 has the benefit of allowing the Panel to examine 
the United  States' claims under Articles I and II o f the GATT  1994 only to the extent necessary, that 
is, only if the Panel determines that those provisions actually apply to China's additional duties 
measure. Otherwise, the Panel would need to make interim findings under Articles I and II of the 
GATT  1994, which would become moot if the Panel subsequently were to find that the application of 
those provisions to the additional duties measure is suspended under Article  8.2 of the Agreement 
on Safeguards and Article  XIX:3(a) of the GATT  1994.  
7.60.  Accordingly, the  Panel will proceed to examine whether Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994 apply to the additional duties measure. The Panel 
commences by interpreting these provisions in accordance with the customary rules of i nterpretation 
of public international law.174 
7.2.2.4   Interpretation of Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) 
of the GATT  1994  
7.61.  Article  8.2 of the Agreement on Safeguards ( Level of Concessions or Other Obligations ) reads : 
If no agreement is  reached within 30 days in the consultations under paragraph 3 of 
Article  12, then the affected exporting Members shall be free, not later than 90 days 
after the measure is applied, to suspend, upon the expiration of 30 days from the day 
on which written n otice of such suspension is received by the Council for Trade in Goods, 
the application of substantially equivalent concessions or other obligations under 
GATT  1994, to the trade of the Member applying the safeguard measure, the suspension 
of which the Cou ncil for Trade in Goods does not disapprove.  
7.62.  Article  XIX:3(a) of the GATT  1994 ( Emergency Action on Imports of Particular Products ) 
reads:  
If agreement among the interested contracting parties with respect to the action is not 
reached, the contracting party which proposes to take or continue the action shall, 
nevertheless, be free to do so, and if such action is taken or continued, the affect ed 
contracting parties shall then be free, not later than ninety days after such action is 
taken, to suspend, upon the expiration of thirty days from the day on which written 
notice of such suspension is received by the CONTRACTING PARTIES, the application  to 
the trade of the contracting party taking such action, or, in the case envisaged in 
paragraph 1 (b) of this Article, to the trade of the contracting party requesting such 
 
174 Article  3.2 of the DSU.  WT/DS558/R  
 
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  action, of such substantially equivalent concessions or other obligations under t his 
Agreement the suspension of which the CONTRACTING PARTIES do not disapprove.  
7.63.  Article  8.2 of the Agreement on Safeguards sets out the right of a Member "to suspend … 
concessions or other obligations under GATT  1994 [] to the trade of" another Member, pr ovided that 
certain conditions are met.  The exercise of this  right is part of a process laid down  in Article  8 of the 
Agreement on Safeguards designed to preserve  the level of concessions and other obligations 
existing under the GATT  1994.  
7.64.  In this respect, Article  8.1 of the Agreement on Safeguards requires Members proposing to 
apply a safeguard measure (or seeking to extend its application) to endeavour to maintai n, vis-à-
vis other Members affected by that safeguard measure, a level of concessions or other obligations 
substantially equivalent to that existing under the GATT  1994. To this effect, Article  8.1 of the 
Agreement on Safeguards establishes that the Member s concerned may agree on adequate means 
of trade compensation for the adverse effects of the safeguard measure on their trade. Article  8.2 
of the Agreement on Safeguards then stipulates that, if the Member applying the safeguard measure 
and the affected ex porting Members fail to reach an agreement on adequate means of trade 
compensation, the affected Members shall have the right, subject to certain conditions, to suspend 
the application of substantially equivalent concessions or other obligations under the GATT  1994 to 
the trade of the Member applying the safeguard measure. Next, Article  8.3 of the Agreement on 
Safeguards sets out certain temporal and substantive limitations on the exercise of the right to 
suspend concessions or other obligations under the G ATT 1994 vis-à-vis the Member applying a 
safeguard measure.  
7.65.  The Panel considers that the ordinary meaning of the terms of Article  8.2 of the Agreement 
on Safeguards plainly links the right to suspend concessions or other obligations under the 
GATT  1994 to the application of a safeguard measure by another Member. Indeed, the provision 
stipulates that affected exporting Members "shall be free … to suspend … the application of 
substantially equivalent concessions or other obligations … to the trade of the Memb er applying the 
safeguard measure ".175 In the Panel's view, this language indicates that the right under Article  8.2 
of the Agreement on Safeguards becomes available only to rebalance the adverse effects of a 
safeguard measure. The French and Spanish versio ns of Article  8.2 of the Agreement on Safeguards 
equally reserve the right provided in that provision only to Members affected by a " mesure de 
sauvegarde " or a " medida de salvaguardia ".176 
7.66.  An examination of the text of Article  8.2 of the Agreement on Safegu ards shows that the right 
to suspend concessions or other obligations under the GATT  1994 established in this provision is 
subject to several requirements, including that: (a) n o agreement  on adequate means of trade 
compensation maintaining a level of conc essions or other obligations substantially equivalent to 
those existing under the GATT  1994 is reached between the Member proposing to apply or extend 
a safeguard measure and other Members having a substantial interest as exporters of the product 
concerned , within 30 days from the application of the safeguard measure; (b) n ot more than 90 
days have passed from the application of the safeguard measure; and (c) a Member affected by a 
safeguard measure suspends the application of " substantially equivalent " concessions  or other 
obligations to the trade of the Member applying the safeguard measure. The Panel observes that all 
of these requirements are contingent upon a safeguard measure being applied or extended by 
another Member.177 
7.67.  The immediate context of Article 8.2 of the Agreement on Safeguards supports the Panel's 
understanding . Article  8 of the Agreement on  Safeguards refers to "safeguard measure" five times, 
and to "such a measure" twice. Only in one case does Article  8 refer to "the measure", without 
further qualification, at the end of the final sentence of paragraph 1. There, the provision  stipulates 
that the Members concerned may agree on adequate means of trade compensation for the adverse 
effects of "the measure" on their trade. For the Panel,  this can only be read as referring to the 
 
175 Emphasis added.  
176 Under Article  33(1) of the Vienna  Convention, "[w]hen a treaty has been authenticated in two or 
more languages, the text is equally authoritative in each language, unless the treaty provides or the parties 
agree that, in case of divergence, a particular t ext shall prevail".  
177 A fourth requirement in Article  8.2 of the Agreement on Safeguards envisages that the right to 
suspend concessions or other obligations be exercised upon expiration of 30 days  from the day on which 
written notice of the proposed suspe nsion of concessions or other obligations  is received by the Council for 
Trade in Goods, provided that the latter does not disapprove  it. WT/DS558/R  
 
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  "safeguard measure" mentioned at the beginning of the paragraph, which is the basis for the 
negotiations and eventual agreement foreseen in this final sentence. This understanding is consistent 
with the logic and the stru cture of Article  8 of the Agreement on Safeguards as a whole, which, as 
noted above, envisages a process that is premised on the adoption  or extension  of a safeguard  
measure. A ll other steps outlined in  Article  8 of the Agreement on Safeguards  flow from , and depend 
on, this premise. The immediate context of Article  8.2 of the Agreement on Safeguards thus 
underscores that a safeguard measure is a necessary precondition and the basis for the rights and 
procedures laid out therein.  
7.68.  The Panel's understanding of Article  8.2 of the Agreement on Safeguards  is also consistent 
with the broader context of the Agreement on Safeguards. In this connection,  the Panel considers  
Article  11.1 of the Agreement on Safeguard s (Prohibition and Elimination of Certain Measures ) to be 
particularly relevant. This provision establishes certain rights and obligations for Members depending 
on the characterization of a measure under the Agreement on Safeguards. First, Article  11.1(a) 
stipulates that Members " shall not take or seek any emergency action on imports of particular 
products as set forth in Article  XIX of GATT  1994 unless such action conforms with the provisions of 
that Article  applied in accordance with this Agreement ". This provision must be read in conjunction 
with Article  1 of the Agreement on Safeguards, according to which the Agreement " establishes rules 
for the application of safeguard measures which shall be understood to mean those measures 
provided for in Article  XIX of GATT  1994" . Thus, Article  11.1(a) of the Agreement on Safeguards 
establishes that Members can take or seek safeguard measures, which must conform with Article  XIX 
of the GATT  1994 applied in accordance with the Agreement on Safeguards.  
7.69.  Under Article  11.1(b), Members shall not "seek, take or maintain any voluntary export 
restraints, orderly marketing arrangements or any other similar measures on the export or the 
import side". To the extent that any such measures were in effect on the date of entry into force of 
the WTO  Agreement, they should have either been phased out within a short time -frame after the 
entry into force of the Agreement on Safeguards or brought into conformity with the provisions 
thereof.  
7.70.  Finally, Article  11.1(c) provides that the Agree ment on Safeguards does not apply to 
"measures sought, taken or maintained by a Member pursuant to provisions of GATT  1994 other 
than Article XIX, and Multilateral Trade Agreements in Annex 1A other than this Agreement, or 
pursuant to protocols and agreeme nts or arrangements concluded within the framework of 
GATT  1994".  
7.71.  Article  11.1 of the Agreement on Safeguards conditions the disciplines applicable to measures 
upon their characterization under the three subparagraphs of that provision. If a Member is seek ing 
or taking a safeguard measure, that Member is subject to several obligations under the Agreement 
on Safeguards. This includes endeavouring "to maintain a substantially equivalent level of 
concessions or other obligations to that existing under the GATT  1994 between it and exporting 
Members" affected by the safeguard measure as provided in Article  8.1. Relatedly, Members affected 
by a safeguard measure have a right to suspend concessions or other obligations in response to that 
measure under the terms of  Article  8.2 of the Agreement on Safeguards. This right is, however, not 
available if the underlying measure has a different characterization under the subparagraphs of 
Article  11.1 of the Agreement on Safeguards,  and is correspondingly subject to differen t legal 
disciplines . 
7.72.  Reading the multiple references to a "safeguard measure" in Article  8 of the Agreement on 
Safeguards in this broader context, the Panel considers that the characteri zation of an underlying 
measure  as a safeguard measure or otherwise is a necessary analytical step in determining the 
applicability or inapplicability of  Article  8.2 of the Agreement on Safeguards . 
7.73.  The Panel further considers this understanding to be consistent with the object and purpose 
of the Agreement on Safeguards . The second recital of the Agreement's preamble recognizes "the 
need to clarify and reinforce the disciplines of GATT  1994, and specifically those of its Article  XIX 
(Emergency Action on Imports of Particular Products ), to re -establish multilateral control over  
safeguards and eliminate measures that escape such control". The preamble thus confirms the 
distinct treatment of measures depending on their characterization under the Agreement on 
Safeguards. In the Panel's view, such distinction is therefore central to  the structure and logic of the 
entire Agreement on Safeguards and should inform the reading of its provisions. In particular, this 
suggests to the Panel that Article  8.2 of the Agreement on Safeguards can only be interpreted as WT/DS558/R  
 
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  concerning rights and oblig ations related to or flowing from safeguard measures, which are the 
measures over which the Agreement on Safeguards establishes multilateral control.  
7.74.  Based on the foregoing, the Panel considers that the ordinary meaning of the terms of 
Article  8.2 of the A greement on Safeguards, in their context and in the light of the object and purpose 
of the Agreement on Safeguards, conditions the right to suspend concessions or other obligations 
under the GATT  1994 upon a "safeguard measure" being applied by another Member.  
7.75.  Article  XIX:3(a) of the GATT  1994 is the other relevant provision for the purposes of the 
Panel's assessment. According to Article  XIX:3(a), a Member affected by "the action" taken or 
continued by another Member under paragraph 1 of the sam e provision shall be free, subject to 
certain conditions, to suspend the application of GATT concessions or obligations to the trade of the 
Member taking such action. Article  XIX:3(a) of the GATT  1994 also provides that the GATT 
concessions or obligations so suspended must be "substantially equivalent to" the "action" envisaged 
under Article  XIX:1 of the GATT  1994.  
7.76.  Under Article  XIX:3(a) of the GATT  1994, for a Member to have a right to suspend concessions 
or other obligations under the GATT  1994, another M ember must have taken or continued an "action" 
under Article  XIX:1 of the GATT  1994. According to Article  1 of the Agreement on Safeguards, 
measures provided for in Article  XIX of the GATT  1994 shall be understood to be safeguard 
measures. It follows that,  like Article  8.2 of the Agreement on Safeguards, Article  XIX:3(a) of the 
GATT  1994 establishes a conditional right to suspend concessions or other obligations under the 
GATT  1994 in response to a safeguard measure. Thus, in the Panel's view, the applicati on of a 
safeguard measure is a necessary precondition under both Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994 for this right to become available to affected 
Members.  
7.77.  The Panel notes the parties' agreement that, in the ab sence of a safeguard measure applied 
by a Member, another Member would not have the right, under Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994, to suspend concessions or other obligations 
under the GATT  1994.178 China, how ever, considers that a measure may be subject to or covered 
by Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 regardless of 
whether an underlying safeguard measure exists, but that in the absence of an underlying safeguard , 
the measure taken in response would be inconsistent with those provisions.179 For China, a Member 
would not "have the 'right' to implement a rebalancing measure" in the absence of an underlying 
safeguard measure because that "would make the rebalancing me asure inconsistent with 
Article  8.2". However, such a circumstance would not "make Article  8.2 inapplicable in the first 
place."180 
7.78.  On the basis of its interpretation of Article  8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994, the P anel is not persuaded by China's position. As the Panel has 
explained, both provisions plainly link the right to suspend concessions or other obligations to the 
application of a safeguard measure by a Member. It is this safeguard measure that triggers the 
availability of Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994. In 
the Panel's view, in the absence of an underlying safeguard measure, concessions and other 
obligations under the GATT  1994 may not be suspended within the meaning of Article  8.2 of the 
Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994, as both these provisions would 
simply not apply. Any question regarding the consistency of measures taken with Article  8.2 of the 
Agreement on Safeguards and Artic le XIX:3(a) of the GATT  1994 would  therefore not arise . 
7.79.  China further argues that  if an underlying safeguard measure were a requirement for the 
applicability of Article  8.2 of the Agreement on Safeguards , that provision  would be rendered  without 
effect . This is because, in its view, whether a Member has applied such a  safeguard measure would 
have to be confirmed by a WTO panel before an exporting Member could suspend concessions or 
other obligations in response , but the dispute settlement process exceeds th e timeline  for the 
exercise of the rights  foreseen in Article  8 of the Agreement on Safeguards. Hence, China  argue s 
that if an underlying safeguard were a condition precedent to the application of Article  8.2 of the 
 
178 United  States' second written submission, paras.  140-143; China's second written submission, 
para. 91. 
179 China's sec ond written submission, paras.  92-95. 
180 China's second written submission, para.  95. (emphasis omitted)  WT/DS558/R  
 
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  Agreement on Safeguards,  it would in pra ctice be impossible for a Member  to ever avail itself of the 
right provided for under Article  8.2 of the Agreement on Safeguards  within the specified 
time-frame.181 
7.80.  The Panel does not share China's view. The Panel does not interpret Article  8 of the Agreeme nt 
on Safeguards to require in all cases confirmation by a WTO panel regarding the application of a 
safeguard measure by a Member before another Member can suspend concessions or other 
obligations under the GATT  1994. Whether a Member has applied a safegua rd measure may not be 
a point of contention, and the Members concerned may resort to the provisions of Article  8 of the 
Agreement on Safeguards without having recourse to dispute settlement. In the present case, 
however, the Panel notes that (i)  the applic ation of an underlying safeguard measure by the 
United  States is a point of contention; (ii)  dispute settlement proceedings have been initiated; and 
(iii) the parties' disagreement touches upon the determination of the relevant provisions of the 
covered ag reements applicable to the measure at issue. In these circumstances, the Panel is required 
to examine the issue as part of its objective assessment.  
7.81.  Accordingly, based on its understanding of the text, the logic, and the structure of the relevant 
provision s of the Agreement on Safeguards and the GATT  1994, the Panel considers that whether 
Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 apply to China's 
additional duties measure depends on  the characterization under the Agreement on Safeguards of 
the underlying measure adopted  by the United  States.  
7.2.2.5   Whether Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 apply to China's additional duties measure  
7.82.  The relevant measures of the United  States,  in response to which China has imposed  the 
additional duties measure , are the measures "Adjusting Imports of Aluminum" and "Adjusting 
Imports of Steel" into the United  States (the Section  232 measures).182 
7.83.  As a pre liminary matter, the Panel notes China's  argum ent that the Section  232 measures 
are not the measures at issue in this dispute and that the Panel should assess  the applicability of 
Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 to its additional 
duties measure without considering the Section  232 measures.183 The United  States  does not object 
to the consideration of the Section  232 measures by this Panel .184 Both parties have submitted 
arguments and evidence concerning the back ground, legal basis, and application of the Section  232 
measures.185 
7.84.  In the light of its earlier conclusion that the applicability of Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994 to the additional duties measure  depends o n 
whether a Member has applied a safeguard measure, the Panel does not consider that it  can make 
an objective assessment of the applicability of the relevant provisions of the covered agreements to 
the measure at issue in this dispute without reviewing  the characterization  of the Section  232 
measures  under the Agreement on Safeguards . In the Panel's view, the examination of the 
arguments and evidence  submitted by the parties in this connection is essential to secure a positive 
solution to the present dispute.  The Panel will accordingly proceed to examine the characterization  
of the Section  232 measures  under the Agreement on Safeguards.  
7.85.  The Panel recalls that  Article  11.1 of the Agreement on Safeguards stipulates the disciplines 
that apply to a measure  depending upon its characterization under that provision .186 China argues  
 
181 China's response to Panel question No.  35, paras.  94-95; No.  24, para.  59. 
182 China's first written submission, para.  1; opening statement at the first  meeting  of the Panel , 
para. 3. The Panel notes that the applicability of the Agreement on Safeguards and Article  XIX of the 
GATT  1994 to the United  States' Section  232 measures was also examined by the panel in US – Steel and 
Aluminium Products (China) . Recalling its duty under Article  11 of the DSU, this Panel will make its own 
objective assessment of the characterization of the Section  232 measures and will refer to the reasoning of 
that panel to the extent that it finds the same relevant and persuasive.  
183 China's first written submission, paras.  81 and 82; second written submission, paras.  119 and 121; 
response to Panel question No.  24. 
184 United  States ' response to Panel question No.  24. 
185 For instance , United  States ' second written submission, paras.  11-17 and 132 -138; China's first 
written submission, section IV.D.  
186 See para.  7.71 above.  WT/DS558/R  
 
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  that the Section  232 measures are "safeguard measures" under the Agreement on Safeguards, 
which must conform to the disciplines set out in Article  11.1(a) of t hat Agreement (namely, 
Article  XIX of the GATT  1994 applied in accordance with the Agreement on Safeguards). China also 
regards  the Section  232 measures as similar to voluntary export restraints and , therefore,  subject 
to Article  11.1(b) of the Agreement on Safeguards. In the Un ited States' view, the Section  232 
measures are "measures sought, taken or maintained … pursuant to provisions of GATT  1994 other 
than Article  XIX" within the meaning of Article  11.1(c) of the Agreement on Safeguards, to which 
that Agreement "does not appl y". 
7.86.  The Panel observes that, in relation to the applicability of the Agreement on Safeguards , both 
parties agree that Article  11.1(c) excludes certain measures  from the scope of application of that 
Agreement.187 They further acknowledge that Members affecte d by measures to which the 
Agreement on Safeguards does not apply do not have the right to take action  under Article  8.2 of 
the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994.188 The point of contention 
between the parties , based on their dif fering interpretations of Article  11.1(c) of the Agreement on 
Safeguards189, is whether the Section  232 measures are measures of the kind described in 
Article  11.1(c).  
7.87.  The Panel will begin its analysis by setting out its understanding of Article  11.1(c) of the 
Agreement on Safeguards, before turning to consider the Section  232 measures in the light of its 
interpretation of that provision.  
7.2.2.5.1   Interpretation of Article  11.1(c) of the Agreement on Safeguards  
7.88.  Article  11.1 of the Agreement on Safeguards ( Prohibition  and Elimination of Certain Measures ) 
reads:  
1. (a) A Member shall not take or seek any emergency action on imports of particular 
products as set forth in Article  XIX of GATT  1994 unless such action conforms with the 
provisions of that Article  applied in a ccordance with this Agreement.  
(b) Furthermore, a Member shall not seek, take or maintain any voluntary export 
restraints, orderly marketing arrangements or any other similar measures on the export 
or the import side. [3,4] These include actions taken by a single Member as well as actions 
under agreements, arrangements and understandings entered into by two or more 
Members. Any such measure in effect on the date of entry into force of the 
WTO Agreement  shall be brought into conformity with this Agreement or phased out in 
accordance with paragraph 2.  
(c) This Agreement does not apply to measures sought, taken or maintained by a 
Member pursuant to provisions of GATT  1994 other than Article  XIX, and Multilateral 
Trade Agreements in Annex  1A other than this Agree ment, or pursuant to protocols and 
agreements or arrangements concluded within the framework of GATT  1994. 
3 An import quota applied as a safeguard measure in conformity with the relevant provisions of 
GATT  1994 and this Agreement may, by mutual agreement,  be administered by the exporting 
Member.  
 
187 United  States ' response to Panel question No.  73; China's comments on the United  States ' response 
to Panel question No.  73. 
188 United  States ' response to Panel question No.  72; China's response to Panel question No.  72. 
189 According to China, for the Section  232 measures to be "pursuant to " provisions of the GATT  1994 
other than Article  XIX, they must be "consistent with" such other provisions . China's response to Panel 
question No.  73. On the other hand, the United  States  does not seem to consider that the expression "pursuant 
to" in Article  11.1(c) mean s the consistency of a measure with provisions of the GATT  1994 other than 
Article  XIX. (See United  States ' second written submission, para.  116 (where the United  States  argues that 
Article  11.1(c) precludes the application of the Agreement on Safeguards to any measure sought, taken , or 
maintained "under" a provision of the GATT  1994 other than Article  XIX); response to Panel question No.  73 
(where the United  States  notes that in using the expression "pursuant to", Article  11.1(c) departs from 
previous drafts of the Agreement on Safeguards , which referred to measures "consistent with" or "taken in 
conformity with" certain GATT provisions) ).  WT/DS558/R  
 
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  4 Examples of similar measures include export moderation, export -price or import -price monitoring 
systems, export or import surveillance, compulsory import cartels and discretionary export or 
import licensing schem es, any of which afford protection.  
7.89.  The Panel understands  the phrase " [t]his Agreement does not apply" in Article  11.1(c)  to 
explicitly limit the scope of application of the Agreement on Safeguards by carving out "measures 
sought, taken or maintained by a Member pursuant to provisions of GATT  1994 other than 
Article  XIX" from the purview of that Agreement.190 This is also recognized in the French and Spanish 
texts of Article  11.1(c), in which the expressions " ne s'applique pas " and " no es aplicable " 
respecti vely signify that the Agreement on Safeguards is inapplicable to certain " mesures " or 
"medidas ". Further, the Panel sees no  indication in the text of the Agreement on Safeguards that 
the carve -out in Article  11.1(c) is subject to or qualified by other prov isions in that Agreement. The 
Panel t hus understands that  all disciplines  of the Agreement on Safeguards are inapplicable to 
measures of the kind described in Article  11.1(c) of the Agreement , including Article  8.2 of the 
Agreement on Safeguards, which for esees that certain rights are available only to Members affected 
by safeguard measures. Moreover, the Panel does not consider that Article  XIX:3(a) of the 
GATT  1994 provides Members with a right to suspend concessions or other obligations under the 
GATT  1994 in response to measures that are not subject to the disciplines of the Agreement on 
Safeguards .191 
7.90.  The expression "pursuant to" in Article  11.1(c) of the Agreement on Safeguards links 
"measures sought, taken or maintained by a Member" to "provisions of GATT  1994 other than 
Article  XIX". Depending on the context in which it is used, "pursuant to"  may have different 
meanings. A measure could be "pursuant to" a provision in the sense that it is consistent  or in 
conformity with  that provision. A measure could also be "pursuant to" a provision when it is adopted 
by virtue of or under that provision , regardless of whether it is consistent with that provision . The 
Panel notes that the Agreement on Safeguards uses the expression "pu rsuant to" in different ways. 
In some instances, the expression refers to a requirement of consistency with a provision of the 
covered agreements; in others, it appears to denote measures taken under a provision of the 
covered agreements.192 To determine th e meaning of "pursuant to" in Article  11.1(c) of the 
Agreement on Safeguards, the Panel  will assess the ordinary meaning of this expression in the 
context in which it appears  in Article  11.1(c) , and in  the light of the object and purpose of the 
Agreement o n Safeguards , as required by the customary rules of interpretation of public 
international law.193 
7.91.  In Article  11.1(c) of the Agreement on Safeguards, the expression "pursuant to " is part of  a 
provision that pertains to  the applicability of the Agreement on Safeguards. Specifically , as 
suggested by the opening phrase "[t]his Agreement does not apply", Article  11.1(c) determines 
whether the disciplines applicable to a measure sought, taken , or maintained by a Member are  not 
those provided in the Agreement on S afeguards , but those contained in "provisions of GATT  1994 
other than Article  XIX". In the Panel's view, to condition the applicability of "provisions of GATT  1994 
other than Article  XIX" to a measure upon its consistency with such other provisions would c onflate 
two distinct issues , namely,  the applicability of the relevant covered agreements  and conformity 
with those agreements . In this light, the Panel is not persuaded by China's argument that the 
expression "pursuant to" in Article  11.1(c) denotes consi stency  with provisions of the GATT  1994 
 
190 The Panel notes that, as per the terms of Article  11.1(c), the Agreement on Safeguards also does not 
apply to measures sought, taken, or maintained pursuant to " Multilateral Trade Agreements in Annex  1A other 
than this Agreement " or pursuant to "protocols and agreements or arrangements concluded within the 
framework of GATT  1994".  
191 The Panel recalls its un derstanding of the relationship between Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994 as set out in paragraph 7.76 above.  
192 For example, Article  2.1 of the Agreement on Safeguards states that "[a] Member may apply a 
safeguard measure to a product only if that Member has determined, pursuant to  the provisions set out 
below" , that certain conditions exist . (emphasis added) In this instance , the expression "pursuant to" is part of 
a provision that has  been interpreted as establishing requirements with which Members must comply . 
(Appellate  Body Report, US – Steel Safeguards, para. 264). This expression is represented in the French and 
Spanish texts of Article  2.1 with the terms " conformément " and " con arreglo a ", respectively. Another example 
is Article  10 of the Agreement on Safeguards, referring to "measures taken pursuant to A rticle XIX of GATT 
1947". The French and Spanish texts of Article  10 describe these measures as " mesures … au titre de 
l'article  XIX du GATT de 1947 " and " medidas … al amparo del artículo XIX del GATT de 1947 ", respectively , and 
the three authentic texts o f this provision do not appear to be referring to consistency of measures with the 
GATT 1947.  
193 Article  3.2 of the DSU.  WT/DS558/R  
 
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  other than Article  XIX. The Panel's understanding  of Article  11.1(c) is that , in the case of measures 
sought, taken, or maintained by virtue of or under "provisions of GATT other than Article  XIX", the 
Agreement on Safeguards does not apply , irrespective of whether the measures  are consistent  with 
such other provisions . 
7.92.  The Panel finds support for this understanding of Article  11.1(c)  in the context provided by 
the other paragraphs of Article  11.1 of the  Agreement on Safeguards. In stipulating that a safeguard 
measure must be consistent with certain disciplines, Article  11.1(a) requires that the measure  
"conform s with" the provisions of Article  XIX of the GATT  1994 applied "in accordance with" the 
Agreeme nt on Safeguards. Similarly, concerning the prohibition on  seeking, taking, or maintaining 
voluntary export restraints, orderly marketing arrangements , or any other similar measures , 
Article  11.1(b) directs that any such measures  that are in effect on the date of the entry into force 
of the WTO  Agreement  must be brought "into conformity with " the Agreement  on Safeguards , or 
phase d out " in accordance with " Article  11.2 of that Agreement. Footnote 3 to Article  11.1(b) 
specifies that an exporting Member may, u nder certain conditions, administer an  import quota 
applied as a safeguard measure "in conformity with the relevant provisions of GATT  1994 and [the 
Agreement  on Safeguards]". Thus, where Article  11.1 stipulates an obligation to conform  with 
provisions of the Agreement on Safeguards  or with relevant provisions of the GATT  1994, it does so 
explicitly. In contrast, Article  11.1(c) of the Agreement on Safeguards does not contain a ny explicit 
references to  consistency with "provisions of GATT  1994 other than Article  XIX". 
7.93.  This is equally  true for the French text of the Agreement on Safeguards . In Articles 11.1(a) 
and 11.1(b), the French text uses the terms " conforme au " (or the plural " conformes aux " as 
appropriate) and " conformément " to signify ob ligations to comply with provisions of the Agreement 
on Safeguards or relevant provisions of the GATT  1994. On the other hand, the French text of 
Article  11.1(c) conditions the inapplicability of the Agreement on Safeguards on whether the 
measures in quest ion were sought, taken, or maintained " en vertu de " provisions of the GATT  1994 
other than Article  XIX. The use of different terms in the English and French texts of Article  11.1(c) 
when compared with the immediately preceding paragraphs of Article  11.1 in dicates that  "pursuant 
to" in Article  11.1(c)  has a different meaning to  consistency  with provisions of the GATT  1994 other 
than Article  XIX. Particularly noteworthy is the use of the expression " en vertu de " in the French text 
of Article  11.1(c), which su ggests that Article  11.1(c) concerns measures sought, taken, or 
maintained by virtue of or under provisions  of the GATT  1994 other than Article  XIX.194 
7.94.  In the Spanish text of the Agreement on Safeguards, the expression corresponding to 
"pursuant to" in Arti cle 11.1(c) is " de conformidad con ". This expression has several meanings.195 
Depending on the context, the Spanish text of the Agreement on Safeguards  uses the expression 
"de conformidad con " variably to indicate "consistency" with the Agreement , as well a s other kinds 
of relationships between a measure and the relevant provision.  For example, the Spanish expression 
"conformidad con " in Articles 11.1(a) and 11.1(b) of the Agreement on Safeguards appears in the 
English and French texts as "conformity with" and " conformément  aux", respectively. In contrast, in 
footnote 1 to Article  2.1 of the Agreement on Safeguards, the terms corresponding to " conformidad 
con el presente Acuerdo " are "under this Agreement" and " au titre du présent accord " in English and 
French respectively, which do not seem to denote consistency.196 Thus, the Panel does not consider 
 
194 Dictionnaire Larousse de Français  (defining the expression " en vertu de " as " en conséquence de ", 
"par l'effet de ", or " au nom de" ). The Panel notes the expression  "en vertu de " only features in two other 
provisions of the Agreement on Safeguards , both of which confirm the Panel's understanding of this expression 
as used in Article  11.1(c) of the Agreement . Article  8.1 of the Agreeme nt on Safeguards refers to the level of 
concessions and other obligations  existing "en vertu du GATT de 1994 ", denoted in the English text as "under 
GATT  1994", and thus does not suggest that concessions or obligations must be in conformity with GATT  1994. 
Article  12.8 of the Agreement on Safeguards refers to notifications by Members " qui sont tenus de le faire en 
vertu du présent accord ". The terms corresponding to notifications  "en vertu du présent accord  " in the English 
text of Article  12.8 are "by this Agreement". To denote the obligation of making such notifications, the terms 
"by this Agreement" or " en vertu du présent accord " are used together with explicit references to a 
requirement or, in French, the expression "[ils] sont tenus d e le faire ", respectively.  
195 Diccionario de la Lengua Española , 22nd Edition (Real Academia Española, 2001), pp. 420 -421 
(defining " conformidad con " as " con arreglo a ", "a tenor de ", "en proporción o correspondencia a ", or "de la 
misma suerte o manera que "). 
196 For other examples in the covered agreements, see Article  3.9 of the DSU (referring to "the rights of 
Members to seek authoritative interpretation … through decision -making under the WTO  Agreement" in 
English, " droit des Membres de demander une interprétation faisant autorité … par la prise de décisions au titre 
de l'Accord sur l'OMC " in French, and " el derecho de los Miembros de recabar una interpretación autorizada … 
 WT/DS558/R  
 
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  that the use of " de conformidad con " in Article  11.1(c) in and of itself denotes that " medidas que un 
Miembro trate de adoptar, adopte o manteng a" must be consistent with " otras disposiciones del 
GATT de 1994, aparte del artículo XIX " for the Agreement on Safeguards to be inapplicable. In the 
Panel's view, r ead in the context of a provision governing the applicability of the Agreement on 
Safeguard s197, "de conformidad con " must be understood as referring to measures adopted by virtue 
of or under certain provisions , but not requiring consistency with such provisions. Accordingly , the 
three authentic language versions of Article  11.1(c) of the Agreeme nt on Safeguards converge in 
this respect.  
7.95.  The Panel's understanding of the terms of Article  11.1(c) comports  with the broader context 
of the Agreement on Safeguards . As clarified in Article  1 of the Agreement, the Agreement on 
Safeguards "establishes rules for the application of safeguard measures". This "General Provision" 
resonates  in other provisions of the Agreement on Safeguards, which broadly relate to one of two 
enquiries: (i)  whether there is a right to apply safeguard measure s, and  (ii) if so, whether that right 
has been exercised  within the limits set out in the Agreement .198 The Agreement on Safeguards thus 
prescribes rules and requirements for a specific kind of measure identified in that Agreement. The 
consistency of measures with " provisions of GATT  1994 other than Article  XIX, and Multilateral Trade 
Agreements in Annex  1A other than [the Agreement  on Safeguards]" is not a matter regulated by 
the Agreement on Safeguards, and Article  11.1(c) must be interpreted taking this important 
consideration into account.  
7.96.  In this connection, the Panel recalls its discussion above of the object and purpose of the 
Agreement on Safeguards, which confirms th at different disciplines apply to measures depending on 
their characterization  under the Agreemen t on Safeguards, as reflected in Article  11.1 of that 
Agreement.199 In particular, the Agreement on Safeguards seeks to " re-establish multilateral control 
over safeguards " (expressed through the mandatory conditions in Article  11.1(a) with which 
safeguard m easures must conform)  and to "eliminate measures that escape such control " 
(expressed through the prohibition of the measures described in Article  11.1(b)). The object and 
purpose of the  Agreement on Safeguards is thus to regulate, and in particular to sec ure the WTO 
consistency of, measures of the kind described in Articles 11.1(a) and 11.1(b) of the Agreement, 
and not those excluded from its scope under Article  11.1(c). The Panel does not consider that an 
interpretation of Article  11.1(c) of the Agreement  of the Safeguards that brings the question of 
whether a measure is consistent with " provisions of GATT  1994 other than Article  XIX" within the 
scope of the Agreement on Safeguards would be consistent with this clearly articulated aim and 
focus of the Agre ement.  
7.97.  The parties have also referred to supplementary  means of interpretation, such as the 
preparatory work of the Agreement on Safeguards , in support of their interpretative arguments. 
Under Article  32 of the Vienna  Convention, the Panel may have recours e to this preparatory work to 
confirm its interpretation of Article  11.1(c) set out above. The Panel observes that early  draft texts 
of the Agreement on Safeguards sought to preserve the rights and obligations of contracting parties 
regarding trade -restric tive measures "taken in conformity with" or "consistent with" other GATT 
provisions.200 These references to conformity and consistency were removed from subsequent drafts  
of the provision that became Article  11.1(c) of the Agreement on Safeguards, in favour  of the 
expression "pursuant to".201 The Panel also notes that references to conformity and consistency were 
only removed from Article  11.1(c) of the Agreement on Safeguards , but retained in the other 
paragraphs of Article  11.1, which provide context for the interpretation of Article  11.1(c).  This 
 
mediante decisiones adoptadas de conformidad  con el Acuerdo sobre la OMC " in Spanish); Article  3.11 of the 
DSU (referring to " requests for consultations under the consultation provisions of the covered agreements " in 
English, " demandes de consultations présentées au titre des dispositions des accord s visés " in French, and 
"solicitudes de celebración de consultas que se presenten de conformidad con las disposiciones sobre consultas 
de los acuerdos abarcados " in Spanish); and Article  4.11 of the DSU (providing that a Member shall be free to 
request " consultations under paragraph 1 of Article  XXII", "consultations au titre du paragraphe 1 de l'article 
XXII", and " consultas de conformidad con el párrafo 1 del artículo XXII " in English, French and Spanish , 
respectively).  
197 See para.  7.91 above.  
198 Appellate  Body Report, US – Line Pipe, para. 84.  
199 See para.  7.73 above.  
200 Negotiating Group on Safeguards, Chairman's Report on Status of Work in the Negotiating Group 
(13 July 1990), MTN.GNG/NG9/W/25/Rev.2, p. 3; Negotiating Group on Safeguards, Draft Tex t of an 
Agreement (31  October  1990), MTN.GNG/NG9/W/25/Rev.3, p. 9.  
201 Trade Negotiations Committee, Draft Final Act Embodying The Results of the Uruguay Round of 
Multilateral Trade Negotiations (20  December  1991), MTN.TNC/W/FA, p. M.7.  WT/DS558/R  
 
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  preparatory work  thus confirm s the Panel's understanding that  Article  11.1(c)  does not pertain to 
the consistency of measures exclu ded from the scope of the Agreement on Safeguards.  
7.98.  Based on the foregoing, the Panel considers that Article  11.1(c) excludes from the scope of 
the Agreement on Safeguards  measures that are sought, taken , or maintained by virtue of or under 
provisions of th e GATT  1994 other than Article  XIX. In the Panel's view,  Article  11.1(c) is not 
concerned with the consistency of such measure s with the provisions of the GATT  1994 pursuant to 
which they are sought, taken, or maintained.  
7.99.  The Panel now turns to certain int erpretive arguments raised by the parties. China maintains 
that if  a measure is "objectively " a safeguard measure, that measure could not have been sought, 
taken, or maintained pursuant to provisions of the GATT  1994 other than Article  XIX within the 
meani ng of  Article  11.1(c)  of the Agreement on Safeguards.202 The Panel understands China 's 
argument to mean that the assessment of whether a measure was sought, taken, or maintained  
pursuant to provisions  of the GATT  1994 "other than Article  XIX" must include c onsideration of 
whether the measure has certain features of safeguard measures. The Panel is not persuaded by 
this argument . An examination of measures under Article  11.1(c) of the Agreement on Safeguards 
must proceed on the basis of the specific terms of that provision, which provide for the inapplicability 
of the Agreement on Safeguards to measures adopted  "pursuant to" another  provision  of the 
GATT  1994. In this respect, the Panel understands that , in referring to provisions of the GATT  1994 
"other than Article  XIX", the terms of Article  11.1(c) call for determining whether another provision 
of the GATT  1994 is the legal basis in the covered agreements by virtue of or under which a  Member 
has sought , taken , or maintained  a measure . 
7.100.   The Panel also notes China's concern that the Panel should not interpret Article  11.1(c) of 
the Agreement on Safeguards in a manner that will "diminish the application of Article  11.1(a)".203 
The Panel does not consider tha t its understanding of Article  11.1(c) has this effect. The Agreement 
on Safeguards provides for the inapplicability of the Agreement as a whole, including Article  11.1(a), 
to measures sought, taken, or maintained pursuant to provisions of the GATT  1994 ot her than 
Article  XIX. Exclusion of such measures from the Agreement on Safeguards is instrumental to 
preserve the rights of Members under "the basic principles of GATT  1994" on which the Agreement 
on Safeguards is based.204 The Panel's interpretation theref ore does not diminish the application of 
Article  11.1(a), but respects the distinct treatment of measures depending on their characterization  
under the Agreement on Safeguards.205 
7.101.   Finally, both  parties have advanced  certain interpretive  arguments concerning  the 
"constituent features" of  or "condition precedent" for  safeguard measures.206 Noting the 
United  States' arguments under Article  11.1(c) of the Agreement on Safeguards, and in the light of 
the interpretation of that provision rendered above , the Panel is of the view that it would be 
appropriate to first determine whether the United  States' Section  232 measures are excluded from 
the scope of the Agreement on Safeguards by virtue of Article  11.1(c). Should the Panel find that 
the Section  232 measures are n ot so excluded, it will then consider whether  they can be 
characterized as measures regulated by the Agreement on Safeguards and the legal standard for 
such characterization. Accordingly, the Panel will now turn to examine whether the Section  232 
measures were "sought, taken or maintained … pursuant to provisions of GATT  1994 other than 
Article  XIX". 
7.2.2.5.2   Whether the United  States' Section  232 measures  are excluded from the scope 
of application of the Agreement on Safeguards  
7.102.   The United  States maintains that it adopted the Section  232 measures on aluminium and 
steel imports pursuant to Article  XXI of the GATT  1994, which concerns "Security Exceptions", a nd 
thus, pursuant to a provision of the GATT  1994 other than Article  XIX. China, however, argues that 
the design, structure, and expected operation of the Section  232 measures demonstrate otherwise, 
 
202 China's response to Panel question No.  73. 
203 Ibid. 
204 Agreement on Safeguards, preamble, fourth recital.  
205 See paras.  7.68-7.71 above.  
206 United  States' first written submission, paras.  71-88; China's first written submission, paras.  93-102. WT/DS558/R  
 
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  and relies, in support of this proposition, on the domest ic legal basis for these measures, the reports 
in the investigations leading to their adoption, and the legal instruments providing for the measures.  
7.103.   Based on the Panel's interpretation of Article  11.1(c) of the Agreement on Safeguards, the 
Panel will exam ine whether the Section  232 measures were sought, taken, or maintained by virtue 
of or under  Article  XXI of the GATT  1994, such that the Agreement on Safeguards does not apply. 
In this respect, the Panel is guided by its duty under Article  11 of the DSU to  conduct an objective 
assessment of the matter before it, which in the context of Article  11.1(c) of the Agreement on 
Safeguards pertains to the applicability of, and not consistency with, provisions of the GATT  1994 
other than Article  XIX. The Panel will assess the arguments and evidence advanced by the parties 
concerning the Section  232 measures in this light . 
7.104.   The domestic legal basis for the United  States' measures  was Section  232 of the Trade 
Expansion Act of 1962 titled "Safeguarding national security"  (Section  232).207 Under Section  232, 
the United  States' Secretary of Commerce may investigate "the effects on the national security of 
imports of [an] article" into the United  States.208 Based on the Secretary of Commerce's findings 
and recommendat ions, the President of the United  States may take action under Section  232 to 
adjust imports of the investigated article into the United  States so that they will not threaten to 
impair its national security.209 Section  232 also states that, in exercise of t heir respective authorities 
under that provision, the President and the Secretary of Commerce "shall … give consideration to" 
a non -exhaustive list of factors, such as the  domestic production needed for the United  States' 
projected national defence require ments, the capacity of its domestic industries to meet such 
requirements, and the importation of goods that affects  the capacity of the United  States  to meet 
such requirements.210 
7.105.   In April 2017, as authorized under Section  232, the Secretary of Commerce beg an 
investigations into the effects of aluminium and steel imports on the United  States' national 
security.211 These investigations concluded that excessive aluminium and steel imports were 
weakening the United  States' internal economy and, therefore, threat ened to impair its national 
security as defined in Section  232. In arriving at this conclusion, the Secretary of Commerce referred 
to rising levels of imports of foreign aluminium and steel, and the "substantial risk" that this would 
displace the United  States' domestic capacity to produce aluminium and steel for critical 
infrastructure and national defence.212 Specifically, the reports of these investigations note that "it 
is the ability to quickly shift production capacity used for commercial products to d efence and critical 
infrastructure production that provides the United  States a surge capability that is vital to national 
security, especially in an unexpected or extended conflict or national emergency." Thus, in the 
Secretary of Commerce's view, the ris k to the financial viability of the United  States' domestic 
aluminium and steel industries, and their competitiveness in commercial markets, placed at risk the 
United  States' capability to meet its defence and critical infrastructure needs.213 
7.106.   Acting  on the se findings and the related recommendations , the President of the 
United  States issued several proclamations adjusting imports of aluminium and steel into the 
United  States. T hese proclamations constitute the Section  232 measures. They provide for (i)  ad 
valorem  tariffs of 10% and 25% on aluminium and steel imports , respectively, applicable in addition 
to any duties provided in the Harmonized Tariff Schedule of the United  States214; (ii) exemptions for 
 
207 Section  232, (Exhibits USA -20, CHN -23).  
208 Section  232(b), (Exhibits USA -20, CHN-23). 
209 Section  232(c), (Exhibits USA -20, CHN -23). 
210 Section  232(d), (Exhibits USA -20, CHN -23). The Panel notes that these criteria are also specified in 
the United  States  Code of Federal Regulations, Title 15, Part 705 , (Exhibit USA-25), which sets for th "the 
procedures by which the [ United  States  Department of Commerce] shall commence and conduct an 
investigation to determine the effect on the national security of the imports of any article" and based on which 
"the Secretary shall make a report and rec ommendation to the President for action or inaction regarding an 
adjustment of the imports of the article."  
211 Section  232 investigation into steel imports, (Exhibits USA -30, CHN -8); Section  232 investigation 
into aluminium imports , (Exhibits USA-31, CHN -9).  
212 Section  232 investigation into steel imports, (Exhibits USA -30, CHN -8), p. 55 ; Section  232 
investigation into aluminium imports , (Exhibits USA-31, CHN -9), p. 104 .  
213 Section  232 investigation into steel imports, (Exhibits USA -30, CHN -8), pp. 55 -56; Section 232 
investigation into aluminium imports , (Exhibits USA-31, CHN -9), p. 105 . 
214 Proclamation 9704, (Exhibits USA -33, CHN -6), p. 11621; Proclamation 9705, (Exhibits USA -32, CHN -
5), p. 11627.  WT/DS558/R  
 
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  select countries from these tariffs215; (iii) "quota trea tment" for aluminium and steel imports from 
select countries216; and (iv)  a mechanism authori zing the United  States ' Secretary of Commerce to 
relieve certain aluminium and steel imports from the aforementioned tariffs and quotas.217 
7.107.   The tariffs on aluminium and steel imports were imposed through Proclamations 9704 and 
9705, respectively. These proclamations note that aluminium and steel articles are being imported 
into the United  States "in such quantities and under such circumstances as to threaten  to impair the 
national security of the United  States", and state that the tariffs imposed are  necessary  to address 
this threat . Specifically, the tariffs were imposed under these proclamations with a view to help ing 
domestic aluminium and steel industries , so as to  reduce the United  States ' need to rely on foreign 
producers for aluminium  and steel and, as a result, "ensure that domestic producers can continue 
to supply all the [aluminium  and steel]  necessary for critical industries and national defense ". 
Proclamations 9704 and 9705 reason that , without the relief provided through these tariffs, the 
United  States ' domestic industries would continue to decline, leaving the United  States  at risk of 
becoming reliant on foreign producers to meet its national sec urity needs concerning aluminium and 
steel, a situation that the proclamations describe as " fundamentally inconsistent with the safety and 
security of the American people ".218 
7.108.   Proclamations 9704 and 9705, and the "national security interests"  of the United  States  
raised therein , formed the basis for further action  by the United  States .219 In this respect, the Panel 
considers relevant  the exemptions granted to certain countries from the tariffs on aluminium and 
steel imports. Following determinations that impo rts from those countries no longer threatened to 
impair its national security, the United  States  exempted (i)  from tariffs on aluminium imports, 
Argentina and Australia; and (ii)  from tariffs on steel imports, Argentina, Australia, Brazil, and the 
Republic  of Korea.220 These exemptions were granted on the basis of "important security 
relationships" between the United  States  and the exempted countries, and their shared concern 
regarding circumstances that threaten to impair national security, namely  global ex cess capacity  in 
aluminium and steel.221 Proclamations 9710 and 9711 describe in greater detail the various facets 
of the United  States'  security relationships with the countries exempted from the  aluminium and 
steel tariffs , including security, defence  and intelligence partnerships, shared commitments towards  
addressing security concerns , and military alliances.222 
7.109.   The application of these tariffs and the related exemptions by the United  States reveals the 
design and expected  operation of the Section  232 measures. In connection with the tariffs, the Panel 
notes that Proclamations 9704 and 9705 provide for their modification or termination based on 
monitoring and review of the "status of [aluminium or steel] imports with respec t to the national 
security" of the United  States.223 The United  States in fact  modified the duty applicable to steel 
imports from Türkiye  following such monitoring and review .224 The Panel also considers relevant that 
 
215 Proclamation 9740, (Exhibits USA -36, CHN -11), p. 20685; Proclamation 9739, (Exhibit USA -37), 
pp. 20678 -20679; Proclamation 9759, (Exhibits USA -38, CHN -12), p. 25858; and Proclamation 9758, (Exhibits 
USA-39, CHN -13), p. 25850.  
216 Proclamation 9740, (Exhibits USA -36, CHN -11), Annex; Proclamation 9759, (Exhibits USA -38, 
CHN-12), Annex; Proclamation 9758, (Exhibits USA -39, CHN -13), Annex.  
217 Proclamati on 9704, (Exhibits USA -33, CHN -6), p. 11621; Proclamation 9705, (Exhibits USA -32, 
CHN-5), p. 11627; Proclamation 9776, (Exhibit USA -42), p. 45020; Proclamation 9777, (Exhibit USA -41), 
p. 45026.  
218 Proclamation 9704, (Exhibits USA -33, CHN -6), pp. 11619 -11620 ; Proclamation 9705, 
(Exhibits  USA-32, CHN -5), pp. 11626 -11627.  
219 Proclamation 9711, (Exhibits USA -34, CHN -10), p. 13361; Proclamation 9710, (Exhibit USA -35), 
p. 13355; Proclamation 9740, (Exhibits USA -36, CHN -11), p. 20683; Proclamation 9739, (Exhibit USA -37), 
p. 20677; Proclamation 9759, (Exhibits USA -38, CHN -12), p. 25857; Proclamation 9758, (Exhibits USA -39, 
CHN-13), p. 25849; Proclamation 9772, (Exhibit USA -40), p. 40429; Proclamation 9777, (Exhibit USA -41), 
p. 45025; and Proclamation 9776, (Exhibit US A-42), p. 45019.  
220 Proclamation 9740, (Exhibits USA -36, CHN -11), p. 20685; Proclamation 9739, (Exhibit USA -37), 
pp. 20678 -20679; Proclamation 9759, (Exhibits USA -38, CHN -12), p. 25858; and Proclamation 9758, 
(Exhibits  USA-39, CHN -13), p. 25850.  
221 Proclamat ion 9704, (Exhibits USA -33, CHN -6), p. 11620; Proclamation 9705, (Exhibits USA -32, 
CHN-5), p. 11626.  
222 Proclamation 9711, (Exhibits USA -34, CHN -10), pp. 13361 -13362; Proclamation 9710, 
(Exhibit  USA-35), pp. 13355 -13356.  
223 Proclamation 9704, (Exhibits USA -33, CHN -6), pp. 11621 -11622; Proclamation 9705, 
(Exhibits  USA-32, CHN -5), pp. 11627 -11628.  
224 Proclamation 9772, (Exhibit USA -40), p. 40429.  WT/DS558/R  
 
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  any exemptions from the aluminium and st eel tariffs were temporarily applied225, until the 
United  States secured "an effective, long -term alternative means" to address the contribution of the 
exempted countries to the threatened impairment of its national security.226 Such "long -term 
alternative means" included quotas restricting the quantities of aluminium and steel imported into 
the United  States from the exempted country227, which were previously identified by the 
United  States as appropriate means to ensure that the  exemptions do not undermine the national 
security objectives of the tariffs on aluminium and steel imports.228 
7.110.   The product coverage of the Section  232 measures is similarly revealing of the national 
security objectives pursued by the United  States in adopt ing these measures. Tariffs were imposed 
on aluminium and steel articles that the United  States found, following the investigations by the 
Secretary of Commerce, to have applications for defence and critical infrastructure.229 The 
Section  232 measures also include a mechanism under which certain aluminium and steel articles 
which were otherwise subjected to tariffs and quotas could be excluded from them on the basis of 
"specific national security considerations".230 This mechanism was elaborated in the rules issued by 
the Bureau of Industry and Security of the United  States Department of Commerce. The rules 
provide that, in granting exclusions based on national security considerations, the United  States 
Department of Commerce can consider impacts on the United  States' national security that may 
result from not approving an exclusion. They additionally require that "the demonstrated concern 
with [US] national security would need to be tangible and clearly explained and ultimately 
determined by the [US] Governmen t".231 
7.111.   In the Panel's view, t he abovementioned features of the Section  232 measures demonstrate  
that they were designed and expected to operate to address the threat to national security  that the 
United  States had determined to arise from rising levels of a luminium and steel imports . The Panel 
observes that the United  States' national security objectives are reflected both in the application 
(tariffs, quotas) and non -application (exemptions, exclusions) of the Section  232 measures. The 
prescribed procedure f or the adoption, modification, and removal of the Section  232 measures, and 
especially the provisions made for consultations with domestic authorities such as the United  States' 
Secretary of Defense232, further support the Panel's view.  
7.112.   The United  States  also outlined its national security objectives relating to the Section  232 
measures in its communications to WTO councils and committees , linking them to Article  XXI of the 
GATT  1994. Before adopting the  Section  232 measures, the United  States  informed the Council for 
Trade in Goods that its ongoing investigations into the effects of  aluminium and steel imports on 
national security were to determine whether th ose imports were threatening its ability to meet its 
national security needs.233 Follow ing the adoption of the Section  232 measures, the United  States  
referred to the findings of its completed investigations and provided information "pursuant to 
Section  232 of the Trade Expansion Act of 1962, as amended, and consistent with the Decision 
Concerning Article XXI of the General Agreement taken by the GATT Council on 
30 November  1982".234 In a communication addressed to the Committee on Safeguards , responding 
to China's request for consultations on  the Section  232 measures  under Article  12.3 of the  
Agreement on Safeguards , the United  States  noted the domestic legal basis pursuant to which it had 
taken action , and reiterated that  it had provided information to the WTO Council for Trade in Goods 
 
225 Proclamation 9711, (Exhibits USA -34, CHN -10), p. 13362; Proclamation 9710, (Exhibit USA -35), 
p. 13356.  
226 Proclamation 9740, (Exhibits USA -36, CHN -11), pp. 20683 -20684; Proclamation 9759, 
(Exhibits  USA-38, CHN -12), pp. 25857 -25858; and Proclamation 9758, ( Exhibits USA -39, CHN -13), p. 25850.  
227 Proclamation 9740, (Exhibits USA -36, CHN -11), p. 20685; Proclamation 9759, (Exhibits USA -38, 
CHN-12), p. 25858; and Proclamation 9758, (Exhibits USA -39, CHN -13), p. 25850.  
228 Proclamation 9711, (Exhibits USA -34, CHN -10), p. 13363; Proclamation 9710, (Exhibit USA -35), 
p. 13357.  
229 See Proclamation 9704, (Exhibits USA -33, CHN -6), p. 11621; Proclamation 9705, (Exhibits USA -32, 
CHN-5), p. 11627; Section  232 investigation into steel imports, (Exhibits USA -30, CHN -8), pp. 21 -22 and 
Appendices H and I; Section  232 investigation into aluminium imports , (Exhibits USA-31, CHN -9), pp. 24 -38.  
230 Proclamation 9704, (Exhibits USA -33, CHN -6), p. 11621; Proclamation 9705, (Exhibits USA -32, 
CHN-5), p. 11627; Proclamation 9777, (Exhibit USA -41), p. 45026; Proclamation 9776, (Exhibit USA -42), 
p. 45020.  
231 BIS rule of 11  September  2018, (Exhibit USA-44), p. 46062.  
232 See Section  232(b), (Exhibits USA -20, CHN -23); Proclamation 9704, (Exhibits USA -33, CHN -6), 
pp. 11621 -11622; Proclamation 9705, (Exhibits USA -32, CHN -5), pp. 11627 -11628.  
233 Council for Trade in Goods, Minutes of the meeting held on 10  November  2017, G/C/M/130.  
234 Council for Trade in Goods, Minutes of the meeting held on 23 and 26  March  2018, G/C/M/131.  WT/DS558/R  
 
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  "consistent with the Decision Concerning Article  XXI of the General Agreement taken by the GATT 
Council on 30  November 1982".235 Considered together with the features of the Section  232 
measures discussed above, these communications indicate that the legal basis in the covered 
agreements pursuant to  which the United States  has sought, taken , or maintained these measures 
is Article  XXI of the GATT  1994. 
7.113.   China argues that the domestic legal basis, domestic procedures, and notifications to the 
WTO are not determinative for the characterization of a measure under the  covered agreements.236 
The Panel agrees. At the same time, the Panel recalls that the characterization of the measures in 
the present case must proceed from the terms of the relevant provision itself, that is Article  11.1(c) 
of the Agreement on Safeguards.  This provision calls for a determination of whether a Member has 
adopted measures acting under or by virtue of provisions of the GATT  1994 other than Article  XIX. 
In these circumstances, the Panel considers that the domestic legal basis and procedures as well as 
notifications concerning the adoption of the measures are relevant evidence of the legal basis under 
the covered agreements pursuant to which the Section  232 measures were sought, taken, or 
maintained. The Panel further notes that it has not consid ered this evidence in isolation, but in 
conjunction with aspects of the Section  232 measures that demonstrate how they were designed, 
applied, and expected to operate.  
7.114.   China also argues that Section  232, the reports of the investigation into aluminium and steel 
imports, and the proclamations adjusting these imports into the United  States, all address the effect 
of imports on the United  States' relevant domestic industries, and thus mirror the inquiry under 
Articles 2 and 4 of the Agreement on Safeguards int o whether a "domestic industry" is suffering 
from "serious injury" due to "increased quantities" of imports. China contends that the Panel should 
accordingly find the Agreement on Safeguards applicable to the Section  232 measures.  
7.115.   The Panel is not persuade d by this argument. The Panel notes that the references to the 
economic welfare of domestic industries in each of the instruments mentioned above are in the 
context of the relationship of such economic welfare to the United  States ' national security. Under  
Section  232, the relevant factors for the consideration of  the Secretary of Commerce and the 
President include  the impact of foreign competition on the economic welfare of domestic industries , 
substantial unemployment, decrease in revenues of government, and loss of skills or investment, 
among others.  These provide the basis under which the weakening of the United  States ' internal 
economy can be determined  by the relevant authorities of the United  States  to impair  its national 
security. In the same vein, the findings of the Secretary of Commerce on the impact of rising levels 
of imports on domestic aluminium and steel industries , and the corresponding adjustments 
recommended,  follow the Secretary's  conclusion that (i) certain aluminium and steel products , as 
well as their domestic production , are essential to the United  States ' national security, national 
defence , and critical infrastructure; and (ii)  falling domestic capacity in these industries due to rising 
impor t competition would  place at risk the ability of the  United  States' domestic industries to cater 
to its  national security needs, particularly during an unexpected or extended conflict or national 
emergency . 
7.116.   The Section  232 measures further implement the recommendations of the Secretary of 
Commerce, including with respect to reviving  idled facilities, opening  closed smelters and mills, 
preserving  necessary skills, and maintaining  or increasing  production , for the specific purpose of 
securing aluminium and st eel necessary for critical industries and national defence . The references 
to the economic welfare of the United  States' domestic industries in the instruments considered 
above thus constitute one aspect of the United  States' determination that there exist s a threat to its 
national security. This aspect of the Section  232 measures cannot be divorced from its background 
and context, which reflect the measures' national security objectives and confirms that they were 
sought, taken, or maintained pursuant to A rticle XXI of the GATT  1994.  
 
235 Committe e on Safeguards, Communication from the United  States, G/SG/168 . The United  States 
noted  that the proclamations constituting the Section  232 measures were issued " pursuant to Section  232 of 
the Trade Expansion Act of 1962" and not "pursuant Section  201 of the Trade Act of 1974, which is the law 
under which the United  States  imposes safeguard measures" . Accordingly, the United  States maintained that 
the Section  232 measures were "not safeguard measures" and declined to engage in consultations under th e 
Agreement on Safeguards.  
236 China's response to Panel question No.  85. WT/DS558/R  
 
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  7.117.   China  refers to a memorandum issued by  the United  States ' Secretary of Defense, which 
states that the findings of the investigations into aluminium and steel imports do not "impact the 
ability of [Department of Defense] program s to acquire the steel or aluminum necessary to meet 
national defense requirements".237 According to China , this indicates that a central objective of the 
Section  232 measures is "to protect and remedy the condition of the domestic [US] industries for 
their own sake, and not merely insofar as these industries are necessary to meet national defence 
requirements".238 The Panel notes that the memorandum referenced by China was issued as part of 
the consultation process between the Department of Commerce and Depa rtment of Defense 
provided for in Section  232. The memorandum refers to the risk posed to the United  States ' national 
security by imports of  aluminium and steel and  "concurs with the Department of Commerce 's 
conclusion that imports of foreign steel and alu minum based on unfair trading practices impair the 
national security" .239 In the Panel's view, this supports the understanding set out above that the 
Section  232 measures  pursue national security objectives . The additional  considerations raised by 
China  regarding the United  States ' ability to acquire aluminium and steel for its national defence 
needs pertain to whether the Section  232 measures meet the requirements of Article  XXI of the 
GATT  1994, rather than whether they w ere sought, taken, or maintained pursuant to that provision. 
In this connection, the Panel recalls its earlier conclusion that Article  11.1(c) concerns whether 
certain measures were sought, taken, or maintained by virtue of or under provisions of the 
GATT  1994 other than Article  XIX, and not whether they are consistent with such other provisions.  
7.118.   Finally, the Panel notes that the characterization of the Section  232 measures under the 
Agreement on Safeguards  was previously examined by the panel in United  States – Steel and 
Aluminium Products (China). As noted above240, the Panel sought the parties' views on the findings 
in that panel report concerning the applicability of the WTO safeguards regime to the Section  232 
measures and on the relevance of those findi ngs for this Panel's analysis, in response to which both 
parties emphasi zed this Panel's duty under Article  11 of the DSU. Following its examination of the 
Section  232 measures, the Panel concurs with the findings of the panel in United  States  – Steel and 
Aluminium Products (China) that "the United  States ' determination of a threat to its national security 
under Section  232 is a central aspect of the measures with respect to their legal characterization as 
being sought, taken , or maintained pursuant to Arti cle XXI of the GATT  1994".241 Based on the 
Panel's understanding of Article  11.1(c) and the relevance of domestic legal status and WTO 
notifications for the characterization of measures under that provision, t he Panel also concurs with  
that panel's treatmen t of the same considerations.242 
7.119.   In the light of its conclusion that the Section  232 measures were sought, taken, or 
maintained pursuant to a provision of the GATT  1994 other than Article  XIX, the Panel finds that the 
Agreement on Safeguards does not apply to these measures, as provided for in Article  11.1(c) of 
that Agreement. As noted above, the rights under Article  8.2 of the Agreement on Safeguards and, 
relatedly, Article  XIX:3(a) of the GATT  1994, are unavailable in respect of measures to which the 
Agreement on Safeguards does not apply. Accordingly, the Panel finds that Article  8.2 of the 
Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 do not apply to China's additional 
duties measure.  
7.2.3   Conclusion  
7.120.   Having found that Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 do not apply to China's additional duties measure, the Panel consequently finds that the 
application of Articles I and II of the GATT  1994 is not suspended in relation to this measure. The 
Panel  will accordingly proceed to examine the United  States' claims under Articles I and II of the 
GATT  1994 in turn.  
 
237 United  States  Secretary of Defense Memorandum , (Exhibit CHN -14), p. 1.  
238 China's first written submission, paras.  137-138 (also noting that according to this memorandum, 
"the [US] mi litary requirements for steel and aluminum each represent about three percent of [US] 
production").  
239 United  States  Secretary of Defense Memorandum , (Exhibit CHN -14), p. 1.  
240 See section 1.3.1  above . 
241 Panel  Report , US – Steel and Aluminium Products (China) , para. 7.96. 
242 Panel  Report , US – Steel and Aluminium Products (China) , para. 7.83, footnote 383, and para.  7.96.  WT/DS558/R  
 
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  7.3  United  States' claim under Article  I:1 of the GATT  1994  
7.3.1   Main arguments of the parties  
7.3.1.1   United  States  
7.121.   The United  States argues that the additiona l duties measure is inconsistent with Article  I:1 
of the GATT  1994 because it fails to extend to certain products of the United  States  an advantage 
granted by China to like products originating in other countries .243 In the United  States' view, a 
measure is  inconsistent with Article  I:1 of the GATT  1994 if: (a) it  is covered by Article  I:1; (b) the 
subject imports are like products within the meaning of Article  I:1; (c) the challenged measure 
confers an "advantage, favour, privilege, or immunity " to a produc t originating in (or destined for) 
another country; and  (d) such "advantage, favour, privilege, or immunity " is not extended 
"immediately " and "unconditionally " to subject imports .244 According to the United  States, China's 
additional duties measure meets a ll four of these elements.245 
7.122.   With respect to the first element, the United  States submits that the additional duties 
measure is "explicitly covered by the text" of Article  I:1.246 This is so because Article  I:1 of the GATT 
applies to "c ustoms duties and cha rges of any kind imposed on or in connecti on with importation", 
a term that would include the additional duties at issue in this dispute.247 The United  States further 
notes that Article  I:1 applies both to duties that have been bound  as part of a WTO Member 's 
schedule under Article  II of the GATT  1994 and to unbound duties , as well as to duties that are set 
below a bound rate.248 As such, the United  States considers that Article  I:1 requires a WTO Member 
that applies a duty rate below its bound rate to import s from some WTO Members to apply that 
same duty rate to imports of like products from all WTO Members .249 
7.123.   With respect to the second element, the United  States argues that "e ach [US] product 
subject to China 's measure is 'like' a product from other countries not subject to the additional duties 
within the meaning of Article  I:1".250 The United  States recalls that, in past disputes, WTO 
adjudicators have found that where the only distinction between two sets of products is the cou ntry 
of origin, it may be presumed that the two sets are like products.251 In the United  States' view, 
China 's measure discriminates against U nited States  products  solely  on the basis of origin , leaving 
unchanged the rate  of duty applicable to  the same prod ucts originating in  other countries, including 
all other WTO Members.252 Accordingly, the United  States considers that the like product element of 
Article  I:1 is satisfied.253 
7.124.   Turning to the third element, the United  States submits that the additional duties  measure 
confers an advantage on like products of other Members because it impose s additional duties on 
certain U nited States  products, while leaving unchanged the rate of duty applicable to goods of all 
other countries, including all other WTO Members .254 Noting that past GATT and WTO panels have 
interpreted the term "advantage" broadly, the United  States argues that providing a lower duty rate 
clearly constitutes an advantage with in the meaning of Article  I:1.255 In particular, the United  States 
considers t hat, by providing a lower rate of duty to the like products of other countries as compared 
with United  States products, the additional duties measure provides "more favo urable competitive 
 
243 United  States ' first written submission, para.  33. 
244 United  States ' first written submission, para.  34 (referring to  Appellate  Body Report s, EC – Seal 
Products , para.  5.86).  
245 United  States ' first written submission, para.  34. 
246 United  States ' first written submission, para.  35. 
247 Ibid. 
248 United  States ' first written submission, para.  36 (referring to GATT Panel  Report , Spain – Unroasted 
Coffee , adopted on 11  June 1981, BISD 35S/245 ). 
249 United  States ' first written submission, para.  36. 
250 United  States ' first written submission, para.  38. 
251 United  States ' first written submission, para s. 39-40 (referring to  Panel  Report s, Indonesia – Autos , 
para. 14.113, China – Publications and Audiovisual Products , para.  7.1446,  and Canada – Autos , para.  10.74).  
252 United  States ' first written submission, para s. 38 and 41.  
253 United  States ' first written submission, para.  41. 
254 United  States' first written submission, para.  42. 
255 United  States' first written submission, para.  43 (referring to GATT Panel  Report , US – Non-Rubber 
Footwear , adopted 19 June 1992, BISD 39S/128, para.  69, and Panel  Report , Colombia – Ports of Entry , 
para. 7.340 ). WT/DS558/R  
 
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  opportunities " to the former,  or "affects the competitive relationship " between the two groups of 
products, thus  confer ring an "advantage " within the meaning of  Article  I:1.256 
7.125.   Finally, turning to the fourth element, the United  States argues that the advantage provided 
by the additional duties  measure is not "accorded immediately and unconditionally " to like products 
from the United  States. For the United  States, the additional duties measure does not accord to 
United  States products the "advantage" of lower tariff rates conferred on non -United  States products 
"at once", and is therefore inconsistent with this element of Article  I:1.257 
7.3.1.2   China  
7.126.   China does not deny that, if assessed "in isolation" against its general Most-Favoured  Nation 
(MFN) tariff rates, the additional duties measure imposes duties that "exceed the applied MFN 
rates".258 However, China argues that the additional duties measure is not inconsistent with 
Article  I:1 of the GATT  1994 because it was taken "pursuant to and consistent with" Article  8.2 of 
the Agreement on Safeguards.259 Accordingl y, in China's view, the MFN obligation in Article  I:1 of 
the GATT  1994 has been "properly suspended and not breached".260 
7.3.2   Analysis by the Panel  
7.127.   The question before the Panel is whether, as the United  States claims, the additional duties 
measure is inconsist ent with Article  I:1 of the GATT  1994. China has responded to the United  States' 
claim by arguing that Article  I:1 is "suspended" in respect of the additional duties measure, and 
therefore not breached. China does not contest that the additional duties mea sure imposes duties 
on United  States products in excess of those applied on like products from other WTO Members. Nor 
has China addressed any of the specific arguments raised by the United  States in support of its 
position that the additional duties measur e meets the four requirements for inconsistency with 
Article  I:1 articulated in that provision.  
7.128.   The Panel concluded, in the previous section of this Report, that Article  XIX:3(a) of the 
GATT  1994 and Article  8.2 of the Agreement on Safeguards do not apply to the additional duties 
measure. The Panel further found that, consequently, the application of Articles I and II of the 
GATT  1994 is not suspended in relation to this measure. As such, China's argument that the 
additional duties measure is not inconsiste nt with Article  I:1 because the application of that provision 
is suspended must be rejected.  
7.129.   In the absence of any further argumentation on China's part concerning the consistency of 
the additional duties measure with Article  I:1 of the GATT  1994, the Pane l considers that the 
United  States' claim under Article  I:1 is uncontested. Nevertheless, in accordance with its duty to 
make an objective assessment of the matter before it as laid down in Article  11 of the DSU, the 
Panel cannot simply accept the United  States' arguments without further analysis. Rather, the Panel 
must satisfy itself as to whether the United  States has established a prima facie  case that the 
additional duties measure is inconsistent with Article  I:1 of the GATT  1994.261 To that end, the Pan el 
commences its analysis with the text of the relevant provision.  
7.3.2.1   The applicable legal standard  
7.130.   Article  I:1 of the GATT  1994 provides as follows:  
With respect to customs duties and charges of any kind imposed on or in connection 
with importation or export ation or imposed on the international transfer of payments 
for imports or exports, and with respect to the method of levying such duties and 
charges, and with respect to all rules and formalities in connection with importation and 
exportation, and with res pect to all matters referred to in paragraphs 2 and 4 of 
 
256 United  States' first written submission , paras.  43 and 45.  
257 United  States' first written submission, paras.  46 and 47.  
258 China's response to Panel question No.  20, para.  43. 
259 Ibid. 
260 Ibid. 
261 See e.g. Panel  Report s, US – Poultry (China) , para.  7.445; Saudi Arabia – IPRs, para.  7.40; and 
China – TRQs, para.  7.21.  WT/DS558/R  
 
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  Article  III,* any advantage, favour, privilege or immunity granted by any contracting 
party to any product originating in or destined for any other country shall be accorded 
immediately and unconditi onally to the like product originating in or destined for the 
territories of all other contracting parties.  
7.131.   Article  I:1 prohibits, with respect to measures falling within its scope of application, 
discrimination among like products originating in or destin ed for different countries. The obligation 
to accord MFN treatment as provided for in Article  I:1 has been understood as protecting 
expectations of equal competitive opportunities for like imported products from any Member.262 
7.132.   To establish that a measure is  inconsistent with Article  I:1, a complainant must demonstrate 
that: (a) the measure at issue falls within the scope of Article  I:1; (b) the imported products at issue 
are like products within the meaning of Article  I:1; (c) the measure at issue confers an  "advantage, 
favour, privilege or immunity" on any product originating in the territory of any country; and (d) the 
advantage, favour, privilege or immunity granted is not extended "immediately" and 
"unconditionally" to like products originating in the ter ritory of all Members.263 The Panel will examine 
whether the United  States has demonstrated that the additional duties measure satisfies these four 
elements.  
7.3.2.2   Whether the additional duties measure is inconsistent with Article  I:1 of the 
GATT  1994  
7.133.   Article  I:1 of the GATT  1994 applies inter alia  to "customs duties and charges of any kind 
imposed on or in connection with importation". The Panel understands "customs duties" to refer to 
charges on goods that accrue at the moment and by virtue of importation or exp ortation.264 
7.134.   The Implementation Notice describes the additional duties as "additional tariff rate[s]" that 
apply in addition to "current applied base tariff rates".265 It states that the additional tariff rates 
apply to certain specified "imported" products.266 Moreover, it was formally issued by the State 
Council Customs Tariff Commission . Taken together, the Panel considers that these facts are 
sufficient to establish that the measure imposes duties that fall within the scope of the phrase 
"customs duties and charges of any kind imposed on or in connection with importation". The Panel 
thus considers that the measure is subject to the requirements of Article  I:1. 
7.135.   With re spect to whether the products at issue are like within the meaning of Article  I:1, WTO 
adjudicators have consistently held that w hen a measure makes a  distinction between products 
based exclusively on the ir origin, the likeness of such  products can be presumed .267 The additional 
duties measure applies additional tariff rates exclusively on products "originating from the 
United  States".268 It thus makes a distinction between products solely on the basis of origin, i.e. 
whether they originate in the United  States or in any other country. The Panel therefore finds that 
the United  States' products subject to  the additional duties can be presumed to be like the equivalent  
product s from other countries  that are not subject to the additional duties  measure . 
7.136.   The additional duties measure applies "additional tariff rates" on certain products originating 
in the United  States, but does not increase the tariffs applicable to like products originating in any 
other country. In effect, this means that products from o ther countries are subject to a lower tariff 
rate than like products originating in the United  States. In the Panel's view, lower tariff rates 
constitute an "advantage" within the meaning of Article  I:1 of the GATT  1994 because they create 
 
262 Panel Report, US – Steel and Aluminium Products (China) , para. 7.51. 
263 Appellate  Body Reports, EC – Seal Products , para.  5.86.  
264 Appellate  Body Reports, China – Auto Parts , para.  158. 
265 Implementation Notice, (Exhibit USA -1), paras.  1, 2, and 4.  
266 Implementation Notice, (Exhibit USA -1). 
267 Appellate  Body Report, Argentina – Financial Services , para.  6.36. See also Panel  Report s, 
Colombia  – Ports of Entry , para.  7.355;  and US – Poultry (Ch ina), paras.  7.424 -7.432.  
268 Implementation Notice, (Exhibit USA -1), paras.  1 and 2.  WT/DS558/R  
 
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  more favourable import opportunities and thus affect the competitive relationship between those 
products benefiting from lower tariff rates and those subject to higher tariff rates.269 
7.137.   Finally, because the additional duties measure applies additional tariff rates  only on p roducts 
originating in the United  States, it does not accord the advantage of lower tariff rates "immediately 
and unconditionally" to those products.  
7.138.   Accordingly, the Panel finds that the United  States has demonstrated that the additional 
duties measure is  inconsistent with Article  I:1 of the GATT  1994 because, with respect to customs 
duties imposed on or in connection with importation , it fails to accord an advantage granted to like 
products originating in other countries immediately and unconditionally to  products originating in 
the United  States.  
7.3.3   Conclusion  
7.139.   For the reasons outlined above, the Panel concludes that the additional duties measure is 
inconsistent with Article  I:1 of the GATT  1994 because, with respect to customs duties imposed on 
or in connect ion with importation , it fails to accord an advantage granted to products originating 
outside the United  States immediately and unconditionally to products originating in the 
United  States.  
7.4  United  States' claim under Articles II:1(a) and II:1(b) of the GAT T 1994  
7.4.1   Main arguments of the parties  
7.4.1.1   United  States  
7.140.   The United  States claims that China's additional duties measure is inconsistent with 
Articles  II:1(a) and II:1(b) of the GATT  1994 because it imposes duties on products originating in 
the United  States  in excess of China 's bound rate and provides less favourable treatment to such 
products .270 Noting that a measure that violates Article  II:1(b) is necessarily inconsistent with 
Article  II:1(a) as well, the United  States first elaborates its claim under Article  II:1(b).271 
7.141.   In the United  States' view, a measure violates Article  II:1(b) of the GATT  1994 where it 
results in the imposition of duties that are in excess of the duties provided for in the relevant 
Member's s chedule .272 According to the United  States, since Article  II:1(b) covers both "ordinary 
customs duties" and "other duties or charges"273, it is " legally immaterial " whether the additional 
duties constitute "ordinary customs duties " or "other duties or charges " because , under either 
characterization, the duties exceed China 's rates bound in its Schedule .274 Nevertheless, arguing 
that "o rdinary customs duties " typically relate to either the value or the volume of imported goods , 
whereas "other duties and charges " form a r esidual category that includes any financial 
responsibilities resulting from the importation of goods that do not qualify as "ordinary customs 
duties ", the United  States submits that the additional duties measure appears to impose "ordinary 
customs duties" .275 
7.142.   The United  States submits that, in respect of 123 of the 128 tariff lines covered by the 
additional duties measure276, China imposes "ordinary customs  duties " in excess of  the bound rate 
 
269 The Panel notes that in Canada – Autos , the Appellate  Body found that an import duty exemption 
applied to products from some Members but not others was inconsistent with Article  I:1 of the GATT  1994. See 
Appellate  Body Report, Canada – Autos , paras.  80 and 81. Similarly, the additional duties measure effectively 
exempts products originating outside the United  States from the "additional tariff rates" applied to products 
originating in the United  States.  
270 United  States' first written submission, para.  51. 
271 United  States' first written submission, para.  55. 
272 United  States' first written submission, para.  54. 
273 United  States' first written submission, paras.  58-59. 
274 United  States' first written submission, para.  59. 
275 United  States' first written submission, para.  60 (referring to Panel  Report , Dominican  Republic  – 
Safeguard Measures , paras. 7.79-7.85).  
276 In its first written submission, the United  States argued that the additional duties measure resulted 
in the imposition of duties in excess of China's bound rates in respect of all 128 tariff lines covered by the 
 WT/DS558/R  
 
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  commitments contained  in its Schedule , and therefore violates Arti cle II:1(b).277 In the alternative, 
the United  States submits that if the Panel were to find that the additional duties measure imposes 
"other duties or charges", the measure is inconsistent with Article  II:1(b) because the duties 
imposed by the additional duties measure are not reflected in China's Schedule of Concessions.278 
7.143.   Turning to Article  II:1(a) of the GATT  1994, the United  States argues that "Article II:1(b) 
proscribes the type of measures that are equally inconsistent with Article II:1(a)", and ther efore 
submits that, having established the inconsistency of the additional duties measure with 
Article  II:1(b), the United  States has also demonstrated that the measure is inconsistent with 
Article  II:1(a).279 The United  States' concludes that, by imposing duties in excess of its bound rates 
on products originating in the United  States, China has correspondingly accorded less favourable to 
these products and breached Article  II:1(a) as well.280 
7.4.1.2   China  
7.144.   China submits that the additional duties measure is not inc onsistent with Article  II:1(a) or 
II:1(b) because the measure was " taken pursuant to and consistent with " Article  8.2 of the  
Agreemen t on Safeguards, and therefore China's  "concessions under Article  II of the GATT  1994 
[were]  properly suspended and not bre ached ".281 However, China has not contested that the 
additional duties measure imposes duties in excess of those bound in its Schedule.282 Finally, China 
notes that it "does  not object to the general proposition that a breach of Article  II:1(b) would result 
in breach of Article  II:1(a) ".283 
7.4.2   Analysis by the Panel  
7.145.   The question before the Panel is whether, as the United  States claims, the additional duties 
measure is inconsistent  with Articles II:1(a) and II:1(b) of the GATT  1994. China has responded to 
the United  States' claim by arguing that Article  II of the GATT  1994 is "suspended" in respect of the 
additional duties measure, and therefore not breached. China does not contest that the additional 
duties measure does in fact impose duties on products originating in the United  States in excess of 
those bound in its Schedule, contrary to Article  II:1(b) of the GATT  1994. Nor has China contested 
that a violation of Article  II:1(b) n ecessarily results in a consequential violation of Article  II:1(a).  
7.146.   The Panel has already concluded that Article  XIX:3(a) of the GATT  1994 and Article  8.2 of 
the Agreement on Safeguards do not apply to the additional duties measure. The Panel further found  
that, consequently, the application of Articles I and II of the GATT  1994 is not suspended in relation 
to this measure.284 As such, the Panel has already addressed and rejected China's argument that 
the additional duties measure is not inconsistent with Ar ticle II of the GATT  1994 because the 
application of that provision is suspended.  
7.147.   In the absence of any further argumentation on China's part concerning the consistency of 
the additional duties measure with Article  II of the GATT  1994, the Panel considers that the 
United  States' claim under that provision is uncontested. Nevertheless, in accordance with its duty 
to make an objective assessment of the matter before it as laid down in Article  11 of the DSU, the 
Panel cannot simply accept the United  States' ar guments without further analysis. Rather, as noted 
 
measure. However, in response to a question from the Panel, the United  States clarified that the addi tional 
duties measure only results in excess duties for 123 of the 128 tariff lines. (United  States' response to Panel 
question No.  12, paras.  22-23; and second written submission, para.  20). 
277 United  States' first written submission, para.  61.  
278 United  States' first written submission, para.  62. 
279 United  States' first written submission, para.  65 (referring to Appellate  Body Report, Argentina – 
Textiles and Apparel , paras.  45 and 47).  
280 United  States' first written submission, para.  66. 
281 China's response  to Panel question No.  22, para.  46. 
282 The Panel notes that China made arguments on the inclusion by the United  States of certain "other 
additional duties" in its calculation of the total duties applied on certain tariff lines covered by the additional 
duties measure. China's first written submission, paras.  155-157. In response to a question from the Panel, the 
United  States confirmed that it was not seeking findings on these "other additional duties", and clarified that its 
claim under Articles II:1(a) an d II:1(b) only relates to 123 of the 128 tariff lines. United  States' response to 
Panel question No.  12, para.  21; and para. 2.11 above . 
283 China's response to Panel question No.  22, para.  46. 
284 See para.  7.120  above.  WT/DS558/R  
 
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  above285, the Panel must satisfy itself as to whether the United  States has established a prima facie  
case that the additional duties measure is inconsistent with Article  II of the GATT  1994.286 To that 
end, the Panel commences its analysis with the text of the relevant provisions.  
7.4.2.1   The applicable legal standard  
7.148.   Articles II:1(a) and II:1(b) of the GATT  1994 provide as follows:  
(a) Each contracting party shall accord to the commerce of the other contracting par ties 
treatment no less favourable than that provided for in the appropriate Part of the 
appropriate Schedule annexed to this Agreement.  
(b) The products described in Part I of the Schedule relating to any contracting party, 
which are the products of territ ories of other contracting parties, shall, on their 
importation into the territory to which the Schedule relates, and subject to the terms, 
conditions or qualifications set forth in that Schedule, be exempt from ordinary customs 
duties in excess of those s et forth and provided therein. Such products shall also be 
exempt from all other duties or charges of any kind imposed on or in connection with 
the importation in excess of those imposed on the date of this Agreement or those 
directly and mandatorily requi red to be imposed thereafter by legislation in force in the 
importing territory on that date.  
7.149.   Additionally, the Understanding on the Interpretation of Article  II:1(b) of the GATT  1994 
provides in relevant part:  
Members hereby agree as follows:  
1. In order to ensure transparency of the legal rights and obligations deriving from 
paragraph 1(b) of Article  II, the nature and level of any "other duties or charges" levied 
on bound tariff items, as referred to in that provision, shall be recorded in the Schedules 
of concessions annexed to GATT  1994 against the tariff item to which they apply. It is 
understood that such recording does not change the legal character of "other duties or 
charges".  
7.150.   Article  II:1(a) of the GATT  1994 thus prohibits a Member from subjecting  imports to 
treatment less favourable than  that provided for in its schedule.287 The first sentence of 
Article  II:1(b) of the GATT  1994 further prohibits the imposition of ordinary customs duties in excess 
of the rates set forth in a Member's schedule.288 In assessing whether a measure is inconsistent with 
this sentence, a panel must ascertain (a) the treatment accorded to the products at issue under the 
schedule of the Member; (b) the treatment accorded to the products at issue under the measure at 
issue; an d (c) whether the measure at issue results in the imposition of duties and conditions on the 
products at issue in excess of those provided for in the schedule.289 The second sentence of 
Article  II:1(b) also prohibits the imposition of other duties or charge s of any kind on or in connection 
with importation in excess of those imposed on the date of entry into force of the GATT  1994 (or 
those directly and mandatorily required to be imposed thereafter by legislation in force on that 
date).290 According to the Un derstanding on the Interpretation of Article  II:1(b), the nature and level 
of any such "other duties or charges" must be recorded in a Member's schedule.291 
7.151.   Accordingly, a measure that is inconsistent with Article  II:1(b) of the GATT  1994 will 
necessarily b e inconsistent with Article  II:1(a) as well. This is because the imposition by a Member 
 
285 See para.  7.129  above.  
286 See e.g. Panel  Report s, US – Poultry (China) , paras.  7.445 ; Saudi Arabia – IPRs, para.  7.40; and 
China – TRQs, para.  7.21.  
287 See Appellate  Body Reports, Argentina – Textiles and Apparel, para. 45; Colombia – Textiles, 
para. 5.34.  
288 See Appellate  Body Reports, India – Additional Import Duties , para.  150; Colombia – Textiles , 
para. 5.35.  
289 Panel  Report s, EC – Chicken Cuts , para.  7.65.  
290 See Appellate  Body R eport, India – Additional Import Duties , para. 151; Panel  Report, 
Dominican  Republic  – Safeguard Measures , para.  7.78.  
291 See Panel  Report, Dominican  Republic  – Safeguard Measures , para.  7.78. See also Panel  Report , 
Dominican  Republic  – Import and Sale of Cigarettes , paras.  7.84-7.90. WT/DS558/R  
 
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  of duties in excess of the bound rates in its schedule constitutes "less favourable treatment" within 
the meaning of Article  II:1(a).292 The Panel will therefore begin i ts analysis by considering the 
United  States' claim under Article  II:1(b) of the GATT  1994.  
7.4.2.2   Whether China's additional duties measure is inconsistent with Article  II:1(b) of 
the GATT  1994  
7.152.   Article  II:1(b) of the GATT  1994 prohibits the imposition of both "ordinary customs duties" 
in excess of those provided in a Member's schedule and "other duties or charges" not recorded in a 
Member's schedule. The first question facing the Panel is thus whether the duties imposed by China's 
additional duties measure  fall within the scope of either of these categories.  
7.153.   The United  States considers that the additional duties imposed by the measure at issue are 
"ordinary customs duties".293 Although the term "ordinary customs duties" is not defined in Article  II 
of the GA TT 1994, past WTO adjudicators have stated that a duty is likely to constitute an "ordinary 
customs duty" where it arises or accrues "because of the importation of the product at the very 
moment it enters the territory of another Member"294, such that it ca n be characterized as a duty 
"on" importation.295 
7.154.   The Panel has already noted296 that the Implementation Notice describes the additional 
duties as "additional tariff rate[s]" that apply "additionally" to "current applied base tariff rates"297, 
and states that  the additional tariff rates apply to certain specified "imported" products.298 The Panel 
has also noted that the Implementation Notice was formally issued by the State Council Customs 
Tariff Commission .299 
7.155.   The Panel considers that these features indicate th at the duties imposed by the additional 
duties measure are "ordinary customs duties" for the purposes of Article  II:1(b) of the GATT  1994.300 
Insofar as the additional duties are "additional to" the "current applied base tariff rates" on "imported 
products"301, the Panel understands that the duties arise or accrue because, and at the moment of, 
importation of the products identified in the Implementation Notice. In this sense, they are duties 
"on" the importation of those products.  
7.156.   Having determined that the duties imposed by the additional duties measure constitute 
"ordinary customs duties", the Panel now turns to assess whether those duties are "in excess" of 
the rates provided in China's Schedule. The United  States has submitted evidence comparing, for 
the 128 tariff lines covered by the additional duties measure, the bound rates in China's Schedule 
and the tariff treatment accorded to the relevant products, resulting from the combination of China's 
MFN tariff rates and the additional duties.302 When invited by the Panel to comment on this evidence, 
China did not contest the accuracy of the information provided by the United  States.303 Having 
carefully examined the uncontested evidence submitted by the United  States, the Panel finds that it 
 
292 Appellate  Body Report, Argentina – Textiles and Apparel , para.  47. 
293 United  States' first written submission, para.  60. 
294 Panel  Report s, China – Auto Parts , para.  7.184 . 
295 Appellate  Body Reports, China – Auto Parts , para.  158. 
296 See para.  7.134  above . 
297 Implementation Notice, (Exhibit USA -1), paras.  1, 2, and 4.  
298 Implementation Notice, (Exhibit US A-1). 
299 Ibid. 
300 The precise relationship between the terms "customs duties" in Article  I:1 of the GATT  1994 and 
"ordinary customs duties" in Article  II:1(b) of the GATT  1994 has not been discussed by the parties, and the 
Panel does not consider it necessar y to address this question to resolve the dispute before it.  
301 Implementation Notice, (Exhibit USA -1), paras.  1, 2, and 4.  
302 United  States' Table Presenting Tariff Lines and Bound Rates Affected By the Chinese Measure 
(2018) , (Exhibit USA-14); United  States' Table Presenting Tariff Lines and Bound Rates Affected By the 
Chinese Measure (2019) , (Exhibit USA-15); United  States' Table Presenting Tariff Lines and Bound Rates 
Affected By the Chinese Measure (2018) Without Other Additional Duties , (Exhibit USA -17); and United  States' 
Table Presenting Tariff Lines and Bound Rates Affected By the Chinese Measure (2019) Without Other 
Additional Duties , (Exhibit USA -18). The Panel notes that Exhibits USA -14 and USA -15 also identify other 
duties applicable to the tariff lines at issue. However, as the United  States has confirmed that it is not seeking 
findings on these other duties, the Panel excludes them from its analysis. See United  States' response to Panel 
question No.  12, para.  21.  
303 China's response to Panel question No.  23, para.  47. WT/DS558/R  
 
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  establishes that Chi na applies ordinary customs duties in excess of those set forth in its Schedule in 
respect of 123 of the 128 tariff lines covered by the additional duties measure.304 
7.157.   Accordingly, the Panel finds that the United  States has demonstrated that the additional 
duties measure is inconsistent with Article  II:1(b) of the GATT  1994 because it results in the 
imposition of ordinary customs duties on 123 tariff lines in excess of the bound rates set forth in 
China's Schedule.  
7.4.2.3   Whether the additional duties measure is inc onsistent with Article  II:1(a) of the 
GATT  1994  
7.158.   As noted above, where a measure violates Article  II:1(b) of the GATT  1994, it is necessarily 
inconsistent with Article  II:1(a) as well. This is so because, where a Member imposes duties or 
charges on imports in excess of those set forth in its schedule, it ipso facto  accords to those imports 
treatment less favourable than that provided for in its schedule .305  
7.159.   Having found that the United  States has demonstrated that the additional duties measure is 
inconsistent with Article  II:1(b) of the GATT  1994 because it imposes ordinary customs duties on 
123 tariff lines in excess of the bound rates set forth China's Schedule, the Panel also finds that the 
United  States has demonstrated that the additional duti es measure is inconsistent with 
Article  II:1(a) of the GATT  1994 because it accords to those imports treatment less favourable than 
that provided for in China's Schedule.  
7.4.3   Conclusion  
7.160.   For the reasons outlined above, the Panel finds that the additional duties  measure is 
inconsistent with Articles II:1(a) and II:1(b) of the GATT  1994.  
8  CONCLUSIONS AND RECOMMENDATION  
8.1.  For the reasons set forth in this Report, the Panel concludes:  
a. Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 do not 
apply to China's additional duties measure. Accordingly, the application of Articles I and 
II of the GATT  1994 is not suspended in relation to that measure.  
b. Regarding  the United  States' claim under Article  I:1 of the GATT  1994:  
i. China's add itional duties measure is inconsistent with Article  I:1 of the GATT  1994 
because, with respect to customs duties imposed on or in connection with importation , 
it fails to accord an advantage granted to products originating outside the 
United  States immedia tely and unconditionally to products originating in the 
United  States.  
c. Regarding  the United  States' claims under Articles II:1(a) and II:1(b) of the GATT  1994:  
i. China's additional duties measure is inconsistent with Article  II:1(b) of the GATT  1994 
because  it results in the imposition of ordinary customs duties on 123 tariff lines in 
excess of the bound rates set forth in China's Schedule.  
ii. China's  additional duties measure is inconsistent with Article  II:1(a) of the GATT  1994 
because it  imposes ordinary customs duties on United  States -origin imports in excess 
of those set forth in China's Schedule, thus  accord ing to those imports treatment less 
favourable than that provided for in China's  Schedule.  
8.2.  Under Article  3.8 of the DSU, in cases where there is an infr ingement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
 
304 The five tariff lines that China does not impose ordinary customs duties in excess of those set forth in 
its Schedule are 08028000, 0 8029090 , 080440 00, 08104000 , and 0 8109030 . 
305 Appellate  Body Report, Argentina – Textiles and Apparel , para.  47. WT/DS558/R  
 
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  nullification or impairment. The Panel concludes  that, to the extent that China's additional duties 
measure is  inconsistent with certain provisions of the GATT  1994, it has  nullified or impaired benefits 
accruing to the United  States  under that Agreement.  
8.3.  Pursuant to Article  19.1 of the DSU, the Panel recommends that China bring its WTO -
inconsistent measure into c onformity with its obligations under the GATT  1994. 
 
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